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27 F.3d 567
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Nona M. MISHLER, Administratrix of the Estate of Henry C.Mishler, and Nona M. Mishler, Individually,Plaintiff-Appellant,v.Darrell COLEMAN and Leah Coleman, Defendants-Appellees.
No. 93-5286.
United States Court of Appeals, Sixth Circuit.
June 14, 1994.
Before: JONES, NORRIS, and DAUGHTREY, Circuit Judges.
PER CURIAM.
1
In this wrongful death action, the plaintiff appeals the district court's order of summary judgment in favor of the defendants, contending that the matter should have been sent to a jury on the theory of negligent entrustment. We conclude that the decision of the district court is fully supported by the record and affirm.
2
The complaint filed in this case set out two causes of action, one for negligence and the other for negligent entrustment. The negligence theory has since been abandoned, and we are concerned on appeal only with the claim for negligent entrustment, based on the Restatement (Second) of Torts Sec. 390. That section provides:
3
One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.
4
The plaintiff, Nona Mishler, brought this action in her individual capacity, as the wife of the decedent, her husband, Henry Mishler, and in her capacity as the administrator of the decedent's estate. At the time of his death, Henry Mishler was a middle-aged businessman who lived in Florida and was visiting the Coleman family in Kentucky. The defendants, Darrell and Leah Coleman, are a father and daughter who owned the horse from which Henry Mishler fell, causing his death. Darrell had bought the horse as a gift for Leah when she was nine years old (she was 15 at the time of the events described below). Leah rode the horse frequently. The horse, "Beauty," was a standard-bred mare, 11 years old at the time of the incident. Henry Mishler and Darrell Coleman had both grown up together in Iowa and had been friends since childhood. The two families visited each other from time to time.
5
On this occasion, in April 1991, the Colemans and the Mishlers had attended church together. After they finished Sunday dinner, Leah went to get Beauty and rode the horse bareback to the house to feed her. It was not uncommon for Beauty to be ridden bareback. In passing, Leah asked if anyone wished to go for a ride. Having previously ridden Beauty without incident, Henry Mishler accepted Leah's invitation but declined both Leah's and Darrell's offers of a saddle. Instead he requested a saddle blanket, to keep his clothes from getting soiled. After some initial difficulty mounting the horse bareback, Mishler rode across the front yard and turned around without incident. On the way back, however, he dropped one of the reins, which were not tied together. When Mishler leaned forward in an attempt to retrieve the dropped rein, the horse went into a slow gallop and the blanket began to slip. Mishler fell off the horse, suffering head injuries from which he died a few days later.
6
No one before or since this incident had been injured while riding Beauty, although the Mishlers' daughter testified that Beauty had behaved erratically on one occasion while she was riding the horse. The district court determined, based on evidence in the record, that Henry Mishler was a competent, though not expert, horseman and that the Colemans reasonably believed him to be a capable rider. The plaintiff concedes that Mishler had ridden on at least two prior occasions (not including his first uneventful ride on Beauty).
7
As is appropriate in a diversity case, pursuant to Erie Railroad v. Tompkins, 304 U.S. 64 (1938), the district court applied the substantive law of Kentucky and found that it was silent as to whether the definition of chattel under Restatement (Second) of Torts Sec. 390 includes horses. Accordingly, the court set out to find the path that the Kentucky courts would follow were they to decide the issue themselves, Overstreet v. Norden Lab, 669 F.2d 1286, 1289-90 (6th Cir.1982), and concluded that "[i]t cannot be said with certainty that Kentucky would extend this theory to include the owners of domestic animals."
8
The District court reached this conclusion by analyzing Kentucky precedent in regard to negligence claims against horse owners. Under Kentucky law, a horse owner may be liable only if the plaintiff can prove that: (a) the horse possessed dangerous and vicious propensities; (2) the horse was inclined to commit an injury of the class complained of; and (3) the owner knew of the horse's dangerous propensities Ewing v. Prince, 425 S.W.2d 732, 733 (Ky.1968). See also North Hardin Developers v. Corkran, 839 S.W.2d 258, 261 (Ky.1992) (absent history of dangerous propensities, domesticated livestock do not constitute a foreseeable risk of harm). The court found that the Ewing standard embodied an implicit "policy of protecting horse owners." Consequently, the court stated, "Kentucky's high court might well refuse to impose negligent entrustment liability--might refuse, in short, to declare that a horse could be 'use[d] in a manner involving unreasonable risk to physical harm'--absent proof that the particular horse exhibited the sort of 'dangerous propensities' required by Ewing...."
9
The district court further held that, even assuming Kentucky would extend the doctrine of negligent entrustment to horses, the plaintiff had nonetheless failed to sufficiently establish such a cause of action. The court found that the plaintiff had not proven that the decedent was incompetent to use the chattel safely or that the supplier of the chattel knew or had reason to know of the probable misuse of the chattel due to the inexperience of the person to whom the chattel was furnished, both elements of negligent entrustment under Kentucky law.
10
On appeal, the plaintiff first argues that the district court improperly relied on Ewing and North Hardin Developers, because these are negligence, rather than negligent entrustment, cases. But, obviously, the court did not rely on these cases as directly controlling precedent. Rather, the district judge merely cited them as evidence of Kentucky's general reluctance to impose liability on horse owners. In the course of doing so, the court expressly acknowledged that the cases involved negligence, rather than negligent entrustment, claims.
11
The plaintiff does direct us to four cases from other jurisdictions in which the courts have applied Sec. 390 to horses or have permitted recovery of damages for horse-related accidents. Although these cases are not directly relevant to the question of whether Kentucky would extend Sec. 390 to horses, the application of the doctrine of negligent entrustment to horses by other states might be taken to indicate that Kentucky would do the same. In each instance however, the facts of the case cited by the plaintiff are of limited persuasive effect because of substantial dissimilarities with the law and the facts in this case.
12
The plaintiff relies primarily on Dee v. Parish, 327 S.W.2d 449 (Tex.1959), in which the Supreme Court of Texas held the owner of a stable liable under Sec. 390 for allowing a 12-year-old, whom the defendant knew to be inexperienced, to ride off the premises into a rought area, where she was injured. Dee, however, is factually distinguishable from the instant case. Most significantly, the Dee court focused on the age and judgment of the injured party, a 12-year-old child. Id. at 451-52. Here, the decedent was a 45-year-old businessman with prior riding experience.
13
The plaintiff next quotes language from Synder v. Kramer, 463 N.Y.S.2d 591, 593 (A.D. 3 Dept.1983), to the effect that jurors "reasonably could have concluded that defendants were negligent in furnishing to ... an inexperienced rider ... a horse which they knew or ought to have known endangered her safety or that of others." Synder is likewise distinguishable, first, because the language quoted does not refer to Sec. 390. Moreover, the horse in Synder was known to be "highstrung, very quick and dangerous...." Id. Third, the Synder court characterized the defendant as "a bailor who supplied the chattel for his own business purpose...." Id.
14
The plaintiff also quotes language from State Farm Mutual Auto. Insur. Co. v. Shoaf, 446 N.E.2d 824, 827 (Ohio App.1982), in which the court held the defendant liable under Sec. 390 for
15
entrusting her horse to an inexperienced rider in an open area behind an apartment complex which abutted a busy street. Under these circumstances, [the] defendant ... should reasonably anticipate an inexperienced rider's losing control of the horse, with the resultant dangers to others if the horse ran out onto the road (emphasis added).
16
As the emphasized language makes clear, the holding in Shoaf is limited to the facts of that particular case. The owner's liability rested primarily on the fact that she entrusted her horse to a rider whom she knew to be inexperienced, in a crowded residential area without fences and near streets with busy traffic. Id. at 826. Additionally, as the plaintiff here concedes, liability in Shoaf was predicated on negligence, not negligent entrustment. Id. Furthermore, the Shoaf court also found the rider of the horse negligent. Id. at 827.
17
Lastly, the plaintiff cites Dolezal v. Carbrey, 778 P.2d 1261, 1266 (Ariz.App.1989), which held that whether the bolting of an otherwise gentle horse was foreseeable and whether the horse's owner improperly let an inexperienced rider on the horse, inadequately instructed her, and insufficiently supervised her ride and dismount, were questions of fact precluding summary judgment. However, the plaintiff concedes that Dolezal is not dispositive because it, too, was brought on the theory of negligence, rather than negligent entrustment. Further, Dolezal is factually inapposite from the instant appeal. Here, the decedent rode Beauty at least once without incident, while the injured party in Dolezal informed the defendant that she was an inexperienced rider shortly before she was injured. Here, the decedent declined the offer of a saddle, while, in Dolezal, "[e]xpert testimony indicated that ... [the injured party] did not know enough about riding horses to know what questions to ask [defendant] concerning properly mounting, riding and dismounting a horse." Id.
18
Given the relative paucity of cases in which the Restatement (Second) of Torts Sec. 390 has been applied to the negligent entrustment of horses to an arguably capable rider, and given the rather stringent standard Kentucky courts have applied in negligence cases involving horse-related injuries, we cannot say that the district court's reluctance to extend the reach of Sec. 390 to the facts of this case was erroneous. Indeed, Kentucky has been described by its own high court as "the home of the Thoroughbred, the breeding ground of horses famous for speed, spirit and show, ... where the horse is king...." Prince v. Ewing, supra, 425 S.W.2d at 733.
19
Moreover, we conclude that it is unnecessary to second-guess the Kentucky courts concerning the applicability of Sec. 390 to horses, because we find, as did the court below, that even if the theory of negligent entrustment is applicable here, the record precludes recovery by the plaintiff. The plaintiff has demonstrated on the record a loss that is obviously tragic. What she has failed to present is evidence of significant probative value sufficient to defeat the defendants' motion for summary judgment. See generally Anderson v. Liberty Lobby, 477 U.S. 242, 249-50 (1986). The focus of a summary judgment inquiry is whether the evidence presented by the party bearing the burden of proof creates a jury question as to each element of the case. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Here, at the very least, Darrell Coleman's long-time familiarity with his friend, Henry Mishler, as well as Mishler's prior non-eventful ride on Beauty, gave the Colemans reason to believe that Mishler was capable of riding Beauty without being harmed. Accordingly, it is impossible to see how the plaintiff could prove that the defendants knew or should have known of the probable misuse of the chattel by reason of the incompetence of the person to whom the chattel was furnished, an essential element of negligent entrustment under Kentucky law. See Hercules Powder Co. v. Hicks, 453 S.W.2d 583, 587 (Ky.1970).
20
We AFFIRM the order of summary judgment entered by the district court.
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113 Ariz. 90 (1976)
546 P.2d 826
Mary Ann DOWNES and Ramon V. Estrada, Deceased, Petitioners,
v.
The INDUSTRIAL COMMISSION of Arizona, Respondent, Duval Sierrita Corporation, Respondent Employer, Duval Sierrita Corporation, Respondent Carrier.
No. 12240-PR.
Supreme Court of Arizona, In Banc.
February 18, 1976.
Rehearing Denied March 23, 1976.
*91 Davis, Eppstein and Tretschok by Dale D. Tretschok, Tucson, for petitioners.
Gregory L. Folger, Chief Counsel, The Industrial Commission of Ariz., Phoenix, for respondent.
Twitty, Sievwright & Mills by John F. Mills, Phoenix, for respondents Employer and Carrier.
CAMERON, Chief Justice.
This is a petition for review of a memorandum decision of the Court of Appeals, Division One, affirming a decision of the Industrial Commission of Arizona denying death benefits as a result of the death of Ramon V. Estrada.
We must answer only one question and that is whether the deceased, Ramon V. Estrada, died in the course and scope of his employment.
The facts necessary for a determination of this matter are as follows. On the evening of 18 December 1971, deceased, Ramon V. Estrada, was employed as a laborer for the respondent Duval Sierrita Corporation. He was working on the swing shift which starts at 3:30 p.m. and extends to 11:30 p.m. When the shift was started he was assigned to "A" dump, but later, at about 5:00, he was transferred to work as a helper on Drill No. 64. When he arrived at the drill he found it shut down because of electrical problems. He proceeded to clean up around the area of the drill and ate lunch at the normal lunchtime, between 7:30 and 8:00. The particular drill in question never did get into service that night and the crew, after cleaning up, had nothing to do.
On the particular shift in question, a Lee Pitsch, because of his seniority as a laborer, was assigned the easier job of driving the water truck which delivered drinking water to the various crews throughout the open pit mine. Because it was cold that night, there was not a great demand for water and he finished his deliveries at about 8:00. He then stopped at Drill No. 64 and entered into a conversation with Estrada. The testimony is in dispute as to whether Estrada wished to borrow the truck to go use the bathroom or whether or not he and Pitsch agreed to change jobs for the rest of the shift. Estrada was not authorized to drive the water truck as it was the policy of Duval to require employees assigned to this job to accompany a trained driver for at least three shifts before they could qualify for such duty. The hearing officer found, however:
"19. That the evidence fails to establish that the decedent herein was cognizant of the employer's rules which he violated, or that those rules were enforced within the meaning of Goodyear Aircraft Corporation v. Gilbert * * * [65 Ariz. 379, 181 P.2d 624 (1947)].
After Estrada left with the pickup truck, Pitsch stayed. Mr. Capello, who was supervisor of the laborers, stated:
"When I came back out [of the drill cab] he [Estrada] had already went down the hill with the pick-up truck, and I told Pitsch I said, `it is not a good rule unless you ask an operator or something, you could have taken Ramon [Estrada] to the bathroom. That is the way it is supposed to be worked, take him to the bathroom."
*92 Estrada had borrowed the truck for this very same purpose a week before and had returned in about 10 minutes. The road taken by Estrada from the drill area was the same road he would have had to take to go to the change room where the bathroom was located. However, the testimony of Lee Pitsch taken at his deposition in Montana indicates that Estrada may have taken the truck for another purpose.
At Pitsch's deposition taken in Montana, Pitsch indicated that he decided to stay at the drill site and let Estrada have the truck. Petitioner's attorney questioned him extensively on this point indicating that Pitsch had earlier stated that Estrada wanted the truck to go to the bathroom:
"Q Then you have absolutely no recollection of discussing with me that Mr. Estrada was going to the rest room or change room on the night in question?
"A I remember you mentioning it. Why is it so important that he was going to the rest room?
"Q The only reason it's important is that that's what you told me when we had our conversation and that's what prompted our trip down here. The only thing I can say to you is that I am rather surprised that you can't recall it since I also included it in several letters that I wrote to you. You have no recollection of discussing it at all?
"A (No answer.)
"Q You are not just angry because we force you to come in here today?
"A Well, I'm not too happy about you suing that truck driver.
* * * * * *
"Mr. Tretschok: The conversation I am referring to is the conversation I had with Mr. Pitsch in December, 1972, following the accident in which the conversation began with Mr. Pitsch indicating that that was the time that Estrada had borrowed the truck to go to the rest room and that was the conversation that I am referring to, not the other witness who also said Mr. Pitsch said that.
"Q (By Mr. Tretschok) This doesn't change your testimony or your memory?
"A (No answer.)
"Q Would you answer for the record?
"A He may have said he was going to the change room, I don't know."
In any event at approximately 8:10 p.m. the pickup was run over by a 150 ton ore truck driven by a fellow-employee and Estrada was crushed to death.
Mary Ann Downes filed a claim with the Industrial Commission on behalf of herself, two step-children of the deceased, and the natural child of herself and deceased born after the accident.
The hearing officer denied the petitioner's claim stating:
"18. That the applicant has failed to bear the burden of proof imposed upon her by law. (citations omitted)"
We disagree with the hearing officer's conclusion. There is a presumption that if an employee is injured while on company property during working hours, he is injured while within the scope and course of his employment:
"* * * We hold that when an employee is going to or coming from his place of work and is on the employer's premises he is within the protective ambit of the Workmen's Compensation Act, at least when using the customary means of ingress and egress or route of employee's travel or is otherwise injured in a place he may reasonably be expected to be." Pauley v. Industrial Commission, 109 Ariz. 298, 302, 508 P.2d 1160, 1164 (1973).
And:
"* * * [T]he source of the injury was sufficiently associated with the employment as to constitute a risk to which claimant was subjected in the course of her employment, and to which she would *93 not have been subjected had she not been so employed. * * *" Royall v. Industrial Commission, 106 Ariz. 346, 351, 476 P.2d 156, 161 (1970).
There is a further presumption that when a workmen is killed on the job he was, at the time of the fatal accident, with in the scope and course of his employment:
"The petitioner contends that under these circumstances a presumption or at least an inference arises to the effect that Martin was within his employment at the time of the accident. For support she relies upon the annotation in 120 A.L.R. 683 and the rule stated therein as follows: `It is generally held that when it is shown that an employee was found dead at a place where his duties required him to be, or where he might properly have been in the performance of his duties during the hours of his work, in the absence of evidence that he was not engaged in his master's business, there is a presumption that the accident arose out of and in the course of the employment within the meaning of the compensation acts.' (Emphasis supplied.)
* * * * * *
"The legal proof required in these cases in order to sustain the burden may be either direct, circumstantial or presumptive. We believe that the petitioner in the instant case has adduced enough uncontradicted facts to raise a rebuttable presumption that the deceased was within his employment at the time of the accident, which under all the circumstances of this case is not unreasonable or unfair to the commission. Where there is no evidence produced to rebut this presumption, it is controlling and sufficient upon which to predicate an award. * * *" Martin v. Industrial Commission, 73 Ariz. 401, 404-405, 242 P.2d 286, 288-289 (1952).
The petitioner, by showing that the deceased was injured and died on company premises during working hours, raised a rebuttable presumption that the deceased died in the scope and course of his employment. The evidence introduced to rebut this presumption indicated that deceased's absence from the drill site was unauthorized. The hearing officer then found that Estrada met his death without the scope and course of his employment. Even if we admit that the deceased's absence from the drill site was unauthorized, this is not dispositive of the matter. If the defendant was, in fact, going to use the bathroom as the evidence strongly suggests, he would be within the "personal comfort rule" and would be covered:
"There is another general rule of law within which, petitioner argues, her case falls, which she calls the `personal comfort' rule. Unquestionably, such a general rule finds acceptance in Arizona. In Nicholson v. Industrial Commission, 76 Ariz. 105, 110, 259 P.2d 547, 550 (1953), we noted that lunching on the premises is generally recognized to be within the course of employment, and likewise we noted the many decisions to the effect that getting fresh air, smoking, resting, eating food and ice cream, quenching thirst, using a telephone, toilet or other facility, washing and gathering up working clothes, are treated as arising out of the employment." Pauley v. Industrial Commission, 109 Ariz. 298, 302, 508 P.2d 1160, 1164 (1973).
If, however, as the respondent employer contended, the deceased had left the job site to roam around the mine while waiting for work to commence at the drill site, he would still be covered under the "idle time" rule. Larson has stated:
"A workman who is idle for lack of immediate work does not deviate from his employment by utilizing the idle interval for rest or sleep. He cannot be expected in view of what we know of human nature, to remain at attention like a soldier, and, on the whole, it probably is for the employer's benefit to have him refresh himself * * *.
* * * * * *
*94 "The leeway accorded an employee during an enforced hiatus in his work extends not only to resting and sleeping but also to a certain amount of wandering around and even undertaking what otherwise might seem to be distinctly personal activities. * * *" Larson On Workman's Compensation, § 21.74, p. 5-48, 5-49.
In the instant case, there was nothing for deceased to do. Whether he had changed jobs with Pitsch or just wanted to do something else while waiting for work to commence is immaterial. Estrada was there, on company property. There is no evidence to indicate that he was not available for work when work was available. He was killed by a company truck driven by a company employee and he was killed during working hours. The evidence does not reasonably support a finding that overcomes the presumption that he was killed in the scope and course of his employment.
Award set aside.
STRUCKMEYER, V.C.J., and HAYS, HOLOHAN and GORDON, JJ., concur.
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547 F.2d 1223
2 Fed. R. Evid. Serv. 291
Mary L. HIGGINS, as Administratrix of the Estate of JosephT. Higgins, Jr., Deceased, Plaintiff-Appellee,v.KINNEBREW MOTORS, INC., and Utica Mutual Insurance Company,Defendants-Appellants.
No. 76-2051Summary Calendar.*
United States Court of Appeals,Fifth Circuit.
March 2, 1977.
Steve M. Watkins, Tallahassee, Fla., for defendants-appellants.
W. Dexter Douglass, Tallahassee, Fla., Alexander, Vann & Lilly, Charles H. Watt, III, Thomasville, Ga., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Florida.
Before BROWN, Chief Judge, and GEWIN and MORGAN, Circuit Judges.
JOHN R. BROWN, Chief Judge:
1
This is an appeal by Kinnebrew Motors, Inc. and Utica Mutual Ins. Co. from a judgment on a jury verdict in favor of Mary L. Higgins as Administratrix of the estate of her deceased husband, Joseph T. Higgins, Jr. and as surviving wife.
2
The diversity action arose out of a two-car collision near Tallahassee, Florida on September 5, 1974. Decedent Higgins and a car salesman employed by Kinnebrew were traveling in a car owned by Kinnebrew and insured by Utica when the car collided with a second auto causing the death of the two men. Higgins was apparently a prospective auto purchaser. The facts are disputed as to who was operating the vehicle at the time of the collision. However, the issue of liability is not appealed.
3
Mary L. Higgins brought suit under the Florida Wrongful Death Act, Fla.Stat.Ann. § 768.16 et seq., for the wrongful death of Joseph T. Higgins, Jr. The jury awarded damages in the amount of $301,569.65 in favor of Mary L. Higgins as Administratrix of the estate of Joseph T. Higgins, Jr. and $200,000.00 in favor of Mary L. Higgins as survivor. Kinnebrew urges that the award is excessive and should be set aside or a substantial remittitur ordered. Kinnebrew also claims that the District Court committed reversible error by admitting the testimony of an economics expert as to future damages when the expert failed to consider the statutory method of computing damages. We hold that the testimony was admissible and that the award is not excessive.
4
Fla.Stat.Ann. § 768.211 details the allowable damages in a wrongful death action. Under Florida law, § 768.21(6)(a), a surviving spouse may recover loss of net accumulations beyond death and reduced to present value. Section 768.18 defines net accumulations as:
5
(T)he part of the decedent's expected net business or salary income, including pension benefits, that the decedent probably would have retained as savings and left as part of his estate if he had lived his normal life expectancy. "Net business or salary income" is the part of the decedent's probable gross income after taxes, excluding income from investments continuing beyond death, that remains after deducting the decedent's personal expenses and support of survivors, excluding contributions in kind.
6
Kinnebrew directs this appeal solely to the testimony of the expert witness as to the economic loss and the allowable damages under the Florida statute. The expert, whose competence is not otherwise challenged, Dr. James E. Pitts, received his Ph.D. in economics at the University of Kentucky and had varied experiences in calculating economic worth of decedents. Dr. Pitts testified that decedent was 271/2 years old at the time of death with a remaining 433/4 years life expectancy. He further testified that if Higgins worked until age 62 and based on his earnings record with forecast for the future his net accumulated estate at normal death reduced to present value would be $303,208.00. If decedent had worked up to age 65, Dr. Pitts calculated his net accumulation to be $328,208.00. Kinnebrew challenges several elements of the calculations.
7
Statutorily, decedent's personal expenses and support of survivor must be deducted from decedent's net business or salary income in calculating net accumulations. Kinnebrew claims the figures utilized for the decedent's personal expenses and support of survivor did not reflect the actual expenses of the couple. Dr. Pitts testified that his calculations were based upon a deduction of $2,100.00 for decedent's personal expenses and a like amount for support of survivor. This figure was determined by statistics from the U. S. Bureau of Labor that the intermediate living budget for a husband and wife under 35 with no children was approximately $4,200.00. Kinnebrew objects to the fact that Pitts did not obtain or use the actual expenses of the Higgins in his calculations. This Court has previously upheld an expert witness' use of figures taken from United States Department of Labor, Bureau of Labor Statistics tables. Mealey v. Slaton Machinery Sales, Inc., 5 Cir., 1975, 508 F.2d 87. The admission of the opinion of Dr. Pitts, which was formed by reliance on figures from the Bureau of Labor Statistics, does not provide a basis for reversal.2 See Burlington Northern Inc. v. Boxberger, 9 Cir., 1975, 529 F.2d 284.
8
In further support of its position, Kinnebrew argues that the $4,200.00 figure does not form a reasonable basis for computation because the testimony of decedent's widow indicates that expenditures for personal expenses and support of survivor were actually much higher. This argument fails to consider the testimony in relation to expenditures for items which are consumed through the normal process of living and those which retain their value. Dr. Pitts testified that his estimate included expenditures only for items that did not retain their value. The jury did not have to ignore the possibility that Mrs. Higgins included expenditures for both type items in her testimony.
9
The weight to be given the testimony of both the widow and the expert was for the jury to determine. Mealey v. Slaton Machinery Sales, Inc.,supra. The jury could conclude from all the evidence that the statistics relied upon by Dr. Pitts were representative of the Higgins and we cannot say that in making the award, the jury exceeded the bounds of the probabilities presented by the evidence. See Har-Pen Truck Lines, Inc. v. Mills, 5 Cir., 1967, 378 F.2d 705; Compania Dominicana de Aviacion v. Knapp, 251 So.2d 18 (Fla.App., 1971); City of Miami v. Jiminez, 266 So.2d 46 (Fla.App., 1972). As to the request for a remittitur the verdict was within the shield of the Seventh Amendment. See Gorsalitz v. Olin Mathieson Chemical Corp., 5 Cir., 1970, 429 F.2d 1033.
10
AFFIRMED.
*
Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I
1
The applicable portions of § 768.21 provides:
Damages may be awarded as follows:
(1) Each survivor may recover the value of lost support and services from the date of the decedent's injury to his death, with interest, and future loss of support and services from the date of death and reduced to present value. In evaluating loss of support and services, the survivor's relationship to the decedent, the amount of the decedent's probable net income available for distribution to the particular survivor, and the replacement value of the decedent's services to the survivor may be considered. In computing the duration of future losses, the joint life expectancies of the survivor and the decedent and the period of minority, in the case of healthy minor children, may be considered.
(2) The surviving spouse may also recover for loss of the decedent's companionship and protection and for mental pain and suffering from the date of injury.
(5) Medical or funeral expenses due to the decedent's injury or death may be recovered by a survivor who has paid them.
(6) The decedent's personal representative may recover for the decedent's estate the following:
(a) Loss of earnings of the deceased from the date of injury to the date of death, less lost support of survivors excluding contributions in kind, with interest. If the decedent's survivors include a surviving spouse or lineal descendants, loss of net accumulations beyond death and reduced to present value may also be recovered.
(b) Medical or funeral expenses due to the decedent's injury or death that have become a charge against his estate or that were paid by or on behalf of decedent, excluding amounts recoverable under subsection (5).
2
The testimony was also properly admitted under the F.R.Evid., R. 703
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
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21 F.Supp.2d 979 (1998)
UNITED STATES of America, Plaintiff,
v.
Skye Renee DAVIS, Defendant.
No. Crim. 98-31(1)(JRT/FLN).
United States District Court, D. Minnesota.
June 12, 1998.
*980 Andrew S. Dunne, Assistant United States Attorney, Minneapolis, MN, for Plaintiff.
Keith M. Ellison, Hassan & Reed, Minneapolis, MN, for Defendant.
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
TUNHEIM, District Judge.
This matter is before the Court on the Government's objection to a portion of the Report and Recommendation of Magistrate Judge Franklin L. Noel dated April 20, 1998.[1] The Magistrate Judge recommended that a statement of the defendant be suppressed as the fruit of a Fourth Amendment violation.
In relevant part, the Magistrate Judge found that St. Paul Police Officer Michael Johnson arrested defendant after she admitted that her report to the police regarding stolen guns was false. Although Johnson testified at the hearing before the Magistrate Judge that he believes he had probable cause *981 to arrest defendant for filing a false report, the Magistrate Judge found that he and the other officers detained her for over two hours for the purpose of investigating whether she committed a federal gun crime. Thus, the Magistrate Judge determined that the police had unreasonably delayed a prompt judicial determination of probable cause on the issue of the false report. In addition, the Magistrate Judge concluded that the conditions the interrogating officers (ATF Agent Kaminski and St. Paul Police Sergeant Flaherty) placed on defendant in agreeing to release her constituted an unreasonable restraint of her liberty. Based on these findings of unconstitutional conduct, the Magistrate Judge recommended that the statement given by defendant during her detention while she was undergoing an interrogation be suppressed.
The Government objects to this recommendation on a number of grounds. It argues the short delay defendant experienced was not unreasonable. It also points out that the Eighth Circuit has held clearly that arraignments may be delayed by interviews and questioning of the defendant. See Warren v. City of Lincoln, Nebraska, 864 F.2d 1436, 1441-42 (8th Cir.), cert. denied, 490 U.S. 1091, 109 S.Ct. 2431, 104 L.Ed.2d 988 (1989); United States v. Boyer, 574 F.2d 951, 955 n. 5 (8th Cir.), cert. denied, 439 U.S. 967, 99 S.Ct. 457, 58 L.Ed.2d 426 (1978). It further contends that there is no evidence in the record to support the Magistrate Judge's conclusion that defendant was arrested and detained for the sole purpose of investigating whether she had committed a federal gun crime.[2] Finally, the Government insists that the terms of defendants' agreement to cooperate with the police do not constitute a Fourth Amendment seizure, and, even if they do, defendant's statement is not a fruit of these terms because the agreement was reached after defendant made the statement.
The Court has reviewed de novo the objection to the Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(C) and D.Minn. LR 72.1(b)(2). Based on this review, the Court agrees with the Magistrate Judge that the statement should be suppressed.
As an initial matter, the Court is inclined to agree with the Government that the statement at issue cannot be a fruit of the terms under which defendant was released, because these terms were discussed after defendant made the statement. To this extent, the Court does not adopt the Magistrate Judge's reasoning.
However, the Court finds, as the Magistrate Judge did, that the statement was obtained unlawfully because it was the product of defendant's being detained for over two hours for the sole purpose of investigating whether she had committed a federal gun crime. It is undisputed that Johnson placed defendant under arrest; that he transported her to, and then detained her at the police station; and that she was not free to leave until after she had reached an agreement with the interrogating officers. Although Johnson later opined that he had probable cause to arrest defendant for filing a false report with the police, and although he indeed may have had such probable cause, his testimony makes clear that he arrested and then detained the defendant with the singular intent of investigating further the possibility that she had violated federal gun laws. Moreover, his testimony regarding his conduct at the police station establishes that he neither attempted nor intended to charge defendant on the false report theory. In particular, once he and the defendant arrived at the station, Johnson talked to Officer Flaherty about the issue of trafficking in guns, turned defendant over to Flaherty and Kaminsky so that they could interrogate her regarding the gun issue, and then left the station. He never filed a report regarding defendant's false report, and she was not arraigned on such a charge. Likewise, Kaminski's testimony clearly supports the conclusion that she and Flaherty were only interested in pursuing an investigation regarding potential federal gun crimes.
*982 Thus, testimony at the hearing establishes defendant was detained for over two hours not because of a necessary delay in processing prior to a probable cause hearing on a false report charge. Rather, she was held for that period only because the police wanted to interrogate her regarding possible gun violations.[3]
As the Magistrate Judge concluded, detention and delay solely for investigatory purposes is inherently unreasonable under Riverside v. McLaughlin, 500 U.S. 44, 57, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991). In that opinion, the Supreme Court stated:
Such a [probable cause] hearing may nonetheless violate Gerstein if the arrested individual can prove that his or her probable cause determination was delayed unreasonably. Examples of unreasonable delay are delays for the purpose of gathering additional evidence to justify, the arrest. ...
Id. (emphasis added).[4] Also, the unreasonableness of the detention in this case is particularly apparent because its purpose was to facilitate an investigation of a different crime from the one that, at least in theory, provided the grounds for the arrest.
Moreover, that the detention here was for the sole purpose of further investigating a (different) crime distinguishes this case from both Boyer and Warren. In each of those cases, the defendant was detained and interviewed while undergoing the administrative steps leading to an arraignment hearing on the charges underlying his arrest. In such circumstances, the court concluded that the modest delays the defendant endured were reasonable. Here, however, defendant was not detained so that she could be processed and then arraigned on false report charges; she was detained only for the purpose of interrogation regarding possible federal gun crimes. This interrogation therefore was neither part of nor incident to the administrative steps leading to an arraignment. Thus, the detention in this case, unlike those found reasonable in Boyer and Warren, was inherently unreasonable, regardless of its modest length.[5]See McLaughlin, 500 U.S. at 57, 111 S.Ct. 1661.
Because the statement at issue was a fruit of this unreasonable detention, the Court agrees with the Magistrate Judge that it should be suppressed. The Government's objection is overruled.
ORDER
Based on the foregoing, and all of the records, files, and proceedings herein, the Court OVERRULES the objection of the Government and ADOPTS the Magistrate Judge's Report and Recommendation as set forth above. Accordingly, IT IS HEREBY ORDERED:
1. Defendant's motion to suppress confessions [Docket No. 15] is GRANTED IN PART and DENIED IN PART.
2. Defendant's motion is DENIED as to the first statement made to Officer Johnson.
3. Defendant's motion is GRANTED as to the second statement made to Officer Johnson.
*983 4. Defendant's motion is GRANTED as to the statement made to Agent Kaminski and Sargent Flaherty.
REPORT AND RECOMMENDATION
THIS MATTER came before the undersigned United States Magistrate Judge for hearing on March 25, 1998, on defendant's pretrial motion to suppress confessions. The government called as witnesses Special Agent Katherine Kaminski from the United States Bureau of Alcohol, Tobacco and Firearms (ATF), and Officer Michael J. Johnson from the Saint Paul Police Department. Defense counsel called defendant, Skye Renee Davis.
I. FINDINGS OF FACT
On May 2, 1997, Davis summoned the St. Paul police to her home to make a report regarding stolen guns. Before the day was over, Davis made three statements regarding the guns she initially reported stolen. The first was made to St. Paul Police Officer Michael Johnson who went to Davis' home to take the report. Johnson found Davis and her two-year-old daughter at home. After asking Davis several questions, he became suspicious of Davis' report that guns were stolen from her and told her he had doubts about its truth. He said he believed she was * buying and selling guns and that he wanted a truthful story from her. He informed Davis that if she did not tell him the truth he would start an investigation regarding the guns, and, if the investigation showed Davis was illegally trafficking in guns, she could go to jail and lose custody of her child. He also told her if she cooperated with the police other options would be available to her.
Defendant is the primary caretaker of her child and the child's father is not involved in their lives. Davis felt devastated and over-whelmed at the thought of going to jail and losing custody of her daughter. She admitted making a false report of theft and proceeded to give a second statement regarding the guns to Johnson. After Davis gave the first two statements in her home, Johnson brought her to the police department for further questioning. The officer told Davis she would be speaking to other investigators at the precinct to "see where it would go from there." Officer Johnson never gave Davis a Miranda warning and did not tell her that she was under arrest, though he testified that she was not free to refuse his request to go to the station house.
Defendant was placed in a holding cell at the police department while Johnson spoke with Sergeant Flaherty of the St. Paul Police regarding the matter. After this conversation, Johnson had no further involvement with the investigation or Davis' case. The next interview Davis had was with Sergeant Flaherty and Special Agent Kaminski of the Federal Bureau of Alcohol, Tobacco and Firearms (ATF). They gave defendant a Miranda warning by reading with her a form that outlined her rights. After reading each statement of her rights, Agent Kaminski asked Davis if she understood the statement and then Davis initialed it. She signed her name at the end of the form. During the interrogation, Davis made a third statement.[1] Kaminski testified that during the interview they made no threats or promises, and that Davis did not ask to end the interview or ask for an attorney.
Despite the apprehension and interrogation by state and federal officers, Davis was not booked or charged with any crime that day. Instead, she was released following two to three hours of detention after agreeing to undertake the following actions which the court finds as a fact were implicit, if not explicit conditions of her release:
1) she would cooperate with ATF agents to gather evidence against her boyfriend who was suspected of illegally trafficking in guns;
2) she would report daily to an ATF Agent;
3) she would record conversations with her boyfriend; and
4) she would conceal her cooperation from her boyfriend.
Agent Kaminski testified that she asked Davis whether she had children and knew *984 that Davis was the primary caretaker and very bonded to her child. Agent Kaminski told Davis that she would inform the United States Attorney of her cooperation, and that would help her case. Davis believed that she had no choice but to cooperate with the investigation if she wanted to retain custody of her daughter.
Davis testified that her boyfriend was not in close contact with her after she was released. According to Agent Kaminski, Davis provided only one recorded phone conversation to the Government. Kaminski suspects that Davis disclosed her cooperation with law enforcement to her boyfriend soon after her release. Agent Kaminski stopped contacting Davis about a month after her initial arrest because she believed Davis' cooperation was no longer useful to the government. The ATF agent testified that the statement given by Davis while in custody on May 2, 1997, provided probable cause to arrest her on federal charges. Kaminski further testified that she knew that day that she would recommend to the United States Attorney that Davis be prosecuted for federal firearm crimes. Davis, however, was not booked into jail or charged with any offense that day. Instead she was released upon the conditions described above and was not charged with any crime until nine months later when a federal grand jury returned the instant Indictment.
II. CONCLUSIONS OF LAW
A. Davis' First Statement Is Admissible
The statement that Davis made to Officer Johnson forming the basis of the false report of theft is clearly admissible as evidence at trial. Defendant telephoned the police of her own volition and freely made the report to Officer Johnson when he arrived. There is no argument that Davis was in custody at that time, and the situation presented no need for Miranda warnings.
B. Second Statement Must Be Suppressed
Admissibility of the second statement Davis made regarding the guns after Officer Johnson began to question her is governed by the Eighth Circuit case United States v. Griffin, 922 F.2d 1343 (8th Cir.1990). In Griffin, federal agents went to Griffin's home and interrogated him as to his involvement in a crime. Griffin, 922 F.2d at 1346. The issue there was whether or not Griffin was in custody. Recognizing that not all custodial interrogations occur at the station house, the Griffin court identified six indicia to aid the Court in deciding whether or not a suspect is in custody. Id. at 1347-1352. The first three factors, if present, mitigate against a finding of custody: 1) whether the suspect was informed at the time of questioning that the questioning was voluntary, that the suspect was free to leave or request the officers to do so, or that the suspect was not considered under arrest; 2) whether the suspect possessed unrestrained freedom of movement during questioning; 3) whether the suspect initiated contact with authorities or voluntarily acquiesced to official requests to respond to questions. Id. at 1349. The last three factors, if present, are coercive and point to the existence of custody: 4) whether strong arm tactics or deceptive stratagems were employed during questioning; 5) whether the atmosphere or the questioning was police dominated; 6) whether the suspect was placed under arrest at the termination of the questioning. Id.
Here, the first mitigating factor is clearly not present. There is no evidence that Officer Johnson ever informed Davis that she was not compelled to respond to questioning. To the contrary, he pressured her into answering questions about the guns by threatening an investigation that could lead to her incarceration and separation from her child. The record is silent regarding the second mitigating factor as neither party presented testimony regarding Davis' freedom of movement during the officer's questioning. The facts support mitigation against the finding of custody under the third factor because defendant initiated contact with the authorities, (albeit to report a crime, not to submit to an interrogation).
Two out of the three coercive factors are present and point to the existence of custody. Officer Johnson used strong-arm tactics in his attempt to elicit a confession from Davis by discussing the potential loss of custody of her child if his investigation into Davis' activities showed she had engaged in illegal gun transactions. Regarding the next factor, the facts are unclear as to whether the questioning was police dominated; however, *985 the Court sees that as unlikely as only one officer was present in Davis' home. The last factor shows indicia of custody: Davis was brought to the police station at the end of Officer Johnson's questioning and Officer Johnson testified that at that time she was not free to go.
On balance, the Court concludes that Davis was in custody at the time that Officer Johnson questioned her in her home. Two of the Griffin factors indicate that a custodial situation had arisen. The one mitigating factor, that Davis had initiated the contact with the police, is diminished by the fact that Davis initiated contact to report stolen guns, and presumably not for the purpose of discussing a crime allegedly committed by herself.
During any custodial interrogation, law enforcement officers must inform the suspect of her rights to avoid self-incrimination and to have an attorney present during questioning. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Such warnings reduce the risk of defendants feeling compelled to make self-incriminating statements, which are not admissible at trial. New York v. Quarles, 467 U.S. 649, 654, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984); Miranda, 384 U.S. at 479, 86 S.Ct. 1602. Because Officer Johnson failed to give Davis any Miranda warning, any statements made to him during his questioning of her are not admissible.
C. Davis' Third Statement Must Be Suppressed
1. Fourth Amendment Violation
After being held at the Saint Paul Police Department Annex, Davis underwent custodial interrogation by Agent Kaminski and Sergeant Flaherty. During interrogation, Davis made a third statement regarding the guns she had reported stolen.[2] Because Davis was denied her right under the Fourth Amendment to have a prompt judicial determination of probable cause, following her arrest, the statement she made to Agent Kaminski and Sgt. Flaherty should be suppressed.
In Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), the Supreme Court held that, as a prerequisite to any extended restraint on liberty following arrest, the arrestee is entitled to a prompt judicial determination of probable cause under the Fourth Amendment. The Court based. its holding on the Fourth Amendment protections of liberty and privacy, mapping the history of these protections through Supreme Court precedent.[3]
*986 The Fourth Amendment liberty guarantees serve to restrain officers who, with a single-minded concern for law enforcement, may neglect to consider a suspect's individual liberty interests.[4]Id. at 112, 95 S.Ct. 854; Mallory v. United States, 354 U.S. 449, 452, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957); McNabb v. United States, 318 U.S. 332, 343-344, 63 S.Ct. 608, 87 L.Ed. 819 (1943); Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). The Supreme Court, mindful of the individual liberties protected by the Fourth Amendment, has repeatedly expressed a preference for arrests made pursuant to warrants over warrantless arrests. Gerstein, 420 U.S. at 113, 95 S.Ct. 854; Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Wong Sun v. United States, 371 U.S. 471, 479-82, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Arrests made with warrants ensure that an objective judicial officer removed from the intensity of investigation has determined that probable cause exists to justify the arrest and disruption of the suspect's Fourth Amendment liberties. Gerstein, 420 U.S. at 112, 95 S.Ct. 854; Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 92 L.Ed. 436 (1948) ("The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.").
However, the Court also has recognized that law enforcement officers need discretion to make spontaneous stops and arrests for protection of public safety or to ensure apprehension of suspected criminals. Gerstein, 420 U.S. at 113-114, 95 S.Ct. 854; Terry v. Ohio, 392 U.S. 1, 20-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Circumstances may arise that necessitate quick action by patrol officers to avoid danger to themselves or others in the community. Warden v. Hayden, 387 U.S. 294, 298-99, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). Even so, though the power to make spontaneous arrests may suspend the privacy interests of the individual and the need for a judge to make an independent assessment of probable cause, it does not eliminate those needs or concerns. Gerstein, 420 U.S. at 113-114, 95 S.Ct. 854. As the Court stated in Gerstein, "Once the suspect is in custody ... the reasons that justify dispensing with the magistrate's neutral judgment evaporate. There no longer is any danger that the suspect will escape or commit further crimes while the police submit their evidence to a magistrate. And, while the State's reasons for taking summary action subside, the suspect's need for a neutral *987 determination of probable cause increases significantly. The consequences of prolonged detention may be more serious than the interference occasioned by arrest. Pre-trial confinement may imperil the suspect's job, interrupt his source of income, and impair his family relationships." Id. at 114, 95 S.Ct. 854 (citation omitted).
Though the facts in Gerstein pertained to pretrial detention of the defendant, the Supreme Court made the requirement of a prompt judicial determination of probable cause effective whenever a "significant restraint upon liberty" was imposed. Gerstein, 420 U.S. at 114, 95 S.Ct. 854. Justice Powell wrote,
Even pretrial release may be accompanied by burdensome conditions that effect a significant restraint on liberty. See, e.g., 18 U.S.C. § 3146(a)(2), (5). When the stakes are this high, the detached judgment of a neutral magistrate is essential if the Fourth Amendment is to furnish meaningful protection from unfounded interference with liberty. Accordingly, we hold that the Fourth Amendment requires judicial determination of probable cause as a prerequisite to extended restraint on liberty following arrest.
Id. The Court declined to specifically define what kinds of release conditions would constitute a significant restraint. Id. at 125 n. 26, 95 S.Ct. 854. The Court, however, did give the above cited statute as an example. This statute codified as conditions of release those that "place[d] restrictions on the travel, association, or place of abode of the person during the period of release." Pub.L. No. 89-465, § 3(a), 80 Stat. 214 (1966), repealed by Pub.L. 98-473, Title II, c. 1 § 203(a), 98 Stat.1976 (1984).
2. Application of Gerstein in Davis' Case
The Supreme Court has recognized that Fourth Amendment rights may be implicated when officers circumvent the judicial determination of probable cause requirement by not charging arrestees, United States v. Alvarez-Sanchez, 511 U.S. 350, 360 n. 5, 114 S.Ct. 1599, 128 L.Ed.2d 319 (1994); County of Riverside v. McLaughlin, 500 U.S. 44, 56, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991). In Alvarez-Sanchez, a suspect was arrested and taken into custody on state narcotics charges late in the afternoon on a Friday. Id. at 352, 114 S.Ct. 1599. The next Monday he made a statement to federal officers and was charged with a federal crime. Id. He did not appear before a federal magistrate until Tuesday. Id. The issue on appeal was whether the six hour rule articulated in Title 18, United States Code, Section 3501 began to run when the suspect was arrested and charged with violating state drug laws. The Court held the Federal Statute was not implicated at the time of defendant's arrest on state charges. However, Alvarez-Sanchez also argued to the Supreme Court that his Fourth Amendment rights under Gerstein and McLaughlin had been violated. Id. at 360 n. 5, 114 S.Ct. 1599. The Court expressly declined to address the Fourth Amendment claim because it had not been raised before the District Court or Court of Appeals. The Court expressed no opinion on the merits of the Fourth Amendment claim. Id. at 358, 360 n. 5, 114 S.Ct. 1599.
Here, Officer Johnson arrested defendant Davis in order to investigate whether she was involved in illegal gun sales.[5] Though he did not tell her at that time she was under arrest, he explained at the hearing that she was not free to go and he believed he had probable cause to arrest her for giving a false police report. The officer transported Johnson to a holding cell. See Florida v. Royer, 460 U.S. 491, 502-503, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (finding that police actions, particularly transporting a suspect to another location, can constitute an arrest even if the officer does not comply with the formal requirements of arrest). She remained in custody until after she confessed to federal gun violations. She was released only after she agreed to undertake several, *988 ongoing activities in cooperation with an ATF investigation which imposed significant restraints on her liberty, in particular on her association with her boyfriend.
The constitutional violation here was the failure to provide Davis with a prompt judicial determination of probable cause following Davis' arrest before imposing these restraints on her liberty. The officer arrested Davis without charging her while another officer and federal agent secured her cooperation against a backdrop of potential charges and future detention that would effect Davis' relationship with her daughter.[6] They then released her upon conditions that engendered significant restraints upon her liberty: she was to try to retrieve incriminating statements from her boyfriend; she was to record telephone conversations with her boyfriend; she was to conceal her cooperation from her boyfriend; and she was to report daily to an ATF Agent.[7]
This Court finds the restrictions upon Davis to be comparable to those noted as significant restraints upon liberty by the Court in Gerstein. Davis was required not only to continue to associate with the individual under investigation, her association was intended to deceive him regarding her complicity with the Government and induce him to make incriminating statements. Her life also was circumscribed in that she had to report to the ATF agent daily and she was required to record telephone conversations with her boyfriend.
The Court in Gerstein did not define what it meant by "prompt", but that issue was addressed in County of Riverside v. McLaughlin, 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991). There the Court held that county jails would be immune to system wide facial challenges to their criminal procedures if processes were in place to assure that the judicial determination of probable cause was made within 48 hours of arrest. The Court there, however, observed,
"This is not to say that the probable cause determination in a particular case passes constitutional muster simply because it is provided within 48 hours. Such a hearing may violate Gerstein if the arrested individual can prove that his or her probable cause determination was delayed unreasonably."
An example cited by the Court of an unreasonable delay of less than 48 hours is a delay, "For the purpose of gathering additional evidence to justify the arrest." McLaughlin, 500 U.S. at 56, 111 S.Ct. 1661. Here, the police arrested defendant, and detained her for the purpose of investigating whether there was probable cause to believe she had committed any federal gun crime. The failure to provide the defendant with a prompt judicial determination of probable cause in order to obtain information to charge Davis for a federal gun crime is specifically what the Court forbid in McLaughlin.[8]
The Court is well aware that the executive branch of the government, by and through the United States Attorney and federal investigators, is instilled with the power and discretion to charge crimes when and against whom it finds appropriate.[9]See *989 United States v. Robertson, 45 F.3d 1423, 1437 (10th Cir.1995); United States v. Giannattasio, 979 F.2d 98, 100 (7th Cir.1992). By the same token, the prosecutor and executive branch investigators cannot avoid judicial enforcement of the Fourth Amendment by delaying the charging decision, while releasing suspects they have arrested on conditions that impose significant restraints on liberty.[10]
3. Remedy
The appropriate remedy for a constitutional violation is to exclude from evidence the fruits of the violation, in order to put the government in the same position it would have been in had there been no constitutional violation and to deter any such future violation by law enforcement agents. United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); Weeks v. United States, 232 U.S. 383, 398, 34 S.Ct. 341, 58 L.Ed. 652 (1914). Here the statement Davis made while being interrogated by Agent Kaminski and Sergeant Flaherty is the product of the Fourth Amendment violation, and must, therefore, be suppressed.
III. RECOMMENDATION
Based upon all the files, records and proceedings herein, IT IS HEREBY RECOMMENDED that defendant Skye Renee Davis' motion to suppress confessions [# 15] be GRANTED in part and DENIED in part as follows:
1. As to the first statement Davis made to Officer Johnson, the motion should be DENIED;
2. As to the second statement Davis made to Officer Johnson, the motion should be GRANTED; and
3. As to the statement Davis made to Sgt. Flaherty and Special Agent Kaminski, the motion should be GRANTED.
Pursuant to Local Rule 72.1(c)(2), any party may object to this Report and Recommendation by filing with the Clerk of Court and serving on all parties, within ten days of this Report and Recommendation, written objections which specifically identify the portions of the proposed findings or recommendations to which objection is being made, and a brief in support thereof. A party may respond to the objecting party's brief within ten days after service thereof. All briefs filed under this rule shall be limited to ten pages. A judge shall make a de novo determination of those portions to which objection is made.
Unless the parties are prepared to stipulate that the District Court is not required by 28 U.S.C. § 636 to review a transcript of the *990 hearing in order to resolve all objections made to this Report and Recommendation, the party making the objections shall timely order and cause to be filed within 10 days a complete transcript of the hearing.
This Report and Recommendation does not constitute an order or judgment of the District Court, and it is therefore not appealable to the Circuit Court of Appeals.
NOTES
[1] The Government does not object to the recommendation that defendant's motion to suppress be granted as to another statement.
[2] The Government argues that there is insufficient evidence in the record to support such a finding. In the alternative, the Government contends the Court should hold another hearing on the issue of the intent of the police in detaining defendant.
[3] The Government argues the Magistrate Judge lacked support in the record for reaching this conclusion, and it contends it is entitled to another hearing on the issue of the intent of the police. The Court disagrees. Regardless of what Johnson may otherwise state, his testimony at the hearing before the Magistrate Judge and the circumstances surrounding defendant's arrest, detention, and release, establish his intent in arresting and detaining defendant. The Court believes his and other testimony at the hearing are more than sufficient to support this conclusion.
[4] The Court made this statement context of describing unreasonable delays that are shorter than forty-eight hours, the outer limit of presumptive promptness established by the Court. See id. ("This is not to say that the probable cause determination in a particular case passes constitutional muster simply because it is provided within 48 hours.").
[5] This analysis is consistent with that in Judge John R. Gibson's concurrence in Warren. In discussing the constitutionality of a Nebraska detention statute, Judge Gibson stated as follows:
Police are not permitted to hold someone in custody beyond the time necessary to process him with respect to the crime of arrest for the sole purpose of trying to connect that person to another crime. To do so is an unlawful seizure.
864 F.2d at 1446 (citing Adams v. United States, 399 F.2d 574 (D.C.Cir.1968), cert. denied sub nom., Roots v. United States, 393 U.S. 1067, 89 S.Ct. 722, 21 L.Ed.2d 710 (1969)).
[1] The Government conceded at the hearing that this statement was made during custodial interrogation.
[2] Defendant argues that her third statement was not made voluntarily. Though Davis stated at the hearing that she remained frightened that she would lose custody of her daughter and did not sign the waiver of rights form voluntarily, no evidence suggested that Agent Kaminski or Sergeant Flaherty coerced or pressured Davis into signing the form. The court, therefore, rejects defendant's claim that the statement was not voluntary, but recommends that it be suppressed because of the Fourth Amendment violation discussed above in the text.
[3] Over 50 years ago in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943), the Supreme Court condemned the practice of detaining arrested persons for the purpose of extracting a confession from them, before taking them before a judicial officer. Id. at 343-44, 63 S.Ct. 608. The Court observed that the practice was inconsistent with the common law tradition which assigned different roles to the various participants in the criminal justice process. Several years later in Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957), the Court reaffirmed its holding in McNabb and observed:
"The scheme for initiating a federal prosecution is plainly defined. The police may not arrest upon mere suspicion but only on `probable cause.' The next step in the proceeding is to arraign the arrested person before a judicial officer as quickly as possible so that he may be advised of his rights and so that the issue of probable cause may be promptly determined. The arrested person may, of course, be `booked' by the police. But he is not to be taken to police headquarters in order to carry out a process of inquiry that lends itself, even if not so designed, to eliciting damaging statements to support the arrest and ultimately his guilt.... Presumably, whomever the police arrest they must arrest on `probable cause.' It is not the function of the police to arrest, as it were, at large and to use an interrogating process at police headquarters in order to determine whom they should charge before a committing magistrate on `probable cause.'"
Id. Today, the common law tradition which, as the Court in McNabb observed, dates back to at least 1807 (when former Vice President Aaron Burr was arrested and taken before Chief Justice John Marshall for a judicial determination for probable cause) is embodied in Rule 5(a) of the Federal Rules of Criminal Procedure. In recent years non-compliance with this rule has become more common. See e.g., United States v. Clark, Cr. No. 4-96-127, slip op. at 7 n. 3, (D.Minn. Nov. 22, 1996); United States v. Chevre, Cr. No. 97-236 (D.Minn. Oct. 28, 1997). Had there been compliance with Rule 5(a) the Fourth Amendment violation which occurred here would have been prevented.
[4] The rules of criminal procedure developed out of these concerns. "The purpose of this impressively pervasive requirement of criminal procedure is plain.... A democratic society, in which respect for the dignity of all men is central, naturally guards against the misuse of the law enforcement process. Zeal in tracking down crime is not in itself an assurance of soberness of judgment. Disinterestedness in law enforcement does not alone prevent disregard of cherished liberties. Experience has therefore counseled that safeguards must be provided against the dangers of the overzealous as well as the despotic. The awful instruments of the criminal law cannot be entrusted to a single functionary. The complicated process of criminal justice is therefore divided into different parts, responsibility for which is separately vested in the various participants upon whom the criminal law relies for its vindication. Legislation such as this, requiring that the police must with reasonable promptness show legal cause for detaining arrested persons, constitutes an important safeguard not only in assuring protection for the innocent but also in securing conviction of the guilty by methods that commend themselves to a progressive and self-confident society. For this procedural requirement checks resort to those reprehensible practices known as the `third degree' which, though universally rejected as indefensible, still find their way into use. It aims to avoid all the evil implications of secret interrogation of persons accused of crime. It reflects not a sentimental but a sturdy view of law enforcement. It outlaws easy but self-defeating ways in which brutality is substituted for brains as an instrument of crime detection. A statute carrying such purposes is expressive of a general legislative policy to which courts should not be heedless when appropriate situations call for its application." McNabb v. United States, 318 U.S. 332, 343-44, 63 S.Ct. 608, 87 L.Ed. 819 (1943).
[5] The Supreme Court has made clear that the Fourth Amendment, and the Rules of Criminal Procedure do not permit investigatory arrests. Brown v. Illinois, 422 U.S. 590, 602-03, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) (Blackmun, J.) (unlawful arrest not cured by the giving of Miranda warnings because "arrests made without warrant or without probable cause, for questioning or `investigation,' would be encouraged by the knowledge that evidence derived therefrom could well be made admissible at trial by the simple expedient of giving Miranda warnings."); see also, Dunaway v. New York, 442 U.S. 200, 215-216, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979).
[6] Davis sought to avoid disruption of her family relationships by cooperating, and the law enforcement officers used the threat of such disruption to secure her cooperation. It is not coincidental that disruption of family relationships was a primary concern for the Supreme Court in deciding that pretrial detention or other significant liberty restraints necessitated a judicial determination of probable cause in Gerstein, 420 U.S. at 114, 95 S.Ct. 854.
[7] Agent Kaminski testified that she believed Davis would have been released that day even if she did not agree to cooperate. Significantly, this fact was never communicated to Davis. This does not change the fact that Davis was then aware that she could be charged and further detained at any time, and her freedom was implicitly conditioned upon her cooperation with the investigation.
[8] While it may now appear that Officer Johnson had probable cause to arrest defendant for the misdemeanor of making a false report to a police officer, (Minnesota Statutes Section 609.505), defendant was never charged with that crime, and it is clear from the record that neither Sgt. Flaherty nor Special Agent Kaminski had any interest in investigating that crime. As that was the only crime for which Officer Johnson had probable cause to arrest Davis, she had a right to have a prompt judicial determination of probable cause regarding that crime, and to not be detained while Flaherty and Kaminski investigated federal violations.
[9] The Court also recognizes that individuals under investigation have no right to arrest once probable cause arises; the timing of that arrest is up to the investigating officers. Hoffa v. United States, 385 U.S. 293, 309-10, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966); O'Reilly v. United States, 486 F.2d 208, 210 (8th Cir.1973). The facts of Davis' case are clearly distinguishable: she was arrested as soon as the officer discovered the existence of probable cause that she made a false police report.
[10] It appears that the delay between Davis' arrest and her first judicial appearance over nine months later, may have also violated Federal Rule of Criminal Procedure 5(a) and 18 U.S.C. § 3501(c). See, e.g., United States v. Bear Killer, 534 F.2d 1253 (8th Cir.1976). (No violation of Rule 5 or § 3501 when reasonable delay was occasioned by suspect's intoxication and the need to travel 100 miles to Magistrate). United States v. DiGregorio, 795 F.Supp. 630 (S.D.N.Y. 1992) (violation of Rule 5(a) resulting from an arrest and release does not warrant dismissal of Indictment but is fully remedied by suppressing statements made by the suspect during the period between his arrest and his appearance before a judicial officer). Compliance with the statute and rule, would clearly have prevented the constitutional violation. The Government's arguments that Davis was not in federal custody and therefore not entitled to the protection of Rule 5 or 18 U.S.C. § 3501(c) miss the mark. It is the Fourth Amendment violation that requires suppression of Davis' confession. The court here expresses no opinion on whether a violation of Rule 5(a) which does not also constitute a Fourth Amendment violation would require a similar result.
The Eighth Circuit has also recognized that Gerstein requires a judicial determination of probable cause independent of the rules of criminal procedure. Wayland v. City of Springdale, 933 F.2d 668 (1991). In Wayland, plaintiff brought a civil rights action on behalf of her deceased husband who was arrested but not charged, indicted or arraigned. After six days in custody, Jimmy Wayland was found dead hanging in his jail cell. Reversing a summary judgment order, The Eighth Circuit concluded that Gerstein demands a detainee be brought before a judicial officer without unnecessary delay. Wayland, 933 F.2d at 670. In answer to the argument that the Springdale police were not at fault because they had notified the prosecuting attorney's office of the arrest, the court indicated, "even if appellees were not responsible for the delay in the arraignment they still may be answerable for the constitutional violation." Id.
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87 F.Supp. 811 (1949)
POWELL et ux.
v.
UTZ et ux.
No. 842.
United States District Court E. D. Washington, N. D.
December 29, 1949.
*812 Willard J. Roe, Spokane, Wash., for plaintiffs.
James Leavy, John Horrigan, Theodore Dare Peterson, Pasco, Wash., for defendants.
DRIVER, Chief Judge.
Defendants have moved to dismiss the complaint on the ground that it does not state a claim against them on which relief can be granted. The basis of this court's jurisdiction, diversity of citizenship of the parties, is sufficiently stated in the complaint. The allegations which set forth plaintiffs' claim to relief may be summarized briefly as follows:
Plaintiffs, husband and wife, are Negroes and citizens of the United States. On February 11, 1949 defendants were operating a restaurant which catered to the public, in Pasco, Washington. At about 1:30 P.M. on that day plaintiff Hazel Powell, better known as Hazel Scott, in company with another lady of the Negro race, entered the restaurant, seated herself at the lunch counter provided for the use of the customers, and requested that she and her companion be served food and drink. Defendants refused to serve them for the sole express reason that they were Negroes. The refusal was in the presence and hearing of others and it caused Mrs. Powell to suffer shame, humiliation and mental distress for which plaintiffs seek recovery of damages.
It is clear from the foregoing summary that plaintiffs have not stated a claim under the Fourteenth Amendment to the Federal Constitution. The prohibitions of that Amendment against deprivation of life, liberty or property without due process *813 of law or denial of the equal protection of the laws, apply only to state action and the invasion of the rights of one person by another who acts as a private individual does not come within its reach.[1] If plaintiffs have a right of recovery it must rest upon the civil rights statute of the State of Washington, Chapter 249, Section 434, Laws of 1909, Rem.Rev.Stat. § 2686, which in pertinent part reads as follows: "Every person who shall deny to any other person because of race, creed or color, the full enjoyment of any of the accommodations, advantages, facilities or privileges of any place of public resort, accommodation, assemblage or amusement, shall be guilty of a misdemeanor."
Although penal in form, the foregoing statute has been held by the Washington Supreme Court to be also remedial in effect so that a person deprived of the rights which it safeguards has a civil cause of action for damages against the wrongdoer.[2]
The question for determination, then, comes down to this: Is a restaurant a place of public accommodation within the meaning of the above quoted language of the Washington civil rights statute? An apposite decision of the question by the state Supreme Court would of course be binding on this court, but up to this time there has been no such decision. My task, then, is to conjecture, as best I can, what answer the state court would now give to the question, having in mind the implications of the cases in which that court has had the statute under consideration and the established principles of statutory construction by which the court would be guided.
My attention has been called to only four cases in which the civil rights statute, in its present form, has been before the state court for consideration. The court has held in two cases, Anderson v. Pantages Theatre Co. and Randall v. Cowlitz Amusments, Inc., cited in footnote 2, that theatres are places of public amusement and hence within the scope of the statute. In each case recovery of damages by a Negro who, after purchasing a ticket had been denied full enjoyment of the facilities of a theatre solely because of his race, was upheld. In Goff v. Savage, 122 Wash. 194, 210 P. 374, however, the court held that a soda fountain and ice cream stand within a drug store was not a place of public accommodation and denied a right of recovery of damages to a person whom the proprietor refused to serve a glass of soda water for the reason that he was a Negro. The fourth case, Finnesey v. Seattle Baseball Club, 122 Wash. 276, 210 P. 679, 680, 30 A.L.R. 948, involved a baseball park. Whether such an establishment was a place of public resort or amusement was not before the court for decision as there was "no allegation or proof that the [plaintiff's] ejection was because of race, creed, or color", but the court by way of dicta did express the view that the civil rights statute would not apply since the baseball park was a private rather than a public business. Thus the state court has taken the position that a theatre is a place of public amusement but a soda fountain is not a place of public accommodation. In Goff v. Savage the court stressed the requirement of the statute that the establishment must be a "public" one, and reasoned that since one operating a soda fountain has the right to contract or refuse to contract with prospective customers as he sees fit, the business is private, even though the general public is invited to enter the place where the business is carried on. The court endeavored to distinguish that kind of place from one such as a theatre where the customer buys an admission ticket. I do not see any sound basis for the distinction. A theatre owner, as well as a soda fountain operator, has the right to select his patrons *814 on a proper individual basis and may decline to serve those who are personally objectionable because of uncleanliness, disorderly conduct and the like. The only difference is that as to the theatre the selection is made at the entrance to the establishment whereas in the case of the soda fountain it is exercised after the patron has entered. The civil rights statute does not curtail the right to reject patrons on an individual basis since it applies only where the refusal to serve is because of race, creed or color.
Moreover, in the Pantages Theatre case the court was called upon to consider the effect of the circumstance that plaintiff Anderson had purchased and was the holder of an admission ticket at the time of his ejection. The contention was made that since Anderson had an admission ticket his action was based upon breach of contract and his recovery should be limited accordingly. It was held, however, that the action was grounded in tort. The court said that the purchase of the admission ticket was immaterial and that Anderson's right of action would not have been affected if he had applied for the purchase of a ticket at the theatre entrance and had been refused.[3]
Anderson v. Pantages was decided in January, 1921 and Goff v. Savage, November, 1922, was a later expression of the court, it is true. However, in March, 1938, in Randall v. Cowlitz Amusements, Inc., cited in footnote 2, without any mention of Goff v. Savage and without qualification or limitation the court followed Anderson v. Pantages.
Since the decisions of the Washington Supreme Court are not conclusive on the issue under consideration, resort must be had to the civil rights statute to determine whether it was the legislative intent to include within its reach a restaurant open to the general public. In doing so I have in mind that since it is in derogation of the common law and is penal in character the statute should be strictly construed.[4] However, while strict construction does not permit the extension of the import of the words of a statute by implication or for equitable considerations and confines its operation to cases clearly within the letter as well as the spirit of the law, it does not mean that its words shall be given their narrowest possible meaning. On the contrary, the words employed should be given their full, fair and sensible meaning in accord with the legislative intent.[5]
What, then, is the full, fair and sensible meaning of the words "public accommodation" in the Washington civil rights statute? According to Webster's dictionary, accommodation means "Whatever supplies a want or affords ease, refreshment, or convenience; anything furnished which is desired or needful; often in plural; as, the accommodations that is, lodgings and food at an inn." The same authority has this to say of the meaning of the word "public": `Open to common or general use; specif.: a. Open to the use of the public in general for any purpose, as business, pleasure, religious worship, gratification of curiosity, etc. b. Open to the enjoyment of the public under the rights and liabilities belonging to an action, occupation, use, or *815 the like, called public, as a public carriage, a public house, etc."
According to the foregoing dictionary definitions, "public accommodation" clearly includes a restaurant open to the general public. That meaning appears to be in accord with the legislative intent as to the scope of the statute. It may be assumed that the legislature had some purpose in mind when it included in the act the words "public accommodation." If it had intended to limit the operation of the law to places of public amusement or resort where tickets of admission are sold, it could easily have so provided in plain words. If the statute were to be construed to exclude any business establishment where at common law and in absence of statutory restrictions the proprietor has the right to govern the terms of his dealings with patrons by private contract, then no privately owned and operated place of business would be included, and the civil rights statute would be a farce and a sham. Manifestly, the legislature did not intend to limit the reach of the act to government owned and operated establishments.
In the construction of a statute which repeals a former act or contains a revision or codification of an earlier law, resort may be had to the repealed or superseded statute to aid in the discovery of the legislative intent.[6]
The first Washington legislature, after admission to statehood, enacted a civil rights act, Laws of 1889-90, Chap. XVI Miscellaneous, p. 524. It was in two sections. The first granted to all persons "full and equal enjoyment of the public accommodations, advantages, facilities and privileges of inns, public conveyances on land or water, theatres and other places of public amusement and restaurants, subject only to the conditions and limitations established by law and applicable alike to all citizens of whatever race, color or nationality." The second section of the law provided penalties for denial of the rights granted in the first section. In 1895 Section 1 was amended, Laws of 1895, Chap. XCIX, p. 192, to read as follows: "All persons within the jurisdiction of the State of Washington shall be entitled to the full and equal enjoyment of the public accommodations and advantages, facilities and privileges of inns, restaurants, eating houses, barber shops, public conveyances on land or water, theaters and other places of public accommodation and amusement, subject only to the condition and limitations established by law and applicable alike to all citizens."
The 1895 Amendment, it should be noted, introduced a new term in the general designation of "other places," namely, "public accommodation." Also it is significant that, following the enumeration of particular establishments, among which were "restaurants, "eating houses" and "theatres", the legislature used the language "and other places of public accommodation and amusement," thereby indicating that it regarded restaurants and eating houses as places of public accommodation.
In 1909 the Washington legislature codified the criminal laws, Laws of Wash. 1909, Chap. 249. In the process it repealed the earlier civil rights act and in its place enacted the statute, Laws of 1909, Chap. 249, Sec. 434, p. 1027, Rem.Rev.Stat. § 2686, quoted earlier in this opinion. In this 1909 Code the civil rights act was condensed to one short paragraph. All specific designations of particular types of establishments in the earlier act, namely, "inns, restaurants, eating houses, barber shops, public conveyances on land or water, theaters," were omitted, and in broad, general terms the denial, because of race, creed or color, of the use and enjoyment of "any place of public resort, accommodation, assemblage or amusement" was denounced. Surely it may not be assumed that the legislature intended to exclude restaurants from the operation of the statute merely because the word "restaurants" was omitted, in view of the decisions of the Washington Supreme Court in Anderson v. Pantages Theatre Co. and Randall v. Cowlitz Amusements, *816 Inc., supra, that the omission of the word "theatres" did not exclude that class of establishments. Moreover, as I have said, the present civil rights statute is part of a criminal code. The primary legislative purpose in codification is to simplify and clarify the wording of prior legislative enactments and to eliminate duplications, obsolete material and the like. It is unusual, to say the least, for the legislature in enacting a code to basically change prior laws without giving some clear indication as to what changes are intended. Here there is no indication that the legislature intended to narrow the scope of the civil rights act upon its inclusion in the Code of 1909. In fact, there is some indication to the contrary. While all the specific designations of places were dropped from the prior law, the general language of the old act, namely, "other places of public accommodation and amusement," was expanded in the new act to read: "any place of public resort, accommodation, assemblage or amusement," thus adding the designations "resort" and "asemblage" to the kinds of places within its coverage, I find no legislative intent to narrow and restrict the scope of the civil rights statute of 1909 so as to exclude a restaurant from its operation.
I have considered numerous cases decided by the courts of other states but have not found them very helpful. They are based upon statutes which differ materially in wording and legislative history from the one involved here. No case has been called to my attention in which a restaurant has been held to be covered by a statute which employs the broad, general designation, "place of public accommodation." Restaurants have been held in many cases to be within the operation of civil rights statutes, but in every such case the statute specifically named "eating houses" or "restaurants" as within its reach.[7] On the other hand, I am aware of no case in which a court of record has squarely held that a restaurant is not a "place of public accommodation" within the meaning of a statute similar to the Washington act. Defendants cite State v. Brown, 112 Kan. 812, 212 P. 663, 31 A. L.R. 338, but the statute involved in that case had substantially different wording. There the Kansas Supreme Court had under consideration the question whether a restaurant was within the coverage of a penal statute which forbade discrimination on account of race or color in "any inn, hotel or boarding-house, or any place of entertainment or amusement for which a license is required by any of the municipal authorities of this state * * *." Gen. St.Kan. 1915, § 3791. The court held that a restaurant was not an inn, hotel or boarding-house within the meaning of the act.
It is my conclusion that a restaurant open to the general public is a place of public accommodation as that expression is used in the Washington Civil Rights statute, and defendants' motion to dismiss the complaint will accordingly be denied.
NOTES
[1] U. S. v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588; U. S. v. Harris, 106 U.S. 629, 1 S.Ct. 601, 27 L.Ed. 290; Civil Rights Cases, 109 U.S. 3, 11, 3 S.Ct. 18, 27 L.Ed. 835; Shelley v. Kraemer, 334 U. S. 1, 13, 68 S.Ct. 836, 92 L.Ed. 1161, 3 A.L.R.2d 441.
[2] Anderson v. Pantages Theatre Co., 114 Wash. 24, 27, 194 P. 813; Randall v. Cowlitz Amusements, Inc., 194 Wash. 82, 83, 76 P.2d 1017.
[3] The following is an excerpt from the opinion, 114 Wash. at page 31, 194 P. at page 816 "* * * The cause of complaint is that the appellant, contrary to the right of the respondent and contrary to the positive mandate of the statute, refused the respondent admission to its place of amusement solely for the reason that he belonged to a colored race. This was a tort, and an action founded thereon lies in tort. The wrong would have been the same had the respondent applied to purchase a ticket and had been refused, in other words, the respondent has a cause of action because he was denied a right which the law specially confers upon him, and which the appellant could not deny without the breach of a public duty the law enjoins upon it."
[4] See Goff v. Savage, cited in footnote 2.
[5] Northern Securities Co. v. U. S., 193 U.S. 197, 24 S.Ct. 436, 48 L.Ed. 679; U. S. v. Betteridge, D.C., 43 F.Supp. 53, 56; 16 C.J.S., Construction, page 1514. See also 40 Words and Phrases, Perm.Ed., page 303.
[6] In re Eichler's Estate, 102 Wash. 497, 173 P. 435; Sandahl v. Department of Labor and Industries, 170 Wash. 380, 16 P.2d 623; In re Phillips' Estate, 193 Wash. 194, 74 P.2d 1015.
[7] Crosswaith v. Bergin, 95 Colo. 241, 35 P.2d 848; Baer v. Washington Heights Cafe, Mun.Ct., 168 N.Y.S. 567; Humburd v. Crawford, 128 Iowa 743, 105 N.W. 330; Ferguson v. Gies, 82 Mich. 358, 46 N.W. 718, 9 L.R.A. 589, 21 Am.St.Rep. 576; Puritan Lunch Co. v. Forman, 29 Ohio C.A. 289, Deveaux v. Clemens, 17 Ohio Cir.Ct.R. 33, Horn v. Illinois Cent. R. R., 327 Ill.App. 489, 64 N.E.2d 574. See also Anno. 31 A.L.R. 339.
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160 Ariz. 108 (1989)
770 P.2d 776
STATE of Arizona, Appellee,
v.
Kyle Joseph ZMICH, Appellant.
No. CR-88-0028-AP.
Supreme Court of Arizona, In Banc.
February 9, 1989.
Robert K. Corbin, Atty. Gen. by William J. Schafer III, Chief Counsel, Criminal Div., and Ronald L. Crismon, Asst. Atty. Gen., Phoenix, for appellee.
Dean W. Trebesch, Maricopa County Public Defender by Paul Klapper, Deputy Public Defender, Phoenix, for appellant.
CAMERON, Justice.
I. JURISDICTION
Defendant, Kyle Joseph Zmich, was adjudged guilty of murder in the first degree, A.R.S. §§ 13-1101 and -1105, and aggravated assault, a class 3 felony, A.R.S. §§ 13-1204(A)(1), (B) and -1203(A)(1). Defendant was sentenced to life imprisonment without possibility of parole for twenty-five years on the murder charge and to seven and one-half years imprisonment on the aggravated assault charge. A.R.S. §§ 13-701, -702, -703, -604(G). The sentences were to be served concurrently. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), A.R.S. §§ 13-4031 and -4033.
II. QUESTIONS PRESENTED
Defendant contends generally that the evidence did not support the judgment and specifically that:
*109 (1) the defendant carried his burden by clear and convincing evidence that he was insane at the time of the crime;
(2) the evidence did not support a finding of premeditation.
III. FACTS
Upon review, we must consider the facts in the light most favorable to sustain the judgments and resolve all conflicts of evidence and all reasonable inferences therefrom against the defendant. State v. Girdler, 138 Ariz. 482, 488, 675 P.2d 1301, 1307 (1984); State v. Williams, 132 Ariz. 153, 157, 644 P.2d 889, 893 (1982).
At the time of the events in this matter, the twenty-year-old defendant had been living with his mother, stepfather and six-year-old half brother in a mobile home in Mesa, Arizona for about three weeks. On the evening of 9 March 1987, defendant's mother discussed with him the need to meet with a probation officer who could prepare a presentence report in connection with defendant's appearance in court the next day on a theft charge. She also indicated to him that she wanted him to become involved in a drug rehabilitation program to overcome his alleged drug addiction.
Defendant's stepfather took away the defendant's headphones so that he could not listen to music and told him to go to bed so that he could get up early for his court appearance. Defendant refused to go to bed at that time and stated that he was going to stay up until he finished his coffee.
Defendant waited until his parents went to bed at about 10:30 p.m. He then unlocked the latches on the two sliding glass doors which allowed ingress and egress to the mobile home and removed some dowels from within the door tracks. He then stacked paper towels on a hot plate on the kitchen stove so that the towels would ignite and start a fire. Defendant then obtained a kitchen knife and knocked on the bedroom door. He explained that he had a stomachache. His mother who had just finished a shower said she would come and give him some medicine.
When defendant's mother entered the kitchen, defendant stabbed her in the throat with such force that the knife blade broke near the handle. Defendant then hid behind a chair in the living room adjoining the kitchen. Responding to his wife's screams, defendant's stepfather rushed to her side to assist her, and defendant stabbed his stepfather three times in the back area. Because the knife blade had broken off, the stepfather's injuries were not life-threatening. The stepfather regained his balance and proceeded towards the defendant. Defendant backed away, jumped out one of the sliding glass doors, went next door to a neighbor's house and had them call the police. Defendant's mother died from the stab wound.
When questioned by police officers, defendant explained that his mother and stepfather had been bugging him and that he was upset with them. He said he took a large knife from the kitchen drawer and was going to take it into his parents' bedroom and stab his stepfather. When asked if he knew it was his mother that was coming into the kitchen, he responded, "Yes, I knew it was my mother, and I intended to stab her when I went to get the knife out of the kitchen drawer because she was tripping out and bugging me."
Defendant was charged with first degree murder and aggravated assault. Mental health experts were appointed to examine defendant and the trial court found that the defendant was competent to stand trial. Defendant agreed to waive his jury trial and submit his plea of not guilty by reason of insanity to the trial court based upon the police reports, letters from lay people and records in the file. In return, the county attorney agreed not to ask for the death penalty. It is permissible to submit the question of guilt on a stipulated record as long as the proper procedures are followed. Ariz.R.Crim.P. 18.1(b), 17 A.R.S.; State v. Steelman, 126 Ariz. 19, 24-25, 612 P.2d 475, 480-81, cert. denied, 449 U.S. 913, 101 S.Ct. 287, 66 L.Ed.2d 141 (1980); State v. Avila, 127 Ariz. 21, 24-25, 617 P.2d 1137, 1140-41 (1980). In the instant case, the proper procedures were followed. The trial *110 court found defendant guilty of both counts and after the trial court denied his motions to set aside the judgment and for a new trial, defendant appealed.
IV. WAS DEFENDANT INSANE?
Defendant first contends that the trial judge abused her discretion in finding that the defendant failed to carry his burden of establishing insanity by clear and convincing evidence. Our statute provides that:
A. A person is not responsible for criminal conduct by reason of insanity if at the time of such conduct the person was suffering from such a mental disease or defect as not to know the nature and quality of the act or, if such person did know, that such person did not know that what he was doing was wrong.
B. The defendant shall prove he is not responsible for criminal conduct by reason of insanity by clear and convincing evidence.
A.R.S. § 13-502(A), (B).
Paragraph (A) of this statute adopts what is known as the M'Naghten rule which has historically been followed in this state. Paragraph (B) provides that when the defendant interposes a defense of not guilty by reason of insanity, the defendant must bear the burden of proof to establish by clear and convincing evidence that he is not responsible for the criminal conduct by reason of his insanity. A.R.S. § 13-502(B). Paragraph B is a recent change from the old rule that once defendant's insanity had been put in issue, the state had the burden of proving the defendant sane. State v. Clabourne, 142 Ariz. 335, 345, 690 P.2d 54, 64 (1984).
Three psychiatrists and one psychologist presented reports to the court regarding defendant's mental condition at the time of the crime.
Carl Wellish, M.D., concluded that defendant was "suffering from a delusional (paranoid) disorder # 297.12 DSM III-R and that he was therefore not responsible under [M'Naghten]."
Jack Potts, M.D., found that defendant was "psychotic at the time of the alleged offense and truly not able to distinguish right from wrong or to conform his conduct as required by that of the law."
George A. Peabody, M.D., found that defendant was "not criminally responsible under the [M'Naghten] rule, i.e. because of his mental illness he was grossly psychotic and as a result of which his behavior and judgment were so effected that he was unable to properly distinguish between right and wrong or to appreciate the nature and consequences of his acts."
Richard Lanyon, Ph.D., the only psychologist to conduct an examination of appellant, stated, "It is my opinion that Mr. Zmich was not insane by the Arizona statement of the [M'Naghten] rule, at that time. As indicated in my report, I believe he was suffering from a mental disorder at the time, involving paranoid thought processes. However, I believe that he knew what he was doing (assaulting his mother) and also that it was wrong to do so."
If we consider the reports only, it would appear that the defendant carried his burden by clear and convincing evidence that he was M'Naghten insane at the time of the crime. The trial judge, however, after noting that she had seriously considered the opinions and the discussions raised in the letters, reports and supplements submitted by the doctors, found that at the time of the offenses on 9 March 1987, the defendant was suffering from a recognized mental disorder that was possibly aggravated by voluntary consumption of alcohol and drugs. The trial judge stated:
I am also going to find at this time that the combined facts as presented to me, reviewed in light of all of the medical reports, do not reach the threshold of proving beyond a clear and convincing standard that you were legally insane on that date.
The doctors disagree, they use different facts, different interviews, different processes upon which to determine their medical opinion on the state of your mental health or mental state. Compiling all of their medical opinions, psychiatric and *111 psychological opinions with all of the facts presented to me, reviewing specifically your conduct of the day giving rise to the criminal offenses, giving rise to your deeply held anger for your mother and your stepfather over many years, considering your behavior and immediately before, during, and after these assaults and then the statements that you made thereafter, I do not find that the defense has met its burden that you were [M'Naghten] insane at the time of these two offenses.
The fact that only one expert testified that the defendant was not M'Naghten insane at the time of the crime while three experts claimed he was M'Naghten insane is not dispositive of this issue. The trier of fact may reject one or more of the experts' opinions and give more credence to lay witness testimony and other evidence in determining whether or not a defendant comes within the purview of the statute. State v. Cano, 103 Ariz. 37, 42, 436 P.2d 586, 591 (1968). In a case in which a defendant was attempting to show his mental state at the time of the crime through the testimony of his wife and parents, we stated:
The general rule is that a lay witness, if competent, may testify to relevant evidence. See Rules 402, 601, 602, 701, Ariz.Rules of Evidence, 17A A.R.S. In Arizona lay testimony has long been admissible in criminal trials on the issue of sanity. See State v. Sanchez, 117 Ariz. 369, 373, 573 P.2d 60, 64 (1977); State v. Coey, 82 Ariz. 133, 139, 309 P.2d 260, 264 (1957); M. Udall & J. Livermore, supra § 21 at 26; Wharton's Criminal Evidence § 609 at 175 (13th ed. 1973). Foundationally, a lay witness must have had an opportunity to observe the past conduct and history of a defendant, State v. Coey, 82 Ariz. at 139, 309 P.2d at 264; the fact that he is a lay witness goes not to the admissibility of the testimony but rather to its weight. Id. If lay testimony is admitted, logically, a jury is free to accept it as a basis for its verdict. State v. Overton, 114 Ariz. 553, 562 P.2d 726 (1977). This is so even if there is conflicting medical testimony on the issue. Id.
State v. Bay, 150 Ariz. 112, 116, 722 P.2d 280, 284 (1986). There was also evidence in the instant case of defendant's sanity including the stepfather's testimony that defendant was malingering and that he appeared to be feigning mental illness.
The rule is not what we would do if we were deciding the case, but whether or not we can say that the trial judge abused her discretion in reaching the conclusions she did. State v. Toney, 113 Ariz. 404, 555 P.2d 650 (1976). In the instant case, we do not find an abuse of discretion in the trial court's decision that the defendant had not proved by clear and convincing evidence that he was M'Naghten insane at the time of the crimes.
V. PREMEDITATION
Defendant contends that he was not guilty of premeditation and that therefore the first degree murder conviction must be set aside. Premeditation is an element of first degree murder.
"Premeditation" means that the defendant acts with either the intention or the knowledge that he will kill another human being, when such intention or knowledge precedes the killing by a length of time to permit reflection. An act is not done with premeditation if it is the instant effect of a sudden quarrel or heat of passion.
A.R.S. § 13-1101(1). We have stated that in order to establish premeditation:
In order to show premeditation, the state must prove Neal acted with either the intent or knowledge that he would kill Mary Carter and that such intent or knowledge preceded the killing by a length of time to permit reflection. A.R.S. § 13-1101(1). This length of time could have been as instantaneous as it takes to form successive thoughts in the mind, and premeditation may be proven by circumstantial evidence. State v. Lacquey, 117 Ariz. 231, 234, 571 P.2d 1027, 1030 (1977).
State v. Neal, 143 Ariz. 93, 97, 692 P.2d 272, 276 (1984).
*112 In the instant case, there is ample evidence of premeditation. The placing of papers on the hot plate, the opening of the doors so that defendant could make a ready escape if the house caught fire, the obtaining of the knife and going to the bedroom door seeking to entice the stepfather and/or mother out of the bedroom establish facts that are more than sufficient to support a finding of premeditation. We find no error.
VI. FUNDAMENTAL ERROR
We have reviewed the record for fundamental error as required by A.R.S. § 13-4035, Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). We find no error.
VII. DISPOSITION
The defendant's judgments of guilty and sentences are affirmed.
GORDON, C.J., FELDMAN, V.C.J., and MOELLER, J., concur.
HOLOHAN, J., retired prior to the filing of this opinion.
CORCORAN, J., did not participate in the determination of this matter.
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134 F.3d 374
NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.UNITED STATES of America, Plaintiff-Appellee,v.Anthony R. DOTE, Defendant-Appellant.
No. 96-3518.
United States Court of Appeals, Seventh Circuit.
Argued Dec. 5, 1997.Decided Jan. 13, 1998.
Before POSNER, Chief Judge, BAUER, and FLAUM, Circuit Judges.
ORDER
1
On May 3, 1995, appellant Anthony Dote ("Dote") pleaded guilty to five counts of an indictment against him and several other co-conspirators. In the indictment, Dote was charged with being a member of a racketeering conspiracy, operating an illegal sports bookmaking business, operating an illegal poker game business, and with two counts of tax evasion. These charges stemmed from Dote's participation in a conspiracy headed by Marco Damico ("the Damico Enterprise") which carried out illegal gambling activities, made illegal "juice" loans, and committed extortion.
2
In Count I of the indictment, the count at issue here, Damico, Dote and a third defendant were charged with RICO violations for the operation of the gambling business. In his plea agreement, Dote acknowledged that he had engaged in the following acts in furtherance of the conspiracy: 1) making unlawful extensions of credit to Robert Cooley ("Cooley"); 2) collecting a "street tax" from Richard Lantini ("Lantini"), a bookmaker; and 3) running an illegal gambling business. At the time of sentencing, the district court took this information into account and sentenced Dote to a term of 51 months in prison. In this appeal, Dote alleges that the district court erred at the time of sentencing by failing to group several of the predicate acts under Count I of the indictment.
3
A question of whether the district court has correctly applied the Sentencing Guidelines is a question of law which we review de novo. United States v. Morgano, 39 F.3d 1358, 1378 (7th Cir.1994), cert. denied, 515 U.S. 1133 (1995). This includes a district court's decision to not group counts under U.S.S.G. § 3D1.2. United States v. Wilson, 98 F 3d 281, 282 (7th Cir.1996).
4
Under the Sentencing Guidelines, the base offense level of a RICO count is the greater of 1) 19 or 2) the offense level applicable to the underlying racketeering activity. U.S.S.G. § 2E1.1(a)(1) and (2). Application Note 1 to § 2E1.1 states that where there is more than one underlying offense, each one is to be treated as if it was contained in a separate count of conviction for purposes of determining the base offense level of the underlying racketeering activity pursuant to § 2E1.1 (a)(2). In addition, Application Note 1 directs the sentencing court to apply the adjustments contained in Chapter 3 of the Sentencing Guidelines to determine which offense level (either that calculated under (a)(1) or (a)(2)) is greater. In this case, Dote's RICO count included three underlying activities which need to be examined to determine the appropriate base offense level.
5
The Sentencing Guidelines mandate that when a person has been convicted of more than one count, the sentencing court is to group any closely related counts, determine the offense level applicable to each group, and then determine the combined offense level applicable to all the groups taken together. U.S.S.G. § 3D1.1(a). In this case, Dote is considered "convicted" pursuant to U.S.S.G. § 2E1.1(a)(2) of three separate acts in determining his offense level for Count I: 1) participation in the bookmaking operation; 2) the Cooley extortion; and 3) the Lantini extortion. Dote's complaint in this appeal is that the district court's failure to group these acts pursuant to U.S.S.G. § 3D1.2 was erroneous and resulted in an incorrect offense level being applied to his sentence for Count I. We disagree with Dote's assertion, and affirm his sentence.
6
U.S.S.G. § 3D1.2 provides that "[a]ll counts involving substantially the same harm shall be grouped together into a single Group." For these purposes, counts involve substantially the same harm
7
(a) When counts involve the same victim and the same act or transaction.
8
(b) When counts involve the same victim and two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan.
9
(c) When one of the counts embodies conduct that is treated as a specific offense characteristic in, or other adjustment to, the guideline applicable to another of the counts.
10
(d) When the offense level is determined largely on the basis of the total amount of harm or loss, the quantity of a substance involved, or some other measure of aggregate harm, or if the offense behavior is ongoing or continuous in nature and the offense guideline is written to cover such behavior.
11
U.S.S.G. § 3D1.2. Unfortunately for Dote, however, U.S.S.G. § 3D1.2(d) contains a list of offenses which are not to be grouped under that section. Included in that list are offenses covered by U.S.S.G. §§ 2B3.2 and 2E2.1. The Cooley extortion--extortionate extension of credit--falls under § 2E2.1, and the Lantini extortion--extortion by force or threat of injury--falls under § 2B3.2. By its very terms, § 3D1.2(d) precludes these acts from being grouped with any other offenses. Since two of the three offenses are specifically prohibited from being grouped, the three offenses must be dealt with separately. See Morgano, 39 F.3d at 1380 (predicate act was explicitly excluded from grouping by § 2D1.2(d), and therefore district court's decision not to group that offense with any other was not erroneous). Since no error can possibly result from a district court's applying the Sentencing Guidelines according to their plain language, Dote's argument in this case is without merit.
12
Dote attempts to analogize this case to Morgano, noting our statement therein that "[p]erhaps extortion ... and gambling ... are, under [ § 3D1.2], closely related and otherwise involve substantially the same harm to require grouping." Appellant's Brief at 6. However, in so doing, Dote ignores the fact that this statement was merely hypothetical, since we ultimately found that the extortion offense with which Morgano was charged was covered by U.S.S.G. § 2B3.2, a provision specifically excluded from grouping under § 3D1.2. Rather than helping Dote, this analogy hurts his cause, since he also was charged with the predicate act of extortion falling under § 2B3.2. Therefore, as we found above, the district court was correct in deciding not to group Dote's predicate offenses for sentencing purposes.
13
Dote attempts to avoid this clear result by arguing that the counts must nevertheless be grouped because they involve "the same victim, transaction(s), connected by a common criminal objective, constituting part of a common scheme or plan." Appellant's Brief at 7. It was only because of the fact that he was a member of the Damico Enterprise, Dote says, that he had any contact with Cooley and Lantini, and because of that causal connection the offenses must be grouped. The simple answer to this argument is that § 3D1.2(d) does not contain any exception to its exceptions, and Dote cannot make an end-run around the Sentencing Guidelines by arguing that he would not have engaged in any of the predicate acts but for the fact that he was in the illegal conspiracy. To accept Dote's argument would wipe § 2E1.1 off the books, since all predicate acts, by virtue of being undertaken as part of the conspiracy, would be grouped together, foreclosing the sentencing court from "treat[ing] each underlying offense as if contained in a separate count of conviction...." U.S.S.G. § 2E1.1 Application Note 1. Dote's attempt to avoid the exclusions of § 3D1.2(d) is thus unavailing.
14
Dote also attempts to persuade us that the counts must be grouped pursuant to United States v. Damico, 99 F.3d 1431 (7th Cir.1996), cert. denied, 519 U.S. 1151, 117 S.Ct. 1086 (1997). In his brief, Dotes suggests that Damico somehow stands for the proposition that all adjustments pursuant to Chapter 3 of the Sentencing Guidelines must be treated alike. Therefore, Dote argues, just as the district court looked to his overall place in the conspiracy to determine whether he should receive an enhancement for having played an aggravating role in the offense (pursuant to U.S.S.G. § 3B1.1), it should also have looked at his overall place in the conspiracy to determine whether the underlying offenses should be grouped. Appellant's Brief at 10-12. Just as we rejected this argument above, we reject it in this context as well. Furthermore, the holding in Damico ("the predicate-by-predicate approach of Application Note 1 [to § 2E1.1] applies, as the note states, only for the purpose of establishing a RICO defendant's base offense level, and not for the purpose of applying the Chapter Three adjustments") applied to a role in the offense adjustment, not to a grouping adjustment. The holding in no way affected the grouping provisions of § 3D1.2, and Dote's attempts to so bootstrap it must fail. Finally, Dote argues that his offenses should have been grouped because the ultimate victim in all of them was the same--namely, society. This argument is without merit, and we find no error in the district court's ruling.1
15
Because we find that the district court correctly applied the Sentencing Guidelines in this case, we AFFIRM Dote's sentence.
1
In its brief, the United States argued that Dote waived his objections to the district court's refusal to group his counts for sentencing purposes. Because Dote's objections fail on their merits, we need not address this argument
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727 F.2d 1113
McMahon (Brian J.)v.Bartus (Sam)
NOS. 82-2632, 83-1283
United States Court of Appeals,Seventh Circuit.
JAN 19, 1984
1
Appeal From: W.D.Wis.
2
AFFIRMED.
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202 Ga. App. 770 (1992)
415 S.E.2d 510
HARTLEY
v.
GAGO et al.
A91A1635.
Court of Appeals of Georgia.
Decided February 11, 1992.
McNeese & Associates, Lynn S. McNeese, for appellant.
Dailey & Groover, Lewis M. Groover, Jr., Bruce S. Harvey, for appellees.
Robert E. Carroll, pro se.
Marjori E. Carroll, pro se.
SOGNIER, Chief Judge.
Dr. Selwyn Hartley brought suit against a stockbroker, Lucian Gago; a brokerage firm, Hereth, Orr & Jones (HOJ); Energy Development Corporation (EDC); Bill Taylor, an EDC employee, and two other EDC employees or principals, alleging fraud and deceit and a conspiracy to defraud in connection with an investment Hartley made in EDC that was recommended to him by Gago while Gago was employed by HOJ. Appellant sought the return of his investment. At trial, at the close of Hartley's evidence Gago and Taylor moved for a directed verdict and the trial court took the motion under advisement. After a jury rendered a verdict in favor of Hartley against all defendants in varying amounts, Gago and Taylor moved for judgment n.o.v. The trial court subsequently granted Gago and Taylor's motions for directed verdict and j.n.o.v. and judgment was entered against the other defendants. Hartley appeals.
The evidence adduced at trial showed that appellant, an experienced investor, had been investing for approximately ten years when he became acquainted with Gago, who was an HOJ broker at the time, and in fall 1982, appellant asked Gago to research investments with greater potential tax writeoffs. Gago informed appellant of an investment that involved purchasing from EDC energy saving equipment qualifying for tax benefits and placing it in various locations, such as motels, under lease agreements. Appellant decided to invest after discussing the proposal in more detail with his attorney, Gago, and Taylor, who was an authorized representative of EDC, and in late December 1982 tendered his check.
Appellant testified that although he made no inquiries regarding whether the equipment had been purchased or installed, in early 1983 he became concerned because he had received no bill of sale or insurance certificate, and he contacted Gago to see whether the equipment had actually been installed. Appellant further testified that over the next five months Gago, although he was no longer employed by HOJ, *771 continued to act as an intermediary between appellant and EDC regarding the investment, making inquiries and passing on information. Appellant testified that he had suspicions in 1983 about the investment and became convinced in 1984 that it was fraudulent. Nevertheless, he filed tax returns seeking the full tax benefit over the life of the investment, and these benefits were allowed by the Internal Revenue Service after audit.
1. In two enumerations, appellant contends the trial court erred by granting appellees' motion for a directed verdict and j.n.o.v. Although the trial court granted appellees' motions on three grounds we need address only the first, that appellant's claim was barred by the statute of limitation, as it is dispositive.
OCGA § 9-3-31 provides that actions for injuries to personalty must be brought within four years after the right of action accrues. This statute applies to actions based on fraud. Shapiro v. Southern Can Co., 185 Ga. App. 677-678 (365 SE2d 518) (1988). The issue in the case sub judice, however, is when the statute of limitation began running.
Where actual fraud is the gravamen of an action, "the statute of limitations is tolled until the fraud is discovered or by reasonable diligence should have been discovered." Shipman v. Horizon Corp., 245 Ga. 808 (267 SE2d 244) (1980). Although appellant, citing Brown v. Brown, 209 Ga. 620 (75 SE2d 13) (1953), maintains that because there are fact questions regarding fraud and the excuses for delay in discovering it, the question was properly for the jury, we note that in cases involving undisputed facts, this question becomes one of law to be decided by the court. Curlee v. Mock Enterprises, 173 Ga. App. 594, 596 (2) (327 SE2d 736) (1985).
It is uncontroverted that this action, begun in August 1987, was filed more than four years after appellant made the investment. Appellant admitted that he began to suspect fraud in January or February of 1983 when he did not receive bills of sale for the equipment, and further acknowledged that he made no inquiries of EDC or the motels proposed as installation sites but communicated only with Gago despite the fact that he had contracted with EDC. Our review of the evidence in this case reveals that appellant and appellees agree as to the sequence of events regarding the transaction, and we conclude that the facts were not in dispute.[1]
Since we agree with the trial court's finding that the facts necessary to determine when the statute of limitation began running were *772 not in dispute, it follows that only the legal conclusions to be drawn from those facts remained. Such determinations are properly for the court and not the jury. Curlee, supra. "`[I]n the absence of special circumstances one must exercise ordinary diligence in making an independent verification of contractual terms and representations, failure to do which will bar an action based on fraud. [Cits.]' [Cit.] There was no confidential relationship between [appellant] and [appellees] which would preclude the exercise of ordinary diligence on the part of [appellant]." United Fed. Savings &c. Assn. v. Eubank, 180 Ga. App. 402, 403 (349 SE2d 268) (1986). We find that the undisputed evidence supports the trial court's determination that appellant either knew or with the exercise of ordinary diligence should have known of any fraud in early 1983.
"If there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed." OCGA § 9-11-50 (a). Based on the undisputed facts and the reasonable inferences therefrom, the trial court concluded that more than four years elapsed between the time appellant discovered or should have discovered the fraud and the time appellant filed this action. As appellant's action was barred by the statute of limitation, the trial court correctly directed a verdict in favor of appellees. See generally Henderson v. Martin Burks Chevrolet, 183 Ga. App. 868, 870 (2) (360 SE2d 430) (1987).
2. The remaining bases for the trial court's ruling granting j.n.o.v. as well as appellant's remaining enumeration of error are rendered moot by our holding in Division 1.
Judgment affirmed. McMurray, P. J., and Andrews, J., concur.
NOTES
[1] Although at trial Taylor denied signing a letter to appellant dated March 1983 stating that the equipment had been installed by the end of December 1982 and appellant's return on the investment would be forthcoming, the March letter is not material given appellant's suspicion of fraud in January.
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Case: 18-13921 Date Filed: 01/28/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-13921
Non-Argument Calendar
________________________
D.C. Docket No. 1:16-cv-20963-DPG
M.D. ROBERT JOSEPH SARHAN,
Plaintiff-Appellant,
versus
MIAMI DADE COLLEGE,
THE BOARD OF TRUSTEES MIAMI DADE COLLEGE,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 28, 2020)
Before WILSON, ANDERSON, and HULL, Circuit Judges.
PER CURIAM:
Case: 18-13921 Date Filed: 01/28/2020 Page: 2 of 7
Robert Sarhan, an adjunct professor at Miami-Dade College, filed several
complaints in the underlying case against the College’s Board of Trustees, alleging
violations of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.
§ 2000e-2(a). Each of Sarhan’s complaints was dismissed by the district court as a
shotgun pleading. Now, proceeding pro se, he ostensibly appeals the district
court’s order dismissing his fourth amended complaint with prejudice as a shotgun
pleading and makes a series of unrelated arguments regarding the discovery that
was permitted in this case. We affirm. Sarhan’s arguments concerning discovery
lack merit and he has abandoned the shotgun-pleading issue—but even if we
proceeded to consider this argument on the merits, we conclude that the district
court did not abuse its discretion in dismissing his complaint as a shotgun pleading.
On March 16, 2016, Sarhan filed a complaint against Miami-Dade College,
his employer, alleging that the College had engaged in racially discriminatory
hiring practices by preferentially hiring Hispanic applicants for its physician-
assistant program. The College moved to dismiss the complaint for failure to state
a claim. Sarhan filed an amended complaint, which ostensibly contained four
counts—each of which mechanically incorporated and re-alleged the allegations of
all previous counts. The College again moved to dismiss Sarhan’s complaint for
failure to state a claim. The district court granted the College’s motion without
2
Case: 18-13921 Date Filed: 01/28/2020 Page: 3 of 7
prejudice, informing Sarhan that he had filed a shotgun pleading, explaining what a
shotgun pleading was, and ordering him to file a second amended complaint.
Sarhan’s second amended complaint proved no better—again, each of his
counts incorporated and realleged the allegations of previous complaints. The
College again moved to dismiss his complaint, and he filed a third amended
complaint, which was no different. The College again moved to dismiss Sarhan’s
complaint. In opposition to the College’s motion, he did not rebut the argument
that his complaint was a shotgun pleading, instead arguing that his pro se
complaint should be liberally construed and that Rule 8 of the Federal Rules of
Civil Procedure only required a “short and plain statement of the claim.” The
district court granted the College’s motion to dismiss, but without prejudice. It
again advised Sarhan of his complaint’s infirmities and informed him that failure to
comply with the Federal Rules of Civil Procedure or the court’s orders would result
in dismissal without prejudice.
Accordingly, Sarhan filed a fourth amended complaint. Once again, it
contained counts that incorporated and re-alleged the counts that came before
them. The College moved to dismiss the complaint. Sarhan argued that the
College’s response to his discovery requests had been insufficient, and that without
adequate responses, he could not file a complaint that complied with the court’s
requirements. The district court granted the motion with prejudice. It explained
3
Case: 18-13921 Date Filed: 01/28/2020 Page: 4 of 7
that it had twice explained to Sarhan the issue with his complaints and warned him
that his noncompliance would result in dismissal. The court concluded that
Sarhan’s fourth amended complaint was also a shotgun pleading—though he had
potentially stated a prima facie claim, the shotgun nature of his complaint had
failed to give adequate notice of the claims and the grounds on which they rested.
Sarhan timely appealed to us.
We review the dismissal of a complaint as a shotgun pleading for abuse of
discretion. Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291, 1294 (11th Cir. 2018).
We also review the district court’s dismissal of a complaint for failure to comply
with the rules of the court for abuse of discretion. Betty K Agencies, Ltd. v. M/V
MONADA, 432 F.3d 1333, 1337 (11th Cir. 2005). Though we liberally construe
pleadings from pro se litigants, that a litigant opts to represent themselves pro se
does not excuse their noncompliance with procedural rules. Albra v. Advan, Inc.,
490 F.3d 826, 829 (11th Cir. 2007). As is the case for represented parties, if a pro
se party fails to brief an issue on appeal, it is deemed abandoned. Timson v.
Sampson, 518 F.3d 870, 874 (11th Cir. 2009). To avoid abandonment, parties must
plainly and prominently identify the issues or claims that they seek to raise on
appeal. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014).
Shotgun pleadings violate Fed. R. Civ. P. 8’s requirement that a complaint
contain a short and plain statement of the claim, and courts in this Circuit “have
4
Case: 18-13921 Date Filed: 01/28/2020 Page: 5 of 7
little tolerance for shotgun pleadings.” Vibe Micro, 878 F.3d at 1294–95. Shotgun
pleadings include complaints that: (1) “contain multiple counts where each count
adopts the allegations of all preceding counts”; (2) do not re-allege all the
proceeding counts but are “replete with conclusory, vague, and immaterial facts not
obviously connected to any particular cause of action”; (3) do not separate each
cause of action or claim for relief into separate counts; or (4) in a multi-defendant
action, contain counts that present a claim for relief without specifying which
defendants the claim is brought against. Weiland v. Palm Beach Cty. Sheriff’s
Office, 792 F.3d 1313, 1321–23 (11th Cir. 2015).
District courts have the inherent authority to dismiss a complaint on
shotgun-pleading grounds. Vibe Micro, 878 F.3d at 1295. However, district courts
must first sua sponte allow litigants one chance to remedy those deficiencies. Id.
If “the plaintiff fails to comply with the court’s order—by filing a repleader with
the same deficiency—the court should strike his pleading or, depending on the
circumstances, dismiss his case and consider the imposition of monetary
sanctions.” Id. (quotation omitted).
“[D]ismissal upon disregard of an order, especially where the litigant has
been forewarned, generally is not an abuse of discretion.” Moon v. Newsome, 863
F.2d 835, 837 (11th Cir. 1989) (addressing a dismissal for failure to comply with a
discovery order). Dismissal with prejudice may be imposed where “(1) a party
5
Case: 18-13921 Date Filed: 01/28/2020 Page: 6 of 7
engages in a clear pattern of delay or willful contempt (contumacious conduct);
and (2) the district court specifically finds that lesser sanctions would not suffice.”
Betty K Agencies, 432 F.3d at 1338 (quotation marks omitted). A finding that
lesser sanctions would not suffice may be implicit in the court’s order. See Goforth
v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985).
In this case, we conclude that Sarhan has abandoned the main issue of this
appeal—that is, whether his fourth amended complaint was a shotgun pleading.
Though he ostensibly appealed from the district court’s dismissal of his complaint
as a shotgun pleading, his arguments on appeal focus on a series of claims
regarding the discovery that took place in this case. 1 As we understand Sarhan’s
argument, it is essentially the argument he made in opposition to the College’s
motion to dismiss his fourth amended complaint—that the College had not
complied with his discovery requests and that he was unable to draft a complaint
that complied with the district court’s orders because of these discovery violations.
We note that, even if we agreed with Sarhan that the College committed discovery
failures, such failures do not otherwise cure or excuse a shotgun pleading.2
1
To that effect, he moves us to strike the College’s response brief for its alleged failure to
comply with his discovery requests. We DENY Sarhan’s motion.
2
Rather than file deficient complaints, if Sarhan was concerned about the College’s
responses to his discovery requests, the appropriate course of action would have been to seek an
order from the district court to compel discovery from the College. Fed. R. Civ. P. 37(a).
6
Case: 18-13921 Date Filed: 01/28/2020 Page: 7 of 7
Moreover, the problem with his complaint was that he structured it as a shotgun
pleading—not that his allegations were insufficient—so it is unlikely that
discovery would have helped him. In any event, motions to dismiss based on
challenges to the face of the complaint are resolved before discovery. Chudasama
v. Mazda Motor Corp., 123 F.3d 1353, 1367 (11th Cir. 1997).
Even if Sarhan had not abandoned the issue on appeal, however, we
conclude that the district court did not abuse its discretion in dismissing his
complaint as a shotgun pleading. It is clear from the record that Sarhan’s fourth
amended complaint was a shotgun pleading3 and that he proved obstinate to
reforming it, or any of his other amended complaints, in a manner that complied
with both the Rules of Civil Procedure and the district court’s orders. The district
court provided him with ample warning of his complaints’ deficiencies and
repeatedly gave him the opportunity to address the deficiencies. He chose not to
do so. Accordingly, the district court did not abuse its discretion in dismissing the
fourth amended complaint with prejudice.
AFFIRMED.
3
The counts in Sarhan’s fourth amended complaint incorporated and realleged all of the
preceding paragraphs, including the ones that were part of preceding counts. This is the very
definition of a shotgun pleading.
7
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782 F.2d 279
251 U.S.App.D.C. 197
Vaughnv.D.C. Dept. of Corrections/Medical Staff
85-5260
United States Court of Appeals,District of Columbia Circuit.
12/17/85
1
D.C.D.C.
2
VACATED AND REMANDED *
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Davis v. Greenlaw, No. 154-4-14 Bncv (Wesley, J., July 17, 2014).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]
STATE OF VERMONT
SUPERIOR COURT CIVIL DIVISION
Bennington Unit Docket No. 154-4-14 Bncv
Davis et al vs. Greenlaw et al
ENTRY REGARDING MOTION
Count 1, Eviction (154-4-14 Bncv)
Count 2, Eviction (154-4-14 Bncv)
Title: Motion for Payment of Rent Into Court (Motion 1)
Filer: George Davis
Attorney: K. James Malady
Filed Date: April 25, 2014
Supplemental memoranda filed by each party
The motion is DENIED.
Decision Denying Plaintiffs’ Motion for Payment of Rent into Court
Background
Plaintiffs have brought this ejectment complaint for recovery of possession of
residential property and back rent. Defendants counterclaim for breach of contract, breach of
the covenant of good faith, fraudulent concealment, breach of the warranty of habitability, and
unjust enrichment.
The parties came to a written agreement, which they labeled a “home sale contract.”
The agreement was signed and dated on February 14, 2013. Plaintiffs agreed to sell and
Defendants agreed to buy property at 249 Old Harbour Road for $150,000. Defendants would
live in the property and pay Plaintiffs “$800 monthly, to be subtracted from the principal.”
Defendants also agreed to seek financing and attempt to sell property Defendants owned in
Florida and then apply the proceeds to the loan. Plaintiffs agreed to “pay for any preexisting
mortgage, back payments, leans [sic], or previous loans on the property.”
The dispute arose when Defendants realized the property was in foreclosure. At the
time of the “home sale contract” agreement, Plaintiffs were in default on a loan on the
property made by People’s United Bank. Subsequently, People’s United Bank initiated a
foreclosure proceeding. When Defendants realized the property was in foreclosure, they
stopped paying Plaintiffs the $800 per month. Defendants also claimed the house on the
property has habitability issues related to mold and contaminated water.
On April 25, 2014, Plaintiffs filed a motion for payment of rent into Court. On June 23,
2014, the Court held a hearing on the motion. Attorney James Malady represented Plaintiffs.
Attorney Brain Marthage represented Defendants. After reviewing the file, and considering the
presentations by counsel, the Court suggested the agreement between the parties might have
created something other than a landlord-tenant relationship. The Court cited counsel to Kellogg
v. Shushereba and directed the parties to brief whether the claims here had a sufficient basis in
any landlord-tenant agreement so as to support a rent escrow order. See 2013 VT 76.
Both parties submitted supplemental memoranda. Defendants argue under Kellogg, the
agreement was a contract for deed and therefore landlord-tenant remedies are not available to
Plaintiffs. Plaintiffs conceded the agreement was likely a contract for deed, but still claimed a
sufficient basis in the facts and law to go forward with an ejectment action.
Discussion
The Court must determine whether the agreement is a contract for sale, or a lease
option agreement enforceable through the ejectment proceedings under the Residential Rental
Agreements Act, 9 V.S.A. § 4451 et seq. Defendants have not yet moved to dismiss the
complaint as failing to state a claim, and raise breach of warranty of habitability as an
affirmative defense and counterclaim, see 9 V.S.A. § 4457. Defendants, however, also argue
Plaintiffs are not entitled to a pay rent order because Plaintiffs are not landlords. Two cases
define the difference between a contract for deed and lease option agreement. See Kellogg,
2013 VT 76, ¶ 15; Prue v. Royer, 2013 VT 12, ¶¶ 21–24, 193 Vt. 267.
Prue involved a written contract for deed for the purchase and sale of a bar. 2013 VT 12,
¶¶ 1–2. The parties initially agreed the buyer would pay $1,400 per month for five years and
then pay the principal plus interest. Id. ¶ 6. Four years later, the parties agreed to change the
agreement to a twenty-five year amortization payment schedule. Id. ¶ 8. Eventually, the bar
failed and the buyers left the property. See id. ¶ 12. The buyers later sued the sellers for
equitable title and money damages. Id. ¶ 14. Sellers counterclaimed for missing equipment and
back rent. Id.
The Vermont Supreme Court determined the parties’ agreement was a contract for
deed rather than a lease option agreement. Id. ¶ 29. There are two important characteristics of
contract for deed. See id. ¶¶ 21–22. First, a contract for deed is a bilateral agreement that
creates future obligations on both parties. Id. ¶ 21. Second, payments made while the buyer
uses the property are applied to the principal of loan. Id. ¶ 22. In contrast, a lease option
agreement creates a duty on the part of the seller to sell if the buyer exercises the option and
the payments are not applied to the principal. Id. ¶¶ 23–24. The Vermont Supreme Court
determined the agreement was a contract for deed because the agreement was mutual and the
seller reduced the outstanding principal when they came to the second agreement. Id . ¶¶ 27–
28.
Kellogg concerned an oral contract for deed. See 2013 VT 76, ¶¶ 2–4. The relationship
between the parties, which included intimate relationships, changed over the course of the
agreement. See id. ¶¶ 2–9. Of note, the defendant liquated her life savings to make a down
payment on a property owned by the plaintiff. Id. ¶ 4. The defendant’s predecessor made
regular payments but the defendant only made a few payments. See id. ¶¶ 5–6. The plaintiff
filed suit for eviction and back rent and the defendant counter-claimed for unjust enrichment.
Id. ¶¶ 9–10.
The Vermont Supreme Court applied the factors described in Prue and determined the
agreement was a contract for deed. Id. ¶ 15. Because the agreement was a contract for deed,
the relationship between the parties was not that of a landlord and tenant. Id. ¶ 17. Instead,
the Supreme Court held that the buyer had an equitable mortgage in the property. Id. ¶ 16.
In this case, the parties also created a contract for deed. See id. ¶¶ 15–17; Prue, 2013 VT
12, ¶¶ 21–24. The agreement is bilateral because it obligates both of the parties. Prue, 2013 VT
12, ¶¶ 21–24. Defendants must make payments on the property until the principal is repaid
and then Plaintiffs must turn over legal title. Additionally, the Plaintiffs agreed to pay the
preexisting mortgage and any other liens and Defendants agreed to seek financing and to sell
their property in Florida. The agreement also indicates the payments reduce the principal. See
id. Thus, the agreement is a contract for deed.
A contract for deed does not create a landlord-tenant relationship and therefore
Plaintiffs cannot use the remedies available to landlords. See Kellogg, 2013 VT 76, ¶ 17. While
Section 4853a(a) allows landlords to seek an order of payment of rent into court, Plaintiffs are
not landlords and cannot use 12 V.S.A. § 4853a(a) against Defendants. Furthermore, in cases
involving residential leases governed by the Residential Rental Agreements Act, the ejectment
procedures in Title 12, including the rent escrow proceedings, are made applicable by 9 V.S.A. §
4468. However, 9 V.S.A. § 4452(2) specifically excludes from application of the Residential
Rental Agreements Act “occupancy under a contract of sale of a dwelling unit…if the occupant
is the purchaser…”. The Court must therefore deny Plaintiff’s motion for payment of rent into
Court.
WHEREFORE it is hereby ORDERED: The Court DENIES Plaintiff’s Motion for Payment of
Rent into Court .
Electronically signed on July 17, 2014 at 04:45 PM pursuant to V.R.E.F. 7(d).
______________________________________
John P. Wesley
Superior Court Judge
Notifications:
K. James Malady (ERN 4300), Attorney for Plaintiff George Davis
K. James Malady (ERN 4300), Attorney for Plaintiff Diana P. Davis
Brian K. Marthage (ERN 1182), Attorney for Defendant James R. Greenlaw
Brian K. Marthage (ERN 1182), Attorney for Defendant Demetra Greenlaw
wesley
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234 P.3d 210 (2010)
STATE of Washington, Respondent,
v.
Jason Allen GRAHAM, Petitioner.
No. 80088-0.
Supreme Court of Washington.
July 7, 2010.
ORDER
¶ 1 Department II of the Court, composed of Chief Justice Madsen and Justices Alexander, Chambers, Fairhurst and Stephens, considered at its July 6, 2010, Motion Calendar, whether review should be granted pursuant to RAP 13.4(b), and unanimously agreed that the following order be entered.
¶ 2 IT IS ORDERED:
¶ 3 That the Petition for Review is granted only on the firearm enhancement issue and the matter is remanded to the Court of Appeals Division Three for reconsideration in light of State of Washington v. Williams-Walker, *211 167 Wash.2d 889, 225 P.3d 913 (2010).
For the Court
/s/ Madsen, C.J.
CHIEF JUSTICE
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293 F.Supp. 541 (1968)
BOARD OF EDUCATION OF the BOROUGH OF CHATHAM, Plaintiff,
v.
LUMBERMENS MUTUAL CASUALTY COMPANY, Defendant.
Civ. A. No. 1183-65.
United States District Court D. New Jersey.
November 20, 1968.
*542 Pettit, Carlton & Higgins, by H. Frank Pettit, Westfield, N. J., for plaintiff.
Lamb, Blake, Hutchinson & Dunne, by Arthur J. Blake, Jersey City, N. J., for defendant.
OPINION
WORTENDYKE, District Judge:
By reason of the conceded diversity of citizenship between the parties this cause was removed to this Court from the Superior Court of New Jersey in which it was originally instituted. A motion to remand to the State Court was denied by this Court's Order of December 1, 1965. The involvement of the jurisdictional minimum is uncontradicted. The case was tried in this Court without a jury, demand for which was waived after trial commenced. This Opinion is being filed in lieu of findings of fact and conclusions of law required by F.R.Civ.P. 52. Plaintiff is a municipal corporate body organized under Chapter 7 of Title 18 of the Revised Statutes of the State of New Jersey, and defendant is a casualty insurance corporation of the State of Illinois, duly authorized to transact business in the State of New Jersey.
On or about July 1, 1961 defendant, hereinafter Lumbermens, issued to plaintiff, Board, a policy of liability insurance by the terms of which Lumbermens agreed to pay in behalf of the Board all sums of money, not exceeding $200,000, which the Board might become legally obligated to pay as damages because of bodily injuries sustained accidentally during the period prescribed in the policy by any persons, and to defend any suit against the Board alleging such injuries and seeking damages therefor. By the terms of the policy Lumbermens reserved the right to make such investigation, conduct such negotiations and conclude such settlement of any claim or law suit against the Board as it deemed expedient. On January 15, 1962, while the policy was in full force and effect, Stanley Miller, a 9th grade student at Chatham Borough Junior High School operated by the Board, sustained bodily injuries resulting from an accident of the character contemplated by the terms of the policy. Thereafter Stanley and his parents made claim against the Board for damages on account of said injuries and their consequences, and instituted an action against the Board for the recovery thereof. Pursuant to the terms of the policy Lumbermens undertook an investigation of the claims alleged in the action against the Board and, through attorneys selected by Lumbermens, it conducted a defense of the *543 action for the enforcement of the claims. Upon the trial of the action a jury awarded damages to Stanley Miller and his parents in the aggregate sum of $1,215,140, of which $1,180,000 was awarded to Stanley and $35,140 to his parents. After the return of the verdicts the award to the infant plaintiff was reduced by the Trial Court to the sum of $300,000, but the verdict for his parents remained unmodified. The Board has paid to the plaintiffs Miller the sum of $135,140.
In its complaint in the present action the Board alleges that it was compelled to pay to and for the account of the plaintiffs Miller, in the State Court action against the Board, the sum of $135,140 by reason of Lumbermens' negligent conduct of the Miller case and its bad faith in refusing to settle the Miller claims when it had the opportunity to do so within the policy limits. Accordingly, the Board seeks to recover from Lumbermens in this action the foregoing amount of $135,140 together with interest thereon, costs of suit, counsel fees and expenses necessarily incurred in the instant litigation.
In its answer Lumbermens denies that it was guilty of any negligence or bad faith in the investigation, defense and settlement negotiations involving the Miller claims against the Board and affirmatively charges the Board with contributory negligence.
The evidence in this case fails to support a reasonable inference that the payment of which the Board complains was caused or induced by any negligence chargeable to Lumbermens. Thus the sole issue with which this Court is confronted is whether Lumbermens' failure to settle the Miller claims before verdict resulted from the insurer's lack of good faith in reaching its determination not to settle.
Since jurisdiction in this case arises by reason of the diversity of citizenship of the parties, this Court sits as if it were a Court of the State of New Jersey and must therefore apply the law in the light of its interpretation of the policy of that State. A brief review of the decisions of the New Jersey Courts, as well as those of this Court, discloses recognition of the rule that an insurer which has reserved control over settlement of claims against its insured must act in good faith when refusing to settle and its decision not to settle must be thoroughly honest, intelligent, objective and realistic when tested by the necessarily assumed expertise of the insurer. The insurer's decision not to settle must result from weighing in a fair manner the probabilities of a favorable or unfavorable verdict against the insured. Accordingly, an insurer will not be allowed to frustrate the purpose of protecting the insured by making a selfish settlement decision which exposes the insured to and results in a judgment against the insured beyond the limits of the policy. Where the insurer recognizes the probability that an adverse verdict against the insured at trial will exceed the limits of the policy, the boundaries of good faith in refusing to settle become more compressed in favor of the insured than would otherwise be the case. Where, as in the case at bar, Lumbermens reserved control over the settlement of claims against the Board and had received an offer to settle within the policy limits in the face of the probability of an adverse verdict in excess of those limits, the insurer's refusal to settle can be found to have been determined upon in good faith only by treating the settlement demand as if the Board had full coverage for whatever verdict might be recovered against it regardless of the policy limits. Bowers v. Camden Fire Insurance Ass'n, 51 N.J. 62, 237 A.2d 857 (1968). The purpose of liability insurance is to protect the insured from liability within the limits of the policy coverage. The insurer will not be permitted to frustrate that purpose by a selfish decision not to settle a claim against the insured where the insured is exposed to and suffers a judgment beyond the specific monetary protection which his premium has purchased. "The obligation assumed by the insurer with respect to *544 settlement is to exercise good faith in dealing with offers of compromise, having both its own and the insured's interests in mind. [A] reasonably diligent effort must be made to ascertain the facts upon which a good faith judgment as to settlement can be formulated." Radio Taxi Service, Inc. v. Lincoln Mutual Insurance Co., 31 N.J. 299, 304, 157 A.2d 319, 322 (1960); citing Southern Fire & Casualty Co. v. Norris, 35 Tenn. App. 657, 250 S.W.2d 785; 40 A.L.R.2d 208.
While a liability insurer may, in determining whether to accept or reject an offer of compromise of a claim against its insured properly give consideration to its own interest, it must give in good faith at least equal consideration to the interest of its insured. An insurer who assumes control over an action against its insured is bound to exercise diligence, intelligence, good faith, and honest and conscientious fidelity to the common interest of itself and its insured. When a conflict of interest arises between the insurer as agent and its insured as principal, the insurer's conduct will be subject to closer scrutiny than that of the ordinary agent because of its adverse interest. "`The insurer must act honestly to effectively indemnify and save the insured harmless as it has contracted to doto the extent, if necessary, that it must make whatever payment and settlement as honest judgment and discretion dictate, within the limits of the policy, * * *.'" Tennessee Farmers Mutual Insurance Co. v. Wood, 277 F.2d 21 (6 Cir. 1960); quoting from Traders & General Ins. Co. v. Rudco Oil & Gas Co., 129 F.2d 621, 627, 142 A.L.R. 799 (10 Cir. 1942). In implementing the good faith settlement standard the interests of the insured must be given at least equal consideration with those of the insurer in evaluating a settlement. In approaching its decision whether to settle or try a case against its insured, the insurer must in good faith view the situation confronting both of them as the insurer would view it if there were no policy limits applicable to the claim against the insured. Therefore the fairest method of balancing the respective interests of insurer and insured is for the insurer to treat the claim as if it alone were liable for the entire amount. Brown v. United States Fidelity and Guaranty Company, 314 F.2d 675 (2 Cir. 1963) citing Bell v. Commercial Insurance Co. of Newark, N.J., 280 F.2d 514 (3 Cir. 1960).
Bad faith in refusing to settle is provable by circumstantial evidence. Brown v. United States Fidelity & Guaranty Company, supra; Tennessee Farmers Mutual Insurance Company v. Wood, supra. Bad faith in that regard "is most readily inferrable when the severity of the injuries [for which damages are claimed from the insured] is such that any verdict against the insured is likely to be greatly in excess of the policy limits and further when the facts in the case indicate that a [verdict for the defendant] on the issue of liability is doubtful. * * * When these two factors coincide, and the [insurer's] company still refuses to settle, the inference of bad faith is strong." Brown v. United States Fidelity & Guaranty Company, supra, 314 F.2d at page 679. In Bell, supra, the Third Circuit Court of Appeals, applying the law of Pennsylvania, held, at page 515 of 280 F.2d that:
"* * * the insurer must accord the interest of its insured the same faithful consideration it gives its own interest: since the interest of one or the other may be imperiled at the instant of decision, the fairest method of balancing the interests is for the insurer to treat the claim as if it were alone liable for the entire amount. The insurer is not bound to submerge its own interest, but the decision to expose the insured to personal pecuniary loss must be based upon a bona fide belief by the insurer, predicated upon all of the circumstances of the case, that it has a good possibility of winning the lawsuit. The insurer does not have an absolute right to risk the insured's financial well-being; the insurer's obligation of good faith requires *545 that the chance of finding non-liability be real and substantial and that the decision to litigate be honestly made."
At page 516, the Court further stated:
`"And, where there is little or * * no likelihood of a verdict or even a settlement within the limits of the policy's coverage, the separate interest of the parties are in effect substantially hostile. In such circumstances, it becomes all the more apparent that the insurer must act with the utmost good faith toward the insured in disposing of claims against the latter."' Cowden v. Aetna Casualty and Surety Co., 389 Pa. 459, 470, 134 A.2d 223 (1957).
A recent decision of Judge Coolahan of this Court in Kaudern v. Allstate Insurance Company, 277 F.Supp. 83, sheds further illumination upon the settlement obligation of a liability insurer with respect to a claim against its insured. In that case the Court, citing Brown v. Guarantee Ins. Co., 155 Cal.App.2d 679, 319 P.2d 69, 66 A.L.R.2d 1202 (1957) enumerated the following factors as relevant to the question whether an insurer had exercised the requisite degree of good faith in its negotiations for settlement of a claim against its insured. These factors are stated as follows:
1. The strength of the injured claimant's case on the issues of liability and damages;
2. Attempts by the insurer to induce the insured to contribute to the settlement;
3. Failure of the insurer to properly investigate the circumstances involved in the accident, which would result in its inability to effectively weigh the evidence against the insured;
4. The insurer's rejection of advice of its own attorney or agent;
5. Failure of the insurer to inform the insured of the compromise offer;
6. The amount of financial risk to which each party is exposed in the event of a refusal to settle; and
7. The fault of the insured in inducing the insurer's rejection of the compromise offer by misleading it as to the facts.
In Radio Taxi Service, supra, 31 N.J. at page 312, 157 A.2d at page 326, Mr. Justice Francis, writing for the majority of the Court, stated:
"The ultimate question is not whether a verdict in excess of the policy limits should have been anticipated but whether the insurer lacked good faith in deciding not to meet the settlement demand. Mere failure to settle within the policy limit when there was an opportunity to do so before or during trial is not evidence of bad faith. * * * The fact that the policy limit was exceeded by the verdict, in the light of hindsight may indicate a mistake of judgment. But such a mistake when resulting from a decision made with good faith regard for its own and the insured's interests does not confer a cause of action on the insured for the excess."
Against the background of case law to be found in the foregoing cited cases we proceed to review the evidence in the case at bar.
In January 1962 when Lumbermens received the report of the accident sustained by Stanley Miller, the insurer assigned its staff investigator, Edward T. Ponek, to investigate the Miller claim. He thereupon interviewed Mr. Cloidt, the physical education instructor at the Chatham School. In order to secure authorization to examine the hospital records and doctors' reports relating to Stanley's injuries and treatment, Ponek communicated with Mr. Perretti, the attorney who had been retained to represent the Miller family. He also conferred with Mr. Frahn who had recently become counsel to the Board of Education. Initially a reserve of $250 was placed upon the claim file by Lumbermens, but this was gradually increased to $15,000 just prior to Ponek's departure *546 from Lumbermens' employment. Ponek never had occasion to recommend a settlement figure to his employer. Based upon his investigation, Ponek was of the opinion that the Board was statutorily immune from liability and that the physical education instructor, Cloidt, was probably free of negligence. Carl Frahn, Esq., became attorney for the Board in April 1963, and he thereupon wrote to Lumbermens and its attorney, Mr. Gleeson, that he had become attorney for the Board and requested that he be kept informed of developments in the Miller case. Frahn never received a formal settlement demand from counsel for the Millers. He, however, learned from Ponek that the Miller boy was very seriously and permanently injured, was receiving treatment at the Kessler Institute for Rehabilitation, and that medical and hospital expenses had already exceeded $7,400. Frahn inquired of Ponek respecting the amount of reserve being carried on the case by the insurer and was informed that it was $20,000. Respecting liability, Ponek expressed his opinion to Frahn that the insurer's reserve on the case should be raised because the case was dangerous. On July 23, 1963 Frahn was told by Lecay, an associate in Gleeson's office, that there had been no discussion of settlement of the Miller case, but that the Board would be protected by statutory immunity.
Frahn testified that his first knowledge that the amount of the settlement demand for the Miller case exceeded the policy limits was on the date of the commencement of the trial, when the demand was $350,000; but he did not discuss this figure with anyone at the time. That demand was subsequently reduced by counsel for the Miller family to $200,000, which was the policy limit. On the following day, June 12, 1964, Frahn wrote to Lumbermens advising that counsel for the Millers would accept the policy limit of $200,000 in full settlement of all claims, and stated:
"I hereby require that subject to court approval on behalf of the minor you offer the plaintiffs the said sum of two hundred thousand dollars in settlement of their claims. Should you fail to do so and subsequently any judgment is entered herein in favor of the plaintiffs for a total sum in excess of two hundred thousand dollars, you are hereby notified that the defendants will hold your company liable to pay all of such excess or overage in addition to the two hundred thousand dollars required under my client's policy.
In addition, if you should decline to make such offer at this time, on behalf of the Board of Education, I further demand that you keep me advised of the progress of all further settlement negotiations in particular, in order that there can be no misunderstanding.
You will please advise me in writing, if possible, of the last highest settlement offer made by your company and the lowest demand received or understood to have been received from the plaintiffs prior to the case being given to the jury."
To the foregoing letter Lumbermens' claims manager, Mr. Noonan, replied under date of June 17, 1964 stating in part as follows:
"Unless your demand is predicated purely upon a desire to absolutely guarantee against any possible risk of a verdict in excess of the Board of Education policy limit of two hundred thousand dollars, we would be glad to have your appraisal and opinion with respect to such legal liability on the part of the Board of Education, or on the part of Joseph Cloidt which forms the basis of your demand. We have had no suggestion from you or Mr. Cloidt or the Board of Education at any time that you or they have considered the Board of Education or Mr. Cloidt negligent in connection with the unfortunate accident sustained by Mr. Miller. We are therefore at a *547 loss to understand your demand that two hundred thousand dollars or any really substantial settlement should be offered to avoid a trial of the issues. Accordingly, we urge that you immediately give us your reasoning as based upon the issues involved in this lawsuit which prompts any recommendation or demand from you that a settlement greatly in excess of our present offer of thirty-four thousand dollars should be made.
In the meantime, we would hope that you would attend the trial as our trial counsel and we have invited you to do so so that you may know and evaluate the testimony of the various witnesses first-hand. We shall be very glad to keep you informed as we have in the past concerning the progress of any settlement negotiations. As you know, we have previously suggested to you that you might wish to consult with the Board of Education concerning the matter of possibly seeking a settlement of the excess exposure of the Board of Education in the conceivable event that a Jury verdict were to exceed the policy coverage of two hundred thousand dollars."
Frahn further testified that Mr. Noonan advised him that the Trial Judge in the Miller case had informed Gleeson and Noonan that the Miller family would definitely consider a figure of $150,000. In response to this either Mr. Gleeson or Mr. Noonan informed the Judge that they would recommend something in the neighborhood of $50,000 or $60,000 if it would achieve settlement; but the Judge indicated that settlement at those figures was unlikely and suggested that the trial should proceed. Frahn wrote Noonan on June 19, 1964 that he was informed that the Millers had indicated a willingness to accept $150,000 in settlement but that it was Frahn's impression that they might accept as little as $125,000. After discussing certain aspects of the evidence bearing upon the question of liability Frahn reminded Noonan that the question is not whether "we consider the defendant negligent but what the jury could be justified in finding from the evidence presented." Noonan replied on June 25, 1964 that any appraisal of the settlement value of the case which Frahn might desire to make should be made on the basis of the entire testimony in the Miller case. On a subsequent occasion, but before a verdict, Noonan asked Frahn whether he had informed Perretti that Frahn had demanded that Lumbermens pay the policy and was assured that he had not; and on that occasion when Noonan asked Frahn whether he thought seriously Lumbermens should settle the case, Frahn answered "`No, I think you have to take my letters for what they represent,' or words to that effect." On July 2, 1964 the jury rendered verdicts of $1,180,000 for Stanley Miller and $35,140 for his parents.
By letter dated July 28, 1964, after the jury verdicts had been returned, Frahn advised Noonan that he was concerned that he had not been contacted on the subject of settlement; reminded him that he (Noonan) had considered the case to be worth only between $50,000 and $60,000, and that he (Frahn) assumed that Noonan had reevaluated his position since that time. Frahn stated that it was his position that Lumbermens had lost its right to rely upon the policy limits and should accept full responsibility for the final verdict. He added that, if he (Noonan) did not agree with Frahn's position, some settlement discussion should be instituted with the plaintiffs prior to the hearing of the pending motion for a new trial. Upon the motion for a new trial the trial court reduced the verdict for Stanley Miller to $300,000 with the proviso that if the plaintiffs did not accept that amount, a new trial would be allowed on damages only. The verdict as so reduced was accepted by the Millers upon condition that the Board and Cloidt would agree not to appeal from the trial court's decision. That condition was met.
On January 25, 1963 the insurer had written Cloidt and the Board advising *548 that the damages sought in the Miller suit might exceed the amount of the insurance coverage and inviting the Board to have its own attorney associate with the attorney for the insurer, but at the Board's own expense. Frahn, the attorney for the Board, was aware of the possibility of an excess verdict and the serious extent of the injuries sustained by the Miller boy. He also advised the Board and Gleeson that he (Frahn) had recently been appointed Attorney for the Board and requested Gleeson to mark his file to show Frahn's interest in the case and requested that he be kept advised of all significant developments. Frahn had learned from Ponek that the insurer was carrying a reserve of $20,000 and that the policy limits were $200,000.
At a conference meeting with the Board on July 23, 1963 Frahn reported the progress of the Miller case and disclosed that the medical and/or hospital expenses amounted to $15,000 "plus" and that the Miller boy was then confined at Kessler Institute with a serious bladder condition. However Frahn made no recommendation to the Board nor did the Board take any action at that time. The minutes of the Board disclose that Frahn was present and spent about 30 minutes briefing the Board on the status of the Miller case which he understood "would probably go to Court during September." Although Frahn and the Board were aware of the issue of liability in the Miller case and of the severity of the injuries from which the Miller boy was suffering, nothing was discussed at the Board Meeting respecting settlement of the case. Frahn made no further report to the Board on the Miller case until the trial thereof commenced on June 9, 1964. He had learned from Messrs. Noonan and Gleeson that no settlement discussions had been had by them with the attorney for the Millers with the exception that "it would take a million dollars to settle the case." Nevertheless, Frahn made no demand on Noonan that settlement possibilities be explored. During the trial Noonan discussed the severity of the injuries of the Miller boy and expressed the hope that because of the statutory immunity of the Board it would be eliminated from the action at an early stage. Frahn did not, however, discuss the applicability of the statute. The trial of the Miller case extended from June 9 to July 2, 1964 and, except for the first day, the aggregate of the time spent by Frahn in court was two full days. During the trial period the Millers' attorney submitted a settlement figure of $350,000.
To Frahn's letter of July 28, 1964 Mr. Noonan replied that if the attorney for the Millers should exhibit any interest in settlement before, during or after the motion for new trial was argued, he would advise Frahn to discuss the matter with him. After the attorney for the Millers had suggested $350,000 for settlement, which would require the Board to contribute $150,000, Frahn made no report to the Board of the demand nor did he insist that either Noonan or Gleeson pay the policy limits ($200,000). On June 12, 1964 Frahn had written Noonan stating that he required that, subject to Court approval on behalf of Stanley Miller, the insurer offer the plaintiffs the sum of $200,000, and that if the insurer declined to make such an offer it keep him [Frahn] advised of all further settlement negotiations. Subsequently, during the Miller trial Noonan requested Frahn not to tell Perretti about the existence of Frahn's letter of June 12. To this Frahn agreed. He also agreed not to discuss the matter with the Board. Noonan further suggested that the Board consider settlement of the probable excess over the policy coverage despite the fact that the attorney for the Millers had expressed willingness to accept the coverage afforded by the policy. Frahn stated that if at the time he wrote the letter of June 19 to Mr. Noonan he had been negotiating for settlement on behalf of the defendant he certainly would not have offered to pay $150,000, but would have offered less than that figure with *549 the intention of paying the amount demanded only as a last resort.
On November 15, 1964 a meeting of the Board was held at which Frahn was authorized "to enter into an agreement with Mr. Miller and Lumbermens Mutual Casualty Company to the effect that if Mr. & Mrs. Miller accept the $300,000 remittitur the defendant will not fight any further appeal provided said settlement has no provision affecting their rights against the insurance company on the overage."
In completion of the correspondence between them Noonan wrote to Frahn on December 16, 1964 stating in part as follows:
"In complete good faith and following our best appraisal and judgment based on our thorough investigation of all the facts and circumstances of the accident, and the counsel of our trial attorney, we did not agree to a settlement during the trial * * * of either the figure of two hundred thousand dollars or the subsequent figure of one hundred fifty thousand dollars which was submitted by attorney Perretti in behalf of the Millers as the lowest amount they would accept in settlement."
In support of his contention that in deciding not to settle Noonan and Gleeson were not exercising their best judgment, Frahn stated that "they were experienced trial counsel and claims people. The facts as we knew them at that time were such, that in my opinion, at that time, people with that kind of experience, to them it would indicate, as it indicated to me, that it was a case that warranted settlement; and that the settlement should be as high as two hundred thousand, if necessary. And that settlement negotiations should start somewhere around a hundred and twenty five thousand dollars and proceed from there."
In conclusion Frahn explained his failure to report to the Board the problems of settlement of the case during the trial as follows:
"The first time that I received a demand which was for three hundred and fifty thousand dollars, I did not feel that the case was worth over two hundred thousand, because at that time the Judge had still not indicated anything on statutory immunity and at that time also the testimony placing Mr. Cloidt in his office had not come in. And, of course, the case had not proceeded very far at all. Therefore, I saw no basis to discuss it with the Board.
Now when it had progressed to the point where I was concerned about a verdict exceeding two hundred thousand dollars and seriously concerned about it, when I heard about it the Judge was going to submit both defendants to the jury and these other things happened, at that point, the offer was down to two hundred thousand dollars, at the same conference, he said he would take the policy limits. That was one aspect of the reason and I gave this overnight, and I gave it serious thought.
The other problem, the other problem and reason entering my consideration were, first, we had presented to Mr. Perretti and were presenting at the Court the position that we didn't have anything to worry about. As you would in settlement conferences and around the courthouse. Now, I knew I had from nine to eleven people at a meeting of the Board who had various interests in this litigation, friends of the Millers. There was the risk and a very substantial one, because I was getting fed back through the members of the Board about this case that they would somehow unintentionally communicate my concern to Mr. Perretti, to the Miller family, and thence to Perretti.
This also was a concern of Mr. Noonan who mentioned it to me. Eventually, he did in the letter and verbally indicate that I might pursue this course. So that at that point, possibly I would not be running the risk of non-cooperation. *550 But at that point, he did give me permission. That was another reason up to that point, it would have been a question of non-cooperation because Mr. Noonan asked me not to discuss it and Mr. Gleeson also mentioned that, not to discuss the case with the Board, and I would run the risk of non-cooperation.
Then finally, even when I had the authority to go, by that time, it was down to a hundred and fifty thousand dollars and I still ran the risk because I still had the race to try to win. As far as I was concerned, Mr. Gleeson was trying to win it and we were presenting a solid front to Mr. Perretti.
I was hopeful the insurance company would make a substantial offer even if it weren't a hundred and fifty thousand dollars to save the case.
* * * * * *
* * * I felt that there was nothing to be gained and that my client was best served by my trying to present a solid front to Mr. Perretti, that we were all together in this case, and that we didn't really feel that Mr. Perretti was going to succeed."
The Board called as a witness Peter N. Perretti, Esq., the attorney for the plaintiffs in the Miller case. From his testimony it appears that through the discovery process in that case there was a full disclosure to the Board and its insurance carrier of the theory and prospective evidence upon which the issues of liability and damages would be supported in behalf of the plaintiffs, as well as the names of witnesses intended to be called. As the case approached trial Mr. Perretti submitted to counsel for the insurance company on February 25, 1964 his initial settlement demand of $350,000. Against that demand a tentative offer of $35,000 to $50,000 was mentioned by the representative of the insurer. At a conference in the Chambers of the Judge who sat in the case the settlement demand was lowered to $200,000 and it was suggested that the Judge discuss the matter of settlement with the Millers and their attorney, out of the presence of counsel for the insurer and its claims manager, and that after that discussion the matter be further explored by the Judge in a conference with the representatives of the insurance company and its insured. The Judge suggested that an offer of $150,000 be made by the defense. To this suggestion Mr. Perretti responded:
"* * * we're at two. If you will give us an offer of one, I really think we can work from there and settle the case."
Perretti explained that he felt in his mind that his adversary would understand that his invitation of an offer of $100,000 meant that he was contemplating a figure of $150,000; but he added:
"* * * there came a time in the presentation of the defendants' case when I, myself, wanted to back off from the willingness that * * * [Mr. Miller] had exhibited at a hundred and fifty thousand dollars, because I felt, as I indicated before, that our case had perhaps been enhanced after the testimony of Mr. Cloidt."
Upon a later occasion, but before the completion of the trial, counsel for the insurer inquired of the attorney of the plaintiffs whether he would accept $75,000 in settlement if it could be obtained. The record fails to indicate that any response was made to this inquiry.
The resolution of the question whether the defendant insurer was motivated by good faith in its efforts to settle the Miller case within the Board's policy limits depends to a large degree upon the testimony of the insurer's eastern claims manager, Thomas N. Noonan, who testified for the defense in the present case. He was thoroughly experienced in the field of liability insurance claims adjustment. Although his settlement authority was limited to $10,000, he was required to submit any figure above that amount to his company's home office in Chicago with recommendations *551 which were usually accepted. Mr. Noonan had overall charge of the Miller case and had retained Mr. Gleeson, an able and experienced attorney, who had been representing Lumbermens for 22 years, to handle the trial.
As early as January 25, 1963 Mr. Noonan advised Mr. Cloidt, an employee of the Board and a co-defendant in the Miller case, by letter, that the complaint "could possibly present a verdict in excess of the insurance that the Board carried with * * * [Lumbermens]," and reminded the Board that it had a right to have independent counsel to represent its members. As a result of his conference with Mr. Gleeson as the case progressed through the pleading and discovery stages, Mr. Noonan recognized that very serious injuries were involved, although liability was, in his opinion, questionable. The fact that the case was pending in Morris County, New Jersey, had some influence upon both Noonan and Gleeson in their evaluation of its settlement value. Consequently a reserve of $75,000 was initially placed upon the insurer's file on the case.
About six weeks before trial of the Miller case Noonan received a settlement demand of $350,000. He discussed this demand with Mr. Gleeson and they both considered its amount "as to be not in our best judgment a realistic or serious kind of a demand. Therefore, we saw no purpose in making any counter-offer as we finally decided at that point."
Mr. Noonan attended the trial throughout its 15-day duration with the exception of one and a fraction days and conferred constantly with Mr. Gleeson and his associates as the evidence was presented. Mr. Frahn, the attorney for the Board visited the Court briefly during the trial of the case and on one occasion the $350,000 settlement demand was discussed by him with Noonan and Gleeson. In an effort to be of assistance in achieving a settlement of the case, the Trial Judge conferred in Chambers with Messrs. Perretti, Gleeson, Noonan and Lecay (Gleeson's assistant), and upon being advised by Perretti that he was demanding $350,000 in settlement, the Judge expressly recognized the probability that a verdict might be expected in excess of $100,000. Mr. Noonan however was still of the opinion that liability was uncertain. Frahn expressed no opinion respecting the settlement value or upon the liability issue prior to Perretti's reduction of his settlement demand to $200,000. Against this demand Noonan offered $34,000. He explained that that figure represented approximately one third of $100,000, which was close to the highest jury verdict estimated, i. e., between $75,000 and $125,000. During this conference in Chambers in view of the respective amounts offered and demanded, the Judge suggested "you fellows look pretty far apart. We better get on with the trial." No comment was made by Frahn upon this apparent breakdown of the negotiations. However, on June 12, 1964 there commenced an exchange of letters between Frahn and Noonan concerning which Frahn later stated to Noonan: "You understand my position here that I need to protect the interests of the Board by writing these letters." Noonan suggested to Frahn, after the attorney for the Millers had reduced his settlement demand to $150,000, that the Board might settle any excess, and he urged Frahn to recommend to the Board that it contribute against the possibility of excess exposure. Noonan testified in this connection:
"I urged really rather than merely invited, urged Mr. Frahn to talk with the Board of Education with respect to theif they felt there was the possibility, if they wished to avoid the possibility of an excess verdict, that they might have, and I had to concede and did readily that there was that possibility; if they wished to avoid that possibility of having to pay an excess verdict, then I thought he ought to talk with the Board about it and maybe working out a settlement of their excess over their policy limit. That we would continue, of course, with the trial and with the verdict, but they might want to do that.
*552 Well, he said he rather doubted that they would have any authority to do such a thing.
I said, `I still think that, Carl, you ought to talk with the Board on it and see what they think or whatever.'
But I said, `It's up to you. It's your responsibility.'"
On June 25, 1964 Noonan advised Frahn by letter that Lumbermens would consider payment in settlement of from $50,000 to $60,000. Although Mr. Noonan had occasion to discuss settlement with Mr. Perretti on approximately 10 different occasions during the trial of the Miller case, he was unable to obtain a settlement demand of less than $150,000 which he informed Perretti he could not recommend to his company. On one occasion Mr. Perretti told Mr. Noonan:
"If you want to make me an offer of a hundred thousand dollars, I'll have to talk with the Millers. I can't give you any encouragement. They haven't given me any."
The negotiations were finally concluded by Noonan's request that Perretti again inquire of the Millers whether their settlement demand could be brought down to $125,000 to which Perretti responded that he did not know but would think about it.
In amplification of his explanation of the abortion of the settlement discussions Noonan stated:
"Well, my responsibility was twofold, and as I saw it, not in conflict at all. One was when we were in this posture of having a hundred and fifty thousand dollars, probably as a figure that we could settle at, I then had the responsibility of weighing very carefully on behalf of my company whether we should risk our own fifty thousand dollars beyond that up to our limit of two hundred thousand dollars by continuing on with the trial or whether to accept this figure which was more and more appearing to be a final figure, the hundred and fifty thousand dollars.
If we paid the hundred and fifty thousand dollars, we quite clearly would have had a saving on our policy limit of fifty thousand dollars to Lumbermen's.
Then there was the problem, which was equally important in my appraisal of the situation, the possible verdict that might come in, if any verdict came in, of over two hundred thousand dollars. If so, how much might that be which would then have to be paid by the policyholder, the Chatham School Board.
It was my best judgment, taking into account all of the factors that appropriately should be considered in this situation, it was my best judgment that the possibility of a verdict for, number one, and if there was a verdict, the range of it in Morris County against the school district did not imbalance give this case a settlement value of a hundred and fifty thousand dollars.
Therefore, I felt that our company should take the risk of losing, if the verdict were to go over, if there were to be a verdict, it would go over two hundred thousand dollars, that my company should take the risk of losing this additional fifty thousand dollars that was at stake. I felt it was proper and sound that our policyholder should incur the same risk of going perhaps somewhat over, having to pay something, if and when, over two hundred thousand dollars."
Noonan further stated that before reaching his conclusion he consulted with Mr. Gleeson and that their views coincided. Mr. Gleeson, an eminent trial attorney with an enviable record of success in defending negligence liability cases, testified for the defendant in this case in substantial corroboration of the testimony of Mr. Noonan. Mr. Gleeson was aware of the policy coverage limits and of the initial settlement demand of $350,000. He promptly rejected that demand as unrealistic. It was his opinion that if the Miller case were to be lost *553 and the plaintiffs recover verdicts therein they would not exceed one hundred fifty thousand to one hundred sixty thousand dollars. Upon another occasion during the negotiations, it was Mr. Gleeson's expressed opinion that the settlement demand of two hundred thousand dollars exceeded by forty thousand or fifty thousand the verdict value of the case. Upon reading a letter from Frahn to Noonan which demanded that the insurer pay two hundred thousand dollars in settlement of the case, Gleeson asked Frahn whether he believed that either of the defendants was liable in the case and Frahn stated that he did not. In response to Gleeson's inquiry as to why he had sent Noonan the letter, Frahn admitted that he did not believe the case was worth $200,000 in settlement but because he was the attorney for the Board he had to protect himself. It was Mr. Gleeson's testimony that Mr. Perretti never indicated that he would take less than $200,000 in settlement of the case, but he admitted that the trial Judge had informed him that Mr. Miller had stated that "if an offer of one hundred fifty thousand dollars were made, he would give serious consideration to it." At that time it was Mr. Gleeson's opinion that the settlement value of the case was $75,000. He, like Noonan, continued his efforts throughout the trial to arrange a settlement with Perretti. Some time after the medical testimony had been presented, Mr. Gleeson expressed to Mr. Noonan concern that the jury might disregard the evidence on liability and allow themselves "to be swept away by emotion or sympathy." Accordingly Gleeson then recommended that if the case could be settled up to $100,000 such disposition should be made of it. He learned from Mr. Noonan subsequently that he had received authority from his home office to go to that figure if it would achieve settlement, and that to Noonan's inquiry of Perretti whether that figure would suffice to do so, Perretti responded in the negative. Accordingly, no definite offer was made by Noonan to Perretti of $100,000 to settle. Nevertheless the settlement discussions continued daily between Gleeson and Perretti throughout the trial of the case.
We revert to the Bell, Radio Taxi and Bowers cases from which we have hereinabove made substantial quotations for guidance in our efforts to discern whether or not Lumbermens exercised good faith in refusing to settle the Miller case within the policy limitation. Since the purpose of the policy in this case was to protect the Board from liability within the limits of its coverage the insurer should not be permitted to frustrate that purpose by a selfish decision as to whether a claim against the insured should be settled where the insured is exposed to and suffers a judgment beyond the specific monetary amount which its premium has purchased. Not all of the factors for the determination of good faith as stated in Kaudern, supra, were present in the Miller case. The latter was strong on damages but was initially considered weak on liability. However, the liability aspect was recognized as having been enhanced by the severity of the injuries, and that enhancement was recognized by the insurer. There were attempts by the insurer to induce the Board to contribute to a settlement. There was no evidence that the insurer failed to properly investigate the circumstances surrounding the occurrence of the accident. The insurer did not reject the advice of its own attorney or agent with respect to the quantum appropriately payable in settlement, and there was no failure on the part of the insurer to inform its insured of the settlement demands. The financial risk to which both insurer and insured were exposed by the refusal to settle was substantial. There was no fault on the part of the insured which induced the insurer to reject the settlement by misleading the insurer as to the facts giving rise to the liability claim. Each of the aforementioned cases was an action by an insured against an insurer for recovery of the difference between the amount recovered by a claimant *554 against the insured and that limited by the terms of the policy. In each case the insured charged the insurer with a lack of good faith in refusing to settle within the policy limits. In Radio Taxi a dismissal by the trial court was affirmed on appeal. In Bowers a judgment upon a verdict for the insured was affirmed. In each case settlement of insured's liability to claimant within the policy limits was possible.
The evidence in the instant case persuades me that Lumbermens had the opportunity to settle the Miller case within the limits of the Board's policy, and that in refusing to do so it was not acting in good faith. As was stated in Bowers, 237 A.2d at p. 862, "when it is probable that an adverse verdict will exceed the policy limit, the propriety of an insurer's refusal to accept a settlement offer which is within the coverage requires a resolution of conflicting interests * * in view of the duty of the insurer to act in good faith, the resolution can lead to but one fair result: both interests can be served only if the insurer treats any settlement offer as if it had full coverage for whatever verdict might be recovered regardless of policy limits, and makes its decision to settle or to go to trial on that basis."
The criterion expressed in Bowers, supra, (51 N.J. p. 71, 237 A.2d 857) was applied in Potomac Insurance Company v. Wilkins Company, Inc., 376 F.2d 425 (10 Cir. 1967). In that case the Court of Appeals held that the evidence sustained the finding by the District Court that the insurer negligently and in bad faith failed to settle a claim against the insured within the policy limit by one who sustained spinal injury which rendered him a total and permanent quadraplegic, so that insured was entitled to recover excess of $115,000 settlement made by insured after injured person had recovered a verdict in the amount of $300,048.38, and a new trial had been granted to the insured confined solely to the issue of damages. In that case the policy provided that the insurer might make such investigation, negotiation or settlement of any claim or suit as it deemed expedient. The trial court in the action by the insured against the insurer sat without a jury and "found that Potomac was not negligent in its investigation of the accident or its preparation of the case for trial; that the case was properly tried; that the conclusion of Potomac's counsel as to the absence of liability on the part of Wilkins Company was arrived at honestly. As to the issue of good faith, however, the court, after commenting upon the closeness of the Starks [injured person] case and the uncertainties of litigation, found as follows:
"But certainly the defendant and its counsel realized that there was always the chance that their judgment and opinion would be wrong and that this case could result in a verdict, and if it did, they certainly were advised of the probabilities that there would be a very substantial excess judgment.
* * * * * *
The evidence does not disclose any consideration by the company [insurer] of the effect upon Wilkins and Company [the insured] if they failed to accept this settlement, and all this, in view of the fact that if a judgment or a verdict was rendered in favor of the plaintiff in that Civil Action 7068, that the verdict almost had to be well in excess of the policy limits.
* * * * * *
So the Court finds that the defendant Potomac Insurance Company did not act in good faith."
The Court of Appeals in Potomac held [p. 427] that:
"It is well established that the [law] imposes upon the insurer the duty to exercise diligence, intelligence, good faith, and honest and conscientious fidelity to the common interest of the insured as well as itself in determining whether to accept or reject an offer *555 of settlement. While the insurer may properly give consideration to its own interest, it must in good faith give at least equal consideration to the interest of the insured, and if it fails to do so, it acts in bad faith.
* * * * * *
We are satisfied that when tested by this standard, the trial court's judgment is well supported by the evidence."
And, at page 428, the Court of Appeals added:
"* * * While we do not cast upon Potomac the requirement of prescience, we nevertheless are satisfied that the nature of Starks' suit indicated a reasonable possibility that the case would be submitted to a jury and that a recovery substantially in excess of the $100,000 policy limit would result. Potomac was aware of the potential excess liability. It is apparent that Potomac, by refusing to negotiate a settlement above $25,000, unduly subjected Wilkins Company to liability substantially in excess of its policy coverage, and in so doing, did not afford equal consideration to the interests of Wilkins Company. Accordingly, we agree with the trial court's determination that Potomac did not act in good faith respecting the matter of settlement negotiation."
The striking parallelism between the Potomac case and that before me impels me to a finding of lack of good faith upon the part of Lumbermens in attempting to save some of the insurer's coverage at the risk of a verdict against the insured in excess of that coverage.
Accordingly I conclude that a judgment should be entered in favor of the Board of Education of the Borough of Chatham against Lumbermens Mutual Casualty Company for the sum of $135,140 with interest thereon from the date upon which the Board paid that amount and the costs of this action.
Let an Order in conformity with the foregoing Opinion be presented.
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30 So.3d 468 (2008)
E.E. CLANTON
v.
MUIRFIELD HOLDINGS, LTD.
No. 2070617.
Court of Civil Appeals of Alabama.
August 15, 2008.
Decision of the Alabama Court of Civil Appeal Without Published Opinion Affirmed.
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IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
ANN COUGHLIN, ADMINISTRATRIX OF : No. 166 EAL 2016
THE ESTATE OF THOMAS COUGHLIN, :
DECEASED, :
: Petition for Allowance of Appeal from
Petitioner : the Order of the Superior Court
:
:
v. :
:
:
UMMU MASSAQUOI, :
:
Respondent :
ORDER
PER CURIAM
AND NOW, this 24th day of August, 2016, the Petition for Allowance of Appeal is
GRANTED. The issue, as stated by Petitioner, is:
In a civil trial brought on behalf of a pedestrian who was killed by a
motorist, is it reversible error where the defendant motorist admits
evidence of the pedestrian’s uncorroborated post-mortem blood alcohol
content (BAC) by way of a toxicology expert who merely explains the
uncorroborated BAC in terms of how an equivalent BAC would render an
“average” person unfit to cross the street?
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85 F.3d 612
Daniel Rocco Delli Santiv.U.S.
NO. 95-5756
United States Court of Appeals,Third Circuit.
Apr 08, 1996
Appeal From: D.N.J., No. 94-03991,
Brown, J.
1
AFFIRMED.
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 16, 2009
No. 08-50777
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
RAUL GUTIERREZ-MENDOZA, also known as, Raul Gutierrez-Gomez also
known as, Raul Mendoza-Gutierrez
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:07-CR-2544-ALL
Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
The attorney appointed to represent Raul Gutierrez-Mendoza has moved
for leave to withdraw and has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967). Gutierrez-Mendoza has not filed a response.
Our independent review of the record and counsel’s brief discloses no
nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 08-50777
withdraw is GRANTED, counsel is excused from further responsibilities herein,
and the APPEAL IS DISMISSED. See 5 TH C IR. R. 42.2.
2
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62 F.3d 1426
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES of America, Plaintiff-Appellee,v.David Warren MALLEY, Defendant-Appellant.
No. 95-55229.
United States Court of Appeals, Ninth Circuit.
Submitted Aug. 2, 1995.*Decided Aug. 7, 1995.
Before: ALARCON, FERNANDEZ, and RYMER, Circuit Judges.
1
MEMORANDUM**
2
David Warren Malley, a federal prisoner, appeals pro se the district court's denial of his 28 U.S.C. Sec. 2255 motion. Malley contends that trial counsel provided ineffective assistance, and that the district court erred by denying the Sec. 2255 motion without holding an evidentiary hearing. We have jurisdiction under 28 U.S.C. Sec. 2255. We review de novo the denial of a Sec. 2255 motion. Sanchez v. United States, 50 F.3d 1448, 1451-52 (9th Cir. 1995). We review for clear error a district court's findings of fact. Id. at 1452. A district court's decision not to hold an evidentiary hearing is reviewed for abuse of discretion. Frazer v. United States, 18 F.3d 778, 781 (9th Cir. 1994). We affirm for the reasons stated in the district court's order denying Malley's Sec. 2255 motion.
3
AFFIRMED.
*
The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir. R. 34-4
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3
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583 So.2d 1339 (1991)
Samuel C. STREETER
v.
Gary C. YOUNG.
1901300.
Supreme Court of Alabama.
July 26, 1991.
Samuel C. Streeter, pro se.
Sam Maples, Birmingham, for appellee.
SHORES, Justice.
This is an appeal from a summary judgment entered in favor of the defendant, Gary C. Young, in a civil action brought by Samuel C. Streeter, who contends that Young was guilty of legal malpractice in his representation of Streeter in Streeter's criminal case. We affirm.
Rule 56, A.R.Civ.P., sets forth a two-tiered standard for determining whether to enter summary judgment. To enter a summary judgment, the trial court must determine: 1) that there is no genuine issue of material fact; and 2) that the moving party is entitled to a judgment as a matter of law. Rule 56; RNH, Inc. v. Beatty, 571 So.2d 1039 (Ala.1990). In determining if summary judgment is proper, the trial court must view the motion in the light most favorable to the nonmovant, and, in reviewing a summary judgment, this Court is limited to reviewing the factors and evidence considered by the trial court when it granted the motion. Turner v. Systems Fuel, Inc., 475 So.2d 539 (Ala.1985).
Rule 56 is to be read in conjunction with the "substantial evidence rule" for actions filed after June 11, 1987. See § 12-21-12, Alabama Code 1975; Bass v. *1340 SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Therefore, in order to defeat a properly supported motion for summary judgment, Streeter must present "substantial evidence," i.e., "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).
Streeter has not presented substantial evidence of malpractice on the part of Young in defending Streeter.
This case is indistinguishable from Hines v. Davidson, 489 So.2d 572 (Ala. 1986). In Hines, we noted that a legal malpractice complaint filed by a criminal defendant against trial counsel "will not support a claim for relief in the absence of an averment that the conviction of the defendant was proximately caused by the alleged negligence of the lawyer and that, but for that negligence, he would have been acquitted." Hines, 489 So.2d at 573, citing Herston v. Whitesell, 374 So.2d 267 (Ala.1979). Streeter failed to offer substantial evidence that his conviction was the proximate result of Young's alleged negligence, and that, but for Young's negligence, he would have been acquitted.
On the basis of Hines, the judgment of the trial court is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, HOUSTON and KENNEDY, JJ., concur.
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 9, 2009
No. 08-50919
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
KENNETH WAYNE LEWIS
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:08-CR-70-ALL
Before KING, GARWOOD and BARKSDALE, Circuit Judges.
PER CURIAM:*
Kenneth Wayne Lewis was convicted of possession with intent to
distribute at least five grams of cocaine base in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(B)(iii). Lewis challenges the district court’s denial of his motion to
suppress and the sufficiency of the evidence to support his conviction.
Lewis argues that the magistrate judge could not determine from the
affidavit in support of the search warrant whether or not the information from
the confidential informant or about the controlled buys was stale and, thus,
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 08-50919
could not find probable cause to issue a search warrant for his apartment. He
argues that the search warrant was in this respect so lacking in probable cause
that no reasonable officer could have relied on it in good faith.
The Government argues that Lewis waived review of this issue by not
raising it in his motion to suppress. Our review of the record shows that Lewis
did not raise this specific argument in his motion to suppress, nor did the district
court (or the government below) address any such issue (nor does Lewis raise on
appeal the only issue he raised in his motion to suppress below). Accordingly,
Lewis has waived this issue for appeal. See United States v. Pope, 467 F.3d 912,
917-20 (5th Cir. 2006); see also United States v. Chavez-Valencia, 116 F.3d 127,
129 (5th Cir. 1997).
Even if we were to regard Lewis’s argument as merely forfeited rather
than waived, and hence reviewable for “plain error”, rather than not being
reviewable on appeal at all, we would find no “plain error.”1 See Pope at 919,
n.20; United States v. Maldonado, 42 F.3d 906 (5th Cir. 1995) at 912 n.9
(government did not contend issue was not raised below) , 912-13 (reviewing for
plain error); Chavez-Valencia at 130-31 (where motion to suppress not filed
below, challenge to vehicle stop is waived and cannot be considered on appeal);
United States v. Carreon-Palacio, 267 F.3d 381, 389 (5th Cir. 2001) (particular
issue not raised below in connection with suppression claim not considered on
appeal because not raised below); United States v. Baker, 538 F.3d 324 (5th Cir.
2008) at 328-29 (not resolving whether waiver or forfeiture controls as to
arguments not raised in a motion to suppress but in any event holding any error
was not plain); United States v. Harrelson, 705 F.2d 733, 738 (5th Cir. 1983)
(“Failure to move pre-trial for suppression, or to assert a particular ground in
the suppression motion, operates as a waiver unless the district court grants
1
The government argues, alternatively to its waiver argument, that the district court
did not err in overruling the motion to suppress.
2
No. 08-50919
relief for good cause shown”). See also United States v. Mena,248 F.3d 1138 (5th
Cir. 2001) (unpublished), 2001 WL 85818 (apparently applying waiver, rather
than forfeiture, and noting that in Maldonado the government did not assert
that the issue was not raised below).
As we said in Maldonado, “we must be mindful to give sufficient weight
to the ‘plain’ element of plain error analysis,” which requires that the error be
“‘clear’ or ‘obvious’,” id. at 912 n.10, to such an extent that the error is “so
conspicuous that the trial judge and prosecutor were derelict in countenancing”
it despite the lack of defense assistance in detecting the particular deficiency.
Id. at 912, quoting United States v. Calverley, 37 F.3d 160, 163 (5th Cir. 1994)
(en banc).
Lewis’s claim (not raised below) is that the affidavit of the searching
officer, the only basis on which the warrant was issued, does not state sufficient
facts to allow the magistrate to determine whether or not the underlying
information relied on was stale, and for that reason does not support the issuing
magistrate’s determination of probable cause, with the result that the fruits of
the search must be suppressed. However, under United States v. Leon, 104 S.Ct.
3405 (1984), evidence is normally not suppressed where the search is made in
good faith reliance on a warrant, “even though the affidavit on which the
warrant was based was insufficient to establish probable cause” and “[i]ssuance
of a warrant by a magistrate normally suffices to establish good faith on the part
of law enforcement officers who conduct a search pursuant to the warrant.”
United States v. Craig, 861 F.2d 818, 821 (5th Cir. 1988). There are some four
or five exceptions to this rule, id., the principal one of which relied on by Lewis
is where the search is pursuant to “a warrant based on an affidavit so lacking in
indicia of probable cause as to render official belief in its existence entirely
unreasonable.” Leon, at 3421 (internal quotation marks and citation omitted).
3
No. 08-50919
Here the affidavit states that the affiant is and has been for some eighteen
years a Waco police officer and is assigned to the Drug Enforcement Section and
includes the following:
“Information received from the confidential informant was that the
confidential informant was in the suspected premises within the last
72 hours. The informant has seen Kenneth Wayne Lewis in
possession of crack cocaine at the suspected premises. . . . During
the course of this investigation Affiant has made several controlled
buys of crack cocaine from Kenneth Lewis at the suspected
premises. On all controlled buys the suspected substance was
tested by Affiant using a field test kit, supplied by Waco Police
department. This substance did test positive for presence of cocaine.
On at least one of those occasions Kenneth Lewis went to the
suspected vehicle to distribute the crack cocaine. Affiant found that
the suspected vehicle is registered to Kenneth Lewis at the
suspected premises. Affiant also found that the water service at the
suspected premises is in Kenneth Lewis name.”
The “suspected vehicle” is defined in the affidavit as “a black 2008 Chevrolet
pickup” with Texas license plate 15P-YB5 (and a specified “vin” number).2
The affidavit concludes by stating:
“Based on all the foregoing facts, Affiant believes that there exists
probable cause to believe that Kenneth Wayne Lewis, are [sic]
knowingly and intentionally in possession of a controlled substance
to wit: Cocaine at the premises described above and that . . . there
further exists probable cause to believe that the items described
above [cocaine and related paraphernalia and records] are being
concealed at the suspected premises and on the curtilage and on the
persons [sic] of Kenneth Wayne Lewis.”
Given that deference is owed to the magistrate’s determination of probable
cause, United States v. McKeever, 5 F.3d 863, 865 (5th Cir. 1993), that search
warrant affidavits are “normally drafted by nonlawyers in the midst and haste
of a criminal investigation” and must be read “in a commonsense and realistic
2
The “suspected premises” is defined in the affidavit as the single residence garage
apartment at 2905A Lyle, Waco. The affidavit also includes information as to the reliability,
based on past experience, of the informant and the informant’s ability to identify crack
cocaine.
4
No. 08-50919
fashion,” United States v. Ventresca, 85 S.Ct. 741, 746 (1965), and given further
that the issue we now address is not whether the affidavit is sufficient to
establish probable cause, nor even whether it is “so lacking in indicia of probable
cause as to render official belief in its existence entirely unreasonable” under
Leon, but is rather whether the district court’s failure to hold that the affidavit
is so lacking is not simply error but is “plain” error, we reject Lewis’s complaint
on appeal as to the search.
We observe that a common sense reading of the affidavit suggests that it
was within seventy-two hours prior to execution of the affidavit on November 6,
2007, that the informant had seen Lewis in possession of cocaine at the
suspected premises. Moreover, that the affiant made several controlled buys at
the premises suggests an ongoing illegal activity as to which a greater length of
time is generally allowed prior to staleness. See, e.g., United States v. Tucker,
638 F.2d 1292, 1299 (5th Cir. 1981); McKeever at 866; Craig at 822-23 & n.7.
And, the affidavit also reflects that on one of the controlled buys Lewis got the
cocaine from the 2008 model Chevrolet pickup, which makes it highly likely that
that controlled buy occurred not earlier than sometime in October 2007.
Further, the affidavit says there is probable cause to believe that cocaine, and
drug records and paraphernalia, “are” – i.e. – now – being concealed on the
premises, and there is nothing in the affidavit to indicate that the information
therein is stale. See United States v. Thomas, 973 F.2d 1152, 1157 (5th Cir.
1992), citing United States v. Smith, 783 F.2d 648, 652 (6th Cir. 1986). We
accordingly conclude that the district court did not plainly err in failing to
suppress the search evidence on the ground that the warrant was based on an
affidavit that did not state sufficient facts to show that the information on which
5
No. 08-50919
it relied was not stale and, for that reason, was so lacking in indicia of probable
cause as to render official belief in its existence entirely unreasonable.3
Lewis preserved for appeal his argument that the evidence was
insufficient to prove the “knowing” and “possession” elements of the offense of
conviction. See United States v. Floyd, 343 F.3d 363, 370 (5th Cir. 2003); F ED.
R. C RIM. P. 29(a). The Government presented, inter alia, the following evidence
at trial. Lewis was the only one to pay rent on the apartment on Lyle Street and
paid it consistently; he was the only person seen at the apartment (except
possibly one or two plumbers on a service call); bills, drivers’ licenses, and
vehicles were in his name at the Lyle Street address; and numerous items of
Lewis’s personal property were found in the apartment with the drugs. This
evidence, viewed in the light most favorable to the guilty verdict, was sufficient
for the jury to infer that Lewis constructively and knowingly possessed the
drugs. See United States v. Hinojosa, 349 F.3d 200, 204 (5th Cir. 2003); United
States v. Onick, 889 F.2d 1425, 1430 (5th Cir. 1989).
AFFIRMED
3
Lewis also seems to argue that in the affidavit the affiant intentionally, or recklessly,
misled the magistrate about staleness. There is absolutely no evidence to support this, and
the evidence at trial shows the investigation began in September or October 2007 and that the
information recited in the warrant was not stale. We also reject Lewis’s contention that the
Leon good faith rule does not apply where the warrant affiant participates in its execution.
6
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535 F.Supp. 309 (1982)
Salvatore J. GRASSO, Plaintiff,
v.
UNITED STATES of America, et al., Defendants.
No. 81-563 C (2).
United States District Court, E. D. Missouri, E. D.
March 31, 1982.
*310 Francis L. Ruppert, Ruppert, Westhus & Benjamin, Terrance L. Farris, Clayton, Mo., for plaintiff.
Joseph B. Moore, Asst. U. S. Atty., St. Louis, Mo., for defendants.
MEMORANDUM
NANGLE, District Judge.
This case is now before this Court on defendants' motion to dismiss plaintiff's complaint for lack of subject matter jurisdiction, and for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. In the alternative, the defendants request summary judgment pursuant to Rule 56(b) of the Federal Rules of Civil Procedure.
The incident giving rise to this cause of action occurred on November 17, 1978. At this time, plaintiff was employed by the Internal Revenue Service as a Criminal Investigator. On this date, the plaintiff was accused of displaying his firearm and official credentials in an unauthorized fashion. As a result, the agency instituted proceedings against the plaintiff resulting in his suspension and reassignment to the position of Internal Revenue Agent. This reassignment resulted in the loss of a twenty year retirement benefit provided to law enforcement officials in 5 U.S.C. § 8336.
In his complaint, the plaintiff alleges that the grievance procedures conducted by the Internal Revenue Service and the resulting reassignment give rise to a cause of action cognizable under the Constitution and the laws of the United States. In Count 1 of his complaint, plaintiff claims that the Internal Revenue Service violated several of its internal rules embodied in Sections 126(2), 134(2), and 144(11)(C) of the Internal Revenue Manual Grievance Handbook when the agency conducted its investigation of plaintiff's activities. Plaintiff contends that the initial investigation by defendant Voskuil was not based upon substantial evidence. In addition, after the grievance examiner determined that the initial decision was not supported by substantial evidence, defendant Trainor refused to void the reassignment and failed to contain specific objections to the determination of the grievance examiner in his decision. Finally, the plaintiff asserts that the Internal Revenue Service failed to follow its own guidelines by making a final decision in which there *311 were no specific written findings. Plaintiff appealed the decision of defendant D'Amato to the Merit Systems Protection Board which declined to exercise its jurisdiction or review plaintiff's case.
In Count II of the complaint, plaintiff alleges that the Internal Revenue Service violated plaintiff's due process rights, embodied in the Fifth Amendment of the Constitution, when the agency wrongfully reassigned him to the position of Internal Revenue Agent. Plaintiff asserts that he had a reasonable expectation in the continuation of his career as a law enforcement officer. Therefore, plaintiff concludes that the failure of the agency to base its decision on substantial evidence or to provide him with specific written findings constitutes a violation of his Fifth Amendment due process rights. Plaintiff requests this Court to enjoin defendants from reassigning him, to expunge all references to his reassignment from his personnel file, and finally to restore any benefits or wages that plaintiff may have lost during the course of these proceedings.
In response to this complaint, defendants contend that this Court lacks the requisite subject matter jurisdiction to determine the validity of plaintiff's claims and that the complaint fails to state a cause of action upon which relief can be granted. Defendants argue that plaintiff does not have jurisdiction under 28 U.S.C. §§ 1331 and 1361 or 5 U.S.C. § 704. Therefore defendants ask this Court to grant its motion for dismissal or in the alternative for summary judgment.
In its motion, it is the defendants' first contention that the decision of the Eighth Circuit in Grasso v. Internal Revenue Service, 657 F.2d 224 (8th Cir. 1981) disposes of the issues before this Court, presented by plaintiff's complaint. In its opinion the Eighth Circuit upheld the decision of the Merit Systems Protection Board not to exercise jurisdiction over plaintiff's claim. The Board determined that it did not have the necessary jurisdiction to review plaintiff's reassignment because plaintiff's transfer did not entail a reduction in pay under 5 U.S.C. § 7512. The Eighth Circuit concluded that the Board's decision was not without rational basis and therefore should be affirmed.[1]
It is the contention of the defendants in this motion that the holding of the Eighth Circuit that plaintiff was precluded from appealing to the board, is controlling, because only those adverse employment decisions which are appealable to the Merit Systems Protection Board and result in a board order or decision are subject to judicial review. In its motion, defendants assert that this Court lacks the necessary subject matter jurisdiction to determine this matter because Congress intended to preclude judicial review of employment decisions not found in 5 U.S.C. § 7512 when it enacted the Civil Service Reform Act.
It is well settled that a court is obligated to exercise jurisdiction over a suit brought pursuant to the Constitution or laws of the United States unless the alleged claim is made "solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous." Bell v. Hood, 327 U.S. 678, 682-83, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946). Therefore, jurisdiction exists under 28 U.S.C. § 1331 because the plaintiff alleges federal claims that are not patently frivolous. The federal claims arise under the Administrative *312 Procedure Act and the Constitution. In addition, the plaintiff invokes the jurisdiction of this court pursuant to the Mandamus Act, 28 U.S.C. § 1361, which requires the existence of a federal question, and therefore does not provide an independent basis of jurisdiction. Therefore, the contention of the defendants that this court lacks the requisite subject matter jurisdiction to consider plaintiff's cause of action must be rejected. However, the question whether the complaint states a cause of action under the Constitution or the Administrative Procedure Act presents an issue of law, which must be decided by this court, after the assumption of jurisdiction.
The Administrative Procedure Act provides for judicial review of agency action which is reviewable by statute and which is final, 5 U.S.C. § 704, except to the extent that a statute "precludes judicial review" or the action of the agency "is committed to agency discretion by law." 5 U.S.C. § 701. As a rule, courts should restrict access to judicial review only if there is clear and convincing evidence that Congress intended this result. Dunlop v. Bachowski, 421 U.S. 560, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975); Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). The Supreme Court has held that the mere fact that a statutory scheme calls for the exercise of judicial review of certain acts does not support the implication that other acts are excluded from judicial review. Abbott Laboratories v. Gardner, supra. Nonetheless, a number of courts have held that the reassignment of a civil service agent to a different position or location is not subject to judicial review. Bullard v. Webster, 623 F.2d 1042 (5th Cir. 1980); Spinks v. United Postal Service, 621 F.2d 987 (9th Cir. 1980); Kletschka v. Driver, 411 F.2d 436 (2d Cir. 1969); Coyne v. Boyett, 490 F.Supp. 292 (S.D.N.Y. 1980); Bramley v. Webster, 476 F.Supp. 351 (E.D.Pa.1979). However, the basis for these holdings is the conclusion that the decision to transfer an employee is committed solely to agency discretion. Acts that are solely within the discretion of an agency are not reviewable by the courts under the Administrative Procedure Act, 5 U.S.C. § 704. Applying this reasoning to the facts of this case, it must be concluded that the decision of the Internal Revenue Service to transfer the plaintiff was an action committed to agency discretion. Therefore review for arbitrariness is precluded pursuant to 5 U.S.C. § 701 and plaintiff's complaint fails to state a claim under the Administrative Procedure Act.
The remaining issue to be resolved is whether the complaint states a claim upon which relief may be granted under the Constitution of the United States. In Count II, the plaintiff alleges that he had a reasonable expectation in the continuation of his career as a law enforcement official. Therefore, the plaintiff alleges that the Internal Revenue Service violated the due process clause by failing to base its decision to transfer him on substantial evidence. In light of the statutory scheme adopted by Congress when it enacted the Civil Service Reform Act, this court must conclude that plaintiff has no claim because he lacks a liberty or property interest protected by the due process clause.
Under the statutory scheme of the Civil Service Reform Act, an employee gains the right to appeal certain adverse employment decisions to the Merit Protection Board. 5 U.S.C. § 7701. However, only certain agency actions give rise to a right of appeal. Section 7512 sets forth the only actions which call for this right of appeal. The actions include: a removal, a suspension for more than fourteen days, a reduction in grade or pay; and a furlough of thirty days or less. Pursuant to 5 U.S.C. § 7513, the acts over which the Merit Systems Protection Board has jurisdiction are the same as the acts that an agency may take only "for cause." Section 7513 provides explicitly that "an agency may take an action covered by this subchapter against an employee only for such cause as will promote the efficiency of the service." By determining that a loss of retirement benefits did not constitute a reduction in pay and that the Merit Systems Protection Board did not *313 have jurisdiction to consider plaintiff's transfer, the Eighth Court opinion establishes, therefore, that the Internal Revenue Service had unfettered discretion to transfer the plaintiff for any reason whatsoever. Grasso v. Internal Revenue Service, 657 F.2d 224 (8th Cir. 1981). Plaintiff is collaterally estopped from contesting this proposition. The civil service statutes do not give the plaintiff any legitimate "claim of entitlement," Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976). If the Internal Revenue Service were permitted to transfer the plaintiff only "for cause" due process would be implicated. Arnett v. Kennedy, 416 U.S. 134, 151, 94 S.Ct. 1633, 1642, 40 L.Ed.2d 15 (1977).[2] But here, since a job transfer, unlike a firing, may be accomplished for any reason at all, due process is not implicated. Bishop v. Wood, supra.
In principle, a party may base a due process claim on grounds other than statutory entitlement, but no such grounds appear here. The Internal Revenue Service regulations the plaintiff cites are purely procedural so they do not create a property interest protected by the due process clause.[3] The loss plaintiff suffered is not intrinsically a "liberty" interest as that concept has been defined by the Supreme Court. Roth v. Board of Regents of State Colleges, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Finally, the conclusory allegation that the plaintiff has a "reasonable expectation" in the continuation of his career as a law enforcement officer is insufficient. Id. The mere fact that the plaintiff enjoys civil service protection against major sanctions simply does not entitle him to due process protection against these sanctions.
It is the conclusion of this court that plaintiff's interest is not a liberty or property interest protected by the Constitution. Therefore, plaintiff's complaint fails to state a claim under the Administrative Procedure Act or the Constitution. In light of the fact that it has been unnecessary to consider matters outside of the pleadings in order to come to this conclusion defendants' motion shall be construed as a motion to dismiss.
Accordingly, the motion of the defendants to dismiss plaintiff's complaint for failure to state a claim upon which relief may be granted shall be sustained.
NOTES
[1] Congress enacted the Civil Service Reform Act in 1948. Section 7701 of the Act permits a civil service employee to appeal certain adverse employment decisions to the Merit Systems Protection Board. However 5 U.S.C. § 7512 sets forth the only actions against employees that will give rise to a right of appeal to the Board. The actions include: a removal; a suspension for more than 14 days; a reduction in grade; a reduction in pay; and a furlough of 30 days or less. Section 7703 of the Act then allows an employee to obtain judicial review of a "final order or decision of the Merit Systems Protection Board" by filing an appeal with a United States Court of Appeals. The decision of the Eighth Circuit was limited to the determination that the Merit Systems Protection Board was correct as a matter of law in its conclusion that the loss of the retirement benefits did not constitute a reduction in pay and therefore it did not have the power to exercise jurisdiction over plaintiff's claim.
[2] In Arnett v. Kennedy, the Supreme Court held that the appellee did have a statutory expectancy that he would not be removed other than for such cause that would promote the efficiency of the Service. The Court therefore concluded that the due process considerations were implicated. However, Arnett v. Kennedy involved a discharge and not a transfer to another position. 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15.
[3] There is a diversity of views over whether an agency's violations of its own regulations infringes due process, Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1956), or merely calls for the application of the abuse of discretion standard, United States v. Caceres, 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1978); Morton v. Ruiz, 415 U.S. 199, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974). However, under either view the above analysis disposes of plaintiff's claims.
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
MARGARET ELAINE RAND, )
)
Plaintiff, )
)
v. ) Civil Action No. 08-0703 (PLF)
)
TIMOTHY F. GEITHNER, )
Secretary of the Treasury, )
)
1
Defendant. )
__________________________________________)
OPINION
Plaintiff Margaret Elaine Rand brought this employment discrimination and
retaliation suit against her former employer, the United States Department of the Treasury. The
Court previously dismissed plaintiff’s failure to accommodate claim for lack of subject matter
jurisdiction and entered judgment in defendant’s favor on plaintiff’s unlawful discharge claim.
See Rand v. Geithner, 609 F. Supp. 2d 97 (D.D.C. 2009). Ms. Rand’s remaining claims are that
the Treasury Department retaliated against her in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. §§ 2000e et seq., and that the Merit Systems Protection Board’s
(“MSPB”) decision at the administrative level was arbitrary and capricious.
The defendant has moved for summary judgment on the grounds that it had
legitimate, non-retaliatory reasons for Ms. Rand’s removal, that Ms. Rand failed to produce
evidence that these reasons are a pretext for retaliation, and that the MSPB’s decision upholding
1
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the Court
substitutes as the defendant the current Secretary of the Treasury, Timothy Geithner, for
former Secretary Henry Paulson.
plaintiff’s removal was not arbitrary, capricious, or otherwise in derogation of the law and
therefore should be upheld. Upon careful consideration of the parties’ papers, the entire record in
the case, and the relevant statutes and case law, the Court will grant defendant’s motion.2
I. BACKGROUND
At all times relevant to her complaint, plaintiff Margaret Elaine Rand worked for
the Department of the Treasury. See Def. SMF ¶ 1. On June 28, 2006, plaintiff filed a request
for an accommodation, stating that “[b]ecause of the anxiety caused by [a] supervisor who
discriminates against me by watching every single minute of my day, and accusing me of not
being at my desk when I am, I can no longer perform the duties of a regular, capable, employee.”
Mot., Ex. C at 3 (plaintiff’s request for reasonable accommodation). She requested a transfer to
another position in the Department. See id. at 3-4. Plaintiff left work after a July 3, 2006 “panic
attack” and never returned to her job after that date. See Def. SMF ¶ 23. On July 6, 2006,
plaintiff filed an EEO complaint against Martin Melone and James Sullivan. See id. ¶ 24. Her
complaint alleged the creation of a hostile work environment, harassment based on her sex
(female), age (62), and race (Caucasian), and reprisal for prior EEO activity. See id.
On August 1, 2006, plaintiff’s supervisor, James Sullivan, denied her request for
accommodation on the ground that she had not established that she was a qualified individual
with a disability. See Def. SMF ¶ 25. On September 25, 2006, Mr. Sullivan sent plaintiff a
2
The papers submitted in connection with this motion include: Defendant’s Motion
for Summary Judgment (“Mot.”); Defendant’s Memorandum of Points and Authorities in
Support of Defendant’s Motion for Summary Judgment (“Memo.”); Plaintiff’s Opposition to
Defendant’s Motion for Summary Judgment (“Opp.”); Defendant’s Reply to Plaintiff’s
Opposition to Defendant’s Motion for Summary Judgment (“Rep.”); Defendant’s Statement of
Material Facts Not in Genuine Dispute (“Def. SMF”); and Plaintiff’s Response to Defendant’s
Statement of Material Facts Not in Genuine Dispute (“Pl. SMF”).
2
letter notifying her that she had exhausted her annual and sick leave since her departure on July
5, 2006, and instructing her to return to work by October 2, 2006. See id. ¶ 28. On October 2,
2006, plaintiff submitted a Family and Medical Leave Act (“FMLA”) certification signed by her
psychiatrist. See id. ¶ 29. Plaintiff’s supervisors approved her FMLA certification and granted
her leave until December 29, 2006. See id. ¶ 31.
On December 18, 2006, Mr. Sullivan again wrote to Ms. Rand, instructing her to
return to work by January 2, 2007. See Def. SMF ¶ 32. Plaintiff did not return to work, and on
January 25, 2007, her supervisor proposed her removal. See id. ¶¶ 32, 37. On February 12,
2007, plaintiff sought reconsideration of the August 1, 2006, denial of her request for reasonable
accommodation. See Def. SMF ¶ 38; Pl. SMF ¶ 38. Defendant did not agree to plaintiff’s
request and, rather than be removed, plaintiff retired on February 28, 2007. See Def. SMF ¶ 40.
Plaintiff filed an appeal of her removal with the Merit Systems Protection Board, and the MSPB
affirmed defendant’s decision on October 4, 2007. See id. ¶¶ 41-42. Plaintiff then appealed the
MSPB’s decision with respect to her Title VII and Rehabilitation Act claims to the Equal
Employment Opportunity Commission (“EEOC”). See Rand v. Paulson, Petition No.
0320080034, 2008 WL 957758 at *1 (E.E.O.C. March 27, 2008). The EEOC upheld the
decision of the MSPB. Id. at *2.
On April 24, 2008, plaintiff filed suit in this Court alleging disability
discrimination as well as retaliation for engaging in protected activity under Title VII, the
Rehabilitation Act, 29 U.S.C. §§ 701, et seq., and under the Civil Service Reform Act of 1978,
Pub. L. No. 94-454, 92 Stat. 1111 (codified as amended in scattered sections of Title 5 of the
United States Code). Plaintiff alleges that she was forced to retire from her position at the
3
Department of the Treasury after the Department initiated her removal in January 2007. See Pl.
SMF ¶ 40. She claims that the decision to remove her was retaliation for her prior protected
Equal Employment Opportunity (“EEO”) activities. See Complaint (“Comp.”) ¶ 5. Defendant
moved to dismiss plaintiff’s claim or, in the alternative, for summary judgment on the
Rehabilitation Act claim only. On March 31, 2009, this Court dismissed plaintiff’s failure to
accommodate claim for lack of subject matter jurisdiction and entered judgment in defendant’s
favor on plaintiff’s unlawful discharge claim. See Rand v. Geithner, 609 F. Supp. 2d 97 (D.D.C.
2009). Now that discovery has concluded, defendant moves for summary judgment on plaintiff’s
remaining claims.
II. STANDARD OF REVIEW
Summary judgment should be rendered if “the pleadings, the discovery and
disclosure materials on file, and any affidavits [or declarations] show that there is no genuine
issue as to any material fact and that the movant is entitled to judgment as a matter of law.” FED .
R. CIV . P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986);
Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). “A fact is ‘material’ if a dispute over it
might affect the outcome of a suit under the governing law; factual disputes that are ‘irrelevant or
unnecessary’ do not affect the summary judgment determination.” Holcomb v. Powell, 433 F.3d
at 895 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 248).
An issue is “genuine” if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Anderson v.
Liberty Lobby, Inc., 477 U.S. at 248; Holcomb v. Powell, 433 F.3d at 895. When a motion for
4
summary judgment is under consideration, “the evidence of the non-movant is to be believed,
and all justifiable inferences are to be drawn in [her] favor.” Anderson v. Liberty Lobby, Inc.,
477 U.S. at 255; see also Mastro v. Potomac Electric Power Co., 447 F.3d 843, 850 (D.C. Cir.
2006); Aka v. Washington Hospital Center, 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc);
Washington Post Co. v. U.S. Dep't of Health and Human Services, 865 F.2d 320, 325 (D.C. Cir.
1989). On a motion for summary judgment, the Court must “eschew making credibility
determinations or weighing the evidence.” Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir.
2007).
The nonmoving party’s opposition, however, must consist of more than mere
unsupported allegations or denials and must be supported by affidavits, declarations, or other
competent evidence, setting forth specific facts showing that there is a genuine issue for trial.
FED . R. CIV . P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). She is required to
provide evidence that would permit a reasonable jury to find in her favor. Laningham v. United
States Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the nonmovant’s evidence is “merely
colorable” or “not significantly probative,” summary judgment may be granted. Anderson v.
Liberty Lobby, Inc., 477 U.S. at 249-50; see Scott v. Harris, 550 U.S. at 380 (“[W]here the record
taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is
‘no genuine issue for trial.’”) (quoting Matsushita Electric Industrial Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986)). To defeat a motion for summary judgment, a plaintiff must have
more than “a scintilla of evidence to support [her] claims.” Freedman v. MCI
Telecommunications Corp., 255 F.3d 840, 845 (D.C. Cir. 2001).
5
III. PLAINTIFF’S RETALIATION CLAIM
A. Legal Framework
Title VII provides, in pertinent part, that “[a]ll personnel actions affecting
employees or applicants for employment . . . in executive agencies . . . shall be made free from
any discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16.
It is unlawful for an employer “to fail or refuse to hire or to discharge any individual, or
otherwise discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s race, color, religion, sex,
or national origin.” 42 U.S.C. § 2000e-2(a)(1). Title VII also makes it unlawful for an employer
to retaliate against an employee for engaging in protected activity such as filing a charge of
discrimination. See 42 U.S.C. § 2000e-3(a); see also Holcomb v. Powell, 433 F.3d at 901.
Absent direct evidence that an employment-related decision was discriminatory or
retaliatory, the claims must be analyzed under the burden-shifting framework of McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See Jones v. Bernanke, 557 F.3d 670, 678 (D.C.
Cir. 2009); Baloch v. Kempthorne, 550 F.3d 1191, 1197, 1200 (D.C. Cir. 2008); Koch v.
Schapiro, 697 F. Supp. 2d 65, 69 (D.D.C. 2010). Traditionally, within that framework, a plaintiff
must first establish a prima facie case of retaliation or discrimination. See Koch v. Schapiro, 697
F. Supp. 2d at 69; Moncada v. Peters, 579 F. Supp. 2d 46, 53 (D.D.C. 2008) (citing Teneyck v.
Omni Shoreham Hotel, 365 F.3d 1139, 1149 (D.C. Cir. 2004)). “Doing so creates a rebuttable
presumption of discrimination [or retaliation] and ‘triggers the employer’s burden to produce
admissible evidence that, if believed, would establish that the employer’s action was motivated
6
by a legitimate, nondiscriminatory [or non-retaliatory] reason.’” Moncada v. Peters, 579 F. Supp.
2d at 53 (quoting Teneyck v. Omni Shoreham Hotel, 365 F.3d at 1151).
It is now established, however, that a “district court need not – and should not –
decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas” at
the summary judgment stage if the plaintiff “has suffered an adverse employment action, and [the
defendant] has asserted a legitimate, non-discriminatory reason for the decision.” Brady v.
Office of the Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008) (emphasis in original). In
these circumstances,
the district court must resolve one central question: Has the
employee produced sufficient evidence for a reasonable jury to find
that the employer’s asserted non-discriminatory reason was not the
actual reason and that the employer intentionally discriminated
against the employee on the basis of [any statutorily prohibited
factors]?
Id. This framework for analysis under Brady “appl[ies] equally to retaliation claims” as it does to
discrimination claims. Jones v. Bernanke, 557 F.3d at 678.
Plaintiff argues that she had a “steady course of protected activity under the
Rehabilitation Act and Title VII from at least June 28, 2006, through January 2007.” See Opp. at
3. Ms. Rand’s protected activity consists of filing one EEO complaint every year beginning in
2002 and ending in 2006 with her final complaint against Messrs. Melone and Sullivan, as well
as her request for accommodation filed on June 28, 2006. See Def. SMF ¶¶ 17, 24; Memo. at 17.
While the Treasury Department acknowledges that plaintiff engaged in protected EEO activity,
see Memo. at 2-3, 17, it nonetheless argues that it had a legitimate, non-retaliatory reason for
initiating Ms. Rand’s removal, namely that Ms. Rand did not report to work for approximately
7
seven months and refused to return even when informed by her supervisors that she had
exhausted all of her leave. See id. at 18-19.
The Court must determine whether the undisputed facts show that defendant’s
stated reason for initiating plaintiff’s removal was in fact the reason and not pretext for
retaliation. Plaintiff raises two arguments in support of her assertion that defendant’s stated
reason for initiating her removal is pretext: (1) that defendant refused to temporarily reassign
plaintiff when she requested to be moved to a different position reporting to different
supervisors; and (2) in a reply to an e-mail from plaintiff’s former second-line supervisor about
initiating plaintiff’s removal, plaintiff’s former first-line supervisor said that he “[w]ouldn’t miss
it for the world.” See Opp., Ex. 4 (series of e-mails between plaintiff’s supervisors and other
Treasury Department officials discussing her removal). The Court will address both of these
contentions and explain why they do not establish a genuine issue of material fact that would
qualify this case for trial.
B. Plaintiff’s Reassignment Request
Plaintiff argues that the failure to reassign her shows pretext because her doctor
had informed the agency that she could return to work if the agency reassigned plaintiff to a
different position. See Pl. SMF ¶¶ 28, 32. Plaintiff also alleges that her supervisor “reneged on
his agreement to allow plaintiff to go on a detail to another office where she could have
functioned satisfactorily.” Opp. at 6-7. To be clear, plaintiff does not argue that the failure to
reassign her was the retaliatory action; rather, plaintiff seems to be claiming that the refusal to
8
reassign her is evidence of pretext in plaintiff’s removal, which is the alleged retaliatory action.
See Opp. at 6.
In the decision granting summary judgment for defendant on plaintiff’s unlawful
discharge claim, this Court concluded that plaintiff was not entitled to an accommodation under
the Rehabilitation Act because she was not disabled within the meaning of the Act. See Rand v.
Geithner, 609 F. Supp. 2d at 104. As a result, plaintiff’s former supervisors had no legal duty to
reassign her under the Act. The failure to do so, therefore, creates no genuine issue of material
fact with regard to the agency’s stated reason for initiating her termination.
C. Termination E-mail
In support of her argument regarding pretext, plaintiff also cites an e-mail by her
first-line supervisor, James Sullivan, responding to an e-mail from her second-line supervisor,
Martin Melone, instructing Mr. Sullivan to initiate plaintiff’s removal. See Opp., Ex. 4 (series of
e-mails between plaintiff’s supervisors and other agency officials discussing her removal). In his
reply, Mr. Sullivan writes that he “wouldn’t miss it [plaintiff’s removal] for the world.” Id. This
e-mail, even when viewed in a light most favorable to the plaintiff, does not establish a genuine
issue of material fact with regard to defendant’s stated reason for initiating plaintiff’s removal.
At most, the e-mail shows that Mr. Sullivan had a personal dislike for Ms. Rand; it does not
show retaliatory animus. See, e.g., Armstrong v. Jackson, Civil Action. No. 05-0075, 2006 U.S.
Dist. LEXIS 48149 at *29 n.3 (D.D.C. July 17, 2006) (“The Court notes that plaintiff’s assertion
that [the director] called her ‘bitter’ and said that ‘the negative things people say about [plaintiff
are] true’ does not warrant a contrary conclusion [to the Court granting summary judgment in
9
favor of defendant]. At best, those statements illustrate only a personal dislike, not
discriminatory [or retaliatory] animus.”).
Given Ms. Rand’s absence from the workplace for seven months, it is not
surprising and not probative of retaliatory intent that Mr. Sullivan would express relief at the
prospect of finalizing her termination. Because the defendant has asserted a legitimate, non-
retaliatory, and non-pretextual reason for plaintiff’s removal, there is no evidence of retaliation
and the Court therefore grants summary judgment for defendant on the plaintiff’s remaining Title
VII claim.
IV. PLAINTIFF’S CLAIM FOR JUDICIAL REVIEW OF THE MSPB’S DECISION
Because the Court has already disposed of plaintiff’s Title VII claims, see supra
Part III, all that is left to review are the non-Title VII component’s of plaintiff’s mixed case
before the MSPB. In a so-called “mixed case” — that is, one in which “an adverse personnel
action subject to appeal to the MSPB [is] coupled with a claim that the action was motivated by
discrimination,” Butler v. West, 164 F.3d 634, 638 (D.C. Cir. 1999) (citations omitted); see also
29 C.F.R. § 1614.302(a) — the Court conducts a de novo review of the Title VII claims but must
review the non-Title VII claims exclusively on the administrative record. See Butler v. West,
164 F.3d at 638-39 n.10; Barnes v. Small, 840 F.2d 972, 979 (D.C. Cir. 1988); Osborne v.
Eisner, 696 F. Supp. 2d 73, 76 (D.D.C. 2010); Harley v. Dalton, 896 F. Supp. 29, 31 n.2 (D.D.C.
1995). Therefore, in considering a plaintiff’s non-Title VII claims, “[a] district court may set
aside the administrative adjudication only if it is arbitrary or capricious, obtained without
compliance with lawful procedures, unsupported by substantive evidence or otherwise not in
10
accordance with law.” Barnes v. Small, 840 F.2d at 979; see 5 U.S.C. § 7703(c). In order “[t]o
show that the MSPB’s decision is not arbitrary and capricious, defendant needs only to show that
the decision has ‘a rational basis in the law.’” Hanna v. Herman, 121 F. Supp. 2d 113, 121
(D.D.C. 2000) (quoting Wilder v. Prokop, 846 F.2d 613, 620 (10th Cir. 1988)). Furthermore, the
Court must uphold the MSPB’s decision if it is supported by “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Id. (internal citations
omitted).
Plaintiff argues that the decision of the Merit Systems Protection Board and its
Administrative Law Judge (“ALJ”), who affirmed the Treasury Department’s decision to remove
plaintiff, was “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with
law and unsupported by substantial evidence.” Comp. ¶ 8. Plaintiff supports her argument that
the ALJ’s decision is not based on substantial evidence by stating that “[t]he Administrative
[Law] Judge did not give proper consideration to plaintiff’s reprisal argument, ignored the
agency’s promises to reassign plaintiff and ignored relevant authority.” See Opp. at 7. Plaintiff
also disputes the MSPB’s finding that the agency’s action (plaintiff’s removal) promoted the
efficiency of the federal service, arguing that it “does not promote the efficiency of the [federal]
service to remove a career employee instead of reassigning her . . . .” and that she “was ready and
willing to work in another unit of the agency.” Id. at 8. Plaintiff again asserts that the agency
had “agreed” to reassign her and that she had found two alternate assignments that her
supervisors did not “allow her to accept.” Id.
Because the Court has addressed plaintiff’s Title VII claims earlier in this opinion
and her Rehabilitation Act claims in its previous opinion in this case, see Rand v. Geithner,
11
609 F. Supp. 2d 97 (D.D.C. 2009), the only MSPB findings to review for arbitrariness and
capriciousness are the ALJ’s conclusions about “the appropriateness of the penalty” and that
plaintiff’s removal “promoted the efficiency of the [federal] service.” Administrative Record at
29-30 (Initial Decision of the United States Merit Systems Protection Board, Washington
Regional Office, in Rand v. Department of Treasury) (“MSPB Decision”) (internal citation
omitted).
In the decision on plaintiff’s claim, the ALJ stated that “[a]n adverse action
promotes the efficiency of the [federal] service when the basis for the action either relates to the
employee’s ability to accomplish her duties satisfactorily or to some other legitimate government
interest.” MSPB Decision at 29. The ALJ also noted that plaintiff was away from her workplace
for a period of seven months, during which time, according to plaintiff’s supervisors there was a
need to fill her position with an employee who was available to work full time. See id. at 13-14.
Plaintiff’s supervisors stated that they could not fill her position while she was absent. See id. at
15. Plaintiff herself said that she could not, and would not, return to her position because of her
medical condition. See id. at 28. There was also evidence before the ALJ that the agency had no
available positions for which plaintiff was qualified to which it could assign her. See id. at 27. It
was neither arbitrary nor capricious, therefore, for the ALJ to find “that the agency had no duty to
retain the appellant once it had established that she was unable to perform the duties of her
position and it had no other available positions for which she was qualified to which it could
assign her.” Id. at 28.
12
In addition, there was substantive evidence before the ALJ to support the decision
that removal was an appropriate penalty for plaintiff’s failure to report to work for seven months.
The role of the MSPB in reviewing a penalty is to “ensure that the agency considered relevant
factors and assessed a penalty that is within the limits of reasonableness.” MSPB Decision at 29.
Plaintiff did not provide any evidence to the MSPB showing that she could perform the essential
functions of her position. Id. at 30. In addition, as noted, there is no evidence in the record that
the agency had any vacant positions to which it could have reassigned plaintiff. Id. There is
ample relevant evidence to support the MSPB’s conclusion that removal was an appropriate
penalty.
V. CONCLUSION
For the foregoing reasons, the Court will grant summary judgment for the
defendant. An Order consistent with this Opinion will be issued this same day.
/s/________________________________
PAUL L. FRIEDMAN
United States District Judge
DATE: August 11, 2010
13
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477 F.3d 439
Noe Dolores GARCIA-FLORES, Petitioner,v.Alberto GONZALES, Attorney General of the United States, Respondent.
No. 05-3689.
United States Court of Appeals, Sixth Circuit.
Submitted: November 28, 2006.
Decided and Filed: February 23, 2007.
ON BRIEF: Nicoleta D. Wojnar, Wojnar & Associates, Cleveland, Ohio, for Petitioner. John A. Nolet, United States Department of Justice, Washington, D.C., for Respondent.
Before MARTIN and GUY, Circuit Judges; ROSE, District Judge.*
OPINION
BOYCE F. MARTIN, JR., Circuit Judge.
1
Petitioner Noe Dolores Garcia-Flores entered the United States from Mexico in 1996 without inspection. He was arrested by the Immigration and Naturalization Service in 1999 and served with a notice to appear, which charged that he was subject to removal and notified him of removal proceedings. On the same day, he was conditionally released on his own recognizance, after agreeing to report for any hearing or interview as directed, to report to an INS officer every month, and not to change his place of residence without written permission from the INS officer.
2
In July of 2000, the Immigration Court mailed Garcia-Flores a second notice to appear, advising him that his case was set for a hearing on May 11, 2001. Garcia-Flores did not appear at the hearing, and now claims that he never received the notice. The immigration judge conducted the hearing in absentia pursuant to 8 U.S.C. § 1229a(b), and ordered Garcia-Flores removed to Mexico based on his failure to appear.
3
In August of 2004, Garcia-Flores learned of the in absentia order, and filed a motion to reopen the deportation proceedings and to request a stay of deportation, based on his contention that he had never received the notice. The motion was denied by the immigration judge, who found that Garcia-Flores was properly served with the initial notice to appear, and that he could not establish that he did not receive the second notice regarding the hearing date, due in part to his failure to file an affidavit stating as much. This decision was affirmed by the Board of Immigration Appeals on May 12, 2005, and Garcia-Flores now seeks review of that decision by this Court.
4
On July 11, 2005 — after the BIA decision — Garcia-Flores was served with a notice to report for removal to Mexico. He failed to report as directed.1 A year later, in July of 2006, he was taken into custody by Immigration and Customs Enforcement Officers. As a result of Garcia-Flores's failure to report for removal during the pendency of his appeals, the government now moves to dismiss the appeal based on the fugitive-disentitlement doctrine.
5
"Pursuant to th[e] doctrine of fugitive disentitlement, we have dismissed the direct appeals of defendants who fled the jurisdiction during an appeal and remained at large." United States v. Lanier, 123 F.3d 945, 946 (6th Cir.1997). The Supreme Court has cautioned the Courts of Appeals that fugitive disentitlement is not appropriate in cases where there is no connection between the fugitive status and the appellate process. Ortega-Rodriguez v. United States, 507 U.S. 234, 249, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993) ("Absent some connection between a defendant's fugitive status and his appeal, as provided when a defendant is at large during `the ongoing appellate process,' the justifications advanced for dismissal of fugitives' pending appeals generally will not apply."). Despite these limitations, Ortega-Rodriguez also recognized that "dismissal by an appellate court after a defendant has fled its jurisdiction [as opposed to that of the district court] serves an important deterrent function and advances an interest in efficient, dignified appellate practice." Id. at 242, 113 S.Ct. 1199.
6
The Seventh Circuit has aptly explained the application of this rationale in the context of an appeal from an unfavorable order of an immigration court:
7
Litigation entails reciprocal obligations: an appellant (or petitioner) who demands that the United States respect a favorable outcome must ensure that an adverse decision also can be carried out. When an alien fails to report for custody, this sets up the situation that Antonio-Martinez [v. INS] called "heads I win, tails you'll never find me." 317 F.3d [1089,] 1093 [(9th Cir.2003)]. A litigant whose disappearance makes an adverse judgment difficult if not impossible to enforce cannot expect favorable action. We observed in Sarlund v. Anderson, 205 F.3d 973 (7th Cir.2000), that after Degen [v. United States, 517 U.S. 820, 116 S.Ct. 1777, 135 L.Ed.2d 102 (1996),] a practical question dominates: has flight made the litigation a one-way street? Someone who cannot be bound by a loss has warped the outcome in a way prejudicial to the other side; the best solution is to dismiss the proceeding. That proposition is as applicable to the fugitive alien as it is to the fugitive criminal defendant (or, in Sarlund, the fugitive civil plaintiff).
8
Sapoundjiev v. Ashcroft, 376 F.3d 727, 729 (7th Cir.2004). This Court has also held in an unpublished opinion that the fugitive disentitlement doctrine "extends to appeals from the Board of Immigration Appeals when an alien fails to surrender despite a lawful order of deportation." Kacaj v. Gonzales, 163 Fed.Appx. 367, 368 (6th Cir.2006).
9
Here, Garcia-Flores received a final order from the BIA on May 12, 2005, and filed his appeal with this Court on June 8, 2005. He was required to report for removal on July 11, 2005, but instead remained at large. This conduct evinces an intent to avail himself of the "heads I win, tails you'll never find me" approach, even if his subsequent arrest foiled the effort. Because Garcia-Flores failed to report despite a lawful order requiring him to do so while he was subject to the jurisdiction of this Court, his appeal is dismissed pursuant to the fugitive disentitlement doctrine.
Notes:
*
The Honorable Thomas M. Rose, United States District Judge for the Southern District of Ohio, sitting by designation
1
If Garcia-Flores had reported for deportation, we would still have retained Article III jurisdiction to hear his appeal, even though he would already have been removed to MexicoSee Santana-Albarran v. Ashcroft, 393 F.3d 699, 701 n. 1 (6th Cir.2005) ("removal of an alien ... does not moot a pending appeal"). He would have continued to suffer an ongoing injury from the order of removal after his deportation because he would have been prevented from seeking re-entry for five years after his removal. See 8 U.S.C. § 1182(a)(9)(A)(i); Chong v. District Director, INS, 264 F.3d 378, 385 (3d Cir.2001); Max-George v. Reno, 205 F.3d 194, 196 (5th Cir. 2000).
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Court of Appeals
of the State of Georgia
ATLANTA,____________________
November 08, 2016
The Court of Appeals hereby passes the following order:
A17A0522. ELSIE BRIDGES v. AMERICAN HOMES 4 RENT PROPERTIES
EIGHT LLC.
On July 28, 2016, we granted defendant Elsie Bridges’ application for
discretionary review of the superior court’s dismissal of her appeal from the
magistrate court’s order issuing a writ of possession.1 Our July 28 order notified
Bridges that she had ten days from the date of the order to file a notice of appeal. See
OCGA § 5-6-35 (g). Sixty-two days later, on September 28, 2016, Bridges filed her
notice of appeal. We lack jurisdiction.
The timely filing of a notice of appeal is an absolute requirement to confer
jurisdiction on this Court. White v. White, 188 Ga. App. 556, 556 (373 SE2d 824)
(1988). Because Bridges failed to file her notice of appeal within ten days of our
order granting her application, her notice of appeal is untimely. Accordingly, this
appeal is hereby DISMISSED for lack of jurisdiction. See OCGA § 5-6-35 (g);
White, 188 Ga. App. at 557.
We note that Bridges is represented by attorney Grady A. Roberts, III, who has
represented numerous dispossessory clients before this Court and who is well aware
of the jurisdictional deadlines for filing appeals. In light of Roberts’ repeated prior
untimely filings in this Court, he cannot reasonably have been mistaken as to our
deadlines. Given that Georgia Rule of Professional Conduct 1.3 requires lawyers to
“act with reasonable diligence and promptness in representing a client,” we hereby
1
Bridges initially filed her application in the Supreme Court, which transferred
the case to this Court.
DIRECT the Clerk of Court to transmit a copy of this order to the Office of the
General Counsel of the State Bar of Georgia.
Court of Appeals of the State of Georgia
11/08/2016
Clerk’s Office, Atlanta,____________________
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.
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510 U.S. 1192
Manufacturera del Atlantico Ltda. et al.v.United States et al.; andManufacturera del Atlantico Ltda. et al.v.Manufacturers Hanover Trust Co. et al.
No. 93-1073.
Supreme Court of United States.
March 21, 1994.
1
Appeal from the C. A. 2d Cir.
2
Certiorari denied. Reported below: No. 93-1002 and Nos. 93-1018, 93-1019, 93-1020, 93-1061, and 93-1073 (first cases), 6 F. 3d 37.
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161 F.2d 992 (1947)
MILLER
v.
BURGER et ux.
No. 11480.
Circuit Court of Appeals, Ninth Circuit.
June 5, 1947.
John F. Sonnett, Asst. Atty. Gen., and James M. Carter, U. S. Atty., Ronald Walker and Charles H. Veale, Asst. U. S. Attys., all of Los Angeles, Cal. and Arthur C. Miller, of San Francisco, Cal. (J. Francis Hayden, Sp.Asst. to Atty. Gen., Hubert H. Margolies, and Leonard B. Zeisler, both of Washington, D. C., of counsel), for appellant.
W. H. Stammer, of Fresno, Cal., for appellees.
Clarence A. Linn, of San Francisco, Cal., for California State Fed. of Labor, amicus curiae.
Before STEPHENS, HEALY and BONE, Circuit Judges.
BONE, Circuit Judge.
This is an appeal from an order and final judgment of the district court reversing the decision of the Social Security Board[1] and directing that the Board recompute appellees' benefits under the Social Security Act by including as part of the total statutory wages, payments in the amount of $265.71 made to appellee, James F. Burger, by Rosenberg Bros. & Co. in 1940. The *993 decision of the Social Security Board reversed by the judgment of the lower court found that Burger's services in 1940 were in "agricultural labor" as defined in Section 209(l) (4) of the Social Security Act, 42 U.S.C.A. § 409(l) (4), and therefore were not includible as wages in determining Burger's benefits.
In November, 1940, James F. Burger and his wife, appellees herein, having attained the age of sixty-five, filed with the Bureau of Old Age and Survivors Insurance of the Social Security Board, applications for insurance benefits under Title II of the Social Security Act, as amended. James F. Burger applied for primary insurance benefits under Section 202(a), 42 U. S.C.A. 402(a), and his wife, Maude, for wife's insurance benefits under Section 202 (b), 42 U.S.C.A. 402(b).
The controversy here relates to the correctness of the exclusion from James F. Burger's total wages of certain payments in the first two quarters of 1940 for services rendered as an employee of Rosenberg Bros. & Co. The Bureau excluded these payments on the ground that they were for "agricultural labor" as defined in the Act, as amended, and consequently were not "wages" paid for "employment". The Bureau on March 15, 1941 awarded appellees monthly benefits lower than they would have been if the pay for services in 1940 had been counted as wages in covered employment.
On the record presented to the lower court under Section 205(g) of the Act, 42 U.S.C.A. § 405(g), appellant and appellees each moved for summary judgment under Rule 56(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. Being of the view (and we think correctly so) that on the record before him there was no genuine issue as to any material fact, the district judge held that the only issue for decision was one of law, i.e., whether or not, after January 1, 1940, Burger's work of emptying containers of dried fruit into hoppers of grading and processing machines at and in the packing plant of his employer was "agricultural labor" within the meaning of the Act, as amended. The judge wrote a lengthy and illuminating opinion disposing of the issue in the case which is reported in 66 F.Supp. 619 in which he held that the services performed for Rosenberg Bros. & Co. were not "agricultural labor" as defined in the Act, as amended.
Since we are in substantial accord with the legal conclusions reached by the lower court in disposing of the material and controlling issue in the case, it would serve no useful purpose to restate the facts at length or to enter upon an extensive discussion of the law of the case. For a more extended discussion reference is made to the reported opinion of the district court which in the main adequately presents these matters.
It is clear, from the record, that the conclusion of the Social Security Board ultimately rested upon the assumption that the services of an industrial worker (like Burger) were necessarily "agricultural labor" under the language of the Act. In our view of the matter, the lower court did not usurp nor transgress upon the functions of the Board in applying the statute, as thus construed, to admitted material and controlling facts. In so doing, it did not depart from the rule emphasized in the LaLone case (United States v. LaLone, 9 Cir., 152 F.2d 43, 45). As suggested in appellant's brief, "the Board had to construe the phrases `incident to the preparation of * * * fruits * * * for market' and `terminal market for distribution for consumption,' as explained in its own regulations".
Appellant further points out that it (the Appeals Council) "reached the conclusion that in the sense of the statute the services [of Burger] were incident to the preparation of fruits for market before delivery to a terminal market. It is immaterial that the underlying evidentiary facts were undisputed." [Emphasis supplied.] The argument is that this conclusion (of the Board) is not "manifestly unreasonable" and must be sustained. This on the theory that where an administrative agency is charged with applying general statutory language to a concrete factual situation, the courts will not disturb the conclusion reached.
*994 It will be noted that the terms quoted in the preceding paragraphs and which appellant says the Board "had to construe", did not originate in the regulations, but in the statute. It is not to be doubted that in the final analysis, statutory construction is a legal function, and if the Board (under the facts of this case) can construe the language of the Act, the courts can examine that construction and determine its validity or invalidity.[2]
Adverting to the LaLone case, supra, it appears that the widow of LaLone applied for child's insurance benefits on behalf of four infant children. The Board denied her application on the ground that her deceased husband was not an employee of his alleged employer, but was a partner or joint venturer with the said employer, and as such, not eligible to be classified as an employee under the Act. It is obvious that the Board confronted a situation where a fact determination had to be made a situation where clearly such a determination resting on substantial evidence, was conclusive. In the case at bar we are not faced by a controversy over the facts. In essence, the arguments in this case revolve around the meaning of the language of the Act itself and reflect the doubt engendered by its terminology. Here we are not forced to consider a holding of the lower court which, in effect, substitutes the judgment of that court, on a set of facts for the judgment of the Board thereon. The lower court did not reach a decision contrary to the facts found by the Appeals Council. We believe that the ultimate question presented to the lower court was one of law.
We agree with that court that under the admitted facts in this case, Rosenberg Bros. plant was a "terminal market" for the farmer producers who sold and delivered their dried fruit to that concern; that it was "the market" of such farmer producers, or to state it in another way, "the growers' market" since this commercial plant was the place where the farmer producer of dried fruit customarily parted with all of his economic interest in the fruit, its future form or destiny. The facts make abundantly clear that it was only after the farmer producer sold and delivered the fruit to Rosenberg Bros. that Burger's services (described in the opinion of the district court) were performed for that commercial concern. In this state of the record we regard his services as being performed after all "agricultural labor" in connection with such dried fruit had ceased. Accordingly, the questioned 1940 payments for Burger's services should be treated as "wages" within the coverage of the Act.
Certain observations of Judge McCormick in Latimer v. United States, D. C., 52 F.Supp. 228, 234, are persuasive in their logic as we contemplate the problem here presented. In commenting on the nature of this sort of an issue, that able judge had this to say: "a realistic approach to the social and economic security of employees in present-day large scale enterprises of all kinds requires that all doubt in construing remedial statutes providing unemployment insurance and old age protection and containing tax impositions should favor coverage rather than exemption. * * * Revenue raising is not the sole purpose in such legislation and the rule of strict construction in favor of the taxpayer is not applicable."
Speaking through Judge Stephens, this court made plain its views about some of the practical aspects of the problem we here confront. In North Whittier Heights Citrus Ass'n v. National Labor Relations Board, 9 Cir., 109 F.2d 76, 80 we discussed the nature and functions of commercial packing houses and gave full recognition to the principle that the nature of the work modified by the custom of doing it determines whether the worker is or is not an agricultural laborer. We pointed out that "when the product of the soil leaves the farmer, as such, and enters a factory for processing and marketing it has entered upon the status of `industry.' * * * *995 The packing house activity is much more than the mere treatment of the fruit. When it reaches the packing house it is then in the practical control of a great selling organization which accounts to the individual farmer under the terms of the statute law and its own by-laws." [Emphasis supplied.]
The emphasis is even greater in the case of wage earners employed in the Rosenberg plant since it was not (like the petitioner in the North Whittier case) a plant owned by an association of member fruit growers operating under corporate form. Rosenberg was a private business corporation organized under the laws of California to conduct a purely commercial operation in the business of buying from farmers and thereafter selling the purchased product for its private profit after processing it. All aspects of a "cooperative" venture are missing in the relations of the Rosenberg plant to its employees and the farmer producers from whom it purchased the fruit it processed in its plant.
While the findings of fact of the Social Security Board are supported by the evidence, we think its decision was incorrect when measured off against the language of the Act and the intent of Congress in adopting the 1939 amendment thereto. The district court was justified in reversing the decision of the Board, and the Summary Judgment of that court setting aside and reversing the decision, dated May 4, 1945, and directing the Board to recompute the benefits to which appellees are entitled under the Act, was proper.
The Summary Judgment is affirmed.
NOTES
[1] By order of a judge of this court dated January 13, 1947, Watson B. Miller, Federal Security Administrator, was substituted as appellant for all purposes, the functions of the Social Security Board and members thereof having been transferred to said Administrator under Reorganization Plan No. 2 of 1946, 5 U.S. C.A. § 133y 16 note. See Reorganization Act of 1945, 5 U.S.C.A. §§ 133y-133y 16. Title 42 U.S.C.A. §§ 901, 902, 903, 904.
[2] See Social Security Board v. Nierotko, 327 U.S. 358, 66 S.Ct. 637, 90 L.Ed. 718, 162 A.L.R. 1445, where the Supreme Court discusses the permissible limits of administrative interpretation. Such determinations must have a basis in law and be within the authority granted an administrative agency, and it may not determine the scope of its statutory power; that is a judicial function.
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35 So.3d 17 (2008)
CLINTON J. ROBERSON
v.
KATRINA L. ROBERSON.
No. 2070022.
Court of Civil Appeals of Alabama.
November 7, 2008.
Decision of the Alabama Court of Civil Appeal Without Published Opinion Affirmed.
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168 Cal.App.2d 314 (1959)
THE PEOPLE, Respondent,
v.
OTIS HOLLY HORNES et al., Appellants.
Crim. No. 6284.
California Court of Appeals. Second Dist., Div. One.
Mar. 2, 1959.
Sheldon Berlin, under appointment by the District Court of Appeal, Otis Holly Hornes and Bruce A. McCollin, in pro. per., for Appellants.
Edmund G. Brown, Attorney General, and William E. James, Assistant Attorney General, for Respondent.
WHITE, P. J.
The district attorney of Los Angeles County filed an information wherein defendants were accused of the crime of robbery while armed with a deadly weapon. It was also alleged that each defendant had suffered a prior conviction of robbery and had served a term of imprisonment therefor. Defendants pleaded not guilty. Trial by jury was duly waived and by stipulation the cause was submitted on the transcript of the preliminary examination with each side reserving the right to offer additional evidence. Defendants were adjudged guilty of robbery which the court found to be robbery of the first degree. No finding was made as to the prior conviction charged against each defendant. Their motions for new trial were denied and each was sentenced to state prison.
Defendant Hornes appeals from the judgment and order denying his motion for a new trial. Defendant McCollin appeals from the judgment and sentence. Since no appeal lies from the sentence as such (People v. Gallardo, 41 Cal.2d 57, 60 [257 P.2d 29]), the attempted appeal therefrom must be dismissed.
We regard the following as a fair epitome of the factual background surrounding this prosecution.
On the early morning of October 19, 1957, Edward Rollins was on duty as the attendant at a service station located on Florence Avenue, in the city of Los Angeles. At about 3 a. m. that morning, according to the testimony of Mr. Rollins, defendant McCollin, with his hand under his coat, approached the witness at the service station, and pointing to Mr. Rollins' automobile, said "Isn't that tire flat?" The witness testified, *317 "Well, I told him he was drunk, and I didn't pay any attention to him and by that time he walked up to me and threw his arm around my waist and told me to come and go with him." At that time the witness observed that defendant McCollin had a nickel plated revolver in his hands. Defendant McCollin then escorted Rollins across the street to a distance of approximately 100 yards from the station; Rollins testified that he went with him "because of the gun." As McCollin and Rollins moved away from the station Rollins noticed the defendant Hornes, who had followed McCollin into the station by approximately five feet, proceeding toward the booth where the cash register was kept.
McCollin held Rollins momentarily, and, after searching his person, told him to "make the block." Rollins went to San Pedro Street and Florence Avenue and called the police. This was at about 3:15 a. m. He then hurried back to the station, called the "day man" who was to relieve him, and checked the cash register. Approximately $190 was missing. When Rollins had left the station with McCollin the cash register was closed; when he returned, it was open. He was the only one working at the station and had given no one permission to open the register.
A radio car of the Los Angeles Police Department responded to Rollins' call. Officer Funk first observed the defendants walking together about two and one-half blocks from the service station, at about 3:20 a. m. The defendants were taken to the service station, and Rollins was asked if he could identify them. When asked about Hornes, Rollins replied, "I am not sure. I don't want to have any trouble. I have a wife and three kids." As to McCollin, he said, "Yes, I think that's the man." Later the same day at the police station Rollins positively identified the defendants. He testified he had never worn eyeglasses or had a restricted driver's license, and no one had talked to him about identifying the appellants.
Although defendants were apprehended within 45 minutes after the alleged robbery, the amount of money taken by the robbers or the weapon used were not found in the possession of defendants or in their automobile. Defendant McCollin had no money on his person and defendant Hornes had $40 in his possession.
Sworn as witnesses in their own behalf defendants testified they were together on the night and early morning of their arrest. That defendant Hornes called for defendant McCollin *318 at the latter's home, 1182 East 41st Street, about 9:30 p. m. They proceeded in Hornes' automobile to Watts to call on a girl friend of defendant McCollin's but she was not at home. They then proceeded to a club on 103rd Street, from which place they departed about 2:15 a. m. That while enroute to McCollin's home, they decided to call on a girl friend of defendant Hornes' who lived on 71st Street. That Hornes "... didn't remember the address, but he knew the house, and he walked down there. We found a place to park and got up and walked back towards the house where she was supposed to live." That, "We got to the corner and he (Hornes) couldn't remember the address, so we went around the corner and that was supposed to be the house--it was near San Pedro--and we didn't see a house--and we started turning around the corner, and at that point they (the officers) stopped us." When the defendants saw the police automobile they separated for the reason, "we was on parole and we violated our parole if we was together." Defendant McCollin first told the officers he had been walking up from Watts and that he had left his wallet at his cousin's house--both untrue statements and which he explained he made because of his fear of being charged with a parole violation if he was found in the company of his codefendant. Both defendants were gainfully employed and working at the time of their arrest. They denied any complicity in the robbery of Mr. Rollins, or that they were in possession of any weapon.
[1a] As their first ground for reversal appellants contend that "there is no substantial evidence to connect appellants to the robbery." They assail the testimony of the victim as to identification of appellants, pointing out claimed inconsistencies and uncertainties therein, saying, "However, with the aid of suggestive questions and instructions by People's counsel, Rollins did identify Appellant McCollin as the 'short man' and Appellant Hornes as the 'tall man' at the Preliminary Hearing; and there was evidence at the Preliminary Hearing and at the trial that Rollins, after failing to recognize Appellants at the service station, went to the police station with his manager and there identified Appellants as the 'robbers' upon seeing them standing, alone, behind a glass door." Appellants assert that in the light of the foregoing, the testimony of Mr. Rollins standing alone is insufficient to identify them and lacks any corroboration. [2] However, it is well settled that the testimony of a robbery victim if believed by the trier of facts, is sufficient of itself to warrant *319 a conviction, and that no corroborative evidence is required (People v. Thompson, 147 Cal.App.2d 543, 546, 547 [305 P.2d 274]). [3] Primarily, the identity of the accused as the perpetrator of a robbery is a question of fact for determination of the trial court. And appellants' argument that the testimony of the prosecuting witness was in some respects contradictory is not sufficient to warrant a reversal (People v. Hightower, 40 Cal.App.2d 102, 106 [104 P.2d 378]). [4] Unless the evidence of identification can be strictured as inherently improbable or incredible as a matter of law, the finding of the trial court or jury cannot be disturbed and an appellate tribunal cannot substitute its judgment for that of the court below (People v. McNeal, 123 Cal.App.2d 222, 224 [266 P.2d 529]). [5] In the case of People v. Addington, 43 Cal.App.2d 591, 593 [111 P.2d 356] wherein, at the preliminary examination, two identifying witnesses had testified that they were not absolutely positive in their identification, the reviewing court said: "... In order to sustain a conviction it is not necessary that the identification of the defendant as a perpetrator of the crime be made positively or in a manner free from inconsistencies. It is the function of the jury to pass upon the strength or weakness of the identification and the uncertainties of the witnesses in giving their testimony." [1b] Whatever may be said as to the weakness of the victim's identification at the scene of the crime following the arrest of appellants, the record reveals that Mr. Rollins positively and without hesitation identified appellants at the preliminary examination, and that he had previously, on the day the robbery occurred, positively identified them at the police station. Appellants claim that certain details of the victim's testimony at the preliminary hearing, and his testimony concerning the height and weight of appellants as compared with that of the robbers, were incorrect, does not warrant a reversal (People v. Addington, supra, p. 593).
[6a] It is next contended by appellants that there is no substantial evidence that the crime of armed robbery of the first degree was committed by anyone. In this regard, appellants assert that "... there is no substantial evidence that $190 or any other property was taken from the immediate presence of Rollins by reason of the force used upon Rollins by the 'short man'; and that therefore Appellants conviction should be reversed irrespective of whether or not there was substantial evidence of their participation in the events *320 described by Rollins." This contention is without merit. [7] While it is true, as set forth by appellants, that to establish the crime of robbery a taking of personal property must be shown nevertheless, this element may be proved by circumstantial evidence (People v. Appleton, 120 Cal. 250, 251 [52 P. 582]; People v. Lathrop, 37 Cal.App.2d 341, 345 [99 P.2d 330]). [6b] In the instant case, the victim was forced from the premises by a man he later identified as appellant McCollin. At the same time Rollins observed appellant Hornes proceeding toward the place where the cash was kept. When he was able to return to the service station Rollins found money was missing. The information alleged that $190 was taken. This estimate was arrived at on the basis of the station attendant Rollins' experience, both as to the usual intake on a Friday night, and on his observations as to the amount taken in on the night of the robbery. Since it is clear from the record that some money was taken as evidenced by the testimony of Rollins that when he returned to the station he found less than one dollar in change in the register, the amount of money taken becomes inconsequential because the offense charged may be proven by showing the taking of any money (People v. Hewitt, 78 Cal.App. 426, 429 [248 P. 1021]). The purpose of alleging a sufficient description of the property taken would seem to be to apprise the accused of the particular property he is charged with having taken, and thus enable him the better to defend against the charge. Since no attack was made upon the information as being insufficient to give appellants notice of the crime charged with regard to the amount taken, the information must here be deemed as sufficient to support a judgment. And, since some money was taken, the element of "taking of personal property" was clearly shown.
[8] Appellants' claim that the property was not taken from the "immediate presence" of the victim is equally untenable. Although the station attendant was unable to view the actual taking, or sense it in any way, the court below was entitled to conclude from the evidence that appellants sought to facilitate their crime by removing the victim some 100 yards from the scene. When appellant McCollin compelled the victim Rollins to leave the station he thereby initiated the first of a chain of acts leading directly to the consummation of the robbery. That the victim was therefore, constructively present during the "taking" and that such "taking" was within his "immediate presence" is supported by the case of People v. *321 Lavender, 137 Cal.App. 582, 591 [31 P.2d 439], in which the accused and a companion forced a hotel clerk to remain in an upstairs room while they returned to the office to take the money there. The court undertook a lengthy review of the authorities, concluding that the taking was within the immediate presence of the clerk. The court said: "... At least as early as the time when the clerk was induced to leave the hotel office for the purpose of 'showing' the room to defendant and his companion the crime of robbery was commenced; it was an overt act connected with the commission of the offense, at which time the clerk was 'immediately' present. The trick or device by which the physical presence of the clerk was detached from the property under his protection and control should not avail defendant in his claim that the property was not taken from the 'immediate presence' of the victim." (Emphasis added.)
The remaining elements of the crime, viz., fear and the felonious intent to rob, are amply supported by the evidence.
[9] Finally, appellants urge that they were convicted "solely because they were on parole and associating with each other, a parole violation, near the time and place of an alleged robbery." An examination of the record fails to sustain appellants in this contention. While their counsel in his argument to the court made mention of appellants being on parole, and the deputy district attorney disclaimed any intention, "... to infer that they (appellants) were guilty just because they were violating their parole," at the conclusion of arguments by counsel, the court simply announced, "The defendants will be found guilty as charged." Furthermore, since the evidence was sufficient to sustain the adjudication of guilt, what appellants contend actuated the court in arriving at such conclusion, does not warrant a reversal.
The attempted appeal from the sentence by defendant McCollin is dismissed and the judgment as to him is affirmed. The judgment against, and the order denying motion for a new trial as to defendant Hornes are, and each is affirmed.
Lillie, J., concurred.
FOURT, J.
I concur. In this case each of the defendants was charged with a prior conviction of armed robbery. The certified copies of the former prison records were in proper order, and were received in evidence. Each defendant admitted *322 to the prior charge and conviction on cross-examination. It is interesting to note that the defendants and appellants in this case committed the previous first degree armed robberies mentioned in the information as the priors, on August 25, 1954, in almost the identical fashion (robbing a service station around 4 a. m.--asking permission to use the restroom--each pulled a gun and forced the attendant to open the cash box, taking the money--taking the attendant away from the station to empty lot) as they committed the armed robbery with which we are concerned in this case. For the prior convictions, Hornes entered prison on February 28, 1955, and was released on parole August 28, 1957; McCollin entered prison on March 29, 1955, and was released on parole September 30, 1957. The two defendants, obviously, immediately got together after their release from prison and within less than 60 days were back at the business of armed robbery.
The court was fully informed of the background of each of the defendants, for the judge said at the time of sentence:
"The Court: Yes, I have also checked my notes, and the preliminary transcript shows that these gentlemen were convicted in 1954--Hornes in 1954 for robbery, and McCollin in 1955 for robbery. They served a term of imprisonment for those offenses, and it seems to me that they, more than anybody else, ought to know the seriousness of the conditions of their parole. Apparently they took it too lightly. I like to give a man a chance, but they just repeatedly become involved in offenses of this kind, and I don't see that there is anything we can do for them. I wish I had a pill I could give them to straighten them out, but I haven't."
The court then made no findings as to the prior convictions, as required by Penal Code, section 1158, and sentenced each of the defendants as a first offender. As said in People v. Fields, 167 Cal.App.2d 773 (filed February 10, 1959), at page 778 [334 P.2d 1001]: "... the defendant in this case is now, by reason of the judge's failure to find as to the prior convictions ... permitted to serve a sentence which can be considerably less than that required and set forth in the statutes." *323
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453 U.S. 114 (1981)
UNITED STATES POSTAL SERVICE
v.
COUNCIL OF GREENBURGH CIVIC ASSOCIATIONS ET AL.
No. 80-608.
Supreme Court of United States.
Argued April 21, 1981.
Decided June 25, 1981.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK.
*115 Edwin S. Kneedler argued the cause for appellant. On the briefs were Solicitor General McCree, Acting Assistant Attorney General Martin, Deputy Solicitor General Geller, Peter Buscemi, William Kanter, and John C. Hoyle.
Jon H. Hammer argued the cause for appellees. With him on the briefs was E. Payson Clark, Jr.[*]
Briefs of amici curiae urging affirmance were filed by Adam Yarmolinsky and Stephen T. Owen for Independent Sector et al.; and by John R. Myer, David A. Webster, Virginia S. Taylor, E. Richard Larson, and Bruce J. Ennis for the Piedmont Heights Civil Club, Inc., et al.
JUSTICE REHNQUIST delivered the opinion of the Court.
We noted probable jurisdiction to decide whether the United States District Court for the Southern District of *116 New York correctly determined that 18 U. S. C. § 1725, which prohibits the deposit of unstamped "mailable matter" in a letterbox approved by the United States Postal Service, unconstitutionally abridges the First Amendment rights of certain civic associations in Westchester County, N. Y. 449 U. S. 1076 (1981). Jurisdiction of this Court rests on 28 U. S. C. § 1252.
I
Appellee Council of Greenburgh Civic Associations (Council) is an umbrella organization for a number of civic groups in Westchester County, N. Y. Appellee Saw Mill Valley Civic Association is one of the Council's member groups. In June 1976, the Postmaster in White Plains, N. Y., notified the Chairman of the Saw Mill Valley Civic Association that the association's practice of delivering messages to local residents by placing unstamped notices and pamphlets in the letterboxes of private homes was in violation of 18 U. S. C. § 1725, which provides:
"Whoever knowingly and willfully deposits any mailable matter such as statements of accounts, circulars, sale bills, or other like matter, on which no postage has been paid, in any letter box established, approved, or accepted by the Postal Service for the receipt or delivery of mail matter on any mail route with intent to avoid payment of lawful postage thereon, shall for each such offense be fined not more than $300."
Saw Mill Valley Civic Association and other Council members were advised that if they continued their practice of placing unstamped notices in the letterboxes of private homes it could result in a fine not to exceed $300.
In February 1977, appellees filed this suit in the District Court for declaratory and injunctive relief from the Postal Service's threatened enforcement of § 1725. Appellees contended that the enforcement of § 1725 would inhibit their *117 communication with residents of the town of Greenburgh and would thereby deny them the freedom of speech and freedom of the press secured by the First Amendment.
The District Court initially dismissed the complaint for failure to state a claim on which relief could be granted. 448 F. Supp. 159 (SDNY 1978). On appeal, however, the Court of Appeals for the Second Circuit reversed and remanded the case to the District Court to give the parties "an opportunity to submit proof as to the extent of the handicap to communication caused by enforcement of the statute in the area involved, on the one hand, and the need for the restriction for protection of the mails, on the other." 586 F. 2d 935, 936 (1978). In light of this language, it was not unreasonable for the District Court to conclude that it had been instructed to "try" the statute, much as more traditional issues of fact are tried by a court, and that is what the District Court proceeded to do.
In the proceedings on remand, the Postal Service offered three general justifications for § 1725: (1) that § 1725 protects mail revenues; (2) that it facilitates the efficient and secure delivery of the mails; and (3) that it promotes the privacy of mail patrons. More specifically, the Postal Service argued that elimination of § 1725 could cause the overcrowding of mailboxes due to the deposit of civic association notices. Such overcrowding would in turn constitute an impediment to the delivery of the mails. Testimony was offered that § 1725 aided the investigation of mail theft by restricting access to letterboxes, thereby enabling postal investigators to assume that anyone other than a postal carrier or a householder who opens a mailbox may be engaged in the violation of the law. On this point, a postal inspector testified that 10% of the arrests made under the external mail theft statute, 18 U. S. C. § 1708, resulted from surveillance-type operations which benefit from enforcement of § 1725. Testimony was also introduced that § 1725 has been *118 particularly helpful in the investigation of thefts of government benefit checks from letterboxes.[1]
The Postal Service introduced testimony that it would incur additional expense if § 1725 were either eliminated or held to be inapplicable to civic association materials. If delivery in mailboxes were expanded to permit civic association circularsbut not other types of nonmailable matter such as commercial materialsmail carriers would be obliged to remove and examine individual unstamped items found in letterboxes to determine if their deposit there was lawful. Carriers would also be confronted with a larger amount of unstamped mailable matter which they would be obliged to separate from outgoing mail. The extra time resulting from these additional activities. When computed on a nationwide basis, would add substantially to the daily cost of mail delivery.
The final justification offered by the Postal Service for § 1725 was that the statute provided significant protection for the privacy interests of postal customers. Section 1725 provides postal customers the means to send and receive mails without fear of their correspondence becoming known to members of the community.
*119 The Postal Service also argued at trial that the enforcement of § 1725 left appellees with ample alternative means of delivering their message. The appellees can deliver their messages either by paying postage, by hanging their notices on doorknobs, by placing their notices under doors or under a doormat, by using newspaper or nonpostal boxes affixed to houses or mailbox posts, by telephoning their constituents, by engaging in person-to-person delivery in public areas, by tacking or taping their notices on a door post or letterbox post, or by placing advertisements in local newspapers. A survey was introduced comparing the effectiveness of certain of these alternatives which arguably demonstrated that between 70-75% of the materials placed under doors or doormats or hung from doorknobs were found by the homeowner whereas approximately 82% of the items placed in letterboxes were found. This incidental difference, it was argued, cannot be of constitutional significance.
The District Court found the above arguments of the Postal Service insufficient to sustain the constitutionality of § 1725 at least as applied to these appellees. 490 F. Supp. 157 (1980). Relying on the earlier opinion of the Court of Appeals, the District Court noted that the legal standard it was to apply would give the appellees relief if the curtailment of their interest in free expression resulting from enforcement of § 1725 substantially outweighed the Government's interests in the effective delivery and protection of the mails. The District Court concluded that the appellees had satisfied this standard.
The District Court based its decision on several findings. The court initially concluded that because civic associations generally have small cash reserves and cannot afford the applicable postage rates, mailing of the appellees' message would be financially burdensome. Similarly, because of the relatively slow pace of the mail, use of the mails at certain times would impede the appellees' ability to communicate quickly with their constituents. Given the widespread awareness *120 of the high cost and limited celerity of the mails, the court probably could have taken judicial notice of both of these findings.
The court also found that none of the alternative means of delivery suggested by the Postal Service were "nearly as effective as placing civic association flyers in approved mailboxes; so that restriction on the [appellees'] delivery methods to such alternatives also constitutes a serious burden on [appellees'] ability to communicate with their constituents." 490 F. Supp., at 160.[2] Accordingly, the District Court declared § 1725 unconstitutional as applied to appellees and the Council's member associations and enjoined the Postal Service from enforcing it as to them.
II
The present case is a good example of Justice Holmes' aphorism that "a page of history is worth a volume of logic." *121 New York Trust Co. v. Eisner, 256 U. S. 345, 349 (1921). For only by review of the history of the postal system and its present statutory and regulatory scheme can the constitutional challenge to § 1725 be placed in its proper context.
By the early 18th century, the posts were made a sovereign function in almost all nations because they were considered a sovereign necessity. Government without communication is impossible, and until the invention of the telephone and telegraph, the mails were the principal means of communication. Kappel Commission, Toward Postal Excellence, Report of the President's Commission on Postal Organization 47 (Comm. Print 1968). Little progress was made in developing a postal system in Colonial America until the appointment of Benjamin Franklin, formerly Postmaster at Philadelphia, as Deputy Postmaster General for the American Colonies in 1753. In 1775, Franklin was named the first Postmaster General by the Continental Congress, and, because of the trend toward war, the Continental Congress undertook its first serious effort to establish a secure mail delivery organization in order to maintain communication between the States and to supply revenue for the Army. D. Adie, An Evaluation of Postal Service Wage Rates 2 (American Enterprise Institute, 1977).
Given the importance of the post to our early Nation, it is not surprising that when the United States Constitution was ratified in 1789. Art. I, § 8, provided Congress the power "To establish Post Offices and post Roads" and "To make all Laws which shall be necessary and proper" for executing this task. The Post Office played a vital yet largely unappreciated role in the development of our new Nation. Stagecoach trails which were improved by the Government to become post roads quickly became arteries of commerce. Mail contracts were of great assistance to the early development of new means of transportation such as canals, railroads, and eventually airlines. Kappel Commission. Toward *122 Postal Excellence, supra, at 46. During this developing stage, the Post Office was to many citizens situated across the country the most visible symbol of national unity. Ibid.
The growth of postal service over the past 200 years has been remarkable. Annual revenues increased from less than $40 million in 1790 to close to $200 million in 1829 when the Postmaster General first became a member of the Cabinet. However, expenditures began exceeding revenues as early as the 1820's as the postal structure struggled to keep pace with the rapid growth of the country westward. Because of this expansion, delivery costs to the South and West raised average postal costs nationally. To prevent competition from private express services, Congress passed the Postal Act of 1845, which prohibited competition in letter mail and established what is today referred to as the "postal monopoly."
More recently, to deal with the problems of increasing deficits and shortcomings in the overall management and efficiency of the Post Office. Congress passed the Postal Reorganization Act of 1970. This Act transformed the Post Office Department into a Government-owned corporation called the United States Postal Service. The Postal Service today is among the largest employers in the world, with a work force nearing 700,000 processing 106.3 billion pieces of mail each year. Ann. Rep. of the Postmaster General 2, 11 (1980). The Postal Service is the Nation's largest user of floor space, and the Nation's largest nonmilitary purchaser of transport, operating more than 200,000 vehicles. Its rural carriers alone travel over 21 million miles each day and its city carriers walk or drive another million miles a day. D. Adie, An Evaluation of Postal Service Wage Rates, supra, at 1. Its operating budget in fiscal 1980 exceeded $17 billion. Ann. Rep. of the Postmaster General, supra, at 2.
Not surprisingly, Congress has established a detailed statutory and regulatory scheme to govern this country's vast postal system. See 39 U. S. C. § 401 et seq. and the Domestic Mail Manual (DMM), which has been incorporated by *123 reference in the Code of Federal Regulations, 39 CFR pt. 3 (1980). Under 39 U. S. C. § 403 (a), the Postal Service is directed to "plan, develop, promote, and provide adequate and efficient postal services at fair and reasonable rates and fees." Section 403 (b) (1) similarly directs the Postal Service "to maintain an efficient system of collection, sorting, and delivery of the mail nationwide," and under 39 U. S. C. § 401 the Postal Service is broadly empowered to adopt rules and regulations designed to accomplish the above directives.
Acting under this authority, the Postal Service has provided by regulation that both urban and rural postal customers must provide appropriate mail receptacles meeting detailed specifications concerning size, shape, and dimensions. DMM 155.41, 155.43, 156.311, 156.51, and 156.54. By regulation, the Postal Service has also provided that "[e]very letter box or other receptacle intended or used for the receipt or delivery of mail on any city delivery route, rural delivery route, highway contract route, or other mail route is designated an authorized depository for mail within the meaning of 18 U. S. C. [§] 1725." DMM 151.1. A letterbox provided by a postal customer which meets the Postal Service's specifications not only becomes part of the Postal Service's nationwide system for the receipt and delivery of mail, but is also afforded the protection of the federal statutes prohibiting the damaging or destruction of mail deposited therein. See 18 U. S. C. §§ 1702, 1705, and 1708.
It is not without irony that this elaborate system of regulation, coupled with the historic dependence of the Nation on the Postal Service, has been the causal factor which led to this litigation. For it is because of the very fact that virtually every householder wishes to have a mailing address and a receptacle in which mail sent to that address will be deposited by the Postal Service that the letterbox or other mail receptacle is attractive to those who wish to convey messages within a locality but do not wish to purchase the stamp or pay such other fee as would permit them to be transmitted *124 by the Postal Service. To the extent that the "alternative means" eschewed by the appellees and found to be inadequate alternatives by the District Court are in fact so, it is in no small part attributable to the fact that the typical mail patron first looks for written communications from the "outside world" not under his doormat, or inside the screen of his front door, but in his letterbox. Notwithstanding the increasing frequency of complaints about the rising cost of using the Postal Service, and the uncertainty of the time which passes between mailing and delivery, written communication making use of the Postal Service is so much a fact of our daily lives that the mail patron watching for the mail-truck, or the jobholder returning from work looking in his letterbox before he enters his house, are commonplaces of our society. Indeed, according to the appellees the receptacles for mailable matter are so superior to alternative efforts to communicate printed matter that all other alternatives for deposit of such matter are inadequate substitutes for postal letterboxes.
Postal Service regulations, however, provide that letterboxes and other receptacles designated for the delivery of mail "shall be used exclusively for matter which bears postage." DMM 151.2.[3] Section 1725 merely reinforces this *125 regulation by prohibiting, under pain of criminal sanctions, the deposit into a letterbox of any mailable matter on which postage has not been paid. The specific prohibition contained in § 1725 is also repeated in the Postal Service regulations at DMM 146.21.
Section 1725 was enacted in 1934 "to curb the practice of depositing statements of account, circulars, sale bills, etc., in letter boxes established and approved by the Postmaster General for the receipt or delivery of mail matter without payment of postage thereon by making this a criminal offense." H. R. Rep. No. 709, 73d Cong., 2d Sess., 1 (1934). Both the Senate and House Committees on Post Offices and Post Roads explained the principal motivation for § 1725 as follows:
"Business concerns, particularly utility companies, have within the last few years adopted the practice of having their circulars, statements of account, etc., delivered by private messenger, and have used as receptacles the letter boxes erected for the purpose of holding mail matter and approved by the Post Office Department for such purpose. This practice is depriving the Post Office Department of considerable revenue on matter which would otherwise go through the mails, and at the same time is resulting in the stuffing of letter boxes with extraneous matter." Ibid.; S. Rep. No. 742, 73d Cong., 2d Sess., 1 (1934).
Nothing in any of the legislation or regulations recited above requires any person to become a postal customer. Anyone is free to live in any part of the country without having letters or packages delivered or received by the Postal Service by simply failing to provide the receptacle for those letters and packages which the statutes and regulations require. Indeed, the provision for "General Delivery" in most post offices enables a person to take advantage of the facilities *126 of the Postal Service without ever having provided a receptacle at or near his premises conforming to the regulations of the Postal Service. What the legislation and regulations do require is that those persons who do wish to receive and deposit their mail at their home or business do so under the direction and control of the Postal Service.
III
As early as the last century, this Court recognized the broad power of Congress to act in matters concerning the posts:
"The power vested in Congress `to establish postoffices and post-roads' has been practically construed, since the foundation of the government, to authorize not merely the designation of the routes over which the mail shall be carried, and the offices where letters and other documents shall be received to be distributed or forwarded, but the carriage of the mail, and all measures necessary to secure its safe and speedy transit, and the prompt delivery of its contents. The validity of legislation describing what should be carried, and its weight and form, and the charges to which it should be subjected, has never been questioned. . . . The power possessed by Congress embraces the regulation of the entire Postal System of the country. The right to designate what shall be carried necessarily involves the right to determine what shall be excluded." Ex parte Jackson, 96 U. S. 727, 732 (1878).
However broad the postal power conferred by Art. I may be, it may not of course be exercised by Congress in a manner that abridges the freedom of speech or of the press protected by the First Amendment to the Constitution. In this case we are confronted with the appellees' assertion that the First Amendment guarantees them the right to deposit, without payment of postage, their notices, circulars, and flyers in *127 letterboxes which have been accepted as authorized depositories of mail by the Postal Service.[4]
In addressing appellees' claim, we note that we are not here confronted with a regulation which in any way prohibits individuals from going door-to-door to distribute their message or which vests unbridled discretion in a governmental official to decide whether or not to permit the distribution to occur. We are likewise not confronted with a regulation which in any way restricts the appellees' right to use the mails. The appellees may mail their civic notices in the ordinary fashion, and the Postal Service will treat such notices identically with all other mail without regard to content. There is no claim that the Postal Service treats civic notices, because of their content, any differently from the way it treats any of the other mail it processes. Admittedly, if appellees do choose to mail their notices, they will be required to pay postage in a manner identical to other Postal Service patrons, but appellees do not challenge the imposition of a fee for the services provided by the Postal Service.[5]
*128 What is at issue in this case is solely the constitutionality of an Act of Congress which makes it unlawful for persons to use, without payment of a fee, a letterbox which has been designated an "authorized depository" of the mail by the Postal Service. As has been previously explained, when a letterbox is so designated, it becomes an essential part of the Postal Service's nationwide system for the delivery and receipt of mail. In effect, the postal customer, although he pays for the physical components of the "authorized depository," agrees to abide by the Postal Service's regulations in exchange for the Postal Service agreeing to deliver and pick up his mail.
Appellees' claim is undermined by the fact that a letterbox, once designated an "authorized depository," does not at the same time undergo a transformation into a "public forum" of some limited nature to which the First Amendment guarantees access to all comers. There is neither historical nor constitutional support for the characterization of a letterbox as a public forum. Letterboxes are an essential part of the nationwide system for the delivery and receipt of *129 mail, and since 1934 access to them has been unlawful except under the terms and conditions specified by Congress and the Postal Service. As such, it is difficult to accept appellees' assertion that because it may be somewhat more efficient to place their message in letterboxes there is a First Amendment right to do so. The underlying rationale of appellees' argument would seem to foreclose Congress or the Postal Service from requiring in the future that all letterboxes contain locks with keys being available only to the homeowner and the mail carrier. Such letterboxes are presently found in many apartment buildings, and we do not think their presence offends the First Amendment to the United States Constitution. Letterboxes which lock, however, have the same effect on civic associations that wish access to them as does the enforcement of § 1725. Such letterboxes also accomplish the same purposethat is, they protect mail revenues while at the same time facilitating the secure and efficient delivery of the mails. We do not think the First Amendment prohibits Congress from choosing to accomplish these purposes through legislation as opposed to lock and key.
Indeed, it is difficult to conceive of any reason why this Court should treat a letterbox differently for First Amendment access purposes than it has in the past treated the military base in Greer v. Spock, 424 U. S. 828 (1976), the jail or prison in Adderley v. Florida, 385 U. S. 39 (1966), and Jones v. North Carolina Prisoners' Union, 433 U. S. 119 (1977), or the advertising space made available in city rapid transit cars in Lehman v. City of Shaker Heights, 418 U. S. 298 (1974). In all these cases, this Court recognized that the First Amendment does not guarantee access to property simply because it is owned or controlled by the government. In Greer v. Spock, supra, the Court cited approvingly from its earlier opinion in Adderley v. Florida, supra, wherein it explained that "`[t]he State, no less than a private owner of *130 property, has power to preserve the property under its control for the use to which it is lawfully dedicated.'" 424 U. S., at 836.[6]
This Court has not hesitated in the past to hold invalid *131 laws which it concluded granted too much discretion to public officials as to who might and who might not solicit individual homeowners, or which too broadly inhibited the access of persons to traditional First Amendment forums such as the public streets and parks. See, e. g., Village of Schaumburg v. Citizens for a Better Environment, 444 U. S. 620 (1980); Hague v. CIO, 307 U. S. 496 (1939); Schneider v. State, 308 U. S. 147 (1939); Martin v. City of Struthers, 319 U. S. 141 (1943); Lovell v. City of Griffin, 303 U. S. 444 (1938); and Police Department of Chicago v. Mosley, 408 U. S. 92 (1972). But it is a giant leap from the traditional "soapbox" to the letterbox designated as an authorized depository of the United States mails, and we do not believe the First Amendment requires us to make that leap.[7]
*132 It is thus unnecessary for us to examine § 1725 in the context of a "time, place, and manner" restriction on the use of the traditional "public forums" referred to above. This Court has long recognized the validity of reasonable time, place, and manner regulations on such a forum so long as the regulation is content-neutral, serves a significant governmental interest, and leaves open adequate alternative channels for communication. See, e. g., Consolidated Edison Co. v. Public Service Comm'n, 447 U. S. 530, 535-536 (1980); Linmark Associates, Inc. v. Willingboro, 431 U. S. 85, 93 (1977); Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771 (1976); Grayned v. City of Rockford, 408 U. S. 104 (1972); Cox v. New Hampshire, 312 U. S. 569 (1941). But since a letterbox is not traditionally such a "public forum," the elaborate analysis engaged in by the District Court was, we think, unnecessary. To be sure, if a governmental regulation is based on the content of the speech or the message, that action must be scrutinized more carefully to ensure that communication has not been prohibited "`merely because public officials disapprove the speaker's view.'" Consolidated Edison Co. v. Public Service Comm'n, supra, at 536, quoting Niemotko v. Maryland, 340 U. S. 268, 282 (1951) (Frankfurter, J., concurring in result). But in this case there simply is no question that § 1725 does not regulate speech on the basis of content. While the analytical line between a regulation of the "time, place, and manner" in which First Amendment rights may be exercised in a traditional public forum, and the question of whether a particular piece of personal or real property owned or controlled by the government is in fact a "public forum" may blur at the edges, we think the line is nonetheless a workable one. We likewise think that Congress may, in exercising its authority to develop and operate a national postal system, properly legislate with the generality of cases in mind, and *133 should not be put to the test of defending in one township after another the constitutionality of a statute under the traditional "time, place, and manner" analysis. This Court has previously acknowledged that the "guarantees of the First Amendment have never meant `that people who want to propagandize protests or views have a constitutional right to do so whenever and however and wherever they please.'" Greer v. Spock, 424 U. S., at 836, quoting Adderley v. Florida, 385 U. S., at 48. If Congress and the Postal Service are to operate as efficiently as possible a system for the delivery of mail which serves a Nation extending from the Atlantic Ocean to the Pacific Ocean, from the Canadian boundary on the north to the Mexican boundary on the south, it must obviously adopt regulations of general character having uniform applicability throughout the more than three million square miles which the United States embraces. In so doing, the Postal Service's authority to impose regulations cannot be made to depend on all of the variations of climate, population, density, and other factors that may vary significantly within a distance of less than 100 miles.
V
From the time of the issuance of the first postage stamp in this country at Brattleboro, Vt., in the fifth decade of the last century, through the days of the governmentally subsidized "Pony Express" immediately before the Civil War, and through the less admirable era of the Star Route Mail Frauds in the latter part of that century, Congress has actively exercised the authority conferred upon it by the Constitution "to establish Post Offices and Post Roads" and "to make all laws which shall be necessary and proper" for executing this task. While Congress, no more than a suburban township, may not by its own ipse dixit destroy the "public forum" status of streets and parks which have historically been public forums, we think that for the reasons stated a letterbox may not properly be analogized to streets and parks. *134 It is enough for our purposes that neither the enactment nor the enforcement of § 1725 was geared in any way to the content of the message sought to be placed in the letterbox. The judgment of the District Court is accordingly.
Reversed.
JUSTICE BRENNAN, concurring in the judgment.
I concur in the judgment, but not in the Court's opinion. I believe the Court errs in not determining whether § 1725 is a reasonable time, place, and manner restriction on appellees' exercise of their First Amendment rights, as urged by the Government, and in resting its judgment instead on the conclusion that a letterbox is not a public forum. In my view, this conclusion rests on an improper application of the Court's precedents and ignores the historic role of the mails as a national medium of communication.
I
Section 1725 provides:
"Whoever knowingly and willfully deposits any mailable matter such as statements of accounts, circulars, sale bills, or other like matter, on which no postage has been paid, in any letter box established, approved, or accepted by the Postal Service for the receipt or delivery of mail matter on any mail route with intent to avoid payment of lawful postage thereon, shall for each such offense be fined not more than $300." 18 U. S. C. § 1725.
Unquestionably, § 1725 burdens in some measure the First Amendment rights of appellees who seek to "communicate ideas, positions on local issues, and civic information to their constituents," through delivery of circulars door-to-door. 490 F. Supp. 157, 162 (1980). See Martin v. City of Struthers, 319 U. S. 141, 146-147 (1943). The statute requires appellees either to pay postage to obtain access to the postal system, which they assert they are unable to do, or to deposit *135 their materials in places other than the letterbox, which they contend is less effective than deposit in the letterbox.
Despite the burden on appellees' rights, I conclude that the statute is constitutional because it is a reasonable time, place, and manner regulation. See Schad v. Mount Ephraim, 452 U. S. 61, 74-77 (1981); Consolidated Edison Co. v. Public Service Comm'n, 447 U. S. 530, 535-536 (1980); Linmark Associates, Inc. v. Willingboro, 431 U. S. 85, 93 (1977); Grayned v. City of Rockford, 408 U. S. 104, 115-116 (1972). First, § 1725 is content-neutral because it is not directed at the content of the message appellees seek to convey, but applies equally to all mailable matter. See Consolidated Edison Co. v. Public Service Comm'n, supra, at 536; Erznoznik v. City of Jacksonville, 422 U. S. 205, 209-211 (1975); Police Department of Chicago v. Mosley, 408 U. S. 92, 95 (1972).
Second, the burden on expression advances a significant governmental interestpreventing loss of mail revenues. The District Court's finding that the "failure to enforce the statute as to [appellees] would [not] result in a substantial loss of revenue" may be true, 490 F. Supp. 157, 163 (emphasis added), but that conclusion overlooks the obvious cumulative effect that the District Court's ruling would have if applied across the country. Surely, the Government is correct when it argues that the Postal Service "is not required to make a case-by-case showing of a compelling need for the incremental revenue to be realized from charging postage to each organization or individual who desires to use the postal system to engage in expression protected by the First Amendment." Reply Brief for Appellant 8.
Third, there are "ample alternative channels for communication." Consolidated Edison Co. v. Public Service Comm'n, 447 U. S. at 535. Appellees may, for example, place their circulars under doors or attach them to doorknobs. Simply because recipients may find 82% of materials left in the letterbox, but only 70-75% of materials otherwise left at the residence, is not a sufficient reason to conclude that alternative *136 means of delivery are not "ample." Ibid.; see ante, at 120, and n. 2.
II
The Court declines to analyze § 1725 as a time, place, and manner restriction. Instead, it concludes that a letterbox is not a public forum. Ante, at 128. Thus the Court states that
"it is difficult to conceive of any reason why this Court should treat a letterbox differently for First Amendment access purposes than it has in the past treated the military base in Greer v. Spock, 424 U. S. 828 (1976), the jail or prison in Adderley v. Florida, 385 U. S. 39 (1966), and Jones v. North Carolina Prisoners' Union, 433 U. S. 119 (1977), or the advertising space made available in city rapid transit cars in Lehman v. City of Shaker Heights, 418 U. S. 298 (1974)." Ante, at 129.
I believe that the Court's conclusion ignores the proper method of analysis in determining whether property owned or directly controlled by the Government is a public forum. Moreover, even if the Court were correct that a letterbox is not a public forum, the First Amendment would still require the Court to determine whether the burden on appellees' exercise of their First Amendment rights is supportable as a reasonable time, place, and manner restriction.
A
For public forum analysis, "[t]he crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time." Grayned v. City of Rockford, supra, at 116. We have often quoted Justice Holmes' observation that the "'United States may give up the Post Office when it sees fit, but while it carries it on the use of the mails is almost as much a part of free speech as the right to use our tongues . . . .'" Blount v. Rizzi, 400 U. S. 410, 416 (1971), and Lamont v. Postmaster General, 381 U. S. 301, 305 (1965), quoting United States exrel. *137 Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U. S. 407, 437 (1921) (Holmes, J., dissenting).[1] Our cases have recognized generally that public properties are appropriate fora for exercise of First Amendment rights. See, e. g., Tinker v. Des Moines School District, 393 U. S. 503, 512 (1969); Brown v. Louisiana, 383 U. S. 131, 139-140, 142 (1966) (plurality opinion); Cox v. Louisiana, 379 U. S. 536, 543 (1965); Edwards v. South Carolina, 372 U. S. 229 (1963).[2] While First Amendment rights exercised on public property may be subject to reasonable time, place, and manner restrictions, that is very different from saying that government-controlled property, such as a letterbox, does not constitute a public forum. Only where the exercise of First Amendment rights is incompatible with the normal activity occurring on public property have we held that the property is not a public forum. See Greer v. Spock, 424 U. S. 828 (1976); Jones v. North Carolina Prisoners' Union, 433 U. S. 119 (1977); Adderley v. Florida, 385 U. S. 39 (1966). Thus, in answering "[t]he crucial question . . . whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time," Grayned v. City of Rockford, supra, at 116, I believe that the mere deposit of mailable matter without postage is not "basically incompatible" with the "normal activity" for which a letterbox is used, i. e., deposit of mailable matter with proper postage or mail delivery by the Postal Service. On the contrary, the mails and the letterbox are specifically used for the communication of information and ideas, and thus surely constitute a public *138 forum appropriate for the exercise of First Amendment rights subject to reasonable time, place, and manner restrictions such as those embodied in § 1725 or in the requirement that postage be affixed to mailable matter to obtain access to the postal system.
The history of the mails as a vital national medium of expression confirms this conclusion. Just as "streets and parks . . . have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions," Hague v. CIO, 307 U. S. 496, 515 (1939),[3] so too the mails from the early days of the Republic have played a crucial role in communication. The Court itself acknowledges the importance of the mails as a forum for communication:
"Government without communication is impossible, and until the invention of the telephone and telegraph, the mails were the principal means of communication. . . . In 1775, Franklin was named the first Postmaster General by the Continental Congress, and, because of the trend toward war, the Continental Congress undertook its first serious effort to establish a secure mail delivery organization in order to maintain communication between the States and to supply revenue for the Army." Ante, at 121 (emphasis added).
The Court further points out that "[t]he Post Office played a vital . . . role in the development of our new Nation," ibid. (emphasis added), and currently processes "106.3 billion pieces of mail each year," ante, at 122. The variety of communication transported by the Postal Service ranges from the sublime to the ridiculous, and includes newspapers, magazines, books, films, and almost any type and form of expression imaginable. See Kappel Commission. Toward Postal Excellence, *139 Report of the President's Commission on Postal Organization 47-48 (Comm. Print 1968). Given "the historic dependence of the Nation on the Postal Service." ante, at 123, it is extraordinary that the Court reaches the conclusion that the letterbox, a critical link in the mail system, is not a public forum.
Not only does the Court misapprehend the historic role that the mails have played in national communication, but it relies on inapposite cases to reach its result. Greer v. Spock,[4]Adderley v. Florida,[5] and Jones v. North Carolina Prisoners' Union,[6] all rested on the inherent incompatibility between the *140 rights sought to be exercised and the physical location in which the exercise was to occur. Lehman v. City of Shaker Heights[7] rested in large measure on the captive audience doctrine, 418 U. S., at 304, and in part on the transportation purpose of the city bus system, id., at 303. These cases, therefore, provide no support for the Court's conclusion that a letterbox is not a public forum.
B
Having determined that a letterbox is not a public forum, the Court inexplicably terminates its analysis. Surely, however, the mere fact that property is not a public forum does not free government to impose unwarranted restrictions on First Amendment rights. The Court itself acknowledges that the postal power "may not . . . be exercised by Congress in a manner that abridges the freedom of speech or of the press protected by the First Amendment to the Constitution." Ante, at 126. Even where property does not constitute a public forum, government regulation that is content-neutral must still be reasonable as to time, place, and manner. See, e. g., Young v. American Mini Theatres, Inc., 427 U. S. 50, 63, n. 18 (1976). Cf. Linmark Associates, Inc. v. Willingboro, 431 U. S., at 92-93; Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771 (1976). The *141 restriction in § 1725 could have such an effect on First Amendment rightsand does for JUSTICE MARSHALLthat it should be struck down. The Court, therefore, cannot avoid analyzing § 1725 as a time, place, and manner restriction.[8]
III
I would conclude, contrary to the Court, that a letterbox is a public forum, but, nevertheless, concur in the judgment because I conclude that 18 U. S. C. § 1725 is a reasonable time, place, and manner restriction on appellees' exercise of their First Amendment rights.
JUSTICE WHITE, concurring in the judgment.
There is no doubt that the postal system is a massive, Government-operated communications facility open to all forms of written expression protected by the First Amendment. No one questions, however, that the Government, the operator of the system, may impose a fee on those who would use the system, even though the user fee measurably reduces the ability of various persons or organizations to communicate with others. Appellees do not argue that they may use the mail for home delivery free of charge. A self-evident justification for postage is that the Government may insist that those who use the mails contribute to the expense of maintaining and operating the facility.
No different answer is required in this case because appellees do not insist on free home delivery and desire to use only a part of the system, the mailbox. The Government's interest in defraying its operating expenses remains, and it is clear *142 that stuffing the mailbox with unstamped materials is a burden on the system.
This justification would suffice even in those situations where insisting on the fee will totally prevent the putative user from communicating with his intended correspondents, i. e., there would be no adequate alternative means available to reach the intended recipients. For this reason, if for no other, I do not find it appropriate to inquire whether the restriction at issue here is a reasonable time, place or manner regulation. Besides that, however, it is apparent that the validity of user fees does not necessarily depend on satisfying typical time, place or manner requirements.
Equally bootless is the inquiry whether the postal system is a public forum. For all who will pay the fee, it obviously is, and the only question is whether a user fee may be charged, as a general proposition and in the circumstances of this case. Because I am quite sure that the fee is a valid charge, I concur in the judgment.
JUSTICE MARSHALL, dissenting.
When the Framers of the Constitution granted Congress the authority "[t]o establish Post Offices and Post Roads," Art. I, § 8, cl. 7, they placed the powers of the Federal Government behind a national communication service. Protecting the economic viability and efficiency of that service remains a legitimate and important congressional objective. This case involves a statute defended on that ground, but I believe it is unnecessary for achieving that purpose and inconsistent with the underlying commitment to communication.
The challenged statute, 18 U. S. C. § 1725, prohibits anyone from knowingly placing unstamped "mailable matter" in any box approved by the United States Postal Service for receiving or depositing material carried by the Postal Service. Violators may be punished with fines of up to $300 for each offense. In this case, appellee civic associations claimed, and *143 the District Court agreed, that this criminal statute unreasonable restricts their First Amendment right of free expression.
The Court today upholds the statute on the theory that its focusthe letterbox situated on residential propertyis not a public forum to which the First Amendment guarantees access. I take exception to the result, the analysis, and the premise that private persons lose their prerogatives over the letterboxes they own and supply for mail service.
First, I disagree with the Court's assumption that if no public forum is involved, the only First Amendment challenges to be considered are whether the regulation is contentbased, see ante, at 132-133, and reasonable, ante, at 131, n. 7. Even if the Postal Service were not a public forum, which, as I later suggest, I do not accept, the statute advanced in its aid is a law challenged as an abridgment of free expression. Appellees seek to carry their own circulars and to deposit them in letterboxes owned by private persons who use them to receive mail, and challenge the criminal statute forbidding this use of private letterboxes. The question, then, is whether this statute burdens any First Amendment rights enjoyed by appellees. If so, it must be determined whether this burden is justified by a significant governmental interest substantially advanced by the statute. See Consolidated Edison Co. v. Public Service Comm'n, 447 U. S. 530, 540 (1980); Grayned v. City of Rockford, 408 U. S. 104, 115 (1972); Cameron v. Johnson, 390 U. S. 611, 616-617 (1968); Thornhill v. Alabama, 310 U. S. 88, 96, 104-105 (1940).
That appellee civic associations enjoy the First Amendment right of free expression cannot be doubted; both their purposes and their practices fall within the core of the First Amendment's protections. We have long recognized the constitutional rights of groups which seek, as appellees do, to "communicate ideas, positions on local issues, and civic information to their constituents"[1] through written handouts *144 and thereby to promote the free discussion of governmental affairs so central to our democracy. See, e. g., Martin v. City of Struthers, 319 U. S. 141, 146-147 (1943); Schneider v. State, 308 U. S. 147 (1939); Lovell v. Griffin, 303 U. S. 444 (1938). By traveling door to door to hand-deliver their messages to the homes of community members, appellees employ the method of written expression most accessible to those who are not powerful, established, or well financed. "Door to door distribution of circulars is essential to the poorly financed causes of little people." Martin v. City of Struthers, supra, at 146. See Schneider v. State, supra, at 164. Moreover, "[f]reedom of speech, freedom of the press, freedom of religion are available to all, not merely to those who can pay their own way." Murdock v. Pennsylvania, 319 U. S. 105, 111 (1943). And such freedoms depend on liberty to circulate; "`indeed, without circulation, the publication would be of little value.'" Talley v. California, 362 U. S. 60, 64 (1960), quoting Lovell v. Griffin, supra, at 452.
Countervailing public interests, such as protection against fraud and preservation of privacy, may warrant some limitation on door-to-door solicitation and canvassing. But we have consistently held that nay such restrictions, to be valid, must be narrowly drawn "`in such a manner as not to intrude upon the rights of free speech.'" Hynes v. Mayor and Council of Borough of Oradell, 425 U. S. 610, 616 (1976), quoting Thomas v. Collins, 323 U. S. 516, 540-541 (1945). Consequently, I cannot agree with the Court's conclusion, ante, at 132-133, that we need not ask whether the ban against placing such messages in letterboxes is a restriction on appellees' free expression rights. Once appellees are at the doorstep, only § 1725 restricts them from placing their circulars in the box provided by the resident. The District Court determined after an evidentiary hearing that only by placing their circulars in the letterboxes may appellees be certain that their messages will be secure from wind, rain, or snow, and at the same time will alert the attention of the residents without *145 notifying would-be burglars that no one has returned home to remove items from doorways or stoops. 490 F. Supp. 157, 160-163 (1980). The court concluded that the costs and delays of mail service put the mails out of appellees' reach, and that other alternatives, such as placing their circulars in doorways, are "much less satisfactory." Id., at 160.[2] We have in the past similarly recognized the burden placed on First Amendment rights when the alternative channels of communication involve more cost, less autonomy, and reduced likelihood of reaching the intended audience. Linmark Associates, Inc. v. Willingboro, 431 U. S. 85, 93 (1977).
I see no ground to disturb these factual determinations of the trier of fact. And, given these facts, the Postal Service bears a heavy burden to show that its interests are legitimate and substantially served by the restriction of appellees' freedom of expression. See, e. g., Hynes v. Mayor and Council of the Borough of Oradell, supra, at 617-618; Konigsberg v. State Bar of California, 366 U. S. 36, 49-51 (1961); Marsh v. Alabama, 326 U. S. 501, 509 (1946). Although the majority does not rule that the trial court's findings were clearly erroneous, as would be required to set them aside, the Court finds persuasive the interests asserted by the Postal Service in defense of the statute. Those interests"protect[ing] mail revenues while at the same time facilitating the secure and efficient delivery of the mails," ante, at 129are indeed both legitimate and important. But mere assertion of an important, legitimate interest does not satisfy the requirement that the challenged restriction specifically and precisely serve that end. See Hynes v. Mayor and Council of the Borough of *146 Oradell, supra. See also Cox v. Louisiana, 379 U. S. 536, 557-558 (1965) (restriction must be applied uniformly and nondiscriminatorily).
Here, the District Court concluded that the Postal Service "has not shown that failure to enforce the statute as to [appellees] would result in a substantial loss of revenue, or a significant reduction in the government's ability to protect the mails by investigating and prosecuting mail theft, mail fraud, or unauthorized private mail delivery service." 490 F. Supp., at 163.[3] In light of this failure of proof, I cannot join the Court's conclusion that the Federal Government may thus curtail appellees' ability to inform community residents about local civic matters. That decision, I fear, threatens a departure from this Court's belief that free expression, as "the matrix, the indispensable condition, of nearly every other form of freedom," Palko v. Connecticut, 302 U. S. 319, 327 (1937), must not yield unnecessarily before such governmental interests as economy or efficiency. Certainly, free expression should not have to yield here, where the intruding statute has seldom been enforced.[4] As the exceptions created *147 by the Postal Service itself demonstrate,[5] the statute's asserted purposes easily could be advanced by less intrusive alternatives, such as a nondiscriminatory permit requirement for depositing unstamped circulars in letterboxes.[6] Therefore, I would find 18 U. S. C. § 1725 constitutionally defective.
Even apart from the result in this case, I must differ with the Court's use of the public forum concept to avoid application of the First Amendment. Rather than a threshold barrier that must be surmounted before reaching the terrain of the First Amendment, the concept of a public forum has more properly been used to open varied governmental locations to equal public access for free expression, subject to the constraints on time, place, or manner necessary to preserve the governmental function. E. g., Grayned v. City of Rockford, 408 U. S., at 115-117 (area around public school); Chicago Area Military Project v. Chicago, 508 F. 2d 921 (CA7) (city airport), cert. denied, 421 U. S. 992 (1975); Albany Welfare Rights Organization v. Wyman, 493 F. 2d 1319 (CA2) (welfare office waiting room), cert. denied sub nom. Lavine v. Albany Welfare Rights Organization, 419 U. S. 838 (1974); *148 Wolin v. Port of New York Authority, 392 F. 2d 83 (CA2) (port authority), cert. denied, 393 U. S. 940 (1968); Reilly v. Noel, 384 F. Supp. 741 (RI 1974) (rotunda of courthouse). See generally Lehman v. City of Shaker Heights, 418 U. S. 298, 303 (1974); Stone, Fora Americana: Speech in Public Places, S. Ct. Rev. 233, 251-252 (1974). These decisions apply the public forum concept to secure the First Amendment's commitment to expression unfettered by governmental designation of its proper scope, audience, or occasion.
I believe these precedents support my conclusion that appellees should prevail in their First Amendment claim. The traditional function of the mails led this Court to embrace Justice Holmes' statement that "`[t]he United States may give up the Post Office when it sees fit, but while it carries it on the use of the mails is as much a part of free speech as the right to use our tongues . . . .'" Lamont v. Postmaster General, 381 U. S. 301, 305 (1965), quoting United States ex rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U. S. 407, 437 (1921) (Holmes, J., dissenting). Given its pervasive and traditional use as purveyor of written communication, the Postal Service, I believe, may properly be viewed as a public forum. The Court relies on easily distinguishable cases in reaching the contrary conclusion. For the Postal Service's very purpose is to facilitate communication, which surely differentiates it from the military bases, jails, and mass transportation discussed in cases relied on by the Court, ante, at 129-130.[7] Cf. Tinker v. Des Moines Independent School *149 Dist., 393 U. S. 503, 512 (1969). Drawing from the exceptional cases, where speech has been limited for special reasons, does not strike me as commendable analysis.
The inquiry in our public forum cases has instead asked whether "the manner of expression is basically incompatible *150 with the normal activity of a particular place at a particular time." Grayned v. City of Rockford, 408 U. S., at 116. Compare Grayned v. City of Rockford (restriction on speech permissible near school while in session) with Tinker v. Des Moines Independent School Dist., supra (symbolic speech protected even during school hours); Cameron v. Johnson, 390 U. S. 611 (1968) (restriction on picketing permitted where limited to entrance of courthouse), with Brown v. Louisiana, 383 U. S. 131 (1966) (silent protest in library protected); Adderley v. Florida, 385 U. S. 39 (1966) (protest near jailyard inconsistent with jail purposes), with Edwards v. South Carolina, 372 U. S. 229 (1963) (protest permitted on state capitol grounds). Assuming for the moment that the letterboxes, as "authorized depositories," are under governmental control and thus part of the governmental enterprise, their purpose is hardly incompatible with appellees' use. For the letterboxes are intended to receive written communication directed to the residents and to protect such materials from the weather or the intruding eyes of would-be burglars.
Reluctance to treat the letterboxes as public forums might stem not from the Postal Service's approval of their form but instead from the fact that their ownership and use remain in the hands of private individuals.[8] Even that hesitation, I should think, would be misguided, for those owners necessarily retain the right to receive information as a counterpart of the right of speakers to speak. Kleindienst v. Mandel, 408 U. S. 753, 762-765 (1972); Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 389-390 (1969); Lamont v. Postmaster General, supra, at 307; Martin v. City of Struthers, 319 U. S., at 143. Cf. Procunier v. Martinez, 416 U. S. 396, 408 (1974) (communication by letter depends on receipt by addressee). On that basis alone, I would doubt the validity of 18 U. S. C. § 1725, for it deprives residents of the information *151 which civic groups or individuals may wish to deliver to these private receptacles.[9]
I remain troubled by the Court's effort to transform the letterboxes entirely into components of the governmental enterprise despite their private ownership. Under the Court's reasoning, the Postal Service could decline to deliver mail unless the recipients agreed to open their doors to the letter carrierand then the doorway, or even the room inside could fall within Postal Service control.[10] Instead of starting with the scope of governmental control, I would adhere to our usual analysis which looks to whether the exercise of a First Amendment right is burdened by the challenged governmental action, and then upholds that action only where it is necessary to advance a substantial and legitimate governmental interest. In my view, the statute criminalizing the placement of hand-delivered civic association notices in letterboxes fails this test. The brute force of the criminal sanction and other powers of the Government, I believe, may be *152 deployed to restrict free expression only with greater justification. I dissent.
JUSTICE STEVENS, dissenting.
JUSTICE MARSHALL has persuaded me that this statute is unconstitutional, but I do not subscribe to all of his reasoning. He is surely correct in concluding that content-neutral restrictions on the use of private letterboxes do not automatically comply with the First Amendment simply because such boxes are a part of the Postal Service. Like libraries and schools, once these facilities have come into existence, the Government's regulation of them must comply with the Constitution. See ante, at 151, n. 10. I cannot, however, accept the proposition that these private receptacles are the functional equivalent of public fora.
My disagreement with the Court and with JUSTICE MARSHALL can best be illustrated by looking at this case from the point of view of the owner of the mailbox. The mailbox is private property; it is not a public forum to which the owner must grant access. If the owner does not want to receive any written communications other than stamped mail, he should be permitted to post the equivalent of a "no trespassing" sign on his mailbox. A statute that protects his privacy by prohibiting unsolicited and unwanted deposits on his property would surely be valid. The Court, however, upholds a statute that interferes with the owner's receipt of information that he may want to receive. If the owner welcomes messages from his neighbors, from the local community organization, or even from the newly arrived entrepreneur passing out free coupons, it is presumptively unreasonable to interfere with his ability to receive such communications. The nationwide criminal statute at issue here deprives millions of homeowners of the legal right to make a simple decision affecting their ability to receive communications from others.
*153 The Government seeks to justify the prohibition on three grounds: avoiding the loss of federal revenues, preventing theft from the mails, and maintaining the efficiency of the Postal Service.[1] In my judgment the first ground is frivolous and the other two, though valid, are insufficient to overcome the presumption that this impediment to communication is invalid.
If a private partyby using volunteer workers or by operating more efficientlycan deliver written communications for less than the cost of postage, the public interest would be well served by transferring that portion of the mail delivery business out of the public domain. I see no reason to prohibit competition simply to prevent any reduction in the size of a subsidized monopoly. In my opinion, that purpose cannot justify any restriction on the interests in free communication that are protected by the First Amendment.
To the extent that the statute aids in the prevention of theft, that incidental benefit was not a factor that motivated Congress.[2] The District Court noted that the testimony indicated that § 1725 "was marginally useful" in the enforcement of the statutes relating to theft of mail. 490 F. Supp. 157, 161-162 (1980). It concluded, however, that the Government had failed to introduce evidence sufficient to justify *154 the interference with First Amendment interests.[3] The Court does not quarrel with any of the District Court's findings of fact, and I would not disturb the conclusion derived from those findings.
Mailboxes cluttered with large quantities of written matter would impede the efficient performance of the mail carrier's duties. Sorting through papers for mail to be picked up or having no space in which to leave mail that should be delivered can unquestionably consume valuable time. Without the statute that has been in place for decades, what may now appear to be merely a minor or occasional problem might grow like the proverbial beanstalk. Rather than take that risk, Congress has decided that the wiser course is a total prohibition that will protect the free flow of mail.
But as JUSTICE MARSHALL has noted, the problem is susceptible of a much less drastic solution. See ante, at 146, n. 3. There are probably many overstuffed mailboxes nowand if this statute were repealed there would be many morebut the record indicates that the relatively empty boxes far outnumber the crowded ones. If the statute allowed the homeowner to decide whether or not to receive unstamped communicationsand to have his option plainly indicated on the exterior of the mailboxa simple requirement that overstuffed boxes be replaced with larger ones should provide the answer to most of the Government's concern.[4]
*155 I am fully aware that it is one thing to sit in judicial chambers and opine that a postal regulation is not really necessary and quite another to run a mammoth and complex operation like the Postal Service. Conceivably, the invalidation of this law would unleash a flow of communication that would sink the mail service in a sea of paper. But were that to happen, it would merely demonstrate that this law is a much greater impediment to the free flow of communication than is presently assumed. To the extent that the law prevents mailbox clutter, it also impedes the delivery of written messages that would otherwise take place.
Finally, we should not ignore the fact that nobody has ever been convicted of violating this middle-aged nationwide statute. It must have been violated literally millions of times. Apparently the threat of enforcement has enabled the Government to collect some postage from time to time or to cause a few violators to discontinue their unlawful practices, but I have the impression that the general public is at best only dimly aware of the law and that numerous otherwise lawabiding citizens regularly violate it with impunity. This impression supports the conclusion that the statute is indeed much broader than is necessary to serve its limited purpose. Because, as JUSTICE MARSHALL has demonstrated, it does unquestionably abridge the free exchange of written expression. I agree with his conclusion that it violates the First Amendment.
I respectfully dissent.
NOTES
[*] Samuel J. Cohen filed a brief for the National Association of Letter Carriers, AFL-CIO, as amicus curiae urging reversal.
[1] On this point, a postal investigator testified that the Postal Service tries to engage in physical surveillance on the one or two days a month that large numbers of government checks are delivered. The investigator testified that without § 1725 "we would have many more people having access to the mailboxes or being in the vicinity of the mailboxes. This type of activity could hinder our surveillances in that we would not be sure if a person we see approaching a mailbox is a subject or has a legitimate reason for being there." App. 160. The investigator also stated that the Postal Service receives "many phone calls from concerned citizens who may report that someone has been seen in the area of their mailboxes. We try to respond to that area if at all possible to determine who that individual may be." Ibid. The Postal Service also receives assistance from local police who may be doing a similar type of surveillance and who would have "a difficult time identifying who it is exactly going into mailboxes . . . ." Id., at 161.
[2] The District Court reasoned that the alternative methods suggested by the Postal Service were inadequate because they can result in the civic notices either being lost or damaged as a result of wind, rain, or snow. Weatherstripping on doors may prevent the flyers from being placed under the door. Use of plastic bags for protection of the civic notices is both time consuming and "relatively expensive for a small volunteer organization. . . ." 490 F. Supp., at 160. Deposit of materials outside may cause litter problems as well as arouse resentment among residents because it informs burglars that no one is home. Alternative methods which depend on reaching the occupant personally are less effective because their success depends on the mere chance that the person called or visited will be home at any given time. The court also found that enforcement of § 1725 against civic associations "does not appear so necessary or contributive to enforcement of the anti-theft, anti-fraud or Private Express statutes that this interest outweighs the [appellees'] substantial interest in expedient and economical communication with their constituents." Id., at 163. Based on the above, the District Court concluded that "the cost to free expression of imposing this burden on [appellees] outweighs the showing made by the Postal Service of its need to enforce the statute to promote effective delivery and protection of the mails." Id., at 162.
[3] There appear to be at least two minor exceptions to this regulation. DMM 156.58 provides that "publishers of newspapers regularly mailed as second-class mail may, on Sundays and national holidays only, place copies of the Sunday or holiday issues in the rural and highway contract route boxes of subscribers, with the understanding that copies will be removed from the boxes before the next day on which mail deliveries are scheduled." This particular exception is designed to protect mail revenues by encouraging newspapers to use second-class mail for delivery of their papers. The exception allows distributors to deliver their papers in letterboxes only under certain conditions and on certain days when mail service is unavailable. A second exception to the requirement that only mail which bears postage may be placed in letterboxes is contained in DMM 156.4, which authorizes rural postal customers to leave unstamped mail in letterboxes when they also leave money for postage.
[4] We reject appellees' additional assertion raised below that 18 U. S. C. § 1725 cannot be applied to them because it was intended to bar the deposit of commercial materials only. The statute on its face bars the deposit of "any mailable matter" (emphasis added) without proper postage, and, as more fully explained by the District Court in its initial opinion rejecting this contention, the legislative history makes clear that both Congress and the Postal Service understood the statute would apply to noncommercial as well as commercial materials. 448 F. Supp., at 160-162.
[5] JUSTICE BRENNAN, concurring in the result, quotes the oft repeated aphorism of Justice Holmes, dissenting, in United States ex rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U. S. 407, 437 (1921), that "[t]he United States may give up the Post Office when it sees fit, but while it carries it on the use of the mails is almost as much a part of free speech as the right to use our tongues, and it would take very strong language to convince me that Congress ever intended to give such a practically despotic power to any one man." JUSTICE BRENNAN also quoted this aphorism in his opinion for the Court in Blount v. Rizzi, 400 U. S. 410, 416 (1971), a case dealing with the Postmaster General's authority to prevent distributions of obscene matter, which has little if any relation to the present case because no one contends that appellees' circulars are obscene. JUSTICE BRENNAN, however, does not refer to the dissenting opinion of Justice Brandeis in Burleson (with respect to which Justice Holmes said "I agree in substance with his view." 255 U. S., at 436). There, Justice Brandeis goes into a more detailed analysis of the relationship of the mails to the prohibitions of the First Amendment, and states:
"The Government might, of course, decline altogether to distribute newspapers; or it might decline to carry any at less than the cost of service; and it would not thereby abridge the freedom of the press, since to all papers other means of transportation would be left open." Id., at 431.
It seems to us that is just what the Postal Service here has done: it has by no means declined to distribute the leaflets which appellees seek to have deposited in mailboxes, but has simply insisted that the appellees pay the same postage that any other circular in its class would have to bear. Thus, neither the dissent of Justice Brandeis nor of Justice Holmes in Burleson supports JUSTICE BRENNAN'S position.
[6] JUSTICE BRENNAN argues that a letterbox is a public forum because "the mere deposit of mailable matter without postage is not `basically incompatible' with the `normal activity' for which a letterbox is used, i. e., deposit of mailable matter with proper postage or mail delivery by the Postal Service. On the contrary, the mails and the letterbox are specifically used for the communication of information and ideas, and thus surely constitute a public forum appropriate for the exercise of First Amendment rights subject to reasonable time, place, and manner restrictions such as those embodied in § 1725 . . . ." Post, at 137-138.
JUSTICE BRENNAN'S analysis assumes that simply because an instrumentality "is used for the communication of ideas or information," it thereby becomes a public forum. Our cases provide no support for such a sweeping proposition. Certainly, a bulletin board in a cafeteria at Fort Dix is "specifically used for the communication of information and ideas," but such a bulletin board is no more a "public forum" than are the street corners and parking lots found not to be so at the same military base. Greer v. Spock, 424 U. S. 828 (1976). Likewise, the advertising space made available in public transportation in the city of Shaker Heights is "specifically used for the communication of information and ideas," but that fact alone was not sufficient to transform that space into a "public forum" for First Amendment purposes. Lehman v. City of Shaker Heights, 418 U. S. 298 (1974). In fact, JUSTICE BLACKMUN recognized in Lehman that:
"Were we to hold to the contrary, display cases in public hospitals, libraries, office buildings, military compounds, and other public facilities immediately would become Hyde Parks open to every would-be pamphleteer and politician. This the Constitution does not require." Id., at 304.
For the reasons we have stated at length in our opinion, we think the appellees' First Amendment activities are wholly incompatible with the maintenance of a nationwide system for the safe and efficient delivery of mail. The history of the postal system and the role the letterbox serves within that system supports this conclusion, and even JUSTICE BRENNAN acknowledges that a "significant governmental interest" is advanced by the restriction imposed by § 1725. Post, at 135.
[7] JUSTICE MARSHALL in his dissent, post, at 143, states that he disagrees "with the Court's assumption that if no public forum is involved, the only First Amendment challenges to be considered are whether the regulation is content-based . . . and reasonable . . . ." The First Amendment prohibits Congress from "abridging freedom of speech, or of the press," and its ramifications are not confined to the "public forum" first noted in Hague v. CIO, 307 U. S. 496 (1939). What we hold is the principle reiterated by cases such as Adderley v. Florida, 385 U. S. 39 (1966), and Greer v. Spock, supra, that property owned or controlled by the government which is not a public forum may be subject to a prohibition of speech, leafleting, picketing, or other forms of communication without running afoul of the First Amendment. Admittedly, the government must act reasonably in imposing such restrictions, Jones v. North Carolina Prisoners' Union, 433 U. S. 119, 130-131 (1977), and the prohibition must be content-neutral. But, for the reasons stated in our opinion, we think it cannot be questioned that § 1725 is both a reasonable and content-neutral regulation.
Even JUSTICE MARSHALL'S dissent recognizes that the Government may defend the regulation here on a ground other than simply a "time, place, and manner" basis. For example, he says in dissent, post, at 143: "The question, then, is whether this statute burdens any First Amendment rights enjoyed by appellees. If so, it must be determined whether this burden is justified by a significant governmental interest substantially advanced by the statute." We think § 1725 satisfies even the test articulated by JUSTICE MARSHALL.
[1] It would make no sense to conclude that the "mails" are a vital medium of expression, but that letterboxes are not. Inasmuch as the Postal Service, by regulation, requires postal customers to provide appropriate mail receptacles conforming to specified dimensions, the letterbox is an indispensable component of the mail system.
[2] Of course, the postal power must be exercised in a manner consistent with the First Amendment. See Blount v. Rizzi, 400 U. S. 410. 416 (1971); Lamont v. Postmaster General, 381, U. S. 301, 305-306 (1965).
[3] See generally Gibbons, Hague v. CIO: A Retrospective, 52 N. Y. U. L. Rev. 731 (1977).
[4] In Greer v. Spock, 424 U. S. 828 (1976), pursuant to base regulations political candidates were denied permission to distribute campaign literature and to hold a political meeting on a military base. In upholding the challenged regulations, the Court specifically relied on the unique function of military installations "to train soldiers, not to provide a public forum," id., at 838, and the historic power of a commanding officer "`to exclude civilians from the area of his command.'" Ibid., quoting Cafeteria Workers v. McElroy, 367 U. S. 886, 893 (1961).
[5] In Adderley v. Florida, 385 U. S. 39 (1966), the Court upheld trespass convictions of students who were demonstrating on jailhouse property, relying principally on the purpose of jails, "built for security purposes," id., at 41, which unlike "state capitol grounds," are not open to the public. Ibid.
[6] In Jones v. North Carolina Prisoners' Union, 433 U. S. 119 (1977), prisoners challenged the constitutionality of prison regulations prohibiting prisoners from soliciting other inmates to join a prisoners' labor union and barring union meetings and bulk mailings concerning the union from outside sources. The Court upheld the regulations in the face of a First Amendment challenge on the basis that the First Amendment activity was incompatible with "reasonable considerations of penal management." Id., at 132. The Court also rejected the prisoners' equal protection challenge. The Court analogized a prison to a military base, stating that a "prison may be no more easily converted into a public forum than a military base," id., at 134, and concluded that prison officials could treat the union differently from other organizations such as the Jaycees and Alcoholics Anonymous for meetings and for bulk mailing purposes, because the "chartered purpose of the Union . . . was illegal under North Carolina law." Id., at 135-136.
[7] In Lehman v. City of Shaker Heights, 418 U. S. 298 (1974), the Court upheld a ban on political advertising in buses, but only four Justices concluded that advertising space in a city transit system is not a First Amendment forum. They reached that result because the transit system sought, by its limitation on political speech, "to minimize chances of abuse, the appearance of favoritism, and the risk of imposing upon a captive audience." Id., at 304. Justice Douglas concurred in the judgment on the narrow ground that petitioner had no constitutional right to force his message upon a captive audience. Joined by JUSTICES STEWART, MARSHALL, and POWELL, I dissented on the ground that "the city created a forum for the dissemination of information and expression of ideas when it accepted and displayed commercial and public service advertisements on its rapid transit vehicles." Id., at 310.
[8] Even if the letterbox were characterized as purely private property that is being regulated by the Government, rather than property which has become incorporated into the "Postal Service's nationwide system for the receipt and delivery of mail," ante, at 123, § 1725 would still be subject to time, place, and manner analysis. See, e. g., Young v. American Mini Theatres, Inc., 427 U. S. 50, 63, n. 18 (1976).
[1] 490 F. Supp. 157, 162 (1980).
[2] Indeed, the record in this litigation indicates that appellees circulated less information when inhibited from using the letterboxes. Plaintiffs' Answer to Written Interrogatories, Record, Doc. No. 23, ¶ 8, pp. 6-7. The practical effect of applying the statute in residential communities would preclude Girl Scouts, Boy Scouts, charities, neighbors, and others from leaving invitations or notes in the place residents most likely check for messages.
[3] The Government's interest in ensuring the security of the mails is advanced more directly by 18 U. S. C. §§ 1341, 1708. To the extent that the security and efficiency problems are attributed to overcrowding in letterboxes, the problem could be resolved simply by requiring larger boxes.
As for protection of mail revenues, it is significant that the District Court found the cost of using the mails prohibitive, given appellees' budgets, and the delays in mail delivery too great to make it useful for appellees' needs. 490 F. Supp., at 160. Apparently, appellees' compliance with 18 U. S. C. § 1725 would not increase mail revenues. Although protection of the Postal Service obviously must take the form of national regulation, having broad application, a statute's nondiscriminatory terms may not save it where infringement of speech is demonstrated. Murdock v. Pennsylvania, 319 U. S. 105, 115 (1943).
[4] Appellant conceded at oral argument that the Postal Service knew of no convictions and only one attempted prosecution under the statute. Tr. of Oral Arg. 15. That unsuccessful prosecution was dismissed because the District Court found impermissibly vague the prohibition on depositing unstamped "mailable matter such as statements of account, circulars, sales bills, or other like matter." United States v. Rogers, Cr. No. 72-87 (MD La. Feb. 16, 1973) (emphasis added). Apparently, no prosecutions have since been attempted, although the statute may be used to support the efforts of local postal offices in collecting unpaid postage. Tr. of Oral Arg. 15.
[5] The Postal Service has interpreted the statute to exempt mailslots, id., at 8, and to provide exception for certain kinds of deliveries, Domestic Mail Manual (DMM) 156.58 (newspapers, normally mailed but delivered on Sunday or holidays); 39 CFR § 310.6 (1979) (letters dispatched within 50 miles of destination and same-day delivery). And by applying only to "mailable matter," the statute excludes pornography and other items not lawfully carried by the Postal Service. The Service thus has itself acknowledged that the statute sweeps more broadly than necessary.
[6] Such a permit requirement could accomplish the central purpose of the statuteto restrain commercial enterprises from avoiding postal fees by employing their own delivery services. See ante, at 125.
[7] Rather than supporting the conclusion that the Postal Service letterbox is not a public forum, the cases cited by the majority, ante, at 129-130, in fact point in the other direction. The Court resolved two First Amendment issues in Jones v. North Carolina Prisoners' Union, 433 U. S. 119 (1977): the scope of associational rights retained by convicted prisoners, and their right, if any, to bulk mail rates. The Court analyzed both issues under the principle that while in prison, "an inmate does not retain those First Amendment rights that are `inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.'" Id., at 129, quoting Pell v. Procunier, 417 U. S. 817, 822 (1974). No such principle applies to appellees. Furthermore, the public forum analysis in Jones asked whether exercise of the First Amendment rights would be incompatible with the purposes of the governmental facility, a question answerable in the negative in this case.
In Greer v. Spock, 424 U. S. 828, 838 (1976), the Court concluded that Fort Dix was not a public forum due to its military purpose and the power of "'the commanding officer summarily to exclude civilians from the area of his command'" (quoting Cafeteria Workers v. McElroy, 367 U. S. 886, 893 (1961)). At the same time, the Court emphasized that political campaign literature could still be distributed at the base unless it posed a clear danger to troop discipline and loyalty, 424 U. S., at 840. Thus, the base remained a "public forum" at least for written communication. A plurality of the Court in Lehman v. City of Shaker Heights, 418 U. S. 298, 303-304 (1974), found the city transit system not a public forum because its advertising space was incidental to its primary commercial transportation purpose. The plurality nevertheless recognized that the state action present necessitated a balancing analysis of the First Amendment interests of those seeking advertising space and the interests of the government and the users of the transit system. Further, both the plurality and Justice Douglas, in his separate opinion concurring in the result, relied on an analogy to the mass media which has no obligation under the First Amendment to broadcast or print any particular story or advertisement. Id., at 303 (opinion of BLACKMUN, J.); id., at 306 (opinion of Douglas, J.). In contrast, the Postal Service is obliged to accept all mailable matter. Finally, in Adderley v. Florida, 385 U. S. 39 (1966), the security needs of the jail were critical to the Court's conclusion that trespassers on the jail grounds could properly be prosecuted. Adderley itself noted that spaces more traditionally used by the public would more likely be public forums, id., at 41-42, and this treatment is appropriate here, given the traditional public use of the Postal Service. The determinative question in each of these cases was not whether the government owned or controlled the property, but whether the nature of the governmental interests warranted the restrictions on expression. That is the question properly asked in this case.
[8] But see Marsh v. Alabama, 326 U. S. 501 (1946).
[9] The Court announced the First Amendment rights of recipients in Lamont v. Postmaster General, 381 U. S. 301 (1965). There, the Court struck down a postal regulation denying delivery of Communist propaganda sent from outside the country, even though the regulation permitted such delivery to recipients who notified the Postal Service in writing that they wished to receive the material. Untenable, in the Court's view, was the fact that under the regulatory scheme, "[t]he addressee carries an affirmative obligation which we do not think the Government may impose on him." Id., at 307. The concern for the addressee's First Amendment rights should govern here.
[10] Appellant suggests no First Amendment problem is presented because residents would not erect letterboxes but for the Postal Service, and the First Amendment did not compel the creation of the Service. Brief for Appellant 18-19. This argument obviously proves too much, because the First Amendment did not ordain the establishment of schools or libraries, and yet we have held that once established, these public facilities must be managed consistently with the First Amendment. Tinker v. Des Moines Independent School Dist., 393 U. S. 503 (1969); Brown v. Louisiana, 383 U. S. 131 (1966).
[1] Although the Government also advances the privacy interests of the mailbox owner, those interests would of course be protected by allowing the individual owner to make the choice whether he wanted to receive unstamped mail.
[2] The Government, see Brief for Appellant 4, n. 4, cites legislative history indicating that the "principal motivation for the statute" was the protection of postal revenues and prevention of overstuffing of mailboxes. The Government later notes that "[a]lthough Congress' primary purpose in enacting Section 1725 was the protection of mail revenues, the statute also plays a role in the investigation of mail theft." Id., at 7. Because this justification, unlike the other two, was formulated after the statute was enacted, it is not entitled to the same weight as the purposes that actually motivated Congress.
[3] The District Court held that "enforcement of § 1725 against civic associations does not appear so necessary or contributive to enforcement of the anti-theft, anti-fraud or Private Express statutes that this interest outweighs the plaintiffs' substantial interest in expedient and economical communication with their constituents." 490 F. Supp., at 163.
[4] To the extent that the efficiency of the Postal Service would be impeded by the effort required for mail carriers to sort through papers for outgoing mail, the solution is again in the hands of the individual owner of the mailbox. If he wants to use this method of sending letters and wants also to receive unstamped communications, he runs the risk that his outgoing mail will not be seen by the mail carrier.
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993 F.2d 879
Terrant (Mamie K.)v.Director Office of Workers' Compensation Programs
United States Court of Appeals,Third Circuit.
Apr 20, 1993
1
Appeal From: Ben.Rev.Bd.
2
REVIEW DENIED.
| {
"pile_set_name": "FreeLaw"
} |
51 So.3d 251 (2011)
Dr. Rick HOOVER, Appellant
v.
Dr. Robert HOLBERT, Appellee.
No. 2009-CA-01349-COA.
Court of Appeals of Mississippi.
January 11, 2011.
*252 Kristopher W. Carter, Ocean Springs, attorney for appellant.
William T. Reed, attorney for appellee.
Before KING, C.J., IRVING, ROBERTS and CARLTON, JJ.
IRVING, J., for the Court:
¶ 1. Dr. Robert Holbert owned the Gautier Medical Clinic P.A. in Gautier, Mississippi. In 2000, Dr. Holbert sold the clinic to Dr. Rick Hoover. Around the time of the sale, Dr. Hoover executed a promissory note to Dr. Holbert in the amount of $100,000. Dr. Hoover refused to pay the note, claiming that it was merged into a subsequent asset purchase agreement. Dr. Holbert sued Dr. Hoover in the Jackson County County Court. The county court ruled in favor of Dr. Holbert, and Dr. Hoover appealed to the Jackson County Circuit Court, which found that the promissory note was valid and affirmed the judgment of the county court. Dr. Hoover now appeals, claiming that the parol-evidence rule "strictly prohibits bringing in the prior promissory note to alter the unambiguous terms of the subsequent Asset Purchase Agreement. . . ."
¶ 2. We agree with the county court that the promissory note is valid and enforceable. Accordingly, we affirm the circuit court's judgment.
FACTS
¶ 3. On August 18, 2000, Dr. Hoover executed a promissory note to Dr. Holbert for $100,000. In its entirety, the note states:
I[,] Rick Hoover[,] promise to compensate Robert Holbert $100,000. This compensation will become due Aug. first 2005. Furthermore[,] there will be interest paid at the rate of 5% each year on the principle of $100,000. This compensation is for remuneration for services and goods rendered. This promissory note may not be reduced. This is a personal as well as a business debt. In the event of Robert Holbert's death[,] this compensation will be paid to his legitimate heirs. In the event of the death or disability of Rick Hoover this compensation will be paid by his estate. In the event of disability[,] arrangements will be made as necessary. It would be expected a legitimate effort would be made to respect this compensation. This promissory note is a legitimate debt and would be considered a ligament [sic] debt were it to be tried in court. All services and goods have been rendered complete for this contract. There are no outstanding contributions to be made by Dr. Holbert to Dr. Hoover for this compensation. This note represents a complete contract and does not require any further documentation for payment due.
(Emphasis added). On the same day, Drs. Hoover and Holbert entered into an "Asset *253 Purchase Agreement" for the sale of Dr. Holbert's medical clinic to Dr. Hoover. The relevant portions of that agreement are as follows:
THIS Asset Purchase Agreement is made the 18th day of August, 2000[,] by and between RICK D. HOOVER, M.D., hereinafter referred to as "Purchaser[,"] and ROBERT D. HOLBERT, M.D. and GAUTIER MEDICAL CLINIC, P.A., hereinafter referred to as "Sellers[."]
WHEREAS, Sellers own the Accounts Receivable, inventory[,] and other assets utilized by Sellers in the practice and on the real property of the practice;
WHEREAS, Purchaser is a licensed medical doctor who desires to purchase, own, manage[,] and operate the medical clinic owned by Sellers;
NOW THEREFORE, in consideration of the mutual covenants and agreement in [sic] contained, Sellers agree to sell to Purchaser the assets described herein and Purchaser agrees to purchase such assets from Sellers on the terms and conditions provided in this agreement[.]
* * *
ARTICLE II
A. SALE AND PURCHASE OF ASSETS
1. Upon the terms and subject to the conditions of this Agreement, effective as of the Closing Date, Sellers shall sell, transfer, assign, convey[,] and deliver good and marketable title to the Assets to Purchaser, and Purchaser shall purchase the Assets from Sellers free and clear of any Encumbrances other than Encumbrances specifically assumed by Purchaser, for the consideration set forth in this Agreement. Purchaser shall not purchase the Excluded Assets. The sale, transfer, assignment[,] and conveyance of the Assets shall be made by the execution and delivery at Closing of a bill of sale . . . as of the Closing Date and a recordable warranty deed executed by Sellers, as shown on Exhibit 2.2, and other instruments of assignment, transfer[,] and conveyance as Purchaser shall request.
* * *
8. Consideration for sale and transfer for the purchase price for the assets shall be payable at closing in cash in the amount of $300,000 for the personal and real property conveyed in transfer herein.
9. Sellers shall at any time, and from time to time, at and after the closing upon request of the Purchaser shall [sic] take any and all steps necessary to place Purchasers [sic] in possession [sic] an operating control of the assets and business to be transferred hereunder.
10. Warranties of Seller: Seller has no debts, liabilities, claims[,] or obligations (whether crude, absolute[,] contingent[,] known[,] or unknown or otherwise) of any nature whatsoever affecting the assets other than liabilities that have been specifically disclosed on the Tax Schedule.
* * *
14. Authority, Binding Effect. Sellers have full power and authority to enter into this Agreement and to carry out the transactions contemplated hereby. The execution, delivery, and performance of this Agreement constitutes the valid and binding agreement of Sellers enforceable in accordance with its terms.
* * *
22. Allocation of Purchase Price:
a. $230,000.00Purchase price for real property owned by Robert D. Holbert, individually.
b. $70,000.00Purchase price for real property and non-real property owned by Gautier Medical Clinic, P.A.
*254 * * *
ARTICLE IV
A. SELLER[']S RIGHT OF EMPLOYMENT
1. Seller shall have the right for a period of two years, and longer if extended by the parties, to engage in the practice of medicine at the Gautier Medical Clinic location in Gautier, Mississippi. Seller shall receive as compensation the sum of 53% of all income received as a direct result of the practice of medicine. This agreement, the exhibits [,] and the schedules delivered pursuant hereto constitute the entire contract between the parties hereto. Pertaining to the subject matter hereof and to precede all prior and contemporaneous agreement, understandings, negotiations [,] and discussions whether written or oral of the parties and there are no representations, warranties [,] or other agreements between the parties in connection with the subject matter hereof except as specifically set forth herein.
(Emphasis added). Dr. Hoover contends that section one of article four invalidates the promissory note, which was executed shortly before the purchase agreement.
¶ 4. On August 16, 2004, Dr. Holbert filed suit against Dr. Hoover in the county court. The suit proceeded to trial, during which Dr. Holbert realized that the promissory note had not actually matured. Accordingly, on March 1, 2005, the county court dismissed Dr. Holbert's suit without prejudice for being "filed prematurely." The promissory note matured on August 1, 2005; however, Dr. Hoover refused to make any payments on the promissory note once that date had passed. On November 28, 2007, Dr. Holbert again filed suit in the county court. Both doctors filed motions for summary judgment, and the county court denied both motions after allowing the parties sixty days to conduct additional discovery. The only evidence that appears to have been produced during that sixty days was an affidavit from George Murphy, the attorney who drafted the purchase agreement. In its order denying the motions, the county court allowed the parties ten days in which to request a trial; the order stated that if trial was not requested, then the county court would rule on the record before it. No request for a trial was filed by either side, and the county court proceeded to rule on the case with the evidence it had. The county court found in favor of Dr. Holbert and ordered Dr. Hoover to pay $100,000 plus interest on the promissory note; Dr. Hoover was also ordered to pay court costs. Dr. Hoover filed an appeal to the circuit court, which affirmed the county court's judgment.
¶ 5. Murphy's affidavit stated that he had drafted the purchase agreement and that, to the best of his knowledge, the "contract was the entire agreement between the parties with regard to the subject matter therein. It was for that reason we placed the integration clause in the contract." There was evidence showing that the $100,000 promissory note was executed because Dr. Hoover could only get financing for $300,000 while the sale price of the clinic was $400,000. In its order in favor of Dr. Holbert, the county court stated:
The Plaintiff has proved by a preponderance of the [e]vidence that the parties reached an agreement to sell and purchase the Gautier Medical Clinic and the real estate for the sum of $400,000.00. However[,] the lending institution would only lend $300,000.00 based on the hard assets. The parties reached an agreement that the Defendant would pay an additional $100,000.00, reflected in the Note sued upon and executed on the same day as the documents consummating *255 the sale and the Hoover's [sic] loan from the Bank of $300,000.00, making a total purchase price of $400,000.00.
After hearing oral argument, the circuit court stated the following:
I have to note that even though the signatures, or the documents occurred the signing of same on the same day, that the Asset Purchase Agreement is clear, and I don't find it unambiguous. I mean, it makes it very clear that these two men entered into a contract for $300,000 to sell the business, and Dr. Hoover signed it, Dr. Holbert signed it in his individual capacity, and his corporate capacity, and it sets out with specificity what is being purchased, building, et cetera. The Promissory Note, on the other hand, is signed by different signatories, and it is for remuneration and services. Totally different from assets.
¶ 6. Additional facts, if necessary, will be related during our analysis and discussion of the issue.
ANALYSIS AND DISCUSSION OF THE ISSUE
¶ 7. Dr. Hoover contends that the circuit and county courts erred in finding the promissory note enforceable. Dr. Hoover argues that the parol-evidence rule "strictly prohibits bringing in the prior promissory note to alter the unambiguous terms of the subsequent Asset Purchase Agreement" and that "summary judgment for Dr. Hoover was appropriate because the full agreed upon purchase price of $300,000 . . . was paid in full."
¶ 8. When reviewing the interpretation of a contract, we employ a de novo standard of review. Cherokee Ins. Co. v. Babin, 37 So.3d 45, 48 (¶ 8) (Miss. 2010). An appellate court "first look[s] to the express wording of the contract itself, looking at the contract as a whole, to the exclusion of extrinsic or parol . . . evidence." Id. (citing Warwick v. Gautier Util. Dist., 738 So.2d 212, 215 (¶ 8) (Miss. 1999)). The "`canons' of contract construction" will then be applied "[i]f the parties' intent is unclear. . . ." Id. (citing HeartSouth, PLLC v. Boyd, 865 So.2d 1095, 1105(26) (Miss.2003)). "Finally, if the meaning remains ambiguous, only then may the court consider extrinsic evidence." Id. (citing HeartSouth, 865 So.2d at 1105 (¶ 26)).
¶ 9. The basis of this suit is the promissory note, not the asset purchase agreement. Therefore, we must look at the promissory note to see if its meaning can be ascertained from its express terms. We find that it can. The promissory note stated that it was "for remuneration for services and goods rendered." No reference was made to the sale of the medical clinic, and the promissory note concluded by stating that: "This note represents a complete contract and does not require any further documentation for payment due." The intent of the promissory note is clear from its terms: it represents a debt owed by Dr. Hoover to Dr. Holbert in the amount of $100,000 for "services and goods rendered." The note indicated that the debt was personal as well as business related. The purchase agreement, testimonies, and Murphy's affidavit all constitute parol evidence as to the promissory note. Since the terms of the promissory note are explicit and easily understood, it would be improper to consider any extrinsic evidence. In short, the promissory note constitutes a separate legal obligation from the asset purchase agreement, and the two should not be considered together. The county court was correct in entering a judgment against Dr. Hoover for $100,000 plus interest and court costs, and the circuit court was correct in affirming that judgment.
*256 ¶ 10. THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. ISHEE, J., NOT PARTICIPATING.
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517 F.3d 1163 (2008)
UNITED STATES of America, Plaintiff-Appellee,
v.
James F. GARRO, Defendant-Appellant.
No. 06-50513.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted September 25, 2007.
Filed February 28, 2008.
*1164 Frank J. Ragen, Julie A. Blair, and Michael Pancer, San Diego, CA, for the appellant James Garro.
*1165 Karen P. Hewitt, United States Attorney, Bruce R. Castetter and Mark R. Rehe, Assistant United States Attorneys, San Diego, CA, for appellee the United States.
Before: J. CLIFFORD WALLACE, SANDRA S. IKUTA, and N. RANDY SMITH, Circuit Judges.
WALLACE, Senior Circuit Judge:
Garro appeals from his 135-month prison sentence after a jury conviction of eight counts of wire fraud, see 18 U.S.C. § 1343, eleven counts of money laundering, see 18 U.S.C. §§ 1956(a)(1)(A)(i), (a)(1)(B)(i), and one count of tax evasion, see 26 U.S.C. § 7201. He argues that the district court erroneously applied the Sentencing Guidelines and imposed an unreasonable sentence under 18 U.S.C. § 3553(a). We have jurisdiction pursuant to 18 U.S.C. § 3742 and we affirm Garro's sentence.[1]
I.
In September and October of 1999, Garro, holding himself out to be a self-employed financial consultant for foreign countries wanting to stimulate their economies, raised $37.5 million dollars from five investors: (1) TLC America ($20 million); (2) Child's Hope ($10 million); (3) Kelldeer & Carrington ($3.5 million); (4) Veronica Disabello ($2 million); and (5) Curtis Martin ($2 million). The money was for the purpose of entering what Garro called a "Leveraged Investment Program," which would buy and resell "medium term bank notes" in foreign markets. Each investor entered into a written contract with Garro's business entity, Sienna Financial, Ltd., and was promised at least double his or her investment in fifteen days.
On October 28, 1999, Garro sent investors a letter indicating that one phase of the program was complete and that each investor could expect a wire transfer of profits no later than November 1, 1999. Garro prepared this letter with the help of Louis Cimaglia. During the course of the scheme, Garro used Cimaglia as a "long-distance secretary" from Cimaglia's home in Maryland. Cimaglia was a point of contact with investors and would create documents, send and receive faxes, and field investor telephone calls for Garro. For his role in Garro's scheme, Cimaglia pled guilty to one count of conspiracy to commit wire fraud.
November 1 came and went without payment of any profits. After this date passed, investors began contacting Garro with concerns. On November 10, 1999, Garro sent a letter apologizing and explaining that the profits were even greater than anticipated but were so high that they "had come under strict scrutiny" and been delayed. The letter promised that 200% profits would be in investors' bank accounts no later than November 17, 1999.
November 17 passed with no disbursement of profits. On December 3, 1999, Garro had Cimaglia send another letter indicating that the money was ready for disbursement but that Garro had to travel personally to banks to effect the wire transfers. Contrary to that and subsequent assurances, no investor received promised profits. In the end, no investor received any profits.
In fact, the investor money was never invested at all. Investors deposited the *1166 money into an escrow account and later released it into Garro's control. Garro then moved the money from the escrow to a couple of Bank of America accounts held by a corporation that he incorporated and owned, Navajo Capital. Once the money was in Garro's Navajo Capital corporate accounts, he used it to buy and remodel three homes, manipulating the transactions to mask his involvement in the purchases.
For example, Garro purchased a Santa Fe, New Mexico, residence through Santa Fe Abstract, Ltd. To do this, he moved $30 million from one of Navajo Capital's Bank of America accounts to one of its Union Bank accounts, then moved $25 million from the Union Bank account to a U.S. Bank account held by Citation Financial Management to obscure his transactions further. That money was then moved to another account at U.S. Bank. Then, $17.49 million was transferred from the second Citation Financial Management account to a Texas Bank One account held by Merlin Financial, an entity Garro owned, and then to yet another Texas Bank One account held by Merlin Financial. Merlin Financial then wired $2,344,635 to Santa Fe Abstract. Garro, through another of Navajo Capital's Bank of America accounts, had also directly wired $260,000 to Santa Fe Abstract. The Santa Fe home was then paid for in cash by Camelot International, LLC, another entity created by Garro. Garro signed the purchase agreement in the name "Elissa M. Dee," his employee. He also wrote a letter, signed Elissa Dee, directing the seller that the buyer's name remain confidential.
Garro used similarly complex transactions involving multiple bank accounts, corporate shells, cash, and others' names to purchase homes in La Jolla and Encinitas, California. Most of the rest of the investor money stayed in accounts held by Garro and his corporate entities. No money was ever put into the investment programs he described to investors.
After failing to receive profits, the investors each eventually demanded their money back. TLC America, after investing $20 million on September 13, 1999, became worried when no profits appeared. On October 12, 1999, Garro returned $4 million of its principal. On November 5, 1999, after TLC America's president, Ernest Cossey, told Garro that he was very concerned about the investment, Garro sent TLC America another $2 million along with a letter assuring Cossey that the program was still working and profits were forthcoming. This failed to reassure Cossey, who wrote Garro on November 12, 1999, stating that TLC America did not wish to remain in the program and asking Garro to return the rest of its principal. Garro asked Cossey to be patient, telling him that the money was coming, and returned another $4 million of TLC America's principal on December 16, 1999. TLC America continued to contact Garro asking for its money back without success. Finally, on September 29, 2000, Garro agreed to convey his La Jolla home to TLC America to repay the remainder of TLC America's principal.
Child's Hope also became concerned after investing $10 million on September 24, 1999, and failing to see profits within the promised fifteen days. Child's Hope's director began to "dog [Garro] every day to get[Child's Hope's] funds back." On November 18, 1999, a Child's Hope lawyer sent Garro a letter demanding that he return the money in full and threatening legal action. Garro initially refused to comply but on November 24, 1999, he returned $3.5 million to Child's Hope. Child's Hope signed a release acknowledging that it had received the $3.5 million on December 8, 1999, but at that point "didn't feel *1167 like there was any validity to the program itself" and wanted to get out of the scheme. After months of pestering, Garro wired Child's Hope the remaining $6.5 million of its principal on January 20, 2000.
Kelldeer & Carrington never received back the $3.5 million that they had invested, despite negotiations and agreements with Garro. Disabello eventually received all but $550,000 of her principal. Martin received all $2 million of his principal in November 1999.
The Federal Bureau of Investigation (FBI) began investigating Garro in 2000. He was arrested in October 2002 for wire fraud. On March 15, 2005, a twenty-count indictment charged Garro with wire fraud, money laundering, and tax evasion. On April 4, 2005, after a seven-day trial, a jury returned guilty verdicts on all twenty counts. Following a two-day sentencing hearing, on August 25, 2006, Garro was sentenced to 135 months in prison, three years of supervised release, and over six-million dollars in restitution.
II.
We review the district court's interpretation of the Sentencing Guidelines de novo, the district court's application of the Guidelines to the facts for abuse of discretion, and the district court's factual findings for clear error. United States v. Cantrell, 433 F.3d 1269, 1279 (9th Cir.2006). Although the Guidelines are only advisory, a material error in calculating the sentencing range is grounds for resentencing. Id. at 1280.
A.
Garro first argues that the district court erroneously calculated the amount of loss for sentencing purposes. Under the applicable set of Sentencing Guidelines, Garro's crime carried a base level of six. See USSG § 2F1.1(a) (1998). The district court found that the amount of loss in Garro's fraudulent scheme exceeded $20 million, resulting in a sixteen-level increase. See USSG § 2F1.1(b)(1)(Q) (1998). Garro contends that the district court erred in calculating the amount of loss for sentencing purposes by failing to offset the money that he received by the money that he returned to investors. A calculation of the amount of loss is a factual finding reviewed for clear error. See United States v. Lawrence, 189 F.3d 838, 844 (9th Cir.1999). The "loss need not be determined with precision," but "need only [be] a reasonable estimate . . . given the available information." United States v. Bussell, 504 F.3d 956, 960 (9th Cir.2007) (quoting USSG § 2F1.1, cmt. n. 8 (1994)).
Although Garro did, in some form or another, return a substantial portion of the money he had taken, the district court found that most of the money that Garro returned could not be credited to him because it was returned after his scheme was detected, and an amount of loss for sentencing purposes is only offset by money returned "prior to the discovery of the offense." United States v. Bright, 353 F.3d 1114, 1118 (9th Cir.2004); United States v. Stoddard, 150 F.3d 1140, 1146 (9th Cir.1998).
The district court found that Garro's offense was "discovered" by TLC America on November 12, 1999, and by Child's Hope on December 8, 1999, the dates on which TLC America and Child's Hope contacted Garro requesting their money back. The court found that TLC America's November 12, 1999 letter to Garro, stating unequivocally that TLC America "did not wish to remain" in the program and asking for the return of its full deposit, sufficed to show that TLC America was "on notice of irregularities" by that date, especially because two weeks had gone by since Garro told TLC America that it would receive its profits no later than November 1, 1999. *1168 The court also found that Child's Hope's steps to retrieve money, particularly the release that it signed on December 8, 1999, showed that it, too, was "on notice" of deceptive conduct on Garro's part.
Not counting the money returned to TLC America after November 12, 1999 and to Child's Hope after December 8, 1999, the amount of loss occasioned by Garro's scheme totaled $20 million. Add to that Veronica Disabello's $550,000 and Kelldeer & Carrington's $3.5 million, which Garro admits was never repaid, and the amount exceeds $20 million without regard to any other losses.
Garro disputes these findings, arguing that the investors' requests to receive their money back was not a discovery of the offense because the investors had not discovered the criminal nature of Garro's actions. This argument is unavailing; we do not require that victims discover the actual crime to determine that a fraud has been "discovered." In Bright, for example, we held that a defendant's fraud had been "discovered" when investors wrote to him demanding their money back. 353 F.3d at 1118.
Here, the district court did not clearly err in determining that Garro's fraud had been "discovered" for sentencing purposes on dates when his investors, after waiting and never receiving a cent of promised profits after delays and empty reassurances, began demanding their money back. Investors need not make any specific criminal accusations or say any magic words for a court to conclude that the offense has been discovered.
Garro's claim that the investors merely got cold feet in a high-stakes investment scheme is belied by the fact that, by the time they requested their money back, the investors had been promised a 100% return on their investments within fifteen days and had been told that they would see the money no later than November 1, 1999. Indeed, on November 10, 1999, Garro promised investors that the profits had already been made and that they had only to wait for disbursement. When the dates by which Garro promised payment came and went without disbursement of a single penny, investors not only had reason to be disappointed that their financial bets did not work out, they also had reason to believe that the entire program was a sham. While fraud may not be "discovered" merely when investors voice concerns, what happened in this case went considerably further. The failure of Garro to deliver on his unqualified promises coupled with investors' demands for their money back shows the district court's findings were not clearly erroneous. The district court properly applied the "economic reality approach" by refusing to credit repayments Garro made as part of "an effort to reduce accountability" after the investors discovered Garro's fraud. Stoddard, 150 F.3d at 1146.
B.
Garro also argues that the district court employed the wrong standard of proof in arriving at its loss calculation: the district court used a "preponderance of evidence" rather than a "clear and convincing" standard of proof. As Garro failed to object in the district court, we review for plain error. See United States v. Jordan, 256 F.3d 922, 925 (9th Cir.2001).
Although a preponderance of evidence standard is ordinarily applied to establish facts used in sentencing, when the combined effect of contested enhancements would have "an extremely disproportionate effect on the sentence imposed," we apply a balancing test to determine whether the higher "clear and convincing" standard of proof should apply. See United States v. Staten, 466 F.3d 708, 718 (9th Cir.2006); United States v. Riley, 335 F.3d *1169 919, 926-27 (9th Cir.2003); Jordan, 256 F.3d at 928-29. In identifying the appropriate standard of proof, we have distinguished between enhancements based upon charged conduct for which the defendant has been convicted, and enhancements based upon uncharged conduct. See, e.g., Riley, 335 F.3d at 926-27. In Riley, we declined to apply the clear and convincing standard of proof because the enhancement at issue was "based entirely on the extent of the conspiracy to which [the defendant] pled guilty." Id. at 926. Here, the government's indictment charging Garro with a wire fraud scheme specifically alleged that he raised $37.5 million dollars. A jury found Garro guilty of the conduct alleged in the indictment. Thus, the district court's enhancement to Garro's sentence for loss exceeding $20 million was based on conduct for which Garro was charged and convicted. As the sentencing enhancement for amount of loss was not based on uncharged or acquitted conduct, it was not plain error for the district court to use a preponderance of evidence standard of proof.
Garro's argument fails for another reason. Even if the district court's application of a preponderance standard of review were an error, it would not be "plain." Jordan, 256 F.3d at 926. The court's use of the preponderance standard of proof did not, in light of the evidence at trial and the court's findings at sentencing, "seriously affect[ ] the fairness, integrity, or public reputation of the judicial proceedings." Id. (internal quotation marks omitted).
C.
Garro next contends that the district court erroneously included $13 million dollars of money that he returned to investors when it calculated that he had laundered $78 million. Even if that were true, which we do not decide, the error would be harmless: the twelve-level enhancement imposed by the district court applies to sums between $60 and $100 million dollars. Thus, even excluding the $13 million, the total amount of money Garro laundered still falls within the range to which a twelve-level enhancement applies. Therefore, the alleged error is harmless and thus not a ground for resentencing. See, e.g., United States v. Crawford, 185 F.3d 1024, 1029 (9th Cir.1999) (sentencing errors reviewed for harmlessness).
D.
Garro also argues that the district court erred in enhancing his sentence for using "sophisticated means." The district court found that Garro had "used and incorporated numerous shell corporations, many of which he incorporated during this scheme," that he had intentionally "left behind numerous confusing and misleading documents" regarding the investors' funds, that he had forged signatures on real estate transactions, and had made "other associates sign for him for other real estate purchases, to avoid having his name appear on the transaction or assets." Garro's objection notwithstanding, his conduct was precisely what the Sentencing Guidelines describe as indicating "sophisticated means": "conduct such as hiding assets or transactions, or both, through the use of . . . corporate shells." USSG § 2F1.1, cmt. n. 15 (1998).
Garro also argues that it was improper for the district court to impose an enhancement for both more than minimal planning and the use of sophisticated means. We have not addressed that specific issue, but the Eleventh Circuit has rejected the same argument. See United States v. Humber, 255 F.3d 1308, 1314 (11th Cir.2001) ("We conclude that USSG § 2F1.1(b)(2)(A) and USSG § 2F1.1(b)(5)(C) are to be applied cumulatively, and not in the alternative"). We agree with the Eleventh Circuit's approach *1170 because it accords with the language and structure of the Guidelines, as well as our precedent on related issues.
First, the Guidelines suggest, at least generally, that the two enhancements can be applied together. The application notes to the Guidelines explain that "[t]he offense level adjustments from more than one specific offense characteristic within an offense guideline are cumulative (added together) unless the guideline specifies that only the greater (or greatest) is to be used." USSG § 1B1.1, cmt. n. 4 (1998). Indeed, in the Guidelines, elements that are intended to be alternative rather than cumulative are clearly defined as such. See, e.g., USSG § 2F1.1(b)(2) (1998) ("If the offense involved (A) more than minimal planning, or (B) a scheme to defraud more than one victim, increase by 2 levels"). There is no such definition of the enhancements for more than minimal planning and sophisticated means. Each is in a separate section, and the application notes do not provide that the enhancements are mutually exclusive. See id. § 2F1.1(b)(2), (6), cmt. nn. 2, 15. The Guidelines on their face, then, permit the enhancements to be applied cumulatively.
Moreover, our interpretation is supported by the fact that application note 15 provides, "[i]f the conduct that forms the basis for an enhancement [for sophisticated means] is the only conduct that forms the basis for an adjustment under § 3C1.1 (Obstruction of Justice), do not apply an adjustment under § 3C1.1." Just as the Guidelines provisions explicitly indicate when one enhancement excludes imposition of another, the application notes also indicate when imposition of one enhancement impacts or excludes imposition of another. Neither the Guidelines nor their commentary provide that enhancements for more than minimal planning and sophisticated means are mutually exclusive, and we will not create such a rule.
Garro points out that § 2F1.1 cmt. n. 15 provides that "[t]he enhancement for sophisticated means . . . requires conduct that is significantly more complex or intricate than the conduct that may form the basis for an enhancement for more than minimal planning." From this he argues that the enhancement for more than minimal planning is therefore encompassed in the enhancement for sophisticated means, and that the two enhancements cannot be applied cumulatively. We will not embrace this interpretation because the comment note does not state that the two enhancements are mutually exclusive, unlike the express statements precluding the concurrent application of other enhancements.
E.
Garro argues that the district court erred in imposing a two-level enhancement based on his involvement of another person, Cimaglia, in his scheme. The district court's finding that Garro was a leader or organizer is reviewed for clear error. See United States v. Lopez-Sandoval, 146 F.3d 712, 716 (9th Cir.1998).
The two-level aggravating role enhancement applies "[i]f the defendant was an organizer, leader, manager, or supervisor in any criminal activity." USSG § 3B1.1(c) (1998). Contrary to Garro's argument, the law does not require that the supervised person be substantially involved in the criminal scheme. See United States v. Melvin, 91 F.3d 1218, 1225-26 (9th Cir.1996).
Cimaglia testified at trial that he prepared materials for Garro and interacted with investors under Garro's direction; additionally, there were tape recordings and writings presented as evidence at trial that showed Garro directing Cimaglia in execution of Garro's scheme. Based on this evidence, the district court did not *1171 clearly err in finding that Garro supervised Cimaglia.
F.
Garro disputes the district court's two-level sentence enhancement for obstruction of justice. A factual finding that a defendant obstructed justice is reviewed for clear error. United States v. Jimenez, 300 F.3d 1166, 1170 (9th Cir.2002). The Guidelines state that perjury is obstruction of justice for enhancement purposes. USSG § 3C1.1, cmt. n. 4(b) (1998). For a court to find that a defendant obstructed justice through perjury, it must find that (1) the defendant gave false testimony, (2) on a material matter, (3) with willful intent. United States v. Jimenez-Ortega, 472 F.3d 1102, 1103 (9th Cir.2007).
The district court found that Garro willfully offered several false, material statements at trial. Many of these statements expressly contradicted documents that he had prepared and sworn affidavits he had made. Additionally, in an attempt to place the blame on Cimaglia, Garro played a tape at trial contending that it related to the investment scheme at issue; the district court, however, found that it was obvious that the tape related to an entirely different investment scheme.
Garro does not dispute these findings, but argues that he had a "grandiose/delusional/demented mental status" and that he lacked the necessary mental state to act "willfully." He relies on the findings of a psychologist who evaluated him after one meeting and concluded that he had "unrealistic ideas about reality" and showed signs of dementia. The psychologist never concluded or suggested, though, that Garro was so impaired that he could not act willfully or that he actually believed his trial testimony to be true. Most important, the psychologist never suggested that Garro suffered from dementia at the time he testified. The district court found that, possible dementia notwithstanding, Garro was not credible and that his false testimony was willful. The district court's decision in light of the entire record and its observation of Garro is plausible and thus not clearly erroneous. See Cantrell, 433 F.3d at 1283-84.
III.
We review a district court's sentence for reasonableness in light of the sentencing factors set forth in 18 U.S.C. § 3553(a) and we reverse a sentence free of procedural error only if the district court abused its discretion. See Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 594, 597, 169 L.Ed.2d 445 (2007). A district court is required only to state the reasons for the sentence imposed in enough detail to satisfy an appellate court that it has "considered the parties' arguments and has a reasoned basis for exercising [its] own legal decisionmaking authority." Rita v. United States, ___ U.S. ___, 127 S.Ct. 2456, 2468-69, 168 L.Ed.2d 203 (2007).
Garro argues that his sentence, which was fifty-three months below the correctly-calculated Guidelines range, was unreasonable and that the district court failed to account properly for the factors enumerated in 18 U.S.C. § 3553(a). However, the district court gave careful consideration to the section 3553 factors and supported its conclusions with reasoned analysis. In particular, it carefully considered the nature and circumstances of Garro's offense and the need to protect the public and deter crime. It listened to and considered Garro's arguments concerning his history and personal characteristics, including his psychological state and age, and awarded Garro a nearly three-level downward departure based on those factors. Though Garro argues that his sentence creates unwarranted sentencing disparities between *1172 him and others involved in his and other financial crimes, the district court reasoned that Garro was not similarly situated to those with whom he compared himself because they had either pled guilty or had committed different crimes. The district court did everything required by the Supreme Court and its chosen sentence was neither unreasonable nor reflective of an abuse of the ample discretion we afford to the district court under Gall. 128 S.Ct. at 597-602.
SENTENCE AFFIRMED.
NOTES
[1] We affirmed Garro's conviction, which he challenged along with his sentence, in a separate disposition.
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0636n.06
No. 14-1420
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA, ) Sep 11, 2015
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellee, )
)
ON APPEAL FROM THE
v. )
UNITED STATES DISTRICT
)
COURT FOR THE EASTERN
DONALD STEVEN REYNOLDS, )
DISTRICT OF MICHIGAN
)
Defendant-Appellant. )
Before: BOGGS and BATCHELDER, Circuit Judges; and HUCK, District Judge.*
BOGGS, Circuit Judge. Defendant-Appellant Donald Reynolds appeals his conviction, after
a jury trial, and his sentence for three counts of violating federal child-pornography law. He
argues that the district court erred in (1) admitting expert testimony based on historical cell-site
data; (2) permitting the government to call a rebuttal witness; (3) excluding two alibi witnesses;
(4) imposing a sentence enhancement; and (5) calculating the amount in restitution. For the
following reasons, we affirm.
I. Background
On April 7, 2011, undercover Federal Bureau of Investigations (FBI) Special Agent Ryan
Blanton used a peer-to-peer file-sharing program to download images containing child
pornography from a computer. The FBI traced the computer’s internet-protocol address to
Donald Reynolds’s home in Canton, Michigan. On May 26, 2011, FBI agents executed a search
warrant on the home and seized the desktop computer from which Blanton had downloaded the
*
The Honorable Paul C. Huck, United States District Judge for the Southern District of Florida, sitting by
designation.
1
child-pornography images. In addition to Donald Reynolds, three other individuals regularly
used that computer: Reynolds’s two adult children who lived with him—Arica and Andrew
Reynolds1—and Arica’s boyfriend, Michael Cook. All four individuals denied using the
computer to view, download, or distribute child pornography. Reynolds admitted that he owned
the computer and that he had an account at Match.com, an online dating service.
FBI computer forensic examiner Walker Sharp found on the computer’s hard drive over
8,000 child-pornography images that had been downloaded through a peer-to-peer file-sharing
program. Sharp identified the following periods in May 2011 during which a user downloaded
child pornography onto the computer.
May 6, 2011 between 5:08 PM and 6:07 PM
May 12, 2011 between 5:55 PM and 10:56 PM
May 13, 2011 between 7:01 PM and 7:46 PM
May 18, 2011 at approximately 2:24 PM
May 23, 2011 between 9:42 PM and 10:23 PM
May 24, 2011 between 7:01 AM and 7:40 AM and at 5:05 PM
May 25, 2011 between 4:50 PM and 5:59 PM
The FBI analyzed cellphone records and concluded that, during the relevant download
periods, Andrew, Arica, and Cook each had their cellphone activity that used cell towers that
were geographically inconsistent with their being located at Reynolds’s residence. In contrast,
Reynolds made cellphone calls that used cell towers that were consistent with his being at his
residence during the download periods. In addition to the cellphone evidence, Andrew was at
work during four of the child-pornography download periods, and Arica and Cook were not
1
This opinion will refer to Donald Reynolds’s adult children by their first names to avoid confusion.
2
present at the home during the May 25 download period. There was also activity through
Reynolds’s Match.com account on the computer during or near several child-pornography
downloads periods.
The government charged Reynolds with one count of receipt of child pornography, in
violation of 18 U.S.C. § 2252(A)(a)(2); one count of distribution of child pornography based on
sharing files with Agent Blanton on April 7, 2011, in violation of the same statute; and one count
of possession of child pornography, in violation of 18 U.S.C. § 2252(A)(a)(5)(B). The
government presented FBI Agent Christopher Hess to give expert testimony on historical cell-
site tracking analysis. Reynolds moved the district court to exclude Hess’s testimony or, in the
alternative, to grant a Daubert hearing “to determine the admissibility of the Government’s
proposed evidence related to cell-site tracking analysis.” The district court denied the motion.
Reynolds called Manfred Schenk as an expert witness to rebut Hess’s testimony, and the
government called Joseph Smyk, a Sprint-Nextel engineer, to rebut Schenk. Defense counsel
objected to Smyk’s rebuttal testimony on the ground that it was unexpected expert testimony, in
violation of Federal Rule of Criminal Procedure 16, but the district court concluded that Smyk
offered “classic rebuttal” testimony. Defense counsel sought to introduce two alibi witnesses in
the middle of trial, well after the alibi-witness-disclosure deadline. The government objected,
and the district court excluded the two witnesses from testifying.
A jury convicted Reynolds on all three counts. The district court applied a sentence
enhancement under the advisory guidelines for possession of over 600 child-pornography images
and sentenced Reynolds to 144 months of imprisonment. The district court also ordered
Reynolds to pay a total of $26,500 in restitution to two identified child-pornography victims.
This appeal followed.
3
II. Standard of Review
We review for abuse of discretion a district court’s evidentiary rulings concerning the
admission of expert testimony, rebuttal testimony, and undisclosed alibi-witnesses testimony.
Kumho Tire. Co. v. Carmichael, 526 U.S. 137, 142 (1999) (excluding expert testimony); United
States v. Rayborn, 495 F.3d 328, 343 (6th Cir. 2007) (admitting rebuttal testimony); United
States v. White, 583 F.2d 899, 902 (6th Cir. 1978) (excluding alibi witnesses). We will only
“find an abuse of discretion where [we] ha[ve] a definite and firm conviction that the court below
committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant
factors.” United States v. Jones, 403 F.3d 817, 820 (6th Cir. 2005) (internal quotation marks and
citation omitted). We review the district court’s application of the sentencing guidelines de
novo, United States v. Brown, 579 F.3d 672, 677 (6th Cir. 2009), and its restitution awards for
abuse of discretion, United States v. Vandeberg, 201 F.3d 805, 812 (6th Cir. 1999).
III. Discussion
A. Reliability of Historical Cell-Site Tracking Analysis
Without holding a Daubert hearing, the district court admitted Agent Hess’s testimony that,
out of the four individuals who had access to the computer, Reynolds was the only one whose
cellphone connected with cell towers that were consistent with the caller being at the residence
during the relevant child-pornography download periods. Reynolds argues that the district court
abused its discretion because Hess’s historical cell-site tracking analysis was neither relevant nor
reliable.
Testimony “concerning how cell phone towers operate constitute[s] expert testimony because
it involve[s] specialized knowledge not readily accessible to any ordinary person.” United States
v. Yeley-Davis, 632 F.3d 673, 684 (10th Cir. 2011). The district court admitted Agent Hess’s
4
analysis as expert testimony. Federal Rule of Evidence 702 requires the district court to act as a
“gatekeeper” by “ensuring that an expert’s testimony both rests on a reliable foundation and is
relevant to the task at hand.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993).
A district court is not required to hold a Daubert hearing before admitting expert testimony.
Clay v. Ford Motor Co., 215 F.3d 663, 667 (6th Cir. 2000). In the absence of a Daubert hearing,
we review the record “to determine whether the district court erred in its assessment of the
relevance and reliability of the expert testimony.” Greenwell v. Boatwright, 184 F.3d 492, 498
(6th Cir. 1999).
Evidence is relevant if it has a tendency to make a fact of consequence more or less probable
than it would be without the evidence. Fed. R. Evid. 401. Agent Hess’s testimony was
unquestionably relevant because it was probative as to whether each of four persons who
generally had access to a desktop computer was absent from the computer’s location while child
pornography was downloaded onto that computer.
When evaluating the reliability of expert testimony, we focus “solely on principles and
methodology, not on the conclusions that they generate.” Daubert v. 509 U.S. at 595. The
Supreme Court listed factors that courts could use to assess the reliability of scientific or
technical expert testimony, including (1) whether the expert’s technique or theory can be, or has
been, tested in some objective sense; (2) whether the technique or theory has been subject to peer
review or publication; (3) the known or potential rate of error of the technique or theory when
applied; (4) the existence and maintenance of standards and controls; and (5) the degree to which
the technique or theory has been generally accepted by the scientific community. Id. at 593–95.
The Daubert factors do not “necessarily apply . . . in every instance in which the reliability of
scientific testimony is challenged,” and the district courts retains considerable discretion in
5
assessing reliability. Kumho Tire, 526 U.S. at 141, 151; Fed. R. Evid. 702 advisory committee
notes (2000 Amendment). But this discretion does not permit the district court “to perform the
[gatekeeping] function inadequately.” Kumho Tire, 526 U.S. at 158–59 (Scalia, J., concurring).
Expert testimony is properly excluded if it “is connected to existing data only by the ipse dixit of
the expert. A court may conclude that there is simply too great an analytical gap between the
data and the opinion proffered.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).
Cellular technology relies on radio waves to carry transmissions between a cellphone and a
cell site, also known as a cell tower. Each tower typically has three antennae, each responsible
for covering a 120-degree wedge. In the area surrounding Canton, Michigan, cell towers are
spaced approximately one to two miles apart. A cell site “sector” refers to the area contained
within a (usually) hexagonal array of cell towers. A cellphone generates “historical” cell-site
data when it places a call and connects to a specific cell tower.2 Such data includes the particular
cell-tower antenna to which the cellphone connected and the duration of the call.3 The “one-
location” tracking approach assumes that the cellphone connected to the closest tower because
that tower is most likely to produce the strongest signal. As most cell towers have three antennae
facing different directions, the data generally indicate the direction of the caller relative to that
tower—i.e., the 120-degree wedge serviced by the antenna—and thereby estimate the cell-site
sector from which the call originated. See Cisco, Wi-Fi Location-Based Services 4.1: Location
Tracking Approaches 2-1 (2008). While cellphones are designed to connect to the tower with
2
A cellphone also produces “real time” data by passively transmitting signals to every tower within range
when it is powered on, regardless of whether a call is made. Law-enforcement officers can triangulate a caller’s
location with real-time data with reasonable precision. See In re Application of U.S. for an Order for Prospective
Cell Site Location Info. on a Certain Cellular Tel., 460 F. Supp. 2d 448, 451 n.3 (S.D.N.Y. 2006). But cellphone
companies do not typically record real-time data. See Declan McCullagh, Feds Push for Tracking Cell Phones,
CNET News (Feb. 11, 2010), http://www.cnet.com/news/feds-push-for-tracking-cell-phones/.
3
A cell tower sometimes “hands off” a cellphone to another tower that produces a stronger signal during a
call. There may be multiple “hand offs” during a single call. When this occurs, the cellphone company records the
initial and the final cell towers that were connected to the cellphone, but it does not record intermediate connections.
6
the strongest signal, that tower might not actually be the closest because factors such as weather,
obstructions, and network traffic can cause a call to connect to a tower farther away.
FBI historical cell-site tracking does not account for these factors.
Reynolds relies on United States v. Evans to argue that Agent Hess’s historical cell-site
analysis was not a reliable indicator of his past location. 892 F. Supp. 2d 949 (N.D. Ill. 2012).
In Evans, an FBI agent applied a technique to estimate the general location of the defendant’s
cellphone during a twenty-minute period in which the phone connected to two towers to place
nine calls. Id. at 952.
To determine the location of a cell phone using the theory of granulization,
Special Agent Raschke first identifie[d] (1) the physical location of the cell sites
used by the phone during the relevant time period; (2) the specific antenna used at
each cell site; and (3) the direction of the antenna’s coverage. He then estimate[d]
the range of each antenna’s coverage based on the proximity of the tower to other
towers in the area. This is the area in which the cell phone could connect with the
tower given the angle of the antenna and the strength of its signal. Finally, using
his training and experience, Special Agent Raschke predict[ed] where the
coverage area of one tower will overlap with the coverage area of another.
Ibid. The Evans court excluded the cell-site tracking testimony as being unreliable under
Daubert because the testimony rested upon the questionable assumption that the defendant’s
phone connected to the closest tower in each call. 4 Id. at 955–57; cf. United States v. Sepulveda,
115 F.3d 882, 891 (11th Cir. 1997) (rejecting “cell site analysis offered by the government and
relied on by the district court” at a sentencing hearing because the analysis “contained inherent
uncertainties” as to which sector was the origin of calls that connected to a particular cell site).
4
The FBI’s cell-site analysis of Andrew’s cellphone records highlights the Evans court’s concern.
According to Agent Hess’s analysis, Andrew made “multiple calls” on May 12, 2011, using cell towers that were
“consistent with [his] employment address located at 6581 North Wayne Road, Westland, Michigan.” One call
connected to cell site 212-4, which is the second closest tower to that address and is approximately 1 mile away. A
second call connected to cell site 212-88, which is the fifth closest tower and is approximately 3 miles away.
Historical cell-site tracking analysis would have placed Andrew’s location at the time he made the second call in the
cell-site sector adjacent to the sector in which his place of employment was located.
7
Several “courts have reached the opposite conclusion of the Evans Court regarding the
reliability of an agent’s methodology in estimating cell sectors where the agent used cell-phone
records.” United States v. Machado-Erazo, 950 F. Supp. 2d 49, 57 (2013) (quoting United States
v. Davis, No. 11-60285-cr, 2013 WL 2156659, at *6 (S.D. Fla. May 17, 2013)). These courts
relied primarily on other federal courts’ acceptance of historical cell-site tracking to conclude
that the technique is reliable. Id. at 56; see also United States v. Schaffer, 439 F. App’x 344, 346
(5th Cir. 2011); Davis, 2013 WL 2156659, at *6; United States v. Fama, No. 12-cr-186, 2012
WL 6102700, at *3 (E.D.N.Y. Dec. 10, 2012).
However, “judges are not scientists and do not have the scientific training that can
facilitate the making of [scientific] decisions.” Joiner, 522 U.S. 136, 148 (Breyer, J.,
concurring); see e.g., National Academies of Science, Strengthening Forensic Science in the
United States 161 (2009) (concluding that, although many courts accept microscopic hair
analysis, “testimony linking microscopic hair analysis to a particular defendant is highly
unreliable” and that there is “no scientific support for the use of hair comparisons for
individualization in the absence of DNA”). For this reason, Daubert identified the “scientific
community,” rather than federal courts, as the relevant group in which acceptance is an indicator
of a technique’s reliability. 509 U.S. at 593–94. But there is controversy as to whether cell-site
tracking can pinpoint a call’s origin to a specific cell-sector. See e.g., Cisco, Wi-Fi Location-
Based Services 4.1: Location Tracking Approaches 2-1 (2008) (“[T]he overwhelming drawback
of pure cell of origin positioning approaches continues to be coarse granularity. For various
reasons, mobile devices can be associated to cells that are not in close physical proximity,
despite the fact that other nearby cells would be better candidates.”).
8
United States v. Schaffer, which lies at the heart of the anti-Evans citation chain,
concluded that using historical cell-site tracking analysis to determine a person’s past
whereabouts was reliable because the technique was “neither untested nor unestablished.” 439
F. App’x at 347. But it reached this conclusion on the basis of testimony that the technique had
been tested and accepted by the law-enforcement community, and not the scientific community.
An FBI expert testified that the “FBI had been successful at least 1000 times” in locating
suspects with historical cell-site tracking. Ibid. This claim appears to be precisely the sort of
“ipse dixit of the expert” testimony that should raise a gatekeeper’s suspicion. See Joiner, 522
U.S. at 146. While being successfully employed “1000 times” may sound impressive, the claim
is not subject to independent peer review and fails to establish an error rate with which to assess
reliability because there was no information on how many times the technique was employed
unsuccessfully.
The Schaffer court also concluded that “the technique has been accepted by
approximately [sic] federal courts.” 439 F. App’x at 347. But the two federal cases it cited—
Sepulveda, 115 F.3d at 891, and United States v. Weathers, 169 F.3d 336 (6th Cir. 1999)—do not
support the proposition that historical cell-site tracking can reliably determine a caller’s location.
At a sentencing hearing where the court’s gatekeeper function under Rule 702 was not triggered,
Sepulveda rejected historical cell-site data as an unreliable indicator of the cell sector from which
a call originated. 115 F.3d at 891; Fed. R. Evid. 1101(d)(3). And Weathers simply did not
involve the use of historical cell-site data to estimate a person’s past location in any way.5
5
In Weathers, historical cell-site data was introduced to show that the defendant’s cellphone sent signals
from his known and undisputed location in Kentucky to a cell site in Indiana. 169 F.3d at 342. The court held that
this transmission established the “interstate commerce” element for the defendant’s murder-for-hire conviction.
Ibid.
9
We need not resolve in this case the split among federal courts as to the reliability of
using historical cell-site analysis to determine a caller’s location as being in a specific cell-sector.
This is because Agent Hess used historical cell-site analysis to identify a cell-sector in which
callers were not. The Evans court held that the FBI’s tracking technique in that case was
unreliable because it rested upon the questionable assumption that each call connected to one of
the nearest towers. 892 F. Supp. 2d at 956. Agent Hess’s analysis did not rely on this
assumption. Rather than placing any of the four callers at a specific sector, Agent Hess sought to
exclude each of them from the sector in which the Reynolds residence was located by showing
that their calls connected to cell towers that were far away from the residence. While the
assumption that every call connected to the nearest tower may (or may not) require “too great an
analytical gap between the data and the opinion proffered,” see Joiner, 522 U.S. at 146, it is
reliable to assume that a call would not connect to a tower that was many sectors away. United
States v. Benford, No. 2:09-cr-86, 2010 WL 2346305, at *3 (N.D. Ind. June 8, 2010) (admitting
cell-site analysis showing that a perjury defendant’s phone connected with a cell tower over
30 miles away from the place she testified to have been); see also United States v. Henderson,
564 F. App’x 352, 363 (10th Cir. 2014) (admitting lay testimony based on cellphone records that
a call did not originate from a particular place); United States v. Feliciano, 300 F. App’x 795,
800 (11th Cir. 2008) (same).
Cell records in this case showed that Cook made calls during the child-pornography
download periods that connected to multiple cell towers in Dearborn and Inkster, all located
between 10 and 15 miles away from the Reynolds residence; Arica made calls that connected to
two cell towers in southwest Detroit, located approximately 20 miles away from the residence;
10
and Andrew made calls that connected to two towers that were 6 to 8 miles away.6 Agent Hess
assumed that each call was not diverted to a tower that was many sectors away to conclude that
these three individuals were absent from the residence during the relevant time periods. While
the assumption that a tower would not service a call made 10 or 20 miles away may be
challenged—and indeed it was challenged at Reynolds’s trial—such a challenge speaks to the
weight of the evidence, and not to its inherent reliability, because there are identifiable,
measurable, and scientifically accepted factors that determine a cell tower’s maximum coverage
range.7 See e.g., Jones, 918 F. Supp. 2d at 5 (holding that challenges to “assumptions about the
strength of the signal from a given cell tower . . . go to the weight of [the] testimony, not its
reliability”).
Reynolds made calls that connected to two towers that were each approximately 1 mile
away from his residence. Agent Hess’s analysis concluded that, unlike the other three household
members, the cell-site data did not show that Reynolds was absent from the home. Importantly,
Agent Hess declined to draw a conclusion about Reynolds’s location on the basis of cell-site data
alone. The data was used to establish the absence of the other household members from
Reynolds’s residence. The data was also used to show that Reynolds’s absence from the
residence could not be demonstrated, permitting an inference that Reynolds was the only one out
of four household members who was at the residence during the time child pornography was
downloaded onto a desktop computer in that residence. Hess’s technique thereby avoided the
6
While the cell towers that Andrew used were a shorter distance from the residence, his employer testified
that he was not at the residence during four of the download periods because he was at work.
7
Reynolds presented evidence that a typical cell tower could service a call 30 miles away but the
government countered with evidence that, because the cellphone company angled its cell-site antennae downward,
the actual coverage range was substantially shorter.
11
disputed assumption that each call connected to the nearest tower or originated from within a
specific cell sector.
Therefore, even if we adopt Reynolds’s position that the nearest-tower assumption is
unreliable for the purpose of Rule 702, his argument fails because Hess’s conclusion as to
Reynolds’s whereabouts did not rely on that assumption. Accordingly, the district court did not
abuse its discretion in admitting historical cell-site tracking analysis to determine where
household members were not located during child-pornography download periods.
B. Admission of Rebuttal Testimony
Reynolds identified Manfred Schenk as an expert whom he might call to rebut Agent Hess’s
testimony, but he did not expressly communicate an intention to call Schenk until after Hess’s
testimony had concluded. Reynolds ultimately did call Schenk as a rebuttal witness, and Schenk
disputed Hess’s testimony that cellphones usually connect to the nearest tower and that the two
towers near Reynolds’s home provided service ranges of 1.5 miles. Specifically, Schenk
estimated that a cellphone could connect to a tower that was 30 miles away, which meant that
Arica could have been in Reynolds’s residence when she placed calls that connected to towers in
southwest Detroit, 18 miles away. In response to Schenk’s testimony, the government called
Sprint-Nextel engineer Joseph Smyk. Smyk testified that, though proximity is not the only
factor, it is the most important factor in determining the tower to which a cellphone call
connects. He further explained that, because Sprint-Nextel tilted its cell towers at a downward
angle, the coverage was far less than the 30 miles that Schenk projected. Smyk estimated that a
call originating from Reynolds’s residence has a 90% chance of being serviced by one of the two
closest towers.
12
Reynolds argues on appeal that Smyk was an improper rebuttal witness. Rebuttal testimony
is properly admitted to “rebut new evidence or new theories proffered in the defendant’s case-in-
chief, and is not limited by the fact that the plaintiff could have introduced the proffered
evidence in his case-in-chief.” United States v. Caraway, 411 F.3d 679, 683 (6th Cir. 2005)
(internal quotation marks omitted). Smyk’s evidence responded directly to Schenk’s testimony
as to the range of the cell towers and attendant implications and so was proper rebuttal evidence.
Further, Reynolds’s argument that the government planned all along to “backload” Smyk for a
“sneak attack” is unconvincing. See Appellant’s Br. at 43–44. Reynolds never confirmed in
advance whether he would call Schenk and so the government could not have reliably planned
on using Smyk to ambush Reynolds. Accordingly, the district court did not abuse its discretion
in admitting Smyk’s testimony.
C. Exclusion of Alibi Witnesses
Reynolds challenges the district court’s exclusion of two alibi witnesses—James Reynolds
(the defendant’s brother) and Larry Bullock—who were disclosed late, in violation of Federal
Rule of Criminal Procedure 12.1(a)(1). Rule 12.1(a)(1) allows the government to request from
the defendant a list of alibi witnesses for specified times and places, and the defendant must
provide the list “[w]ithin 14 days after the request, or at some other time the court sets.” Fed. R.
Crim. P. 12.1(a)(2). If a party fails to comply, “the court may exclude the testimony of any
undisclosed witness regarding the defendant’s alibi.” Id. at 12.1(e). To determine whether
exclusion is proper, the district court should consider (1) the amount of prejudice to the
government resulting from late disclosure; (2) the reason for nondisclosure; (3) the extent to
which nondisclosure harms were mitigated by subsequent events; (4) the weight of properly
13
admitted evidence supporting the defendant’s guilt; and (5) other relevant factors. White,
583 F.2d at 902.
The government requested alibi witnesses from Reynolds on March 19, 2013 for the relevant
child-pornography download periods. Reynolds did not disclose James Reynolds and Larry
Bullock as alibi witnesses until June 26, 2013, after trial had begun. The government was
undoubtedly prejudiced by this late disclosure because it could not investigate the alibi, and
subsequent events did not mitigate this prejudice. Nor did Reynolds’s offer to make these
witnesses available for interview cure this prejudice. Trial had started, and the government had
already prepared (and partially presented) a case-in-chief that did not take these witnesses into
account. Further, Reynolds’s proffered reasons for late disclosure—ambiguities in the
government’s notice and his desire to avoid disclosing “the nature of the charges” to family and
friend—were unconvincing. The government’s notice contained precise time-and-place
information and so was not ambiguous. Discomfort at disclosing criminal charges to potential
alibi witnesses is an issue that every criminal defendant faces and so cannot excuse late
disclosure. Accordingly, the district court did not abuse its discretion in excluding James
Reynolds and Larry Bullock.
D. Sentence and Restitution
USSG § 2G2.2(b) provides for a five-level enhancement for child-pornography convictions
that involve 600 or more images. The district court applied this enhancement to Reynolds’s
sentence based on the fact that the FBI found 8,000 child-pornography images on his computer.
Reynolds argues that the government proved only 269 images because that was the number of
images downloaded during the specific dates and times identified by the FBI. While the
government may have proved that Reynolds received only 269 unlawful images, in violation of
14
18 U.S.C. § 2252(A)(a)(2), it also proved that he possessed over 8,000 images, in violation of 18
U.S.C. § 2252(A)(a)(5)(B), because that was the number of images found on his computer.
Therefore, the district court properly applied the enhancement.
Reynolds also objects to the restitution awarded to two identified child-pornography victims
as being improperly determined through “an exercise in speculation.” Appellant’s Br. at 63.
Under 18 U.S.C. § 2259, a district court must award restitution to child-pornography victims in
the “full amount of the victim’s losses” proximately caused by the offense. Paroline v. United
States, 134 S. Ct. 1710, 1722 (2014). The restitution amount should reflect the degree to which
the individual’s crime contributed to the victim’s injuries. Id. at 1729 (“[V]ictims should be
compensated and . . . defendants should be held to account for the impact of their conduct on
those victims, but also . . . defendants should be made liable for the consequences and gravity of
their own conduct, not the conduct of others.”). The Supreme Court declined to provide a
mathematical formula to calculate restitution and instead provided a non-exhaustive list of
relevant factors for consideration by lower courts. Id. at 1728. Recognizing difficulties in this
approach, the Supreme Court asked lower courts to “do their best” in exercising their “discretion
and sound judgment.” Id. at 1728–29.
The district court considered the Paroline factors and concluded that Reynolds owed $11,000
and $15,500 to the victims, respectively. The district court reached these figures by using $1,000
as a baseline restitution amount for each victim and adjusted upwards on the basis of the number
of images that Reynolds possessed and the graphic and sadistic nature of those images. United
States v. Reynolds, No. 12-cr-20843, 2014 WL 4187936, at *7 (E.D. Mich. Aug. 22, 2014). The
upward adjustment was greater for one of the victims because she had received fewer restitution
awards to date. Id at *6. While this may seem speculative to Reynolds, the Supreme Court gave
15
the district court broad discretion to calculate restitution with limited guidance. The district
court indeed did “do its best” in following that guidance, and Reynolds presents no evidence to
the contrary. Accordingly, the district court did not abuse its discretion in awarding restitution.
IV. Conclusion
We AFFIRM Reynolds’s convictions, sentence, and restitution.
16
| {
"pile_set_name": "FreeLaw"
} |
12-4570-cr
United States v. Lombardo
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007,
is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s Local Rule 32.1.1. When citing
a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electronic
database (with the notation “summary order”). A party citing a summary order must serve a copy of it on any party not
represented by counsel.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the
2 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
3 5th day of December, two thousand thirteen.
4
5 PRESENT:
6
7 DEBRA ANN LIVINGSTON,
8 RAYMOND J. LOHIER, JR.,
9 SUSAN L. CARNEY,
10
11 Circuit Judges.
12 _______________________________________________
13
14 UNITED STATES OF AMERICA,
15
16 Appellee,
17 -v.- No. 12-4570-cr
18
19 MARCUS LOMBARDO,
20 Defendant-Appellant.
21 _______________________________________________
22 BRENDA K. SANNES, PAULA RYAN CONAN, ASSISTANT
23 UNITED STATES ATTORNEYS, for Richard S. Hartunian,
24 United States Attorney for the Northern District of New
25 York, Syracuse, NY, for Appellee.
26 TIMOTHY E. AUSTIN, ASSISTANT FEDERAL PUBLIC DEFENDER,
27 MOLLY KATHLEEN CORBETT, Albany, NY, for Defendant-
28 Appellant.
1
1 Appeal from a judgment of the United States District Court for the Northern District of New
2 York (McAvoy, J.).
3 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and DECREED
4 that the November 9, 2012 judgment of the district court is AFFIRMED in part, VACATED in
5 part, and the case is REMANDED.
6 Defendant-Appellant Marcus Lombardo (“Lombardo”) pleaded guilty to two counts of
7 receipt of child pornography in violation of 18 U.S.C. §§ 2252(a)(2), 2252(b)(1), one count of
8 possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B), 2256(8)(A),
9 2252A(b)(2), and one count of commission of a felony offense while on pretrial release in violation
10 of 18 U.S.C. § 3147(1). The district court sentenced Lombardo to a total of 85 months’
11 imprisonment to be followed by a life term of supervised release. Lombardo appeals that part of his
12 sentence which prohibits him, as a condition of supervised release, from viewing, possessing,
13 owning, subscribing to or purchasing any material that depicts sexually explicit conduct as defined
14 by 18 U.S.C. § 2256(2).1 He also challenges the district court’s imposition of a life term of
1
18 U.S.C. § 2256(2) provides in relevant part as follows:
(A) Except as provided in subparagraph (B), “sexually explicit conduct” means actual or
simulated—
(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-
anal, whether between persons of the same or opposite sex;
(ii) bestiality;
(iii) masturbation;
(iv) sadistic or masochistic abuse; or
(v) lascivious exhibition of the genitals or pubic area of any person;
(B) For purposes of subsection 8(B) of this section, “sexually explicit conduct” means—
(i) graphic sexual intercourse, including genital-genital, oral-genital, anal-genital, or
oral-anal, whether between persons of the same sex or opposite sex, or lascivious
simulated sexual intercourse where the genitals, breasts, or pubic area of any person
is exhibited;
2
1 supervised release on Count Two of the Information. We assume the parties’ familiarity with the
2 facts and procedural history.
3 I. Condition restricting access to materials depicting “sexually explicit conduct”
4 While we generally review the district court’s imposition of a condition of supervised release
5 for abuse of discretion, see, e.g., United States v. Gill, 523 F.3d 107, 109 (2d Cir. 2008), where, as
6 here, a defendant fails to raise his challenge before the district court, we review for plain error, see,
7 e.g., United States v. Dupes, 513 F.3d 338, 342-43 (2d Cir. 2008). “A sentencing court may impose
8 special conditions of supervised release that are ‘reasonably related’ to certain statutory factors
9 governing sentencing, involve [ ] no greater deprivation of liberty than is reasonably necessary[ ]
10 to implement the statutory purposes of sentencing, and are consistent with pertinent Sentencing
11 Commission policy statements.” Gill, 523 F.3d at 109 (citations omitted).
12 Lombardo challenges the condition of supervised release restricting his access to materials
13 depicting “sexually explicit conduct” on several grounds including, inter alia, that it involves a
14 greater deprivation of liberty than is reasonably necessary to serve the sentencing factors, that the
15 district court did not make sufficient factual findings to impose such a condition, and that the
16 condition violates his First Amendment rights. We conclude that his arguments are unavailing.
17 At the start, we reject Lombardo’s contention that a ban on his access to sexually explicit
18 material depicting adults is not reasonably related to the offense of conviction. There is ample
(ii) graphic or lascivious simulated;
(I) bestiality;
(II) masturbation; or
(III) sadistic or masochistic abuse; or
(iii) graphic or simulated lascivious exhibition of the genitals or pubic area of any
person.
3
1 evidence in the record to support the district court’s conclusion that “the defendant clearly has a
2 problem with pornography addiction,” which influenced his criminal acts. Accordingly, the
3 challenged condition reasonably relates to the nature and circumstances of Lombardo’s offense, the
4 need to deter criminal conduct, and the need to protect the community from further crimes. See 18
5 U.S.C. § 3553(a)(1), (2)(B)-(C); Farrell v. Burke, 449 F.3d 470, 497 (2d Cir. 2006) (“[M]ost
6 regulations of [a convicted sex offender’s] possession of sexual material would be ‘reasonably and
7 necessarily related to the Government’s legitimate interests in the parolee’s activities.’”). Further,
8 the challenged condition does not impose a greater deprivation than is reasonably necessary under
9 the circumstances, see United States v. Carlton, 442 F.3d 802, 810 (2d Cir. 2006) (noting that the
10 “conditional liberty” of supervised release may include “a prohibition against possession of
11 pornographic matter”), and adequately is supported by the district court’s factual determination
12 regarding Lombardo’s addiction.
13 We also conclude that Lombardo’s argument that the ban impinged on his First Amendment
14 rights is without merit. As an initial matter, “the First Amendment rights of parolees are
15 circumscribed.” Farrell, 449 F.3d at 497. To the extent we have suggested that a complete ban on
16 the possession of “matters that depict or allude to ‘sexual activity’” may be overbroad in some
17 circumstances, United States v. Cabot, 325 F.3d 384, 386 (2d Cir. 2003), the proscription regarding
18 depictions of “sexually explicit conduct,” as defined by 18 U.S.C. § 2256(2), is narrower than an
19 absolute ban and more precise, see United States v. Simmons, 343 F.3d 71, 82-83 (2d Cir. 2003).
20 We can discern no plain error in the district court’s determination that such a proscription is
21 appropriate in the circumstances here. Accordingly, we affirm the district court’s imposition of this
22 supervised release condition.
4
1 II. Life term of supervised release
2 The district court imposed a term of supervised release “for a term of life on each count to
3 run concurrently.” Lombardo next contends that the district court committed plain error in imposing
4 a life term of supervised release for his violation of 18 U.S.C. § 3147(1), which prohibits
5 commission of a felony offense while on pretrial release. We agree. A court may impose a term of
6 supervised release of “no more than three years” for violation of 18 U.S.C. § 3147(1). See 18 U.S.C.
7 §§ 3583 (b)(2), 3559. Accordingly, we vacate the condition of supervised release as to Count Two
8 of the Information and remand with directions to amend the term of supervised release consistent
9 with this summary order.
10 We have reviewed Lombardo’s remaining arguments and find them to be without merit. For
11 the foregoing reasons, the judgment of the district court imposing a life term of supervised release
12 on Count Two is VACATED and REMANDED for further proceedings. In every other respect,
13 the sentence imposed by the district court is AFFIRMED.
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
5
| {
"pile_set_name": "FreeLaw"
} |
629 F.3d 1278 (2010)
ERBE ELEKTROMEDIZIN GMBH and ERBE USA, Inc., Plaintiffs-Appellants, and
ConMed Corporation, Plaintiff-Appellee,
v.
CANADY TECHNOLOGY LLC, and Dr. Jerome Canady, Defendants-Cross Appellants.
Nos. 2008-1425, 2008-1426.
United States Court of Appeals, Federal Circuit.
December 9, 2010.
*1280 Philip G. Hampton, II, Dickstein Shapiro, LLP, of Washington, DC, argued for plaintiffs-appellants. With him on the brief was Laurence E. Fisher. Of counsel was Steven M. War.
John G. Powers, Hancock & Estabrook, LLP, of Syracuse, NY, argued for plaintiff-appellee. With him on the brief was Ashley D. Hayes. Of counsel was Eric C. Nordby.
Timothy R. Dewitt, 24IP Law Group USA, PLLC, of Annapolis, MA, argued for defendants-cross appellants.
Before RADER, NEWMAN, and PROST, Circuit Judges.
Opinion for the court filed by Circuit Judge PROST. Opinion concurring-in-part, dissenting-in-part filed by Circuit Judge NEWMAN.
PROST, Circuit Judge.
Appellants ERBE Elektromedizin GmbH and ERBE USA, Inc. (collectively, "ERBE") appeal from a final decision of the United States District Court for the Western District of Pennsylvania. Following the parties' various motions for summary judgment, the district court granted summary judgment of non-infringement of U.S. Patent No. 5,720,745 ("'745 patent") in favor of Cross-Appellants Dr. Jerome Canady and Canady Technology LLC (collectively, "Canady"). The court also granted summary judgment on ERBE's trademark and trade dress claims in Canady's favor based on the lack of a legally protectable mark. Canady cross-appeals the court's grant of summary judgment on its antitrust counterclaims in favor of ERBE and Plaintiff-Appellee ConMed Corporation ("ConMed"). We affirm.
BACKGROUND
This is a patent infringement case involving three competitor companies that create argon gas-enhanced electrosurgical products for electrosurgery. Argon gas-enhanced electrosurgery is typically performed with an electrosurgical generator to which various surgical accessories, including endoscopic probes, are attached. The generator delivers a high frequency current to the human tissue through a stream of argon gas to create uniform hemostasis of bleeding tissue, which enhances surgical effects by limiting blood loss. Three different patents are implicated here.
ConMed is the owner by assignment of U.S. Patent No. 4,781,175 ("'175 patent"), issued in 1988. The '175 patent is directed at argon gas-assisted electrosurgical products used in argon beam coagulation ("ABC"), where the gas molecules move substantially parallel to one another long enough to strike the target tissue. It discloses an electrosurgical instrument that aims a directed, laminar stream of argon gas. '175 patent col.8 ll.10-14.
Dr. Canady is the named inventor of U.S. Patent No. 5,207,675 ("'675 patent"), issued in 1993, and is Canady Technology's founder, CEO, and partial owner. The '675 patent discloses a "surgical tissue coagulator" that includes a "flexible tube" with a handle that is used to maneuver the tube within an endoscope for argon gas-assisted electrosurgery.[1]
ERBE is the owner by assignment of the '745 patent, issued in 1998. The '745 patent was filed in 1995 as Continuation-in-Part Application Serial No. 08/579,879 ("'879 CIP") of U.S. Patent Application *1281 Serial No. 981,009 ("`009 application") from 1992. The '879 CIP application added forty-eight new claims and disclosures of argon gas rates and a not directed, non-laminar stream of argon gas. The patent examiner issued an Office Action, dated March 28, 1997, rejecting nearly all of the pending claims as indefinite and obvious in light of the prior art. J.A. 1068-77. The examiner noted that the Canady '675 patent disclosed argon flow rates ranging from 1 to 12 liters per minute, but did not disclose argon flow rates of "less than 1 liter per minute." J.A. 1073. On June 27, 1997, in response to that Office Action, the applicants filed an amendment to overcome the deficiencies in which it argued for the patentability of its pending claims over the Canady '675 patent because of the invention's claimed low gas flow rate. J.A. 1088-99. The examiner then issued its notice of allowance of the '745 patent. The '745 patent is directed to electrosurgical systems and methods for coagulating biological tissue with a high frequency current using argon plasma, i.e., ionized argon gas, through flexible endoscopic probes. This is known as argon plasma coagulation ("APC").
ERBE unsuccessfully tried to register the color blue as applied to these "flexible endoscopic probes for use in argon plasma coagulation" on the U.S. Patent and Trademark Office's ("PTO's") Principal Register. J.A. 3848-59. Thereafter, in 2002, ERBE did register the color blue as applied to the tube portion of the APC probes on the PTO Supplemental Register as U.S. Trademark Registration No. 2,637,630 ("'630 trademark"). J.A. 3846.
The patents have been the subject of a variety of litigation since their issuance. First, Dr. Canady sued ERBE in the United States District Court for the District of Columbia for infringement of the '675 patent in 1996 based on ERBE's importation of its APC probes. The district court held that the accused ERBE APC probes do not infringe the '675 patent because they do not have handles. This court affirmed. During the pendency of that action, in 2005, Dr. Canady also sued ERBE in the United Kingdom ("U.K.") on its European foreign counterpart to the '675 patent, European Patent No. 0595967. J.A. 2480-97. The U.K. court similarly found no infringement because of the absence of handles in the ERBE APC probes and ordered Dr. Canady to pay ERBE's attorneys fees.
Meanwhile, in 2000, ConMed granted ERBE a nonexclusive license to manufacture products under the '175 patent, such as argon gas-enhanced electrosurgical generators and flexible probes, in consideration for specified royalty payments. Under this agreement, ERBE also received the right to sue for infringement of the '175 patent.
Also in 2000, ConMed filed a lawsuit against ERBE in the United States District Court for the Northern District of New York, seeking a declaratory judgment that the '745 patent was invalid and that ConMed's ABC probes did not infringe the '745 patent. ERBE answered that the asserted patent was valid and infringed. In 2003, upon motion for summary judgment by ConMed, the district court construed the claims of the '745 patent and found that ConMed's ABC probes did not infringe. ERBE appealed, but in accordance with a subsequent settlement agreement, the district court vacated its summary judgment decision upon remand from this court. Under the settlement agreement, ERBE granted ConMed a nonexclusive license allowing ConMed to continue selling its ABC probes.
*1282 In 2005, Dr. Canady contracted with KLS Martin GmbH & Co. ("KLS Martin") to manufacture blue 2.3 mm diameter probes ("Canady probes") with black range marking rings along the tip end. In that year, Canady also filed a 510(k) application with the U.S. Food and Drug Administration ("FDA") seeking approval to sell the Canady probes, which operated with ERBE APC generators to perform APC procedures. After receiving approval, Canady Technology began importing and selling the accused Canady probes that it identified as substantially similar to ERBE APC probes, having the same uses, color, and marking rings, to customers of the ERBE APC systems in the United States. In 2006, ERBE filed a complaint with the International Trade Commission ("ITC"), which initiated an investigation of Canady Technology and KLS Martin. The ITC determined that ERBE did not present evidence of direct infringement by Canady customers under the proper construction of the asserted claims, and therefore Canady could not have engaged in contributory or induced infringement. We affirmed the ITC decision in ERBE Elektromedizin GmbH v. International Trade Commission, 566 F.3d 1028 (Fed.Cir.2009).
In addition, on December 5, 2005, ERBE and ConMed brought the instant action against Dr. Canady and Canady Technology. ERBE and ConMed filed an amended complaint alleging, inter alia, contributory infringement and infringement by inducement of the '745 and '175 patents based on Canady Technology's flexible endoscopic argon gas-assisted electrosurgical probes. ERBE also alleged infringement of '630 trademark under Section 32 of the Lanham Act, 15 U.S.C. § 1114, because of the blue color on the Canady probes. Based on its purported trade dress, consisting of the blue tube with black markings at the end, ERBE further asserted a claim for unfair competition in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125. Canady denied all of plaintiffs' claims and asserted, inter alia, antitrust counterclaims against ERBE and ConMed under Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2.
The district court held a Markman hearing and construed the '745 patent's disputed claim terms, including "low flow rate," which appears in independent claims 1 and 35 and dependent claim 38 of the '745 patent. ERBE Elektromedizin GmbH v. Canady Tech., LLC, 512 F.Supp.2d 297 (W.D.Pa.2007) (claim construction order). Claim 1 recites that the "gas flows from the source, through the tube and exits through the opening at the distal end of the tube at a low flow rate of less than about 1 liter/minute." '745 patent col.11 ll.40-43 (emphasis added). Claim 35 states that "supplying the inert gas from the source of said gas through the tube to the distal end opening of said tube with such a low flow rate, that gas exiting through said distal end opening is a not directed, non laminar stream but forms an inert gas atmosphere." Id. col.15 ll.52-57 (emphases added). Dependent claim 38 recites, "[t]he method as claimed in claim 35, whereby the stream of gas exits through said distal end opening with a flow rate of less than about one liter per minute." Id. col.16 ll.21-23 (emphasis added).
Both parties submitted a single definition for the construction of the disputed term "low flow rate" appearing in claims 1 and 35. ERBE proposed "a flow rate that causes the gas exiting through the opening at the distal end of the flexible tube to be a not directed, non laminar stream that *1283 forms an inert gas atmosphere." Canady proposed that the term means "much smaller than one liter per minute and producing flow velocities less than 19 km/hour." After considering the claim language, the specification, and the prosecution history, the court construed the disputed claim term "low flow rate" to mean "a rate of flow less than about 1 liter/minute and producing flow velocities less than 19 km/hour such that the gas exiting through the distal end opening forms a non-laminar inert gas temperature." ERBE, 512 F.Supp.2d at 309. As the court explained, in the March 28, 1997 Office Action, the examiner rejected ERBE's amended claims based on two prior art references, one being Canady's '675 patent. J.A. 1073. ERBE responded to that action arguing for patentability based on the "low flow rate" being less than 1 liter per minute and producing a flow velocity of less than 19 m/hr. J.A. 1089. When ERBE failed to respond to Canady's argument that this was a prosecution disclaimer, the court determined that ERBE indeed distinguished and thus disclaimed the 1 to 12 liters per minute flow rates disclosed in the prior art to obtain the '745 patent.
The district court then granted Canady's motion for summary judgment of non-infringement as to the asserted claims of the '745 patent. Based on the court's construction of the disputed claim term "low flow rate," ERBE could not show direct infringement because ERBE failed to present evidence that the accused Canady 2.3 mm probes exhibited argon flow velocities less than 19 km/hr. ERBE Electromedizin GmbH v. Canady Tech., LLC, 529 F.Supp.2d 577, 599 (W.D.Pa.2007) (summary judgment opinion).[2] In the alternative, the court found summary judgment proper as to ERBE's contributory infringement claim because ERBE failed to raise a genuine issue of material fact that the accused Canady probes lacked substantial non-infringing uses. The court also granted Canady's motion for summary judgment with respect to ERBE's trademark and trade dress claims because ERBE failed to establish a genuine issue of material fact that the blue color and black markings were nonfunctional and the trademark and trade dress acquired secondary meaning. After the court denied Canady's motion for summary judgment of non-infringement of ERBE's and ConMed's '175 patent infringement claims and set them for trial before a jury, the parties settled and jointly moved to dismiss the claim.
Finally, the district court granted ERBE's and ConMed's motions for summary judgment as to Canady Technology's antitrust counterclaims. The court determined that Canady failed to raise a genuine issue of material fact that the instant action was a sham excepting ERBE and ConMed from immunity under the Noerr-Pennington doctrine.
The district court denied the parties' motions for reconsideration and entered final judgment on May 9, 2008. ERBE timely appeals and Canady Technology cross-appeals. We have jurisdiction over these consolidated appeals pursuant to 28 U.S.C. § 1295(a)(1).
DISCUSSION
On appeal, ERBE challenges the court's construction of certain disputed claim *1284 terms and subsequent grant of summary judgment of non-infringement as to the asserted claims of the '745 patent. ERBE also objects to the court's grant of summary judgment as to its '630 trademark and trade dress claims. In its cross-appeal, Canady Technology contests the court's grant of summary judgment as to its antitrust counterclaims against ERBE and ConMed. We address each challenge in turn.
I
We first address ERBE's challenge to the court's construction of certain disputed claim terms in the '745 patent and subsequent finding of non-infringement.
As a preliminary matter, Canady asserts that ERBE waived its right to challenge the district court's grant of summary judgment of non-infringement because ERBE did not contest the court's alternative holding that the accused products have substantial non-infringing uses. The problem with Canady's waiver argument, however, is that the district court's alternative holding only implicates the contributory infringement claim, which requires a successful plaintiff to prove that the accused product has no substantial non-infringing uses. See 35 U.S.C. § 271(c). No such requirement, however, exists for induced infringement. See id. § 271(b). Therefore, ERBE did not have to challenge the court's alternative ground to avoid waiving its right to appeal the court's judgment of non-infringement with regard to its inducement of infringement claim.
Turning to the merits of the '745 patent infringement claim, on appeal ERBE takes issue with the court's construction of the disputed claim term "low flow rate" arguing that it violates several canons of claim construction. Specifically, ERBE submits that by construing "low flow rate" to mean "a rate of flow less than 1 liter/minute and producing flow velocities less than 19 km/hr such that the gas exiting through the distal end opening forms a non-laminar inert gas temperature," the court failed to give the term its ordinary and customary meaning, ignored the doctrine of claim differentiation, assumed disclaimers, and erroneously imported quantitative limitations. Canady responds that the court properly construed this claim term in light of the intrinsic evidence, namely the claim language, the patent specification, and the prosecution history. We agree with Canady.
Claim construction is a question of law that is reviewed de novo. Ortho-McNeil Pharm., Inc. v. Caraco Pharm. Labs., Ltd., 476 F.3d 1321, 1326 (Fed.Cir. 2007). We begin our claim construction analysis with the words of the claim. Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed.Cir.2005) (en banc). Claim terms are generally construed in accordance with the ordinary and customary meaning they would have to one of ordinary skill in the art. Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir.1996). "[T]he person of ordinary skill in the art is deemed to read the claim term not only in the context of the particular claim in which the disputed term appears, but in the context of the entire patent, including the specification." Phillips, 415 F.3d at 1313. In addition to considering the specification, courts should consider the relevant prosecution history of an asserted patent. Id. at 1317. "[T]he prosecution history can often inform the meaning of the claim language by demonstrating how the inventor understood the invention and whether the inventor limited *1285 the invention in the course of the prosecution, making the claim scope narrower than it would otherwise be." Id. Mindful of these principles, we turn to the disputed claim term "low flow rate."
We begin with the claim language. Notably, though both claims 1 and 35 contain the term "low flow rate," claim 1 describes it as being "less than about 1 liter/minute," '745 patent col.11 ll.42-43, while claim 35 explains it is "a not directed, non laminar stream." Id. col.16 ll.14. In their Markman briefs, however, the parties submitted one, albeit different, definition for "low flow rate." The specification explains that directed gas flow could injure the patient. The invention sought to overcome this problem by disclosing and claiming low argon gas flows that produce a low, not directed, non-laminar stream of gas exiting the tube. The specification further provides an exemplary flow rate of about less than 1 liter per minute.
ERBE asserts that the specification's exemplary flow rates are not quantitative limitations and cannot be imported into the claims because the specification uses a clear qualitative description for the term "low flow rate." ERBE similarly contends that the court's construction erroneously imports a "19 km/hr" limitation from the prosecution history into claims 1 and 35. According to ERBE, the prosecution history here does not limit the invention because there is no express disclaimer. In the alternative, ERBE argues that any disclaimer during prosecution was only qualitative and related to high flow rates. For support, ERBE directs this court to the specification's explanation of the '175 prior art reference where the laminar jet can be directed to the tissue to be coagulated with a gas flow rate "sufficient to clear natural fluids from the tissue." Id. col.6 ll.26-31.
We reject ERBE's arguments based on the language of claim 1, the specification, and the prosecution history. The inventors distinguished its low flow rate from the Canady '675 patent prior art reference in order to obtain its invention. Specifically, the patent examiner issued a March 28, 1997 Office Action rejecting the pending claims as obvious in light of Canady's endoscopes "disclos[ing] the use of very low flow rates (i.e. about 1 liter per minute)... [where t]he specific flow rate may be adjusted from 1-12 liters per minute ... [but not] less than 1 liter per min." J.A. 1073. On June 27, 1997, patent applicants responded to that Office Action describing the invention's "low gas flow rate, which allows the area of the tissue being treated to be surrounded by the plasma atmosphere." J.A. 1088. Applicants explained that the claimed flow rate avoids the production of laminar jets to prevent patient injuries. J.A. 1089. Specifically, they stated:
This flow rate avoids the production of laminar jets of ionized gas directed with high impact onto the tissue. The problems of laminar jets are to be avoided, since the ionized gas can enter the bloodstream and have toxic effects on the patient. According to Canady [the '675 patent], column 4 lines 3-5, a flow rate of 1 to 12 litres per minute is foreseen there. Taking the outer diameter of the tube to be 3 mm (column 2, line 68) would lead to an inner diameter of the tube of about 2 mm. This corresponds to a cross-section of 3.14 mm. A flow rate of 1 litre per minute leads to a flow velocity of 19 m/h. Taking the higher value of 12 litres per minute gives an outlet gas speed of 229 km/h. Such velocities in Canady would certainly be classified as laminar jets and would likely lead to the above problems. *1286 Id. (footnote omitted) (emphasis added). After the inventors distinguished the flow rates of 1 to 12 liters per minute disclosed in the Canady '675 patentwhose disclosed tubes produced flow rates of 1 to 12 liters per minute leading to laminar jet gas flow velocities of 19 m/h to 229 km/hthe examiner issued its notice of allowance of the amended claims in the application.
We do not agree with ERBE that "such velocities" referred to the "229 km/h" alone. Oral Argument 6:04-37, http://oralarguments.cafc.uscourts. gov/mp3/2010-1425.mp3. As Canady's counsel explained, such a reading is illogical. The examiner had rejected the pending claims with a low flow rate in light of the prior art until the applicants distinguished their invention. The examiner would not have allowed an otherwise unpatentable invention based on the higher of the two numbers in the range set forth in the prior art. Rather, the prosecution history clearly and unambiguously demonstrates that the applicants unequivocally disclaimed flow rates from 1 to 12 liters per minute that lead to "such velocities" of 19 through 229 km/h disclosed in the '675 patent prior art reference, referred to by applicants as laminar jets. Accordingly, as the district court concluded, the claimed flow rates were limited to less than 1 liter per minute and produced velocities less than 19 km/hr, which avoided the production of laminar jets and produced only non-laminar, inert gas atmospheres.
Further, we are not persuaded by ERBE's argument that the district court's construction improperly reads the narrow quantitative claim limitation of dependent claim 38 into broader claim 35, resulting in the two claims having the same scope in violation of the canon of claim differentiation. ERBE's argument that the court's construction improperly renders the express limitation "less than about 1 liter/minute" in claims 1 and 38 mere surplusage is also unavailing.
Generally, "[a]ll the limitations of a claim must be considered meaningful." Unique Concepts, Inc. v. Brown, 939 F.2d 1558, 1562 (Fed.Cir.1991) (citing Perkin-Elmer Corp. v. Westinghouse Elec. Corp., 822 F.2d 1528, 1532-33 (Fed.Cir.1987)). However, "no canon of [claim] construction is absolute in its application." Renishaw PLC v. Marposs Societa' per Azioni, 158 F.3d 1243, 1248 (Fed.Cir.1998). Claim differentiation may be helpful in some cases, but it is just one of many tools used by courts in the analysis of claim terms. See, e.g., Nystrom v. Trex Co., Inc., 424 F.3d 1136, 1142-43 (Fed.Cir.2005). Similarly, surplusage may exist in some claims. See, e.g., Pickholtz v. Rainbow Tech., Inc., 284 F.3d 1365, 1373 (Fed.Cir.2002). As we have stated, "[a]ll rules of construction must be understood in terms of the factual situations that produced them, and applied in fidelity to their origins." Modine Mfg. Co. v. U.S. Int'l Trade Comm., 75 F.3d 1545, 1551 (Fed.Cir.1996).
We thus reject ERBE's arguments with respect to "claim differentiation" and "surplusage." In this case, the prosecution history establishes that the Canady prior art patent was distinguished based on this "low flow rate" limitation and thus this term as it appears in the asserted claims is limited. See PODS, Inc. v. Porta Stor, Inc., 484 F.3d 1359, 1366-67 (Fed.Cir.2007) (concluding arguments distinguishing the prior art patent suggested meaning of disputed claim terms when applying South-wall Technologies, Inc. v. Cardinal IG Co., 54 F.3d 1570, 1579 (Fed.Cir.1995)); South-wall Techs., 54 F.3d at 1579 ("[A]rguments made during prosecution regarding the *1287 meaning of a claim term are relevant to the interpretation of that term in every claim of the patent absent a clear indication to the contrary."). Because the inventors clearly and unambiguously disclaimed such flow rates that produced laminar jets and limited the claims to flow velocities less than 19 km/hr to overcome unpatentability, we agree with the district court's claim construction with respect to "low flow rate."
We review "a district court's grant of summary judgment without deference." Perricone v. Medicis Pharm. Corp., 432 F.3d 1368, 1372 (Fed.Cir.2005). Summary judgment is proper if the record shows that there is no genuine issue of material fact, drawing all reasonable inferences in favor of the nonmovant. Fed.R.Civ.P. 56(c)(2); see Geneva Pharms., Inc. v. GlaxoSmithKline PLC, 349 F.3d 1373, 1377 (Fed.Cir.2003). The district court determined that ERBE failed to present evidence of direct infringement under the court's construction of "low flow rate." ERBE does not contest that it failed to present evidence that the accused 2.3 mm Canady probes exhibit velocities less than 19 km/hr. Because we affirm the district court's construction of "low flow rate" and there is no evidence that the accused probes infringe the asserted claims in the '745 patent, we also affirm the court's judgment of non-infringement.[3]
II
We next address ERBE's challenge to the district court's grant of summary judgment as to its trademark and trade dress claims based on the court's determination that the color blue is functional and has not acquired the requisite secondary meaning. When reviewing Lanham Act claims, we look to the law of the regional circuit where the district court sits, here the Third Circuit. See Tone Bros., Inc. v. Sysco Corp., 28 F.3d 1192, 1200 (Fed.Cir. 1994). Our review of a district court's grant of summary judgment that a trademark and trade dress is not infringed is plenary. See id. at 1196. We review the evidence in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Federal Rule of Civil Procedure 56(c) requires the nonmoving party to adduce more than a mere scintilla of evidence in its favor, id. at 252, 106 S.Ct. 2505, and that party cannot simply reassert factually unsupported allegations contained in its pleadings, see Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265(1986).
The Third Circuit analyzes federal trademark infringement and federal unfair competition under identical standards. A & H Sportswear, Inc. v. Victoria's Secret Stores, Inc., 237 F.3d 198, 210 (3d Cir.2000). To prove either Lanham Act violation, "a plaintiff must demonstrate that (1) it has a valid and legally protectable mark; (2) it owns the mark; and (3) the defendant's use of the mark to identify goods or services causes a likelihood of confusion." Id. A mark is afforded trademark protection if it is descriptive and has acquired secondary meaning. E.T. Browne Drug Co. v. Cococare Prods., Inc., 538 F.3d 185, 191 (3d Cir.2008).
In this case, the examiner determined that ERBE could not register the color blue on its APC probes on the Principal *1288 Register because the color blue was ornamental and ERBE failed to show evidence of secondary meaning, whether competitors used the color for its products, and whether the color was functional. J.A. 3848-59. Thereafter, ERBE registered the mark on the Supplemental Register. J.A. 3846.
Federal registration on the Principal Register provides a presumption of the mark's validity. 15 U.S.C. §§ 1057(b), 1115(a). Registration of a mark on the Supplemental Register, however, does not. 15 U.S.C. § 1094. As § 1094 explains, marks registered on the Supplemental Register do not receive the advantages of §§ 1057(b) and 1115(a). Since the '630 trademark is on the Supplemental Register, and not the Principal Register, the parties agree that, under the authoritative statutory language and Third Circuit case law, ERBE bears the burden of proving that it owns a valid mark. See 15 U.S.C. § 1094; E.T. Browne Drug Co., 538 F.3d at 191 (explaining that the party seeking enforcement of trademark laws has the burden of proving the existence of a protectable trademark when the mark does not appear on the PTO's Principal Register); Def./Cross-Appellant Br. 34; Appellant Reply Br. 54.
On appeal, ERBE argues that the court improperly granted summary judgment on its trademark and trade dress claims because it misapplied the proper case law and failed to consider the evidence in the light most favorable to ERBE, the nonmoving party. Specifically, ERBE contends that it proffered evidence that raises a genuine issue of material fact that the color blue is not functional for APC probes and that it has acquired secondary meaning. Canady responds that ERBE's conclusory and unsupported allegations do not preclude summary judgment in this case, where the uncontroverted evidence demonstrates that the color blue is functional and lacks secondary meaning.
To survive summary judgment here, ERBE would have to establish a genuine issue of material fact that both the color blue is non-functional and has acquired secondary meaning. See, e.g., Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 166-67, 115 S.Ct. 1300, 131 L.Ed.2d 248 (1995); L.D. Kichler Co., v. Davoil, Inc., 192 F.3d 1349, 1352 (Fed.Cir. 1999); Duraco Prods., Inc. v. Joy Plastic Enters., Ltd., 40 F.3d 1431, 1445 (3d Cir. 1994). It fails to do either.
We first look to functionality. A mark is functional if it " `is essential to the use or purpose of the article or if it affects the cost or quality of the article, that is,' if exclusive use of the feature would put competitors at a significant non-reputation-related disadvantage." L.D. Kichler Co., 192 F.3d at 1352 (quoting Qualitex, 514 U.S. at 165, 115 S.Ct. 1300). Some factors courts use to determine functionality include whether the design yields a utilitarian advantage, alternative designs are available in order to avoid hindering competition, and the design achieves economies in manufacture or use. See, e.g., In re Owens-Corning Fiberglas Corp., 774 F.2d 1116, 1121 (Fed.Cir.1985).
Color may not be granted trademark protection if the color performs a utilitarian function in connection with the goods it identifies or there are specific competitive advantages for use. Brunswick Corp. v. British Seagull Ltd., 35 F.3d 1527, 1530-33 (Fed.Cir.1994), cert. denied, 514 U.S. 1050, 115 S.Ct. 1426, 131 L.Ed.2d 309 (1995) (color black for outboard engines was functional and could not be protected *1289 where black offered the advantage of being compatible with a wider variety of boat colors); Keene Corp. v. Paraflex Indus., Inc., 653 F.2d 822, 824 (3d Cir.1981). However, "[m]ere taste or preference cannot render a colorunless it is `the best, or at least one, of a few superior designs'de jure functional." L.D. Kichler Co., 192 F.3d at 1353; see Brunswick Corp., 35 F.3d at 1531 (explaining that de jure functional features, which rest on utility and the foundation of effective competition, are not entitled to trademark protection). The Third Circuit has explained that the policy behind the functionality doctrine invokes the inquiry of whether prohibiting the mark's imitation by others will deprive those others of something that will substantially hinder them in competition. Keene, 653 F.2d at 827. As a result, the existence of other, equally usable colors is relevant to determine whether a particular color is functional. Qualitex, 514 U.S. at 166, 115 S.Ct. 1300.
ERBE asserts that there is a genuine issue of material fact whether the color blue is functional because the evidence demonstrates that blue is not uniquely superior for APC probes, has no competitive advantage because it is not essential to the use or purpose of the APC probes, does not have an aesthetic function, and that many other colors are equally visible against human tissue and are available for selection. For support, ERBE offers the declaration of Managing Director Christian Erbe. In this declaration, Mr. Erbe explained that "[b]lue is one of the many colors available for APC probes. Any color, other than beige or red, would be clearly visible during endoscopic procedures." J.A. 4938.
We reject ERBE's argument that the district court misapplied Keene. In Keene, the Third Circuit explained that the "functionality doctrine stems from the public interest in enhancing competition" and avoiding improper hindrance of competition in the marketplace. 653 F.2d at 827. ERBE fails to present a genuine issue of material fact that the color blue does not make the probe more visible through an endoscopic camera or that such a color mark would not lead to anti-competitive effects. Cf. In re Owens-Corning Fiberglas Corp., 774 F.2d at 1122 (holding that the color pink for fiber glass insulation was not functional because it did "not deprive competitors of any reasonable right or competitive need"). The evidence in the record is that the color blue is prevalent in the medical field, the blue color enhances identification of the endoscopic tip, and several companies use blue endoscope probes. See, e.g., J.A. 3876 (Biosearch Medical Products Inc. advertisement explaining that "[b]lue color enhances positive Endoscopic identification of the tip."). There is no evidentiary support that other colors are as visible through an endoscopic camera as the color blue other than a conclusory, self-serving statement by Mr. Erbe. Because the record evidence demonstrates that appropriation by ERBE alone would place others at a competitive disadvantage, we conclude that the district court properly found that there is no genuine issue of material fact that the color blue is functional.
Moreover, even if the color blue is nonfunctional, we would still affirm the district court's grant of summary judgment because ERBE fails to present a genuine issue of material fact that there is secondary meaning for the mark. A manufacturer may obtain trademark protection for a color mark where it acts as a symbol that distinguishes a firm's goods and identifies its source. Qualitex, 514 U.S. at 166, 115 *1290 S.Ct. 1300. In considering whether there is secondary meaning, in that there is an association formed in the minds of the consumers between the mark and the source or origin of the product, the Third Circuit looks to the following non-exhaustive list of factors:
(1) the extent of sales and advertising leading to buyer association; (2) length of use; (3) exclusivity of use; (4) the fact of copying; (5) customer surveys; (6) customer testimony; (7) the use of the mark in trade journals; (8) the size of the company; (9) the number of sales; (10) the number of customers; and (11) actual confusion.
E.T. Browne Drug Co., 538 F.3d at 199 (quoting Commerce Nat'l Ins. Servs., Inc. v. Commerce Ins. Agency, Inc., 214 F.3d 432, 438 (3d Cir.2000)).
On appeal, ERBE argues that the district court did not properly consider evidence that ERBE's trademark has secondary meaning. Specifically, ERBE directs us to Mr. Erbe's declaration for support that ERBE used this particular blue on its APC probes for several years in marketing materials, on giveaways at tradeshows, and ERBE advertised its slogan, "True Blue Probe for Argon Plasma Coagulation." J.A. 4938-39. Canady responds, and the district court agreed, "that while ERBE may have been using the color blue for over 30 years, there is no evidence that, in the minds of the public, the primary significance of the color blue is to identify ERBE as the source of the product." ERBE, 529 F.Supp.2d at 603. ERBE does not offer any evidencesuch as sales and advertising leading to buyer association, customer surveys, customer testimony, the number of sales, the number of customers, the use of the mark in trade journals, or actual confusionthat creates a genuine issue of material fact with regard to whether the color blue on its flexible endoscopic probes has secondary meaning. E.T. Browne Drug Co., 538 F.3d at 199. Indeed, ERBE failed to present any evidence that consumers associate the color blue on its flexible endoscopic probes with ERBE.[4] Viewing all of the evidence in the light most favorable to ERBE, ERBE fails to establish a genuine issue of material fact with respect to secondary meaning.[5] Accordingly, we affirm the district court's grant of summary judgment *1291 as to ERBE's trademark infringement claims.
On appeal, ERBE generally refers to its "trade dress" claims, which includes the color blue of the APC probe with black rings at the end of the tube. It is undisputed that ERBE's purported trade dress is not registered. The district court granted summary judgment on these claims because ERBE failed to present any argument that the black rings at the end of the probe were non-functional. ERBE similarly fails to present any evidence relating to its trade dress claims on appeal. We, therefore, also affirm the district court's grant of summary judgment as to ERBE's trade dress claims.
III
We now turn to Canady Technology's cross-appeal. The issue is whether the district court properly granted summary judgment on Canady Technology's antitrust counterclaims in favor of ERBE and ConMed. Generally, when reviewing a district court's judgment involving federal antitrust law, we apply the law of the regional circuit in which that court sits. See CSU, L.L.C. v. Xerox Corp., 203 F.3d 1322, 1325 (Fed.Cir.2000). However, we apply our own law when resolving issues that involve our exclusive jurisdiction. Id.
Canady Technology first argues that the district court applied the wrong standard for determining whether the Noerr-Pennington doctrine immunizes ERBE and ConMed from antitrust liability. The Noerr-Pennington doctrine generally immunizes a party from antitrust liability based on its filing of a lawsuit unless the narrow "sham litigation" exception applies. See Prof'l Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc. ("PRE"), 508 U.S. 49, 56, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993). In PRE, the Supreme Court explained that sham litigation is present where the lawsuit is objectively baseless and subjectively motivated by a desire to impose anticompetitive harm from the judicial process rather than obtain judicial relief. 508 U.S. at 60-61, 113 S.Ct. 1920; Nobelpharma AB v. Implant Innovations, Inc., 141 F.3d 1059, 1071 (Fed.Cir.1998). Because PRE, however, only looks to whether a single lawsuit is a sham, two circuit courts have applied a different standard where there is a "whole series of legal proceedings." Primetime 24 Joint Venture v. Nat'l Broad. Co., Inc., 219 F.3d 92 (2d Cir.2000); USS-POSCO Indus. v. Contra Costa Cnty. Bldg. & Const. Trades Council, AFL-CIO, 31 F.3d 800 (9th Cir.1994).
The dispute here is whether we should consider just the instant action or all prior litigation in determining whether the sham litigation exception applies to the Noerr-Pennington immunity doctrine. This dispute implicates two different lines of cases. Canady Technology urges us to follow the Ninth-Second Circuit precedent here because ERBE and ConMed have filed multiple lawsuits. On these particular facts, however, we need not determine whether to adopt the test of our sister courts because there is no "series" of legal proceedings. The other proceedings Canady Technology directs us to are against Dr. Canady, as an individual, who is admittedly not asserting the antitrust counterclaims with Canady Technology.
In Amarel v. Connell, 102 F.3d 1494, 1519-20 (9th Cir.1997), the Ninth Circuit held that only two lawsuits is not a "series" or "pattern" of litigation implicating the standard in USS-POSCO for "a whole series of legal proceedings." In this case, *1292 the three relevant lawsuits ERBE filed to which Canady Technology directs our attention are not "simultaneous and voluminous" and do not implicate a test for "a whole series of legal proceedings." Cf. Primetime 24, 219 F.3d at 101; USSPOSCO, 31 F.3d at 811. Therefore, like the district court, we analyze Canady Technology's antitrust counterclaims under the PRE sham litigation exception to the Noerr-Pennington immunity doctrine.
At oral argument, Canady's counsel conceded that if we analyze its antitrust counterclaims under PRE, summary judgment with respect to ConMed is appropriate. Oral Argument 24:11-32, http://oralarguments. cafc.uscourts.gov/mp3/2010-1425.mp3. So we are left now with only resolving Canady Technology's antitrust counterclaims relating to ERBE.
To prove that the instant action is a sham and the plaintiff is not entitled to immunity, the suit must be "both objectively baseless and subjectively motivated by a desire to impose collateral, anti-competitive injury rather than to obtain a justifiable legal remedy." Nobelpharma, 141 F.3d at 1071 (citing PRE, 508 U.S. at 60-61, 113 S.Ct. 1920). We first look to whether the plaintiff had probable cause to institute the action. The existence of probable causee.g., where the law is unsettled, the action is arguably warranted by existing law, or there is an objectively good faith argument for extending existing lawprecludes a sham litigation finding. PRE, 508 U.S. at 62, 65, 113 S.Ct. 1920. We shall only reach the litigant's subjective motivation if the challenged litigation is objectively merit less. Id. at 60, 113 S.Ct. 1920.
Canady Technology argues that it has presented a genuine issue of material fact that ERBE's patent infringement, trademark, and trade dress claims were objectively baseless and warrant an exception to the Noerr-Pennington immunity doctrine. Specifically, Canady Technology argues that no reasonable person could have expected success on these claims. We disagree.
The record demonstrates that ERBE had probable cause to bring this patent enforcement litigation. As evident from our claim construction analysis in Section I, supra, Canady Technology fails to present a genuine issue of material fact that ERBE's '745 patent infringement claim was so objectively "baseless that no reasonable litigant could realistically expect to secure favorable relief." Carroll Touch, Inc. v. Electro Mech. Sys., Inc., 15 F.3d 1573, 1583 (Fed.Cir.1993) (quoting PRE, 508 U.S. at 62, 113 S.Ct. 1920). Although ERBE's arguments were not winning ones, our analysis demonstrates that ERBE presented non-frivolous arguments for its proposed construction of the disputed claim term "low flow rate." Merely because our construction of this term is the same as that of the vacated decision of the Northern District of New York, this does not create a genuine issue of material fact that ERBE's instant suit was objectively baseless. Therefore, the "s ham litigation" exception to the Noerr-Pennington doctrine is not warranted here.
Canady Technology also argues that the district court improperly failed to consider whether ERBE's alleged predatory acts other than sham litigation violated antitrust law. The other alleged predatory acts include interfering with and inhibiting the development and marketing of dual mode argon probes, and interfering with Canady Technology's contracts and business expectations. Canady Technology *1293 blames ERBE for its failure to present any genuine issue of material fact with respect to these allegations. Specifically, Canady Technology contends that "ERBE elected to forego the discovery process rather than using it to more clearly define the issues and evidence." Def./Cross-Appellant Br. 41. Canady Technology, however, has it backwards. It is Canady Technology, and not ERBE, who bears the burden of seeking discovery on its antitrust claims and establishing some genuine issue of material fact as to the other predatory acts it argues the district court ignored. Canady Technology failed to do either.
Sections 1 and 2 of the Sherman Act protect against unreasonable restraints of trade and monopolization of trade or commerce. 15 U.S.C. §§ 1, 2. To survive summary judgment, plaintiff must show, inter alia, illegal action and antitrust injury. Canady Technology fails to show that ERBE engaged in illegal activity resulting in prohibited antitrust injury. Rather, Canady Technology concedes that the warranties ERBE purportedly would "void" or "not honor" had already expired. On this record, we conclude that ERBE fails to establish a genuine issue of material fact that ERBE engaged in predatory acts in violation of antitrust law that preclude summary judgment. Therefore, we affirm the district court's grant of summary judgment on Canady Technology's antitrust counterclaims.
CONCLUSION
For the reasons set forth above, we affirm the district court's grant of summary judgment of non-infringement as to ERBE's '745 patent infringement claim, and summary judgment of ERBE's '630 trademark and trade dress claims based on functionality and lack of secondary meaning. We also affirm the district court's grant of summary judgment of Canady Technology's antitrust counterclaims.
AFFIRMED
NEWMAN, Circuit Judge, concurring in part, dissenting in part.
I respectfully dissent from the grant of summary judgment whereby the court holds, summarily, that there can be neither patent nor trademark nor trade dress infringement of ERBE's proprietary rights. I write separately with respect particularly to the trademark and trade dress issues, for the court has departed from established law and precedent. Canady does not dispute that it copied the blue color and the particular shade of blue of the ERBE probe; that is, that it copied the trade dress. The public interest in avoidance of deception or confusion looms particularly large in the medical/surgical field, where the surgeon's experience of quality and performance, on recognition of the surgical device by its unique color, is a matter of public concern.
Common law property rights are of practical significance, and their sustenance is as much a judicial responsibility as are statutory rights. This court's cursory authorization to a competitor to copy the distinctive color of this surgical probe, despite the evidence of likelihood of confusion as to the source and identity of the probe, is surely not subject to summary disposition in favor of the copier. ERBE suggests that there is deception and free-riding, for it was not disputed that the blue probes with black markings, manufactured by KLS Martin GmbH & Co. and imported by Canady for use with the ERBE equipment, are intended to mirror the blue color *1294 and black markings of the ERBE probes. Canady represented to the FDA that its imported probes are "the same as" the ERBE probes, and obtained expedited FDA approval based on that representation. Indeed, Canady's probes are compatible only with ERBE's electrosurgical equipment.
The district court held, on summary judgment, that the blue color is "functional." However, ERBE established at least a genuine issue as to this question. Registration of the blue color for these products on the Supplemental Register required the applicant to show that the color is not functional. Trademark Manual of Examining Procedure § 1202.05(b) states:
A color mark is not registrable on the Principal Register under § 2(f), or the Supplemental Register, if the color is functional. Brunswick Corp. v. British Seagull Ltd., 35 F.3d 1527, 32 USPQ2d 1120 (Fed.Cir.1994), cert. denied, 514 U.S. 1050 [115 S.Ct. 1426, 131 L.Ed.2d 309] (1995); In re Owens-Corning Fiberglas Corp., 774 F.2d 1116, 227 USPQ 417 (Fed.Cir.1985).
Thus the color mark passed the test of non-functionality, upon agency examination.
The difference with respect to registration of a color on the Supplemental Register and the Principal Register does not relate to functionality, but to the need to establish secondary meaning for the particular color. Non-functionality does not of itself establish secondary meaning. See In re Owens-Corning Fiberglas Corp., 774 F.2d 1116 (Fed.Cir.1985) (criteria for registration on the Principal Register of the color pink for fiberglass insulation material); Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 166, 115 S.Ct. 1300, 131 L.Ed.2d 248 (1995) (holding that the existence of other, equally usable colors is relevant to whether a particular color is functional). In Qualitex the Court explained that a mark is functional " `if it is essential to the use or purpose of the article or if it affects the cost or quality of the article,' that is, if exclusive use of the feature would put competitors at a significant non-reputation-related disadvantage." 514 U.S. at 165, 115 S.Ct. 1300 (quoting Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 850 n. 10, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982)).
In accordance with the review procedures of the Administrative Procedure Act, the holding of the Patent and Trademark Office of non-functionality of the color blue for "flexible endoscopic probes for use in argon plasma coagulation," receives administrative deference. Although ERBE had not obtained registration on the Principal Register, ERBE was not required to do so in order to rely on its Supplemental registration for its statutory benefits, as well as to assert its common law trademark and trade dress rights, see Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 120 S.Ct. 1339, 146 L.Ed.2d 182 (2000) (holding that a product's unregistered trade dress in the form of product design is protectable upon a showing of secondary meaning).
The district court improperly granted summary judgment on the trademark and trade dress issues. Precedent does not support this judgment. Canady's argument that blue, this shade of blue, is the only color that can be distinguished from body fluids was directly contradicted by the expert declaration of Christian Erbe, Chairman of ERBE, USA, who declared that "Blue is one of many colors available for APC Probes. Any color, other than *1295 beige or red, would be clearly visible during endoscopic procedures." Decl. of Christian O. Erbe ¶ 4, July 17, 2007 (J.A. 4938). At the summary judgment stage, the factual issue of whether blue, or this shade of blue, is the only color of the spectrum that contrasts with bodily fluids was fairly placed into dispute. For this factual question to be decided in favor of Canady at the summary judgment stage, Canady must establish that it is entitled to judgment in its favor, even on ERBE's factual position. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ("The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.").
My colleagues criticize Mr. Erbe's declaration as "conclusory," Maj. Op. 1289. However, his statement about the visibility of other colors is straightforward and in accord with common sense, and its correctness is unchallenged by Canady. The evidence offered by Canady in support of functionality is that one company advertises that its coagulation probe's "blue color enhances positive endoscopic identification of the tip." This advertisement was cited by the PTO during examination, and registration on the Supplemental Register was nonetheless granted. A reasonable jury could decideas did the PTOthat the color blue for argon plasma coagulation tubes is not functional, and is capable of serving as a trademark.
The court also errs in its summary judgment that ERBE cannot establish secondary meaning. In addition to the evidence of copying of the blue color, Mr. Erbe declared:
5. ERBE has advertised and promoted the Blue Probe Mark in various marketing materials including brochures, giveaways at tradeshows and through use of the TRUE BLUE PROBE FOR ARGON PLASMA COAGULATION mark, Registration No. 2,852,359, which issued on June 15, 2004.
6. The color of the ERBE APC probes ("ERBE Blue") is the corporate color of ERBE Elektromedizin GmbH. ERBE has used ERBE blue as part of its corporate identity, as part of its trade dress for medical devices, for various promotional items and in its literature and advertisements for more than thirty (30) years.
Decl. of Christian O. Erbe ¶¶ 5-6, July 17, 2007 (J.A. 4938).
As to copying, which the majority acknowledges in its list of factors relevant to secondary meaning but does not discuss, ERBE raises significant issues of possible passing off and consumer deception. The laws of trademark and trade dress are designed to protect the consumer as well as the purveyor. It does not serve the consuming public to eliminate legal protection of indicia of source and quality. See Qualitex, 514 U.S. at 164, 115 S.Ct. 1300 ("The law thereby `encourage[s] the production of quality products,' and simultaneously discourages those who hope to sell inferior products by capitalizing on a consumer's inability quickly to evaluate the quality of an item offered for sale." (internal citation omitted)).
ERBE states that its blue color serves to protect the consumer/user, for it is a conspicuous identification of its particular probe for argon plasma coagulation. ERBE states that of the many colors that could be used, Canady selected the ERBE shade of blue for the sole purpose of profiting from the reputation established for ERBE's product. The panel majority discounts *1296 this unrebutted evidence, and observes only the absence of other possible types of evidence relating to secondary meaning. However, the Third Circuit, like other circuits, does not set rigid rules for all forms of trademark and trade dress. See E.T. Browne Drug Co. v. Cococare Prods. Inc., 538 F.3d 185, 200 n. 15 (3d Cir.2008) ("We do not suggest that a party attempting to establish secondary meaning always must show that marketing materials succeeded in creating buyer association or that the term contributed to sales growth.").
My colleagues state that there is "evidence... that the color blue is prevalent in the medical field ... and several companies use blue endoscope probes," Maj. Op. 1289, apparently drawing this conclusion from the advertisement considered by the PTO and plaintiff ConMed's authorized blue probe. Whether secondary meaning was established is a question of fact, not subject to adverse inferences on summary judgment. The factual issue of likelihood of confusion, upon the undisputed intentional copying of this shade of blue, must be considered. ERBE has created at least a genuine issue of material fact as to whether its trade dress, as well as its trademark, is protectable. My colleagues err in finding these facts adversely, on summary judgment.
The judicial obligation is more complex than simply to facilitate "competition," as the panel majority asserts. The avoidance of deception of the consumer is a purpose of trade dress law. At the summary judgment stage, ERBE provided sufficient evidence to negate the movant's arguments with respect to the functionality and distinctiveness of its trade dress. Summary judgment that ERBE has no protectable right in its blue endoscopic argon probe was improperly granted. From my colleagues' contrary holding, I must, respectfully, dissent.
NOTES
[1] The '675 patent is not directly at issue here, but is relevant prior art.
[2] In this citation, ERBE Elektromedizin GmbH was spelled ERBE Electromedizin GmbH.
[3] In light of our conclusion on the construction of "low flow rate," we need not reach ERBE's challenge to the construction of other claim terms.
[4] Further, as Canady argues, ERBE's only competitor, ConMed, has been using blue on its probes since January 2002. ERBE acknowledged that ConMed uses blue flexible endoscopic probes during the prosecution of the '630 trademark. J.A. 3862. There, ERBE noted that there was a pending lawsuit in the Northern District of New York against ConMed for "selling similar looking tubes as part of its flexible endoscopic probes for use in argon plasma coagulation, in apparent infringement of the '745 patent." Id. ERBE, however, admits that the '745 patent "does not disclose or claim the color blue for the tube portions of the probes." Id. ERBE does not demonstrate that the lawsuit in the Northern District of New York involved trademark or trade dress claims, or that the resulting settlement licensed this color blue to ConMed. ERBE also fails to present evidence that it licensed the '630 trademark to ConMed. Rather, the record evidence shows that at least one of ERBE's competitors, ConMed, uses blue flexible endoscopic probes for use in argon plasma coagulation and thus ERBE does not maintain exclusive use. E.T. Browne Drug Co., 538 F.3d at 199.
[5] The dissent does not identify any evidence that ERBE presents relating to the required association formed in the minds of consumers between the mark and the source or origin of the product. The dissent further ignores the evidence demonstrating that at least one of ERBE's competitors uses blue flexible endoscopic probesand thus the requisite secondary meaning is missing here.
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749 F.Supp. 299 (1990)
Margo M. THOMPSON, Plaintiff,
v.
UNITED STATES of America, Defendant.
Civ. A. No. 90-1658.
United States District Court, District of Columbia.
October 26, 1990.
Steven A. Hamilton, Washington, D.C., for plaintiff.
Charles L. Hall, Asst. U.S. Atty., Washington, D.C., for defendant.
ORDER
REVERCOMB, District Judge.
This case arises out of a bicycle accident on August 30, 1987, when Plaintiff Thompson *300 collided with a water hose that allegedly had been negligently placed along a bicycle path near the Vietnam Memorial.
Pursuant to the Federal Tort Claims Act, the plaintiff timely filed a Standard Form 95 (SF-95) on August 25, 1989. Although the SF-95 did not state a sum certain amount for damages, the plaintiff submitted an estimate of her medical expenses incurred to date in a letter that accompanied the original SF-95. The letter stated that the plaintiff had incurred approximately $27,000.00 in medical expenses and lost wages up to date and specifically enumerated other pending medical bills that would be forthcoming. On August 31, 1989, one day after the statute of limitations had run, the plaintiff amended her claim to include a sum certain of $750,000.00.
On February 2, 1990, the plaintiff's administrative claim was denied. On July 18, 1990, the plaintiff filed an action under the Federal Tort Claim Act, 28 U.S.C. §§ 2401, 2671, et seq. (FTCA), seeking $500,000 in damages.
The defendant has filed a motion to dismiss, alleging that the plaintiff did not meet the notice requirements of the FTCA because she failed to include in her administrative claim a sum certain amount for damages. The plaintiff contends that this Court has proper jurisdiction over the action and that her claim states an adequate legal basis upon which relief may be granted.
As a prerequisite for filing a civil tort action, the FTCA requires the plaintiff to file with the agency: "(1) a written statement sufficiently describing the injury to enable the agency to begin its own investigation, and (2) a sum-certain damages claim." 28 C.F.R. 14.2(a). "The purpose of this notice [is] to protect the municipality from the expense of needless litigation, give it an opportunity for investigation, and allow it to adjust differences and settle claims without suit." GAF Corp. v. United States, 818 F.2d 901, 919 (D.C.Cir.1987) (quoting S.Rep. No. 1327). The sum certain statement should enable the agency to determine whether settlement or negotiations are desirable. Id. at 920.
In the instant case, although the plaintiff's SF-95 did not technically state a sum certain, the accompanying letter sufficiently supplemented the claim in order to give notice and adequately state a cause of action upon which relief may be granted. The detail of the letter stated known damages up until August 25, 1989 and enumerated other medical bills. This information provided the agency with facts from which it could estimate the value of the claim and enable it to determine whether settlement or negotiations were desirable. Therefore, the plaintiff timely met the notice requirement of the FTCA. See Williams v. United States, 693 F.2d 555 (5th Cir.1982) (sum certain requirement met even though claim form did not state personal injuries figure); Molinar v. United States, 515 F.2d 246 (5th Cir.1975) (sum certain requirement could be met by merely providing agency with facts from which it could estimate value of claim); Rucker v. United States Dept. of Labor, 798 F.2d 891 (6th Cir.1986) (claim form stating "in excess of $10,000-$450,000" was sufficient for sum certain notice).
In addition, the plaintiff amended her claim to include a sum certain one day after the statute of limitations had run. This prompt correction cured any defect that might have been present when the original claim was timely filed. See Apollo v. United States, 451 F.Supp. 137 (M.D.Pa. 1978) (plaintiff's timely filed, but technically deficient claim, was cured by prompt correction of the technical omission when amended notice was filed ten weeks later).
For the reasons stated above, it is ORDERED that the Defendant's Motion to Dismiss is DENIED.
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J-A08043-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JAMAL STREATER, :
:
Appellant : No. 1504 EDA 2015
Appeal from the Order Entered May 5, 2015
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013825-2014
BEFORE: PANELLA, LAZARUS, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 27, 2018
Jamal Streater (Appellant) appeals from the May 5, 2015 order
denying his motion to dismiss, which alleged that the Commonwealth’s DUI
prosecution was barred by the compulsory joinder statute, 18 Pa.C.S. § 110.
Upon review, we affirm.
We glean the following factual and procedural history from the record.
On May 19, 2013, Appellant was stopped for a motor vehicle violation. He
was arrested and charged with driving under the influence (DUI) and was
issued a traffic citation for driving without headlights. On July 23, 2013,
Appellant was found guilty in absentia of the traffic offense in Philadelphia
Municipal Court–Traffic Division. Thereafter, Appellant’s DUI charge
proceeded to the Philadelphia Municipal Court–General Division. Appellant
filed a motion to dismiss the DUI charges based on compulsory joinder.
*Retired Senior Judge assigned to the Superior Court.
J-A08043-18
Specifically, Appellant argued that the former prosecution of the traffic
offense barred the prosecution of the DUI charge pursuant to 18 Pa.C.S.
§ 110(1)(ii). The court denied the motion and Appellant was found guilty of
DUI on December 4, 2014. Appellant appealed the DUI conviction to the
Court of Common Pleas for a trial de novo, and filed another motion to
dismiss pursuant to 18 Pa.C.S. § 110(1)(ii) before that court. On May 5,
2015, the trial court denied the motion. This timely-filed appeal
followed.1, 2, 3
On appeal, Appellant argues that compulsory joinder required that the
Commonwealth prosecute him contemporaneously for the DUI charge and
1 The trial court did not order Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b), but the trial court
did file a 1925(a) opinion.
2 “Because the protection of the compulsory joinder of charges statute is in
the nature of protection against double jeopardy, an order denying a motion
to invoke that statute’s protection is similarly subject to immediate appeal.”
Commonwealth v. Barber, 940 A.2d 369, 376 (Pa. Super. 2007) (citations
omitted).
3 This Court granted a continuance at the request of the parties pending the
en banc decision in, inter alia, Commonwealth v. Perfetto. Per Curiam
Order, 11/15/2016. The en banc decision in that case was filed on August
30, 2017. Commonwealth v. Perfetto, 169 A.3d 1114 (Pa. Super. 2017)
(en banc), appeal granted, 182 A.3d 435. Though our Supreme Court
granted Perfetto’s petition for allowance of appeal on February 27, 2018,
that case is still pending and the en banc panel’s decision remains controlling
law until our Supreme Court holds otherwise. We note that supplemental
briefs were not filed in the instant case following the en banc panel’s
decision.
-2-
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the traffic offense because they were part of the same criminal episode.4
Because the Commonwealth prosecuted him solely for the traffic offense
4 The Commonwealth alleges that Appellant waived his right to file a motion
to dismiss before the trial court because he elected to forgo review of the
denial of his first motion to dismiss under a writ of certiorari, and instead
proceeded to a trial de novo. The Commonwealth cites Commonwealth v.
Perillo, 626 A.2d 163, 168 n.6 (Pa. Super. 1993) for the proposition that a
“defendant who acquiesced to retrial waived claim that trial was barred[,]”
but that is not what the footnote states. Appellant’s Brief at 5.
We note, however, that appellant misstates the law in claiming
that double jeopardy cannot be waived and may be raised at any
time, even after trial and verdict. See appellant's brief at 19.
In Commonwealth v. Gilman, [] 401 A.2d 335 ([Pa. ]1979),
the [S]upreme [C]ourt held that a defendant waived his claim
that retrial amounted to double jeopardy because he did not
move to dismiss prior to retrial on a felony murder
charge. See also Commonwealth v. Peters, [] 373 A.2d 1055
([Pa. ]1977) (defendant waived double jeopardy claim by
failure to raise it prior to second trial). Contrary to
appellant’s assertions, Commonwealth v. Beck, [] 464 A.2d
316 ([Pa. ]1983), stands for the limited proposition that the
doctrine of waiver has no application where the defendant was
acquitted of the charge in the previous trial.
Perillo, 626 A.2d at 168 n.6 (emphasis added).
“A trial de novo gives the defendant a new trial without reference to
the Municipal Court record; a petition for writ of certiorari asks the Common
Pleas Court to review the record made in the Municipal Court.”
Commonwealth v. Beaufort, 112 A.3d 1267, 1269 (Pa. Super. 2015)
(citation omitted) (holding that issue of whether appellant was timely tried in
Municipal Court became moot when he decided to forgo review of that
motion by writ of certiorari and instead proceeded to a trial de novo). A trial
de novo does not allow relitigation of pretrial motions, such as a motion to
suppress. Commonwealth v. Harmon, 366 A.2d 895 (Pa. 1976).
Here, Appellant argued that any trial, including his de novo trial, for
the DUI charge is barred by the compulsory joinder rule because the
(Footnote Continued Next Page)
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J-A08043-18
first, Appellant argues that the trial court erred in denying his motion to
dismiss the subsequent DUI case. Appellant’s Brief at 4.
Appellant’s claim raises a question of law; therefore, our standard of
review is de novo and our scope is plenary. Commonwealth v. Fithian,
961 A.2d 66, 71 n.4 (Pa. 2008).
The compulsory joinder statute sets forth the requirements for when a
current prosecution is barred by a former prosecution for a different offense.
Although a prosecution is for a violation of a different provision
of the statutes than a former prosecution or is based on different
facts, it is barred by such former prosecution under the following
circumstances:
(1) The former prosecution resulted in an acquittal or in a
conviction as defined in section 109 of this title (relating to
when prosecution barred by former prosecution for the
same offense) and the subsequent prosecution is for:
***
(ii) any offense based on the same conduct or arising
from the same criminal episode, if such offense was
known to the appropriate prosecuting officer at the
time of the commencement of the first trial and
occurred within the same judicial district as the
former prosecution unless the court ordered a
separate trial of the charge of such offense[.]
(Footnote Continued) _______________________
Commonwealth decided to try him separately for the traffic offense first.
The fact that Appellant previously filed a motion to dismiss is irrelevant
because a trial de novo does not consider the municipal court record.
Moreover, because he was facing a retrial, Appellant had to file a new
motion to dismiss or waive that issue for appeal. See Perillo, supra.
Accordingly, we are not persuaded by the Commonwealth’s waiver
argument.
-4-
J-A08043-18
18 Pa.C.S. § 110(1)(ii).
Here, Appellant was charged in the city and county of Philadelphia with
a traffic offense and DUI arising from the same criminal episode. The
Commonwealth prosecuted the traffic offense first, and following that
conviction in absentia, proceeded on the DUI charge. Generally, 18 Pa.C.S.
§ 110(1)(ii) would bar the subsequent prosecution of Appellant’s DUI charge
because it arose out of the same criminal episode within the same judicial
district that triggered his former prosecution for the traffic offense.
However, an en banc panel of this Court recently examined a factually
similar situation, and found that because of the “jurisdictional exceptions
applicable to Philadelphia,” compulsory joinder does not bar the prosecution
of a DUI charge following a conviction for a traffic violation in Philadelphia
Municipal Court–Traffic Division, even though the DUI charge and the traffic
offense stem from the same criminal episode. Perfetto, 169 A.3d at 1116.
In Perfetto, the defendant was stopped in the city and county of
Philadelphia and charged with several counts of DUI, as well as a traffic
offense for driving without lights. Perfetto was found guilty in absentia for
the traffic offense in the Philadelphia Municipal Court–Traffic Division.
Subsequently, he was prosecuted on the DUI charges in the Philadelphia
Municipal Court–General Division. Following a preliminary hearing, Perfetto’s
case was listed for trial in the Court of Common Pleas. Prior to trial, Perfetto
-5-
J-A08043-18
filed a motion to dismiss pursuant to 18 Pa.C.S. § 110(1)(ii). The trial court
granted Perfetto’s motion, finding that the 2013 merger of the formerly
separate Traffic Court with the Philadelphia Municipal Court “brought [the]
charges within the jurisdiction of the same court, and [] the policy aims of
18 Pa.C.S. § 110(1)(ii) dictated that the secondary prosecution be barred.”
Id. at 1116-17. The Commonwealth appealed, and the matter was certified
to an en banc panel of this Court.
On appeal, this Court focused on the 2002 amendment to 18 Pa.C.S.
§ 110(1)(ii), which removed the phrase “was within the jurisdiction of a
single court[,]” and replaced it with “occurred within the same judicial
district.” Perfetto, 169 A.3d at 1119 (quoting 18 Pa.C.S. § 110(1)(ii)). We
concluded that
the amended language of Section 110 is clear and unambiguous,
and it requires a court to consider not the jurisdiction of a court,
but rather whether multiple offenses occurred within the same
judicial district. If so, and provided the prosecutor is aware of
the offenses, all charges shall be joined and prosecuted
together. Thus, the addition of the “same judicial district”
language requires that all charges occurring within the same
judicial district, arising from the same criminal conduct or
criminal episode, and known to a prosecutor, shall be joined at
the time of commencement of the first prosecution.
Id. at 1120 (emphasis in original; citation omitted).
Thus, the fourth prong of the four-prong test to determine whether
compulsory joinder applies in a given case was modified following the 2002
amendment as follows:
-6-
J-A08043-18
(1) the former prosecution resulted in an acquittal or conviction;
(2) the current prosecution was based on the same criminal
conduct or arose from the same criminal episode; (3) the
prosecutor in the subsequent trial was aware of the charges
before the first trial; and (4) all charges [are] within the
same judicial district as the former prosecution.
Id. at 1119 (emphasis in original; citations omitted).
As in Perfetto, there is no question that in the instant case, the first
three prongs were satisfied. Rather, the issue narrowly focuses on the
fourth prong of the test. In that regard, Appellant argues that the trial court
erroneously focused on a “jurisdictional” element, which he claims is no
longer part of the four-prong test following the 2002 amendment.
Appellant’s Brief at 11-12. However, this Court concluded in Perfetto that
jurisdictional considerations are still pertinent.
[W]hile jurisdiction is no longer an element of the compulsory
joinder test, the jurisdiction of a court remains a consideration
implicit to any compulsory joinder analysis, and it is particularly
important in those judicial districts that, for various reasons,
have distinct minor courts or magisterial district judges vested
with exclusive jurisdiction over specific matters.
Perfetto, 169 A.3d at 1121 (footnote omitted). This is particularly so in
Philadelphia, which has a unique jurisdictional organization compared to
other Pennsylvania jurisdictions.
In judicial districts with a designated and open traffic court such
as Philadelphia, 42 Pa.C.S. § 1302 expressly defines the
jurisdiction of a traffic court and effectively carves out an
exception to the normal operation of the compulsory joinder
rule.
***
-7-
J-A08043-18
This distinction requires that all summary traffic violations be
adjudicated in the traffic court of a judicial district. Therefore,
where a defendant is charged with a summary traffic violation, a
misdemeanor, and a felony, in judicial districts with a traffic
court, the Title 75 summary offense may be disposed of in a
prior proceeding in the traffic court, which has exclusive
jurisdiction to hear it, without violating the compulsory joinder
rule.
Id. at 1121-22 (footnote omitted). Thus, we must look at Philadelphia’s
unique jurisdictional structure in light of the compulsory joinder statute,
specifically as it pertains to the prosecution of cases involving a traffic
offense and a misdemeanor from the same criminal episode.
On June 19, 2013, the Philadelphia Municipal Court underwent a
restructuring wherein it absorbed the previously independent Traffic Court.5
The new Municipal Court comprises two administrative
sections, designated the General Division and the Traffic
Division. 42 Pa.C.S. § 1121. These divisions have unique
jurisdiction as defined in 42 Pa.C.S. § 1123(a) (relating to
jurisdiction and venue). Among the matters listed as within the
jurisdiction of the Philadelphia Municipal Court are prosecutions
for summary offenses arising under Title 75. 42 Pa.C.S.
§ 1123(a)(9)[.]
5 At oral argument, Appellant attempted to distinguish Perfetto because
Appellant was charged on May 19, 2013, before this restructuring, whereas
Perfetto was charged after the restructuring. This argument is specious.
While Appellant was charged prior to the restructuring, he was prosecuted
on his traffic offense following the restructuring, in the newly created
Philadelphia Municipal Court–Traffic Division, on July 23, 2013. His
prosecution on the DUI charge proceeded after that in the Philadelphia
Municipal Court–General Division. Thus, his prosecutions did not predate
the 2013 restructuring, and Perfetto is not distinguishable on that basis.
-8-
J-A08043-18
Id. at 1122. However, our Supreme Court has reassigned summary traffic
violations to the Philadelphia Municipal Court–Traffic Division. Id. at 1123.
Particularly, rules 1002 and 1030 of the Rules of Criminal
Procedure for the Municipal Court and the Philadelphia Municipal
Court[-]Traffic Division, as amended after June 19, 2013,
distinguish between non-traffic summaries and traffic
summaries, and their comments reinforce that the Traffic
Division has jurisdiction over traffic summary
offenses. See Pa.R.Crim.P. [] 1002, cmt. (“all summary offenses
under the motor vehicle laws ... are under the jurisdiction of the
Municipal Court[-]Traffic Division”); 1030, cmt. (“the jurisdiction
and functions of the Philadelphia Traffic Court were transferred
to the Philadelphia Municipal Court[-]Traffic Division”).
The aforementioned amendments, collectively, illuminate
our Supreme Court’s intent following the restructure to divide
the Philadelphia Municipal Court’s labor to allocate disposition of
summary traffic offenses solely to the Philadelphia Municipal
Court Traffic Division.
Id. at 1124 (footnote omitted). Given this jurisdictional structure, this Court
held that
in the context of compulsory joinder, where a defendant is
charged with a summary traffic violation and a misdemeanor,
the Title 75 summary offense must be disposed of in a
proceeding in the Philadelphia Municipal Court[-]Traffic Division,
which has jurisdiction exclusive of the Court of Common Pleas,
and a separate proceeding must be held for the remaining,
higher offenses.
Id.
Considering Philadelphia’s unique jurisdictional structure with the
compulsory joinder statute, the Perfetto Court held that, in Philadelphia,
compulsory joinder will not bar a prosecution for DUI arising out of the same
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J-A08043-18
criminal episode as a traffic offense for which a defendant has already been
prosecuted in the Traffic Division.
Section 1302 carves out an exception to compulsory joinder and
directs that the summary traffic offense is within the exclusive
jurisdiction of the traffic court. A prior disposition of a summary
traffic offense in a traffic court does not bar the later prosecution
of other criminal charges which arose in the same judicial district
and at the same time as the summary traffic offense.
In sum, the amended language “occurred within the same
judicial district” found in Section 110 is clear and unambiguous.
Rather, a court must consider whether all charges occurred in
the same judicial district. Because of the implicit consideration of
jurisdiction, where summary traffic offenses are included in
multiple crimes charged, in those judicial districts which have a
separate traffic court, the summary traffic offenses may reach
disposition in a single, prior proceeding without precluding
subsequent prosecution of higher offenses. Where there is a
separate traffic court, the traffic court is charged with disposing
with the summary traffic violation(s) of the crimes charged
without violation of the compulsory joinder rules. In those
judicial districts which do not have a separate traffic court, the
four-prong test compulsory joinder must be applied in order to
determine whether the compulsory joinder rules have been
violated.
Here, because of the unique jurisdictional organization of
the Philadelphia Courts, [Perfetto’s] subsequent DUI prosecution
is not barred.
Id. at 1124-25.
Like Perfetto, Appellant was charged with a traffic offense and DUI
from the same criminal episode occurring within the city and county of
Philadelphia. Like Perfetto, Appellant was tried first for the traffic offense in
the newly restructured Philadelphia Municipal Court–Traffic Division, and was
found guilty in absentia. Like Perfetto, the Commonwealth next proceeded
- 10 -
J-A08043-18
with Appellant’s DUI prosecution, and Appellant sought dismissal for a
violation of compulsory joinder. Accordingly, because Appellant’s
circumstances are practically identical to those of Perfetto, we find that for
the reasons stated by this Court in Perfetto, supra, compulsory joinder
does not apply, and the trial court did not err in denying his motion to
dismiss.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/27/18
- 11 -
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92 Ariz. 214 (1962)
375 P.2d 567
The STATE of Arizona, Appellant,
v.
Janis TURNER, Appellee.
No. 1230.
Supreme Court of Arizona, In Division.
October 18, 1962.
*216 Robert Pickrell, Atty. Gen., Harry Ackerman, former County Atty. of Pima County, and Jack I. Podret, present County Atty. for Pima County, for appellant.
Martin S. Rogers, Tucson, for appellee.
CASTRO, Superior Court Judge.
The State of Arizona appeals from an order of the Superior Court of Pima County granting the defendant Janis Turner a new trial. The pertinent matters for proper disposition of the issues involved are as follows:
Defendant was charged by information of having committed the crime of murder, second degree. Defendant was tried by a jury and on April 12, 1961 was convicted of manslaughter. On the same day, defendant filed a motion for a new trial based on Rule 310 of the Rules of Criminal Procedure, 17 A.R.S., to wit:
"that the verdict is contrary to law or the weight of the evidence".
Other grounds were stated under Rule 311 of Rules of Criminal Procedure, 17 A.R.S., but were not considered by the trial court in its order granting a new trial. Therefore, it would not serve any purpose to consider these matters.
On May 29, 1961, defendant filed a supplemental motion for new trial pursuant to Rule 310(3) of the Rules of Criminal Procedure, 17 A.R.S. invoking the remedy of newly discovered evidence. Not only were affidavits attached to the motion, but on April 20-21, 1961 the trial court had the opportunity to examine the affidavits as well as listen to the testimony of witnesses. In fact some of the witnesses were interrogated by the Court. The learned trial judge in his order of June 29, 1961 granting a new trial discussed only two grounds, as follows: (1) that the verdict was contrary to the weight of the evidence; (2) newly discovered evidence.
The State assigned as error: (1) That the trial court erred and based its discretion in granting a new trial on evidence which was not admissible nor material. (2) That the trial court abused its discretion because the supposedly newly discovered evidence was cumulative in nature or merely for the purpose of impeachment or contradiction.
*217 This leads us to an analysis of the nature of this action. It is apparent that the new trial was granted on one or both of the grounds stated in the order of June 29, 1961. If the motion was granted on either ground, the fact that it was incorrect on the other ground is immaterial. State v. White, 56 Ariz. 189, 106 P.2d 508. The general rule in this jurisdiction is that granting or denying a new trial is discretionary with the trial court and will not be reversed by this court unless it affirmatively appears that there has been an abuse of discretion. It must be exercised in a legal and not arbitrary manner. State v. Bogard, 88 Ariz. 244, 354 P.2d 862; State v. Chase, 78 Ariz. 240, 278 P.2d 423; State v. White, 56 Ariz. 189, 106 P.2d 508; State v. Duguid, 50 Ariz. 276, 72 P.2d 435.
It has been held many times by this Court that the trial court has the right in a criminal case to weigh the evidence in determining a motion for a new trial based on the grounds that the evidence did not sustain the verdict. State v. Bogard, 88 Ariz. 244, 354 P.2d 862; State v. Saenz, 88 Ariz. 154, 353 P.2d 1026; State v. Chase, supra.
Trial judges must be forever mindful in criminal cases that they have a greater duty than in civil cases to see that the trial is just. The verdict must be supported by proof beyond a reasonable doubt. State v. Bogard, supra. Furthermore, in the case of State v. Duguid, supra, this Court stated:
"* * * When the object in granting a new trial is to promote justice and protect the innocent, and the record so disclosed, the court's discretion is properly exercised. * * *" 50 Ariz. at 278, 72 P.2d at 436.
In State v. Saenz, 88 Ariz. 154, 353 P.2d 1026, this Court held:
"* * * [T]he scope of review of an order granting a new trial is essentially the same in both civil and criminal proceedings, taking into consideration the differences in the applicable burdens of proof. In a civil case, where the plaintiff has the burden to prove his case by a preponderance of the evidence, the trial court may properly grant a new trial provided that the `probative force of the evidence does not clearly preponderate in favor of the verdict.' (Pima County v. Bilby, supra, 87 Ariz. 366, 351 P.2d 647). In a criminal proceeding, on the other hand, where the prosecution has the burden to prove the defendant guilty beyond a reasonable doubt, the trial court does not abuse its discretion in granting defendant's motion for a new trial unless the record shows that his guilt has clearly been `proved beyond a reasonable doubt'. (State v. Chase, *218 supra.)" 88 Ariz. at 156, 353 P.2d at 1028.
In Caldwell v. Tremper, 90 Ariz. 241, 367 P.2d 266, the court cited Zevon v. Tennebaum, 73 Ariz. 281, 240 P.2d 548 and Sadler v. Arizona Flour Mills Company, 58 Ariz. 486, 121 P.2d 412, as follows:
"The granting of a new trial is different from an order refusing a new trial, for in the former the rights of the parties are never finally disposed of as in the latter they may be. The courts accordingly are more liberal in sustaining an order for a new trial than where it is denied. * * * We have quite definitely taken the stand that we will not reverse the trial court for granting a new trial where the evidence is conflicting." 90 Ariz. at 246, 367 P.2d at 269.
Also the Court held in Brownell v. Freedman, 39 Ariz. 385, 6 P.2d 1115 as follows:
"It must be remembered that a very different rule applies to the setting aside of a verdict by the trial court on the ground that it is contrary to the weight of the evidence and to the same action taken by this court. We have invariably held that this court will not disturb a verdict on the ground that it is contrary to the weight of the evidence. On the other hand, we have held with equal emphasis that it is not only the right of the trial court to set it aside under such circumstances, but that it is its duty, and we have even gone so far as to express our regret that trial courts did not more courageously and frequently exercise their prerogative in this respect. Dennis v. Stukey, 37 Ariz. 299, 294 P. 276." 39 Ariz. at 389, 6 P.2d at 1116.
The following quotation from Smith v. Moroney, 79 Ariz. 35, 282 P.2d 470, has the approval of this Court:
"We will not disturb an order granting a new trial unless the probative force of the evidence clearly demonstrates that the trial court's action is wrong and unjust and therefore unreasonable and a manifest abuse of discretion." 79 Ariz. at 39, 282 P.2d at 472.
The second ground considered by the trial court in granting a new trial was the matter of newly discovered evidence. It might be well to consider the legal principles involved. It is largely in the discretion of the trial court whether a new trial upon the ground of newly discovered evidence shall be granted. State v. Love, 77 Ariz. 46, 266 P.2d 1079. Generally newly discovered evidence, even though cumulative, if material and of such weight as most likely would have changed the result of the trial had it been given, entitled defendant to a new trial provided due diligence is shown. Rule 310(3) Rules of Criminal Procedure. *219 17 A.R.S.; State v. Love, 77 Ariz. 46, 266 P.2d 1079; State v. Romero, 77 Ariz. 229, 269 P.2d 724; Hunter v. State, 43 Ariz. 269, 30 P.2d 499.
Bearing in mind the decisions of this court heretofore mentioned and applying the principles enunciated herein to the facts of the case, we can proceed to dispose of the only legal issue of whether or not the trial court abused its discretion in granting a new trial. To properly dispose of the legal issues before us, it is imperative that the following facts be considered:
The defendant arrived in Tucson sometime in October, 1960 from Reno, Nevada. A short time later she met the deceased, Walter Livingston, who later for all purposes became her boy friend. The deceased became very possessive over the defendant and extremely jealous of her actions. The record indicates that they quarreled frequently; he on several times physically beat the defendant. The defendant testified that deceased was in the habit of carrying a knife and would threaten her with it. The defendant informed the deceased that she was calling the "whole thing off".
On January 5, 1961 the defendant visited some neighbors. She had occasion to walk to the door and saw the deceased standing in front of a screen door. He apologized for his actions and wanted to talk to the defendant. The defendant refused. The deceased then became violent, threatening to burn the house and not let her out of the house. He also stated "either you kill me or I will kill you". The defendant stated that the deceased had a dirk in his hand so she shot him once. The deceased then made another lunge at her so she shot again. He died from the bullet wounds.
It may be added that a few days prior to the day of the shooting, the defendant had purchased a gun supposedly to protect herself from the deceased. An eye witness testified that he saw the shooting and never did see a knife or dirk in Livingston's hands nor in the immediate vicinity. Another witness testified that prior to the homicide the deceased had been in his house and had emptied his pockets and no knife or any other weapon had been observed. After Livingston was shot, he went to a tavern close by. He was then taken to the County Hospital by a mutual friend of the parties; the hospital records did not indicate any weapon being recovered from the deceased at admission nor at any time.
The newly discovered evidence presented to the Court was as follows: About two days after the funeral of Walter Livingston, a witness named Lacy Riddell was driving his automobile in a Tucson street at a fast rate of speed. He made a sudden stop and from underneath the front seat of the car a knife slid out. Riddell, the driver, examined the knife and identified it as belonging to Walter Livingston, who had *220 been a close personal friend and a former room mate. Riddell stated that he and the deceased had cleaned rabbits, fish and participated in barbecues in the deceased's back yard. During all these times, the knife in question had been used. The knife was produced for the court's examination at the time of the motion for new trial. Also the defendant took the stand at the time of the hearing of the motion for new trial and identified the knife as being the one the deceased had in his hand at the time she shot him.
Riddell, who found the knife in his car, testified that he had been with Walter Livingston, the deceased, at about noon at the Bee Hive, a Tucson tavern. His car had been parked in the vicinity of the tavern. About one hour later he returned to the same tavern in his car. It was then that he saw Benny Dixon carrying Walter Livingston to the hospital. It may be added that the scene of the shooting is very close to the Bee Hive Tavern. The witness Riddell was present when the police were making the investigation at the scene and when the defendant was arrested. It should be clarified that the knife was found about nine or ten days after the shooting.
The defendant relied on the claim of "self defense" at her trial. In criminal prosecution, the trial court should be allowed reasonable discretion in determining relevancy and admissibility of evidence. State v. Wallace, 83 Ariz. 220, 319 P.2d 529; the State contends that the knife would not be admissible in a trial nor would it be material. Let us analyze this proposition. The defendant contends the killing was justified because of self defense. A.R.S. § 13-462. If a homicide results then the accused may support that defense by all circumstances of the homicide. State v. Wallace, supra. The fact of whether or not the deceased held a knife in his hand in a threatening manner at the time of the shooting goes to the very essence of self defense. The State asserts that the introduction of the knife into evidence would at the most be cumulative. We agree that the defendant had testified at the trial that she had shot Walter Livingston because she was afraid of him inasmuch as he had a "dirk" or knife in his hand and lunged at her with it. The jury had a perfect right to disbelieve her story about the knife inasmuch as one was not produced at the trial. We strongly feel that the knife was not only material but corroborated the defendant's reliance on self defense. The production of a knife at trial certainly, in our opinion, would have had great probative effect when self defense is the main issue. The words "corroborative" and "cumulative" are by no means identical in meaning. Webster's New Twentieth Century Dictionary, Unabridged, 2nd edition, defines the following words as follows: "corroborative, a. corroborating or tending to corroborate; tending *221 to confirm"; "cumulative * * * 3. in law, (a) augmenting or tending to establish a point already proved by other evidence". We feel that if the knife had been produced at the time of trial the result of the jury's verdict might have been changed. There is no merit to the State's assertion that introduction in evidence of the knife would be only for impeachment or contradiction. The facts speak for themselves.
Great issue was made by the State because the knife was not found until nine or ten days after the day of the shooting. Time is not the sole factor in determining the admissibility of an object. Sufficient identification of the knife was made by the witness Lacy Riddell. Defendant identified the knife as being in the deceased's hands at the time of the shooting. Witness Riddell found the knife and kept it in his home until produced in court at the hearing of motion for a new trial. This witness had been with the deceased about an hour before he was shot and saw the deceased being taken to the hospital. The car, in which the knife was found, had been in the area immediately after the shooting. The court did not base its ruling on the mere reading of affidavits. In fact, the Court had the advantage of watching the demeanor, mannerisms and attitude of the witnesses while testifying under oath. At the time of the hearing, the witnesses were cross-examined extensively by the State. Certainly the foundation as to identification and continuity of possession of the knife was established. Under these circumstances, this Court cannot substitute its judgment for that of the trial court. Perhaps any weakness produced in cross-examination as to the positive identity of the knife would go to weight and credibility, but not to admissibility.
The last factor to be considered is whether or not the defendant exercised due diligence in finding the newly discovered evidence. It is uncontradicted that neither the prosecution nor the defendant knew anything about the knife until after the first motion for a new trial had been filed. Reasonable diligence is shown in the affidavits and also by the testimony in court as far as securing the production of the knife as soon as the defendant knew of the existence of it. Cf. State v. Romero, 77 Ariz. 229, 269 P.2d 724. The accused, when moving for a new trial on the ground of newly-discovered evidence, must show by affidavit or testimony in court, that due diligence was used to ascertain and produce the evidence in time for use at his trial. He must account for his failure to produce the evidence by stating explicitly the details of his efforts to ascertain and procure it. "* * * A new trial will not be denied where there was nothing to apprise the defendant of the existence of the evidence or to forsee its necessity". 2 Underhill's Criminal Evidence, 5th edition, § 434 p. 1100. *222 The affidavit of Lacy Riddell indicates that he did not divulge the information of having found the knife until a week after the defendant's trial. It is our view that the trial court did not abuse its discretion and a proper recognition of the rights of the defendant requires that she be granted a new trial.
It is therefore the order of this Court that the judgment of the court below be affirmed.
BERNSTEIN, C.J., and STRUCKMEYER, J., concur.
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FILED
NOT FOR PUBLICATION OCT 23 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
In re: DANNY WAYNE PRYOR, No. 11-60067
Debtor, BAP No. 10-1259
DANNY WAYNE PRYOR, MEMORANDUM *
Appellant,
v.
RW INVESTMENT COMPANY, INC.,
Appellee.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Pappas, Kirscher, and Sargis, Bankruptcy Judges, Presiding
Submitted October 15, 2013 **
Before: FISHER, GOULD, and BYBEE, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Danny Wayne Pryor appeals pro se from the Bankruptcy Appellate Panel’s
(“BAP”) judgment affirming the bankruptcy court’s decision that Pryor’s debt to
RW Investment Co., Inc. was nondischargeable under 11 U.S.C. § 523(a)(2)(A).
We have jurisdiction under 28 U.S.C. § 158(d). We review de novo BAP
decisions, and apply the same standard of review that the BAP applied to the
bankruptcy court’s ruling. Boyajian v. New Falls Corp. (In re Boyajian), 564 F.3d
1088, 1090 (9th Cir. 2009). We affirm.
The bankruptcy court did not abuse its discretion in striking Pryor’s answer
and directing entry of default based on Pryor’s willful failure to attend a status
conference and to cooperate in the discovery process. See Halaco Eng’g Co. v.
Costle, 843 F.2d 376, 379 (9th Cir. 1988) (setting forth standard of review and
explaining that this court will not reverse sanctions absent “a definite and firm
conviction” that the lower court made “a clear error of judgment”); Malone v. U.S.
Postal Serv., 833 F.2d 128, 130-33 (9th Cir. 1987) (setting forth five factors for
court to weigh in determining whether severe sanction is appropriate).
The bankruptcy court did not err in granting default judgment to RW
Investment for an exception to discharge under 11 U.S.C. § 523(a)(2)(A) because
the court had ample evidence of Pryor’s false representations, supporting
nondischargeability of Pryor’s debt to RW Investment. See 11 U.S.C.
2 11-60067
§ 523(a)(2)(A) (excepting from discharge debt obtained by false pretenses, false
representations, or actual fraud); Ghomeshi v. Sabban (In re Sabban), 600 F.3d
1219, 1222 (9th Cir. 2010) (setting forth elements under § 523(a)(2)(A)).
Pryor’s contention that this case is moot is unpersuasive.
We decline to address contentions that Pryor did not properly raise below,
including his contentions concerning damages, alleged inconsistent testimony,
standing, and the statute of limitations. See Fla. Partners Corp. v. Southeast Co.
(In re Southeast Co.), 868 F.2d 335, 339-40 (9th Cir. 1989) (declining to address
issue not raised before bankruptcy court).
AFFIRMED.
3 11-60067
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FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS June 30, 2014
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 13-3276
v. (D.C. Nos. 2:12-CV-02684-CM;
2:07-CR-20057-CM-1)
DEMARIO A. EATMAN, (D. Kan.)
Defendant-Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before GORSUCH, MURPHY, and HOLMES, Circuit Judges.
In this 28 U.S.C. § 2255 proceeding, pro se 1 federal inmate Demario
Eatman has applied for a certificate of appealability (“COA”) to challenge the
district court’s denial of his motion to vacate, set aside, or correct his sentence.
Mr. Eatman also moves for leave to proceed here in forma pauperis (“IFP”). As
*
This order 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 Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.
1
Because Mr. Eatman is proceeding pro se, we construe his filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Garza v.
Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010).
explained below, we deny the application for a COA, deny the motion to proceed
IFP, and dismiss the matter.
I
In 2007, Mr. Eatman was indicted in the United States District Court for
the District of Kansas for possessing a firearm as a felon, in violation of 18
U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e)(1). Mr. Eatman pleaded guilty
without the benefit of a plea agreement. The petition to plead guilty was signed
by Mr. Eatman and bore the following typewritten note: “The maximum penalty is
10 years unless the court determines the defendant has three prior serious drug
offenses or violent felonies or a combination of three ther[e]of as set out in 18
U.S.C. sec. 924(e)(1).” R., Vol. I, at 21 (Pet. to Plead Guilty, filed Oct. 14,
2010). Defense counsel likewise certified to the court that he had explained the
maximum penalty for the offense to his client and had discussed with him the
application of the United States Sentencing Guidelines (“the Guidelines”). 2
After the guilty plea was entered, a Presentence Investigation Report
(“PSR”) was prepared by the United States Probation Office using the 2010
version of the Guidelines. The PSR determined that Mr. Eatman was subject to
an advisory Guidelines range of 168 to 210 months, which became a 180-to-210-
2
The attorney certification suggests that the guilty plea was the result
of a plea agreement, but in light of the rest of the record we regard that statement
as a typo.
2
month range in light of the fifteen-year statutory minimum sentence established
by 18 U.S.C. § 924(e)(1) for armed career criminals. According to the PSR, Mr.
Eatman was an armed career criminal because he had been convicted of three
violent felonies—viz., one for burglary and two for resisting arrest. Mr. Eatman
objected that the resisting-arrest convictions were not violent felonies and thus
could not properly be used to classify him as an armed career criminal.
At the sentencing hearing that followed, defense counsel advised the court
that he had discussed the PSR with Mr. Eatman and had gone over with him “the
possible sentencing outcomes or sentencing consequences that could take place
based on the information in the report.” R., Vol. II, at 6 (Sentencing Hr’g Tr.,
dated Feb. 8, 2011). Mr. Eatman testified to the same effect.
The district court adopted the PSR in toto, including its effective 180-to-
210-month range, and sentenced Mr. Eatman to 180 months in prison. In so
doing, the district court found that both of Mr. Eatman’s prior convictions for
resisting arrest qualified as violent felonies under 18 U.S.C. § 924(e), as that
provision had been interpreted by Tenth Circuit case law.
When Mr. Eatman challenged his sentence, his attorney filed a motion to
withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). On appeal, Mr.
Eatman reiterated the argument that his resisting-arrest offenses were not violent
felonies within the meaning of the relevant statutory provisions. A panel of the
Tenth Circuit rejected his argument and, applying Sykes v. United States, ---
3
U.S. ----, 131 S. Ct. 2267 (2011), determined that Mr. Eatman’s convictions
qualified as “violent felonies” under the Armed Career Criminal Act. United
States v. Eatman, 460 F. App’x 790, 795–96 (10th Cir. 2012). The panel
consequently granted defense counsel’s Anders motion and dismissed the appeal.
Id. at 796.
In 2012, Mr. Eatman filed a motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255. He alleged in that motion that his plea
had not been knowing, voluntary, and intelligent, thereby violating his due-
process rights, and that he had received ineffective assistance of counsel. In
support of his claims, Mr. Eatman asserted that his attorney had exaggerated the
strength of the evidence against him and falsely advised him that he would not be
sentenced to more than 120 months’ imprisonment. After the government
responded to his request for habeas relief, Mr. Eatman filed a motion for
production of discovery material from his former attorney. He also filed a motion
to expand the record to include various affidavits and DNA evidence. In a
subsequent filing, Mr. Eatman requested an evidentiary hearing on his § 2255
motion.
The district court denied the motion for discovery, the motion to expand the
record, and the § 2255 motion. With respect to the due-process claim, the district
court noted that both the petition to plead guilty and the district court’s
recollection of the change-of-plea hearing reflected the fact that Mr. Eatman’s
4
counsel informed him that he faced a maximum penalty of ten years unless the
court found him to be an armed career criminal under 18 U.S.C. § 924(e)(1). 3
Regarding the ineffective-assistance claim, the district court stressed that defense
counsel filed a motion in limine, a motion for discovery, and objections to the
PSR, indicating that he had reviewed the evidence in the case and that his
performance was not constitutionally deficient. The district court likewise found
that Mr. Eatman had made no showing of prejudice, reasoning that the
government had compelling evidence of his guilt—including video surveillance
capturing the suspect wearing the same clothing found on Mr. Eatman at the time
of his arrest. In light of those findings, the district court denied Mr. Eatman’s
§ 2255 motion, denied a COA, denied his request for an evidentiary hearing, and
denied his motions for discovery and to expand the record.
II
We are not authorized to consider the merits of an appeal in a § 2255
proceeding unless the movant has first obtained a COA. See 28 U.S.C.
§ 2253(c)(1)(B); see also Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003). “A
3
Although no transcript for the change-of-plea hearing appears in the
record, we observe that the same district court judge who presided over that
hearing later ruled on the § 2255 motion. Thus, guided by the Supreme Court’s
view that “[i]n some cases, the judge’s recollection of the events at issue may
enable him summarily to dismiss a [§] 2255 motion,” Blackledge v. Allison, 431
U.S. 63, 74 n.4 (1977), we are not troubled by this aspect of the district court’s
ruling.
5
COA will issue ‘only if the applicant has made a substantial showing of the denial
of a constitutional right.’” Coppage v. McKune, 534 F.3d 1279, 1281 (10th Cir.
2008) (quoting 28 U.S.C. § 2253(c)(2)); accord Harris v. Dinwiddie, 642 F.3d
902, 906 (10th Cir. 2011). “To make such a showing, an applicant must
demonstrate ‘that reasonable jurists could debate whether (or, for that matter,
agree that) the [motion] should have been resolved in a different manner or that
the issues presented were adequate to deserve encouragement to proceed
further.’” Harris, 642 F.3d at 906 (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)).
III
Liberally construed, Mr. Eatman’s opening brief asserts five grounds for a
COA: (1) his plea was not knowing, intelligent, and voluntary, in violation of his
due-process rights; (2) he received ineffective assistance of counsel, in violation
of his Sixth Amendment rights; (3) his request to expand the record should have
been granted; (4) his motion for discovery should have been granted; and (5) his
request for an evidentiary hearing should have been granted. 4 For the reasons that
follow, Mr. Eatman is not entitled to a COA on the first two grounds because he
fails to demonstrate that reasonable jurists could debate the district court’s
4
In addition, Mr. Eatman appears to challenge the district court’s
ruling that his reply brief was not properly filed because it was not signed under
penalty of perjury. Because he does not explain what bearing this point might
have on his request for a COA, we will not discuss the argument further.
6
determination that his constitutional claims are meritless. He is likewise not
entitled to a COA on the remaining three grounds, for without a viable underlying
constitutional claim, his nonconstitutional arguments cannot support the issuance
of a COA.
A
So far as we can discern, Mr. Eatman’s due-process argument on appeal is
limited to the contention that “[t]he rote recitation of the plea colloquy is
insufficient in most cases to permit a court to resolve the issue of . . . whether a
knowing[], voluntary and intelligent guilty plea has been made.” Aplt. Opening
Br. at 3. Mr. Eatman supplies no explanation or authority to support this
proposition. 5 In any event, the record belies Mr. Eatman’s suggestion that the
district court cursorily accepted his guilty plea. Rather, the district court found
that Mr. Eatman was correctly apprised of his sentencing exposure—including the
potential fifteen-year statutory minimum—through his own petition to plead
guilty and directly by the district court’s oral advisements at the change-of-plea
5
Mr. Eatman purports to incorporate by reference his reply brief from
the § 2255 proceedings in the district court. We will not permit him to do so. See
10th Cir. R. 28.4 (“Incorporating by reference portions of lower court or agency
briefs or pleadings is disapproved [under the Federal Rules of Appellate
Procedure].”); see also Wardell v. Duncan, 470 F.3d 954, 963–64 (10th Cir. 2006)
(holding that an appellant was not entitled to incorporate district court filings into
his appellate brief by reference and that his “pro se status d[id] not except him
from such established rules”). Consequently, we will not address the arguments
that Mr. Eatman attempts to incorporate by reference.
7
hearing. Mr. Eatman does not contest these findings, so we accept them as
correct. See United States v. Rushin, 642 F.3d 1299, 1302 (10th Cir. 2011) (“In
considering the denial of a § 2255 motion for post-conviction relief, we review
the district court’s findings of fact for clear error . . . .”); Butler v. Hamilton, 542
F.2d 835, 838 (10th Cir. 1976) (“The burden of demonstrating that findings are
clearly erroneous is a heavy one and appellants must point out specifically where
the findings of the trial court are clearly erroneous.”).
As the district court acknowledged in denying Mr. Eatman’s § 2255 motion,
there are situations in which records are too sparse to ascertain whether a
defendant’s guilty plea satisfied due process. See Blackledge, 431 U.S. at 75–76;
cf. Lasiter v. Thomas, 89 F.3d 699, 703 (10th Cir. 1996) (discussing Blackledge
and concluding that, in contrast to that case, the defendant’s “unsubstantiated
efforts to refute [the] record were not sufficient to require a hearing”). At the
same time, it is well-established that “[t]he subsequent presentation of conclusory
allegations unsupported by specifics is subject to summary dismissal, as are
contentions that in the face of the record are wholly incredible.” United States v.
Weeks, 653 F.3d 1188, 1205 (10th Cir. 2011) (quoting Blackledge, 431 U.S. at 74)
(internal quotation marks omitted); see Lasiter, 89 F.3d at 703 (“This court has
interpreted Blackledge to permit summary disposition of habeas corpus [motions]
based on claims of unkept promises and misunderstanding when the court record
refutes the claims.”); Phillips v. Murphy, 796 F.2d 1303, 1305 (10th Cir. 1986)
8
(“In light of the detailed record and findings, . . . and the petitioner’s awareness
of statements in court that there were no negotiations on the sentence, we
conclude the assertions of petitioner are wholly incredible and do not require a
federal evidentiary hearing.”). The record here, as found by the district court and
as unchallenged by Mr. Eatman, indicates that Mr. Eatman was correctly told his
potential sentence. As a result, his intimation that he was not so advised is “in
the face of the record . . . wholly incredible,” Weeks, 653 F.3d at 1205 (internal
quotation marks omitted), and he is not entitled to a COA on his due-process
claim.
B
Mr. Eatman appears to assert that his former attorney supplied ineffective
assistance, as defined in Strickland v. Washington, 466 U.S. 668 (1984), by
falsely informing him that a DNA sample taken from the scene of the crime
matched that of Mr. Eatman. 6 “[T]o prevail on an ineffective assistance claim the
6
Mr. Eatman seems to also suggest that the government withheld the
fact that there actually was no inculpatory DNA evidence, in violation of Brady v.
Maryland, 373 U.S. 83 (1963). There are no Brady-related allegations in Mr.
Eatman’s § 2255 motion, so any potential Brady issue was not fairly presented to
the district court, and we will not address the argument in the first instance here.
See Parker v. Champion, 148 F.3d 1219, 1222 (10th Cir. 1998) (“Although we
construe pro se pleadings liberally, we will not rewrite a [motion] to include
claims that were never presented.” (citation omitted)); United States v. Cook, 997
F.2d 1312, 1316 (10th Cir. 1993) (“In the present appeal, Defendant raises thirty-
one grounds for relief. To the extent that he failed to raise these grounds in his
§ 2255 motion to the district court, he has waived them.”).
9
defendant must show that [his] counsel’s performance was deficient and that
prejudice resulted.” United States v. Flood, 713 F.3d 1281, 1286 (10th Cir.)
(emphasis added), cert. denied, --- U.S. ----, 134 S. Ct. 341 (2013). “These two
prongs [i.e., deficient performance and prejudice] may be addressed in any order,
and failure to satisfy either is dispositive.” Hooks v. Workman, 689 F.3d 1148,
1186 (10th Cir. 2012); see United States v. Orange, 447 F.3d 792, 796–97 (10th
Cir. 2006) (“Because [the § 2255 movant] must demonstrate both Strickland
prongs to establish his claim, a failure to prove either one is dispositive.” (citation
omitted)).
Mr. Eatman offers no argument or explanation concerning why he believes
he received false information from his attorney about the purported DNA
evidence. As such, he fails to demonstrate that his counsel’s performance was
deficient, and it follows that reasonable jurists could not debate the district
court’s decision to deny his ineffective-assistance claim on that basis. It is also
clear that his ineffective-assistance claim founders on Strickland’s prejudice
prong. “In cases where a defendant complains that ineffective assistance led him
to accept a plea offer as opposed to proceeding to trial, [he] will have to show ‘a
reasonable probability that, but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial.’” Missouri v. Frye, --- U.S. ----,
132 S. Ct. 1399, 1409 (2012) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985));
accord United States v. Moya, 676 F.3d 1211, 1213–14 (10th Cir. 2012).
10
On the basis of its own recollection of the change-of-plea hearing, the
district court determined that Mr. Eatman could not establish prejudice on his
DNA-evidence argument because the government did not suggest at that hearing
that it would have presented any DNA evidence at trial. The district court also
found that the government intended to present video surveillance that showed the
suspect wearing the same attire later discovered on Mr. Eatman’s person when he
was arrested. Moreover, the district court recited the government’s assertion that
the firearm was later found close to the location at which Mr. Eatman was taken
into custody.
Mr. Eatman does not dispute any of the foregoing findings in his opening
brief, leading us to embrace them as true. See Rushin, 642 F.3d at 1302; Butler,
542 F.2d at 838. Applying the law to these facts, we find that a reasonable jurist
could not debate the correctness of the district court’s conclusion that there was
no reasonable probability that Mr. Eatman would have elected to go to trial, rather
than plead guilty, even in the absence of the purported DNA evidence. For,
without that evidence, there would still have been—on the uncontroverted
record—substantial proof of Mr. Eatman’s guilt. Consequently, Mr. Eatman
cannot demonstrate that he was prejudiced under Strickland by any alleged
deficient performance by his counsel.
In sum, given that Mr. Eatman has failed to make an adequate showing on
either prong of Strickland (i.e., deficient performance or prejudice), we are
11
satisfied that reasonable jurists could not debate the district court’s decision to
reject his ineffective-assistance claim, and we will not issue a COA regarding that
claim.
C
Apart from his underlying constitutional claims, Mr. Eatman requests a
COA on three other grounds: (1) his request to expand the record should have
been granted; (2) his motion for discovery should have been granted; and (3) his
request for an evidentiary hearing should have been granted. However, a COA is
only appropriate in circumstances implicating constitutional error. See Harris,
642 F.3d at 906 (“We will issue a COA ‘only if the applicant has made a
substantial showing of the denial of a constitutional right.’” (emphasis added)
(quoting 28 U.S.C. § 2253(c)(2))); Coppage, 534 F.3d at 1281 (“A COA will
issue ‘only if the applicant has made a substantial showing of the denial of a
constitutional right.’” (emphasis added) (quoting 28 U.S.C. § 2253(c)(2))); United
States v. Gordon, 172 F.3d 753, 755 (10th Cir. 1999) (“[Section] 2253(c)(2)
precludes the grant of a COA on such nonconstitutional claims.”). Mr. Eatman
does not suggest that any of these alleged errors rise to constitutional magnitude,
and we see no way in which they could. Furthermore, to the extent that the
remaining claims are meant to go to his underlying constitutional arguments, we
have already explained why those arguments fail to warrant a COA. Accordingly,
Mr. Eatman is not entitled to a COA on these claims.
12
IV
Mr. Eatman has presented here no “reasoned, nonfrivolous argument on the
law and facts.” Watkins v. Leyba, 543 F.3d 624, 627 (10th Cir. 2008) (internal
quotation marks omitted). Accordingly, his motion to proceed IFP is denied.
V
For the reasons set forth above, we DENY Mr. Eatman’s application for a
COA, DENY his motion to proceed IFP, and DISMISS this matter.
Entered for the Court
JEROME A. HOLMES
Circuit Judge
13
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 17, 2005
Charles R. Fulbruge III
Clerk
No. 04-41504
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LORENA PAREDES,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 05:03-CR-1873-3
--------------------
Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Lorena Paredes appeals her sentence following her
guilty-plea conviction of conspiracy to transport undocumented
aliens within the United States. Paredes argues that her
sentence under a mandatory Sentencing Guidelines scheme was error
under United States v. Booker, 125 S. Ct. 738 (2005). She
further argues that she objected to the enhancement of her
sentence based on the number of aliens and her role in the
offense and did not admit to the facts used in applying those
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-41504
-2-
enhancements. She asserts that the Booker error was not harmless
beyond a reasonable doubt.
We review for plain error. United States v. Mares, 402 F.3d
511, 520 (5th Cir. 2005), petition for cert. filed (Mar. 31,
2005) (No. 04-9517). Here, the district court erred by imposing
a sentence enhanced by facts found by a judge pursuant to a
mandatory application of the Sentencing Guidelines. See Booker,
125 S. Ct. at 768; see also Mares, 402 F.3d at 520-21 & n.9.
However, Paredes cannot establish that this error affected her
substantial rights. The record does not establish that the
sentencing court would have imposed a different sentence had it
been proceeding under an advisory guideline scheme. In the
absence of a showing that her sentence likely would have been
different, Paredes cannot establish plain error, and her Booker
argument fails. See United States v. Valenzuela-Quevedo,
407 F.3d 728, 733 (5th Cir. 2005), petition for cert. filed (July
25, 2005)(No. 05-5556). The judgment of the district court is
AFFIRMED.
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20 F.3d 466
Jonesv.U.S. Secretary of Health and Human Services*
NO. 93-05129
United States Court of Appeals,Fifth Circuit.
Mar 22, 1994
1
Appeal From: W.D.La.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
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516 Pa. 16 (1987)
531 A.2d 1108
COMMONWEALTH of Pennsylvania, Appellant,
v.
Tyrone CLARK.
Supreme Court of Pennsylvania.
Argued September 22, 1987.
Decided October 8, 1987.
Reconsideration Denied December 16, 1987.
Edward J. Tocci, Dist. Atty., Ahmed T. Aziz, Asst. Dist. Atty., Beaver, for appellant.
*17 John L. Walker (Court-appointed), Beaver, for appellee.
Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA and PAPADAKOS, JJ.
Prior report: 347 Pa.Super. 128, 500 A.2d 440.
ORDER
PER CURIAM:
Appeal dismissed as having been improvidently granted.
HUTCHINSON, J., did not participate in the consideration or decision of this case.
PAPADAKOS, J., dissents and would grant reconsideration.
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168 Ill. App.3d 438 (1988)
522 N.E.2d 317
In re MARRIAGE OF JERRIE A. ACKERMAN, Petitioner-Appellant and Cross-Appellee, and JOHN W. ACKERMAN, Respondent-Appellee and Cross-Appellant.
No. 2-87-0590.
Illinois Appellate Court Second District.
Opinion filed April 15, 1988.
*439 Peter B. Nolte, of Sreenan & Cain, P.C., of Rockford, for appellant.
Bernard F. Healy, Jr., of O'Brien, Healy, Wade & Gorman, of Rockford, for appellee.
Affirmed in part and reversed in part.
JUSTICE INGLIS delivered the opinion of the court:
This is an appeal from a judgment of dissolution of marriage and distribution of assets. We affirm in part and reverse in part.
Jerrie A. Ackerman and John Ackerman were married in 1962. Once married, the couple moved into a house on East State Street in Rockford, Illinois. This home was owned by John prior to the marriage. During their marriage, the parties had three children. The youngest was 15 at the time of the separation, and the other two were emancipated.
In 1978, the parties purchased 72 acres on East State Street in Belvidere, Illinois. This was the site of the family residence at the time of the divorce. The purchase price in 1978 was $97,000.
In 1985, the residence on East State Street was sold for $200,000, out of which $172,000 was netted. The sum of $39,000 (plus interest ($42,000)) was paid to Production Credit Association. The *440 sum of $100,000 was used to construct a house on the land in Belvidere.
In 1985, John and six siblings sold 74 acres of land which they had inherited from their father in 1974. John's share of the sale came in two installments, the first in May 1985 in the amount of $62,000 and the second in March 1986 in the amount of $68,000.
John placed the initial installment in an account in the Northwest Bank of Rockford in his name alone. John testified that Jerrie made repeated demands to have her name added to the account, and that when he told her he would not add her name to the account she left home for two days in August 1985. He further testified that she later returned and renewed her demands. According to John, she left again in September for a week and again in October for over two weeks. In November, John added Jerrie's name to the Northwest Bank account.
At the time of the parties' separation on April 21, 1986, the Northwest account had a balance of $63,000, of which Jerrie withdrew one-half. Jerrie also withdrew $5,795 from a checking account at the United Bank of Belvidere, which left an overdraft of approximately $4,200.
At the time of separation, there was also various farm machinery, the value of which was in dispute. Also at the time of separation, there was a Keogh account which the trial court valued at $25,000, and there was an entitlement to a deficit payment from the Federal government for crops in the amount of $30,300. Finally, the parties had accumulated various household goods and personal property.
After a hearing, the trial court issued an order distributing the property. In that order, the trial court found that the funds in the Northwest Bank account were marital property.
John was awarded a 1986 Oldsmobile, a truck, household goods, furnishings and furniture in his possession; his clothing and personal effects; farm machinery (valued at $32,300); Federal Land Bank stock; and crops in the field. The court valued these assets at $57,580. John was also awarded the Keogh Plan (valued at $25,000) and the deficit payment of $30,300.
Jerrie was awarded a 1985 Oldsmobile; her jewelry; household goods, furniture, and furnishings in her possession; her clothing and personal effects; interest in an oil well and accompanying documents. The court valued these assets at $15,340.
John was further ordered to pay Jerrie $15,500 within 30 days of the written order. Each party was awarded the accounts listed in his or her own name. John's totaled $44,000 plus a farm checking account with no stated value, plus $1,500 (balance of marital account). *441 Jerrie kept one-half of the Northwest Bank account ($31,500) and $5,795 from the checking account ($37,295).
John was given possession of the real estate until Shawn graduated or otherwise left high school. At that time, the real estate was then to be sold and the net proceeds of the sale equally distributed between the parties.
Maintenance was also awarded to Jerrie in the amount of $175 per week. Finally, the court awarded Jerrie $2,200 in attorney fees. Custody of the youngest child was given to John.
Finally, John was ordered to pay the farm and preseparation debts of the parties.
Jerrie filed a notice of appeal on June 22, 1987.
On September 25, 1987, the trial court entered an order based on a stipulation and agreement of the parties. The order stated:
"A. That the Plaintiff accept and the Defendant pay to the Plaintiff the sum of $27,000.00 as and for her full and complete interest in the marital home and farm.
B. That upon receipt of said payment, by Defendant to Plaintiff, there is nothing further additional due and owing between the Plaintiff and the Defendant pursuant to the Judgment of Dissolution entered in this cause.
C. That the Defendant's claim for fees and costs be denied.
D. That the Defendant not be entitled, as of this date, to support for the minor child that he has in his custody."
Based on the September 25 order, John moved to dismiss the present appeal, and on October 27, 1987, this court ordered that John's motion to dismiss be taken with the case.
On appeal, Jerrie contends that the trial court abused its discretion when distributing the property. On cross-appeal, John contends that the funds in the Northwest Bank account were not marital property and that the trial court had improperly awarded attorney fees to Jerrie.
We begin our analysis by addressing John's contention that the September 25 order constituted a release of errors.
1 Under the doctrine of release of errors, a party to a divorce decree cannot accept those portions of the decree which are beneficial to her and later prosecute an appeal to reverse those portions of the decree which are unfavorable to her, where to do so would place the opposing party at a distinct disadvantage upon a reversal of the decree. (In re Marriage of Hobbs (1982), 110 Ill. App.3d 451, 453.) However, the doctrine is inapplicable where an appellant accepts a share of the proceeds of jointly owned property because, in such a *442 case, the appellant is merely exchanging interests. 110 Ill. App.3d at 453.
2 In the instant case, the order entered by the trial court on September 25, 1987, constituted a mere exchanging of interests, as the $27,000 received by Jerrie was for her interest in the marital home and farm. Therefore, the order of September 25, 1987, did not constitute a release of errors. (See 110 Ill. App.3d at 453 (no release of errors where wife transferred quitclaim deed and accepted $12,500).) We therefore consider the merits of the case.
Jerrie contends that the trial court abused its discretion when it distributed the marital property. We disagree.
3 Section 503 of the Illinois Marriage and Dissolution of Marriage Act (Act) provides that marital property should be divided in just proportions. (Ill. Rev. Stat. 1985, ch. 40, par. 503.) This section does not, however, require an equal distribution of property. (In re Marriage of Aschwanden (1980), 82 Ill.2d 31, 37.) The proper division of marital property rests within the sound discretion of the trial court. (In re Marriage of Rapacz (1985), 135 Ill. App.3d 1045, 1048.) It will not be reversed absent an abuse of discretion. (135 Ill. App.3d at 1048.) From our review of decisions under the Act, it is evident that what constitutes a just division may vary widely. E.g., In re Marriage of Frazier (1988), 164 Ill. App.3d 207 (division of $187,854.82 to one party and $48,354.83 to the other affirmed); In re Marriage of Stephenson (1983), 121 Ill. App.3d 698, 699 (75% of marital property to one party affirmed); In re Marriage of Borg (1981), 96 Ill. App.3d 282, 286-87 (award of 26% of marital property to one party affirmed); In re Marriage of McMahon (1980), 82 Ill. App.3d 1126, 1131 (60%-40% division, not an abuse of discretion).
4 In the instant case, Jerrie was awarded $95,135 of the marital assets (one-half of the Northwest Bank account, $31,500; $5,795 she took from the checking account; one-half interest in the equity of the marital residence, $27,000; a $15,500 payment from John; and other property valued by the court at $15,340) and $175 per week in maintenance. John was awarded $151,680 of the marital assets (the Keogh plan, $25,000; Federal deficit crop payment, $30,300; one-half of the Northwest Bank account, $31,500; one-half interest of the equity in the marital residence, $27,000; and other property valued at $57,580 minus $15,500 payment to Jerrie and the overdraft of $4,200) and was ordered to pay the farm and preseparation debts of the parties. John was also given custody of the couple's youngest son, who was 15 at the time. In light of the fact that John was responsible for their youngest son, the farm and preseparation debts, and payments *443 of maintenance, we hold that the trial court's division of marital assets was not an abuse of discretion.
In his cross-appeal, John contends that the trial court erred in finding that the funds in the Northwest Bank account were marital assets. John argues that he rebutted the presumption that a gift had been made of those funds.
5 The placing of title to nonmarital property in joint tenancy with a spouse raises a presumption that a gift was made to the marital estate. (In re Marriage of Rink (1985), 136 Ill. App.3d 252, 257.) The presumption of a gift may be rebutted by clear, convincing, and unmistakable evidence. 136 Ill. App.3d at 257.
6 In the instant case, the evidence showed that John had received the Northwest Bank funds from an inheritance and that he had originally opened the Northwest Bank account in his name only. The evidence further showed that John had eventually changed the account to include Jerrie's name after many demands by her to do so. A presumption of a gift thus arose. From a review of the record we find that this presumption was not rebutted by clear, convincing, and unmistakable evidence. We note that John stated that he had intended the money in the account to be used for the retirement of both Jerrie and himself. We find that this in itself indicates an intent of joint use and thereby indicates an intent to make a gift. We therefore hold that the trial court did not err in holding that the funds in the Northwest Bank account were marital property.
John's final contention on cross-appeal is that the trial court erred in awarding attorney fees to Jerrie. John argues that the record contains no foundation for attorney fees with the exception of Jerrie's testimony that she withdrew $2,200 and paid her attorney in that sum. We agree.
7 A party seeking attorney fees must show financial inability to pay, financial needs within the context of the prior couple's standard of living, and the ability of the other spouse to pay. (Donnelley v. Donnelley (1980), 80 Ill. App.3d 597, 599; see also Hofmann v. Hofmann (1983), 94 Ill.2d 205, 229.) And, before awarding fees in a divorce proceeding, a trial court must consider the relative financial abilities of the parties, the nature of the controversy, the question at issue, the significance or importance of the subject matter, the degree of responsibility involved, the standing or skill of the attorney, and the time and labor involved. (Gasperini v. Gasperini (1978), 57 Ill. App.3d 578, 582.) It is axiomatic that before a trial court can consider these factors it must be made aware of them. Some factors, such as the relative financial abilities of the parties, the nature of the controversy, *444 and the skill of the attorney will become evident during the proceedings, and no independent proofs need be made concerning such factors. However, such factors as the amount of time and labor involved in a case do not come out in the ordinary course of proceedings. Thus, such factors require independent proof including the number of hours involved in the case and the work being performed. See In re Marriage of Collins (1987), 154 Ill. App.3d 655, 660.
8 In the instant case, no proof was made of the hours involved in the case or the work performed. The only evidence that was presented was that Jerrie had paid $2,200 in attorney fees. Such a showing was insufficient. We therefore hold that the award of attorney fees was improper. From a review of the record we further hold that Jerrie had the financial ability to pay attorney fees and that the award of fees was thus an abuse of discretion. For the foregoing reasons, we reverse the award of attorney fees.
Affirmed in part; reversed in part.
NASH and REINHARD, JJ., concur.
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Order Michigan Supreme Court
Lansing, Michigan
November 9, 2017 Stephen J. Markman,
Chief Justice
Brian K. Zahra
Bridget M. McCormack
155172(71) David F. Viviano
Richard H. Bernstein
Kurtis T. Wilder,
PEOPLE OF THE STATE OF MICHIGAN, Justices
Plaintiff-Appellant,
SC: 155172
v COA: 327905
Wayne CC: 15-001051-AR
TREMEL ANDERSON,
Defendant-Appellee.
_________________________________________/
On order of the Chief Justice, the motion of the Michigan District Judges
Association to file a brief amicus curiae is GRANTED. The amicus brief will be
accepted for filing if submitted on or before November 30, 2017.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
November 9, 2017
Clerk
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761 F.Supp. 597 (1989)
Dannie L. KITE, Plaintiff,
v.
RICHARD WOLF MEDICAL INSTRUMENTS CORP. and Richard Wolf GmbH, Defendants.
No. EV 89-126-C.
United States District Court, S.D. Indiana, Evansville Division.
September 12, 1989.
*598 Stuart N. Pearlman, Brian L. Carroll, Johnson, Carroll & Griffith, Evansville, Ind., Stuart N. Pearlman, Katzinski and Pearlman, Louisville, Ky., for plaintiff.
Robert H. Hahn, Kevin J. Messmer, Bamberger, Foreman, Oswald & Hahn, Evansville, Ind., Gregory F. Hauser, Walter Conston Alexander & Green, New York City, for defendants.
MEMORANDUM OF OPINION
BROOKS, Chief Judge.
FACTS OF THE CASE
This action was commenced in the Circuit Court of Vanderburgh County, Indiana on November 20, 1984 by the filing of a Complaint. This original Complaint named Richard Wolf Medical Instruments Corporation as the sole defendant and was assigned docket Number 85 by the Court.
On December 17, 1984 defendant, Richard Wolf Medical Instruments Corp., filed a Petition for Removal to this Court asserting diversity jurisdiction. The case was removed and assigned Cause No. EV 84-331-C by this Court.
Subsequently, on May 20, 1986 the plaintiff filed his Motion to Amend Complaint and Join Additional Parties. That Motion was granted and the plaintiff added Welborn Memorial Baptist Hospital, Inc. (hereinafter "Hospital") as a defendant, the result of which destroyed diversity. Accordingly, the plaintiff also moved for the case to be remanded to the Vanderburgh Circuit Court, where the Complaint had been originally filed. This Court granted that Motion and remanded the case to the State Court where it was assigned a new docket number, 865. The remand occurred on September 11, 1986.
Then, on July 14, 1989, Hospital was dismissed without prejudice by joint stipulation entered into between the plaintiff and defendant Hospital. Defendant Wolf Medical Instruments Corp. again filed its Notice of Removal after the Hospital was dismissed. The case was removed and the plaintiff has filed a Motion to Remand, which is the subject of this Memorandum and Order.
REMOVAL AND REMAND
28 U.S.C. § 1441 et seq. deals with both removals and remands. Subsections (a) and (b) of § 1441 read:
(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. For purposes of removal under this chapter, the citizenship of defendants sued under fictitious names shall be disregarded.
(b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.
*599 Section 1446 sets forth the procedure for removal. It reads, in relevant part:
(a) A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.
(b) The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.
Remand of defectively removed cases is addressed in § 1447(c), which reads:
(c) If at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case, and may order the payment of just costs. A certified copy of the order of remand shall be mailed by its clerk to the clerk of the State court. The State court may thereupon proceed with such case.
It is upon the language "that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action ...", found in § 1446(b), that the plaintiff relies in support of his Motion to Remand.
The issue presented appears to be one of first impression. That question is: Does § 1446(b) prohibit removal[1] of a case that is more than one (1) year old wherein a defendant timely removed, only to have the plaintiff add a diversity-destroying defendant, then remand to the original State court and later settle as to the diversity-destroying defendant? It is the opinion of this Court that removal should be permitted in light of the facts herein.
On November 19, 1988 the Judicial Improvements and Access to Justice Act became law.[2] Among the changes that the Act brought to 28 U.S.C. was an amendment to § 1446. That amendment limits the availability of removal of diversity jurisdiction cases to one (1) year after the date the action is commenced in State court.
By incorporating the one (1) year limitation Congress is preventing potential manipulation and forum shopping by defendants who are either attempting to delay proceedings by removing at the last second prior to trial, although removal was available earlier, or attempting to find a more friendly forum after substantial progress has been made in the State forum.
APPLYING § 1446(b)
Although the amendment to § 1446(b) limiting removal of diversity actions to one year after commencement was not enacted until after this case was filed, the new limitation applies. Changes made to procedural requirements that are within Congressional control, such as removal, may be applied retroactively. See Friel v. Cessna Aircraft Co., 751 F.2d 1037 (9th Cir.1985).
The clock on the one (1) year limitation found in § 1446 begins to run when a case is commenced. Commencement is determined by the law of the State in which the case was filed. See Greer v. Skilcraft, 704 F.Supp. 1570 (N.D.Ala.1989). In Indiana the date that an action is considered commenced is when the complaint is filed and a summons has been issued. See Jensen v. Fagen, 138 Ind.App. 679, 199 N.E.2d 716 (1964) and Flesch v. Circle City Excavating & Rental Corp., 137 Ind.App. 695, 210 N.E.2d 865 (1965). The parties are in agreement that more than one (1) year *600 has passed between the date this action was commenced and the date the defendant removed for the second time. Plaintiff contends that § 1446 should be applied so that no action more than one (1) year old may be removed. This Court is concerned that if it applies the rule in such a rigid manner it will be opening the door to potential abuse of the rule, the effect of which will be to undermine the very purpose behind federal diversity jurisdiction. Clearly, Congress intended to exclude certain diversity cases from being heard in federal court, but it is equally clear Congress did not intend to establish a rule which would allow plaintiffs to circumvent diversity jurisdiction altogether. To apply the rule in the mechanical manner advanced by the plaintiff would have the result of encouraging plaintiffs who do not want to be in a federal forum to add diversity-destroying defendants for the purpose of remaining in State court.
Herein, the defendant did remove within the one (1) year limitation found in § 1446. In fact, the defendant removed within one (1) month of commencement of this action. The plaintiff then waited six (6) months to amend his Complaint and add the diversity-destroying defendant. The case was remanded after that defendant was added on September 11, 1986. It wasn't until July 14, 1989 that the diversity-destroying defendant was dismissed by agreement between the plaintiff and defendant. Then, within one (1) month the defendant again sought removal. The defendant has been consistent in its desire to have this action heard in federal court. The defendant promptly sought removal on the only two occasions when federal jurisdiction existed. It was only due to the actions of the plaintiff that this case did not proceed in this Court.
Exceptions to the procedural requirements of diversity jurisdiction cases, similar to the one the Court is carving out today, have been recognized by other courts in cases that arose prior to the amendments brought about by the Judicial Improvements and Access to Justice Act.
It is generally accepted that diversity isn't destroyed by fraudulently joined defendants. See Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 42 S.Ct. 35, 66 L.Ed. 144 (1921).
Similarly, an exception to the rule requiring complete diversity at both the time an action was filed in State court and at the time removal was sought has been recognized in those cases where a defendant was named that prevented diversity from existing at the date of filing, but who was later dismissed.
The purpose of requiring diversity to exist at both times apparently is to prevent a nondiverse defendant from acquiring a new domicile after commencement of the state suit and then removing on the basis of the newly created diversity of citizenship.
14A, Wright & Miller, Cooper, Federal Practice and Procedure, Removal from State Courts, § 3723, pp. 313-314.
The precedent in this area distinguishes between a plaintiff who voluntarily terminates his State court action against all nondiverse parties, and those situations where the plaintiff has no control over the dismissal.
This danger is not present, however, when a nondiverse party simply is dropped from the case, because the defendant usually has no control over the elimination of parties. If the defendant were barred from removal in these circumstances, there is a danger that the plaintiff might join a nondiverse defendant merely to defeat jurisdiction, and then dismiss the suit as to that defendant. This would deprive the remaining defendant of the federal forum to which he may be entitled. Thus, an exception exists to the general practice for testing diversity of citizenship on the basis of the conditions both on the day of institution and the day of removal. Federal courts have held that when a party whose presence would defeat diversity is dropped from the state court action, the case becomes removable even though diversity did not exist when the state court action was commenced.
*601 The same danger would be created if this Court were to accept the plaintiff's proposition that § 1446 must be applied mechanically. The fact is that the defendant herein first sought removal immediately after the suit was commenced and again removed immediately after the diversity-destroying defendant was dismissed. If the Court were to grant remands in cases such as this, the effect would be to encourage plaintiffs to manipulate the removal process and undermine Congressional intent to provide a federal forum to defendants who expediently seek removal to federal court in diversity jurisdiction cases. Accordingly, this Court recognizes an exception to the one (1) year requirement of § 1446(b) in cases where the defendant timely removes only to have a plaintiff later add a diversity-destroying defendant and then dismiss to that defendant more than one (1) year after the action was commenced. The plaintiff's Motion for Remand is DENIED.
IT IS SO ORDERED.
NOTES
[1] Or require a remand to the State court, as is the issue sub judice.
[2] As codified, this Act is found throughout 28 U.S.C.
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755 A.2d 1026 (2000)
Harold G. CLARK, Appellant,
v.
UNITED STATES, Appellee.
No. 97-CM-1310.
District of Columbia Court of Appeals.
Submitted May 11, 2000.
Decided June 22, 2000.
*1027 Aleta J. Clayton, appointed by the court, was on the brief for appellant.
Wilma A. Lewis, United States Attorney, and John R. Fisher and Alexandre Rene, Assistant United States Attorneys, were on the brief for appellee.
Before STEADMAN and RUIZ, Associate Judges, and KERN, Senior Judge.
STEADMAN, Associate Judge:
Appellant was convicted of threats to do bodily harm, D.C.Code § 22-507 (1996), based on statements he made to a police officer. He argues on appeal that the statements should have been suppressed because they were made during the course of an unlawful arrest. Alternatively, he contends that there was insufficient evidence to support the conviction. We affirm.
I. Facts
The complainant, Officer Gwendolyn Mapp, was the sole witness in the trial court. According to her testimony,[1]*1028 Officer Mapp was patrolling the grounds of a public housing complex on March 21, 1997, when she saw appellant and several other men involved in what she believed to be the beginnings of a drug transaction. The group broke up when they noticed her. Shortly thereafter, Officer Mapp saw appellant crossing the street from the complex. She approached him to ask "why he was on the property and what was going on," since only residents and visitors who had signed in at the guard house were supposed to be on the property. Three other officers eventually joined her.
Appellant and Officer Mapp spoke for about four or five minutes at this location. When appellant admitted that he did not live in the complex, the officers decided to take him to the main office to issue a "barring notice" to keep him off the property in the future. This involved taking a photograph and giving him a written notice. They explained this to appellant, another officer handcuffed him, and all four officers escorted him toward the office. Although appellant had been "agitated" and "uncooperative" at first, he "calmed down" when he was told that he was going to be barred from the property and stated that he needed to be able to come on the grounds to take care of his grandmother who lived in the complex's senior citizen building. Appellant had not been in the "proper area" to go to that building when Officer Mapp saw him on the property, but she planned to check this information at the office.
Before reaching the office, however, appellant made the following statement to Officer Mapp, who was standing directly beside him: "You won't work here again, wait until I tell the boys, they will take care of you." When Officer Mapp "stopped dead in [her] tracks" and looked up at appellant (who was taller than she was), he continued, "You think I'm playing, just watch and see." Surprised, Officer Mapp asked, "What did you say?"[2] to which appellant replied, "You won't work anywhere after I tell the boys." Officer Mapp took these statements to mean that appellant would arrange for boys in the neighborhood to do something to her so that she would be physically incapacitated from working. The statements were made in a "serious[ ]" and "threatening" tone, appellant looked Officer Mapp "straight in [the] eye," and she did not think he was joking. She immediately placed appellant under arrest.
II. Suppression Motion
Appellant first contends that the trial court should have suppressed his threatening statements because he was unlawfully arrested at the time he made them. Although Officer Mapp did not consider appellant under arrest, the trial court concluded that appellant was objectively under arrest and that such arrest was unlawful because it was not based on probable cause. Since this issue is not critical to our disposition, we assume arguendo that appellant was unlawfully arrested when he made the statements. We are thus faced with the question, apparently one of first impression in this jurisdiction, whether evidence of a separate and distinct crime must be suppressed under the "fruit of the poisonous tree" doctrine if the crime was *1029 committed while in unlawful police custody.
As a general rule, evidence discovered pursuant to an illegal search or seizure must be suppressed as "fruit of the poisonous tree," whether the evidence is physical or testimonial in nature. See Patton v. United States, 633 A.2d 800, 816 (D.C.1993). However, if "an intervening event or other attenuating circumstance purges the taint of the initial illegality, the evidence need not be suppressed." Id. According to the United States Supreme Court, the proper test is not simply whether the evidence would not have been obtained "but for" the initial illegal police action, but rather "whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
Many other federal and state appellate courts have already considered whether commission of a separate and distinct crime constitutes the kind of independent act that purges the primary taint of illegal custody. These courts have almost uniformly held that it does. The leading case is United States v. Bailey, 691 F.2d 1009 (11th Cir.1982), cert. denied, 461 U.S. 933, 103 S.Ct. 2098, 77 L.Ed.2d 306 (1983).[3] Federal agents approached Bailey and another man in an airport because they fit the profile for drug couriers. Id. at 1011. The two men initially agreed to go to the police station for a drug search, but Bailey suddenly dropped his luggage and fled. Id. at 1012. As he tried to climb over a gate, one of the agents caught up with him, a struggle ensued, and Bailey was ultimately arrested. Id. Assuming arguendo that the officers' initial actions constituted an unlawful arrest, the Eleventh Circuit held that the "second" arrest was nonetheless valid and that any evidence subsequently acquired was therefore admissible because:
[N]otwithstanding a strong causal connection in fact between lawless police conduct and a defendant's response, if the defendant's response is itself a new, distinct crime, then the police constitutionally may arrest the defendant for that crime. . . . Where the defendant's response is itself a new, distinct crime, there are strong policy reasons for permitting the police to arrest him [or her] for that crime. A contrary rule would virtually immunize a defendant from prosecution for all crimes he [or she] might commit that have a sufficient causal connection to the police misconduct. . . . Unlike the situation where in response to the unlawful police action the defendant merely reveals a crime that already has been or is being committed, extending the fruits doctrine to immunize a defendant from arrest for new crimes gives a defendant an intolerable carte blanche to commit further criminal acts so long as they are sufficiently connected to the chain of causation started by the police misconduct. This result is too far reaching and too high a price for society to pay in order to deter police misconduct.
Bailey, supra, 691 F.2d at 1016-17. In reaching its conclusion, the court emphasized that the critical factor was that Bailey's response to the police seizure, i.e. flight and resisting arrest, was itself unlawful. Id. at 1018.
The vast majority of appellate courts have followed Bailey, refusing to suppress either evidence of the distinct crime itself *1030 or evidence seized incident to arrest for the distinct crime. See, e.g., United States v. Sprinkle, 106 F.3d 613 (4th Cir.1997) (shooting at police officer); United States v. Dawdy, 46 F.3d 1427, 1431 (8th Cir.) (struggle with police officer), cert. denied, 516 U.S. 872, 116 S.Ct. 195, 133 L.Ed.2d 130 (1995); United States v. Pryor, 32 F.3d 1192, 1196 (7th Cir.1994) (misrepresentation of identity to police officer); United States v. Waupekenay, 973 F.2d 1533 (10th Cir.1992) (pointing rifle at police officer); United States v. Garcia-Jordan, 860 F.2d 159 (5th Cir.1988) (misrepresentation of citizenship status to border patrol official); United States v. Mitchell, 812 F.2d 1250 (9th Cir.1987) (threats against United States President uttered to police officers); United States v. King, 724 F.2d 253 (1st Cir.1984) (shooting at police officer); United States v. Marine, 51 M.J. 425 (C.A.A.F.1999) (disrespectful statements to military guard officer); Nicholson v. State, 707 A.2d 766 (Del.1998) (disorderly conduct, resisting arrest, and criminal mischief); State v. Nelson, 336 S.C. 186, 519 S.E.2d 786 (1999) (traffic offenses); State v. Miskimins, 435 N.W.2d 217 (S.D.1989) (pointing shotgun at officer and threatening to kill him); Woodson v. Commonwealth, 245 Va. 401, 429 S.E.2d 27 (1993) (pulling gun and struggling with police officer).
While many of such cases involved physical use of force against police officers, others involved unlawful verbal responses such as threats or false statements. In any event, the critical issue is not the gravity of the defendant's response to unlawful police action, but the legality of it. We hold today that, at least absent unforeseen exceptional circumstances,[4] the commission of a separate and distinct crime while in unlawful police custody is the type of intervening act which purges the primary taint. Since appellant's response in the instant case created probable cause to arrest him for threats under D.C.Code § 22-507, there is no constitutional basis to suppress the evidence.[5]
III. Sufficiency of Evidence
Appellant also contends that there was insufficient evidence to convict him. According equal weight to circumstantial evidence and direct evidence, see Jones v. United States, 716 A.2d 160, 162 (D.C. 1998), "it is only where the government has produced no evidence from which a reasonable mind might fairly infer guilt beyond a reasonable doubt that this court can reverse a conviction." Nixon v. United States, 730 A.2d 145, 148 (D.C.), cert. denied, ___ U.S. ___, 120 S.Ct. 233, 145 L.Ed.2d 196 (1999). See also supra note 1.
The elements of threats are (1) that the defendant uttered words to another person; (2) that the words were of such a nature as to convey fear of serious bodily harm to the "ordinary hearer"; and (3) that appellant intended to utter the words as a threat. United States v. Baish, 460 A.2d 38, 42 (D.C.1983). Appellant basically contends that his references to "the boys" and Officer Mapp's inability to work in the future could reasonably be construed as referring to male police officers and employment consequences, rather than appellant's friends and physical incapacitation.
*1031 Words cannot always be read in the abstract and often acquire significant meaning from context, facial expression, tone, stress, posture, inflection, and like manifestations of the speaker and the factual circumstances of their delivery.[6]See State v. Howe, 247 N.W.2d 647, 654 (N.D.1976) ("No precise words are necessary to convey a threat. It may be bluntly spoken, or done by innuendo or suggestion. A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited.") (citation omitted). Whether a particular statement constitutes a threat is a question of fact for the jury. See United States v. Fulmer, 108 F.3d 1486, 1492 (1st Cir.1997) ("Whether a given [statement] constitutes a threat is an issue of fact for the trial jury. The use of ambiguous language does not preclude a statement from being a threat. While the statement on its face may be susceptible to more than one interpretation, some factors . . . such as the tone of the defendant's voice or the credibility of the government's and [defendant's] witnesses, may legitimately lead a rational jury to find that this statement was a threat"; citing cases) (internal quotation marks and citations omitted); United States v. Malik, 16 F.3d 45, 49 (2nd Cir.), cert. denied, 513 U.S. 968, 115 S.Ct. 435, 130 L.Ed.2d 347 (1994); United States v. Schneider, 910 F.2d 1569, 1570 (7th Cir.1990).
In the instant case, given the underlying situation, appellant's choice of words, his tone, his manner, and Officer Mapp's immediate interpretation, a reasonable jury could conclude that the statements made would "convey fear of serious bodily harm to the ordinary hearer," Baish, supra, 460 A.2d at 42, and that such was appellant's intent. See United States v. Maisonet, 484 F.2d 1356, 1358 (4th Cir. 1973) (affirming conviction for threatening judge where appellant made ambiguous statement which he claimed meant he would seek the judge's removal from office; "Whether a [statement] that is susceptible of more than one meaning one of which is a threat of physical injury constitutes a threat must be determined in the light of the context in which it was [made]"),[7]cert. denied, 415 U.S. 933, 94 S.Ct. 1447, 39 L.Ed.2d 491 (1974); Pendergast v. State, 99 Md.App. 141, 636 A.2d 18, 22 (1994) (affirming conviction for threatening judges where arguably ambiguous statements constituted a threat under the circumstances). "Neither this court nor the trial court may usurp the jury's prerogative of determining credibility, weighing the evidence, and drawing reasonable inferences," and "the government's evidence may be sufficient even if it does not exclude every reasonable hypothesis other than guilt." Parker v. United States, 601 A.2d 45, 51 (D.C.1991) (internal quotation marks and citation omitted). The judgment of the trial court is
Affirmed.
NOTES
[1] In reviewing both the suppression ruling and the jury verdict, we view the evidence in the light most favorable to the prevailing party. See In re T.L.L., 729 A.2d 334, 339 (D.C. 1999) (suppression ruling); Dang v. United States, 741 A.2d 1039, 1043 (D.C.1999) (jury verdict). For purposes of the suppression ruling, we may consider "both the evidence offered at the suppression hearing and the undisputed trial testimony." See Hill v. United States, 664 A.2d 347, 350 n. 4 (D.C.1995), cert. denied, 516 U.S. 1065, 116 S.Ct. 749, 133 L.Ed.2d 697 (1996).
[2] The trial court expressly found that this statement "was not an attempt by [Officer Mapp] to interrogate Mr. Clark but was actually an expression of surprise." We defer to this finding of fact, but review de novo the trial court's legal conclusion that the statement therefore did not constitute custodial interrogation within the meaning of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). See United States v. Brown, 737 A.2d 1016, 1018 (D.C.1999). Since the question was more "asked reflexively in a context of wonderment" than "intended to elicit inculpatory information," Smith v. United States, 586 A.2d 684, 685 (D.C.1991), we conclude that it did not constitute custodial interrogation.
[3] Bailey was not the first case to touch upon the issue. See, e.g., People v. Garcia, 81 Mich. App. 260, 265 N.W.2d 115, 121 n. 5 (1978) ("the fruit-of-the-poisonous tree doctrine cannot be used to condone death threats leveled against a police officer"); State v. Miller, 282 N.C. 633, 194 S.E.2d 353, 358 (1973) ("Although wrongfully on the premises, officers do not thereby become unprotected legal targets."). However, it appears to have been the first to consider it in significant depth, and is the case most frequently cited by other courts.
[4] The trial court specifically found that appellant's statements were voluntary and spontaneous in nature.
[5] There may also have been probable cause to arrest appellant for "assault[ing], resist[ing], oppos[ing], imped[ing], intimidat[ing], or interfer[ing] with" a police officer in violation of D.C.Code § 22-505. See In re C.L.D., 739 A.2d 353, 357 n. 6 (D.C.1999) (indicating that criminal threats against a police officer "could form the basis of an offense under § 22-505"). We note that today's decision allows D.C.Code § 22-505 to retain its full application. That statute provides in part that "[i]t is neither justifiable nor excusable cause for a person to use force to resist an arrest . . . whether or not such arrest is lawful." This provision would be effectively meaningless if the evidence of an arrestee's illegal use of force had to be suppressed if the arrest was unlawful.
[6] We deal here with a statement arguably ambiguous on its face. We leave for another day whether words which in their plain and surface meaning cannot be construed as threatening bodily harm may nonetheless support a conviction for threats under D.C.Code § 22-507 on the basis of the cited interpretive considerations.
[7] Maisonet, supra, involved a letter from an inmate to the judge who sentenced him stating, "I may have to do all my ten (10) years, but if ever get out of here [prison] and nothing happen to me while I am in here, you will never be able to be prejudice and racist against another Puerto Rican like me." 484 F.2d at 1357. Regarding whether the language of the letter threatened physical harm and whether Maisonet intended it to do so, the court considered relevant the fact that the letter "said nothing . . . about having the judge investigated or about seeking his removal." Id. at 1358. In this case, as Officer Mapp pointed out on cross-examination, appellant "never said he would tell [Officer Mapp's] supervisors, he never said he would have someone check [her] job status."
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139 S.W.3d 595 (2004)
TREETOP VILLAGE PROPERTY OWNERS ASSOCIATION, Plaintiff-Respondent,
v.
Avilda MILLER and G. Spencer Miller, Defendants-Appellants.
No. 25527.
Missouri Court of Appeals, Southern District, Division One.
May 10, 2004.
Motion for Rehearing or Transfer Denied June 8, 2004.
Application for Transfer Denied August 24, 2004.
*598 G. Spencer Miller, Maryland & Maryville, for Appellants.
V. Jack Muehlenkamp, St. Charles, for Respondents.
ROBERT S. BARNEY, P.J.
Appellants Avilda Miller and G. Spencer Miller appeal from a judgment finding them in default, subsequent to a motion for default judgment filed by Respondent Treetop Village Property Owners Association ("Treetop"), based on Appellants' failure to answer interrogatories propounded to Appellants by Treetop. In its judgment, the trial court ordered foreclosure of certain property in Camden County, Missouri, to pay a debt, legal fees, and costs owed to Treetop.
Appellants raise four points on appeal. In Point One, Appellants allege the trial court erred by failing to cause the proceedings at the hearing to be recorded so that a transcript could be prepared. In Point Two, Appellants assert the trial court erred in entering judgment against Appellant Avilda Miller because there was no evidence she was in default or failed to respond to any discovery requests. In Point Three, Appellants variously complain that the trial court erred in entering a default judgment against Appellant G. Spencer Miller because he was not in default; erred in failing to continue the hearing; and erred in entering judgment against Appellants because there was no record of credible or probative evidence to establish the assessment of any damages. Lastly, in Point Four and in response to Treetop's motion to dismiss, Appellants maintain that, given the facts of the case, their failure to file a motion to set aside the trial court's judgment preliminary to filing their appeal is not fatal to their appeal.
The record shows that on November 13, 2001, Treetop filed a petition to foreclose assessment lien in which it alleged that Appellants were owners of a particular interval estate and parcel within the Treetop Village Development. Treetop further alleged that, pursuant to the amended declaration of the development, Treetop was empowered to assess owners of interval estates and parcels an annual assessment. According to Treetop, Appellants had an unpaid assessment of $1625.71 (including late charges). The petition also requested $600.00 in legal fees, plus costs. Attached to the petition was a notice of delinquent assessments and lien outlining the amounts.
On December 31, 2001, Appellants filed a joint answer denying the allegations, but *599 admitting that Appellant G. Spencer Miller was "the legal owner of said interval estates." Appellants requested that the petition be dismissed for failure to state a cause of action.
In January 2002 (the docket indicates it was January 7, but the file stamp denotes January 17), Treetop filed interrogatories, more fully set out below, that requested they be answered by Appellant G. Spencer Miller only. On April 29, 2002, Treetop filed a motion to compel answers to interrogatories, indicating that the time for filing answers to the interrogatories had expired. Treetop "request[ed] that [Appellants'] answer be stricken and that [Treetop] be allowed to proceed with its cause of action as if no answer has been filed."
On June 11, 2002, a hearing was held on Treetop's motion to compel. Appellants were not present. In its docket entry that date, Appellants were ordered to answer the interrogatories within twenty days or their pleadings would be stricken.[1]
The record is devoid of a showing that the interrogatories were ever answered. Treetop filed a motion for default judgment on July 29, 2002. The case was set for hearing but later continued, due to the hospitalization of Treetop's counsel; a re-notice for hearing was filed on February 24, 2003.
The hearing was held as scheduled on March 11, 2003, and the judgment filed that same day. Appellants failed to appear and were found in default. The judgment then ordered foreclosure of the property for recovery of the debt, legal fees, and costs owed to Treetop. Also on March 11, 2003, the record indicates and the docket sheet acknowledges that Appellant G. Spencer Miller faxed a letter to the trial judge noting that he "fully intended to attend the hearing set for this morning in regard to the Treetop ... matter." According to the letter, Appellant G. Spencer Miller was involved in a trial, and he requested "that the matter be set over to the next date opposing counsel is available." The cover sheet and the letter itself show that the letter was faxed at 9:11. There are two docket entries for March 11, 2003. The first notes that the judgment was filed and second that the letter was received.[2] This appeal followed.
Point IV: Must the appeal be dismissed?
Appellants raise four points on appeal. We will first address their Point IV, in which they respond to Treetop's motion that the appeal should be dismissed because Appellants failed to file a motion to set aside the judgment preliminary to filing their appeal. Treetop contends that Appellants' failure in this regard precludes them from going forward with their appeal.
Treetop is correct that, in the absence of a motion to set aside or vacate, a default judgment is not appealable. Niemann v. Kasch, 740 S.W.2d 706, 707 (Mo.App.1987). The filing of such a motion is a mandatory prerequisite to securing direct appellate review of a default judgment. Barney v. Suggs, 688 S.W.2d 356, 358 (Mo. banc 1985).
*600 The principles stated above, however, only apply to a default judgment entered under Rule 74.05. Tinsley v. Gosnell, 873 S.W.2d 943, 944 (Mo.App.1994). Where a party has filed an answer, a subsequent judgment is not a default judgment, but a judgment on the merits. DuPont v. Bluestein, 994 S.W.2d 96, 97 (Mo.App.1999). Further, if a party files an answer, but fails to appear for trial, the judgment is still not considered a default judgment under Rule 74.05; it is a judgment on the merits. See Cotleur v. Danziger, 870 S.W.2d 234, 237 (Mo. banc 1994). As more fully explained below, the same is true of a judgment, as here, that follows the striking of pleadings for failure to obey a discovery order; it is not considered a default judgment, "`but is treated as a judgment upon trial by the court.'" In re Marriage of DeWitt, 946 S.W.2d 258, 261 (Mo.App.1997) (quoting In re Marriage of Dickey, 553 S.W.2d 538, 539 (Mo.App.1977)).
Thus, Appellants' failure to move to set aside or vacate the judgment is not fatal to their appeal. As the judgment is a final judgment, in that it determines all of the issues in the case, we will proceed to consider the matter on its merits. See Simpkins v. Ryder Freight System, Inc., 855 S.W.2d 416, 420 (Mo.App.1993).
Point I: Effect of failure to cause hearing to be recorded.
In Point I, Appellants argue that the judgment should be reversed because the trial court failed to cause the March 11, 2003, hearing to be recorded so that a transcript could be prepared. According to Appellants, due to this failure, it is impossible to determine what evidence was considered and whether the evidence was sufficient to support the judgment. Within the judgment at issue in this case, in addition to finding that Appellants were in default, the trial court indicated that the cause was "taken up and heard and submitted to the [c]ourt upon the pleadings and evidence...."
"At the request of either party, the proceedings at the trial level should be recorded, preserved and included in the transcript on appeal where necessary to present a claim of trial error." In re Marriage of Osborne, 895 S.W.2d 285, 289 (Mo.App.1995). An inability to secure a complete trial transcript, if prejudicial, requires a reversal and remand for new trial. Loitman v. Wheelock, 980 S.W.2d 140, 142 (Mo.App.1998). Reversal and remand is unwarranted if the party seeking a reversal, failed to make a request that the proceeding be recorded. Osborne, 895 S.W.2d at 289.
Cases exist where the cause was remanded with directions that a hearing be held on the record, where it was determined that the matter could not be fully reviewed without such a record, or where the evidentiary basis for the judgment was unclear from the record. See Rivard v. Director of Revenue, 969 S.W.2d 864, 865 (Mo.App.1998) (factual dispute existed, requiring a record of the proceedings); Wolansky v. Director of Revenue, 936 S.W.2d 578, 579 (Mo.App.1996) (evidentiary basis for trial court's decision unclear from the record). If the resolution of the appeal turns on questions of law that may be answered by reference to the record before the court, it is unnecessary to remand. See Silman v. Director of Revenue, 880 S.W.2d 574, 575 n. 3 (Mo.App.1994).
However, none of the cases cited in the above paragraph involved a situation similar to the case at bar, where the party complaining of the failure to record the hearing also failed to appear at the hearing. As previously set out, under Osborne, reversal and remand is unwarranted if the *601 party seeking a reversal failed to make a request that the proceeding be recorded. 895 S.W.2d at 289. Furthermore, under Loitman, it is necessary to reverse and remand for a new trial when the inability to secure a complete trial transcript is prejudicial. 980 S.W.2d at 142.
Taking these cases together, we hold that reversible error cannot be found here because Appellants failed to appear at the hearing and thereby waived any right they may have had to complain about the fact that no record of the hearing was preserved. Point I is denied.
Point II: Appellant Avilda Miller was not in default and did not fail to respond to discovery requests.
In their second point, Appellants contend that the trial court erred in entering judgment against Appellant Avilda Miller because there was no evidence that she was in default or that she failed to respond to discovery requests.
Appellants draw our attention to Treetop's interrogatories. The document was entitled "[Treetop's] Interrogatories Addressed to [Appellants]." The first sentence reads, "Comes now the Plaintiff and files its interrogatories directed to defendant, G. Spencer Miller to be answered under oath and in accordance with the Rules of Civil Procedure." Among the questions were whether Appellant G. Spencer Miller was the sole owner of the property at issue; whether, if he was the owner, there was documentation recorded transferring ownership from Appellant Avilda Miller to him; if Appellant was not the sole owner, who any other owners were; whether he or Appellant Avilda Miller had ever paid maintenance fees on the property at issue; and, if so, when such fees had been paid.
Appellants maintain that because the interrogatories were directed to Appellant G. Spencer Miller, it is not possible for Appellant Avilda Miller to have been found in default for failure to answer the interrogatories. We agree.
Here, the record reflects there was (1) a motion to compel discovery; (2) an order indicating that Appellants were given twenty days to answer the interrogatories or their pleadings would be stricken; (3) a motion for default judgment in which Treetop alleges that such pleadings had been stricken by the court for failure to file answers to the interrogatories; and (4) a judgment finding Appellants in default.
"Rule 57.01(a) requires that a party respond to interrogatories `within thirty days after the service of the interrogatories....'" Wilkerson v. Prelutsky, 943 S.W.2d 643, 648 (Mo. banc 1997) (quoting Rule 57.01(a)). Under Rule 61.01(b), "[i]f a party fails to answer interrogatories ..., the court may, upon motion and reasonable notice to other parties, make such orders in regard to the failure as are just and among others the following: (1) An order striking pleadings ... or render a judgment by default against the disobedient party."[3] The moving party, of course, is responsible for proving its allegations for sanctions pursuant to Rule 61.01. Spacewalker, Inc. v. American Family Mut. Ins. Co., 954 S.W.2d 420, 424 (Mo.App.1997).
Trial courts are vested with broad discretion regarding whether to impose sanctions for discovery violations, and we will not disturb the exercise of that discretion on appeal unless it is exercised unjustly. Luster v. Gastineau, 916 S.W.2d 842, 844 (Mo.App.1996). "On appeal, our task is to determine whether the trial *602 court could have reasonably concluded as it did, and not to determine whether we would have imposed the same sanctions under those circumstances." Id. We agree with Appellants that rendering a judgment by default is a drastic remedy and that it is mostly aptly invoked "when the party has shown a contumacious and deliberate disregard for the court's authority." Spacewalker, Inc., 954 S.W.2d at 423. It is our view, however, that the trial court abused its discretion in rendering a default judgment against Appellant Avilda Miller as a sanction for her purported failure to answer interrogatories. This is because, substantively, the interrogatories in question were never propounded to her.[4]
While Appellant Avilda Miller may have shown a modicum of disregard for the trial court's authority by failing to appear at Treetop's motion to compel, given the fact that the interrogatories were, in fact, never directed to her, we fail to see how the trial court could have compelled her to answer them. Additionally, we fail to see how Respondent was prejudiced by any purported failure on her part to answer the interrogatories that were not propounded to her. Spacewalker, Inc., 954 S.W.2d at 423-24 ("[T]he trial court must determine whether in the particular situation the opposing party has been prejudiced.").
Default is a drastic sanction that should be used sparingly. Kingsley v. Kingsley, 716 S.W.2d 257, 260 (Mo. banc 1986). Given the circumstances of this matter, it is clear that the trial court exercised its authority in an unjust manner. See Luster, 916 S.W.2d at 844.
Appellants' arguments raised in Point II have merit and compel our reversal of the trial court's entry of a default judgment against Appellant Avilda Miller and require us, as to Appellant Avilda Miller, to remand the case to the trial court for further proceedings consistent with this opinion.
Point III: Appellant G. Spencer Miller was not in default; the trial court abused its discretion in refusing to continue the March 11, 2003 hearing; and there was no evidence to establish damages.
In accordance with the preceding discussion, we observe that the interrogatories were directed to Appellant G. Spencer Miller and that he failed to respond to them as prescribed by the June 11, 2002, order of the trial court.
We initially note that the Supreme Court of Missouri has set out that Rule 61.01(b) authorizes a trial court, upon the proper motion, to "`make such orders in regard to the failure as are just[,]'" and these sanctions may include, but are not limited to, striking pleadings, dismissing the action, or rendering a judgment by default against the disobedient party. Wilkerson, 943 S.W.2d at 648 (quoting Rule 61.01(b)).[5]
*603 Thus, the trial court could have entered its order rendering a default judgment without first striking Appellant G. Spencer Miller's pleadings. See Wilkerson, 943 S.W.2d at 648. However, the trial court by its order of June 2, 2002, expressly set out that Appellants' pleadings "shall be stricken" upon failure to answer the interrogatories. See J & J Window Sales, Inc. v. Mueller, 567 S.W.2d 153, 154 (Mo.App.1978).
Appellants' additional contention that even when a party is in default there must be proof of damages for the default judgment to be valid also lacks merit. This is because, as previously set out, we don't know what testimony or evidence was presented at the hearing, and Appellants cannot now be heard to complain about proof of damages, when by their absence at the hearing they failed to make a request that the proceedings be recorded. See previous discussion.
Lastly and not yet addressed elsewhere, is Appellants' contention that the trial court abused its discretion in refusing to continue the March 11, 2003, hearing, where the trial court considered Treetop's motion for default judgment, subsequently found Appellants in default, and rendered judgment in favor of Treetop on all issues. Appellants correctly state that the denial of a continuance is largely within the discretion of the trial court. Seabaugh v. Milde Farms, Inc., 816 S.W.2d 202, 207 (Mo. banc 1991). Further, the denial of a continuance is rarely reversible error, although a trial court does not enjoy absolute or arbitrary discretion in this regard. City of Bridgeton v. City of St. Louis, 18 S.W.3d 107, 113 (Mo.App.2000).
Here, the record does not show that the trial court ruled on Appellants' request for a continuance. Appellants provide no evidence that the trial court even received the request (a letter faxed to the court) prior to entering the judgment. Under these circumstances we fail to see how the trial court could have abused its discretion by its purported failure not to continue the hearing. Point III is denied.
Respondent's motion to dismiss appeal and for sanctions for frivolous appeal is denied. The judgment of the trial court is affirmed in part, reversed in part, and remanded consistent with this opinion.
PREWITT, J., concurs in part, dissents in part, in separate opinion.
GARRISON, J., concurs.
JAMES K. PREWITT, Judge, concurring in part and dissenting in part.
The interrogatories were unclear as to who should answer them. The title of the document indicated both Appellants, but the first sentence directed only Appellant G. Spencer Miller to answer. Pursuant to Respondent's motion, the trial court ordered both Appellants to answer. Appellants ignored that order. The trial court's order compelling both Appellants to answer is not questioned in this appeal.
I believe that the trial court resolved the ambiguity in the interrogatories, and, as that order is not questioned directly, I would affirm the judgment against both parties. I respectfully dissent in the reversal as to Avilda Miller and concur in the affirmance as to G. Spencer Miller.
NOTES
[1] More specifically the trial court's order read:
Motion to compel answers to interrogatories taken up. Defs. fail to appear; Pl. appears by atty. Defs. given 20 days to answer or pleadings shall be stricken. Clerk to advise the Defts. of the court's entry.
[2] Although the time stamp on the fax does not reference whether it was sent at 9:11 a.m. or p.m., Appellants claim it was sent in the morning and Treetop agrees.
[3] Rule references are to Missouri Court Rules (2003).
[4] "`Judicial discretion is abused when the trial court's ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.'" Wilkerson, 943 S.W.2d at 648 (quoting Anglim v. Mo. Pac. R.R. Co., 832 S.W.2d 298, 303 (Mo. banc 1992)).
[5] There are cases that have placed an "and" where the "or" stands in the Rule, and have stated that Rule 61.01 provides that an order may be entered to strike pleadings and render judgment by default against a party who fails to obey an order to answer interrogatories. See, e.g., Whitworth v. Whitworth, 878 S.W.2d 479, 481 (Mo.App.1994). Other cases, exemplified by Hoodenpyle v. Schneider Bailey, Inc., 748 S.W.2d 683 (Mo.App.1988), clearly set out that the "rule allows a court to enter an order striking pleadings, dismissing an action, or rendering a default judgment, among others, for the failure to timely answer or object to interrogatories." Id. at 685.
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FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS April 16, 2019
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
CITY OF CAMBRIDGE RETIREMENT
SYSTEM; MARTA/ATU LOCAL 732
EMPLOYEES RETIREMENT PLAN,
derivatively on behalf of the Western
Union company,
Plaintiffs - Appellants,
and
STANLEY LIEBLEIN,
Plaintiff,
v. No. 17-1381
HIKMET ERSEK; JACK M.
GREENBERG; DINYAR S. DEVITRE;
RICHARD A. GOODMAN; BETSY D.
HOLDEN; LINDA FAYNE LEVINSON;
ROBERTO G. MENDOZA; SOLOMON
D. TRUJILLO; FRANCES M. FRAGOS
TOWNSEND; THE WESTERN UNION
COMPANY, a Delaware corporation,
nominal defendant,
Defendants - Appellees.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:14-CV-00144-MSK-KLM)
_________________________________
Jeroen Van Kwawegen of Bernstein Litowitz Berger & Grossmann LLP, New York, New
York (David J. MacIsaac of Bernstein Litowitz Berger & Grossmann LLP, New York,
New York; Jeffrey A. Berens of Berens Law LLC, Denver, Colorado; and Michael I.
Fistel, Jr. of Johnson Fistel LLP, Marietta, Georgia, with him on the briefs), for Plaintiffs-
Appellants.
David F. Graham of Sidley Austin LLP, Chicago, Illinois (Hille R. Sheppard of Sidley
Austin LLP, Chicago, Illinois; and Holly Stein Sollod and Christina Gomez of Holland &
Hart LLP, Denver, Colorado, with him on the brief) for Defendants-Appellees.
_________________________________
Before MATHESON, PHILLIPS, and McHUGH, Circuit Judges.
_________________________________
PHILLIPS, Circuit Judge.
_________________________________
In this shareholder-derivative action, Shareholders of The Western Union
Company aver that several of Western Union’s Officers and Directors breached their
fiduciary duties to the company by willfully failing to implement and maintain an
effective anti-money-laundering-compliance program (AML-compliance program),
despite knowing of systemic deficiencies in the company’s AML compliance. The
Shareholders didn’t make a pre-suit demand on Western Union’s Board of Directors
to pursue this litigation, and the district court found no evidence that such demand
would have been futile. The district court thus dismissed the case, reasoning that the
Shareholders’ obligation to make a pre-suit demand on the Board was not excused.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
BACKGROUND
Western Union is a public Delaware corporation that facilitates electronic
money transfers through a sprawling international network of about 550,000
“agents”—individuals and entities that serve as storefronts where customers can send
2
or receive funds—located in over 200 countries and territories. Appellants’ App. vol.
4 at 854–55, ¶ 14. Western Union’s primary business flows through Western Union
Financial Services, Inc. (WUFSI), a wholly-owned subsidiary which facilitates
consumer-to-consumer money transfers. Western Union also offers business-to-
business and business-to-consumer transfers through another wholly-owned
subsidiary, Western Union Business Solutions.
Given its vulnerability to criminal exploitation, the money-transmittal industry
is heavily regulated. Under the Bank Secrecy Act of 1970 (BSA), 31 U.S.C. §§ 5311–
5332, financial institutions—including “money services businesses” like Western
Union1—must implement and maintain effective AML-compliance programs. See id.
§ 5318(h)(1). At a minimum, these programs must provide for internal controls to
guard against money laundering, for monitoring and independent compliance testing,
and for personnel training. See 31 U.S.C. § 5318(h); 31 C.F.R. § 1022.210. A money-
services business with foreign agents must also adopt risk-based approaches to cross-
border transactions to help “guard against the flow of illicit funds.” 69 F.R. 74439,
74440 (Dec. 14, 2004). Finally, financial institutions must maintain records and file
reports on transmittals that exceed certain amounts or are “relevant to a possible
violation of law or regulation.” 31 U.S.C. § 5318(g)(1). “Structuring” or breaking
transactions into smaller denominations to avoid the BSA’s recordkeeping and
reporting requirements is a crime. Id. § 5324.
1
A “money services business” qualifies as a “financial institution” under the
BSA. See 31 C.F.R. §§ 1010.100(t) & 1010(ff).
3
Regulators have long monitored Western Union’s compliance with these
requirements. Between 2002 and 2006, when Western Union became a public
company, WUFSI entered into four settlement agreements concerning alleged AML
violations with federal regulators and state authorities in Arizona, California, and
New York. Without admitting liability, WUFSI promised to remedy deficiencies in
its recordkeeping, reporting, and monitoring practices. Yet WUFSI struggled to
achieve these objectives, and in 2008, it reached a second settlement with Arizona
regarding alleged recordkeeping violations. A third settlement with Arizona followed
in 2010: the Southwest Border Agreement (SBA).
The SBA centered on violations that occurred between 2003 and 2007 at 16
agent locations in the Southwest Border region—Arizona and the area within 200
miles north and south of the United States–Mexico border. WUFSI admitted that it
had “reason to know” that agents at these locations had “knowingly engaged in a
pattern of money laundering violations that facilitated human smuggling from
Mexico into the United States through Arizona.” Appellants’ App. vol. 8 at 1933, ¶ 4.
To remedy these violations, the SBA imposed a $94 million fine and mandated that
WUFSI work with a court-appointed monitor to improve its AML compliance in the
Southwest Border region. The SBA set a July 2013 completion deadline for this
endeavor.
Three monitors served between 2010 and 2013, recommending a bevy of
improvements to WUFSI’s AML-compliance program. Western Union struggled to
keep apace of these mounting proposals, implementing just 18 of (then) 80 proposals
4
by September 2011, 33 of 98 proposals by October 2012, and 54 of 98 proposals by
April 2013. In July 2013—at the end of the initial monitorship—Western Union
management advised the Board of Directors that certain improvements were “at a
standstill.” Id. vol. 3 at 777–78, ¶¶ 184–85. Management also reported the disturbing
news that, in the first quarter of 2013, 28 of 335 high-risk agents in the Southwest
Border region had “confirmed instances of Human Smuggling.” Id. at 786, ¶ 214.
When Western Union failed to complete all the monitors’ proposals by the
July 2013 deadline, Arizona threatened to declare a willful and material breach of the
SBA. Instead, recognizing their “mutual goal” that Western Union develop and
maintain an effective AML-compliance program, the parties negotiated an amended
SBA, extending the monitorship through December 2017. Id. vol. 8 at 1986. The
Amended SBA also mandated more rigorous recordkeeping and reporting practices
for transactions in the Southwest Border region.
As these events unfolded, numerous federal investigations into Western
Union’s AML compliance began to ramp up. In 2012, the U.S. Attorney’s Office for
the Central District of California named Western Union a “target” in an investigation
into a California agent arrested for structuring transactions worth $65.7 million. Id.
vol. 3 at 763, ¶ 137. Also in 2012, the Federal Trade Commission (FTC) began
investigating Western Union’s possible facilitation of fraudulent money transfers.
Two years later, in 2014, the U.S. Attorney’s Office for the Southern District of
Florida named Western Union a target in an investigation into allegations of money
5
laundering by agents in Central America. Meanwhile,2 the U.S. Attorney’s Offices
for the Eastern and Middle Districts of Pennsylvania started investigating Western
Union for anti-fraud and AML violations.
Against this backdrop, various Shareholders filed five derivative actions in
2014 alleging that certain of Western Union’s Directors had caused the company to
willfully violate AML laws and regulations. In 2015, the district court consolidated
these actions, and the Shareholders filed a consolidated complaint, asserting
violations of the Securities Exchange Act of 1934, breaches of fiduciary duties, and
Delaware common-law claims. The Directors moved to dismiss under Rule 23.1 of
the Federal Rules of Civil Procedure, arguing that the Shareholders had failed to
plead facts sufficient to show the futility of making a pre-suit demand on the Board
to pursue litigation. The court granted the motion but gave the Shareholders leave to
amend. Accordingly, on May 2, 2016, the Shareholders filed a first amended
complaint (FAC), asserting two breach-of-fiduciary-duties claims. The Directors
again moved to dismiss for failure to plead demand futility.
While that motion was pending, on January 19, 2017, Western Union entered
into a deferred prosecution agreement (DPA) with the U.S. Department of Justice and
the U.S. Attorney’s Offices for the Central District of California, Southern District of
Florida, and Eastern and Middle Districts of Pennsylvania. The DPA alleged that,
between 2004 and 2012, Western Union had willfully failed to implement an
2
The parties offer no evidence identifying when these investigations began.
6
effective AML-compliance program and take corrective action against agents
engaged in fraud, money laundering, and structuring schemes. Western Union
admitted these allegations, accepted responsibility, and agreed to penalties and
conditions in exchange for having criminal charges dismissed after three years. That
same day, Western Union also announced a settlement with the FTC in a related
consumer-fraud enforcement action.
In light of these developments, the district court granted the Shareholders
leave to amend their pleading. Accordingly, on March 17, 2017, the Shareholders
filed a second amended complaint (SAC), adding 13 paragraphs addressing the
settlement agreements. On April 21, 2017, the Directors filed a renewed motion to
dismiss for failure to plead demand futility, which the district court granted on
September 29, 2017. This appeal followed.
ANALYSIS
The Shareholders concede that they made no pre-suit demand on Western
Union’s Board of Directors to pursue this litigation. Thus, we need decide only
whether such demand would have been futile. We first address the standard of review
applicable to Rule 23.1 dismissals before considering the legal sufficiency of the
Shareholders’ demand-futility allegations.
I. Standard of Review
Our circuit has yet to decide what standard of review applies to dismissals
under Rule 23.1 for failure to plead demand futility. See In re ZAGG Inc. S’holder
Deriv. Action, 826 F.3d 1222, 1227 (10th Cir. 2016) (finding the standard of review
7
immaterial to the decision). The courts of appeals are split on this question, with the
recent trend favoring de novo review over a discretionary standard.3 We tend to agree
with the trend towards plenary review, given that the issue whether demand is futile
depends on the legal sufficiency of the complaint’s allegations—a determination we
typically review de novo. See Carabajal v. City of Cheyenne, 847 F.3d 1203, 1212
(10th Cir. 2017). We see no sound reason to apply a different standard to a derivative
pleading when we have “exactly the same task as when reviewing the dismissal of
any other action.” Espinoza v. Dimon, 797 F.3d 229, 235 (2d Cir. 2015) (explaining
that an appellate court takes the complaint’s allegations as true and decides whether
3
Many circuits historically applied abuse-of-discretion review in derivative
actions, reasoning that a dismissal for failure to adequately plead demand futility is
highly fact-intensive. But the more recent trend is to apply de novo review, and at
least five circuits now use that standard. See, e.g., F5 Capital v. Pappas, 856 F.3d 61,
71 (2d Cir. 2017); Cottrell on behalf of Wal-Mart Stores, Inc. v. Duke, 829 F.3d 983,
990 (8th Cir. 2016); Union de Empleados de Muelles de Puerto Rico PRSSA Welfare
Plan v. UBS Fin. Servs., 704 F.3d 155, 162–63 (1st Cir. 2013); Westmoreland Cnty.
Emp. Ret. Sys. v. Parkinson, 727 F.3d 719, 724–25 (7th Cir. 2013); McCall v. Scott,
239 F.3d 808, 817 (6th Cir. 2001). Still, several circuits have bucked this trend and
continue to apply a discretionary standard. See, e.g., Louisiana Mun. Police Emps.’
Ret. Sys. v. Wynn., 829 F.3d 1048, 1058 (9th Cir. 2016); Freedman v. Redstone, 753
F.3d 416, 423 (3d Cir. 2014); Kammona v. Onteco Corp., 587 F. App’x 575, 581
(11th Cir. 2014); Pirelli Armstrong Tire Corp. Retiree Med. Benefits Trust ex rel.
Fed. Nat’l Mortg. Ass’n v. Raines, 534 F.3d 779, 783 n.2 (D.C. Cir. 2008).
8
they state a claim under the appropriate demand-futility standard).4 We therefore hold
that dismissals under Rule 23.1 are subject to de novo review.5
II. Demand Futility
Derivative actions empower shareholders to “enforce a corporate cause of
action against officers, directors, and third parties.” Kamen v. Kemper Fin. Servs.,
Inc., 500 U.S. 90, 95 (1991) (quoting Ross v. Bernhard, 396 U.S. 531, 534 (1970)).
Because the cause of action belongs to the corporation, shareholders, as a
“precondition for the suit,” must make a pre-suit demand on the corporation’s board
of directors to pursue the litigation, “unless excused by extraordinary conditions.” Id.
at 96 (quoting Ross, 396 U.S. at 534). Rule 23.1 requires the complaint to “state with
particularity” “any effort” to “obtain the desired action from the [corporation’s]
4
Notably, some courts of appeals have questioned the logic of deferential
review in this context—even as precedent binds them to apply it. See, e.g., Israni v.
Bittman, 473 F. App’x 548, 550 n.1 (9th Cir. Apr. 2, 2012) (“We question whether
abuse of discretion review is appropriate.”), overruled in part on other grounds by
Lightfoot v. Cendant Mortg. Corp., 137 S. Ct. 553 (2017); Raines, 534 F.3d at 783
n.2 (“We tend to agree . . . that an abuse-of-discretion standard may not be logical in
this kind of case . . . because the question whether demand is excused turns on the
sufficiency of the complaint’s allegations . . . .”).
5
As we noted in In re ZAGG, 826 F.3d at 1227, one of our earlier cases
suggested that an abuse-of-discretion standard might be appropriate for dismissals
under Rule 23.1. See deHaas v. Empire Petroleum Co., 435 F.2d 1223, 1228 (10th
Cir. 1970) (holding, in assessing demand futility, that nothing in the record “would
indicate an abuse of discretion”). But in deHaas, the demand-futility question came
before this court after a full trial, and the issue revolved around a “factual dispute.”
Id. Accordingly, deHaas does not prescribe our standard of review when a demand-
futility issue arises on a motion to dismiss the complaint. See Smith v. United States,
561 F.3d 1090, 1098 (10th Cir. 2009) (“The legal sufficiency of a complaint is a
question of law . . . [that] is reviewed de novo.”).
9
directors” and “the reasons for not obtaining the action or not making the effort.”
Fed. R. Civ. P. 23.1(b)(3). Whether the complaint’s particular allegations suffice
depends upon the substantive law of the state in which the entity is incorporated—
here, Delaware. See Kamen, 500 U.S. at 108–09.6
Because the Shareholders didn’t make a pre-suit demand on Western Union’s
Board, Rule 23.1 requires that they plead the reasons such demand would have been
futile under Delaware law. In evaluating the Shareholders’ pleading, we accept as
true all particularized allegations of fact and give the Shareholders all reasonable
inferences logically flowing from them. See City of Birmingham Ret. & Relief Sys. v.
Good, 177 A.3d 47, 55–56 (Del. 2017). But “conclusory allegations are not
considered as expressly pleaded facts or factual inferences.” White v. Panic, 783
A.2d 543, 549 (Del. 2001) (citation omitted).7
Delaware law employs two tests for demand futility, the application of which
turns on the nature of the allegations against the board. For allegations that the board
6
Rule 23.1 pertains only to the “adequacy of the shareholder representative’s
pleadings”—it doesn’t “create a demand requirement of any particular dimension.”
Kamen, 500 U.S. at 96. Rather, it “clearly contemplates” that such a requirement may
apply under state substantive law. Id.
7
The Shareholders downplay Rule 23.1’s rigorous pleading requirements,
arguing that the standard is “plaintiff-friendly” and citing numerous Rule 12(b)(6)
cases to that effect. See Br. for Plaintiffs-Appellants at 38–39. Yet the Rule 23.1
inquiry is “more onerous” than Rule 12(b)(6). McPadden v. Sidhu, 964 A.2d 1262,
1269 (Del. Ch. 2008). Indeed, Delaware courts often cite Rule 23.1’s particularized-
pleading standard in contradistinction to the “plaintiff-friendly” standard of Rule
12(b)(6). See, e.g., Pfeiffer v. Toll, 989 A.2d 683, 692 (Del. Ch. 2010); In re
Citigroup Inc. S’holder Derivative Litig., 964 A.2d 106, 130 n.75 (Del. Ch. 2009).
10
acted in violation of its fiduciary duties, demand is excused if a “reasonable doubt”
exists that (i) the directors are disinterested and independent or (ii) the transaction is
“otherwise the product of a valid exercise of business judgment.” Aronson v. Lewis,
473 A.2d 805, 814 (Del. 1984), overruled on other grounds by Brehm v. Eisner, 746
A.2d 244 (Del. 2000). By contrast, challenges to board inaction require a “reasonable
doubt” that, when the lawsuit was filed, the board “could have properly exercised its
independent and disinterested business judgment in responding to a demand.” Rales
v. Blasband, 634 A.2d 927, 934 (Del. 1993). The Rales test includes derivative suits
where “the subject . . . is a violation of the Board’s oversight duties.” Wood v. Baum,
953 A.2d 136, 140 (Del. 2008).
In this case, the Shareholders do not challenge any discrete, affirmative Board
action. Rather, they claim that the Board willfully failed to implement and maintain
an effective AML-compliance program despite knowing of systemic deficiencies in
Western Union’s AML compliance.8 Because this allegation describes inaction, it
8
The Shareholders try to shoehorn their claims into the Aronson framework by
using language evocative of affirmative action. The SAC, for example, characterizes
this litigation as “aris[ing] from the deliberate decision of Western Union’s board of
directors . . . to ignore its mandate” to maintain adequate AML-compliance measures.
Appellants’ App. vol. 3 at 715, ¶ 2. Similarly, on appeal, the Shareholders refer to the
Board’s “business strategy” to boost profits while “willfully violating” AML laws,
Br. for Plaintiffs-Appellants at 11–12, and argue that the Board “acted with the intent
to violate positive law” by “condon[ing] management’s efforts to hamper
compliance,” Reply Br. for Plaintiffs-Appellants at 19 n.9. Yet the SAC is wholly
devoid of allegations—particular or otherwise—that the Board was ever informed of
and affirmatively approved a deliberate course of illegal conduct. See Louisiana Mun.
Police Emps.’ Ret. Sys. v. Pyott, 46 A.3d 313, 340–41 (Del. Ch. 2012) (plaintiffs
must “allege with particularity actual board involvement in a decision that violated
positive law”), rev’d on other grounds, 74 A.3d 612 (Del. 2013). As the district court
11
implicates the Rales test. See Rales, 634 A.2d at 933–34 (observing that Aronson is
inapposite where the derivative action doesn’t challenge a “business decision”).9
To prevail under Rales, “a derivative complaint must plead facts specific to
each director[] demonstrating that at least half of them could not have exercised
disinterested business judgment in responding to a demand.” Desimone v. Barrows,
924 A.2d 908, 943 (Del. Ch. 2007). A director is considered interested10 if filing suit
would operate to his or her “personal benefit or detriment.” Beam ex rel. Martha
Stewart Living Omnimedia, Inc. v. Stewart, 845 A.2d 1040, 1049 (Del. 2004). For
that reason, a director who is sued may have a disabling interest for pre-suit demand
explained, the SAC’s allegations reduce to the singular contention that the Board
“was confronted with deficiencies in . . . management’s conduct as to AML
compliance” and that it “either condoned the deficiencies or remained consciously
passive.” Appellants’ App. vol. 8 at 2163. In short, the Shareholders allege failures of
oversight, not affirmative misconduct.
9
In any event, the distinction between Aronson and Rales is immaterial in this
case because the Shareholders claim that the Directors face liability from suit and are
therefore incapable of impartially acting on a demand. See Aronson, 473 A.2d at 815
(reasoning that, if the challenged conduct is so “egregious” that it fails the business-
judgment test, then “a substantial likelihood of director liability” excusing demand
exists); Rales, 634 A.2d at 934 (excusing demand if the directors’ risk of liability for
failing to act renders them incapable of exercising their impartial business judgment);
see also Rosenbloom v. Pyott, 765 F.3d 1137, 1150 (9th Cir. 2014) (noting that both
tests excuse demand if the “particularized allegations create a reasonable doubt as to
whether a majority of the board of directors faces a substantial likelihood of personal
liability for breaching the duty of loyalty”); In re SAIC Inc. Derivative Litig., 948 F.
Supp. 2d 366, 382 (S.D.N.Y. 2013) (explaining that the two tests “may blur in cases
like this one” where the risk of personal liability “may also implicate the question
whether the Board can avail itself of business judgment protections”), aff’d sub nom.
Welch v. Havenstein, 553 F. App’x 54 (2d Cir. 2014).
10
The Shareholders do not challenge any Director’s independence.
12
purposes. Ryan v. Gifford, 918 A.2d 341, 355 (Del. Ch. 2007). But a director’s mere
status as a defendant isn’t sufficient to compromise the director’s impartiality. See
Aronson, 473 A.2d at 814 (rejecting this “bootstrap” argument). Rather, the director
must face a “substantial likelihood” of personal liability.11 Guttman v. Huang, 823
A.2d 492, 501 (Del. Ch. 2003).
Directors owe fiduciary duties of care and loyalty to the corporation and its
shareholders. Mills Acq. Co. v. Macmillan, Inc., 559 A.2d 1261, 1280 (Del. 1989).
Where, as here,12 the corporate charter exculpates directors from liability for duty-of-
care violations, a “substantial likelihood” of liability requires allegations showing
that the directors have breached their non-exculpated duty of loyalty. That duty
entails, as a “subsidiary element,” an obligation to act in good faith. Stone v. Ritter,
911 A.2d 362, 370 (Del. 2006). Liability for failure to act in good faith requires
“qualitatively more culpable” conduct than gross negligence. In re Walt Disney Co.
11
The Shareholders misstate this standard, asserting that demand is excused if
a “reasonable doubt” exists that the Directors face “potential liability.” Br. for
Plaintiffs-Appellants at 3, 8–9, 35, 47, 50. In essence, they argue that the necessary
quantum of liability risk is anything more than zero. Yet a “mere threat of personal
liability . . . is insufficient to challenge either the independence or disinterestedness
of directors.” Aronson, 473 A.2d at 814. Instead, a “reasonable doubt” as to directors’
impartiality “should only be found where a substantial likelihood of personal liability
exists.” Wood, 953 A.2d at 141 n.11 (citation omitted).
12
Western Union’s charter exculpates its Directors from liability “for breach
of fiduciary duty . . . to the fullest extent permitted by Delaware law.” Appellants’
App. vol. 7 at 1872. Delaware law permits exculpation from monetary liability for
breach of the duty of care but not for breach of the duty of loyalty. Del. Code Ann.
tit. 8, § 102(b)(7). Accordingly, Western Union’s charter exculpates liability only for
duty-of-care violations.
13
Deriv. Litig., 906 A.2d 27, 66 (Del. 2006). Indeed, it requires intentional bad-faith
conduct, such as acting in pursuit of a disloyal purpose, acting with the “intent to
violate applicable positive law,” or consciously failing to act “in the face of a known
duty to act.” Stone, 911 A.2d at 369 (citation omitted).
Claims alleging failures of board oversight fall within the latter category and
are considered “possibly the most difficult theory in corporation law upon which a
plaintiff might hope to win a judgment.” In re Caremark Int’l Inc. Deriv. Litig., 698
A.2d 959, 967 (Del. Ch. 1996). A Caremark claim requires particularized allegations
that the board (i) “utterly failed to implement any reporting or information system or
controls” or (ii) “having implemented such a system or controls, consciously failed to
monitor or oversee its operations thus disabling themselves from being informed of
risks or problems requiring their attention.” Stone, 911 A.2d at 370. Under either
theory, the directors must have consciously and in bad faith failed to discharge their
fiduciary obligations. Id.; see also Rich ex rel. Fuqi Int’l, Inc. v. Yu Kwai Chong, 66
A.3d 963, 980–82 (Del. Ch. 2013) (“The essence of a Caremark claim is a breach of
the duty of loyalty arising from a director’s bad-faith failure to exercise oversight
over the company.”).
Here, the Shareholders don’t appear to allege that Western Union’s Board
utterly failed to implement any reporting or information systems or controls. Nor
could they credibly make such an argument, as nearly every settlement that Western
Union has reached with federal and state authorities since 2002 has acknowledged
Western Union’s progress towards implementing an effective AML-compliance
14
program.13 Instead, the Shareholders seem to argue that the Board consciously failed
to monitor Western Union’s AML compliance, thereby disabling itself from being
informed of deficiencies requiring attention.
To prevail on such a claim under Caremark’s second prong, the Shareholders
must plead with particularity that the Board was presented with “red flags” alerting it
to misconduct at the company, see Stone, 911 A.2d at 373, and that it “consciously
disregarded” those red flags, see Good, 177 A.3d at 59. Red flags serve as proxies for
Board knowledge. Hence, the Shareholders must identify “obvious and problematic
occurrences” supporting an inference that the Board knew of, but consciously
ignored, material weaknesses in Western Union’s internal AML policies. See Rich,
66 A.3d at 983.
Of course, whether the Board consciously ignored such red flags depends on
which Board counts for purposes of evaluating demand futility. The Shareholders
contend that the relevant Board is the 12-member Board that was constituted when
13
See Appellants’ App. vol. 7 at 1875 (New York: “[Western Union] has
undertaken immediate corrective action.”); id. at 1880 (Department of the Treasury:
“[Western Union] promptly instituted comprehensive national corrective actions . . .
.”); id. at 1886 (California: “[Western Union] has proactively taken corrective steps .
. . .”); id. vol. 8 at 1919, ¶ 3 (SBA: “Western Union has developed and implemented
a risk-based . . . [AML] compliance program.”); id. at 1987, ¶ 2 (amended SBA:
“Western Union has expended significant resources and has made substantial
progress in completing the Monitor’s Recommendations.”); id. vol. 4 at 880, ¶ 100
(DPA: “Western Union took remedial measures and implemented compliance
enhancements to improve its anti-fraud and anti-money laundering programs.”).
15
they filed the FAC in May 2016.14 Meanwhile, the Directors urge us to focus on the
11-member Board that was in place when the SAC was filed in March 2017.
Ordinarily, courts assess demand futility based on “the directors in office when
[the shareholders] initiated [the] action.” Teamsters Union 25 Health Servs. & Ins.
Plan v. Baiera, 119 A.3d 44, 57 (Del. Ch. 2015). If the shareholders amend their
complaint, the relevant board becomes the one in place when the amended complaint
is filed. See Braddock v. Zimmerman, 906 A.2d 776, 779 (Del. 2006). But the
existence of a new board at that time “is relevant to a Rule 23.1 demand inquiry”
only as to derivative claims in the amended complaint that are “not already validly in
litigation.” Id. at 785.
The term “validly in litigation” means “a proceeding that can or has survived a
motion to dismiss.” Id. at 779. Claims in an amended pleading meet this definition if
(i) “the original complaint was well pleaded as a derivative action”; (ii) “the original
complaint satisfied the legal test for demand excusal”; and (iii) “the act or transaction
complained of . . . is essentially the same as the act or transaction challenged in the
original complaint.” Id. at 786. The first and second prongs are relevant to whether
the proceeding survived dismissal, while the third prong examines the continuity
between the pleadings.
14
In their opening brief, the Shareholders appear to argue that the relevant
Board is the one that was in place when this action first commenced in 2014. In their
reply brief, however, they argue for the May 2016 Board.
16
Here, because the original complaint didn’t survive dismissal, the Rule 23.1
demand inquiry reset when the Shareholders filed the FAC. See id. (“[A] complaint
that has been dismissed is not validly in litigation.”). The inquiry again reset when
the Shareholders filed the SAC, at least for derivative claims that weren’t validly
stated in the FAC. See In re Affiliated Computer Servs., Inc. S’holders Litig., No.
2821-VCL, 2009 WL 296078, at *8 (Del. Ch. Feb. 6, 2009) (analyzing whether
claims in a second amended complaint were validly in the first amended complaint).
The district court, of course, didn’t dismiss the FAC—the Shareholders filed the SAC
before it could. But the test for validity also asks whether a claim can survive
dismissal, and the district court, in dismissing the SAC, explicitly stated that it would
have dismissed the FAC for failure to plead demand futility. The FAC therefore
wasn’t valid under Braddock’s second prong.15
We see no error in this result. When the Shareholders filed the FAC in May
2016, Western Union’s Board consisted of 12 Directors. Six of those Directors joined
the Board in 2012 or later, well after most of the red-flag events that the Shareholders
allege should have alerted the Board to AML-compliance issues—i.e., settlements
with federal and state authorities between 200216 and 2010. The FAC doesn’t
15
The Shareholders insist that the SAC added no additional claims from those
in the FAC but instead merely “supplemented” the FAC’s well-pleaded allegations.
Reply Br. for Plaintiffs-Appellants at 20. Yet the continuity between the pleadings
doesn’t render the FAC valid. The FAC must have also satisfied the legal test for
demand excusal, and the district court determined that the FAC failed that test.
16
Of course, the Directors couldn’t incur liability for failing to act on red flags
occurring before 2006, when Western Union became a public company. Nonetheless,
17
mention the three newest Directors: Jeffrey Joerres (2015), Martin Cole (2015), and
Robert Selander (2014). As for the other three—Francis Townsend (2013), Richard
Goodman (2012), and Solomon Trujillo (2012)—the FAC alleges a general
awareness of systemic deficiencies in Western Union’s AML compliance. But it
pleads no facts showing that any of those directors consciously disregarded any
contemporaneous violations of specific requirements imposed by past settlements.
At most, the FAC alleges that Townsend, Goodman, and Trujillo attended
numerous meetings at which management17 apprised the Board of setbacks related to
the ongoing SBA settlement. The FAC asserts that the collective Board remained
“wholly passive” in the face of these setbacks, see, e.g., Appellants’ App. vol. 3 at
602, ¶ 9; id. at 688, ¶ 260, but it pleads no particularized facts showing how
Townsend, Goodman, and Trujillo consciously and in bad faith failed to take
remedial action, see Orman v. Cullman, 794 A.2d 5, 22 (Del. Ch. 2002) (requiring
facts specific to the “individual members of th[e] board”). In fact, the FAC’s own
account suggests that, under these Directors’ oversight, the company improved its
compliance with the SBA. Compare Appellants’ App. vol. 3 at 645, ¶ 131 (alleging
the Shareholders seem to allege that these earlier settlements alerted the Board to a
longstanding pattern of AML violations and structural deficiencies in the company’s
internal AML-compliance policies.
17
The FAC is replete with allegations concerning “management’s” supposed
resistance to implementing AML-compliance measures in accordance with the SBA.
But the FAC lacks details about who constituted the “management” team tasked with
implementing the SBA or why those specific individuals desired to thwart AML
compliance. We cannot ascribe malicious motives to a nebulous, unnamed group of
“managers.”
18
that one of 91 monitor proposals were complete as of February 2012), with id. at 666,
¶ 199 (54 of 98 proposals as of April 2013). Though Western Union didn’t achieve
full compliance by the July 2013 deadline, the record belies the notion that
Townsend, Goodman, and Trujillo had wholly abdicated their oversight duties.
The FAC thus fails to allege that Western Union’s six newest Directors face a
substantial likelihood of personal liability for consciously disregarding red flags of
AML noncompliance. To validly state a Caremark claim, then, the FAC must create a
reasonable doubt about the other six Directors’ impartiality. See Beam, 845 A.2d at
1046 n.8 (explaining that demand to a board with an even number of members is
futile if at least half are compromised). The FAC doesn’t meet this threshold.
Aside from the six Directors discussed above, the Board in May 2016 included
Hikmet Ersek (2010), Jack Greenberg (2006), Betsy Holden (2006), Linda Levinson
(2006), Roberto Mendoza (2006), and Michael Miles (2006). Even assuming the FAC
creates a reasonable doubt as to these Directors’ impartiality,18 its allegations about
18
Though we needn’t reach the issue, we doubt the FAC states a Caremark
claim against the remaining six Directors. The FAC avers that the SBA alerted these
Directors to ongoing AML violations, which they ignored. This mischaracterizes the
SBA, which concerned past unlawful conduct occurring between 2003 and 2007 and
not ongoing illegality. In fact, the SBA expressly recognized that, in the years since
the violations, Western Union had “dedicated substantial resources” to improving its
AML compliance. Appellants’ App. vol. 8 at 1919, ¶ 3. The SBA thus supports the
inference that Western Union’s compliance was improving during these Directors’
tenure on the Board.
The FAC also alleges failures of oversight related to the SBA, including that
the Board had permitted management to oppose and thwart the court-appointed
monitors’ recommendations for improved AML compliance. For example, the FAC
faults the Board for supporting a disagreement between management and the monitor
over proposals for front-line associate sign-on controls and background checks. But
19
Levinson are immaterial to the demand-futility inquiry. On March 30, 2016, over a
month before the FAC’s May 2, 2016, filing, Levinson publicly disclosed that she
would retire as of Western Union’s May 12, 2016, annual meeting. Delaware courts
have likewise excluded from the inquiry directors who have announced their
the mere existence of such isolated disagreements over the course of a multi-year
relationship doesn’t support an inference that management designed to thwart AML
compliance. More important, the SBA obligated Western Union to collaborate with
the monitor on AML-compliance issues, not simply to acquiesce to all the monitor’s
demands. Disagreements over how to approach AML compliance don’t necessarily
evince bad-faith opposition to AML compliance.
Similarly, the FAC urges an inference of conscious bad faith based on Western
Union’s failure to achieve full compliance with the SBA by the July 2013 deadline.
This ignores that Western Union had implemented a majority of the monitors’
proposals during the three years of the SBA’s initial iteration. Such substantial
progress belies the notion that the Board had consciously failed to monitor
management’s AML-compliance efforts. Presumably, a conscious failure of oversight
would have resulted in a compliance rate much closer to zero, especially with a
management team allegedly bent on thwarting such efforts.
In fact, the FAC details how management routinely reported to the Board on
implementation progress and setbacks throughout the SBA’s initial term, and how it
presented plans for addressing open issues—demonstrating a functioning oversight
system. The FAC emphasizes that early reports exhibited limited progress and that
“major issues” remained open throughout the initial term. See id. vol. 3 at 667, ¶ 205.
But this portrayal misleadingly omits that the SBA contemplated a three-year period
for implementation. Partial implementation at the mid-stages of that period suggests
meaningful efforts at compliance, not bad faith. Indeed, though early reports showed
sluggish progress, management informed the Board in late 2012 that it was on track
to full compliance by the July 2013 deadline. The Board properly relied on this
healthy forecast and allowed management to continue its efforts.
Ultimately, the insistence on inferring bad faith from Western Union’s failure
to achieve full implementation by the initial deadline improperly “equate[s] a bad
outcome with bad faith.” See Stone, 911 A.2d at 373. Particularized allegations must
support such an inference, not speculative deduction. The Shareholders’ protestation
that inferring the Board’s good faith is improper inverts their burden: they must
proffer particularized facts sufficient to support an inference of bad faith. Such an
inference doesn’t logically flow from the conclusory allegation that Western Union’s
failure to achieve compliance stemmed from bad faith.
20
impending retirement. See Park Emps.’ Annuity & Benefit Fund of Chicago v. Smith,
No. 11000-VCG, 2016 WL 3223395, at *1, *8-11 (Del. Ch. May 31, 2016), aff’d,
175 A.3d 621 (Del. 2017). As the court in Smith explained, demand futility should be
determined by reference to “the board that would actually be tasked with determining
whether or not the corporation will pursue the litigation.” Id. at *9.
The Shareholders attempt to distinguish Smith, arguing that the plaintiffs in
that case filed a complaint just four days before an uncontested election to replace a
majority of the directors, who were retiring. They note that here, by contrast, they
asserted allegations against Levinson in their original complaint in January 2014—
over two years before she declared her intent to retire. Yet demand futility is assessed
as of the filing of the complaint that first states valid claims, and the original
complaint wasn’t valid because it didn’t survive a motion to dismiss. See Braddock,
906 A.2d at 779. Thus, assuming, arguendo, the FAC’s validity, the relevant
comparison is between the FAC’s filing just ten days before Levinson’s retirement
and the complaint’s filing four days before the directors’ retirement in Smith.
The Shareholders also highlight that they filed the FAC within 30 days of the
district court’s order dismissing the original complaint, “a date that was not within
Plaintiffs’ control.” Reply Br. for Plaintiffs-Appellants at 22. This, too, is irrelevant.
Levinson’s impending retirement was a matter of public record in Western Union’s
SEC filings as early as March 30, 2016—well before the Shareholders filed the FAC
and even before the district court dismissed the original complaint. Regardless of the
21
district court’s disposition of the motion to dismiss, the Shareholders had ample
notice that Levinson would be disabled from considering any litigation demand.
Thus, excluding Levinson from the analysis, the FAC alleges—at most—that
five of 11 Directors on the Board at the time of the FAC’s filing risked personal
liability. Demand to a board with an uneven number of members is futile only if a
majority is disabled from considering the demand. See Aronson, 473 A.2d at 817.
Allegations impugning the impartiality of five of 11 Directors fail to meet this
threshold, meaning the FAC wasn’t validly in litigation because it would have been
dismissed for failing to satisfy the “legal test for demand excusal.” See Braddock,
906 A.2d at 786.
The relevant Board for demand-futility purposes, then, is the 11-member
Board in place when the SAC was filed in March 2017. Yet, with the exception of
Levinson, the Board in March 2017 was identical to the Board in May 2016, and the
SAC alleges no additional facts that would render demand to that Board futile. The
SAC primarily adds allegations concerning the DPA, which addresses criminal AML
violations that occurred between 2004 and 2012. The SAC seems to allege that the
Directors as of March 2017 risked personal liability for those violations because they
all had served for at least part of the period during which the violations occurred. Yet
the SAC doesn’t particularly allege that the Board was aware of these violations
when they happened, much less that any individual Director consciously and in bad
22
faith had failed to take corrective action.19 Rule 23.1’s rigorous pleading standard
isn’t satisfied absent particularized allegations as to what each Director knew and
how they acted on that knowledge.20
The criminal misconduct that the DPA describes is certainly troubling, but the
SAC fails to establish that a majority of Western Union’s Board in March 2017 faced
a substantial risk of personal liability for consciously disregarding that misconduct.
See Guttman, 823 A.2d at 501. Thus, because the Board could have impartially acted
on a pre-suit demand to pursue litigation, we hold that the Shareholders’ obligation to
make such a demand wasn’t excused. See Rales, 634 A.2d at 934.
CONCLUSION
For the above reasons, we affirm the district court.
19
Indeed, the only Director that the SAC purports to connect to the DPA is
Ersek, and even then, it does so only implicitly. See Appellants’ App. vol. 3 at 801, ¶
265 (alleging that Western Union admitted its “Chief Executive Officer . . . knew
about AML violations”).
20
The DPA itself doesn’t supply such allegations. It describes how Western
Union “employees” willfully failed to discipline agents who knew of, but failed to
address, consumer fraud complaints related to transactions at foreign agent locations.
Appellants’ App. vol. 4 at 852, ¶ 2. It further describes failures to take corrective
action against four domestic agents who violated Western Union’s own policies
against structuring transactions. The DPA doesn’t attribute knowledge of this
criminal misconduct either to the Board or to any individual Director. Nor does it
support an inference that the Board consciously disregarded the misconduct. In fact,
it notes that between 2010 and 2012, Western Union terminated the agents engaged
in structuring transactions. It also notes that, in the wake of these terminations,
Western Union undertook “remedial measures and implemented compliance
enhancements” which demonstrate its “commitment to maintaining and enhancing
the effectiveness of its compliance program.” Id. at 880, ¶ 100. Such steps hardly
evince a Board that is consciously blind to AML violations.
23
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72 Cal.App.2d 279 (1945)
ELIZABETH STEWART, Appellant,
v.
CITY OF RIO VISTA, Respondent.
Civ. No. 7214.
California Court of Appeals. Third Dist.
Dec. 21, 1945.
Sinclair M. Dobbins for Appellant.
Leo C. Dunnell for Respondent.
THOMPSON, J.
The plaintiff has appealed from a judgment which was rendered against her pursuant to an order sustaining a demurrer to her complaint without leave to amend the pleading. The suit was for damages for personal injuries received as a result of falling into an open ditch maintained *280 by the city within its limits. The demurrer was sustained on the ground that the complaint fails to state a valid cause of action for the reason that it affirmatively appears from an exhibit attached to the complaint that plaintiff failed to file a claim for damages in the form and manner required by the statute relating to demands for damages for personal injuries against municipalities. (Stats. 1931, p. 2475; 2 Deering's Gen. Laws, 1943, Act 5149, p. 1678.) The defect in the claim which was filed in due time is that it fails to "specify the ... address of the claimant," as required by the statute.
A complaint for damages for personal injuries sustained by plaintiff was filed March 29, 1944, against the city of Rio Vista, under the act providing for liability of municipalities for the maintenance of dangerous and defective streets and grounds. (Stats. 1923, p. 675, 2 Deering's Gen. Laws, Act 5619, p. 2602.) The injuries were alleged to have been received April 9, 1943, by falling into an open ditch which was dug and maintained by the city within its limits. July 8, 1943, a claim for damages was filed in behalf of the plaintiff, by her attorney. It is attached to the complaint as Exhibit A, and made a part thereof. The claim conforms to the requirements of the statute, with the exception that it fails to "specify the ... address of the claimant," in the body thereof. The claim was signed by "Elizabeth Stewart, Ray E. Stewart, by Sinclair M. Dobbins, Their Attorney." It was verified by the attorney. His verification contains this language, "That he is an attorney at law ... and has his office in Vacaville, Solano County, California, and is the attorney for the Claimant ...; that claimant is unable to make the verification because she is absent from said County."
The only question on appeal is whether the omission in the claim to "specify the ... address of the claimant," is fatal to the maintenance of the action for damages against the city, in spite of the fact that the attorney stated in his verification of the claim of his client that he "has his office in Vacaville."
[1a] We are of the opinion the claim which was filed in this case is not fatally defective for the mere reason that the address of the claimant is not given in the body of the claim. The name of the claimant is mentioned therein. It was verified by her attorney, who states in the verification that he is her attorney and that his office address is Vacaville, California. Vacaville is not a large city. It is not contended that the mere address of Vacaville would not enable one to readily locate *281 the office of the attorney. [2] The statute does not require the residence of the claimant to be designated. It merely requires the "address" of the claimant to be stated therein. That requirement is for the purpose of enabling the officers of the municipality against which the claim is made to locate or communicate with the claimant. It is not synonymous with the word "residence." (Ridge v. Boulder Creek, etc. School Dist., 60 Cal.App.2d 453, 457 [140 P.2d 990].) Quoting with approval from the case of Uttley v. City of Santa Ana, 136 Cal.App. 23, at page 25, [28 P.2d 377], the court said in the Ridge case:
"'The purpose of the statute would seem to be accomplished if an address is given at which or through which the claimant may be found, in order that the city officials may make such investigation of the merits of the claim as may be desired. ...' (Emphasis ours)."
[1b] The verification is a necessary part of the claim required by the statute. Since the verification of the claim in this case contains the name and business address of the attorney of the claimant, where the claimant may readily be located it would appear to be a substantial compliance with the statute in that regard. (Uttley v. City of Santa Ana, supra; Ridge v. Boulder Creek etc. School Dist., supra.) In the Uttley case, in which a judgment for plaintiff was affirmed, and a hearing denied by the Supreme Court, it was held that the claim which merely "set forth the name of the plaintiff and the name and office address of his attorney" was an adequate compliance with the statute. In the Ridge case, in which a judgment for plaintiff was also affirmed and a hearing denied by the Supreme Court, it was held that the claim was in substantial compliance with the statute. It merely recited that the claimants, being the father and his minor son were "citizens and residents of the County of Santa Cruz, State of California, and the said R. C. Ridge is the father of the said Walter Ridge, a minor, who is a student at said Boulder Creek Union High School." (Italics added.) In holding that the foregoing language was a sufficient designation of the addresses of both the father and his son, the court said:
"It should be noted that here we are dealing with a statutory requirement designed to give a public agency the knowledge whereby its liability can be investigated."
If the addresses of the claimants in the Uttley and Ridge *282 cases were sufficiently accurate to comply with the statute, on principle, the statements in the present case that Sinclair M. Dobbins is the attorney for the claimant Elizabeth Stewart, and that he "has his office in Vacaville, Solano County, California," is also an adequate and substantial compliance with the statute in that regard. On authority of the two cases last cited, we conclude that the claim which was filed in this case, which is conceded to be adequate in every other respect, contains a sufficient designation of the address of the claimant to comply with the statute.
In Kelso v. Board of Education, 42 Cal.App.2d 415 [109 P.2d 29], a judgment for nonsuit was reversed on appeal. One of the issues was with respect to the sufficiency of the claim for damages which was signed, verified and filed by the father in behalf of his minor son, Earl C. Kelso, who was injured while attending school as a result of the dangerous condition of the school grounds. The claim contained the following designation of address: "My son resides with me at 130 North Cedar Street, Glendale, California." That designation of address was properly held to be sufficient to comply with the statute.
It is true that in the case of Hall v. City of Los Angeles, 19 Cal.2d 198 [120 P.2d 13], in which a judgment of dismissal of the action was affirmed on appeal, the Supreme Court held that:
"'Compliance with the statute referred to is mandatory and there must be at least a substantial compliance with its provisions before a suit for damages for personal injuries resulting from a defective sidewalk or street may be maintained against the City.'"
The Hall case did not involve an alleged defect of the claim in failing to state therein the address of the claimant. The case was dismissed for failure to state the "place of the accident" as the statute requires. The court said:
"Defendant contends that the failure of plaintiff to specify the place of the accident in the claim is fatal to her right to maintain the present action. ..."
"... The courts held that a defect in the form of compliance is not fatal so long as there is substantial compliance with the essentials of the requirement. In the present case, however, there is an entire failure on the part of the plaintiff to comply with one of the mandates of the statute. Substantial *283 compliance cannot be predicated upon no compliance." (Italics added.)
The Hall case is not in conflict with what we have previously said regarding the sufficiency of the designation of the claimant's address in the present case.
In the case of Eppstein v. City of Berkeley, 52 Cal.App.2d 395 [126 P.2d 365], relied upon by respondent, an order sustaining a demurrer to the complaint for failure to allege that the claim was filed as required by the statute was affirmed on appeal. But in that case the claim contained absolutely no designation of the address. The court said in that regard: "The claim contained no specification of address." That fact distinguishes the Eppstein case from the present action.
The other cases relied upon by the respondent may likewise be distinguished.
The judgment is reversed and the court is directed to overrule the demurrer and permit the defendant to answer.
Adams, P. J., and Peek, J., concurred.
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927 N.E.2d 347 (2006)
365 Ill. App.3d 1133
PEOPLE
v.
SHARP.
No. 5-05-0525.
Appellate Court of Illinois, Fifth District.
June 20, 2006.
Affirmed.
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157 N.W.2d 753 (1968)
John W. GARDNER, Appellant,
v.
COUNTY OF ITASCA, Minnesota, and Richard J. Whaling, Respondents.
No. 40575.
Supreme Court of Minnesota.
March 29, 1968.
*754 Spellacy, Spellacy & Lano, Grand Rapids, for appellant.
Douglas M. Head, Atty. Gen., David C. Weinberg, Spec. Asst. Atty. Gen., St. Paul, for respondents.
OPINION
OTIS, Justice.
This is an action which challenges the constitutionality of Minn.St. 490.12, subd. 5, under which plaintiff's retirement compensation as a probate judge has been reduced by the amounts he is receiving as a member of the Public Employees Retirement Association. Plaintiff appeals from a summary judgment rendered in favor of defendants.
The parties have stipulated to the facts. Plaintiff took office as a probate judge of Itasca County in 1936. He apparently joined P.E.R.A. in 1937.[1] In 1947, Minn.St. 490.12, subd. 2, for the first time authorized probate judges to retire voluntarily after attaining the age of 70 years if they had 40 years of service. It provided for compensation based on one-half of that allotted to the office when the judge retired. L.1947, c. 183, § 1. In 1949, the requirement as to service was reduced to 25 years. L.1949, c. 473, § 1. In 1956, L.1955, c. 815, § 5, permitted the county to supplement P.E.R.A. contributions which until then had been made only by the members themselves. In November 1956, plaintiff was elected to his last 6-year term as probate judge.
On May 23, 1961, the legislature adopted an amendment to § 490.12 which is the subject of this litigation and which reads thus (Ex.Sess. L.1961, c. 25, § 1):
"Subd. 5. The probate judges retirement pension as provided herein shall be reduced by the full amount of any retirement pension other than is herein provided received by a probate judge from the state, any political subdivision, or public employees retirement association. * * * In the event the probate judge withdraws from any retirement pension fund other than as herein provided prior to his retirement as a probate judge, the amount contributed by the state or any political subdivision shall be computed and deducted from the probate judge's retirement over a five-year period commencing upon the date of such judge's retirement."
At the same time, § 490.12 was also amended to permit a probate judge who has reached the age of 70 to retire after 20 years of service, or a judge who had reached the age of 65 to retire after 24 years. Judge Gardner at that time was over 70 years of age and hence could retire in May 1961 rather than in January 1962, when he would otherwise have first been eligible under the prior law. Nevertheless, he chose not to do so until December 1962.
When Judge Gardner retired, his salary was $10,000 a year, so that he was eligible to receive $5,000 a year prior to the May 1961 amendment. In addition to the retirement compensation fixed by § 490.12, Judge Gardner received $260 a month from his membership in P.E.R.A. The net result of the May 1961 amendment was to reduce his retirement compensation under § 490.12 from $416.66 a month to $156.66. The statute was amended, it should be noted, about 8 months before he otherwise would have been entitled to enjoy both the benefits of *755 P.E.R.A. in the sum of $260 and the benefits under § 490.12 in the sum of $416.66 a month.[2]
The state argues that there was quid pro quo for reducing Judge Gardner's retirement pay from $416.66 to $156.66 because the statute also conferred on him the right to retire in May 1961, rather than in January 1962. We do not agree. The fact that after 24 years of service the judge's eligibility for retirement was advanced some 7 months was a matter of such trifling significance that it had no bearing on the validity of the amendment. Nor are we impressed by the fact that by retaining P.E.R.A. membership, the judge preserved survivor benefits not available to those who did not belong to P.E.R.A. or had withdrawn from membership. The fact remains that after making substantial contributions to P.E. R.A. from his personal resources for some 24 years, Judge Gardner suddenly found himself in the same situation as those who chose not to contribute to P.E.R.A. He thereby suffered a severe and unexpected economic loss not experienced by colleagues who over the years did not make such provision for retirement.[3] Viewed in any light, the results are so unjust as to compel a holding that Judge Gardner has been denied the equal protection of the laws under U.S. Const. Amend. XIV, § 1, and Minn.Const. art. 1, § 2, and art. 4, § 33.
In dealing with the question of classification, we held in Fabio v. City of St. Paul, 267 Minn. 273, 277, 126 N.W.2d 259, 262:
"* * * The grounds for treating differently persons similarly situated may be slight, provided the discrimination is based on a reasonable distinction which is supported by the facts."
However, it is also the rule that distinctions which separate those included and those excluded from the application of a particular law must be genuine and substantial and must provide a reasonable and not a capricious or arbitrary basis for the imposition of special legislative regulations. City of St. Paul v. Dalsin, 245 Minn. 325, 331, 71 N.W. 2d 855, 859.
Although the purpose of the 1961 amendment was to prevent the payment of more than one tax-supported pension to a single person, until the law was again amended by Ex.Sess.L.1967, c. 38, the deductions from Judge Gardner's retirement pay were not limited to the total amount paid by the county on his behalf to P.E.R.A. As a result, under the 1961 amendment he would ultimately have been deprived not only of the amount contributed by the county but of an amount which represented his own contributions as well. Consequently, we find that as to Judge Gardner and any other judge similarly situated the provisions of Ex.Sess. L.1961, c. 25, § 1, subd. 5, are invalid.
Reversed.
NOTES
[1] Minn.St.1953, § 353.02, subd. 3 (repealed by L.1957, c. 935, § 27, effective July 1, 1957).
[2] In recognition of the injustice of deducting from the retirement benefits the entire amount of P. E. R. A. benefits received by a probate judge, including the judge's own contributions, the legislature in 1967 amended Minn.St. 490.12, subd. 5, to deduct only the amounts paid by the county toward P. E. R. A. benefits. Ex. Sess.L.1967, c. 38, § 1.
[3] "* * * Whether it be in the field of sports or in the halls of the legislature it is not consonant with American traditions of fairness and justice to change the ground rules in the middle of the game." Hickey v. Pension Board of City of Pittsburgh, 378 Pa. 300, 310, 106 A. 2d 233, 238, 52 A.L.R.2d 430.
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 21, 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee, No. 03-4190
(D. Utah)
v. (D.Ct. No. 2:01-CR -507-DS)
ROBERT SCOTT NOVOSEL, also
known as Bob Novosel, also known as
Joe Novosel, also known as Bob
Novosell,
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before BR ISC OE, O’BRIEN, Circuit Judges, and H EA TO N, District Judge. **
This panel granted appellant’s M otion to Stay M andate and Permit
Supplemental briefing on February 11, 2005, and to file instanter the pleading
received from appellant titled “Petition for Rehearing or Supplemental Pleading.”
Appellee was granted leave to file a response. After examining the briefs and
*
This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
**
The Honorable Joe Heaton, United States District Judge for the Western District
of Oklahoma, sitting by designation.
appellate record, this panel has determined unanimously that oral argument would
not materially assist the determination of the supplemental briefing in this appeal.
See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument.
Pursuant to a plea agreement, on September 11, 2002, Novosel pled guilty
to possession of a chemical (red phosphorus) used to manufacture a controlled
substance (methamphetamine) and possession with intent to distribute five grams
or more of actual methamphetamine. For its part, the Government agreed to
recommend a three-level downward adjustment for acceptance of responsibility
(USSG §3E1.1) and to file a motion pursuant to 18 U.S.C. § 3553(e) based on
Novosel’s substantial assistance in the prosecution of another individual.
Novosel was released pending sentencing, then absconded and failed to appear at
sentencing. He was apprehended four months later. Novosel eventually admitted
to absconding from pretrial release supervision and failing to appear for
sentencing. As a result of these admissions, the Government sought an
obstruction of justice adjustment (USSG §3C1.1) and argued Novosel was no
longer entitled to an acceptance of responsibility adjustment. It also informed the
court it was no longer willing to file a § 3553(e) motion. After increasing the
base offense level by two for obstruction of justice and denying an acceptance of
responsibility adjustment, the court sentenced Novosel to 110 months
-2-
imprisonment. 1
Novosel appealed, alleging the Government breached the plea agreement by
unilaterally declaring that his absconding violated the plea agreement, thereby
relieving the Government from its plea agreement obligations. W e affirmed.
United States v. Novosel, 2004 W L 1406319 (10th Cir. June 24, 2004)
(unpublished). Subsequently, Novosel requested rehearing en banc, which was
denied on February 2, 2005. Two days later, he filed a M otion to Stay M andate
and to Permit the Filing of a Petition for Rehearing or O ther Pleading in Order to
Raise a Booker Claim. On February 8, 2005, Novosel filed a supplemental
pleading, arguing his sentence violates the remedial holding in United States v.
Booker,-- U.S.--,125 S.Ct. 738 (2005). 2 On February 11, 2005, we granted
Novosel’s motion to stay the mandate and to file a supplemental pleading and
allowed the Government thirty days in which to respond to his supplemental
pleading. The Government filed its response on M arch 14, 2005. Exercising
1
Because Novosel was sentenced pursuant to the 2002 edition of the United States
Sentencing Guidelines Manual, all guideline citations refer to the 2002 edition, unless
noted otherwise.
2
In Booker, the Supreme Court extended its holding in Blakely v. Washington, 542
U.S. 296, 124 S.Ct. 2531 (2004), to the federal sentencing guidelines, holding that the
Sixth Amendment requires “[a]ny fact (other than a prior conviction) which is necessary
to support a sentence exceeding the maximum authorized by the facts established by a
plea of guilty or a jury verdict [to] be admitted by the defendant or proved to a jury
beyond a reasonable doubt.” Booker, 125 S.Ct. at 756. To remedy the constitutional
infirmity of the guidelines, Booker invalidated their mandatory nature, requiring the
district court to consult them in an advisory fashion. Id. at 756-57 (severing and excising
18 U.S.C. §§ 3553(b)(1), 3742(e)).
-3-
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm.
I. Discussion
Novosel did not raise his Booker claim in the district court. 3 Thus, we
review for plain error. 4 United States v. Gonzalez-Huerta, 403 F.3d 727, 730
(10th Cir. 2005) (en banc). “Plain error occurs w hen there is (1) error, (2) that is
plain, which (3) affects substantial rights, and which (4) seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” Id. at 732. W e
have discretion to notice plain error. F ED . R. C RIM . P. 52(b). Here, Novosel
concedes he admitted to the quantity of drugs used to determine his base offense
level 5 and to the conduct supporting the obstruction of justice adjustment. 6
3
The only objection Novosel raised to the presentence report concerned the
probation officer’s calculation of the criminal history category as level V. He claimed
one of the convictions used to support this calculation should be stricken based on an
absence of proof. The district court agreed, lowering Novosel’s criminal history category
to level IV.
4
Novosel did not waive his right to appeal a sentence imposed in violation of the
law or based on an incorrect application of the guidelines.
5
At the change of plea hearing and in the plea agreement, Novosel admitted he
possessed with intent to distribute 9.3 grams (5.1 grams pure) of methamphetamine. The
indictment, to which he pled, specifically charged him with possession with intent to
distribute five grams or more of actual methamphetamine. Pursuant to the guidelines, he
was assigned a base offense level of 26, which is the base offense level for an offense
involving at least five grams but less than twenty grams of actual methamphetamine. See
USSG §2D1.1 (c)(7)(assigning a base offense level of 26 for “at least 5 G but less than 20
G of Methamphetamine (actual). . .”).
6
Initially, Novosel denied violating the conditions of his pretrial release.
Therefore, on June 5, 2003, an evidentiary hearing was held. At that hearing, Novosel
changed course, admitting to violating his pretrial release conditions by inter alia
-4-
How ever, he claims his sentence still violates Booker because he was sentenced
pursuant to the mandatory guidelines. W e refer to this type of error as non-
constitutional Booker error. Gonzalez-Huerta, 403 F.3d at 731-32. Applying the
plain error test, we conclude Novosel cannot satisfy its fourth prong.
“Under the fourth prong of plain-error review , a court may exercise its
discretion to notice a forfeited error only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id. at 736. If “non-
constitutional Booker error” is involved, the standard for satisfying the fourth
prong is “demanding”— the defendant must show that the error is “particularly
egregious” and that our failure to notice it would result in a “miscarriage of
justice.” United States v. Dazey, 403 F.3d 1147, 1178 (10th Cir. 2005)
(quotations omitted). W e have recognized that in most cases involving
non-constitutional Booker error the defendant will be unable to satisfy the fourth
prong. See United States v. Trujillo-Terrazaz, 405 F.3d 814, 820-21 (10th Cir.
2005) (recognizing the difficulty in establishing the fourth prong in cases
involving non-constitutional Booker error but finding that defendant had satisfied
the fourth prong). This case is no exception.
Novosel received a sentence within the national norm as established by the
guidelines and there is no mitigating evidence supporting a lower sentence. See
Gonzalez-H uerta, 403 F.3d at 738-39 (considering in fourth prong analysis whether
absconding from pretrial supervision and failing to appear at sentencing.
-5-
the defendant received a sentence within the guidelines/national norm and whether
the record supported a lower sentence). At sentencing, the judge, in denying an
acceptance of responsibility adjustment, noted: “I certainly was w illing to give him
acceptance previously, but the conduct following that is, I am just afraid, negated.
It’s tied my hands with respect to what I feel I can do for him.” (R. Vol. III at 4.)
He further acknowledged that he was initially disposed to helping Novosel but “his
disregard or disrespect for his counsel and for the Court and the system and law
enforcement, I just don’t know that I feel that I can give him consideration for
acceptance.” (Id. at 10.) These statements demonstrate it was not the mandatory
nature of the guidelines which restricted the judge from exercising any leniency, but
rather, Novosel’s own conduct, which included not only absconding from pretrial
release supervision but fleeing w hen officers sought to re-apprehend him. W hile w e
recognize that the judge sentenced Novosel at the low end of the guideline range
because he believed the sentence was “rather lengthy” (id.), there is no indication
the judge would impose a different sentence on remand, even under a purely
discretionary guideline scheme. Indeed, even on remand the district court would be
required to consult the guidelines, and Novosel’s behavior while on pretrial release
supervision would impact any consideration of 18 U.S.C. § 3553(a) 7 factors. See
7
Section 3553(a) states in relevant part:
(a) Factors to be considered in imposing a sentence.--The court shall impose a
sentence sufficient, but not greater than necessary, to comply with the purposes set
forth in paragraph (2) of this subsection. The court, in determining the particular
-6-
Booker, 125 S.Ct. at 764 (“W ithout the ‘mandatory’ provision, the [Sentencing
Reform Act of 1984] nonetheless requires judges to take account of the Guidelines
together w ith other sentencing goals” contained in 18 U.S.C. § 3553(a).).
II. Conclusion
Based on the above, we AFFIRM the judgment of the district court.
Entered by the C ourt:
sentence to be imposed, shall consider--
(1) the nature and circumstances of the offense and the history and characteristics of
the defendant;
(2) the need for the sentence imposed--
(A) to reflect the seriousness of the offense, to promote respect for the law, and
to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training,
medical care, or other correctional treatment in the most effective manner . .
..
-7-
Terrence L. O ’Brien
United States Circuit Judge
-8-
03-4190, United States v. Novosel
BRISCO E, Circuit Judge, dissenting:
I previously dissented from the majority’s conclusions that (1) the
government did not unilaterally declare that Novosel had breached the plea
agreement and (2) the district court made findings that satisfied the requirements set
forth in United States v. Guzman, 318 F.3d 1191 (10th Cir. 2003), i.e., “to
determine w hether Novosel breached the agreement and, if so, whether to release
the government from its obligations and commitments.” United States v. Novosel,
102 Fed. Appx. 138, 145, 2004 W L 1406319, *6 (10th Cir. June 24, 2004) (Briscoe,
J., dissenting). Because I would reverse and remand for further proceedings to
determine whether either Novosel or the government breached the plea agreement
and what effect any such breach may have had, I would not reach the Booker
sentencing error now asserted by Novosel.
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16-915
Coleman v. City of New York, et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE NOTATION ‘SUMMARY ORDER’). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 21st day of April, two thousand seventeen.
5
6 PRESENT: JOHN M. WALKER, JR.,
7 DENNIS JACOBS,
8 BARRINGTON D. PARKER,
9 Circuit Judges.
10
11 - - - - - - - - - - - - - - - - - - - -X
12
13 VINCENT COLEMAN,
14 Plaintiff–Appellant,
15
16 -v.- 16-915
17
18 THE CITY OF NEW YORK, POLICE OFFICER
19 MELISSA D. LENTO, POLICE OFFICER
20 MARGARET MERENDINO,
21 Defendants–Appellees.*
22
23 - - - - - - - - - - - - - - - - - - - -X
24
* The Clerk of Court is respectfully directed to amend
the official caption to conform with the above.
1
1 FOR PLAINTIFF-APPELLANT: MICHAEL P. MANGAN; Mangan Ginsberg
2 LLP, New York, NY.
3
4 FOR DEFENDANTS-APPELLEES: MAX O. MCCANN, Fay Ng for Zachary
5 W. Carter, Corporation Counsel fo
6 the City of New York.
7
8
9 Appeal from the judgment of the United States District Court
10 for the Eastern District of New York (Vitaliano, J.).
11 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
12 DECREED that the judgment of the district court be AFFIRMED.
13
14 Vincent Coleman appeals from the judgment of the district
15 court (Vitaliano, J.) dismissing his claim for malicious
16 prosecution brought under 42 U.S.C. § 1983. We assume the
17 parties’ familiarity with the underlying facts, the procedural
18 history, and the issues presented for review.
19 In January 2009, Vincent Coleman was pulled over by officers
20 Margaret Merendino and Melissa Lento for failing to yield to
21 oncoming traffic while making a left turn. The details of his
22 interaction with the officers at the stop are unclear and some
23 are disputed; but it is undisputed that Coleman identified
24 himself as a retired officer, that the exchange became
25 contentious, that Coleman told Officer Merendino to call a
26 supervisor, and that Coleman abruptly drove away when he believed
27 Merendino was “stalling” him. According to Officer Merendino,
28 the side mirror on Coleman’s car struck her as Coleman drove
29 away, knocking her to the ground. (Officer Lento corroborates
30 Merendino’s account, but whether she was in a position to see
31 is disputed.) Merendino and Lento returned to their patrol car
32 and followed Coleman with their lights and sirens on. Coleman
33 stopped again several blocks away. Merendino and Lento waited
34 for a sergeant to arrive, and then Coleman was arrested.
35 Coleman was charged with two counts of assault in the second
36 degree (one count for the use of a deadly instrument--his
37 vehicle--and one count because the alleged victim was a police
38 officer); one count of assault in the third degree; one count
39 of obstructing governmental administration; one count of
40 unlawful fleeing of a police officer in the third degree; one
2
1 count of reckless endangerment in the second degree; one count
2 of reckless driving; three violations for failure to obey traffic
3 signals; and one violation for speeding. The day after his
4 arrest, Coleman was arraigned and released without bail. A few
5 months later, in May 2009, the prosecutor moved to dismiss the
6 two second-degree assault counts (which were the only felony
7 counts). The reasons the prosecutor stated on the record were
8 that this was Coleman’s first arrest, Officer Merendino was not
9 seriously injured, and the complainant was amenable to
10 dismissal. The other non-traffic criminal counts were
11 dismissed on speedy trial grounds in December 2010. The traffic
12 offenses (including misdemeanor reckless driving) remained
13 until Coleman accepted an adjournment in contemplation of
14 dismissal (“ACD”) in January 2011.
15 Coleman filed this suit against the officers; relevant to
16 this appeal, he pleaded claims of malicious prosecution under
17 42 U.S.C. § 1983. The district court granted summary judgment
18 in favor of the defendants, ruling that the malicious prosecution
19 claims failed because the officers had probable cause to bring
20 the charges. On appeal, we affirmed in part but vacated the
21 dismissal with respect to malicious prosecution on the assault
22 charges. 585 F. App’x 787 (2d Cir. 2014). We concluded that
23 the malicious prosecution claims were properly dismissed with
24 respect to the other charges because “there indisputably was
25 probable cause” for them; but, because Coleman denied striking
26 Merendino with his mirror, the existence of probable cause for
27 the assault charges turned on a disputed issue of fact. Id. at
28 788-89. We remanded for further proceedings solely on a claim
29 of malicious prosecution for the assault charges.
30 On remand, defendants moved in limine to dismiss the
31 malicious prosecution claim on the grounds that (1) Coleman did
32 not receive a favorable termination of the two counts of assault
33 that the prosecutor moved to dismiss, and (2) even though there
34 was a favorable termination in the misdemeanor assault due to
35 a speedy trial dismissal, Coleman could not show an independent
36 deprivation of liberty resulting from the prosecution of any
37 of the assault charges. With notice to Coleman, the district
38 court converted the motion to a summary judgment motion and
39 granted it. Coleman brought the instant appeal.
3
1 We review the district court’s grant of summary judgment
2 de novo, drawing all inferences in favor of the non-moving party.
3 Young v. Cty. of Fulton, 160 F.3d 899, 901, 902 (2d Cir. 1998).
4 The elements of malicious prosecution under § 1983 are
5 “substantially the same” as the elements under New York law,
6 and “the analysis of the state and the federal claims is
7 identical.” Boyd v. City of N.Y., 336 F.3d 72, 75 (2d Cir. 2003)
8 (quotation marks omitted). “To establish a malicious
9 prosecution claim under New York law, a plaintiff must prove
10 (1) the initiation or continuation of a criminal proceeding
11 against plaintiff; (2) termination of the proceeding in
12 plaintiff’s favor; (3) lack of probable cause for commencing
13 the proceeding; and (4) actual malice as a motivation for
14 defendant’s actions.” Manganiello v. City of N.Y., 612 F.3d
15 149, 161 (2d Cir. 2010) (internal quotation marks omitted).
16
17 Because a malicious prosecution claim brought under § 1983
18 is grounded in the Fourth Amendment, see Albright v. Oliver,
19 510 U.S. 266, 274-75 (1994), the plaintiff must also establish
20 another element in addition to the state tort requirements: a
21 post-arraignment1 deprivation of liberty that rises to the level
22 of a constitutional “seizure.” See id.; Singer v. Fulton County
23 Sheriff, 63 F.3d 110, 116 (2d Cir. 1995).
24
25 Coleman fails to show such a seizure, so we need not consider
26 favorable termination. Since Coleman was released without bail
27 after his arraignment, the only post-arraignment deprivation
28 of liberty he suffered was the ongoing requirement of appearing
29 in court (more than a dozen times over two years). That might
30 be sufficient, see Rohman v. N.Y.C. Transit Auth., 215 F.3d 208,
31 215-16 (2d Cir. 2000), except that it is not solely attributable
32 to the assault charges, which are the only remaining charges
33 for which Coleman could have a malicious prosecution claim.
1
The tort of malicious prosecution relates to deprivations of liberty
pursuant to legal process--meaning either post-arraignment or as a
result of arrest pursuant to warrant. Deprivations of liberty from
the moment of warrantless arrest until arraignment are not pursuant
to legal process, and therefore implicate the separate tort of false
arrest. Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 116-17 (2d Cir.
1995).
4
1 Even if the assault charges had never been, Coleman still would
2 have had the obligation to appear on account of the other criminal
3 charges (which cannot support a malicious prosecution claim,
4 because they were indisputably supported by probable cause) and
5 the traffic code violations (which cannot support a malicious
6 prosecution claim because they were terminated unfavorably to
7 Coleman by ACD). It is Coleman’s burden to show a
8 post-arraignment deprivation of liberty that resulted from the
9 prosecution that he alleges was unsupported by probable cause;
10 he has not sustained it.
11 Accordingly, and finding no merit in appellant’s other
12 arguments, we hereby AFFIRM the judgment of the district court.
13 FOR THE COURT:
14 CATHERINE O’HAGAN WOLFE, CLERK
5
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291 F.Supp.2d 1338 (2003)
Matt L. LEAVITT, D.O., Leavitt Management Group, Inc., and Leavitt Medical Group, P.C., Plaintiffs,
v.
John P. COLE, M.D., Defendant.
No. 6:03-CV-154-ORL-31DAB.
United States District Court, M.D. Florida, Orlando Division.
November 17, 2003.
*1339 *1340 Steven E. Siff, Michael Garrett Austin, McDermott, Will & Emery, Miami, FL, for Plaintiff.
Robin Uricchio Byrd, Christopher Annunziato, Holland & Knight, LLP, Morey Raiskin, Lowndes, Drosdick, Doster, Kantor & Reed, P.A., Janice A. Kelly, Boehm, Brown, Fischer & Harwood, P.A., Orlando, FL, Guy B. Bailey, Jr., Bailey & Dawes, Miami, FL, Andrew K. Stutzman, Jason K. Cohen, Stradley Ronon Stevens & Young, LLP, Philadelphia, PA, for Defendant.
ORDER
PRESNELL, District Judge.
This case is before the Court on Plaintiffs' Motion to Dismiss Defendant's Counterclaim (Doc. 53), and Defendant's Response thereto (Doc. 59). The Court, having reviewed the parties' submissions and the relevant law, grants in part and denies in part the Motion to Dismiss.
I. Background[1]
*1341 Defendant, John P. Cole, M.D. ("Dr. Cole"), practices medicine in the field of hair restoration. From August 2001 to October 2002, Dr. Cole engaged in that business in affiliation with Plaintiffs, Matt L. Leavitt, O.D. ("Dr.Leavitt"), Leavitt Management Group, Inc. ("Leavitt Management"), and Leavitt Medical Group, P.C. ("LMG") (collectively, "Leavitt Affiliates"). Dr. Cole and the Leavitt Affiliates did not amicably part ways.
On December 27, 2002, the Leavitt Affiliates filed a two-count Verified Complaint (Doc. 2) against Dr. Cole alleging causes of action for state-law defamation (libel) and injurious falsehood (trade libel). Subsequently, on September 8, 2003, Dr. Cole filed a four-count Counterclaim against the Leavitt Affiliates. Specifically, Dr. Cole's Counterclaim includes two counts (I and IV) concerning statements that Leavitt Affiliates' representatives allegedly uttered and two counts (II and III) concerning statements that Dr. Leavitt allegedly uttered.
On September 30, 2003, the Leavitt Affiliates filed the instant Motion to Dismiss in which they assert that Dr. Cole's Counterclaim fails to state a claim upon which relief can be granted. They argue that the Counterclaim's allegations are woefully inadequate in light of Florida-law pleading requirements, and to the extent Dr. Cole asserts claims for injurious falsehood or slander per quod, Dr. Cole has failed to plead special damage as required by federal law. On October 20, 2003, Dr. Cole responded, asserting that Florida's pleading requirements do not apply in this case, his Counterclaim alleges four claims of per se slander, and he need not plead special damage.
II. Standard of Review
In ruling on a motion to dismiss, a trial court must view the complaint in the light most favorable to the plaintiff, Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), and must limit its consideration to the pleadings and any exhibits attached thereto. FED.R.CIV.P. 10(c). See also GSW, Inc. v. Long County, Ga., 999 F.2d 1508, 1510 (11th Cir.1993). The court will take the complaint's allegations as admitted by the defendants and liberally will construe them in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969). The court will not dismiss a complaint for failure to state a claim unless it appears beyond a doubt that the plaintiff cannot prove any set of facts that support a claim for relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).
If a case is in federal court based on diversity of citizenship, the forum state's law governs the substantive claims, but federal law governs the specificity with which to allege them. Caster v. Hennessey, 781 F.2d 1569, 1570 (11th Cir.1986) (citations omitted). Although a forum state may apply a heightened pleading requirement, a federal court should, with limited exceptions, look instead to Federal Rule of Civil Procedure ("Rule") 8(a), which requires simply that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." FED.R.CIV.P. 8(a); Caster, 781 F.2d at 1570. Generally, a complaint need only "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley, 355 U.S. at 47, 78 S.Ct. 99. A slander claim may suffice if it sets forth the allegedly slanderous statement and generally describes the manner and to whom it was uttered. See Caster, 781 F.2d at 1570.
III. Analysis
At issue is the proper characterization of the claims set forth in Dr. Cole's *1342 Counterclaim and, further, whether those claims have been pleaded with the requisite level of specificity.
The claim of injurious falsehood traditionally involves damage to a property interest, while the claim of slander involves damage to a person's personal reputation. See Old Plantation Corp. v. Maule Indust. Inc., 68 So.2d 180, 181-82 (Fla.1953) (comparing "slander of title"[2] with "slander"). Although closely related, id., these claims may meaningfully be distinguished.
Injurious falsehood essentially concerns "intentional interference with another's economic relations." Salit v. Ruden, McClosky, et al., P.A., 742 So.2d 381, 386 (Fla. 4th DCA 1999). Although the cause of action developed to redress damage to property, it also redresses damage to business interests from disparagement reflecting upon the business' existence or character, or the manner in which the business is conducted. See id. at 387-88 (citing W. PAGE KEETON, ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 128 at 966 (5th ed.1984)).
Slander concerns damage to personal reputation. In this regard, a false statement is slanderous per se:
if, when considered alone without innuendo: (1) it charges that a person has committed an infamous crime; (2) it charges a person with having an infectious disease; (3) it tends to subject one to hatred, distrust, ridicule, contempt, or disgrace; or (4) it tends to injure one in his trade or profession.
Richard v. Gray, 62 So.2d 597, 598 (Fla. 1953) (citations omitted). For instance, a statement tending to injure one in his trade or profession is a falsehood directed at a person's professional competence or fitness to engage in a given profession. See White v. Fletcher, 90 So.2d 129, 131 (Fla.1956); Campbell v. Jacksonville Kennel Club., 66 So.2d 495, 497 (Fla.1953); see also 19 FLA. JUR. 2d Defamation and Privacy §§ 33-34.
Under the common law,[3] the nature of a claim affects the specificity required to plead it properly. For instance, whether one must plead special damage depends on if the person's claim concerns slander per se or, alternatively, it concerns slander per quod or injurious falsehood.
On one hand, there is the claim of self-evident (per se) slander, for which damages are presumed. See Commander v. Pedersen, 116 Fla. 148, 156 So. 337, 340 (1934), overruled in part on other grounds, Campbell, 66 So.2d at 498. As exemplified above, the fact that injury to a person's reputation results from per se slander is a fact of common notoriety of which courts take judicial notice; per se slander necessarily imports damage. Id. at 341. Consequently, under the common law, a claim for per se slander can stand without pleading or proof of actual (economic) damage. See id.
On the other hand, there are the claims of slander in context (per quod) and injurious falsehood, for which damages are not presumed. Slander per quod does not necessarily import damage; the words on their face in their usual and natural signification are not injurious, but are injurious only as a consequence of extrinsic facts, such as innuendo. See Piplack v. Mueller, 97 Fla. 440, 121 So. 459, 459 (1929). Likewise, *1343 to state a claim for injurious falsehood, that is, a claim for defamation of property, has, under the common law, required special damage to be pled, presumably because damage derives only from context, e.g., the sale of property.[4]See Salit, 742 So.2d at 388. But to say that for claims of slander per quod and injurious falsehood the common law requires special damage to be pled begs the question: what, according to the common law, is "special damage"?
Under the common law, "special damage" does not denote a singular concept, nor does it engender a set pleading requirement. This is evident from the survey of the common law in Ratcliffe v. Evans, [1892] 2 Q.B. 524, 528, 531. There, a British appellate court found specifically in regard to slander per quod and injurious falsehood that "special damage," from among the term's various uses, means actual loss. Id. 528-29. The court held that the degree of specificity with which the actual loss ought to be pled depends on what is reasonable under the circumstances. Id. at 531-33. In this regard, the court indicated that if it is reasonably possible to identify specific customers whose business was lost, the customers names should be pleaded; if that is not practicable, specific allegations showing a decline in an established business' receipts is sufficient. See id.
Ratcliffe's holding entered federal-court jurisprudence with Erick Bowman Remedy Co. v. Jensen Salsbery Laboratories, 17 F.2d 255, 259 (8th Cir.1926). Directly or indirectly, several injurious falsehood cases have cited Erick Bowman for its iteration of Ratcliffe's pleading requirements. See, e.g., Browning v. Clinton, 292 F.3d 235, 245-46 (D.C.Cir.2002); Schoen v. Washington Post, 246 F.2d 670, 672 & n. 3 (D.C.Cir.1957); Testing Sys., Inc. v. Magnaflux Corp., 251 F.Supp. 286, 291 (E.D.Pa.1966). The Seventh Circuit has properly recognized, however, that Erick Bowman predated the adoption of the Federal Rules of Civil Procedure. Continental Nut Co. v. Robert L. Berner Co., 345 F.2d 395, 397 (7th Cir.1965). This Court must follow the Federal Rules. Caster, 781 F.2d at 1570.
For general pleading purposes, Rule 8(a)(2) requires a pleading to set forth "a short and plain statement of the claim showing that the pleader is entitled to relief." FED.R.CIV.P. 8(a)(2). Rule 9(g) provides, however, that "[w]hen items of special damage are claimed, they shall be specifically stated." Id. 9(g). Again, but in the context of the Federal Rules, this begs the question: what is "special damage"?
Although Rule 9(g) has been interpreted to apply to claims of slander per quod and injurious falsehood, see, e.g., Browning, 292 F.3d at 245-46, that interpretation appears flawed in light of modern pleading practice. In Browning, the court failed to recognize what Ratcliffe, and accordingly the common law, means by "special damage." See id. at 245. In the context of slander per quod and injurious falsehood, "special damage" denotes more the cause of action for actual loss, than the remedy of damages. See Ratcliffe, 2 Q.B. at 528, 531-33. Ultimately, Ratcliffe addresses the certainty and particularity with which the common law insists that facts be pled to support the claim for actual loss:
*1344 As much certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles.
Id. In this regard, Ratcliffe reflects the common law's insistence on fact pleading, id., an insistence that is now the exception, not the rule, in federal court, see FED. R.CIV.P. 8(a)(2), (9)(b).
Rule (9)(b) requires that "the circumstances constituting fraud or mistake shall be stated with particularity." Id. 9(b). Contrast that wording with Rule 9(g), that requires, "[w]hen items of special damage are claimed, they shall be specifically stated." Id. 9(g) (emphasis added). Rule 9(g) should be read as remedy-focused a requirement that parties specify the types of "special damage" they seek to recover. See e.g., Botosan v. Fitzhugh, 13 F.Supp.2d 1047, 1053 (S.D.Cal.1998) (finding emotional distress and attorney's fees items of special damage for purposes of Rule 9(g) in an Americans with Disabilities Act case). To this end, Ratcliffe is again instructive.
Ratcliffe warns that the term "special damage," "which [is] intelligible enough in particular contexts, tends, when successively employed in more than one context and with regard to different subject-matter, to encourage confusion in thought." Ratcliffe, 2 Q.B. at 529. With this in mind, the court distinguished three common law conceptualizations of "special damage." Id. at 528-29. Each has been subsumed by a different Federal Rule requirement.
First, "special damage" may denote a standing requirement for jurisdictional purposes: the necessity of alleging individualized loss, apart from loss experienced by the general public. Id. In this regard, the Federal Rules require that a pleading set forth "a short and plain statement of the grounds upon which the court's jurisdiction depends...." FED.R.CIV.P. 8(a)(1).
Second, "special damage" may, as in the case of slander per quod and injurious falsehood, denote the gist of a claim for actual economic loss "called variously in old authorities ... `particular damage' [or] ... 'special or particular cause of loss'...." Ratcliffe, 2 Q.B. at 528, 531-32 (citations omitted). In this regard, the Federal Rules require "a short and plain statement of the claim showing that the pleader is entitled to relief." FED.R.CIV.P. 8(a)(2).[5]
Third, "special damage" may denote the particular damage beyond the ordinary or general damage resulting from invasion of a plaintiff's right and "for which he ought to give warning in his pleadings in order that there may be no surprise at the trial." Ratcliffe, 2 Q.B. at 528. In this regard, the common law appears concerned with proper notice, a concern that the Federal Rules most likely address with the following requirement: "When items of special damage are claimed, they shall be specifically stated." FED.R.CIV.P. 9(g).
This Court thus views Rule 9(g) as concerned with giving proper notice of certain types of damage.[6] Although it might yield *1345 greater notice in some instances if Rule 9(g) were read to require pleading facts with particularity for certain claims, more probably, it would simply provide convenient legal grounds to block tenuous claims before discovery, e.g., Browning, 292 F.3d at 245-46. This latter use appears inconsistent with Rule 1 and modern concepts of notice pleading. See FED.R.CIV.P. 1, 8(a); Conley, 355 U.S. at 47, 78 S.Ct. 99; Caster, 781 F.2d at 1570. The Court concludes, therefore, that to state a claim for slander per quod or injurious falsehood a party need only meet Rule 8's liberal pleading requirements.[7]
A. Claims Against the Leavitt Affiliates
Count I. Dr. Cole alleges in Count I that: (1) representatives of the Leavitt Affiliates informed Dr. Cole's prior patients that Dr. Cole had retired and ceased performing hair transplant surgery; (2) this statement was false and the representatives knew it to be false upon its utterance; (3) the statement was intended to influence persons to refrain from seeking Dr. Cole's services; and (4) as a result of the statement, Dr. Cole suffered a loss of patients and patient referrals. Dr. Cole's Counterclaim does not specify the nature of the claim asserted in Count I.[8]
Under Florida law, a claim of slander involves injury to one's personal reputation. See White, 90 So.2d at 131; Campbell, 66 So.2d at 497; see also 19 FLA. JUR. 2d Defamation and Privacy §§ 33-34. Although it is conceivable that Dr. Cole complains in Count I of some innuendo associated with the statement regarding his retirement,[9] this would, at best, render the claim as one for slander per quod. See Piplack, 121 So. at 459. The most natural reading of Count I, however, is as a claim for injurious falsehood, which involves injury to property or some advantageous relation. See Salit, 742 So.2d at 387-88; Ratcliffe, 2 Q.B. at 524-25, 529, 532.
The allegations in Count I describe acts from which certain damages are natural and imminently foreseeable. A patient who has received treatment from a specific doctor at a clinic would very likely be dissuaded from continuing to seek or recommend his services if the clinic staff said the doctor retired. This is precisely the damage Dr. Cole has alleged, and it is best known to the Leavitt Affiliates which returning patients were told Dr. Cole had retired. The Court, therefore, finds that Count I gives more than sufficient notice of a claim for injurious falsehood.
Count IV. Dr. Cole alleges in Count IV that representatives of the Leavitt Affiliates made various false and per se slanderous statements about Dr. Cole. Essentially, Dr. Cole alleges that representatives of the Leavitt Affiliates: (a) told one of Dr. Cole's patients that the Leavitt Affiliates released Dr. Cole because the quality of his work was not good and he rushed through his procedures; (b) told one of Dr. Cole's patients not to seek Dr. Cole's services because the Leavitt Affiliates had to perform numerous corrective surgical procedures *1346 on Cole's prior patients; (c) masqueraded as representatives of Dr. Cole in calling one of Dr. Cole's patients to schedule a follow-up appointment after the Leavitt Affiliates and Dr. Cole dissolved their association; and (d) at the Leavitt Affiliates' Washington, D.C. office, made derogatory statements about Dr. Cole's services to his patients. Count IV fails to allege damage.
Of Count IV's allegations, only paragraphs (a) and (b) sufficiently give notice of slander per se. The statements they describe strike at Dr. Cole's professional competence and fitness to engage in his profession. See Auld v. Holly, 418 So.2d 1020, 1027-28 (Fla. 4th DCA 1982). Although the context of those statements may limit the extent of their damage, neither general nor special damages need be pled to support those claims. See Commander, 156 So. at 341.
The remaining allegations in Count IV, however, fail to plead even a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2) (emphasis added). The masquerading described in paragraph (c), rather than reflecting on Dr. Cole's personal reputation, appears to raise an incomplete claim for fraud. Paragraph (d) essentially turns on a conclusion that certain unknown statements were "derogatory." That paragraph fails reasonably to give notice of the allegedly slanderous statements, see Caster, 781 F.2d at 1570, or to demonstrate that they constitute per se slander. If Dr. Cole wishes to pursue claims based on the matters alleged in paragraphs (c) and (d), he must re-plead Count IV.
B. Claims Against Dr. Leavitt[10]
Count II. Dr. Cole alleges in Count II that Dr. Leavitt committed slander per se in telling various members of the American Board of Hair Restoration Surgery that he received more complaints about Dr. Cole from patients than about any other doctor he ever had on his staff. Under Florida law, "even though the full impact of an alleged defamatory communication must be shown by allegations of inducement, colloquium and innuendo, it is nonetheless actionable per se ... if [it impugns a person's professional competence or fitness to engage in a given profession]." Campbell, 66 So.2d at 498; see also White, 90 So.2d at 131; 19 FLA. JUR. 2d Defamation and Privacy §§ 33-34. In light of this standard, the Court interprets the allegations in Count II to set forth a claim for slander per se. As such, Dr. Cole need not have pled general or special damages to support Count II. See Commander, 156 So. at 341.
Count III. Finally, Dr. Cole alleges in Count III that Dr. Leavitt committed slander per se in telling two doctors that Dr. Cole "had tax problems with the IRS." Under Florida law, this statement, even given a most favorable interpretation, fails to impugn Dr. Cole's professional competence or his fitness to perform hair transplant surgery. See White, 90 So.2d at 131; Campbell, 66 So.2d at 497; see also 19 FLA. JUR. 2d Defamation and Privacy §§ 33-34. Yet although it does not state a claim for slander per se, Count III explicitly alleges the appropriate elements, inter alia damage, to state a claim for injurious falsehood.
*1347 IV. Conclusion
For the foregoing reasons, it is
ORDERED and ADJUDGED that the Motion to Dismiss (Doc. 53) is DENIED in part and GRANTED in part. The Motion is DENIED as to Count I, as to paragraphs (a) and (b) of Count IV, and to the extent Counts II and III are directed against Dr. Leavitt. The Motion is GRANTED and the Counterclaim (Doc. 49) is DISMISSED without prejudice as to paragraphs (c) and (d) of Count IV and to the extent Counts II and III are directed against the Leavitt Affiliates. If Dr. Cole wishes to re-plead these matters, he must do so within 20 days.
DONE and ORDERED in Chambers, Orlando, Florida this ______ day of November, 2003.
NOTES
[1] The background facts are taken, in part, from Defendant's Counterclaim, which the Court must accept as true for purposes of this Order.
[2] "Injurious falsehood" is also known as "slander of title." Collier County Pub. Co., Inc. v. Chapman, 318 So.2d 492, 494 (Fla. 2d DCA 1975) (citing W. PROSSER, LAW OF TORTS 915 (4th ed.1971)).
[3] This analysis refers to the common law in the present tense because to the extent it has not been abrogated by statue, it remains the law of Florida. Florida law, furthermore, still follows to some extent the heightened pleading requirements of the common law. See Caster, 781 F.2d at 1570
[4] Property does not have a reputation in the sense of a natural person. See Erick Bowman Remedy Co. v. Jensen Salsbery Laboratories, 17 F.2d 255, 257 (8th Cir.1926). Generally, property's repute is valuable only in a transactional sense. See id. This seems particularly evident from the requirement that a shareholder alleging injurious falsehood must, instead of pleading diminution in stock value, plead "realized loss," i.e., the shareholder sold the stock at a loss. See Salit, 742 So.2d at 388.
[5] Since damages are not presumed in these cases, the claim must include an allegation that the wrongful conduct caused actual economic loss.
[6] To be sure, this is a fairly narrow reading of Rule 9(g), but enough concern existed to warrant a recently added requirement of initial disclosures in regard to damages. FED. R.CIV.P. 26(a)(1)(C). Before that requirement, Rule 9(g) was perhaps the best means of ensuring that an unwitting defendant not be blindsided by claims for certain types of damages not explicitly pled. Prejudice to such a defendant would have weighed against allowing amendment of the pleadings to conform with the evidence at trial, see id. 15, and might have barred recovery of the unpled damages. Under the current Federal Rules, however, the Court can only wonder what, if any, purpose Rule 9(g) still serves.
[7] The Court vacates its May 12, 2003 Order (Doc. 29) requiring "special damage" to be pled.
[8] Although Dr. Cole argues in his brief that these allegations properly set forth a claim for slander per se, a party's brief does not constitute or alter any part of a pleading.
[9] For example, it is possible that the statement was made in such a way as to imply that, due to a lack of fitness to perform hair transplant surgery, Dr. Cole did the public a favor by retiring.
[10] Counts II and III, on their face, do not allege claims against Leavitt Management or LMG. Although it does not appear to be Dr. Cole's intent to hold those entities responsible for Dr. Leavitt's alleged statements, if Dr. Cole wishes to pursue such claims, he must re-plead Counts II and III to state some predicate for vicarious liability. The following discussion concerns only whether Counts II and III are sufficient to state a claim against Dr. Leavitt.
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45 F.3d 1351
40 ERC 1123, 25 Envtl. L. Rep. 20,539
WASHINGTON TROUT, et al., Plaintiffs-Appellants,v.McCAIN FOODS, INC., Defendant-Appellee.
No. 93-35857.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Oct. 5, 1994.Decided Jan. 24, 1995.
William Kloos, Johnson & Kloos, Eugene, OR, for plaintiffs-appellants.
Jerry R. Neal, Preston Gates & Ellis, Spokane, WA, and Lori A. Terry, Preston Gates & Ellis, Seattle, WA, for defendant-appellee. Ms. Terry and Mr. Neal wrote the brief, Mr. Neal argued the appeal.
Appeal from the United States District Court for the Eastern District of Washington.
Before: WOOD,* HUG and TANG, Circuit Judges.
HARLINGTON WOOD, Circuit Judge:
1
Washington Trout, the United Food and Commercial Workers, Local 1439, and the Central Basin Audubon Society brought a Clean Water Act citizen suit against McCain Foods alleging violations of 33 U.S.C. Sec. 1251 et seq., and R.C.W. Sec. 90.48.010 et seq., based on the discharge of pollutants from a potato processing plant owned by the defendant. The district court dismissed the lawsuit for lack of subject matter jurisdiction after determining that the plaintiffs had not complied with the notice provisions of 33 U.S.C. Sec. 1365 and 40 C.F.R. Sec. 135.3(a).1 Specifically, the district court found that the plaintiffs had not properly provided the dates of the alleged violations or the addresses and phone numbers of any of the plaintiffs as required by the statute and regulation. Plaintiffs appeal.
2
On February 25, 1992, plaintiffs' attorney, Bill Kloos, sent McCain Foods [McCain] a sixty-day notice under the Clean Water Act [CWA] alleging that McCain's potato processing plant in Othello, Washington was discharging pollutants into the Owl Creek and/or its tributaries without a National Pollutant Discharge Elimination System [NPDES] permit. The letter stated in part that "the United Food and Commercial Workers, Local 1439, among perhaps others, intend to file a suit against McCain for violations of the Clean Water Act." Regarding the potential plaintiffs, the letter did not provide the address and phone number of the named plaintiff, nor did it furnish the identity, address, and phone number of Washington Trout and the Central Basin Audubon Society. Further, the notice failed to specifically identify the dates of the alleged violations. The letter alleged that "[t]his pollution is substantial, longstanding, continuing, and unpermitted by an NPDES permit."2
3
After receiving the notice, representatives for McCain communicated with Kloos during the sixty-day notice period regarding the alleged violations. In the course of these discussions, neither Washington Trout nor Audubon was mentioned as a potential plaintiff.
4
On June 15, 1992, the Union, Washington Trout, and Audubon filed a citizen suit under the Act. The Union was dismissed from the suit four months later when it went into trusteeship. The defendant then moved for summary judgment alleging the notice was defective because it did not (1) identify Washington Trout or Audubon as potential plaintiffs; (2) contain the address and telephone number for the Union; or (3) specify the dates of any alleged violations. The district court held that under Hallstrom v. Tillamook County, 493 U.S. 20, 110 S.Ct. 304, 107 L.Ed.2d 237 (1989), fulfilling the notice requirements under 40 C.F.R. 135.3(a) was a mandatory precondition to bringing suit under the Clean Water Act, and therefore dismissed the complaint for lack of subject matter jurisdiction.
5
We review de novo a district court's decision to dismiss a claim for lack of subject matter jurisdiction. Smith v. United States, 873 F.2d 218, 219 (9th Cir.1989); see also Abrams v. Commissioner, 814 F.2d 1356, 1357 (9th Cir.1987); McIntyre v. United States, 789 F.2d 1408, 1410 (9th Cir.1986).
6
The Clean Water Act allows a citizen to bring a private suit against alleged violators, but requires specific notice to be given to the suspected polluter. 33 U.S.C. Sec. 1365(a), (b). The statute's notice section provides:
7
No action may be commenced--
8
(1) under subsection (a)(1) of this section--
9
(A) prior to sixty days after the plaintiff has given notice of the alleged violation (i) to the Administrator, (ii) to the State in which the alleged violation occurs, and (iii) to any alleged violator of the standard, limitation, or order, ...
10
33 U.S.C. Sec. 1365(b). Under the regulations, the notice must include sufficient information to allow the recipient "to identify the specific standard, limitation, or order alleged to have been violated, the activity alleged to constitute a violation, the persons or person responsible for the alleged violation, the location of the alleged violation, the date or dates of such violation, and the full name, address, and telephone number of the person giving notice." 40 C.F.R. 135.3(a) (1994).
11
The Supreme Court addressed the sixty-day notice requirement in Hallstrom v. Tillamook County, 493 U.S. 20, 110 S.Ct. 304, 107 L.Ed.2d 237 (1989). Hallstrom involved a citizen suit brought to enforce the waste disposal regulations promulgated under the Resource Conservation and Recovery Act of 1976 [RCRA]. Under the regulations, the RCRA includes a sixty-day notice provision that requires plaintiffs to notify the violator, the State, and the Environmental Protection Agency of their intent to sue. 42 U.S.C. Sec. 7604.3 The issue presented for review was whether the compliance with the sixty-day notice provision was a mandatory precondition to suit or if it could be disregarded by the district court at its discretion. Hallstrom, 493 U.S. at 23, 110 S.Ct. at 307.
12
In Hallstrom, the petitioners owned a dairy farm located next to the Tillamook County landfill. Id. In believing that the landfill violated RCRA standards, the petitioners sent the respondent a notice stating their intent to sue. Id. When the petitioners commenced an action, the respondent moved for summary judgment on the grounds that petitioners failed to notify Oregon's Department of Environmental Quality and the Environmental Protection Agency [EPA] of their intent to sue. Id. at 23-24, 110 S.Ct. at 307.
13
The district court denied the respondent's motion and held that the notice defect was cured by the petitioner's formal notification to the State and EPA on March 2, 1983, one day after the motion for summary judgment. Id. at 24, 110 S.Ct. at 307-08. The district court went on to find that the respondent did violate the RCRA. Id. On appeal, the Ninth Circuit held the petitioners' failure to comply with the sixty-day notice provision deprived the district court of subject matter jurisdiction. Hallstrom v. Tillamook County, 844 F.2d 598, 600-01 (9th Cir.1987). The Ninth Circuit adopted the approach followed by the First and Seventh Circuits;4 an approach that focuses on the plain language of the statute and the policy concerns underlying the notice requirement. Id. at 600. The court of appeals held that the plain language [of Sec. 6972(b) ] commands sixty days notice before commencement of the suit, and to accept anything less would constitute a " 'judicial amendment in abrogation of explicit, unconditional statutory language.' " Hallstrom, 844 F.2d at 600 (quoting Garcia v. Cecos Int'l, Inc., 761 F.2d 76, 78 (1st Cir.1985)). The court determined that a strict construction of the notice requirement would best further the statute's goal of first triggering administrative action to provide the citizen relief--relief the individual might otherwise seek in the courts. Id. at 601. The Ninth Circuit remanded to the district court with instructions to dismiss.
14
In order to resolve the conflict among the circuits, the Supreme Court granted certiorari. The Court found, under the plain language of the statute, the choice was clear. The Court held that "[u]nder a literal reading of the statute, compliance with the 60-day notice provision is a mandatory, not optional, condition precedent for suit." Hallstrom, 493 U.S. at 26, 110 S.Ct. at 309. Further, because it is a general rule that an action barred by the terms of the statute must be dismissed, the petitioners' claim was remanded to the district court with instructions to dismiss. Id. at 33, 110 S.Ct. at 312.
15
The Supreme Court's conclusion in Hallstrom is applicable in this suit involving the CWA. The plaintiffs are bringing an action as citizens under 33 U.S.C. Sec. 1365(a), and therefore must satisfy the notice requirements under 33 U.S.C. Sec. 1365(b). The letter dated February 25, 1992 sent by Mr. Kloos does not provide the necessary information as required under the regulations. The notice fails to name two of the organizations that eventually became the only plaintiffs, namely Audubon and Washington Trout.
16
Plaintiffs argue that Hallstrom is distinguishable because in Hallstrom the petitioners provided no "presuit notice." Therefore, they contend, the Supreme Court held that there could be no suit without any presuit notice. The plaintiffs' understanding of the Hallstrom decision is misplaced. In Hallstrom, the petitioners did send a notice to the respondent that they argued qualified as notice under the statute. See Hallstrom, 493 U.S. at 23, 110 S.Ct. at 307-08. The issue in Hallstrom was whether the notice was sufficient under the regulation's mandate--whether the notice requirement should be strictly construed or liberally applied by the district courts. The Court held the notice requirement under the regulations was to be strictly construed. Therefore, the Hallstrom decision does not stand for the fact that without any notice, there could be no suit. Rather, the Court held that the notice requirements set forth in the regulation must be satisfied before the case may be heard in federal district court.
17
Plaintiffs also argue that technical deficiencies in the notice do not defeat jurisdiction because the purposes of giving presuit notice are served. As noted by other courts, the purpose of giving a sixty-day notice is to allow the parties time to resolve their conflicts in a nonadversarial time period. Once the suit is filed, positions harden and compromise is less likely. Second, the notice alerts the appropriate state or federal agency, so administrative action may initially provide the relief the parties seek before a court must become involved. Here, the notice Mr. Kloos served, fails to satisfy either purpose. The notice provided to McCain and the copy sent to the EPA Administrator did not provide the names of the two additional plaintiffs. Therefore, because neither the EPA nor McCain knew other plaintiffs were involved, they were not in a position to negotiate with the plaintiffs or seek an administrative remedy. This made any sort of resolution between the parties during the notice period an impossibility.
18
We are guided by the Court's decision in Hallstrom and find its holding applicable to the notice requirements under the Clean Water Act. The notice provided to McCain was insufficient as required by the regulations promulgated under the CWA. Therefore, the district court was correct in dismissing the action for lack of subject matter jurisdiction.
19
AFFIRMED.
*
The Honorable Harlington Wood, Jr., Senior Circuit Judge for the Seventh Circuit Court of Appeals, is sitting by designation
1
The district court treated McCain's motion for summary judgment as a motion to dismiss for lack of subject matter jurisdiction
2
The plaintiffs argue that by stating in their notice that the "pollution is substantial, longstanding, and continuing" they have complied with the regulation's requirement of specifying the dates of the violation. Because of our resolution of the case on other grounds, we need not reach this issue
3
The sixty-day notice provision in Hallstrom was modeled after Sec. 304 of the Clean Air Act Amendments, 84 Stat. 1706, as amended, 42 U.S.C. Sec. 7604. Since 1970, a number of federal statutes have incorporated notice provisions patterned after Sec. 304. The notice provision involved in this case, 33 U.S.C. Sec. 1365(b), is also modeled after Sec. 304. See Hallstrom v. Tillamook County, 493 U.S. at 23 n. 1, 110 S.Ct. at 307 n. 1
4
See, e.g., Garcia v. Cecos Int'l, Inc., 761 F.2d 76 (1st Cir.1985); Highland Park v. Train, 519 F.2d 681 (7th Cir.1975), cert. denied, 424 U.S. 927, 96 S.Ct. 1141, 47 L.Ed.2d 337 (1976). Cf., Hempstead County & Nevada County Project v. United States Environmental Protection Agency, 700 F.2d 459 (8th Cir.1983); Natural Resources Defense Council v. Callaway, 524 F.2d 79 (2d Cir.1975); Natural Resources Defense Council v. Train, 510 F.2d 692 (D.C.Cir.1974)
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856 F.2d 192
129 L.R.R.M. (BNA) 2128
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.AMERICAN POSTAL WORKERS UNION, DETROIT DISTRICT AREA LOCAL,AFL-CIO, Plaintiff- Appellee,v.UNITED STATES POSTAL SERVICE and John M. Horne, FieldDivision General Manager/Postmaster, DetroitDivision, United States Postal Service,Defendants- Appellants.
No. 87-1725.
United States Court of Appeals, Sixth Circuit.
Aug. 15, 1988.
1
Before KENNEDY and WELLFORD, Circuit Judges, and HERMAN J. WEBER, District Judge*.
ORDER
2
Defendants appealed from a preliminary injunction which, inter alia, ordered the Postal Service to immediately release union stewards who requested release time unless a specifically identified business reason could be articulated which would preclude immediate release. The district court also ordered expedited arbitration of the pending grievance.
3
On or about June 1, 1988, the parties settled this matter. They agree that the underlying dispute is moot, but disagree as to effect on the appellee's unresolved motion before the district court for an award of costs and attorney's fees.
4
We conclude that the appropriate disposition is to dismiss the appeal as moot and to remand the instant matter to the district court for consideration of the appellee's motion for costs and attorneys' fees. University of Texas v. Camenisch, 451 U.S. 390, 391 (1981); Jersey Central Power & Light Co. v. State of New Jersey, 772 F.2d 35, 36 (3d Cir.1985). Accord Honig v. Students of Calif. School for the Blind, 471 U.S. 148, 151 (1985) (per curiam).
5
It is so ORDERED.
*
The Honorable Herman J. Weber, U.S. District Judge for the Southern District of Ohio, sitting by designation
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17-2065
Edrei v. Bratton
17‐2065
Edrei v. Bratton
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_______________
August Term, 2017
(Argued: March 27, 2018 Decided: June 13, 2018)
Docket No. 17‐2065
_______________
ANIKA EDREI, SHAY HORSE, JAMES CRAVEN, KEEGAN STEPHAN, MICHAEL
NUSBAUM, and ALEXANDER APPEL,
Plaintiffs‐Appellees,
– v. –
LIEUTENANT JOHN MAGUIRE, individually and in his official capacity, OFFICER
MIKE POLETTO, individually and in his official capacity, Shield No. 3762.
Defendants‐Appellants,
WILLIAM JOSEPH BRATTON, New York Police Department (NYPD) Commissioner,
CITY OF NEW YORK.
Defendants.*
_______________
* The Clerk of Court is directed to amend the official caption to conform to the above.
B e f o r e:
KATZMANN, Chief Judge, WALKER, and POOLER, Circuit Judges.
_______________
Plaintiffs, six individuals who participated in and observed protests in
Manhattan on the night of December 4–5, 2014, sued Lieutenant John Maguire
and Officer Mike Poletto (“defendants”) of the New York Police Department
under 42 U.S.C. § 1983. The complaint alleges, among other things, that
defendants violated plaintiffs’ Fourteenth Amendment right against excessive
force when they used a long‐range acoustic device (“LRAD”), also known as a
“sound gun,” to disperse non‐violent protesters, resulting in significant injuries,
including hearing loss. Defendants moved to dismiss, arguing, in part, that they
were entitled to qualified immunity because the complaint neither stated a
Fourteenth Amendment claim nor alleged a violation of clearly established law.
The district court rejected both arguments, reasoning that LRADs, which can
cause injuries comparable to those caused by other tools that are capable of
excessive force, fit within the scope of existing precedents. We AFFIRM.
_______________
GIDEON O. OLIVER (Michael Decker and Elena L. Cohen, on the brief),
Law Offices of Gideon Orion Oliver, New York, NY, for
Plaintiffs‐Appellees.
INGRID R. GUSTAFSON (Richard Dearing and Devin Slack, on the brief),
for Zachary W. Carter, Corporation Counsel of the City of
New York, New York, NY, for Defendants‐Appellants.
_______________
KATZMANN, Chief Judge:
This appeal arises out of the New York Police Department’s (“NYPD” or
“Department”) response to a December 2014 protest in Manhattan. The six
2
individual plaintiffs allege that Lieutenant John Maguire and Officer Mike
Poletto (“defendants”) violated their Fourteenth Amendment rights by using a
long‐range acoustic device (“LRAD”), also known as a “sound gun,” to compel
them and other non‐violent protesters to exit the street. The district court held
that the plaintiffs adequately alleged an excessive force violation and, accepting
the allegations as true, that the defendants were not entitled to qualified
immunity. This case comes to us on an interlocutory appeal from that order.
We, like the district court, consider only the factual allegations in the
complaint and the videos it incorporates. With this limitation, we are compelled
to affirm the denial of qualified immunity. In a narrow ruling, we hold that
purposefully using a LRAD in a manner capable of causing serious injury to
move non‐violent protesters to the sidewalks violates the Fourteenth
Amendment under clearly established law. At the same time, recognizing that
the complaint before us provides only the vantage point of the plaintiffs, we
caution that once both sides present evidence—especially about what the officers
observed and knew—the defendants may yet be entitled to qualified immunity.
3
BACKGROUND
I. Factual History
On an interlocutory appeal from the denial of qualified immunity, our
jurisdiction is limited to deciding whether, based on facts alleged by the plaintiffs
or stipulated to by the parties, “the immunity defense is established as a matter
of law.” Salim v. Proulx, 93 F.3d 86, 90 (2d Cir. 1996). For purposes of this appeal,
the defendants accept as true the allegations set forth in this factual history.
A. LRAD Technology and the NYPD
LRADs are acoustic weapons developed for the U.S. military in the wake
of the deadly terrorist attack on the USS Cole in 2000. “If mounted aboard a Navy
ship, the device’s loudspeaker could be used to ‘warn off’ boats that came too
close. If those warnings are ignored, the device could be used to send out sound
at a dangerously high level . . . to cause pain/hearing damage to try to repel the
attack.” First Amended Complaint (“FAC”) ¶ 11. This technique, known as “area
denial,” has been used in both military and crowd control settings. Id.
An LRAD can produce louder sound than a traditional amplification
device, such as a megaphone, and can project over much greater distances. To
achieve this effect, LRADs concentrate sound into a 30‐ to 45‐degree cone‐shaped
4
beam. They also reshape acoustic energy to produce flatter sound waves that (1)
reduce dampening as the wave travels and (2) interact with the air to create
additional frequencies within the wave. Alex Pasternack, The New Sound of Crowd
Control, Motherboard (Dec. 17, 2014), https://motherboard.
vice.com/en_us/article/qkve7q/the‐new‐sound‐of‐crowd‐control (last accessed
Mar. 11, 2018). This can produce volumes of up to 146 decibels. For context, the
threshold for human discomfort begins between 120 and 140 decibels and the
National Institute of Health cautions that hearing loss can result from short
exposure to sounds at or above 110 to 120 decibels.
The New York Police Department purchased two Model 3300 LRADs
before the 2004 Republican National Convention in New York City. Like other
LRADs, the Model 3300 has two functions. One, it can serve as a “loudspeaker”
to broadcast police commands over vast distances. And, two, the “area denial”
function can “propel piercing sound at higher levels . . . than are considered safe
to human ears.” App. at 85. According to a Department representative speaking
at the time of the Convention, the LRADs were purchased to direct crowds to
safety in the event of a calamity.
5
Following the convention, the NYPD used its LRADs sporadically and,
then, mainly as loudspeakers. In 2010, the NYPD’s Disorder Control Unit tested
the Model 3300 at an empty parking lot in the Bronx. Measured from 320 feet
away, the spoken voice commands registered at 102 decibels and the area denial
mode at 110 decibels. The Department did not take readings within the 320‐foot
range, which it described as a “potential danger area.” A report analyzing the
test results observed that, in the “dangerous range (above 120 decibels), this
device can cause damage to someone’s hearing and may be painful.” FAC ¶ 11.
Shortly thereafter, the NYPD purchased the more portable Model 100X,
which also has loudspeaker and area denial functions. The 100X’s product sheet
boasts that it has a maximum volume of 136 decibels at one meter and the
manufacturer guidelines caution not to use it within 10 to 20 meters of people. A
diagram on the 100X’s control panel shows a red beam emanating from the front
of the device and instructs: “DO NOT ENTER WITHIN 10 METERS DURING
CONTINUOUS OPERATION.” Id. ¶ 25.
B. The Protest
On December 3, 2014, a Staten Island grand jury declined to indict the
NYPD officer who placed Eric Garner, an unarmed black man, in a fatal
6
chokehold. The next day, protests arose across the nation. In Manhattan,
hundreds took to the streets to denounce police brutality. The plaintiffs, many of
whom are activists and journalists, participated in and documented the protest.
Over the course of the evening and into the pre‐dawn hours, the demonstrators
marched across the city, escorted by NYPD officers.
Sometime after 1:00 a.m., as the protest crossed through the intersection of
57th Street and Madison Avenue, officers made several arrests. Videos of the
scene (which are incorporated into the complaint) show a crowd—cordoned off
from the arrests by a chain of officers—gathered in a semicircle to observe.
Unable to proceed through the intersection, cars idled in the street as protesters
streamed past. Meanwhile, many onlookers inched closer to take photographs
only to be waved off by officers or told to “get back.” Although some
demonstrators demanded that the officers “let [the arrestees] go,” none
interfered with the arrests. Several plaintiffs reported hearing what sounded like
a glass bottle breaking, but it did not appear to strike or injure anyone.
Then, with no warning, NYPD officers discharged pepper spray. Several
plaintiffs who had been watching the arrests began to flee. Seconds later the wail
of a high‐pitched alarm began pulsing though the streets. The defendants had
7
activated the LRAD’s area denial function. According to plaintiffs, they had not
been ordered to disperse and no such order is audible on the video.
After several bursts from the alarm tone, Lieutenant Maguire and Officer
Poletto, both members of the Disorder Control Unit, began broadcasting
commands. One officer held the briefcase‐sized device in front of him while the
other trailed behind and spoke into a corded microphone. “[T]his is the New
York City Police Department. You must not interfere with vehicular traffic. You
must remain on the sidewalk. If you do interfere with vehicular traffic, you will
be placed into custody.” Video 1 at 3:23‐3:41. Variants of this refrain, punctuated
by alarm tones, were repeated for about three minutes as the officers walked the
length of 57th Street between Madison and Park Avenues. Although many people
in the LRAD’s path “were already fleeing on the sidewalks,” the officers
followed close on their heels, sometimes from fewer than ten feet. FAC ¶
124.Plaintiffs maintain that the defendants “knew or should have known that the
use of the LRAD could cause permanent hearing damage and other injury.” Id. ¶
130.
In the days and weeks following the protest, each plaintiff reported
physical injuries. Many claimed that they experienced significant ear pain,
8
prolonged migraines, vertigo, and ringing in the ears. Most sought medical
treatment. One plaintiff “had extreme difficulty with his hearing.” Id. ¶ 370. His
doctor explained that “the pressure of the extreme level of the noise from the
LRAD had pushed a bone in his ear inwards, impacting and damaging a nerve in
his ear.” Id. ¶ 372. His hearing improved after a course of steroidal medication.
Several plaintiffs allege that they are now afraid to attend protests, which, for
some, has harmed their professional opportunities as journalists.
II. Procedural History
In March 2016, the six plaintiffs sued Lieutenant Maguire and Officer
Poletto, as well as then‐NYPD Commissioner William Bratton and the City of
New York. They asserted claims under 42 U.S.C. § 1983 premised on violations of
the First, Fourth, and Fourteenth Amendments, as well as related municipal
liability and New York state law claims. Defendants moved to dismiss the
amended complaint, arguing that plaintiffs had failed to state a claim and that
the officers were entitled to qualified immunity.
The motion was granted in part and denied in part. The district court
found that plaintiffs had adequately pleaded excessive force in violation of the
Fourteenth Amendment (as well as the related municipal liability claim) and
9
denied defendants qualified immunity. It also permitted the state‐law assault
and battery claims to proceed, including the claims against the City under a
theory of respondeat superior. The district court dismissed the other claims,
including all claims against Commissioner Bratton.
On the Fourteenth Amendment claim, the district court reasoned that
“[t]he use of the [Model 100X] as a projector of powerfully amplified sound is no
different than other tools in law enforcement’s arsenal that have the potential to
be used either safely or harmfully,” such as stun grenades. Special App. at 16. As
to qualified immunity, the district court rejected defendants’ argument that
amplified noise did not constitute unconstitutional force under existing
precedent. “[T]here is much case law discussing the need for careful, vicinity‐
specific considerations when using tools like distraction devices,” the court
explained, and, if the circumstances were as plaintiffs allege, these analogous
cases would have informed the officers of the illegality of their actions. Id. at 21.
Lieutenant Maguire and Officer Poletto timely filed this interlocutory
appeal.
10
DISCUSSION
I. Appellate Jurisdiction and Standard of Review
The sole issue on appeal is whether defendants are entitled to qualified
immunity on the Fourteenth Amendment claim. Ordinarily a district court order
denying a motion to dismiss is not appealable. See 28 U.S.C. § 1291. Yet the
Supreme Court has “repeatedly . . . stressed the importance of resolving
immunity questions at the earliest possible stage in litigation.” Hunter v. Bryant,
502 U.S. 224, 227 (1991) (per curiam). This is because qualified immunity
represents not simply a bar on liability but also an “entitlement not to stand trial
or face the burdens of litigation.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
Accordingly, denying qualified immunity “conclusively determines that the
defendant[s] must bear the burdens of discovery; is conceptually distinct from
the merits of the plaintiff[s’] claim; and would prove effectively unreviewable on
an appeal from a final judgment.” Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009)
(internal quotation marks and brackets omitted). It follows that, “[p]rovided it
turns on an issue of law,” the district court’s denial of qualified immunity is a
final reviewable order. Id. (internal quotation marks omitted).
11
“Of course, [by] presenting [their] immunity defense on a Rule 12(b)(6)
motion instead of a motion for summary judgment[, the defendants] must accept
the more stringent standard applicable to this procedural route.” McKenna v.
Wright, 386 F.3d 432, 436 (2d Cir. 2004). Briefly summarized, we accept the
complaint’s factual allegations as true and draw all reasonable inferences in the
plaintiffs’ favor, including both those that support the claim and “those that
defeat the immunity defense.” Id. This standard represents a “formidable
hurdle.” Id. at 434. Because the facts are undisputed, our review is de novo.
Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 250 (2d Cir. 2001).
II. Qualified Immunity
Assured of our jurisdiction, we turn to the merits. Section 1983 establishes
a private right of action for money damages against state officials, acting “under
color” of law, who violate a constitutional or statutory right. 42 U.S.C. § 1983.
This “deter[s] governmental abuse and remed[ies] unlawful governmental
transgressions.” Newburgh, 239 F.3d at 250. At the same time, “permitting
damages suits against government officials can entail substantial social costs,
including the risk that fear of personal monetary liability and harassing litigation
will unduly inhibit officials in the discharge of their duties.” Anderson v.
12
Creighton, 483 U.S. 635, 638 (1987). To balance the need for accountability and the
potential chilling effect, “the Supreme Court established qualified immunity as
an affirmative defense to § 1983 claims.” Newburgh, 239 F.3d at 250. This defense
is designed to “reduce[] the general costs of subjecting officials to the risks of
trial” by immunizing them from monetary liability “based on unsettled rights.”
Connell v. Signoracci, 153 F.3d 74, 79 (2d Cir. 1998) (internal quotation marks
omitted).
Officers are entitled to qualified immunity “unless a plaintiff pleads facts
showing (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, 563 U.S. 731, 735 (2011) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)). Failure to establish either prong would resolve this case and we
may “exercise [our] sound discretion in deciding which . . . should be addressed
first.” Pearson v. Callahan, 555 U.S. 223, 236 (2009). Like the district court, we
begin with the first prong.
A. Fourteenth Amendment Violation
The right not to be subject to excessive force, perhaps most commonly
associated with the Fourth and Eighth Amendments, can also arise under the
13
Fourteenth. See Graham v. Connor, 490 U.S. 386, 394 (1989); Hemphill v. Schott, 141
F.3d 412, 418 (2d Cir. 1998). This is because “[t]he touchstone of due process,”
which “is protection of the individual against arbitrary action of government,”
Wolff v. McDonnell, 418 U.S. 539, 558 (1974), bars “the exercise of power without
any reasonable justification in the service of a legitimate governmental
objective,” Cty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). When the
government action is executive, rather than legislative, the Supreme Court has
cautioned that “only the most egregious official conduct can be said to be
arbitrary in the constitutional sense.” Lewis, 523 U.S. at 846 (internal quotation
marks omitted). This standard is most readily satisfied when conduct is
“intended to injure in some way unjustifiable by any government interest.” Id. at
849.
While the parties agree that the Fourteenth Amendment establishes a right
against excessive force, they disagree about the relevant test. Defendants
maintain that the proper inquiry is whether the conduct shocks the conscience.
Appellants’ Reply Br. at 11. They argue that this standard includes a subjective
element—whether the officers behaved “maliciously and sadistically for the very
purpose of causing harm.” Appellants’ Br. at 33 (quoting Tierney v. Davidson, 133
14
F.3d 189, 196 (2d Cir. 1998)). According to defendants, this standard is “distinct
from, and more stringent than, objective reasonableness.” Appellants’ Reply Br.
at 11. Plaintiffs counter that conduct shocks the conscience when the use of force
was both “objectively unreasonable” and “intentional, as opposed to negligent.”
Appellees’ Br. at 33. In addressing this disagreement, we apply the law as it
exists at the time of decision. See Whitney v. Empire Blue Cross & Blue Shield, 106
F.3d 475, 477 (2d Cir. 1997) (per curiam).
Defendants are correct that many cases describe the test for excessive force
under the Fourteenth Amendment with the shorthand “shocks the conscience.”
See, e.g., Rochin v. California, 342 U.S. 165, 172 (1952). For many years, courts have
understood this standard to be distinct from the Fourth Amendment’s
prohibition against “unreasonable” government action. See Lewis, 523 U.S. at 842–
43. As recognized in Graham, this distinction reflects the varied sources of
excessive force claims. 490 U.S. at 393–94. Arrestees may invoke the Fourth
Amendment’s prohibition against “unreasonable” seizures. U.S. Const. amend.
IV. Those incarcerated for a criminal conviction draw on the Eighth
Amendment’s ban on “cruel and unusual punishments.” U.S. Const. amend.
15
VIII. Meanwhile, pretrial detainees and non‐incarcerated persons rely on the
constitutional guarantee of “due process.” U.S. Const. amends. V, XIV.
In Johnson v. Glick, this Court identified four illustrative factors for
assessing whether conduct, in the words of Rochin, “shocks the conscience.” 481
F.2d 1028, 1033 (2d Cir. 1973) (Friendly, J.) (quoting Rochin, 342 U.S. at 172). The
factors are: “the need for the application of force, the relationship between the
need and the amount of force that was used, the extent of the injury inflicted, and
whether the force was . . . [inflicted] maliciously or sadistically.” Id. In the
decades since Glick was decided, these factors have continued to guide our
Fourteenth Amendment excessive force analysis. See, e.g., Tierney, 133 F.3d at 199.
But they have never been exhaustive, nor is each factor necessary. See Glick, 481
F.2d at 1033 (stating only that “a court must look to such factors as . . . “). In
particular, we have never treated malice or sadism as a requirement for stating
(or proving) an excessive force claim under a due process theory. Where officials
lacked “any legitimate government objective and [caused] substantial injury,” we
have treated malicious or sadistic conduct as presumptively unconstitutional.
Newburgh, 239 F.3d at 252. But we have also found excessive force under the
Fourteenth Amendment without ever examining an officer’s subjective intent.
16
See, e.g., Robison v. Via, 821 F.2d 913, 924 (2d Cir. 1987); Bellows v. Dainack, 555
F.2d 1105, 1106 & n.1 (2d Cir. 1977).
In 2015 (after the events at issue in this case) the Supreme Court revisited
the Fourteenth Amendment standard in Kingsley v. Hendrickson, 135 S. Ct. 2466
(2015). The question there was whether a pretrial detainee alleging a Fourteenth
Amendment violation must prove that the officers were subjectively aware that
the force was excessive, as in the Eighth Amendment context, or merely that the
force was objectively excessive. 135 S. Ct. at 2470. In resolving this question, the
Court began by clarifying that excessive force claims involve “two separate state‐
of‐mind questions.” Id. at 2472. The first concerns the official’s “state of mind
with respect to his physical acts.” Id. Drawing on its decision in Lewis, the Court
explained that accidental or negligent acts are not subject to Fourteenth
Amendment liability while those committed purposefully, knowingly, or
(perhaps) recklessly are. Id.
The second mental state, and the one at issue in Kingsley, “concerns the
defendant’s state of mind with respect to whether his use of force was
‘excessive.’” Id. On this score, the Supreme Court held that, unlike in the Eighth
Amendment context, the standard for a pretrial detainee suing under the
17
Fourteenth Amendment is “objective” and merely requires showing that “the
force purposely or knowingly used against him was objectively unreasonable.”
Id. at 2472–73. This objective showing can be established through contextual
factors and the Court identified six non‐exhaustive “considerations.” Id. at 2473.
These factors included proportionality or, as the Court described it, “the
relationship between the need for the use of force and the amount of force used.”
Id. They also included related indicia such as “the extent of the plaintiff’s injury;
any effort made by the officer to temper or to limit the amount of force; the
severity of the security problem at issue; the threat reasonably perceived by the
officer; and whether the plaintiff was actively resisting.” Id.
Viewed against the backdrop of this circuit’s Fourteenth Amendment
jurisprudence, Kingsley offers two important insights. First, the objective
standard it announced confirms that the subjective mental state referenced in
Glick and some of this Court’s other precedents is not a necessary showing.
Second, and more significantly, Kingsley used modified terminology to describe
the Fourteenth Amendment standard. Although prior excessive force cases spoke
of whether the official’s conduct “shocks the conscience,” Lewis, 523 U.S. at 846–
18
47 (collecting cases), Kingsley asked whether the force was “objectively
unreasonable,” 135 S. Ct. at 2473. More on this later.
Returning to the case at hand, defendants protest that, contrary to
plaintiffs’ assertion, Kingsley is not the appropriate touchstone for assessing the
alleged Fourteenth Amendment violation. On defendants’ reading, Kingsley’s
holding is doubly inapposite because it is limited to pretrial detainees and did
not abdicate the traditional “shocks the conscience” standard. Both arguments
are unpersuasive.
Defendants’ first—and principal—argument is based on a
misinterpretation of this Court’s earlier statement that Kingsley “addressed only
the legally requisite state of mind required for a pretrial detainee’s excessive
force claims.” Dancy v. McGinley, 843 F.3d 93, 117 (2d Cir. 2016). Defendants
understand this language as limiting Kingsley to pretrial detainees only. But this
ignores the context. Dancy involved a Fourth Amendment excessive force claim
and this Court was distinguishing between principles that applied under the
Fourteenth Amendment and those that governed under the Fourth. See id. It
follows that Dancy had no reason to address Kingsleyʹs applicability to non‐
detainees bringing claims under the Fourteenth Amendment.
19
Moreover, we have not treated the precise factual context at issue in
Kingsley—a pretrial detainee claiming excessive force—as a limitation on the
Fourteenth Amendment standard announced therein. In our one case to engage
closely with Kingsley, we held that its standard applied not just to excessive force
claims, but also to those alleging deliberate indifference toward pretrial
detainees. Darnell v. Pineiro, 849 F.3d 17, 33–34 (2d Cir. 2017). In reaching this
conclusion, the Darnell Court did not apply Kingsley’s language mechanically.
Instead it looked to the sweep and substance of the Supreme Court’s reasoning.
We do the same.
To begin where Kingsley did, “a pretrial detainee can prevail” by alleging
“that the challenged governmental action is not rationally related to a legitimate
governmental objective or that it is excessive in relation to that purpose.” 135 S.
Ct. at 2473–74. As discussed above, this standard is the essence of all Fourteenth
Amendment claims, not merely those brought by pretrial detainees. In Lewis, a
case that involved a non‐detainee, the Supreme Court grounded its analysis in
the same principle: “the touchstone of due process” is protection from “the
exercise of power without any reasonable justification in the service of a
legitimate governmental objective.” 523 U.S. at 845–46 (brackets omitted). What’s
20
more, Kingsley’s reliance on Lewis as the source of the Fourteenth Amendment
standard belies defendants’ suggestion that claims by non‐detainees are subject
to a distinct test. See Kingsley, 135 S. Ct. at 2472–73.1
The distinction Kingsley drew was not between pretrial detainees and non‐
detainees. Instead, it was between claims brought under the Eighth
Amendment’s Cruel and Unusual Punishment Clause and those brought under
the Fourteenth Amendment’s Due Process Clause. 135 S. Ct. at 2475. As the
Court observed, not only do the two clauses use distinct language, but, “most
importantly, pretrial detainees (unlike convicted prisoners) cannot be punished
at all.” Id. (emphasis added). The same is true of non‐detainees, except more so.
After all, with a non‐detainee the government has not even shown probable
cause of criminal activity, much less a public safety (or flight) risk warranting
detention. For this reason, it would be extraordinary to conclude that “pretrial
detainees . . . cannot be punished at all, much less ‘maliciously and sadistically,’”
id., while requiring non‐detainees to prove malice and sadism.
1 Additionally, when the Kingsley defendants argued that Lewis supported a
subjective intent standard, the Court had an opportunity to distinguish its earlier
decision as a case limited to non‐detainees. But the Court did no such thing. Instead, it
explained why that argument misread Lewis’s holding. 135 S. Ct. at 2475.
21
Defendants offer no principled justifications to buttress such an
implausible standard, nor could they. Their argument is contrary to this Court’s
entire body of non‐detainee cases, which have long applied the standard
announced in Glick, a pretrial detainee case. See, e.g., Newburgh, 239 F.3d at 251–
52; Tierney, 133 F.3d at 199. And yet, although defendants acknowledge that
Kingsley represents a new gloss on the pretrial detainee standard, they would
hold the non‐detained plaintiffs to this Court’s prior articulation of the pretrial
detainee standard. To state the argument is to reveal its untenability.2
Shifting gears, defendants contend that Kingsley did not formally overrule
the “shocks the conscience” standard. That may be true, but we think it is beside
the point. This is because defendants’ focus on phrasing reflects an overly
formalistic view of Fourteenth Amendment law. To repeat, the central inquiry
has always been whether the government action was rationally related to a
2 Defendants, moreover, point to no case in our Circuit dealing with non‐
detainees—before or after Kingsley—that treated proof of subjective intent as a
necessary precondition for a successful Fourteenth Amendment excessive force claim.
Thus, even if they could convince us that Kingsley should be cabined to pretrial
detainees (which they cannot), this would not require us to dismiss an excessive force
claim absent an allegation of malice or sadism. Kingsley made explicit what we have
long taken for granted: a government actor’s use of force violates due process when it is
objectively excessive.
22
legitimate government objective. Lewis, 523 U.S. at 846. Although the Supreme
Court has “spoken of the cognizable level of executive abuse of power as that
which shocks the conscience,” this merely showed that the “due process
guarantee does not . . . impos[e] liability whenever someone cloaked with state
authority causes harm.” Id. at 846, 848. Instead, “the Due Process Clause is
violated by executive action only when it can properly be characterized as
arbitrary, or conscience shocking, in a constitutional sense.” Id. at 847 (internal
quotation marks omitted).
As the Supreme Court has observed, “the measure of what is conscience
shocking is no calibrated yard stick”; it merely “point[s] the way.” Id. (internal
quotation marks omitted). Mindful of this indefiniteness, Kingsley is best read as
elaborating on this standard, not abandoning it. Kingsley held that excessiveness
is measured objectively and then identified various considerations that inform
the ultimate Fourteenth Amendment inquiry: whether the governmental action
was rationally related to a legitimate governmental objective. 135 S. Ct. at 2473
(considering such things as the “relationship between the need for the use of
23
force and the amount of force used”).3 To put a finer point on it, Kingsley teaches
that purposeful, knowing or (perhaps) reckless action that uses an objectively
unreasonable degree of force is conscience shocking.4
Although we now hold that Kingsley provides the appropriate standard for
all excessive force claims brought under the Fourteenth Amendment, it bears
emphasizing that this new formulation is but a modest refinement of Glick’s four‐
factor test, on which this Court has long relied. The first three factors identified
in Glick—the need for force, the relationship between the need and the degree of
force used, and the extent of the injury, 481 F.2d at 1033—parallel the six non‐
exhaustive factors identified in Kingsley. Consider Glick’s first factor, the need to
use force. Kingsley effectively disaggregates this into three considerations that all
bear on whether force was necessary. 135 S. Ct. at 2473 (encouraging courts to
consider “the severity of the security problem,” the threat perceived, and
3 Framed in these terms, defendants cannot seriously dispute Kingsley’s logic.
After all, their own brief acknowledges that, “[i]t is where officials take injurious action
with no apparent government interest that this Court has found their conduct conscience‐
shocking.” Appellant’s Br. at 39 (emphasis added).
4 One might argue that this conclusion is in tension with Dancy’s observation that
“Fourth Amendment claims are tied to reasonableness, which is considerably less
demanding” than the Due Process Clause. 843 F.3d at 117. But, once again, because
Dancy focused on the intent standard under the Fourth Amendment, it did not purport
24
“whether the plaintiff was actively resisting”). As for Glick’s next two factors—
“the relationship between the need and the amount of force that was used” and
“the extent of injury inflicted,”481 F.2d at 1033—these are explicitly incorporated
into Kingsley. See 135 S. Ct. at 2473 (highlighting “the relationship between the
need for the use of force and the amount of force used” and “the extent of the
plaintiff’s injury”).
Turning to the fourth Glick factor, whether the force was applied
“maliciously and sadistically for the very purpose of causing harm,” 481 F.2d at
1033, Kingsley explained that this is not a “necessary condition for liability,” 135
S. Ct. at 2476 (emphasis omitted). Instead it is simply one consideration “that
might help show that the use of force was excessive.” Id. (emphasis added). This
interpretation is consistent with our own precedents, which have repeatedly
assessed excessive force claims without looking to subjective intent. See, e.g.,
Robison, 821 F.2d at 924 (holding that the assertion that officers “yanked [a
woman] out [of her car], threw her up against the fender, and twisted her arm
behind her back” was enough to prevent summary dismissal of an excessive
force claim (internal quotation marks omitted)); Bellows, 555 F.2d at 1106 & n.1
to address how Kingsley affected cases brought under the Due Process Clause.
25
(concluding that plaintiff stated an excessive force claim based solely on the
injuries and absence of a legitimate government interest).
Applying Kingsley’s analysis to the allegations at hand, we conclude that
the plaintiffs’ complaint states a Fourteenth Amendment violation. First,
consider the need for force. Under plaintiffs’ account, which we must accept as
true, the security threat posed by the protest was low. The video footage
confirms that the demonstrators were non‐violent and there was a robust police
presence monitoring the crowd. Although someone may have thrown a glass
bottle, this appears to have been an isolated and victimless incident. None of the
onlookers filming and photographing the arrests interfered and additional
officers were on scene to keep protesters at bay. The most significant problem
confronting law enforcement appears to have been traffic disruption caused by
protesters walking in the street. However, while mixing cars and pedestrians
might have presented a hazard, this is the sort of public safety risk common to
large public demonstrations, not necessarily an imminent threat warranting a
significant use of force. In short, on the facts alleged, the “severity of the security
problem” was minimal and the “threat reasonably perceived by the officers” was
negligible. Kingsley, 135 S. Ct. at 2473.
26
In addition, there is no indication that plaintiffs were “actively resisting.”
Id. Quite the opposite: the complaint alleges that once the police began ordering
people to move to the sidewalks the plaintiffs promptly complied. (One plaintiff
admits that he briefly stepped off the curb while yelling a critical comment at the
police. But this was, as most, de minimis resistance.)
Turning to proportionality, the disparity between the threat posed by the
protest and the degree of force is stark. The Department’s 2010 report describes
the purpose of an earlier LRAD model’s area denial function as “send[ing] out
sound at a dangerously high level [to cause] attackers to turn away, or at least, to
cause pain/hearing damage to try to repel [an] attack.” App. at 85 (emphases
added). The control panel on the Model 100X that was used here warned
operators in capital letters that entering within 10 meters of the device during
operation was dangerous. See FAC ¶ 25. The device’s product sheet likewise
listed the LRAD’s maximum volume as 136 decibels at one meter, well above the
120 decibels threshold where pain begins and just short of the 140 decibels at
which the report advised that “[s]hort term exposure can cause permanent
damage.” App. at 86. Exposure to this dangerous volume (which we must
assume from the pleadings) is a severe consequence for blocking traffic.
27
The injuries alleged by the plaintiffs (another Kingsley consideration, see
135 S. Ct. at 2473) are consistent with the report’s projections. They endured
auditory pain, migraines, tinnitus, and hearing loss, of varying degrees and
duration. Several plaintiffs claimed that they still had periodic tinnitus as of the
complaint’s filing (a year and a half after the protest) and at least one plaintiff
said that he experienced constant ringing. Another suffered nerve damage and
hearing loss that required medical treatment. These impairments fit comfortably
on the spectrum of injuries that this Court has found sufficient to state a
Fourteenth Amendment violation. See, e.g., Newburgh, 239 F.3d at 252 (holding
that “head trauma, lacerations, and bruising” constitute a “substantial physical
injury”); Robison, 821 F.2d at 924 (denying qualified immunity for a Fourteenth
Amendment violation when officers caused bruises that lasted “a couple
weeks”).
Kingsley also asks whether the officers tried to “temper or to limit the
amount of force.” 135 S. Ct. at 2473. Nothing in the complaint suggests that they
did. There was no audible dispersal warning before the defendants activated the
area denial function, nor any other visible attempt to move protesters out of the
street. Looking at the force itself, the plaintiffs allege that the officers used the
28
LRAD at close range while “pointing it” at the demonstrators. FAC ¶ 229. In
addition, the alleged injuries support an inference that the LRAD was set to an
extremely high decibel‐level.
Pulling these threads together, plaintiffs’ allegations indicate that the
officers’ use of the LRAD’s area denial function was disproportionate to the
limited security risk posed by the non‐violent protest and caused substantial
physical injuries. Or, stated somewhat differently, the defendants’ use of a device
capable of causing pain and hearing loss was an “exercise of power without any
reasonable justification in the service of a legitimate government objective.”
Lewis, 523 U.S. at 846. Because defendants have chosen to appeal the denial of a
motion to dismiss, we are compelled to accept the allegations as true and must
therefore conclude that the complaint adequately states a Fourteenth
Amendment claim.
B. Clearly Established Law
The remaining question is whether the constitutional right at issue was
“clearly established at the time of the challenged conduct.” al‐Kidd, 563 U.S. at
735 (internal quotation marks omitted). This inquiry “ensure[s] that the official
being sued had fair warning that his or her actions were unlawful.” Terebesi v.
29
Torreso, 764 F.3d 217, 230 (2d Cir. 2014) (internal quotation marks omitted). And,
because officers cannot have fair warning of rights that are not yet established,
we look to precedent in existence at the time of the events. See Anderson, 483 U.S.
at 639. Here, this means that, for purposes of “clearly established law,” we apply
the Fourteenth Amendment analysis from Glick, not the Supreme Court’s 2015
decision in Kingsley.
We begin with the delicate task of defining the right at issue. In doing so,
we must be mindful that, on the one hand, “[c]haracterizing the right too
narrowly to the facts of the case might permit government actors to escape
personal liability.” Newburgh, 239 F.3d at 251. On the other hand, defining clearly
established law at too high a level of generality “avoids the crucial question
whether the official acted reasonably in the particular circumstances that he or
she faced.” Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014).
Here, defendants’ frame the question as “whether the officers violated the
Fourteenth Amendment by using the LRAD 100X to aid in moving protesters to
the sidewalks after the protest became obstructive and potentially violent.”
Appellants’ Br. at 28. This framing puts not one but two thumbs on the scale in
favor of defendants. First, it focuses on the officers’ professed objective—moving
30
protesters onto the sidewalk—while ignoring the degree of force that the officers
allegedly used. Second, it recasts the protest as “violent,” a characterization that,
based on plaintiffs’ allegations and the scene captured in the videos, is at best
arguable. See, e.g., id. at 34 (describing a “large crowd of hostile demonstrators—
who greatly outnumbered and had surrounded the officers, were becoming
violent, and were obstructing traffic”). Perhaps this is an inference that a
factfinder might ultimately make, but at this stage we must draw all inferences in
favor of the plaintiffs, not the defendants.
Defining the Fourteenth Amendment right according to the “particular
circumstances” requires attention to the precipitating events, the government
interest at issue, the degree of force used, and the reasonably anticipated
consequences of the government action. To illustrate, consider the Supreme
Court’s analysis in Plumhoff. The Court began with the context, a “lengthy, high‐
speed pursuit” that “posed a danger both to the officers involved and to any
civilians who happened to be nearby.” 134 S. Ct. at 2023. The officers’ objective
was to “protect those whom [the suspect’s] flight might endanger.” Id. After the
suspect crashed and then tried to speed away, several officers fired a collective 15
shots. Id. at 2024. It was undisputed that this was “deadly force.” Id. at 2021,
31
2022, 2024. Weaving all these circumstances together, the Court addressed
whether it was clearly established in 2004 that a suspect who leads a long and
dangerous car chase has a right not to be subjected to deadly force used to
protect public safety. Id. at 2023–24. The Court held that he did not. Id. Following
this template, and accepting the facts alleged by the plaintiffs, the question here
is whether, in 2014, non‐violent protesters and onlookers, who officers had not
ordered to disperse, had a right not to be subjected to pain and serious injury
that was inflicted to move them onto the sidewalks.
Preliminarily, we address whether this conduct alleges a Fourteenth
Amendment violation under the legal standard applicable in 2014. Although our
earlier discussion drew on Kingsley, the result is the same under Glick’s parallel
factors. To repeat, this Court’s longstanding test for excessive force claims
teaches that force must be necessary and proportionate to the circumstances. See
Glick, 481 F.2d at 1033; see also Newburgh, 239 F.3d at 253 (“[W]hether force is
excessive depends as much upon the need for force as the amount of force
used.”). Here, on the allegations that we must accept as true, the problem posed
by protesters in the street did not justify the use of force, much less force capable
of causing serious injury, such as hearing loss.
32
The most significant difference between the Kingsley factors applied above
and Glick is, of course, the latter’s inquiry into “whether force was applied in a
good faith effort to maintain or restore discipline or maliciously and sadistically
for the very purpose of causing harm.” Glick, 481 F.2d at 1033. But, as our prior
cases show, this evidence has never been necessary for a Fourteenth Amendment
excessive force claim. See, e.g., Robison, 821 F.2d at 924; Bellows, 555 F.2d at 1106 &
n.1. And, when parties choose to present evidence on this point, they can
establish subjective intent through circumstantial evidence. See Blue v. Koren, 72
F.3d 1075, 1084 (2d Cir. 1995). Although the plaintiffs need not allege facts
showing that defendants subjectively intended to use excessive force, we
conclude that, given the gross disparity between the need for force and the level
of pain and injury inflicted, the plaintiffs have sufficiently alleged that the
officers behaved “maliciously and sadistically.” See Newburgh, 239 F.3d at 252
(concluding that the fourth Glick factor was satisfied where the force used “far
surpassed anything that could reasonably be characterized as serving legitimate
government ends”).
The remaining question is whether the right was clearly established.
Would reasonable officers have known that subjecting non‐violent protesters to
33
pain and serious injury simply to move them onto the sidewalks violated the
Fourteenth Amendment? Defendants insist that the circumstances before them
were too dissimilar from then‐existing precedents to provide this notice. They
raise two principal arguments. Neither withstands scrutiny.
First, the defendants deny that it was clearly established in December 2014
that using force in a crowd control context violates due process. In their view,
because this Court has not applied “substantive due process principles to crowd
control,” the officers lacked notice that the right against excessive force applies to
non‐violent protesters. Appellants’ Br. at 37. But that is like saying police officers
who run over people crossing the street illegally can claim immunity simply
because we have never addressed a Fourteenth Amendment claim involving
jaywalkers. This would convert the fair notice requirement into a presumption
against the existence of basic constitutional rights. Qualified immunity doctrine
is not so stingy. In fact, we rebuffed a nearly identical argument in Newburgh.
There, a teacher who brutally assaulted a student insisted that he was entitled to
qualified immunity because the right to be free from excessive force had not been
“applied to the educational setting.” 239 F.3d at 253. Unpersuaded, we declined
34
to adopt such a piecemeal view of Fourteenth Amendment protections. Id. We
see no reason to take a different tack here.
Were this not enough, a wealth of cases inform government officials that
protesters enjoy robust constitutional protections. “[O]ur constitutional
command of free speech and assembly is basic and fundamental and
encompasses peaceful social protest, so important to the preservation of the
freedoms treasured in a democratic society.” Cox v. Louisiana, 379 U.S. 559, 574
(1965); see also Jones v. Parmley, 465 F.3d 46, 56 (2d Cir. 2006) (“[T]he First
Amendment protects political demonstrations and protests . . . .”); Belknap v.
Leary, 427 F.2d 496, 499 (2d Cir. 1970) (Friendly, J.) (recognizing a
“First Amendment right[] to protest peaceably against the war— or anything
else”). Against this backdrop, it would be passing strange to presume that
protesters exercising a foundational constitutional right have weaker substantive
due process rights than citizens in other contexts.
To be sure, government officials may stop or disperse a protest when faced
with an “immediate threat to public safety, peace, or order,” including
“interference with traffic upon the public streets.” Parmley, 465 F.3d at 57
(quoting Cantwell v. Connecticut, 310 U.S. 296, 308 (1940)). But this authority is not
35
without limits. Among other things, officials have an obligation, “absent
imminent harm,” to inform demonstrators that they must disperse, id. at 60, and
may not use unreasonable force, id. at 63. In short, our cases amply establish that
protesters enjoy robust constitutional protection, protection of which reasonable
law enforcement officers are well aware.
In spite of this precedent, defendants, drawing on distinguishable out‐of‐
circuit authority, would have us believe that courts generally conclude that “use
of force in a crowd control context [does] not violate substantive due process.”
Appellants’ Br. at 37 n.12. Hardly. Our sister circuits and district courts in this
Circuit have routinely applied excessive force principles to crowd control
situations. See, e.g., Nelson v. City of Davis, 685 F.3d 867, 882–83 (9th Cir. 2012);
Buck v. City of Albuquerque, 549 F.3d 1269, 1289–90 (10th Cir. 2008); Asociacion de
Periodistas de Puerto Rico v. Mueller, 529 F.3d 52, 59–62 (1st Cir. 2008); Darrah v.
City of Oak Park, 255 F.3d 301, 306–08 (6th Cir. 2001); Duran v. Sirgedas, 240 F.
App’x 104, 112–13 (7th Cir. 2007) (summary order); Piper v. City of Elmira, 12 F.
Supp. 3d 577, 589–96 (W.D.N.Y. 2014). Training our focus on controlling
authority, we see that this Court has repeatedly emphasized that officers
engaging with protesters must comply with the same principles of
36
proportionality attendant to any other use of force. See Parmley, 465 F.3d at 53, 63;
Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 119, 123‐24 (2d Cir. 2004). A
brief summary of these cases is instructive.
In Parmley we refused to condone officers’ assault on protesters who
distributed flyers on a public highway. See 465 F.3d at 52. The record showed
that several dozen protesters had gathered on private property for a lawful
demonstration. Id. At some point, a contingent walked to a nearby highway to
distribute fliers to passing cars. Id. After the protesters left the highway, a large
group of officers stormed onto the private property without “order[ing] the
protesters to disperse or provid[ing] them with any warning or justification for
their actions.” Id. at 53. They went on to assault non‐violent, compliant
protesters, “beating them with . . . riot batons, dragging them by their hair and
kicking them.” Id. Failing to discern a legitimate justification for this violent
response, we readily concluded that that the officers’ motion for summary
judgment based on qualified immunity was properly denied. Id. at 63.
We have also warned officers against gratuitously employing “pain
compliance techniques,” such as bending protesters’ wrists, thumbs, and fingers
backwards. Amnesty Am., 361 F.3d at 119, 123–24. Reasoning that the pain
37
associated with these techniques was “comparable [to] amounts of force” that we
considered unreasonable when “used during the arrest of a nonviolent suspect,”
we concluded that a reasonable factfinder could decide that the force was
excessive. Id. at 124. We elaborated that liability would turn on whether a jury
found either that such techniques were a proportionate response to protesters
purposefully making themselves difficult to arrest or that “the officers
gratuitously inflicted pain in a manner that was not a reasonable response to the
circumstances.” Id. Gratuitous infliction of a pain compliance technique—the
strategy behind the LRAD’s area denial function—is exactly what the current
plaintiffs allege.
Both Parmley and Amnesty America gave the defendants fair warning that
the prohibition on excessive force applies to protesters. This is true even though
both those cases arose under the Fourth Amendment. See Poe v. Leonard, 282 F.3d
123, 137 (2d Cir. 2002) (“Although the Fourth Amendment cases are not on all
fours with [plaintiff’s] claim under the Fourteenth Amendment, they are
instructive . . . .”).5 After all, there is no intuitive reason to think a recalcitrant
Defendants’ reply brief argues that Fourth Amendment cases “cannot establish
5
the law for Fourteenth Amendment purposes.” Appellants’ Reply Br. at 22. This
38
protester who is being arrested has more robust rights than a compliant protester
who is not. Thus, we see no merit in defendants’ argument that they lacked
notice of the substantive due process rights of protesters.
Shifting attention from the protesters to the technology at issue,
defendants’ second argument is that, at the time of the events, the Fourteenth
Amendment did not apply to LRADs. This argument has two parts: First,
defendants contend that the officers cannot be liable because no decision from
this Court or the Supreme Court “held or clearly foreshadowed that it would be
unconstitutional to use an acoustic device under any circumstances,” much less
“under circumstances like those faced by the officers.” Appellants’ Br. at 19, 36–
37 (emphasis omitted). Second, defendants insist that, because LRADs
“function[] solely by sound,” which is not an “instrument[] of force,” a
reasonable officer would not think that the Fourteenth Amendment applied. Id.
at 23; see also id. at 35. We disagree on both fronts.
argument is inconsistent with the practice of the Supreme Court and this Circuit, both
of which cross‐pollinate between Fourth, Eighth, and Fourteenth Amendment contexts.
See, e.g., Graham, 490 U.S. at 396 (relying on language from Glick, a Fourteenth
Amendment case, to explain Fourth Amendment constraints); Hudson v. McMillian, 503
U.S. 1, 9 (1992) (drawing on Glick in the Eighth Amendment context); Medeiros v.
O’Connell, 150 F.3d 164, 170 (2d Cir. 1998) (analyzing Eighth Amendment case law to
39
Defendants’ first argument echoes a common refrain in qualified
immunity cases—“pointing to the absence of prior case law concerning the
precise weapon, method, or technology employed by the police.” Terebesi, 764
F.3d at 237 n.20. But novel technology, without more, does not entitle an officer
to qualified immunity. See Hope v. Pelzer, 536 U.S. 730, 731 (2002) (“[O]fficials can
be on notice that their conduct violates established law even in novel factual
situations.”). In our first encounter with stun grenades, we concluded that,
although neither this Court nor the Supreme Court had addressed that particular
technology, “the Fourth Amendment principles governing police use of force
apply with obvious clarity[] to the unreasonable deployment of an explosive
device in the home.” Terebesi, 764 F.3d. at 237 (internal quotation marks and
citation omitted). Drawing on a decision from the Ninth Circuit, we declared,
“[a]n officer is not entitled to qualified immunity” for lack of notice “every time a
novel method is used to inflict injury.” Id. (quoting Mendoza v. Block, 27 F.3d
1357, 1362 (9th Cir. 1994)). Instead, we instructed that “[s]ome measure of
abstraction and common sense is required with respect to police methods and
weapons.” Id. at 237 n.20. To drive the point home, we listed a series of
define a Fourteenth Amendment right).
40
innovative non‐lethal weapons to which officers should apply common sense,
including “sound guns” or “acoustical weaponry.” Id. Given our call for common
sense in the face of new technology, defendants cannot credibly complain they
lacked notice that the proscription on excessive force applied to acoustic devices.
As to whether LRADs are instruments of force, defendants go astray by
focusing on the mode of delivery rather than the physical effect. Under this
Court’s precedent, a device that has “incapacitating and painful effects” when
used on a person is considered an instrument of force. Tracy v. Freshwater, 623
F.3d 90, 98 (2d Cir. 2010). Applying this standard, we have held that pepper
spray, which employs chemical reactions rather than kinetic energy, “constitutes
a significant degree of force.” Id.6 Drawing on well‐established principles, we
added that because “gratuitous force is unreasonable and therefore excessive[,]
. . . we presume that no reasonable officer could have believed that he was
6 Defendants claim that an LRAD differs from pepper spray because “it includes
a highly effective loudspeaker mode that can help avoid the need for measures
historically regarded as force.” Appellants’ Br. at 23. This is effectively an argument that
LRAD’s are dual‐use devices capable of both exerting dangerous force and serving
valuable, non‐forceful functions. But the same is true of a riot stick, which can both
bludgeon and direct traffic. Rather than absolving the riot stick from scrutiny, this dual
functionality is all the more reason to focus on the particular action and ensuing effect,
not the device itself.
41
entitled to use pepper spray gratuitously against a restrained and unresisting
arrestee.” Id. at 99 n.5. In support, we relied on a First Circuit case concluding
that unprovoked use of pepper spray against members of a nonthreatening
crowd was excessive, an indication that this sort of gratuitous force against
crowds is verboten. Id. (citing Asociacion de Periodistas, 529 F.3d at 60–62).
In Terebesi, to add just one more example, we followed the same approach.
There, the officers urged that they were immune because no precedent
established that the right against excessive force applied to stun grenades. 764
F.3d at 236. But we rejected that argument. Emphasizing the dangerous effects of
these devices, which “cause[] fires, burns, and other injuries,” we held that “a
reasonable officer would [not] think it was constitutional to use these devices in
routine searches.” Id. at 236, 238.
We reach the same conclusion here. Even though sound waves are a novel
method for deploying force, the effect of an LRAD’s area denial function is
familiar: pain and incapacitation. See Tracy, 623 F.3d at 98. In fact, this is what the
LRAD was designed for. As explained in the NYPD’s own report, the purpose of
the area denial function is to “cause pain/hearing damage” that repels those in its
path. App. at 85. Using common sense, any reasonable officer with knowledge of
42
the LRAD’s operations would understand that the area denial function
represents a “significant degree of force.” See Tracy, 623 F.3d at 98.
To recap, assuming the truthfulness of the allegations in the complaint,
and drawing all reasonable inferences in plaintiffs’ favor, the defendants knew or
should have known that the area denial function could cause serious injury.
When engaging with non‐violent protesters who had not been ordered to
disperse, no reasonable officer would have believed that the use of such
dangerous force was a permissible means of moving protesters to the sidewalks.
Whatever legitimate interest the officers had in clearing the street, the use of
sound capable of causing pain and hearing loss in the manner alleged in the
complaint was not rationally related to this end. We therefore conclude that the
district court properly denied the defendants’ motion to dismiss based on
qualified immunity.
* * *
Our decision regarding the defendants’ use of the LRAD is a narrow one.
We do not hold that the Fourteenth Amendment bars law enforcement from
using LRADs. To the contrary, we are confident that, in appropriate
circumstances, following careful study and proper training, LRADs can be a
43
valuable tool for law enforcement. Their usefulness as a long‐range
communications device is plain. We also think that, under certain conditions, an
LRAD that is properly calibrated might be a lawful means of ordering (or
perhaps even compelling) protesters to disperse. We merely hold (1) that, on the
allegations before us, which we must accept as true, the plaintiffs have stated a
Fourteenth Amendment excessive force claim and (2) that purposefully using the
LRAD in a manner capable of causing serious injury to move non‐violent
protesters to the sidewalks violated law that was clearly established as of 2014.
We are also mindful that the complaint before us is just one side of the
story, told from the perspective of the plaintiffs. But courts and juries must assess
excessive force claims from “the perspective of a reasonable officer on the scene,
including what the officer knew at the time, not with the 20/20 vision of
hindsight.” Kingsley, 135 S. Ct. at 2473. It follows that, once the allegations are
tested by evidence, particularly evidence about what the officers saw and knew,
the defendants may yet be entitled to qualified immunity.
We can envision various factual showings that would change the calculus.
One key variable is the state of unrest at the protest. The evidence may show that
the defendants observed a more violent scene than is portrayed in the complaint
44
and incorporated videos. Another key consideration is how the LRAD was used,
most notably the volume of the device and its proximity to protesters and
passersby. And, third, as Kingsley acknowledges, much hinges on what the
defendants knew. Perhaps the defendants had not seen the report on the Model
3300 and lacked knowledge of the LRAD’s harmful effects. The complaint alleges
that the NYPD “has not properly trained its officers” on LRAD use and
acknowledges that Department’s use of force protocols “do not account for
LRAD use.” FAC ¶¶ 98, 412. So perhaps the defendants had received training
but reasonably believed that they were not using the device in an unsafe or
gratuitous manner. Any one of these non‐exhaustive factors could warrant a
reappraisal of qualified immunity.
Finally, we emphasize that when viewing the evidence from the
perspective of a reasonable officer a factfinder must afford “ample room for
mistaken judgments.” Malley v. Briggs, 475 U.S. 335, 343 (1986). This is
particularly true where officers “have obligations that tend to tug against each
other.” Lewis, 523 U.S. at 853.
Their duty is to restore and maintain lawful order,
while not exacerbating disorder more than necessary to
do their jobs. They are supposed to act decisively and to
45
show restraint at the same moment, and their decisions
have to be made in haste, under pressure, and
frequently without the luxury of a second chance.
Id. (internal quotation marks omitted). It follows that a jury or a court viewing
events from the defendants’ perspective must consider not just what the officers
saw and knew, but also the rapidly evolving, uncertain, and tense circumstances
in which they acted. We trust that discovery will provide fuller insight into this
perspective.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s order insofar as
it denied defendants qualified immunity for the Fourteenth Amendment claim.
This case is REMANDED for further proceedings.
46
| {
"pile_set_name": "FreeLaw"
} |
402 U.S. 313 (1971)
BLONDER-TONGUE LABORATORIES, INC.
v.
UNIVERSITY OF ILLINOIS FOUNDATION ET AL.
No. 338.
Supreme Court of United States.
Argued January 14, 1971
Decided May 3, 1971
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.
Robert H. Rines argued the cause for petitioner. With him on the brief were Richard S. Phillips, Paul J. Foley, and Nelson H. Shapiro.
William A. Marshall argued the cause for respondent University of Illinois Foundation. With him on the brief were Charles J. Merriam and Basil P. Mann. Sidney G. Faber argued the cause for respondent JFD Electronics Corp. With him on the brief were Jerome M. Berliner, Robert C. Faber, and Myron C. Cass.
Assistant Attorney General McLaren argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Griswold, Assistant Attorney General Gray, Peter L. Strauss, Howard E. Shapiro, and Walter H. Fleischer.
*314 Briefs of amici curiae were filed by Donald R. Dunner, James B. Gambrell, and W. Brown Morton, Jr., for the American Patent Law Association; by Theodore W. Anderson for the Automatic Electric Co.; by Harold F. McNenny, John F. Pearne, and Walther E. Wyss for the Finney Co.; and by Joseph B. Brennan and Richard D. Mason for the Kawneer Co., Inc.
MR. JUSTICE WHITE delivered the opinion of the Court.
Respondent University of Illinois Foundation (hereafter Foundation) is the owner by assignment of U. S. Patent No. 3,210,767, issued to Dwight E. Isbell on October 5, 1965. The patent is for "Frequency Independent Unidirectional Antennas," and Isbell first filed his application May 3, 1960. The antennas covered are designed for transmission and reception of electromagnetic radio frequency signals used in many types of communications, including the broadcasting of radio and television signals.
The patent has been much litigated since it was granted, primarily because it claims a high quality television antenna for color reception.[1] One of the first infringement suits brought by the Foundation was filed in the Southern District of Iowa against the Winegard Co., an antenna manufacturer.[2] Trial was to the court, and after pursuing the inquiry mandated by Graham v. John Deere Co., 383 U. S. 1, 17-18 (1966), Chief Judge Stephenson held the patent invalid since "it would have been obvious to one ordinarily skilled in the art and wishing to design a frequency independent unidirectional *315 antenna to combine these three old elements, all suggested by the prior art references previously discussed." University of Illinois Foundation v. Winegard Co., 271 F. Supp. 412, 419 (SD Iowa 1967) (footnote omitted).[3] Accordingly, he entered judgment for the alleged infringer and against the patentee. On appeal, the Court of Appeals for the Eighth Circuit unanimously affirmed Judge Stephenson. 402 F. 2d 125 (1968). We denied the patentee's petition for certiorari. 394 U. S. 917 (1969).
In March 1966, well before Judge Stephenson had ruled in the Winegard case, the Foundation also filed suit in the Northern District of Illinois charging a Chicago customer of petitioner, Blonder-Tongue Laboratories, Inc. (hereafter B-T), with infringing two patents it owned by assignment: the Isbell patent and U. S. Patent No. Re. 25,740, reissued March 9, 1965, to P. E. Mayes et al. The Mayes patent was entitled "Log Periodic Backward Wave Antenna Array," and was, as indicated, a reissue of No. 3,108,280, applied for on September 30, 1960. B-T chose to subject itself to the jurisdiction of the court to *316 defend its customer, and it filed an answer and counterclaim against the Foundation and its licensee, respondent JFD Electronics Corp., charging: (1) that both the Isbell and Mayes patents were invalid; (2) that if those patents were valid, the B-T antennas did not infringe either of them; (3) that the Foundation and JFD were guilty of unfair competition; (4) that the Foundation and JFD had violated the "anti-trust laws of the United States, including the Sherman and Clayton Acts, as amended"; and (5) that certain JFD antenna models infringed B-T's patent No. 3,259,904, "Antenna Having Combined Support and Lead-In," issued July 5, 1966.
Trial was again to the court, and on June 27, 1968, Judge Hoffman held that the Foundation's patents were valid and infringed, dismissed the unfair competition and antitrust charges, and found claim 5 of the B-T patent obvious and invalid. Before discussing the Isbell patent in detail, Judge Hoffman noted that it had been held invalid as obvious by Judge Stephenson in the Winegard litigation. He stated:
"This court is, of course, free to decide the case at bar on the basis of the evidence before it. Triplett v. Lowell, 297 U. S. 638, 642 (1936). Although a patent has been adjudged invalid in another patent infringement action against other defendants, patent owners cannot be deprived `of the right to show, if they can, that, as against defendants who have not previously been in court, the patent is valid and infringed.' Aghnides v. Holden, 22[6] F. 2d 949, 951 (7th Cir. 1955). On the basis of the evidence before it, this court disagrees with the conclusion reached in the Winegard case and finds both the Isbell patent and the Mayes et al. patent valid and enforceable patents." App. 73.
*317 B-T appealed, and the Court of Appeals for the Seventh Circuit affirmed: (1) the findings that the Isbell patent was both valid and infringed by B-T's products; (2) the dismissal of B-T's unfair competition and antitrust counterclaims; and (3) the finding that claim 5 of the B-T patent was obvious. However, the Court of Appeals reversed the judgment insofar as Judge Hoffman had found the Mayes patent valid and enforceable, enjoined infringement thereof, and provided damages for such infringement. 422 F. 2d 769 (1970).
B-T sought certiorari, assigning the conflict between the Courts of Appeals for the Seventh and Eighth Circuits as to the validity of the Isbell patent as a primary reason for granting the writ.[4] We granted certiorari, 400 U. S. 864 (1970), and subsequently requested the parties to discuss the following additional issues not raised in the petition for review:
"1. Should the holding of Triplett v. Lowell, 297 U. S. 638, that a determination of patent invalidity is not res judicata as against the patentee in subsequent litigation against a different defendant, be adhered to?
"2. If not, does the determination of invalidity in the Winegard litigation bind the respondents in this case?"
I
In Triplett v. Lowell, 297 U. S. 638 (1936), this Court held:
"Neither reason nor authority supports the contention that an adjudication adverse to any or all the claims of a patent precludes another suit upon the same claims against a different defendant. While *318 the earlier decision may by comity be given great weight in a later litigation and thus persuade the court to render a like decree, it is not res adjudicata and may not be pleaded as a defense." 297 U. S., at 642.
The holding in Triplett has been at least gently criticized by some judges. In its opinion in the instant case, the Court of Appeals for the Seventh Circuit recognized the Triplett rule but nevertheless remarked that it "would seem sound judicial policy that the adjudication of [the question of the Isbell patent's validity] against the Foundation in one action where it was a party would provide a defense in any other action by the Foundation for infringement of the same patent." 422 F. 2d, at 772.[5]
*319 In its brief here, the Foundation urges that the rule of Triplett be maintained. Petitioner B-T's brief took the same position, stating that "[t]hough petitioners stand to gain by any such result, we cannot urge the destruction of a long-accepted safeguard for patentees merely for the expediency of victory." Brief for Petitioner 12. The Government, however, appearing as amicus curiae, urges that Triplett was based on uncritical acceptance of the doctrine of mutuality of estoppel, since limited significantly, and that the time has come to modify Triplett so that "claims of estoppel in patent cases [are] considered on a case by case basis, giving due weight to any factors which would point to an unfair or anomalous result from their allowance." Brief for the United States 7. The Government's position was spelled out in a brief filed more than a month after petitioner B-T filed its brief.
At oral argument the following colloquy occurred between the Court and counsel for B-T:
"Q. You're not asking for Triplett to be overruled?
"A. No, I'm not. I maintain that my brother here did have a right if there was a genuine new issue or some other interpretation of the [patent] claim or some interpretation of law in another circuit that's different than this Circuit, he had a right to try, under Triplett below, in another circuit.
"In this particular case, where we're stuck with substantially the same documentary evidence, where we were not able to produce [in the Seventh Circuit] even that modicum of expert testimony that existed in the Eighth Circuit, we think there may be as suggested by the Solicitor General, some reason for modification of that document [sic] in a case such as this." Tr. of Oral Arg. 7-8.
*320 In light of this change of attitude from the time petitioner's brief was filed, we consider that the question of modifying Triplett is properly before us.[6]
II
Triplett v. Lowell exemplified the judge-made doctrine of mutuality of estoppel, ordaining that unless both parties (or their privies) in a second action are bound by a judgment in a previous case, neither party (nor his privy) in the second action may use the prior judgment as determinative *321 of an issue in the second action. Triplett was decided in 1936. The opinion stated that "the rules of the common law applicable to successive litigations concerning the same subject matter" did not preclude "relitigation of the validity of a patent claim previously held invalid in a suit against a different defendant." 297 U. S., at 644. In Bigelow v. Old Dominion Copper Co., 225 U. S. 111, 127 (1912), the Court had stated that it was "a principle of general elementary law that the estoppel of a judgment must be mutual."[7] The same *322 rule was reflected in the Restatement of Judgments. Restatement of Judgments § 93 (1942).[8]
But even at the time Triplett was decided, and certainly by the time the Restatement was published, the mutuality rule had been under fire. Courts had discarded the requirement of mutuality and held that only the party against whom the plea of estoppel was asserted had to have been in privity with a party in the prior action.[9] As Judge Friendly has noted, Bentham had attacked *323 the doctrine "as destitute of any semblance of reason, and as `a maxim which one would suppose to have found its way from the gaming-table to the bench' . . . ." Zdanok v. Glidden Co., 327 F. 2d 944, 954 (CA2 1964), cert. denied, 377 U. S. 934 (1964) (quoting 3 J. Bentham, Rationale of Judicial Evidence 579 (1827), reprinted in 7 Works of Jeremy Bentham 171 (J. Bowring ed. 1843)). There was also ferment in scholarly quarters.[10]
Building upon the authority cited above, the California Supreme Court, in Bernhard v. Bank of America Nat. Trust & Savings Assn., 19 Cal. 2d 807, 122 P. 2d 892 (1942), unanimously rejected the doctrine of mutuality, stating that there was "no compelling reason . . . for requiring that the party asserting the plea of res judicata must have been a party, or in privity with a party, to the earlier litigation." Id., at 812, 122 P. 2d, at 894. Justice Traynor's opinion, handed down the same year the Restatement was published, listed criteria since employed by many courts in many contexts:
"In determining the validity of a plea of res judicata three questions are pertinent: Was the issue decided in the prior adjudication identical with the one presented in the action in question? Was there a final judgment on the merits? Was the party against whom the plea is asserted a party or in *324 privity with a party to the prior adjudication?" 19 Cal. 2d, at 813, 122 P. 2d, at 895.
Although the force of the mutuality rule had been diminished by exceptions and Bernhard itself might easily have been brought within one of the established exceptions, "Justice Traynor chose instead to extirpate the mutuality requirement and put it to the torch." Currie, Civil Procedure: The Tempest Brews, 53 Calif. L. Rev. 25, 26 (1965).
Bernhard had significant impact. Many state and federal courts rejected the mutuality requirement, especially where the prior judgment was invoked defensively in a second action against a plaintiff bringing suit on an issue he litigated and lost as plaintiff in a prior action.[11] The trend has been apparent in federal-question cases.[12] The federal courts found Bernhard persuasive. As Judge Hastie stated more than 20 years ago:
"This second effort to prove negligence is comprehended by the generally accepted precept that a party who has had one fair and full opportunity to prove a claim and has failed in that effort, should not be permitted to go to trial on the merits of that claim a second time. Both orderliness and reasonable time saving in judicial administration require that *325 this be so unless some overriding consideration of fairness to a litigant dictates a different result in the circumstances of a particular case.
"The countervailing consideration urged here is lack of mutuality of estoppel. In the present suit [the plaintiff] would not have been permitted to take advantage of an earlier affirmative finding of negligence, had such finding been made in [his first suit against a different defendant]. For that reason he argues that he should not be bound by a contrary finding in that case. But a finding of negligence in the [plaintiff's first suit] would not have been binding against the [defendant in a second suit] because [that defendant] had no opportunity to contest the issue there. The finding of no negligence on the other hand was made after full opportunity to [plaintiff] on his own election to prove the very matter which he now urges a second time. Thus, no unfairness results here from estoppel which is not mutual. In reality the argument of [plaintiff] is merely that the application of res judicata in this case makes the law asymmetrical. But the achievement of substantial justice rather than symmetry is the measure of the fairness of the rules of res judicata." Bruszewski v. United States, 181 F. 2d 419, 421 (CA3 1950), cert. denied, 340 U. S. 865 (1950).
Many federal courts, exercising both federal question and diversity jurisdiction, are in accord unless in a diversity case bound to apply a conflicting state rule requiring mutuality.[13]
*326 Of course, transformation of estoppel law was neither instantaneous nor universal. As late as 1961, eminent authority stated that "[m]ost state courts recognize and apply the doctrine of mutuality, subject to certain exceptions. . . . And the same is true of federal courts, when free to apply their own doctrine." Moore & Currier, Mutuality and Conclusiveness of Judgments, 35 Tul. L. Rev. 301, 304 (1961) (footnotes omitted); see also, 1B J. Moore, Federal Practice ¶ 0.412 [1], pp. 1803-1804 (1965). However, in 1970 Professor Moore noted that "the trend in the federal courts is away from the rigid requirements of mutuality advocated herein." Id., Supp. 1970, at 53. The same trend is evident in the state courts.[14]
*327 Undeniably, the court-produced doctrine of mutuality of estoppel is undergoing fundamental change in the common-law tradition. In its pristine formulation, an increasing number of courts have rejected the principle as unsound. Nor is it irrelevant that the abrogation of mutuality has been accompanied by other developments such as expansion of the definition of "claim" in bar and merger contexts[15] and expansion of the preclusive effects afforded criminal judgments in civil litigation[16] which enhance the capabilities of the courts to deal with some issues swiftly but fairly.
Obviously, these mutations in estoppel doctrine are not before us for wholesale approval or rejection. But at the very least they counsel us to re-examine whether mutuality of estoppel is a viable rule where a patentee seeks to relitigate the validity of a patent once a federal court has declared it to be invalid.[17]
*328 III
The cases and authorities discussed above connect erosion of the mutuality requirement to the goal of limiting relitigation of issues where that can be achieved without compromising fairness in particular cases. The courts have often discarded the rule while commenting on crowded dockets and long delays preceding trial. Authorities differ on whether the public interest in efficient judicial administration is a sufficient ground in and of itself for abandoning mutuality,[18] but it is clear that more than crowded dockets is involved. The broader question is whether it is any longer tenable to afford a litigant more than one full and fair opportunity for judicial resolution of the same issue. The question in these terms includes as part of the calculus the effect on judicial administration, but it also encompasses the concern exemplified by Bentham's reference to the gaming table in his attack on the principle of mutuality of estoppel. *329 In any lawsuit where a defendant, because of the mutuality principle, is forced to present a complete defense on the merits to a claim which the plaintiff has fully litigated and lost in a prior action, there is an arguable misallocation of resources. To the extent the defendant in the second suit may not win by asserting, without contradiction, that the plaintiff had fully and fairly, but unsuccessfully, litigated the same claim in the prior suit, the defendant's time and money are diverted from alternative usesproductive or otherwiseto relitigation of a decided issue. And, still assuming that the issue was resolved correctly in the first suit, there is reason to be concerned about the plaintiff's allocation of resources. Permitting repeated litigation of the same issue as long as the supply of unrelated defendants holds out reflects either the aura of the gaming table or "a lack of discipline and of disinterestedness on the part of the lower courts, hardly a worthy or wise basis for fashioning rules of procedure." Kerotest Mfg. Co. v. C-O-Two Co., 342 U. S. 180, 185 (1952). Although neither judges, the parties, nor the adversary system performs perfectly in all cases, the requirement of determining whether the party against whom an estoppel is asserted had a full and fair opportunity to litigate is a most significant safeguard.
Some litigantsthose who never appeared in a prior actionmay not be collaterally estopped without litigating the issue. They have never had a chance to present their evidence and arguments on the claim. Due process prohibits estopping them despite one or more existing adjudications of the identical issue which stand squarely against their position. See Hansberry v. Lee, 311 U. S. 32, 40 (1940); Bernhard, 19 Cal. 2d, at 811, 122 P. 2d, at 894. Also, the authorities have been more willing to permit a defendant in a second suit to invoke an estoppel against a plaintiff who lost on the same claim in an earlier suit than they have been to allow a plaintiff *330 in the second suit to use offensively a judgment obtained by a different plaintiff in a prior suit against the same defendant.[19] But the case before us involves neither due process nor "offensive use" questions. Rather, it depends on the considerations weighing for and against permitting a patent holder to sue on his patent after it has once been held invalid following opportunity for full and fair trial.
There are several components of the problem. First, we analyze the proposed abrogation or modification of the Triplett rule in terms of those considerations relevant to the patent system. Second, we deal broadly with the economic costs of continued adherence to Triplett. Finally, we explore the nature of the burden, if any, that permitting patentees to relitigate patents once held invalid imposes on the federal courts.
A
Starting with the premise that the statutes creating the patent system, expressly sanctioned by the Constitution,[20] represent an affirmative policy choice by Congress to reward inventors, respondents extrapolate a special public interest in sustaining "good" patents and characterize patent litigation as so technical and difficult as to present unusual potential for unsound adjudications. Although Triplett made no such argument in support of its holding, that rule, offering the unrestricted right to *331 relitigate patent validity, is thus deemed an essential safeguard against improvident judgments of invalidity.[21]
We fully accept congressional judgment to reward inventors through the patent system. We are also aware that some courts have frankly stated that patent litigation can present issues so complex that legal minds, without appropriate grounding in science and technology, may have difficulty in reaching decision.[22] On the other hand, this Court has observed that issues of nonobviousness under 35 U. S. C. § 103 present difficulties "comparable to those encountered daily by the courts in such frames of reference as negligence and scienter, and should be amenable to a case-by-case development." Graham v. John Deere Co., 383 U. S., at 18. But assuming a patent case so difficult as to provoke a frank admission of judicial uncertainty, one might ask what reason there is to expect that a second district judge or court of *332 appeals would be able to decide the issue more accurately. Moreover, as Graham also indicates, Congress has from the outset chosen to impose broad criteria of patentability while lodging in the federal courts final authority to decide that question. 383 U. S., at 10. In any event it cannot be sensibly contended that all issues concerning patent validity are so complex and unyielding. Nonobviousness itself is not always difficult to perceive and decide and other questions on which patentability depends are more often than not no more difficult than those encountered in the usual nonpatent case.[23]
Even conceding the extreme intricacy of some patent cases, we should keep firmly in mind that we are considering the situation where the patentee was plaintiff in the prior suit and chose to litigate at that time and place. Presumably he was prepared to litigate and to litigate to the finish against the defendant there involved. Patent litigation characteristically proceeds with some deliberation and, with the avenues for discovery available under the present rules of procedure, there is no reason to suppose that plaintiff patentees would face either surprise or unusual difficulties in getting all relevant and probative evidence before the court in the first litigation.
Moreover, we do not suggest, without legislative guidance, that a plea of estoppel by an infringement or *333 royalty suit defendant must automatically be accepted once the defendant in support of his plea identifies the issue in suit as the identical question finally decided against the patentee or one of his privies in previous litigation.[24] Rather, the patentee-plaintiff must be permitted to demonstrate, if he can, that he did not have "a fair opportunity procedurally, substantively and evidentially to pursue his claim the first time." Eisel v. Columbia Packing Co., 181 F. Supp. 298, 301 (Mass. 1960). This element in the estoppel decision will comprehend, we believe, the important concerns about the complexity of patent litigation and the posited hazard that the prior proceedings were seriously defective.
Determining whether a patentee has had a full and fair chance to litigate the validity of his patent in an earlier case is of necessity not a simple matter. In addition to the considerations of choice of forum and incentive to litigate mentioned above,[25] certain other factors immediately emerge. For example, if the issue is nonobviousness, appropriate inquiries would be whether the first validity determination purported to employ the standards announced in Graham v. John Deere Co., supra; whether the opinions filed by the District Court and the reviewing court, if any, indicate that the prior case was one of those relatively rare instances where the courts wholly failed to grasp the technical subject matter and issues in suit; and whether without fault of his own the patentee was deprived of crucial evidence or witness in the first litigation.[26] But as so often is the case, no one *334 set of facts, no one collection of words or phrases, will provide an automatic formula for proper rulings on estoppel pleas. In the end, decision will necessarily rest on the trial courts' sense of justice and equity.
We are not persuaded, therefore, that the Triplett rule, as it was formulated, is essential to effectuate the purposes of the patent system or is an indispensable or even an effective safeguard against faulty trials and judgments. Whatever legitimate concern there may be about the intricacies of some patent suits, it is insufficient in and of itself to justify patentees relitigating validity issues as long as new defendants are available. This is especially true if the court in the second litigation must decide in a principled way whether or not it is just and equitable to allow the plea of estoppel in the case before it.
B
An examination of the economic consequences of continued adherence to Triplett has two branches. Both, however, begin with the acknowledged fact that patent litigation is a very costly process. Judge Frank observed in 1942 that "the expense of defending a patent suit is often staggering to the small businessman." Picard v. United Aircraft Corp., 128 F. 2d 632, 641 (CA2 1942) (concurring opinion). In Lear, Inc. v. Adkins, 395 U. S. 653, 669 (1969), we noted that one of the benefits accruing to a businessman accepting a license from a patentee who was threatening him with a suit was avoiding "the necessity of defending an expensive infringement action during the period when he may be least able to afford one." Similarly, in replying to claims by alleged *335 infringers that they have been guilty of laches in suing on their patents, patentees have claimed that the expense of litigating forced them to postpone bringing legal action. See, e. g., Baker Mfg. Co. v. Whitewater Mfg. Co., 430 F. 2d 1008, 1014-1015 (CA7 1970). In recent congressional hearings on revision of the patent laws, a lawyer-businessman discussing a proposal of the American Society of Inventors for government-sponsored insurance to provide funds for litigation to individual inventors holding nonassigned patents stated: "We are advised that the average cost for litigating a patent is about $50,000."[27]
This statement, and arguments such as the one made in Baker Mfg., supra, must be assessed in light of the fact that they are advanced by patentees contemplating action as plaintiffs, and patentees are heavily favored as a class of litigants by the patent statute. Section 282 of the Patent Code provides, in pertinent part:
"A patent shall be presumed valid. The burden of establishing invalidity of a patent shall rest on a party asserting it."
If a patentee's expense is high though he enjoys the benefits of the presumption of validity, the defendant in an infringement suit will have even higher costs as he both introduces proof to overcome the presumption and attempts to rebut whatever proof the patentee offers to bolster the claims. In testimony before the Senate subcommittee considering patent law revision in 1967, a member of the President's Commission on the Patent *336 System discussed the financial burden looming before one charged as a defendant in a complex infringement action in terms of amounts that sometimes run to "hundreds of thousands of dollars."[28]
Statistics tend to bear this out. Patent suits constitute between 1% and 2% of the total number of civil cases filed each year in the District Courts.[29] Despite this relatively small figure, and notwithstanding the overwhelming tendency to try these suits without juries,[30]*337 patent cases that go to trial seem to take an inordinate amount of trial time.[31] While in 1961 a Senate staff report stated that the "typical patent trial, without a jury, was completed in 3 days or less,"[32] recent figures indicate that this description of the time required is today *338 inaccurate.[33] And timeparticularly trial timeis unquestionably expensive.
As stated at the outset of this section, the expense of patent litigation has two principal consequences if the Triplett rule is maintained. First, assuming that a perfectly sound judgment of invalidity has been rendered in an earlier suit involving the patentee, a second infringement action raising the same issue and involving much of the same proof has a high cost to the individual parties. The patentee is expending funds on litigation to protect a patent which is by hypothesis invalid. These moneys could be put to better use, such as further research and development. The alleged infringeroperating as he must against the presumption of validityis forced to divert substantial funds to litigation that is wasteful.
The second major economic consideration is far more significant. Under Triplett, only the comity restraints flowing from an adverse prior judgment operate to limit the patentee's right to sue different defendants on the same patent. In each successive suit the patentee enjoys the statutory presumption of validity, and so may easily put the alleged infringer to his expensive proof. As a consequence, prospective defendants will often decide that paying royalties under a license or other settlement is preferable to the costly burden of challenging the patent.
*339 The problem has surfaced and drawn comment before. See, e. g., Nickerson v. Kutschera, 419 F. 2d 983, 988 n. 4 (CA3 1969) (dissenting opinion); Picard v. United Aircraft Corp., 128 F. 2d, at 641-642 (concurring opinion). In 1961, the Senate Judiciary Subcommittee on Patents, Trademarks, and Copyrights published a staff study of infringement and declaratory judgment actions terminated in the district courts and courts of appeals during 1949-1958; the report showed 62 actions commenced after an earlier determination that the patent in suit was not valid. It also noted that the "vast majority" of such suits were terminated without a second adjudication of validity. 1961 Staff Report 19. It is apparent that termination without a second adjudication of validity was the result of a licensing agreement or some other settlement between the parties to the second suit. It is also important to recognize that this study covered only cases filed and terminated; there were undoubtedly more suits that were threatened but not filed, because the threat alone was sufficient to forestall a challenge to the patent.
This is borne out by the observations of the President's Commission on the Patent System and recent testimony on proposals for changes in the patent laws. Motivated by the economic consequences of repetitious patent litigation, the Commission proposed:
"A final federal judicial determination declaring a patent claim invalid shall be in rem, and the cancellation of such claim shall be indicated on all patent copies subsequently distributed by the Patent Office." Recommendation XXIII, Commission Report 38.
The Commission stressed the competitive disadvantage imposed on an alleged infringer who is unable or unwilling to defend a suit on the patent, stating also that a "patentee, having been afforded the opportunity to *340 exhaust his remedy of appeal from a holding of invalidity, has had his `day in court' and should not be allowed to harass others on the basis of an invalid claim. There are few, if any, logical grounds for permitting him to clutter crowded court dockets and to subject others to costly litigation." Id., at 39. The report provoked the introduction of several bills to effect broad changes in the patent system. Some bills contained provisions imposing an inflexible rule of in rem invalidity operating against a patentee regardless of the character of the litigation in which his patent was first declared invalid. See S. 1042, 90th Cong., 1st Sess., § 294 (1967), and H. R. 5924, 90th Cong., 1st Sess., § 294 (1967);[34] cf. *341 S. 3892, 90th Cong., 2d Sess., § 294 (1968).[35] Hearings were held in both Houses on these and other patent revision bills.[36]
*342 In the Senate hearings, a member of the President's Commission remarked:
"The businessman can be subjected to considerable harassment as an alleged infringer. Even in cases where he feels strongly that the patent would ultimately be held invalid, when he considers the hundreds of thousands of dollars in complex cases that could be involved in defending a suit, he may conclude that the best course of action is to settle for less to get rid of the problem. These nuisance settlements, although distasteful, are often, under the present system, justified on pure economics.
.....
"In many instances the very survival of the small businessman may be at stake. His cost of fully litigating a claim against him can seriously impair his ability to stay in business." 1967 Senate Hearings 103.[37]
The tendency of Triplett to multiply the opportunities for holders of invalid patents to exact licensing agreements or other settlements from alleged infringers must *343 be considered in the context of other decisions of this Court. Although recognizing the patent system's desirable stimulus to invention, we have also viewed the patent as a monopoly which, although sanctioned by law, has the economic consequences attending other monopolies.[38] A patent yielding returns for a device that fails to meet the congressionally imposed criteria of patentability is anomalous.[39] This Court has observed:
"A patent by its very nature is affected with a public interest. . . . [It] is an exception to the general rule against monopolies and to the right to access to a free and open market. The far-reaching social and economic consequences of a patent, therefore, give the public a paramount interest in seeing that patent monopolies spring from backgrounds free from fraud or other inequitable conduct and that such monopolies are kept within their legitimate scope." Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery Co., 324 U. S. 806, 816 (1945).
One obvious manifestation of this principle has been the series of decisions in which the Court has condemned attempts to broaden the physical or temporal scope of the patent monopoly. As stated in Mercoid v. MidContinent Investment Co., 320 U. S. 661, 666 (1944):
"The necessities or convenience of the patentee do not justify any use of the monopoly of the patent *344 to create another monopoly. The fact that the patentee has the power to refuse a license does not enable him to enlarge the monopoly of the patent by the expedient of attaching conditions to its use. United States v. Masonite Corp., [316 U. S. 265,] 277 [(1942)]. The method by which the monopoly is sought to be extended is immaterial. United States v. Univis Lens Co., [316 U. S. 241,] 251-252 [(1942)]. The patent is a privilege. But it is a privilege which is conditioned by a public purpose. It results from invention and is limited to the invention which it defines."[40]
A second group of authorities encourage authoritative testing of patent validity. In 1952, the Court indicated that a manufacturer of a device need not await the filing of an infringement action in order to test the validity of a competitor's patent, but may institute his own suit under the Declaratory Judgment Act. Kerotest Mfg. Co. v. C-O-Two Co., 342 U. S., at 185-186.[41] Other *345 decisions of this type involved removal of restrictions on those who would challenge the validity of patents.[42]
Two Terms ago in Lear, Inc. v. Adkins, 395 U. S. 653 (1969), we relied on both lines of authority to abrogate the doctrine that in a contract action for unpaid patent royalties the licensee of a patent is estopped from proving "that his licensor was demanding royalties for the use of an idea which was in reality a part of the public domain." 395 U. S., at 656. The principle that "federal law requires that all ideas in general circulation be dedicated to the common good unless they are protected by a valid patent," 395 U. S., at 668, found support in Sears and Compco and the first line of cases discussed above.[43] The holding that licensee estoppel was no longer tenable was rooted in the second line of cases eliminating obstacles to suit by those disposed to challenge the validity of a patent. 395 U. S., at 663-668. Moreover, as indicated earlier, we relied on practical considerations that patent licensees "may often be the only individuals with enough economic incentive to challenge the patentability of an inventor's discovery." 395 U. S., at 670.
To be sure, Lear obviates to some extent the concern that Triplett prompts alleged infringers to pay royalties on patents previously declared invalid rather than to engage in costly litigation when infringement suits are *346 threatened. Lear permits an accused infringer to accept a license, pay royalties for a time, and cease paying when financially able to litigate validity, secure in the knowledge that invalidity may be urged when the patentee-licensor sues for unpaid royalties. Nevertheless, if the claims are in fact invalid and are identical to those invalidated in a previous suit against another party, any royalties actually paid are an unjust increment to the alleged infringer's costs. Those payments put him at a competitive disadvantage vis-à-vis other alleged infringers who can afford to litigate or have successfully litigated the patent's validity.
This has several economic consequences. First, the alleged infringer who cannot afford to defend may absorb the royalty costs in order to compete with other manufacturers who have secured holdings that the patent is invalid, cutting the profitability of his business and perhaps assuring that he will never be in a financial position to challenge the patent in court. On the other hand, the manufacturer who has secured a judicial holding that the patent is invalid may be able to increase his market share substantially, and he may do so without coming close to the price levels that would prevail in a competitive market. Because he is free of royalty payments, the manufacturer with a judgment against the patent may price his products higher than competitive levels absent the invalid patent, yet just below the levels set by those manufacturers who must pay royalties. Third, consumers will pay higher prices for goods covered by the invalid patent than would be true had the initial ruling of invalidity had at least the potential for broader effect. And even if the alleged infringer can escape royalty obligations under Lear when he is able to bear the cost of litigation, any royalty payments passed on to consumers are as a practical matter unrecoverable by those who in fact paid them. Beyond all of this, the *347 rule of Triplett may permit invalid patents to serve almost as effectively as would valid patents as barriers to the entry of new firmsparticularly small firms.
Economic consequences like these, to the extent that they can be avoided, weigh in favor of modification of the Triplett mutuality principle. Arguably, however, the availability of estoppel to one charged with infringement of a patent previously held invalid will merely shift the focus of litigation from the merits of the dispute to the question whether the party to be estopped had a full and fair opportunity to litigate his claim in the first action. Moore & Currier, supra, n. 7, at 309-310. It would seem sufficient answer to note that once it is determined that the issue in both actions was identical, it will be easier to decide whether there was a full opportunity to determine that issue in the first action than it would be to relitigate completely the question of validity. And, this does not in fact seem to have been a problem in other contexts, where strict mutuality of estoppel has been abandoned.
It has also been suggested that 35 U. S. C. § 285, which allows a court to award reasonable attorney's fees to a prevailing party "in exceptional cases,"[44] and 35 U. S. C. § 288, under which a patentee forfeits his right to recover costs even as to the valid claims of his patent if he does not disclaim invalid claims before bringing suit, work to inhibit repetitious suits on invalid patents. But neither of these provisions can operate until after litigation has occurred, and the outlay required to try a lawsuit presenting validity issues is the factor which undoubtedly forces many alleged infringers into accepting *348 licenses rather than litigating. If concern about such license agreements is proper, as our cases indicate that it is, the accused infringer should have available an estoppel defense that can be pleaded affirmatively and determined on a pretrial motion for judgment on the pleadings or summary judgment. Fed. Rules Civ. Proc. 8 (c), 12 (c), and 56.
C
As the preceding discussion indicates, although patent trials are only a small portion of the total amount of litigation in the federal courts, they tend to be of disproportionate length.[45] Despite this, respondents urge that the burden on the federal courts from relitigation of patents once held invalid is de minimis. They rely on the figures presented in the 1961 Staff Report: during the period 1948-1959, 62 federal suits were terminated which involved relitigation of a patent previously held invalid, a figure constituting about 1% of the patent suits commenced during the same period. The same figures show that these 62 suits involved 27 patents, indicating that some patentees sue more than once after their patent has been invalidated. Respondents also urge that most of these 62 suits were settled without litigation. 1961 Staff Report 19. But, as we have suggested, this fact cuts both ways.
Even accepting respondents' characterization of these figures as de minimis, it is clear that abrogation of Triplett will save some judicial time if even a few relatively lengthy patent suits may be fairly disposed of on pleas of estoppel. More fundamentally, while the cases do discuss reduction in dockets as an effect of elimination of the mutuality requirement, they do not purport to hold that predictions about the actual amount of judicial time that will be saved under such a holding control decision *349 of that question. Of course, we have no comparable figures for the past decade concerning suits begun after one declaration of invalidity, although a number of recent, significant examples of repeated litigation of the same patent have come to our attention.[46] Regardless of the magnitude of the figures, the economic consequences of continued adherence to Triplett are serious and any reduction of litigation in this context is by comparison an incidental matter in considering whether to abrogate the mutuality requirement.
D
It is clear that judicial decisions have tended to depart from the rigid requirements of mutuality. In accordance with this trend, there has been a corresponding development of the lower courts' ability and facility in dealing with questions of when it is appropriate and fair to impose an estoppel against a party who has already litigated an issue once and lost. As one commentator has stated:
"Under the tests of time and subsequent developments, the Bernhard decision has proved its merit and the mettle of its author. The abrasive action of new factual configurations and of actual human controversies, disposed of in the common-law tradition by competent courts, far more than the commentaries of academicians, leaves the decision revealed for what it is, as it was written: a shining landmark of progress in justice and law administration." Currie, 53 Calif. L. Rev., at 37.
When these judicial developments are considered in the light of our consistent viewlast presented in Lear, Inc. v. Adkinsthat the holder of a patent should not be insulated from the assertion of defenses and thus allowed *350 to exact royalties for the use of an idea that is not in fact patentable or that is beyond the scope of the patent monopoly granted, it is apparent that the uncritical acceptance of the principle of mutuality of estoppel expressed in Triplett v. Lowell is today out of place. Thus, we conclude that Triplett should be overruled to the extent it forecloses a plea of estoppel by one facing a charge of infringement of a patent that has once been declared invalid.
IV
Res judicata and collateral estoppel are affirmative defenses that must be pleaded. Fed. Rule Civ. Proc. 8 (c). The purpose of such pleading is to give the opposing party notice of the plea of estoppel and a chance to argue, if he can, why the imposition of an estoppel would be inappropriate. Because of Triplett v. Lowell, petitioner did not plead estoppel and respondents never had an opportunity to challenge the appropriateness of such a plea on the grounds set forth in Part III-A of this opinion. Therefore, given the partial overruling of Triplett, we remand the case. Petitioner should be allowed to amend its pleadings in the District Court to assert a plea of estoppel. Respondents must then be permitted to amend their pleadings, and to supplement the record with any evidence showing why an estoppel should not be imposed in this case. If necessary, petitioner may also supplement the record. In taking this action, we intimate no views on the other issues presented in this case. The judgment of the Court of Appeals is vacated and the cause is remanded to the District Court for further proceedings consistent with this opinion.
NOTES
[1] The Foundation has filed six infringement actions based on the Isbell patent. Foundation's Brief 22.
[2] The Foundation claimed that all of the Isbell patent's 15 claims except numbers 6, 7, and 8 were infringed by one or more of Winegard's 22 antenna models designed for receiving television signals.
[3] The District Judge held:
"Those skilled in the art [of antenna design] at the time of the Isbell application knew (1) the log periodic method of designing frequency independent antennas, (2) that antenna arrays consisting of straight dipoles with progressively varied lengths and spacings exhibit greater broad band characteristics than those consisting of dipoles of equal length and spacing and, (3) that a dipole array type antenna having elements spaced less than 1/2 wavelength apart could be made unidirectional in radiation pattern by transposing the feeder line between elements and feeding the array at the end of the smallest element.
"It is the opinion of the Court that it would have been obvious to one ordinarily skilled in the art and wishing to design a frequency independent unidirectional antenna to combine these three old elements, all suggested by the prior art references previously discussed." 271 F. Supp., at 418-419.
[4] See Petition for Certiorari 13. The grant of certiorari was not limited to the validity vel non of the Isbell patent.
[5] See also Nickerson v. Kutschera, 419 F. 2d 983, 984 (CA3 1969); id., at 984-988 (Hastie, C. J., dissenting); Nickerson v. Kutschera, 390 F. 2d 812 (CA3 1968); Tidewater Patent Development Co. v. Kitchen, 371 F. 2d 1004, 1006 (CA4 1966); Aghnides v. Holden, 226 F. 2d 949, 951 (CA7 1955) (Schnackenberg, J., concurring); Technograph Printed Circuits, Ltd. v. Packard Bell Electronics Corp., 290 F. Supp. 308, 317-319 (CD Cal. 1968) (holding that Triplett did not bar an infringement suit defendant's motion for summary judgment on res judicata grounds because (1) the statements as to mutuality of estoppel were dicta, and (2) the Triplett rule conflicted not only with more recent precedent in the estoppel area but also with the spirit of certain provisions of the Federal Rules of Civil Procedure, adopted six years after Triplett was decided); Nickerson v. Pep BoysManny, Moe & Jack, 247 F. Supp. 221 (Del. 1965). In the latter case, Judge Steel imposed an estoppel on facts somewhat similar to those before us. He analyzed the cases relied on in Triplett, id., at 221-222, and concluded: "[f]rom the standpoint of the precedents [it cities], . . . Triplett v. Lowell does not rest upon too solid a foundation." Id., at 222. Cf. Technograph Printed Circuits, Ltd. v. United States, 178 Ct. Cl. 543, 372 F. 2d 969 (1967); Agrashell, Inc. v. Bernard Sirotta Co., 281 F. Supp. 704, 707-708 (EDNY 1968).
[6] In rebuttal, counsel for petitioner made it clear that he was urging a "modification" of Triplett.
"Q. Well, has Petitioner finally decided to forego any request for reconsidering Triplett, entirely, or in any part? I understood you previously to say you would welcome a modification of it to some extent.
"A. Well, Your Honor, I think that is correct. The question . . . that was asked of us in our brief by this Court was should Triplett be overruled. That we answered no.
"Now the question is should there be modification. I think in all of law, when somebody is abusing it, . . . there are exceptions, and I think the Solicitor [General] is very close to [using] the idea that if in fact this were the same trial and they had the opportunity to present their witnesses before, and they didn't do it, that it seriously ought to be considered whether there ought to be an estoppel in a situation such as this." Tr. of Oral Arg. 64-65.
Rule 23 (1) (c) of the Rules of this Court states that "[o]nly the questions set forth in the petition or fairly comprised therein will be considered by the court." While this rule reflects many decisions stating that the Court is not required to decide questions not raised in a petition for certiorari, it does not limit our power to decide important questions not raised by the parties. The rule has certain well-recognized exceptions, particularly in cases arising in the federal courts. See R. Robertson & F. Kirkham, Jurisdiction of the Supreme Court of the United States § 418 (R. Wolfson & P. Kurland ed. 1951); R. Stern & E. Gressman, Supreme Court Practice § 6.37 (4th ed. 1969).
The instant case is not one where the parties have not briefed or argued a question that the Court nevertheless finds controlling under its authority to notice plain error. See Rule 40 (1) (d) (2), Rules of the Supreme Court of the United States; Silber v. United States, 370 U. S. 717 (1962). Rather, given what transpired at oral argument, the case is like Moragne v. States Marine Lines, Inc., 398 U. S. 375 (1970). There, after granting certiorari, we asked the parties to brief and argue the continued validity of The Harrisburg, 119 U. S. 199 (1886). The petitioner, who would have stood to gain if The Harrisburg perished, argued that that decision should be overruled, but strongly maintained that it was unnecessary to do so in order to afford her relief. Respondent, of course, argued that The Harrisburg should be left intact. The United States, appearing as amicus curiae, urged the Court to overrule The Harrisburg, and that was the result.
Moreover, in a landmark decision involving an important question of judicial administration in the federal courts, this Court overruled a prior decision of many years' standing although the parties did not urge such a holding in their briefs. Erie R. Co. v. Tompkins, 304 U. S. 64, 66, 68-69 (1938). See also R. Jackson, The Struggle for Judicial Supremacy 281-282 (1949). While the question here is hardly of comparable importance, it is a significant one, in the same general field, and it has been fully briefed and argued by the parties and amici. See Moragne, 398 U. S., at 378-380, n. 1; cf. NLRB v. Pittsburgh S. S. Co., 337 U. S. 656, 661-662 (1949).
[7] See also 225 U. S., at 130-131; Stone v. Farmers' Bank, 174 U. S. 409 (1899); Keokuk & W. R. Co. v. Missouri, 152 U. S. 301, 317 (1894); Litchfield v. Goodnow, 123 U. S. 549, 552 (1887). Bigelow also spent some time discussing one of the many exceptions to the mutuality requirement, 225 U. S., at 127-128. These "exceptions" are described in Moore & Currier, Mutuality and Conclusiveness of Judgments, 35 Tul. L. Rev. 301, 311-329 (1961), and Note, 35 Geo. Wash. L. Rev. 1010, 1015-1017 (1967).
[8] Under the topic head "persons not Parties or Privies," § 93 provides:
"General Rule. Except as stated in §§ 94-111, a person who is not a party or privy to a party to an action in which a valid judgment other than a judgment in rem is rendered (a) cannot directly or collaterally attack the judgment, and (b) is not bound by or entitled to claim the benefits of an adjudication upon any matter decided in the action."
Illustration 10 of the Restatement stated the essentials of the Triplett rule:
"A brings an action against B for infringement of a patent. B defends on the ground that the alleged patent was void and obtains judgment. A brings an action for infringement of the same patent against C who seeks to interpose the judgment in favor of B as res judicata, but setting up no relation with B. On demurrer, judgment should be for A."
[9] Atkinson v. White, 60 Me. 396, 398 (1872); Jenkins v. Atlantic Coast Line R. Co., 89 S. C. 408, 71 S. E. 1010 (1911); United States v. Wexler, 8 F. 2d 880 (EDNY 1925); Brobston v. Darby Borough, 290 Pa. 331, 138 A. 849 (1927); Eagle, Star & British Dominions Ins. Co. v. Heller, 149 Va. 82, 140 S. E. 314 (1927); Liberty Mutual Ins. Co. v. George Colon & Co., 260 N. Y. 305, 183 N. E. 506 (1932); Coca Cola Co. v. Pepsi-Cola Co., 36 Del. 124, 172 A. 260 (Super. Ct. 1934); see also Good Health Dairy Products Corp. v. Emery, 275 N. Y. 14, 19, 9 N. E. 2d 758, 760 (1937). In the latter case, the New York Court of Appeals stated:
"It is true that [the owner of the automobile], not being a party to the earlier actions, and not having had a chance to litigate her rights and liabilities, is not bound by the judgments entered therein, but, on the other hand, that is not a valid ground for allowing the plaintiffs to litigate anew the precise questions which were decided against them in a case in which they were parties."
[10] The principle was attacked in Cox, Res Adjudicata: Who Entitled to Plead, 9 Va. L. Rev. (n. s.) 241, 245-247 (1923); Comment, 35 Yale L. J. 607, 610 (1926); Comment, 29 Ill. L. Rev. 93, 94 (1934); Note, 18 N. Y. U. L. Q. Rev. 565, 570-573 (1941); Recent Decisions, 27 Va. L. Rev. 955 (1941); Recent Cases, 15 U. Cin. L. Rev. 349 (1941). Cf. Von Moschzisker, Res Judicata, 38 Yale L. J. 299, 303 (1929); Comment, 23 Ore. L. Rev. 273 (1944); Recent Cases, 54 Harv. L. Rev. 889 (1941).
[11] For discussion of the "offensive-defensive" distinction, see generally Vestal, Preclusion/Res Judicata Variables: Parties, 50 Iowa L. Rev. 27, 43-76 (1964); Note, 35 Geo. Wash. L. Rev. 1010 (1967). See also Currie, Mutuality of Collateral Estoppel: Limits of the Bernhard Doctrine, 9 Stan. L. Rev. 281 (1957); Note, 68 Col. L. Rev. 1590 (1968); Note, 52 Cornell L. Q. 724 (1967).
[12] In federal-question cases, the law applied is federal law. This Court has noted, "It has been held in non-diversity cases, since Erie R. Co. v. Tompkins, that the federal courts will apply their own rule of res judicata." Heiser v. Woodruff, 327 U. S. 726, 733 (1946). See also Vestal, Res Judicata/Preclusion by Judgment: The Law Applied in Federal Courts, 66 Mich. L. Rev. 1723, 1739, 1745 (1968); id., cases cited at 1739-1740, nn. 62-64.
[13] See, e. g., Lober v. Moore, 135 U. S. App. D. C. 146, 417 F. 2d 714 (1969); Provident Tradesmens Bank & Trust Co. v. Lumbermens Mutual Cas. Co., 411 F. 2d 88, 92-95 (CA3 1969); Seguros Tepeyac, S. A., Compania Mexicana v. Jernigan, 410 F. 2d 718, 726-728 (CA5 1969), cert. denied, 396 U. S. 905 (1969); Cauefield v. Fidelity & Cas. Co. of New York, 378 F. 2d 876, 878-879 (CA5), cert. denied, 389 U. S. 1009 (1967); Graves v. Associated Transport, Inc., 344 F. 2d 894 (CA4 1965); Kurlan v. Commissioner, 343 F. 2d 625, 628-629 (CA2 1965); United States v. United Air Lines, 216 F. Supp. 709, 725-730 (ED Wash., Nev. 1962), aff'd as to res judicata, sub nom. United Air Lines v. Wiener, 335 F. 2d 379, 404-405 (CA9 1964); Zdanok v. Glidden Co., supra, at 954-956; Davis v. McKinnon & Mooney, 266 F. 2d 870, 872-873 (CA6 1959); People v. Ohio Cas. Ins. Co., 232 F. 2d 474, 477 (CA10 1956); Adriaanse v. United States, 184 F. 2d 968 (CA2 1950), cert. denied, 340 U. S. 932 (1951); Maryland v. Capital Airlines, Inc., 267 F. Supp. 298, 302-305 (Md. 1967); Mathews v. New York Racing Assn., Inc., 193 F. Supp. 293 (SDNY 1961); Eisel v. Columbia Packing Co., 181 F. Supp. 298 (Mass. 1960).
[14] See cases cited n. 9, supra. A most recent canvass of cases is presented in Note, 35 Geo. Wash. L. Rev. 1010 (1967).
The Supreme Court of Oregon was the most recent state court to adopt Bernhard. Bahler v. Fletcher, 257 Ore. 1, 474 P. 2d 329 (1970); see also Pennington v. Snow, 471 P. 2d 370, 376-377 (Alaska 1970); Ellis v. Crockett, 51 Haw. 45, 56, 451 P. 2d 814, 822 (1969); Pat Perusse Realty Co. v. Lingo, 249 Md. 33, 238 A. 2d 100 (1968); Sanderson v. Balfour, 109 N. H. 213, 247 A. 2d 185 (1968); Home Owners Fed. Savings & Loan Assn. v. Northwestern Fire & Marine Ins. Co., 354 Mass. 448, 451-455, 238 N. E. 2d 55, 57-59 (1968) (approving use of Bernhard by a defendant against a previously losing plaintiff); DeWitt, Inc. v. Hall, 19 N. Y. 2d 141, 225 N. E. 2d 195 (1967); Lustik v. Rankila, 269 Minn. 515, 131 N. W. 2d 741 (1964); Lucas v. Velikanje, 2 Wash. App. 888, 471 P. 2d 103 (1970) (lower state appellate court held that State Supreme Court would follow Bernhard in an appropriate case); Howell v. Vito's Trucking & Excavating Co., 20 Mich. App. 140, 173 N. W. 2d 777 (1969); Desmond v. Kramer, 96 N. J. Super, 96, 232 A. 2d 470 (1967); Lynch v. Chicago Transit Authority, 62 Ill. App. 2d 220, 210 N. E. 2d 792 (1965).
[15] See F. James, Civil Procedure 552-573 (1965); Vestal, Res Judicata/Preclusion by Judgment: The Law Applied in Federal Courts, 66 Mich. L. Rev. 1723, 1724 (1968).
[16] See Moore v. United States, 360 F. 2d 353 (CA4 1965); Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd., 58 Cal. 2d 601, 375 P. 2d 439 (1962); Eagle, Star & British Dominions Ins. Co. v. Heller, 149 Va. 82, 140 S. E. 314 (1927); Vestal, supra, n. 15, at 1724; Vestal & Coughenour, Preclusion/Res Judicata Variables: Criminal Prosecutions, 19 Vand. L. Rev. 683 (1966).
[17] We agree with the Government that Congress has not approved the Triplett rule, either by its failure to modify that rule over the years, see Boys Markets, Inc. v. Retail Clerks Union, 398 U. S. 235, 241-242 (1970); Girouard v. United States, 328 U. S. 61, 69-70 (1946); Helvering v. Hallock, 309 U. S. 106, 119-120 (1940); by anything that transpired during the preparation for and accomplishment of the 1952 revision of the Patent Code; or because in rem invalidity provisions, see n. 34, infra, have disappeared from recent proposals for reform of the patent statute.
[18] Professors Moore and Currier point out that one of the underpinnings of the general concept of res judicata is the prevention of harassment of some litigants by the repeated assertion of the same or different claims against them by others, and that this problem is simply not present where the person asserting an estoppel was not a party (or privy to a party) in the earlier suit. They then argue that "the doctrine of judicial finality is not a catchpenny contrivance to dispose of cases merely for the sake of disposition and clear up dockets in that manner." Moore & Currier, supra, n. 7, at 308. On the other hand, Professor Vestal argues that "[j]udges, overwhelmed by docket loads, are looking for devices to expedite their work. Preclusion offers an opportunity to eliminate litigation which is not necessary or desirable." Vestal, supra, n. 15, at 1724.
[19] But see United States v. United Air Lines, supra; Zdanok v. Glidden Co., supra; Currie, Civil Procedure: The Tempest Brews, 53 Calif. L. Rev. 25, 28-37 (1965); Vestal, 50 Iowa L. Rev., at 55-59; cf. Semmel, Collateral Estoppel, Mutuality and Joinder of Parties, 68 Col. L. Rev. 1457 (1968); Weinstein, Revision of Procedure: Some Problems in Class Actions, 9 Buffalo L. Rev. 433, 448-454 (1960); Note, 35 Geo. Wash. L. Rev. 1010 (1967).
[20] U. S. Const., Art. I, § 8, cl. 8.
[21] The Court of Claims has stated:
"For patent litigation there is a special reason why relitigation is not automatically banned as needless or redundant, and why error should not be perpetuated without inquiry. Patent validity raises issues significant to the public as well as to the named parties. Sinclair & Carroll Co. v. Interchemical Corp., 325 U. S. 327, 330 (1945). It is just as important that a good patent be ultimately upheld as that a bad one be definitively stricken. At the same time it must be remembered that the issue of patent validity is often `as fugitive, impalpable, wayward, and vague a phantom as exists in the whole paraphernalia of legal concepts. . . . If there be an issue more troublesome, or more apt for litigation than this, we are not aware of it.' Harries v. Air King Products Co., supra, 183 F. 2d at 162 (per L. Hand, C. J.). Because of the intrinsic nature of the subject, the first decision can be quite wrong, or derived from an insufficient record or presentation." Technograph Printed Circuits, 178 Ct. Cl., at 556, 372 F. 2d, at 977-978.
[22] See Nyyssonen v. Bendix Corp., 342 F. 2d 531, 532 (CA1 1965); Harries v. Air King Products Co., 183 F. 2d 158, 164 (CA2 1950); Parke-Davis & Co. v. H. K. Mulford Co., 189 F. 95, 115 (SDNY 1911).
[23] The Triplett rule apparently operates to defeat a plea of estoppel where a patent has been declared invalid under provisions other than 35 U. S. C. § 103, the section defining nonobviousness of the subject matter as a prerequisite to patentability and giving rise to many technical issues which it is claimed courts are poorly equipped to judge. Under §§ 101 and 102 of the 1952 Act, patentability is also conditioned on novelty and utility. Some subsections of § 102each of which can result in the loss of a patentinvolve completely nontechnical issues. Yet the breadth of Triplett would force defendants in repetitious suits on a patent invalidated on one of these grounds to repeat proof that may be simple of understanding yet expensive to produce.
[24] See nn. 34-35, infra.
[25] See Zdanok v. Glidden Co., 327 F. 2d, at 956; Teitelbaum Furs, Inc., 58 Cal. 2d, at 606-607, 375 P. 2d, at 441; cf. Berner v. British Commonwealth Pacific Airlines, Ltd., 346 F. 2d 532, 540-541 (CA2 1965).
[26] It has been argued that one factor to be considered in deciding whether to allow a plea of estoppel in a second action is the possibility that the judgment in the first action was a compromise verdict by a jury. This problem has not, however, been deemed sufficient to preclude abrogation of the mutuality principle in other contexts. Nor would it appear to be a significant consideration in deciding when to sustain a plea of estoppel in patent litigation, since most patent cases are tried to the court. See n. 30, infra.
[27] Hearings on Patent Law Revision before the Subcommittee on Patents, Trademarks, and Copyrights of the Senate Committee on the Judiciary, 90th Cong., 2d Sess., 616 (1968) (statement of Henry J. Cappello, President, Space Recovery Research Center, Inc., and consultant on patent policy for the National Small Business Association) (hereafter 1968 Senate Hearings).
[28] Hearings on Patent Law Revision before the Subcommittee on Patents, Trademarks, and Copyrights of the Senate Committee on the Judiciary, 90th Cong., 1st Sess., 103 (1967) (statement of James W. Birkenstock, Vice President, I. B. M. Corp.) (hereafter 1967 Senate Hearings).
It is significant that the President's Commission identified as one of its primary objectives "reduc[ing] the expense of obtaining and litigating a patent." "To Promote the Progress of . . . Useful Arts" In an Age of Exploding Technology, Report of the President's Commission on the Patent System 4 (1966) (hereafter Commission Report). Judge Rich of the Court of Customs and Patent Appeals, whose public reaction to the Commission Report was mixed, did agree that "[l]itigation being as expensive as it is, no one embarks upon it lightly." Rich, The Proposed Patent Legislation: Some Comments, 35 Geo. Wash. L. Rev. 641, 644 (1967).
[29] In fiscal 1968, 71,449 civil actions were filed in the federal district courts, 857 of which were patent suits. In fiscal 1969, 77,193 civil suits were filed; 889 involved patents. In fiscal 1970, 87,321 civil suits were initiated, 1,023 of which involved patents. Annual Report of the Director of the Administrative Office of the United States Courts for the Fiscal Year Ended June 30, 1968, Table C-2 (1969); Annual Report of the Director of the Administrative Office of the United States Courts for the Fiscal Year Ended June 30, 1969, Table C-2 (1970); Annual Report of the Director of the Administrative Office of the United States Courts for the Fiscal Year Ended June 30, 1970, Table C-2 (temp. ed. 1971) (hereafter Annual Report 1968, etc.).
[30] Most patent cases are tried to the court. In fiscal 1968, 1969, and 1970, the total number of patent cases going to trial and the number of patent cases going to juries were, respectively: 1968 131, 2; 1969132, 8; and 1970119, 3. Annual Reports 1968-1970, Table C-8.
[31] The table below compares patent cases tried to the court during fiscal 1968, 1969, and 1970 with all nonjury civil cases tried during the same years. It reveals several facts: (1) something over 90% of all civil litigation is concluded within three full trial days, but less than half the patent cases are concluded in such a period of time; (2) whereas between 1.2% and 1.7% of civil nonjury trials in general require 10 or more trial days, between 14.7% and 19% of the patent cases tried to the court require 10 or more days to conclude; and (3), while the three-year trend in the district courts appears to be toward more expeditious handling of civil cases tried without a jury in terms of an annual increase in the percentage of cases concluded in three trial days or less and an overall decrease in the percentage of cases requiring 10 or more days, the trends in patent litigation are exactly contrary.
Fiscal 1968 Fiscal 1969 Fiscal 1970
Total civil non-jury trials. . . . 5,478 5,619 6,078
Total patent non-jury trials. . 129 124 116
Approx. % of non-jury civil
cases concluded in 3 trial
days or less. . . . . . . . . . . 92.2 92.8 93.1
Approx. % of non-jury patent
cases concluded in 3 trial
day or less. . . . . . . . . . . . 49.6 46.8 44.0
Approx. % of non-jury civil
trials taking 10 or more trial
days to conclude. . . . . . . . . 1.7 1.2 1.3
Approx. % of non-jury patent
trials taking 10 or more
trial days to conclude. . . . . . 14.7 15.3 19
Source: Annual Reports 1968-1970, Table C-8.
[32] An Analysis of Patent Litigation Statistics, Staff Report of the Subcommittee on Patents, Trademarks, and Copyrights of the Senate Committee on the Judiciary, 86th Cong., 2d Sess., 2 (1961) (Committee Print) (hereafter 1961 Staff Report).
[33] See n. 31, supra. The 1961 Staff Report also noted that during the "fiscal years 1954-58 . . . nine [patent] trials consumed 20 or more days." Id., at 2. Further examination of recent figures from the Administrative Office of the United States Courts indicates that this statement would also be of questionable validity today. In fiscal 1968, 38 civil trials that took 20 days or more to try were terminated. Of these, five, or about 13%, were patent cases. The comparable figures for fiscal 1969 are 28 civil trials requiring 20 or more days concluded, seven (25%) of which were patent cases. In fiscal 1970, 32 such civil cases were terminated; seven, or about 22%, of these suits were patent cases. Annual Reports, 1968-1970, Table C-9.
[34] "Estoppel and cancellation
"(a) In any action in a Federal court in which the issue of the validity or scope of a claim of a patent is properly before the court, and the owner of the patent as shown by the records of the Patent Office is a party or has been given notice as provided in subsection (c) of this section, a final adjudication, from which no appeal has been or can be taken, limiting the scope of the claim or holding it to be invalid, shall constitute an estoppel against the patentee, and those in privity with him, in any subsequent Federal action, and may constitute an estoppel in such other Federal actions as the latter court may determine, involving such patent. Within thirty days of such adjudication the clerk of the court shall transmit notice thereof to the Commissioner, who shall place the same in the public records of the Patent Office pertaining to such patent, and endorse notice on all copies of the patent thereafter distributed by the Patent Office that the patent is subject to such adjudication.
"(b) In any action as set forth in subsection (a) of this section, upon a final adjudication from which no appeal has been or can be taken that a claim of the patent is invalid, the court may order cancellation of such claim from the patent. Such order shall be included in the notice to the Commissioner specified in subsection (a) of this section, and the notice of cancellation of a claim shall be published by the Commissioner and endorsed on all copies of the patent thereafter distributed by the Patent Office.
"(c) In any action in a Federal court in which the validity or scope of a claim of a patent is drawn into question, the owner of the patent, as shown by the records of the Patent Office, shall have the unconditional right to intervene to defend the validity or scope of such claim. The party challenging the validity or scope of the claim shall serve upon the patent owner a copy of the earliest pleadings asserting such invalidity. If such owner cannot be served with such pleadings, after reasonable diligence is exercised, service may be made as provided for in the Federal Rules of Civil Procedure and, in addition, notice shall be transmitted to the Patent Office and shall be published in the Official Gazette."
[35] "Cancellation by court
"(a) In any action in a Federal court in which the issue of the validity of a claim of a patent is drawn into question, and the owner of the patent is shown by the records of the Patent Office is a party or has been given notice as provided in subsection (b) of this section, the court may, upon final adjudication, from which no appeal has been or can be taken, holding the claim to be invalid after such claim has previously been held invalid on the same ground by a court of competent jurisdiction from which no appeal has been or can be taken, order cancellation of such claim from the patent. Within thirty days of such order the clerk of the court shall transmit notice thereof to the Commissioner, who shall place the same in the public records of the Patent Office pertaining to such patent, and notice of cancellation of the claim shall be published by the Commissioner and endorsed on all copies of the patent thereafter distributed by the Patent Office.
"(b) In any action in a Federal court in which the validity of a claim of a patent is drawn into question, the owner of the patent, as shown by the records of the Patent Office, shall have the unconditional right to intervene to defend the validity of such claim. The party challenging the validity of the claim shall serve upon the patent owner a copy of the earliest pleadings asserting such invalidity. If such owner cannot be served with such pleadings, after reasonable diligence is exercised, service may be made as provided for in the Federal Rules of Civil Procedure and, in addition, notice shall be transmitted to the Patent Office and shall be published in the Official Gazette."
[36] See, e. g., Hearings on General Revision of the Patent Laws before Subcommittee No. 3 of the House Committee on the Judiciary, 90th Cong., 1st and 2d Sess. (1967-1968); 1967 Senate Hearings, supra, n. 28. In House Hearings, testimony on in rem invalidity provisions covered the full spectrum of opinion. The Patent Section of the American Bar Association was opposed. House Hearings 464-465. The Department of Justice favored it. Id., at 622. The Judicial Conference of the United States approved the provision in principle. Report of the Proceedings of the Judicial Conference of the United States, Feb. and Sept. 1968, p. 81. Testimony in the Senate Hearings was also varied.
[37] Although these bills died in committee, it is noteworthy that by ascribing binding effect to the first federal declaration of invalidity, some of the proposed provisions went beyond mere abrogation of Triplett's mutuality principle. Had the statutes been enacted as proposed, see nn. 34-35, supra, the question of whether the patentee had a full and fair opportunity to litigate the validity of his patent in the first suit would apparently have been irrelevant once it was shown that the patentee had received notice that the validity of his patent was in issue.
[38] See generally Sears, Roebuck & Co. v. Stiffel Co., 376 U. S. 225, 229-230 (1964); Compco Corp. v. Day-Brite Lighting, 376 U. S. 234 (1964); Kennedy, Patent and Antitrust Policy: The Search for a Unitary Theory, 35 Geo. Wash. L. Rev. 512 (1967).
[39] United States v. Bell Telephone Co., 128 U. S. 315, 357, 370 (1888); see also Katzinger Co. v. Chicago Mfg. Co., 329 U. S. 394, 400-401 (1947); Cuno Corp. v. Automatic Devices Corp., 314 U. S. 84, 92 (1941); A. & P. Tea Co. v. Supermarket Corp., 340 U. S. 147, 154-155 (1950) (concurring opinion).
[40] See also Brulotte v. Thys Co., 379 U. S. 29 (1964); International Salt Co. v. United States, 332 U. S. 392 (1947); United States v. Gypsum Co., 333 U. S. 364, 389 (1948); Scott Paper Co. v. Marcalus Co., 326 U. S. 249 (1945); Morton Salt Co. v. Suppiger Co., 314 U. S. 488, 491-492 (1942); Ethyl Gasoline Corp. v. United States, 309 U. S. 436, 455-459 (1940); International Business Machines Corp. v. United States, 298 U. S. 131 (1936); Carbice Corp. v. American Patents Corp., 283 U. S. 27 (1931); Motion Picture Patents Co. v. Universal Film Co., 243 U. S. 502 (1917).
[41] In Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U. S. 172 (1965), the defendant in an infringement action was permitted to counterclaim for treble damages under § 4 of the Clayton Act by asserting that the patent was invalid because procured or enforced with knowledge of fraud practiced on the Patent Office, "provided the other elements necessary to a [monopolization case under § 2 of the Sherman Act] are present." Id., at 174.
[42] See MacGregor v. Westinghouse Electric & Mfg. Co., 329 U. S. 402, 407 (1947); Katzinger Co. v. Chicago Mfg. Co., 329 U. S., at 398-401; Scott Paper Co. v. Marcalus Co., supra; Sola Electric Co. v. Jefferson Electric Co., 317 U. S. 173 (1942); Westinghouse Electric & Mfg. Co. v. Formica Insulation Co., 266 U. S. 342 (1924); Pope Mfg. Co. v. Gormully, 144 U. S. 224, 234 (1892).
[43] See Sears, 376 U. S., at 229-231; see also Beckman Instruments, Inc. v. Technical Development Corp., 433 F. 2d 55, 58-59 (CA7 1970); Kraly v. National Distillers & Chemical Corp., 319 F. Supp. 1349 (ND Ill. 1970).
[44] Including, apparently, a suit on a patent previously held invalid and as to which the second court can find no reasonable argument for validity. See Tidewater Patent Development Co. v. Kitchen, 371 F. 2d 1004, 1013 (CA4 1966); Dole Valve Co. v. Perfection Bar Equipment, Inc., 318 F. Supp. 122 (ND Ill. 1970).
[45] See nn. 31-33, supra, and accompanying text.
[46] See, e. g., cases cited n. 5, supra; Brief for Petitioner B-T 13-14; Brief for the United States as amicus curiae 28 and 32 n. 12.
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Re: t!aqa & of,thecounty
bo&d ,octi@ees slrobold
tbd officdof t- for en
I ltbbpd& @Doldiatrict.
We ue la mpipt of yqy latter.of.,Septqba~5, W3pF In which
you mquest aa op2aionof thiiDqwtaee 6” to wZIstheror not a member
of.tbs coonty-6 of .truetece
may alab hold’t&x&?flce
of tnmtee fbr
an.~~~~chool6l&rict. "
Ths use Whichyou cite in your letter,.Tbon+s,
et al. V. &r-
nathy,Co+y.LlIMJndepe$a$ Bchqol Di~rict,.290'8:W.. 152, In in.polat.
In.fhlnce+tba Cdr@ippqfAppealq brildtbat.oSLparsmcouldnot
holdbot&theoffi~sof schooltrustee aadaldemanbft~ ci$y;despite
the factthat the officebf..k&xA tiustekvasnot ~,,ofSic~of emilumat.
The court heldthatthe4.mtdesor the two 0rrb~n w0r0 *03npatibh ens
to,'tbeotherandthersforethe mm permn wodd not be.eliglble to bold
both. This we uaS followed bythe Waco Courtof,Xvll AXrpealr in the
EILSSOr Ih@0, Bt al. V. Ol.S?JiU
Rose j2epaOUt &boo1 DiqriCt RO. 1,
50 8. W. (26) 375. In this ca6ethe courtimidas follows:
%dectfra cq law,tba ssme&on c&L& I& two
incontprtibl~ -- t&It $S, OffiCel,tk~dUtb?S or which
'offlcas
or q iacone.ist.urt.*
conflicts
The tcet.wblch.is,laiQ.
downby our courtsis, therefore;whether
or not tho 0rfi0.0r t~stee or a sc~l diatr+t:isincorqpstibiewith the
other+ficc.vhi&the bamepersonwishesto hold. '~
w'shave tha em
J.uthlr'.casa perrrcqtqixigto holdboththe
office or tnmt(ra~0r sn’i.ndemt m0ol
dirtri* and meplber 0r.the
couutyboard of famte+s. Uhllethe countybdof .trustees &sin&
exercisethb s&r&~ overthe ind+n&nt schooldlrrtkicta that.it does
over the t&?nnmmso&o1 distriote, +U it'd&s e&&e s&b control
as would.qsk~i$m twb offices~bsromnight%mmpatible. .x3iie very &od
CXS#Qh Of this i6. wt Out iI& &Pt,iCh .&6 Or tw ‘Redire& civil&%tUteS
of Texas,.vbichArticle readsas follows6
Emorable Cbarlea~S.:~, Ppep !2(O-l396)
“W child&elt.llyenlal6u in ay di8trict or lade-
pandcntbi~rict,aqybyo~roft~counfynrptrint~,
be bal+~d to the 6nmUmnnt of any otbr illstriCt'or.
inbpszrdrntdtmtrict intha 6sm countyppogaer$ttenap-
pll@&nofthe&ent orgwr~orpersonhsvinglsrful
contro'ofwchcbild, flledwlththe qo#y superintea@t;
proridrdthstimS.~ltri~for~~~~dirtrictbe~
di6+tiwfi0awith anytmuyfer mtb+bytba county6uperfn:
ttm&at o;r ~-3rc6i8~ch 8ctionto tbs coullty.board
of
true06 0ro a id countywh olb q ll the right t0 a nq el
h a ve
and csnceltbetqsferalloee4bythe cowttysupe~i&endent.
'Thedppllapt r4l.lat&a iq uid application
t&at it
16hirbom fi&eUte&ioato sendsuld.childtotbeschool
tovhicAtbet~ibrir~rked~
"&oat& certification of the tnuufr of e child,
from cm districtzto anotherUtrict, bytlwcourrtgsuper;
intB~.ti.thu county.,gl~~~t~ chllarecllles qt the
tims or tbetnp?fer, the StateDepqttmsnt,ofI++lon
~hnll tnrthodwtthe Stgte Weaurer to pay m slirwtly
the per up&t* t&rtl~j in ItrU6po4&nt
dlstrlctr or
fivehuadmd(~).orarqre schoUst~cpopulotion,tbths
diotricLtoyhi@ ~ch+il~I~tqo+sfe+ehjmid in'&.
otherdlat~ctr,to.couz&yBup@iiiItendeutr,to b8 paidbp
him to @a M~lrn ulBtrict?;-to
which,suchga+wl "4
trsmf~d~'p&rl&ed, ti triwfer sh&be'rdo &or
A-l&F
+&p Mm statue abokqnt out a&ili~ebetvieen echool
&~Wictr ovwtz-sm6fe~ and over *ha rscef.pf'pg.the per Capitaappor-
tid by t6s +h001 ditirict 'becaw of BT+C&$raqfez, wouldbe'ap-
paalmltotheboardoftrusteea. To allow&a6 p.sr#onto act aa (Ltrue-
tee of oae of the:disWgts aud also to serm aa~a m+ber of the board
or truotws of -thecountywwi&dbe to allow~9.InteytBd psrtyto act
as arbiixator mr dtrputs6b&man rchoolatstrf@G There i6 110queer-
ticn but what tbs two officesla thip iast+cb are lncompntlble
an& ln-
ccasistenf one @h@a ot@er. ,
It is the opinion of thir Departmn~,,tbe~foie,tljat
a ma-
bcr or the countybs4a: of tnmte+ psy cot all, how the officeof trus-
tee r0r m ladepenAant school+qtrlct.
APPROVZDSEP lk, 1939 APPmvRD WY tnlljY@=@
o?nvxoR ATJ!~ocsww,~oFTRxAs
/s/ oaald c. l&m By /s/ BillyOoldberg
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706 F.2d 319
Kolbjorn Olsen, In re#
82-584
UNITED STATES COURT OF APPEALS FEDERAL CIRCUIT
1/4/83
PTO
Reversed
# Denotes patent appeals.
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J-A31023-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
S.W. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
S.I., N/K/A S.F.
Appellant No. 273 MDA 2015
Appeal from the Order Entered January 15, 2015
In the Court of Common Pleas of York County
Civil Division at No(s): 2009 FC 001342-03
BEFORE: PANELLA, J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 11, 2015
S.I., N/K/A S.F. (“Mother”) appeals from the January 15, 2015 order,
entered in the Court of Common Pleas of York County, awarding S.W.
(“Father”) primary physical custody of the parties’ daughter, S.W., subject to
Mother’s partial custody rights, and awarding the parties shared legal
custody.1 After our review, we affirm.
Pursuant to the trial court’s order of August 26, 2013, Mother
relocated with S.W. to Oklahoma. Thereafter, Father learned that Mother
was no longer residing with her husband in Oklahoma and had moved with
S.W. to Texas, without Father’s knowledge or consent. On July 28, 2014,
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
23 Pa.C.S.A. § 5302.
J-A31023-15
Father filed a motion for modification of custody. Father alleged Mother’s
home life had become unstable, that he could provide more stability and
continuity in S.W.’s daily life and education, and that he was better able to
promote the relationship between S.W. and Mother, as well as between S.W.
and Mother’s family, all of whom reside in Pennsylvania.
Following a conciliation conference and trial, the Honorable Joseph C.
Adams determined that it was in S.W.’s best interests to award primary
custody to Father. Mother appealed. She raises the following issues for our
review:
1. Whether the trial court abused its discretion in granting
Father primary custody of the parties’ minor child and
relocating the child from Oklahoma to Pennsylvania, which
decision was against the weight of the evidence presented at
trial, is contrary to the best interests of the child, and a
misapplication of the law?
a) Whether the trial court abused its discretion and
erred in determining that Father was more likely
than Mother to encourage and permit the child to
have frequent and continuing contact with the other
party pursuant to 23 Pa.C.S. § 5328(a)(1)?
b) Whether the trial court abused its discretion and
erred in determining that both parties performed
parental duties and assisted with homework, finding
that 23 Pa.C.S. § 5328(a)(3) is neutral?
c) Whether the trial court abused its discretion and
erred in determining that Father can provide more
stability and continuity for the child simply because
he has lived in his same residence for eight years
pursuant to 23 Pa.C.S. § 5328(a)(4)?
d) Whether the trial court abused its discretion and
erred in determining the availability of extended
family and Father’s close proximity to Mother’s
-2-
J-A31023-15
extended family heavily favors Father in light of
Mother’s many travels to the area to visit her family,
pursuant to 23 Pa.C.S. § 5328(a)(5)?
e) Whether the trial court committed error in
determining the child’s sibling relationships pursuant
to 23 Pa.C.S. § 5328(a)(6) favored Father?
f) Whether the trial court abused its discretion and
erred in determining that Father is more likely to
maintain a loving, stable, consistent and nurturing
relationship with the child adequate for the child’s
emotional needs due to him residing in his home for
eight (8) years pursuant to 23 Pa.C.S. § 5328(a)(9)?
g) Whether the trial court abused its discretion and
erred in determining that the parties were equally
likely to attend to the daily physical, emotional,
developmental, educational and special needs of the
child pursuant to 23 Pa.C.S. § 5328(a)(10)?
h) Whether the trial court abused its discretion and
erred in determining this factor favored Father
because Father’s child care arrangement “support
system is more sufficient” even though Mother is a
stay at home mom and needs no “support system,”
pursuant to 23 Pa.C.S. § 5328(a)(12)?
i) Whether the trial court abused its discretion and
committed error in finding that the level of conflict
between the parties and willingness and ability of the
parties to cooperate with one another favored Father
because Mother demonstrated more hostility in text
messages and Father testified that information was
not shared in a timely manner pursuant to 23
Pa.C.S. § 5328(a)(13)?
j) Whether the trial court abused its discretion and
erred in its consideration of thirteen (13) days of
missed school, voicemails left by Mother’s significant
other on Father’s cell phone, pursuant to 23 Pa.C.S.
§ 5328(a)(16), and failed to indicate how these
issues affected the court’s decision?
k) Whether the trial court erred in its application of 23
Pa.C.S. §§ 5337(h)(2), (3) and (7), and its
-3-
J-A31023-15
determination that the child’s relocation will enhance
the child’s general quality of life, pursuant to 23
Pa.C.S. § 5328 (a)(16)?
Initially, we note our scope and standard of review:
[O]ur scope is of the broadest type and our standard is
abuse of discretion. This Court must accept findings of the
trial court that are supported by competent evidence of
record, as our role does not include making independent
factual determinations. In addition, with regard to issues
of credibility and weight of the evidence, this Court must
defer to the trial judge who presided over the proceedings
and thus viewed the witnesses first hand. However, we
are not bound by the trial court’s deductions or inferences
from its factual findings. Ultimately, the test is whether
the trial court’s conclusions are unreasonable as shown by
the evidence of record.
Johns v. Cioci, 865 A.2d 931, 936 (Pa. Super. 2004) (citations and
quotation omitted). Further, this Court has stated:
[t]he discretion that a trial court employs in custody
matters should be accorded the utmost respect, given the
special nature of the proceeding and the lasting impact the
result will have on the lives of the parties concerned.
Indeed, the knowledge gained by a trial court in observing
witnesses in a custody proceeding cannot adequately be
imparted to an appellate court by a printed record.
Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006).
In M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (en banc), we
stated the following regarding the abuse of discretion standard:
Although we are given a broad power of review, we are
constrained by an abuse of discretion standard when
evaluating the court’s order. An abuse of discretion is not
merely an error of judgment, but if the court’s judgment is
manifestly unreasonable as shown by the evidence of
record, discretion is abused. An abuse of discretion is also
-4-
J-A31023-15
made out where it appears from a review of the record
that there is no evidence to support the court’s findings or
that there is a capricious disbelief of evidence.
Id. at 18-19 (quotation and citations omitted). Finally, this Court must
accept the trial court’s findings that are supported by competent evidence of
record, “as our role does not include making independent factual
determinations.” C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012).
Moreover, “with regard to issues of credibility and weight of the evidence,
we must defer to the presiding trial judge who viewed and assessed the
witnesses first-hand.” Id.
In reaching its determination, the court analyzed the factors set forth
at 23 Pa.C.S.A. § 5328(a) of the Child Custody Act (“the Act”). C.R.F.,
supra. Judge Adams set forth each of the sixteen factors and provided an
analysis relevant to that factor based on the facts and evidence specific to
this case. See Trial Court Opinion, 1/15/15, at 2-9. Although the court
found the majority of the custody factors were neutral, it concluded that
several favored Father. In particular, the court found that the need for
stability and continuity in S.W.’s education, family life and community life
favored Father. See 23 Pa.C.S.A. § 5328(a)(1)(4). Due to the nature of
Mother’s husband’s employment as a project manager for an oil pipeline
construction company, Mother and her husband frequently relocate for
temporary periods. Father, on the other hand, has resided with his wife,
daughter and stepdaughter in the same location for eight years. The court
placed considerable weight on this factor, and emphasized that S.W. was
-5-
J-A31023-15
starting primary school, a time when children begin to form long-term
relationships. In addition, Father, his extended family, and Mother’s parents
and her extended family all reside in Pennsylvania. For this reason, the
court found the availability of extended family favored Father. See 23
Pa.C.S.A. § 5328(a)(5). The court also found that due to Father’s difficulty
in contacting S.W. during Mother’s custodial periods, Father would be more
likely to encourage and permit continuing and frequent contact with Mother.
The court, therefore, weighed this factor in Father’s favor. See 23 Pa.C.S.A.
§ 5328(a)(1). The child’s sibling relationships also favored Father, as S.W.’s
stepsister, age 5, and half-sibling, age 2, are close to her age and she
spends time with both of them when in Father’s custody. See 23 Pa.C.S.A.
§ 5328(a)(6).2
We find no abuse of discretion. Johns, supra. The trial court did
precisely what was required of it; it weighed the section 5328(a) factors in
making the custody determination and explained its considerations “in a
manner that informed the parties of the reasons for the custody award.”
See M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013). The court’s
review of the custody factors, and its related conclusions, support its
decision that primary physical custody with Father was in S.W.’s best
____________________________________________
2
The court emphasized that both Mother and Father clearly love and want
what is best for S.W., however, the level of hostility between them is
palpable.
-6-
J-A31023-15
interest. Mother is asking us to reject the trial court's findings and credibility
determinations in favor of the factual findings and credibility determinations
she proposes. This we cannot do. Ketterer, supra.
We affirm the custody order based on Judge Adams’ opinion and we
direct the parties to attach a copy of the trial court’s opinion in the event of
further proceedings.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/11/2015
-7-
!
Circulated 12/04/2015 01:18 PM
IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA
FAMILY DIVISION
SHAWN WASSILEWSKI, NO: 2009-FC-001342-03
Plaintiff 0
~
-n
vs. Civil Action - Law ("')
rn
0
-n
STEPHANIE ICKES, n/k/a -0
:;:::,
STEPHANIE FITZGERALD, 0
-i
. Defendant Action in Custody ::r.:
0
%
o:
APPEARANCES:
For Plaintiff: John J. Mooney, III, Esq.
For Defendant: Charles J. Hobbs, Esq.
OPINION
This matter is before the Court on Plaintiff/Father's Petition for Modification filed
on July 28, 2014. Mother and Father have one child together: Skyla Wassilewski (YOB
2007). Father seeks primary physical custody of the child during the school year.
Mother seeks to continue the current arrangement under which she has primary physical
custody in Oklahoma with Father sharing physical custody during school breaks.
A Conciliation Conference was held op September 15, 2014. An Interim Order
for Custody, Pending Trial, was entered on September 17, 2014, providing 'for
continuation of the previous Order for shared legal custody and primary physical custody
to Mother. A Pretrial Conference was held on November 3, 2014, and a trial washeld on
January 13, 2015.
Circulated 12/04/2015 01:18 PM
At trial, Mother presented the testimony of Curtis Fitzgerald (her husband), a~d
herself. Father presented the testimony of Jessica Wassilewski (his wife), and himself.
The Court also met with Skyla in camera. After careful review of the testimony and
exhibits, this Opinion follows.
I
Pursuant to 23 Pa.C.S.A. §5328, the Court shall determine the best interest of the
I
child by considering all relevant factors, giving weighted consideration to those factors
which affect the safety of the child, including the following:
(1) Which _party is more likely to encourage and permit frequent and
continuing contact between the child and another party.
(2) The present and past abuse committed by a party or member of the
party's household, whether there is a continued risk of harm to the child
'
or an abused party and which party can better provide adequate physical
safeguards and supervision of the child.
(3) The parental duties performed by each party on behalf of the child.
(4) The need for stability and continuity in the child's education, family life
and community life.
(5) The availability of extended family.
(6) The child's sibling relationships.
(7) The well-reasoned preference of the child, based on the child's maturity
and judgment.
2
Circulated 12/04/2015 01:18 PM
(8) The attempts of a parent to tum the child against the other parent, except
_in cases of domestic violence where reasonable safety measures are
necessary to protect the child from harm.
(9) Which party is more likely to maintain a loving, stable, consistent and
nurturing relationship with the child adequate for the child's emotional
needs.
(10) Which party is more likely to attend to the daily physical, emotional,
developmental, educational and special needs of the child.
( 11) The proximity of the residences of the parties.
I
(12) Each party's availability to care for the child or ability to make
appropriate child-care arrangements.
(13) The level of conflict between the parties and the willingness and ability
of the parties to cooperate with one another. A party's effort to protect a
child from abuse by another party is not evidence of unwillingness or
inability to cooperate with that party.
(14) The history of drug or alcohol abuse of a party or member of a party's
household.
(15) The mental and physical condition of a party or member of a party's
household.
(16) Any other relevant factor.
3
. I
Circulated 12/04/2015 01:18 PM
With the aforementioned principles in mind, we now address the best interest
factors outlined at 23 Pa. C. S.A. §5328. We begin with which party is more likely· to
encourage and permit frequent and continuing contact between the child and the other
party. Both parties testified as to their desire to involve the other parent in the child's
life. However, Father testified as to difficulty in contacting Skyla when in Mother's care,
and Father has· a demonstrated history of allowing Mother's family to see Skyla during
his brief custodial periods. The Court concludes that this factor favors Father.
The second consideration is present or past abuse committed by either party or a
member of a party's household and whether there is a continued risk of harm to the child.
All testimony reflected that there have been no concerns of potential abuse of the child.
The Court finds that this factor favors neither party.
Next, the Court must consider the parental duties performed by each party on
behalf of the child. Both parties perform basic parental duties for the child during their
custodial time, and both parties stressed a focus on education and helping Skyla with
homework. The Court finds that this factor is neutral, as well.
The next factor for consideration is the need for stability and continuity in the
child's education, family life, and community life. Mother's living and working
arrangements are constantly in transition due in part to herhusband's work requirements.
Skyla changed schools once this year, and Mother's own testimony suggested that she
was recently considering taking a temporary job in another state which would have
4
· 1
I
Circulated 12/04/2015 01:18
i PM
resulted in Skyla changing schools again. Father has resided at the same address for over
eight years. The Court thus finds that this factor significantly favors Father.
I
The Court must next consider the availability of extended family. Mother
I
currently resides in Calvin, Oklahoma, with Skyla. Mother has no extended family living
near her. Father currently resides in Thomasville, Pennsylvania, within 15 miles of his
II
mother, grandfather, and two brothers, as well as in close proximity to Mother's extended
family. All of the extended family members of both parties are involved in the chiltl's
life. This factor heavily fa~ors Father. I
The next consideration is the child's sibling relationships. Skyla has three older
step-siblings from Curtis's family, but they are significantly older and do not have a lot of
contact with Skyla. Skyla has a half-sibling, Teagan (2), and a step-sister, Jade (5); at
Father's house, who she spends time with whenever she is in Father's custody. This
factor therefore favors Father.
The next factor to consider is the well-reasoned preference of the child, based on
the child's maturity and judgment. The child expressed a desire to see both parents.
I
Given the child's age, this factor does not carry significant weight in this case.
The next factor to be considered is any attempts of a parent to turn the child
I
against the other parent, except in cases of domestic violence. Both parties have made
derogatory remarks toward one another and directed at one another to third parties.
However, there is no testimony to suggest attempts to tum the child against another
parent. This factor is neutral.
5
1 Circulated 12/04/2015 01:18 PM
Next, the Court must consider which party is more likely to maintain a loving,
stable, consistent and nurturing relationship with the child adequate for the child's
I
emotional needs. Both parents clearly love and want the best for the child. However,1 as
I
I
discussed above, Father presents a much more stable living arrangement for Skyla. The
Court thus finds that this factor favors Father.
J
The next consideration is which party is more likely to attend to the daily
I
. '
physical, emotional, developmental, educational and special needs of the child. Bpth
'!
parties properly care for the child during their custodial time. Mother's husband i's a
former educator and has knowledge of educational and developmental resources that han
aid Skyla. Father's wife is a stay-at-home mom, and as such can spend a significant
amount of time.helping raise Skyla. As such, this factor favors neither party. ·1
'
Next, the Court must consider the proximity of the residences of the parties. !As
Mother currently lives in Oklahoma and neither party has any foreseeable prospect ifor
moving within a distance in which this factor will play a role in custodial exchanges, this
I
factor is neutral. A shared arrangement is not possible with this distance between the
parties.
The next enumerated factor is each party's availability to care for the child or
ability to make appropriate child-care arrangements. Mother testified that she works only
when Skyla is in school. On the occasions that she does need assistance, she testified that
she has neighbors who watch Skyla for a short time. Father's wife does not currently
work out of the house, so she is available for child care. Father also lives close to i the
I
6
! .
.J
r. Circulated 12/04/2015 01:18 PM
extended families of both parties. Overall, Father's support system is more sufficient, so
the Court finds that this factor slightly favors Father.
The Court must next consider the level of conflict between the parties and the
i
willingness and ability of the parties to cooperate with one another. The parties
communicate mostly by text message and e-mail, but also by phone. Both parties admit
I
I
'
'
to difficulty in dealing with one another, although Father's exhibits show noticeably more
hostility from Mother via e-mail and text. See Pl.'s Exs. 3, 7. Father also testified that
Mother has not shared with him all of the necessary information under a shared legal
custody arrangement in a timely fashion. Thus, the Court finds that this factor favors
Father and that a shared arrangement between the parties would be difficult.
The Court must also address any history of drug or alcohol abuse by a party qr a
, I
member of a party's household. Because neither party testified as to concern about diug
J
or alcohol use by the other party, the Court finds that this factor is neutral.
The Court must also consider the mental and physical condition of a party or
member of a party's household. Because there is no history of mental or physical
obstacles to child care in either household, this factor is also neutral.
I
The Court must finally consider any other relevant factor to custody. Father
expressed concern with Skyla missing 13 days of school last year, although he admits
I
'
that three of the missed days were a result of his exercising custody at the beginning of
I
the school year before Skyla could return to Oklahoma. Also, the Court notes the lack of
cooperation between both the parties and their significant others since entry of the
7
Circulated 12/04/2015 01:18 PM
previous Order, particularly threatening voicemails left by Mother's husband on Father's
cell phone. See Pl. 's Ex. 5.
Another relevant factor is that a change in primary physical custody may involve
a move of significant distance for Skyla. While the move of a child does not per. se
trigger the Relocation section of the Child Custody Act (23 Pa. C.S.A. § 5337),
Pennsylvania courts have held that certain relocation factors are relevant to determining
the child's best interests when the child may move a great distance. In particular:
... [I]n any custody determination where neither parent is moving, but the
children stand to move to a significantly distant· 1ocation, the trial court
would still need to consider the age, developmental stage, needs of the
child and the likely impact the child's change of residence will have on the
child's physical, educational and emotional development (23 Pa.C.S.A. §
5337(h)(2)), the feasibility of preserving the relationship between the other
parent and the child (23 Pa.C.S.A_. § 5337(h)(3)), and whether the change
in the child's residence will enhance the gerieral quality oflife for the child
(23 Pa.C.S.A. § 5337(h)(7)).
D.K. v. S.P.K., 102 A.3d 467 (Pa. Super. 2014). Skyla has just recently entered
elementary school, and she is approaching an age where children typically begin to form
meaningful relationships with peers. The stability in school and extended family
relationships provided by Father are likely to enhance Skyla's educational and emotional
development. Additionally, as stated previously, Father has proven to be open to
preserving a relationship between Skyla and Mother. Overall, this Court finds that a
change in residence will enhance Skyla's general quality oflife.
Given the foregoing, the Court finds that it is in the child's best interest for the
parties to continue to share legal custody but Father to be granted primary physical
8
Circulated 12/04/2015 01:18 PM
custody. Of particular importance to this decision is the greater stability that Father can
offer in Skyla's home life, as well as the relationships she can have with her siblings and
extended family members in Pennsylvania. An Order will be entered in conformance
with this Opinion.
With respect to Mother's Petition for Contempt, the Court finds that Father did
not violate the prior Order by refusing to release Skyla to Maternal Grandmother in July
2014. Regarding summer months, the prior Order stated: "[I]f Mother comes to
Pennsylvania, she will be afforded one week with the child ... Mother will give Father.Ju
days' advance written notice or" her intention to exercise her one week of custody in }he
summer." Father offered to release Skyla to Mother as soon as she arrived: in
Pennsylvania, in conformance with the Order, but Mother chose not to come: to
Pennsylvania within the. time frame allotted by her prior notice. See Pl.'s Ex. 7.
Therefore, the Court will not hold Father in contempt nor grant Mother an extra week of
custody.
By the Court,
~~~arns,ludge
DATED: January 15, 2015
9
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698 F.2d 1236
*Edwardsv.Scientific-Atlanta, Inc.
82-8324
UNITED STATES COURT OF APPEALS Eleventh Circuit
2/1/83
1
N.D.Ga.
AFFIRMED
2
---------------
* Fed.R.App. P. 34(a); 11th Cir. R. 23.
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809 P.2d 579 (1991)
In re the MARRIAGE OF Richard F. Gallagher, Petitioner and Respondent, and
Loree H. Gallagher, Respondent and Appellant.
No. 90-336.
Supreme Court of Montana.
Submitted on Briefs December 20, 1990.
Decided April 15, 1991.
Rehearing Denied May 9, 1991.
*580 Randy Winner, Flaherty & Winner, Great Falls, for respondent and appellant.
Warren C. Wenz, Marra, Wenz, Johnson & Hopkins, Great Falls, for petitioner and respondent.
HUNT, Justice.
The wife, Loree H. Gallagher, appeals from the findings of fact, conclusions of law and decree of dissolution entered in the Eighth Judicial District Court, Cascade County. We affirm.
We will discuss the following issues on appeal:
1. Did the District Court err in finding that the husband's partnership interest in his law practice was not a part of the marital estate?
2. Did the District Court err in refusing to deduct the husband's support, maintenance and education obligations to his first wife and children from the husband's net worth at the time of the parties' marriage?
3. Did the District Court err in refusing to order the husband to pay the wife's attorney fees?
Richard and Loree Gallagher were married in 1980. At the time of the marriage, Richard was 40 years old and Loree was 22. Richard had two children from a prior marriage. He owed substantial maintenance, child support and education obligations to his first wife and children. No children were born during his eight years with Loree.
At the inception of the parties' marriage, Richard had been an attorney for 14 years, 13 as a member of the law firm of Church, Harris, Johnson & Williams and eight as a partner in that firm. During the marriage, his income fluctuated but, on the whole, increased a great deal. Also during the marriage, the terms of the Church, Harris partnership agreement were modified to provide that any partner who voluntarily *581 withdrew from the firm would receive the fixed sum of $6,250.
At the time of the marriage, Loree possessed an associate's degree in business from Concordia College in Portland. She had been employed as a legal secretary with Church, Harris, but was asked to leave that position when she married Richard. She then worked as a secretary at Norwest Bank. In 1985, she became selfemployed as a bookkeeper. Although her salary decreased in this endeavor, she rejected several offers of other employment, electing instead to retain the flexibility allowed by being her own boss.
Excluding the value of the law partnership, Richard brought into the marriage assets with a net worth of $34,240. Loree brought no assets to the marriage aside from her personal effects. During the marriage, the couple's net worth, excluding the value of the law practice, increased to $54,061, a gain of $19,821. A substantial portion of the growth was attributable to increases in value of Richard's prior-acquired property.
The District Court awarded assets with a net value of $18,989 to Loree and the remaining marital assets net value $35,072 to Richard. It valued Richard's partnership interest at $6,250, ruling that the value of the interest was controlled by the law firm's partnership agreement. It then refused to include that interest in the marital estate, finding that Loree had not facilitated the maintenance of the law practice. The court did, however, award Loree maintenance of $500 per month for 30 months.
Loree appeals, arguing first that the District Court erred in ruling that the $6,250 figure assigned in the Church, Harris partnership agreement as the amount each partner would receive if he or she left the firm established the value of Richard's interest in the law firm. She further argues that the District Court erred in refusing to allow her to conduct discovery delving behind the partnership agreement in order to determine whether the $6,250 sum reflected the actual value of Richard's interest. We need not reach these issues, however, because the District Court also found that Richard's interest in the partnership was not a part of the marital estate. If this finding is not clearly erroneous, the value of the asset is irrelevant.
Richard acquired his interest in the law firm prior to his marriage to Loree. When dividing property acquired by one spouse prior to the marriage, § 40-4-202(1), MCA, directs the District Court to consider the other spouse's contributions to the marriage, including:
(a) the nonmonetary contribution of a homemaker;
(b) the extent to which such contributions have facilitated the maintenance of this property; and
(c) whether or not the property division serves as an alternative to maintenance arrangements.
If the contributions of the non-owning spouse have not facilitated the maintenance of property brought into the marriage by the other spouse, the district court may exclude that property from the marital estate. In re the Marriage of Snyder, 220 Mont. 262, 265, 714 P.2d 556, 557-58 (1986); In re the Marriage of Jorgensen, 180 Mont. 294, 299, 590 P.2d 606, 609-10 (1979).
In this case, the District Court specifically considered Loree's nonmonetary contributions to the marriage, including her contribution as a homemaker, and found that she did not facilitate the maintenance of the partnership asset. This finding is not clearly erroneous. Richard had been a partner in the firm for eight years prior to the marriage and had thus successfully established himself in the legal profession before marrying Loree. The marriage of eight years was of relatively short duration and no children were born of the marriage. Furthermore, the property division did not serve as an alternative to maintenance the court awarded Loree maintenance of $500 per month for 30 months.
The District Court did not err in finding that the partnership interest was Richard's sole property. The court properly excluded the asset from the marital estate.
Loree next contends that the District Court erred in refusing to deduct from *582 Richard's net worth at the time of their marriage his support, maintenance and education obligations to his wife and children of his first marriage. Loree argues that if the District Court had deducted Richard's obligations to his former family, his net worth at the time of the marriage would have been in the negative and the increase in the parties' net worth during the marriage would have been substantially greater than the increase found by the District Court.
Under the facts of this case, Richard's maintenance, education and child support obligations do not implicate property rights. Therefore, the District Court did not abuse its discretion in refusing to deduct the obligations from Richard's statement of net worth.
Loree's final argument is that the District Court erred in failing to order Richard to pay her attorney fees.
The district court in a dissolution action may order one spouse to pay the other spouse's attorney fees. Section 40-4-110, MCA. We will not overturn the court's failure to award attorney fees absent a showing of an abuse of discretion. In re Marriage of Anderson, 230 Mont. 89, 95, 748 P.2d 469, 472 (1988).
In this case, the District Court refused to award attorney fees to Loree because she had failed to cooperate with Richard's attempts to informally provide information; she sought numerous continuances and extensions; and she was unwilling to accept the rulings of the court. Under the circumstances, the District Court did not abuse its discretion in refusing to award attorney fees.
Affirmed.
TURNAGE, C.J., and HARRISON, BARZ and TRIEWEILER, JJ., concur.
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33 F.3d 52
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Thomas Lee STRINGFIELD, Plaintiff-Appellant,v.GEORGIA-PACIFIC CORPORATION, Defendant-Appellee.
No. 93-2007.
United States Court of Appeals, Fourth Circuit.
Argued June 8, 1994.Decided August 16, 1994.
1
Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Richard L. Williams, Senior District Judge. (CA-92-838)
2
Argued: Gerald Glenn Poindexter, Poindexter & Poindexter, Surry, VA, for appellant.
3
Argued: Michael Peter Oates, Hunton & Williams, Richmond, VA. On brief: Thomas J. Flaherty, Hunton & Williams, Richmond, VA, for appellee.
4
E.D.Va.
5
AFFIRMED.
6
Before WILKINSON, Circuit Judge, BUTZNER, Senior Circuit Judge, and GARBIS, United States District Judge for the District of Maryland, sitting by designation.
OPINION
PER CURIAM
7
Thomas Lee Stringfield ("Stringfield") brought this suit in the United States District Court for the Eastern District of Virginia seeking to recover from Defendant Georgia-Pacific Corporation ("Georgia-Pacific") under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Sec. 2000e, et seq. and 42 U.S.C. Sec. 1981, for his demotion from a salaried supervisory position to an hourly position at Georgia-Pacific's sawmill in Wakefield, Virginia ("the Wakefield Mill"). Only the Title VII claim survived to trial. The trial judge, after a bench trial, issued Findings of Fact and Conclusions of Law, ruling for Georgia-Pacific.
8
Stringfield appeals from the trial court's decision. He asserts that the trial court erred in its finding that Stringfield failed to prove his Title VII claim. Stringfield also argues that the trial court erred in: (1)excluding evidence of the racial composition of the Wakefield Mill's workforce and of other race-based employment practices allegedly engaged in by Georgia-Pacific; (2) admitting evidence related to the qualifications necessary to fill the position for which Georgia-Pacific chose another employee over Stringfield, which choice resulted in Stringfield's demotion; and (3) acknowledging, in its Findings of Fact, the result of an EEOC investigation that was not offered in evidence. For the following reasons, we affirm.
A. FACTS
9
In August of 1978, the Planer Mill Supervisor at the Wakefield Mill retired. At the retiring supervisor's suggestion, Walter Holdsworth ("Holdsworth"), the Plant Superintendent at all relevant times, promoted Stringfield from his hourly-paid laborer position, at which he had been working for five years previous, to the position of Planer Mill Supervisor. As Planer Mill Supervisor, Stringfield was responsible for the dressing, packaging and loading of finished lumber. In 1985, Georgia-Pacific acquired the Wakefield Mill.
10
In June of 1990, Georgia-Pacific instituted a company-wide system of annual written evaluations for salaried employees. Of the seven salaried employees evaluated, all but Stringfield received "outstanding" overall ratings. Stringfield, the only black production supervisor, received an "adequate" overall rating.
11
In January of 1991, Georgia-Pacific decided to close down the Wakefield Mill temporarily, due to economic conditions. During the shutdown, five of the seven salaried employees were assigned to supervisory positions in other mills owned by Georgia-Pacific. The other two, including Stringfield, were posted as security guards at the Wakefield Mill.
12
One of the five salaried employees assigned to work at other Georgia-Pacific mills was Merrill Carr ("Carr"), a young white male employee who had previously been promoted, following a brief probationary period as an hourly employee, to the salaried position of Quality Control Supervisor. In that position, Carr was responsible for monitoring the equipment and personnel involved in each step of the production process. Carr was also given the additional responsibilities of Environmental Compliance Coordinator and Assistant Kiln Supervisor. During the shutdown, Carr first worked at Georgia-Pacific's mill in Creedmoor, North Carolina, where he performed quality control functions and assumed the duties of the Planer Mill Supervisor. After six to eight weeks at the Creedmoor Mill, Carr was sent to the McKenney Mill to fill the recently vacated Planer Mill Supervisor there. In both locations, Carr was hailed as an exceptional performer. In fact, the Plant Managers of the Creedmoor and McKenney Mills were so pleased with Carr's performance that each offered Carr the Planer Mill Supervisor position at his mill. Carr declined both offers.
13
On one evening shortly after the shutdown, Holdsworth stopped to check on the Wakefield Mill. Holdsworth found Stringfield, the security guard on duty, apparently intoxicated. After some coaxing, Stringfield allowed Holdsworth to drive him home. Holdsworth, while taking no disciplinary action against Stringfield for his behavior, placed a note in Stringfield's file to record the incident.
14
In May of 1991, Georgia-Pacific decided to reopen the Wakefield Mill, but with a reduced salaried and hourly workforce. Initially, Holdsworth was ordered to eliminate two salaried positions and to cut the hourly ranks. However, Holdsworth was able to prevail on his superiors to cut only one salaried employee. Holdsworth decided the cut would be from the production side. Holdsworth also decided, in the interest of efficiency, to combine the two salaried positions of Planer Mill Supervisor, then held by Stringfield, and Quality Control Supervisor, then held by Carr, into a single position, to be filled by Carr. Holdsworth's asserted reason for choosing Carr over Stringfield was Carr's demonstrated ability to perform both the quality control and planer mill duties encompassed in the newly-created position. Stringfield's experience, on the other hand, was limited to the planer mill.
15
While he was authorized to lay off Stringfield, Holdsworth decided not to do so, allegedly in recognition of Stringfield's long service and valuable planer mill experience. Rather, Holdsworth decided to create an hourly position in the planer mill for Stringfield as a Leadman. As a Planer Mill Leadman, Stringfield continued to perform essentially all of his former duties, except that he now reported to Carr, for whom he filled in when Carr was absent. In addition, Stringfield's rate of pay was lower than Carr's.
16
After cutting the hourly workforce by twelve (nine whites and three blacks), on June 5, 1991, Georgia-Pacific reopened the Wakefield Mill with a total workforce of forty-two employees, eight salaried and thirty-four hourly. On that date, Stringfield was informed of his demotion. Approximately eighteen months later, Stringfield filed a complaint in district court, claiming his demotion was racially-motivated.
B. THE MERITS OF THE CLAIM
17
The trial court found that Stringfield failed to establish a prima facie case of discrimination under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Specifically, Judge Williams concluded that because Stringfield could not show that he was as qualified as Carr for the newly-created Quality Control/Planer Mill Supervisor position, he failed to set forth a prima facie case. Stringfield v. Georgia-Pacific Corp., No. 3:92CV838, slip op. at 8 (E.D. Va. July 6, 1993) (hereinafter "Slip Op."). In addition to this finding, the trial court also concluded: "Georgia-Pacific's down-sizing of its work-force was a legitimate business decision. Further, there is no evidence on the record that the decision to merge the quality control with the planer mill supervisor positions ... was taken for race-related reasons." Id. Accordingly, the trial court entered judgment in favor of Georgia-Pacific. Id. at 9.
18
Stringfield contends that the trial court erroneously concluded that he failed to establish a prima facie case, and that "the evidence offered by the employer to justify its demotion of [Stringfield] was a mere pretext to make unlawful consideration of race." Br. of Appellant at 34. While Stringfield would like the Court to engage in an examination of the intricacies of the McDonnell Douglas proof scheme, the Court need not dissect the trial court's application of McDonnell Douglas in order to resolve Stringfield's appeal. As Judge Wilkinson recently noted:
19
The [McDonnell Douglas ] proof scheme ... is designed to give judges " 'a method of organizing evidence and assigning the burdens of production and persuasion in a discrimination case.' " Smith v. University of N.C., 632 F.2d 316, 334 (4th Cir.1980) (quoting Loeb v. Textron, Inc., 600 F.2d 1003, 1016 (1st Cir.1979)). Courts must, however, resist the temptation to become so entwined in the intricacies of the proof scheme that they forget that the scheme exists solely to facilitate determination of "the ultimate question of discrimination vel non (citations omitted)".... [T]he ... resolution of this question need not be derailed by strict fealty to proof schemes.
20
Proud v. Stone, 945 F.2d 796, 798 (4th Cir.1991).
21
It is clear from the trial court's opinion that the court answered the "ultimate question" in favor of Georgia-Pacific. Specifically, the trial court found that Georgia Pacific's asserted reason for demoting Stringfield, namely the down-sizing of the Wakefield Mill workforce and the resultant decision to consolidate the two positions and to give Carr that position, was legitimate and not racially motivated. This finding is a factual one, and will not be reversed unless clearly erroneous. See Anderson v. City of Bessemer, 470 U.S. 564, 573 (1985); Gairola v. Com. of Va. Dep't of Gen'l Services, 753 F.2d 1281, 1288 (4th Cir.1985).
22
In applying the clearly erroneous standard, the Court is mindful of the principle that if there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous, even if the appellate court, had it been sitting as the trier of fact, would have seen the evidence differently. Riddick v. School Board, 784 F.2d 521, 533 (4th Cir.), cert. denied, 479 U.S. 938 (1986). Thus, in a case such as this one, in which conflicting testimony and evidence is presented, any permissible reading of the facts by the district court will be upheld. Moreover, when determining whether the trial court's findings are clearly erroneous, an appellate court must view the evidence in a light most favorable to the appellee. Ente Nazionale Per L'Energia Electtrica v. Baliwag Nav., Inc., 774 F.2d 648, 654 (4th Cir.1985). Under this standard, and given the evidence before the trial court, this Court cannot find the trial judge's determination that Stringfield failed to prove that his demotion was the product of unlawful discrimination to be clearly erroneous. Accordingly, this Court cannot reverse the district court's finding.
C. EVIDENTIARY ISSUES
1. Race-Based Employment Practices
23
Stringfield claims that the trial court "improperly excluded from its consideration" evidence of Georgia-Pacific's other discriminatory employment practices. Br. of Appellant at 27. However, it is undisputed that the trial judge admitted all of the evidence concerning other alleged discriminatory practices. Thus, while Stringfield characterizes his argument as an evidentiary one, he is really challenging the trial court's determination that such evidence is not persuasive on the issue of Georgia-Pacific's motive in demoting Stringfield. Since the record on this issue supports the trial judge's assessment of Stringfield's evidence regarding Georgia-Pacific's other alleged discriminatory practices, it cannot be reversed.
24
2. Racial Composition of Georgia-Pacific's Workforce
25
Stringfield argues on appeal that evidence of disparity in the racial composition of the Wakefield Mill's salaried and hourly workforce is probative of Georgia-Pacific's discriminatory motive in demoting him. Stringfield claims that "the District Court erroneously concluded that it could not consider certain evidence related to the racial composition of the employer's workforce." Br. of Appellant at 2.
26
It is undisputed that the evidence regarding the racial composition of Georgia-Pacific's workforce was admitted at trial. In its conclusions of law, however, the district court found that
27
[a]lthough "gross statistical disparities ... alone may in a proper case constitute prima facie proof of a pattern or practice of discrimination," (footnote omitted) because this is not a disparate impact claim, the Court cannot draw any inference from the statistical distribution of Georgia-Pacific's employees.
28
Slip Op. at 8. Even if the district court erred in deciding that it could not consider Stringfield's statistical evidence, such an error would by no means require reversal. In short, Stringfield could not prevail on the basis of his statistical evidence.
29
Stringfield contends that the segregation of the hourly workforce among the various departments in the Mill as well as the predominately white salaried workforce (as compared with the predominately black hourly workforce) is evidence of the racial motivation behind his demotion. This "statistical data," however, even if it were to be accepted as true, is not probative of anything material. "[I]n order to prove a prima facie case, the complainant[ ] must compare the racial composition of the jobs in question and the racial composition of the qualified population in the relevant labor pool." Mallory v. Booth Refrigeration Supply Co., Inc., 882 F.2d 908, 912 (4th Cir.1989). Stringfield offered no evidence regarding which hourly employees might be qualified for which salaried jobs. Moreover, Stringfield offered no persuasive evidence regarding the promotional opportunities which allegedly had been denied to black candidates. As a result, any statistical disparity between the hourly and salaried workforce is meaningless. The Court also does not believe that any meaningful inferences be drawn from the alleged segregation among the various departments in the Mill. Thus, the trial court's decision not to consider the statistical evidence, if erroneous at all, does not constitute reversible error.
30
3. Admission of Evidence Related to Qualifications Necessary to Fill the Position for Which Georgia-Pacific Chose Carr Over Stringfield
31
Stringfield contends that the district court erred in permitting Georgia-Pacific to place in evidence testimony and exhibits related to the duties of Quality Control Supervisor. In the Fourth Circuit, evidentiary rulings are reviewed on an abuse of discretion standard. See Persinger v. Norfolk & Western Ry. Co., 920 F.2d 1185, 1187 (4th Cir.1990). This Court cannot find error in the admission of this evidence.
32
It is hardly an abuse of discretion to admit evidence in a Title VII case that is clearly relevant, if not to a plaintiff's prima facie case, then to the defendant's asserted reason for taking the adverse employment action at issue. It is Georgia-Pacific's contention that having made the business decision to consolidate the Quality Control and Planer Mill Supervisor positions, it chose Carr to fill that position (and demoted Stringfield) because Carr had the necessary qualifications. Evidence regarding the duties of Quality Control Supervisor, which were subsumed in the new consolidated position, is thus relevant to the determination of whether Stringfield or Carr was more qualified for the new position. Stringfield's objection to the admission of the evidence must therefore be rejected.
33
4. The Acknowledgement of the EEOC Determination
34
Included in the Findings of Fact appended to its Final Order, the district court noted, in laying out the procedural history of the case that
35
[i]n December 1991, Stringfield filed a race discrimination charge with the Equal Employment Opportunity Commission ("EEOC"), alleging that Georgia-Pacific had demoted him as a result of his race. The EEOC ruled that Stringfield had not proven race discrimination, either directly or through circumstantial evidence.
36
Slip Op. at 6. Other than in this paragraph, the district court did not mention the EEOC determination in its Findings of Fact, Conclusions of Law or Final Order. Nonetheless, Stringfield contends that by acknowledging the EEOC determination, the district court committed prejudicial error, because neither party offered it in evidence at trial.
37
It is undisputed that the EEOC's reasonable cause determination was never admitted in evidence at trial.* It appears that the trial judge included a reference to it in his Findings of Fact solely to set out the procedural history of the case.
38
Even if this Court were to assume that the trial court erred in "admitting" the result of the EEOC determination, such error does not require reversal. In short, there is no indication that the trial judge relied on the EEOC determination in reaching his decision. In view of the complete absence of anything tending to show that the result of the EEOC's investigation induced the district court to make an essential finding which he would not otherwise have made, reversal would be neither required nor appropriate, even if the evidence had been admitted in error. See Multi-Medical Convalescent and Nursing Center of Towson v. N.L.R.B., 550 F.2d 974, 977 (4th Cir.), cert. denied, 434 U.S. 835 (1977) ("It has long been settled (footnote omitted) that an appellate court will not reverse a judgment in a nonjury case because of the admission of incompetent evidence, unless all of the competent evidence is insufficient to support the judgment or unless it affirmatively appears that the incompetent evidence induced the court to make an essential finding which could not have otherwise have been made.")
39
For the foregoing reasons, the Court concludes that the trial court's factual determinations were not clearly erroneous and that the trial court made no procedural errors warranting reversal. Accordingly, the judgment of the district court is affirmed.
AFFIRMED
*
However, the EEOC determination (although not its specifics) was mentioned in Stringfield's Complaint and several times at trial
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Filed 8/6/14 In re D.M. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re D.M., a Person Coming Under the Juvenile
Court Law.
THE PEOPLE, F068151
Plaintiff and Respondent, (Super. Ct. No. 13CEJ600508-1)
v.
OPINION
D.M.,
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Gary R.
Orozco, Judge.
Arthur Lee Bowie, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A.
White, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P.J., Detjen, J. and Peña, J.
After a contested jurisdiction hearing, the juvenile court found true the allegations
that D.M., a juvenile, possessed a concealable firearm (Pen. Code, § 29610; count 1) and
possessed live ammunition (Pen. Code, § 29650; count 3). The court found not true the
allegation that he discharged a firearm with gross negligence (Pen. Code, § 246.3,
subd. (a); count 2). The court declared D.M. a ward of the court pursuant to Welfare and
Institutions Code section 602. The court reduced count 1 to a misdemeanor and set
D.M.’s maximum period of confinement as one year four months. On appeal, D.M.
contends insufficient evidence supported the juvenile court’s findings on counts 1 and 3.
We disagree and affirm.
FACTS
On June 9, 2013, at about 12:46 a.m., Officer Webb was patrolling in a marked
patrol vehicle. As he drove northbound on Blackstone Avenue by a Pep Boys store, he
noticed a group of three males walking through the parking lot. The group consisted of
D.M., Marcus, and Demar. Officer Webb was about 15 or 20 yards from the males, who
were standing together. D.M. and Marcus were next to each other and Demar was behind
them. Officer Webb saw no one else in the area. The parking lot was illuminated with
tall street lights in the lot, as well as city street lights and lighting along the building.
When Officer Webb glanced a second time, he saw that D.M.’s hand was raised and
holding a revolver. Officer Webb heard a shot fired. He observed that D.M. had a high-
top afro hairstyle and was wearing a grey T-shirt. Marcus had a short afro and darker
skin, was about the same height, and wore a red shirt and dark pants. Officer Webb did
not see what happened to the firearm.
Once the males realized an officer was watching them, they all ran eastbound
across Blackstone Avenue. D.M. and Demar continued running eastbound through the
mall’s parking lot. Marcus turned south and ran through the parking lot. Officer Webb
decided to follow D.M. because he had seen him holding the gun. Officer Webb had no
2
doubt in his mind it was D.M. who had the gun.1 He followed D.M. in the patrol vehicle
while broadcasting his location, direction of travel, and description of the suspects. As
D.M. and Demar ran across curbs and medians, Officer Webb tried to maintain visual
contact as he drove over and around obstacles. He had his headlights on D.M. and had a
clear view of him and his facial features. Officer Webb yelled at D.M. to stop. When
D.M. and Demar ran into an alley and turned into a breezeway between apartment
buildings, Officer Webb was forced to get out of his vehicle. He chased them as they ran
inside an apartment building, then he stood outside, pacing back and forth from front to
back, trying to ensure that no one left the building as he waited for additional officers.
When backup arrived, officers set up a perimeter and called everyone out of the building.
About seven people came out, including D.M. and Demar. They were now wearing
different clothes, but Officer Webb recognized them and still had no doubt D.M. was the
one who had fired the gun.
A woman outside the apartments identified herself as a stepmother. Officer Webb
told her they had surrounded the building and asked everyone to come out because he had
observed D.M. and Demar in the parking lot and D.M. was holding a firearm. A woman
who identified herself as D.M.’s grandmother stood next to D.M. while Officer Webb
interviewed him.
Officer Webb arrested D.M. and read him his Miranda2 rights. D.M. agreed to
speak. He said Marcus was the one who had the firearm and shot it in the parking lot.
1 Officer Webb explained that D.M. and Marcus were standing close together and it
was within the realm of possibility that Marcus was the one with the gun because humans
can make mistakes, but Officer Webb was confident D.M. was the one with the gun and
he chose to pursue and arrest D.M. for that reason.
2 Miranda v. Arizona (1966) 384 U.S. 436.
3
D.M. admitted previously possessing the gun, about four days earlier, but he denied ever
shooting it. He said he held the gun, but never fired it.3
Later, the firearm was found in the Pep Boys parking lot. It was a .38 Special
revolver, loaded with multiple rounds, one of which was expended. Officer Webb
recognized it as the same firearm that he observed and heard fired in the parking lot.
The surveillance video of the parking lot did not record the incident. It skipped
certain periods of time and the manager had no explanation for the missing time.
Defense Evidence
Several of D.M.’s relatives were present outside the apartments that night. Some
lived in the building and others were visiting. They testified as follows.
D.M.’s cousin, Heaven, heard Officer Webb asking D.M. about the other boy he
saw shooting the gun, and then Officer Webb said he saw D.M. shooting the gun. D.M.
told Officer Webb that he did not know the boy and had just met him. The officer said he
saw D.M. with the gun. Heaven interrupted and said, “‘Didn’t you just say you seen the
other guy with the gun?’” Officer Webb waved his hand at her as if she should step back.
D.M.’s cousin, Kashyra, heard Officer Webb say it was an older boy, not D.M.,
who shot the gun. She thought Officer Webb asked D.M. who the older boy was. She
did not hear everything because she was about 15 feet away.
D.M.’s grandmother, Joyce, testified that D.M. had been living with her for about
six months. That night, she approached when Officer Webb was speaking to D.M.
Officer Webb told her she needed to step back, but she stayed to listen. D.M. was
handcuffed. The officer asked D.M. who the tall, older boy was. D.M. said his name
was Marcus. He said he did not know him well. Officer Webb said, “‘I know you [and
Demar] did not shoot the gun, but it was the older boy.’” Officer Webb asked, “‘Did you
ever hold a gun?’” D.M. answered, “‘Yeah, I held a gun.’” He said, “‘About 4 days
3 We disagree with defendant’s claim that “there is absolutely no evidence that the
gun D.M. admitted to possessing is the same firearm alleged in the petition.”
4
ago.’” Officer Webb told him, “‘Oh, the reason why I’m asking you this [is] in case we
check the gun and … it was in a crime, we know that you held it.’” Officer Webb said he
saw who shot the gun and it was the older boy, not either of the two younger boys. Joyce
was surprised the officers arrested D.M. because she thought they would let him go.
On cross-examination, Joyce testified that D.M. admitted to Officer Webb he had
been with Marcus that night. D.M. told Officer Webb they were trying to scare off a man
who had robbed a lady. He said the older boy was trying to scare the man off. But
according to Joyce’s prior statement to the defense investigator, D.M. said they were
trying to scare the man off. Joyce heard D.M. admit to being in possession of a gun four
days earlier.
D.M.’s father, Dana, was about 18 feet away when he overheard D.M. and
Officer Webb speaking. Officer Webb said, “‘Your buddy lied already. I saw you out
running. I had a full description of you both. You ran across the parking lot. Um, I’m
not saying that you was the shooter or anything, but who was the guy that had the gun?
Who was the other tall guy you guys was with?’” Officer Webb said he saw everything
and watched all three of them. He said, “‘You’re not the guy who did the shooting. He
was older than the both of you. What was his name?’” D.M. said, “Marcus.”
On cross-examination, Dana testified that he did not remember telling the defense
investigator that the officer asked D.M. if he had touched the gun and D.M. told him he
had not shot the gun but he had held it four days earlier. Dana did hear people talk about
it, but he did not actually hear D.M. say that.
Juvenile Court’s Findings
After considering the evidence and argument by both counsel, the juvenile court
found counts 1 and 3 true, and count 2 not true. The court did not discuss the basis for its
findings at this time.
At the disposition hearing, defense counsel urged the juvenile court to consider
reducing count 1 to a misdemeanor. Counsel added:
5
“This is his first time ever being in trouble with the law. I know
there was some evidence of D.M.’s own admission of holding the gun four
days prior to his arrest, which, you know, was described as—as momentary
possession. And the Court did find it untrue as to the negligent discharge
[count], so we are asking the Court to consider a reduction to a
misdemeanor.”
The People objected to the reduction, arguing as follows:
“We feel that the Court basically gave D.M. a break in the sense that
[it] found Count 2 not true. He admitted to—I mean, at the very least,
holding a gun, being in possession of a gun a couple of days prior to this
incident. This was an incident where he was with two other individuals and
that there was displaying of this weapon, because supposedly, if you
believe his story, that … there was some problem going on between two
other individuals in that parking lot. This minor ran from the police—he
didn’t just stop when he saw the officer, he ran into an apartment, changed
clothes—I mean, there’s just a lot of evidence that he was not necessarily
cooperative with the officer when he was pursuing the minor and his friend
after this incident happened.”
The juvenile court responded:
“In reading and considering the disposition report and
acknowledging, you know, the evidence that I heard and—I wouldn’t
characterize the Court’s verdict as a break, just that’s the Court’s verdict
that it rendered back on the date of the trial, or else a true finding might be
interpreted as the opposite of a break. And I mean, if the court took it out
on somebody—and I never do that, I base my decisions on the evidence
before the court and the burden of proof that the court must consider. I just
want the record to reflect that, and I know you didn’t mean it that way,
[Ms. Prosecutor], and I understand that.
“But looking at the minor’s prior history, or a lack thereof, this was a
very serious incident and, you know, he states to the officer the reasons
why the firearm was fired and by his friend Marcus, who suddenly pulled it
out as if he was surprised. I have my concerns whether or not he truly was
surprised, given his own admission he held that same gun four days earlier,
so it shouldn’t have been a surprise, and the inference—the reasonable
inference the Court can draw from such evidence is that, you know,
Marcus, or somebody else showed him the gun, so he shouldn’t have been
surprised when the gun was drawn. And the theory upon which perhaps
liability or culpability is found is based on the fact that he was with the
person at the time and more than … merely standing by, but somehow
assisting in the act that was committed that night. But in the Court’s, you
know, universe of dispositions involving minors, the nature of this offense,
6
what he’s done in the way of school, having been raised by his
grandmother, who, for the most part—you know, he’s out late at night on
this particular incident, the Court does not—does not appreciate, and has
concern for that, that better care needs to be exercised with regard to—once
he’s 18 and once he’s out—and I know how tough it is when they get to
that age, and you have to listen to an adult, D.M. No matter what, they’re
still responsible for you, so you must listen to them. But continuing: He’s
in JE Young [Academic Center], mainstream, 11th grader, he’s 17, and this
is his first time before the court. The Court is going to exercise its
discretion with regard to Count 1, the violation of Penal Code
Section 29610, and reduce that to a misdemeanor, having, again, looked at
the nature of the offense, the gravity, the lack of any history as to the minor,
and how he’s performed while living at home with his grandmother.”
DISCUSSION
I. Standard of Review
A juvenile appeal is subject to the same standards that govern adult criminal
appeals. (In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1328; In re Roderick P.
(1972) 7 Cal.3d 801, 809.) “[T]he reviewing court must examine the whole record in the
light most favorable to the judgment to determine whether it discloses substantial
evidence—evidence that is reasonable, credible and of solid value—such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.
[Citation.] The appellate court presumes in support of the judgment the existence of
every fact the trier could reasonably deduce from the evidence. [Citations.]” (People v.
Kraft (2000) 23 Cal.4th 978, 1053.)
“The standard of appellate review is the same in cases in which the People rely
primarily on circumstantial evidence. [Citation.] Although it is the duty of the jury to
acquit a defendant if it finds that circumstantial evidence is susceptible to two
interpretations, one of which suggests guilt and the other innocence [citations], it is the
[trier of fact], not the appellate court which must be convinced of the defendant’s guilt
beyond a reasonable doubt. ‘“If the circumstances reasonably justify the trier of fact’s
findings, the opinion of the reviewing court that the circumstances might also be
reasonably reconciled with a contrary finding does not warrant a reversal of the
7
judgment.”’ [Citations.] ‘Circumstantial evidence may be sufficient to connect a
defendant with the crime and to prove his guilt beyond a reasonable doubt.’” (People v.
Bean (1988) 46 Cal.3d 919, 932-933.)
II. Possession of the Firearm and Ammunition
Penal Code section 29610 provides: “A minor shall not possess a pistol, revolver,
or other firearm capable of being concealed upon the person.” “Possession may be actual
or constructive. Actual possession means the object is in the defendant’s immediate
possession or control. A defendant has actual possession when he himself has the
weapon. Constructive possession means the object is not in the defendant’s physical
possession, but the defendant knowingly exercises control or the right to control the
object.” (In re Daniel G. (2004) 120 Cal.App.4th 824, 831.) Thus, to establish
constructive possession, the prosecution must prove the defendant knowingly exercised a
right to control the firearm, either directly or through another person. (People v. Pena
(1999) 74 Cal.App.4th 1078, 1083-1084; People v. Mejia (1999) 72 Cal.App.4th 1269,
1272.) Possession may be shared with others. (People v. Neese (1969) 272 Cal.App.2d
235, 245.) But mere proximity to the weapon, standing alone, is not sufficient evidence
of possession. (People v. Land (1994) 30 Cal.App.4th 220, 223-224.) Possession can be
shown by circumstantial evidence and may be inferred from the defendant’s conduct.
(People v. Rushing (1989) 209 Cal.App.3d 618, 622-623.)
In this case, the evidence was sufficient to support a finding that D.M. actually
possessed the gun that night, raised it in his hand, and fired it. Officer Webb’s testimony
provided ample evidence. But the juvenile court’s explanation establishes that it did not
find this scenario true. The court explained that it based its findings on evidence that
D.M. was “with the person at the time and more than … merely standing by, but
somehow assisting in the act that was committed that night.” And the court concluded
that D.M.’s admitted possession of “the same gun” four days earlier supported the
reasonable inference that he knew it was present that night and was not surprised when
8
his companion pulled it out. This explanation and the court’s not true finding on the
negligent discharge count demonstrate that the court concluded D.M. did not fire the gun
that night. But, contrary to D.M.’s assertion, this does not mean that D.M. could not have
possessed the firearm that night.
As we have explained, possession can be constructive. Here, the circumstantial
evidence supported findings that D.M. was familiar with the gun his companion was
carrying that night. D.M. admitted he had possessed it four days earlier. It was
reasonable to infer, as the court did, that D.M. knew a companion was carrying the gun
that night and that D.M. was not merely in proximity to it, but had a right to control it and
shared possession of it. Thus, substantial evidence supported the juvenile court’s finding
that D.M. possessed the firearm.
For the same reasons, substantial evidence supported the juvenile court’s finding
that D.M. possessed the ammunition inside the firearm. And the court reasonably
inferred the ammunition was live because one of the rounds was fired that night (see In re
Khamphouy S. (1993) 12 Cal.App.4th 1130, 1134-1135 [prosecutor must prove
ammunition was live, i.e., capable of being fired or detonated from a firearm]).
DISPOSITION
The juvenile court’s orders are affirmed.
9
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827 F.2d 770
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Daniel T. SFERRO, Plaintiff-Appellant,v.Richard P. SEITER, John F. Kinkela, Terry L. Morris, PaulBlair, B. G. Seth, George D. Alexander, J. L.Eichenlaub, Defendants-Appellees.
No. 87-3116
United States Court of Appeals, Sixth Circuit.
August 24, 1987.
ORDER
1
Before RALPH B. GUY Jr. and BOGGS, Circuit Judges, and SUHRHEINRICH, District Judge.*
2
This pro se appellant appeals from a judgment of the district court which dismissed his civil rights action filed pursuant to 42 U.S.C. Sec. 1983. Upon examination of the record and appellant's brief, this panel agrees that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.
3
For the reasons stated in the district court's order of January 23, 1987, its final judgment entered January 28, 1987, is hereby affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.
*
The Honorable Richard F. Suhrheinrich, U.S. District Judge for the Eastern District of Michigan, sitting by designation
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905 So.2d 916 (2005)
BOXER MAX CORPORATION, Appellant,
v.
CANE A. SUCRE, INC., a Florida corporation, Sinuhe Vega, an individual, Michael Vega, an individual, and Sofie Vega, an individual, Appellees.
No. 3D04-884.
District Court of Appeal of Florida, Third District.
May 11, 2005.
Rehearing Denied July 27, 2005.
Patrick J. Goggins, for appellant.
Dell and Schaefer and Danielle L. Rosen (Hollywood), for appellees.
Before GREEN, FLETCHER, and SUAREZ, JJ.
*917 SUAREZ, J.
Plaintiff/Appellant, Boxer Max Corporation ("Boxer Max"), appeals the trial court's order denying attorney's fees for its breach of contract action. Boxer Max claims on appeal it was the prevailing party and, as such, is entitled to fees. We find the Court did not abuse its discretion in not awarding attorney's fees and affirm the Court's order.
Boxer Max is the owner of a building which is divided into two commercial storefronts, 3533 and 3535 N.E. 2nd Avenue. There is a covered paved driveway known as the "patio" and parking spaces on the north side of the building.
Boxer Max and Defendants/Appellees, Cane A. Sucre, Inc., et al. ("Sucre"), entered into a written lease agreement for lease of the 3535 storefront on July 28, 2001. Boxer Max agreed, verbally, that Sucre could place a couple of tables and chairs on the patio for its bakery customers as long as the tenant who had rented the 3533 location did not object. The lease contains the following provision:
In the event of default in the performance of any of the terms, covenants, agreements or conditions contained in this LEASE and, if suit be brought, then the prevailing party shall be entitled *918 to its reasonable attorney's fees and costs through all appellate levels.
The original 3533 tenant moved out and Boxer Max attempted to rent the unit, but found it difficult due to the number of tables and chairs Sucre had placed on the patio and which blocked the entrance to the 3533 storefront. The parties attempted to negotiate a compromise but could not resolve the situation.
Boxer Max filed suit to evict and claimed damages for breach of the lease. There was a non-jury trial on January 27, 2004, and the Court ordered that the Defendants were to keep their tables and chairs on the north half of the patio area and not block ingress and egress to the 3533 storefront. The court awarded the Plaintiff damages in the amount of $1,800.00 representing not the remainder of the rent due on the lease, but representing the amount of rent that could have been charged Sucre for the additional area of the patio in front of 3533 storefront taken up by the tables and chairs.
The "prevailing party", for purposes of attorney's fees, is a party which the trial court determines prevailed on significant issues in the litigation. See Moritz v. Hoyt Enters., Inc., 604 So.2d 807 (Fla.1992); Green Cos. v. Kendall Racquetball Inv., Ltd., 658 So.2d 1119 (Fla. 3d DCA 1995). Just because a party receives a monetary award does not necessarily mean the party is a prevailing party in the litigation. See Zhang v. D.B.R. Asset Management, Inc., 878 So.2d 386 (Fla. 3d DCA 2004). A trial court may determine that neither party has prevailed in a contract action and not award attorney's fees under compelling circumstances. See Miller v. Jacobs & Goodman, P.A., 820 So.2d 438 (Fla. 5th DCA 2002). There is no prevailing party when a settlement occurs. Zhang, 878 So.2d at 386. A review of the transcript shows that the parties actually entered into a settlement agreement at trial with the help of the learned trial Judge. Therefore, the trial court did not abuse its discretion in not finding a prevailing party in this action and in not awarding attorney's fees.
For the above reasons, we affirm the trial court's order.
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652 F.2d 497
William R. PUTNAM, Plaintiff-Appellant-Cross-Appellee,v.Robert R. WILLIAMS, Defendant-Appellee-Cross-Appellant.
No. 80-7389.
United States Court of Appeals,Fifth Circuit.
Unit B
Aug. 4, 1981.
Skinner, Wilson & Strickland, Warner R. Wilson, Jr., Donald F. Walton, Atlanta, Ga., for plaintiff-appellant-cross-appellee.
Troutman, Sanders, Lockerman & Ashmore, Ralph H. Greil, Atlanta, Ga., William W. Stoudenmire, Mobile, Ala., for defendant-appellee-cross-appellant.
Appeals from the United States District Court for the Northern District of Georgia.
Before FRANK M. JOHNSON, Jr., HENDERSON and ANDERSON, Circuit Judges.
HENDERSON, Circuit Judge:
1
This is a diversity action removed from the State Court of Fulton County, Georgia to the United States District Court for the Northern District of Georgia on the motion of the defendant, Robert R. Williams, an Alabama businessman and the appellee. Williams was sued by sports organizer William R. Putnam for damages arising from an unsuccessful attempt to form a professional soccer franchise in Atlanta. The district court granted Williams' motion for summary judgment, whereupon Putnam filed this appeal.
2
In the winter of 1978, Putnam began a search for someone to start an Atlanta franchise of the Super Soccer League. He was advised to approach Williams, a Mobile, Alabama business executive with no previous involvement in sports franchises. Both parties concede that an agreement was reached between them, but they disagree as to its nature. Williams testified that in return for fund raising assistance he was to receive a percentage of the soccer team's stock. (Williams Deposition at 22). Although he agreed that Williams was to help procure investors, Putnam characterized the transaction as a transfer of stock for money. (Putnam Deposition at 18-19, 24). For the purposes of this motion, however, the defendant accepts the plaintiff's statement of facts as true. Thus, the following synopsis of the facts is that recounted by the plaintiff in the trial court.
3
After negotiations beginning May 5, 1978, Putnam and Williams reached a verbal agreement pursuant to which Williams would provide approximately $75,000.00 as "seed money" to start the soccer operation in return for a 50% stock interest in Georgia Soccer, Inc., a corporation to be formed at a later date. Putnam, because of his expertise in operating sports franchises, would run the Atlanta organization for which he would receive the other 50% stock interest in Georgia Soccer, Inc. plus a $3,000.00 monthly salary. The corporation would be the general partner in a limited partnership which would operate Atlanta's team in the Super Soccer League. The agreement was never reduced to writing.
4
Neither the franchise nor the league ever successfully materialized. Williams met with various media officials and held himself out as Putnam's partner in the Atlanta franchise. But, Williams' contributions to the organization attempt were limited to an advance of $2,500.00 to cover some expenses and a request that Putnam contact major creditors to ask for terms of credit. Williams failed to answer Putnam's subsequent calls for additional funds.
5
After Putnam's counsel had made his formal demand for performance, he filed suit in the State Court of Fulton County, Georgia, seeking approximately $45,000.00 damages representing the sum of debts incurred by Putnam while promoting the franchise. According to the complaint, Williams was indebted for this money because he was Putnam's principal and hence, liable for his agent's actions. Williams filed an answer after removing the case to district court generally denying the substantive allegations of the complaint and filed a counterclaim for recovery of the $2,500.00 he had expended for costs. After discovery, Williams amended his answer and counterclaim, alleging that the claim against him was barred by the statute of frauds and that Putnam's violations of state securities laws precluded his recovery.
6
The trial court granted summary judgment in favor of Williams based on Putnam's own deposition testimony which showed that he was not an agent of Williams, but the agent of the unborn corporation. The judge then dismissed Williams' counterclaim without prejudice for lack of independent subject matter jurisdiction because the amount in controversy was less than $10,000. Putnam filed a notice of appeal from the order and judgment. Williams then timely filed a cross-appeal from the dismissal of his counterclaim.
7
On appeal, Putnam contends that the trial court erred in granting summary judgment because there are issues of fact as to the nature of the relationship between the parties and the resulting liability of Williams for the debts incurred in connection with Georgia Soccer, Inc. Putnam asserts four grounds of liability: (1) that Putnam was an agent of Williams; (2) that Williams and Putnam were co-promoters; (3) that Williams and Putnam entered a joint venture to organize the corporation; and (4) that Williams breached a contract for the contribution of money to fund the corporation. Putnam's pleadings were never formally amended to reflect the last three theories. However, in considering a motion for summary judgment, the pleadings may be treated as though they had been amended to conform to the evidence filed with the motion when not objected to by the opposite party. Freeman v. Marine Midland Bank-New York, 494 F.2d 1334, 1339 (2d Cir. 1974); 6 Moore's Federal Practice P 56:10 at 171 (2d Ed. 1976). Both Williams and Putnam fully briefed and argued each of the alternative theories in the district court so we are free on appeal to address each of the arguments.
8
Appellate review of a summary judgment in federal court is governed by the "genuine issue of fact, matter of law" standard set forth in Fed.R.Civ.P. 56. Poller v. CBS, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962). Georgia precedent indicates that whether the evidence supports a finding of a joint venture, as well as whether an act is within the scope of the venture, is usually a substantial question for consideration by the jury. Security Development & Investment Co. v. Williamson, 112 Ga.App. 524, 525, 145 S.E.2d 581 (1965); Bowman v. Fuller, 84 Ga.App. 421, 426, 66 S.E.2d 249 (1951). However, even accepting Putnam's version as testified to in his deposition, there is no genuine issue of fact. We can say without hesitation that, under Georgia law,1 the appellee is entitled to judgment on the agency contention as well as the other grounds constructively raised by the introduction of evidence without objection.
9
As the district court observed, the appellant's own deposition plainly discloses that he was not Williams' agent. Putnam states that he incurred all expenses on behalf of Georgia Soccer, Inc. (Putnam Deposition at 63-64, 79, 111, 153). Although the corporation was never organized and thus there was no principal in the trust sense, Putnam's efforts were intended to promote the envisioned corporate entity only. Moreover, there is no evidence that Williams ever agreed to reimburse Putnam from his own funds or to incur personal liability for each debt. No simple principal-agent association existed.
10
The assertions of joint venturer and co-promoter status are considered together. Partnership principles, such as the rule that partners are agents inter sese, often govern the relationships of joint venturers and co-promoters. Fulton National Bank v. Didschuneit, 92 Ga.App. 527, 532, 88 S.E.2d 853 (1955). See Moran v. H.W.S. Lumber Co., 538 F.2d 238 (9th Cir. 1976); Rayonier, Inc. v. Polson, 400 F.2d 909 (9th Cir. 1968); Singer Housing Co. v. Seven Lakes Venture, 466 F.Supp. 369 (D.Colo.1979). There is joint liability with respect to dealings with third persons if the promoters or venturers have an understanding to that effect. 18 C.J.S. Corporations § 129 (1939). Even though Williams was not Putnam's principal as such, he and Putnam each may have been an agent of the other, if they explicitly agreed to joint liability as co-promoters or joint venturers with respect to given debts. Absent agreement, though, persons do not become venturers as between themselves simply by virtue of the pursuit of joint interests in a common excursion. See Keaton v. Fenton, 147 Ga.App. 579, 579-80, 249 S.E.2d 629 (1978); Gainesville Carpet Mart v. First Federal Savings & Loan Assn., 121 Ga.App. 450, 453, 174 S.E.2d 230 (1970). Similarly, a person who merely subscribes for stock in a corporation before it is legally formed does not become a partner with other subscribers who engage in business on behalf of the proposed corporation. 68 C.J.S. Partnership §§ 42-43 (1950). Press releases referred to Putnam and Williams as partners. To accept that report as conclusive, however, would be tantamount to permitting the press to do our work for us. We must undertake an analysis of the relevant facts in light of the foregoing legal principles in order to classify the business relationship of the parties.
11
Our first concern is whether Putnam and Williams were co-promoters of Georgia Soccer, Inc. or members of a joint venture in its operation. A joint venture relationship is characterized by a number of identifying features. In a joint venture arrangement, two or more people combine property and skill to conduct for profit a single business transaction, as opposed to a continuing business enterprise. The venturers enjoy joint proprietary interest, the right to control each other's conduct, and the obligation to share in losses as well as profits. Bowman v. Fuller, 84 Ga.App. 421, 425, 66 S.E.2d 249 (1951). See Sasportes v. M/V Sol De Copacabana, 581 F.2d 1204 (5th Cir. 1978); DuBuque Stone Products Co. v. Fred L. Gray Co., 356 F.2d 718 (8th Cir. 1966); Crest Construction Co. v. Insurance Co. of North America, 417 F.Supp. 564 (W.D.Okla.1976). Each participant is both a principal for himself and an agent for his associates when acting within his scope of authority on behalf of the venture. Helms v. Young, 130 Ga.App. 344, 346-47, 203 S.E.2d 253 (1973). See De Witt v. Sorenson, 288 F.2d 455 (5th Cir. 1961); Rogers v. Edwards, 413 F.Supp. 933 (D.Minn.1975) aff'd 547 F.2d 1056 (8th Cir. 1977).
12
By comparison, Putnam and Williams agree that the corporation they intended to create was to have been the general partner in a partnership aspiring to provide Atlanta with an indoor soccer team for many years to come. The operational control over this long-term business enterprise was vested in Putnam only. (Putnam Deposition at 19, Williams Deposition at 40.) We cannot say there was no joint venture to promote financing of the limited partnership as a whole. Nonetheless, the single aspect of the deal in which Williams and Putnam shared responsibility was the initial fund raising through solicitation of limited partners. (Williams Deposition at 22, 23.) As a matter of undisputed fact, Williams assumed no duties on behalf of the corporation to be formed. He did not assist in the selection of the franchise's legal counsel, public relations specialists or coach. (Williams Deposition at 54.) Furthermore, Williams neither personally incurred any debt nor did the creditors look to him for payment of the indebtedness on behalf of this envisioned corporate entity. (Putnam Deposition at 63-64, 113.) If he was a co-promoter or joint venturer, as a matter of fact the agreement did not extend to these operational debts of the proposed corporation and as a matter of law he is not liable for their payment.2
13
Putnam's final basis of recovery, as paraphrased by Williams, is the alleged breach of a stock subscription agreement. Yet, to the contrary, Putnam avoids taking the position that a contract for the sale of securities was involved here. His brief, in carefully measured words, states that Williams violated "a joint venture or agency agreement which at some point in time would have involved the Defendant not only as a promoter and incorporator of Georgia Soccer, Inc., but also as a subscriber for the initial shares of stock." (Appellant's Brief at 22). Clearly Putnam hoped to successfully distinguish the oral agreement and a subscription contract so that the agreement would not come within the purview of Ga.Code Ann. §§ 22-504(b) (1968), 109A-8-319 (1962) and Ga.Code Ann. § 97-105 (1975).3 The former sections provide that a contract for the sale of securities, such as a subscription agreement, must be in writing and signed by the party against whom enforcement is sought. See Super Valu Stores, Inc. v. First National Bank of Columbus, Ga., 463 F.Supp. 1183 (M.D.Ga.1979); Murrey v. Specialty Underwriters, Inc., 233 Ga. 804, 213 S.E.2d 668 (1975).
14
Regardless of the label the appellant affixes to it, Williams' contract with Georgia Soccer, Inc. in essence was a subscription agreement. Once again, the appellant's own deposition testimony disproves his allegation to the contrary. He states:
15
A. ... That corporation would be owned 50 percent by Mr. Williams and 50 percent by myself;
16
Q. Mr. Williams was to pay for his 50 percent
17
A. $75,000.00.
18
(Putnam Deposition at 24.) The promise to help secure funding was made on behalf of the limited partnership, not Georgia Soccer, Inc. Promotion was evidently not a material component of Williams' stock purchase agreement with the corporation. Moreover, Williams' status as a subscriber to the stock was determined by the contemplated stock subscription agreement, and the fact that no stock was actually issued does not mean that Williams was simply a lender whose promise need not be in writing to be enforceable. See Hoppe v. Rittenhouse, 279 F.2d 3, 8 (9th Cir. 1960). Instead, failure to incorporate or nonissuance of the stock signifies Williams' agreement to subscribe was never acted on by the contemplated corporation and thus he would be under no obligation, even if the agreement were in writing. National Bank v. Amoss, 144 Ga. 425, 433, 87 S.E. 406 (1915); Ga.Code Ann. § 22-504(a) (1962). Suffice it to say, that since this contract is not in writing and there was no evidence submitted with the motion for summary judgment which would imply performance by Putnam so as to remove the case from the statute of frauds, the oral agreement could not be enforced against Williams in any event. Ga.Code Ann. §§ 22-504(b) (1968), 109A-8-319 (1962). Compare Super Valu Stores, Inc. v. First National Bank of Columbus, Ga., 463 F.Supp. 1183. Thus, the law also precludes recovery by Putnam on a contractual theory.
19
After Putnam's suit was dismissed on the merits, Williams' counterclaim was also dismissed for lack of independent subject matter jurisdiction because the amount in controversy was less than $10,000.00. The appellee contends that the judge abused his discretion in dismissing the compulsory counterclaim because it was ancillary to the main claim and remained alive despite the absence of the jurisdictional amount.
20
As a general rule, when the jurisdiction of the court has attached to an ancillary claim, it will not be ousted by the subsequent dismissal of the main suit on the merits. Kirby v. American Soda Fountain Co., 194 U.S. 141, 24 S.Ct. 619, 48 L.Ed. 911 (1904). The court is not compelled to recognize its continued jurisdiction, but, in its discretion, may proceed with the counterclaim. In fact, the preferred practice, when no extensive proceedings on the ancillary claim have begun in federal court, is to dismiss the counterclaim so that the case may be brought in state court where it belongs. National Research Bureau, Inc. v. Bartholomew, 482 F.2d 386 (3d Cir. 1973). During the oral argument, the appellee urged that dismissal of the counterclaim by the district court was error because the statute of limitations has run on Williams' cause of action in the state court. Hence, he says, the dismissal without prejudice was actually dismissal with prejudice. Williams refers to Ga.Code Ann. § 97-114(c) (1974) which prohibits an action arising from the sale of a security which is brought more than two years from the date of the sale or contract to sell. This limitations period applies to two of the three counts in the appellee's counterclaim.4
21
Assuming the pendency of the action in federal court did not toll the state statute, a point on which we express no opinion, the appellee's claim as to securities laws violations would have been untimely if filed in state court on the day this case was argued before us. When the counterclaim was dismissed in the district court on April 28, 1980 however, the two-year period from the date of the alleged "sale" in early May, 1978, had not elapsed. Williams had the opportunity to file a state action to recover the $2,500.00 based on securities laws violations, but failed to do so. Accordingly, the judgment of dismissal was not prejudicial at the time of its entry. The judge did not abuse his discretion in refusing to retain the ancillary claim.
22
For the foregoing reasons, the judgment of the district court is
23
AFFIRMED.
1
This agreement was reached through a series of negotiations in Alabama and Georgia. But Georgia's conflicts of law statute exhibits a preference for the law of the place of performance of the contract. When writings or contracts are intended to have effect in Georgia, they must be executed in conformity with the laws of that state. Ga.Code Ann. § 102-108 (1963)
2
As a co-promoter or joint venturer, Williams would have been liable in contribution for only one-half of the expenses. See Ga.Code Ann. § 75-206 (1981); 18 C.J.S. Corporations § 139 (1939); 48 C.J.S. Joint Adventures § 12 (1947). Thus, the appellant's prayer for relief is inconsistent with these two theories of recovery. Furthermore, the right to obtain contribution doesn't arise until a judgment has been entered on the debt. Cf. Evans v. Lukas, 140 Ga.App. 182, 230 S.E.2d 136 (1976) (joint tort-feasors). As Williams points out, many of the creditors who provided goods and services to the corporation apparently have not yet filed suit on their claims. (Appellee's Brief at 6). Contribution insofar as these sums are concerned would be premature
3
Section 105 requires the filing of a registration statement in connection with all but certain exempt intrastate securities sales. The appellant contends that the transaction was not a contract to sell a security. The possibility that it was a contract to sell, but one that was exempt from § 105 was not discussed. We do not address these issues because for lack of a writing the agreement is not enforceable anyway
4
In the three-count counterclaim, Williams contended that the $2,500.00 was recoverable because it was a loan, and, alternatively, it was given pursuant to the sale of a security which was void for want of registration in accordance with Georgia securities laws and for violation of Section 10(b) of the Securities and Exchange Act of 1934. The statute of limitation for the alleged state and federal securities laws violations is two years. McNeal v. Paine, Webber, Jackson & Curtis, Inc., 429 F.Supp. 359, 362 (N.D.Ga.1977); Mooney v. Tallant, 397 F.Supp. 680, 681-84 (N.D.Ga.1975); Dehler v. Setliff, 143 Ga.App. 430, 431, 238 S.E.2d 723 (1977)
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274 F.2d 791
60-1 USTC P 9260
UNITED STATES of America,v.VASSALLO, INC., Eugene Vassallo, County of New Castle,Delaware, City of Wilmington, Delaware, DomenickNardo, Intervenor, Appellant.
No. 12973.
United States Court of Appeals Third Circuit.
Argued Jan. 8, 1960.Decided Feb. 4, 1960.
Frederick Knecht, Jr., Wilmington, Del. (Joseph A. L. Errigo, Wilmington, Del., on the brief), for appellant.
Rita E. Hauser, Washington, D.C. (Charles K. Rice, Asst. Atty. Gen., Lee A. Jackson, A. F. Prescott, Attys., Dept. of Justice, Washington, D.C., Leonard G. Hagner, U.S. Atty., Wilmington, Del., on the brief), for appellee.
Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.
STALEY, Circuit Judge.
1
The primary question presented by this appeal is whether the appellant-intervenor, a transferee of the taxpayer, was bound by taxpayer's execution of Tax Collection Waiver-Form 900, extending the assessment and collection period for corporate taxes beyond the original six-year period of limitations.
2
This action arose out of the efforts of the government, for at least the last decade, to collect individual and corporate income taxes from Eugene and Vassallo and Vassallo, Inc. Eugene Vassallo, individually and as sole shareholder and controlling officer of Vassallo, Inc., was found guilty in 1949 of willfully attempting to evade personal and corporate income taxes for the fiscal years ended March 31, 1944, 1945 and 1946. We affirmed the conviction on appeal, United States v. Vassallo, 3 Cir., 1950, 181 F.2d 1006. Jeopardy assessments were made by the Collector of Internal Revenue on November 4, 1949, for income taxes, fraud penalties and interest for the taxable years ended March 31, 1944, through March 31, 1946, against Eugene and Georgie Vassallo and for the taxable years ended March 31, 1942, through March 31, 1946, against Vassallo, Inc. Demands for payment were duly made and notices of federal tax liens on all the taxpayers' property were filed on November 7, 1949, in the office of the Recorder of Deeds for New Castle County, Delaware.
3
The taxpayers thereafter filed a petition in the Tax Court for redetermination of the tax deficiencies and penalties for the years in question. The Tax Court upheld the determinations in Vassallo v. Commissioner of Internal Revenue, 1955, 23 T.C. 656.
4
On June 2, 1955, the individual taxpayers, Eugene and Georgie Vassallo, executed Tax Collection Waiver-Form 900, extending to December 31, 1960, the period for collection of the tax due for the fiscal years ended March 31, 1944, 1945, and 1946. In addition, Eugene Vassallo, the president and sole shareholder of Vassallo, Inc., executed a similar waiver relating to the tax liability of the corporate taxpayer.
5
On March 5, 1957, the United States filed a complaint in the District Court for the District of Delaware for an adjudication of the amount for which the taxpayers were indebted to it and to establish and foreclose all its liens and determine the rights of the other lienors, the County of New Castle, Delaware, and the City of Wilmington, Delaware.
6
A pre-trial hearing followed at which the taxpayers conceded the correctness of the determined deficiencies and the validity of the United States tax liens. Accordingly, the District Court on November 19, 1958, ordered the foreclosure of the liens for federal taxes by the public sale of taxpayers' property. The proposed notices of sale were approved and the sale was made at public auction on April 21, 1959. The United States on April 30, 1959, moved for confirmation of the sale.
7
While this motion was pending, on May 4, 1959, Domenick Nardo moved to intervene, pursuant to Rule 24 of the Federal Rules of Civil Procedure, 28 U.S.C., for the purpose of contesting the confirmation of the sale. The court allowed the motion. Vassallo, Inc., moved to set aside the sale of its property on the same day. Nardo's interest in the property is limited to the premises at 105-107 West Seventh Street, Wilmington, Delaware, and to the personal property thereon. On May 12, 1954, he purchased from Vassallo, Inc., all the personal property on those premises and on June 16, 1954, leased the premises for a period of five years with an option of renewal for a further five-year term. These transactions took place within six years after the initial assessment of the tax but prior to the execution of the waiver by Vassallo, Inc.
8
Following a hearing, the District Court denied the motions of Nardo and Vassallo, Inc., and confirmed the sale as to all the properties.
9
Although the appellant and the government relied quite heavily, both in their briefs and at oral argument, on various sections of the Internal Revenue Codes of 1939 and 1954 pertinent to the validity of the waiver executed by Vassallo, Inc., we need not consider that point, for a proper determination of the appellant's status disposes of the case.
10
In effect, appellant asserts that he is not bound by the actions of his transferor in executing a waiver and can attack its validity even though the transferor could not do so. No authority is cited for this proposition, and indeed none can be found. Appellant does not contend that he is a bona fide purchaser for value without notice, for he cannot. The tax liens were a matter of public record at the time he acquired his interest in the taxpayer's property. Appellant relies on the fact that the waivers were executed, following his purchase, without his consent, express or implied. The short answer to this contention is that his consent was not required to make the waiver valid as against the transferor or as against the appellant. The transferee's rights can rise no higher than those of his transferor. As Judge Weinfeld said in United States v. City of New York, D.C.S.D.N.Y.1955, 134 F.Supp. 374, 378.
11
'The fact that the extension is the result of unilateral action by the taxpayer is of no consequence. Absent congressional enactment the collection of taxes by the Government is subject to no time limit. Congress was not required to fix any period of limitation. In fixing a period of repose and in authorizing its extension upon an agreement by the taxpayer it had the clear right to provide that the extended period shall bind both the taxpayer and his transferees.
12
'There are analogous situations under the Code where voluntary unilateral lateral action by the taxpayer-transferor tolls the statutory period as against his transferee. For example, an appeal to the Tax Court by the taxpayer suspends the limitation period-- it also suspends the period for suits against his transferee. Likewise a waiver agreement executed by the transferor extending the limitation period for assessments is valid as against his transferees.'
13
In accord are United States v. Maddas, D.C.W.D.Pa.1953, 109 F.Supp. 607; United States v. Canadian American Co., D.C.E.D.N.Y.1952, 108 F.Supp. 206, affirmed per curiam, 2 Cir., 1953, 202 F.2d 751; United States v. Markowitz, D.C.N.D.Cal.1940, 34 F.Supp. 827; and Equitable Life Assurance Society of United States v. Moore, D.C.E.D.Ill.1939, 29 F.Supp. 179.
14
The instant case is not distinguishable despite the fact that here the attack is made on the validity of the waiver itself, for the transferor certainly had the right to affirm or ratify the waiver without notifying the transferee or gaining his approval. Assuming the waiver was originally defective, a matter we need not pass upon, the subsequent actions of the corporate taxpayer ratified it. The complaint in this very case alleged that the waiver was executed by 'Eugene Vassallo, as President and on behalf of Vassallo, Inc.' This corporate execution is admitted in paragraph XII of the answer filed by Vassallo, Inc. In addition, on August 5, 1958, following the pre-trial hearing, an order was entered which, after referring to the deficiencies, stated that 'The validity of the tax liens based upon the assessment of these taxes * * * are conceded by all parties according to the pleadings.' Subsequently, on November 19, 1958, a judgment was entered which provided, inter alia, 'That the liens for Federal taxes against the property as described in the complaint be foreclosed and the property sold at public sale * * *.' Both the order and the judgment were approved by all the parties,1 including Vassallo, Inc. We agree with the District Court that whether 'Considered separately or in combination they must be deemed to be a concession by Vassallo, Inc. that the waiver executed by it was in fact a valid corporate act.' (176 F.Supp. 626.) The act was within the power of the taxpayer to make and binds the transferee inasmuch as the taxpayer cannot now be heard to object, neither can the transferee.
15
The judgment will be affirmed.
1
They were not approved by Nardo since he did not intervene until May 5, 1959
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373 So.2d 1115 (1979)
Ex parte Aubrey J. PIERCE.
78-733.
Supreme Court of Alabama.
August 24, 1979.
ALMON, Justice.
WRIT DENIED.
TORBERT, C. J., and BLOODWORTH, FAULKNER and EMBRY, JJ., concur.
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NUMBER 13-05-263-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
RUBEN MARTINEZ DAVILA, JR., Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 36th District Court
of San Patricio County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion by Justice Rodriguez
Appellant, Ruben Martinez Davila, Jr., was charged with aggravated assault
causing serious bodily injury. See Tex. Pen. Code Ann. § 22.02 (Vernon 2003). A jury
found appellant guilty of the lesser-included offense of assault, a class "A"
misdemeanor. See id. § 22.01. The trial court assessed punishment at confinement
for one year, suspended for two years' probation, a $500.00 fine, restitution to the
victim for $1,448.00, and court costs. By one issue, appellant contends the evidence
was legally and factually insufficient to support his conviction. We affirm.
I. Standard of Review
In a legal sufficiency review, we consider all of the properly or improperly
admitted evidence in the light most favorable to the verdict and determine whether,
based on that evidence and reasonable inferences therefrom, a rational jury could have
found the accused guilty of the essential elements of the offense beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Rosillo v. State, 953 S.W.2d
808, 811 (Tex. App.-Corpus Christi 1997, pet. ref'd). We measure the legal
sufficiency of the evidence by the elements of the offense as defined by a
hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim.
App. 1997).
"There is only one question to be answered in a factual sufficiency review:
Considering all of the evidence in a neutral light, was the jury rationally justified in
finding guild beyond a reasonable doubt?" Zuniga v. State, 144 S.W.3d 477, 484
(Tex. Crim. App. 2004). There are two ways in which a court may find the evidence
to be factually insufficient: (1) the evidence supporting the finding, considered alone,
is too weak to support the jury's finding beyond a reasonable doubt; or (2) the
contravening evidence is so strong that the State could not have met its burden of
proof. Drichas v. State, 75 S.W.3d 795, 799 (Tex Crim. App. 2005) (en banc). We
also apply a hypothetically correct jury charge analytical construct in the context of a
factual sufficiency review. Adi v. State, 94 S.W.3d 124, 131 (Tex. App.-Corpus
Christi 2002, pet. ref'd) (citing Malik, 953 S.W.2d at 240).
Under both standards, the jury is the sole judge of the facts, the credibility of
the witnesses, and the weight to be given the evidence. Beckham v. State, 29
S.W.3d 148, 152 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd). Therefore, the
jury may believe all or part of any witness's testimony. Margraves v. State, 34
S.W.3d 912, 919 (Tex. Crim. App. 2000) (en banc). Reconciliation of any conflicts
in the evidence falls within the exclusive province of the jury. Id. In conducting this
review, the Court does not engage in a second evaluation of the weight and credibility
of the evidence, but only ensures that the jury reached a rational decision. Muniz v.
State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993) (en banc). If there is evidence
that establishes guilt beyond a reasonable doubt, and the trier of fact believes that
evidence, the appellate court does not sit as a thirteenth juror in reassessing the
evidence. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988) (en
banc).
II. Analysis
Appellant contends there was legally and factually insufficient evidence to
support his conviction for the lesser-included offense of class "A" misdemeanor
assault. See Tex. Pen. Code Ann. § 22.01 (Vernon 2003). Appellant claims that the
State did not meet its burden of proving that appellant was actually the one who
intentionally, knowingly or recklessly caused serious bodily injury to Quiroz on or about
January 17, 2004.
Section 22.01 of the Texas Penal Code provides, in pertinent part, as follows:
(a) A person commits [assault] if the person:
(1) intentionally, knowingly or recklessly causes bodily injury to
another . . . .
. . . .
(b) An offense under Subsection (a)(1) is a Class A misdemeanor.
Id. § 22.01(a), (b).
Here, testimony indicated that on or about January 17, 2004, the victim, Ralph
Quiroz, a resident of Ingleside, Texas, was invited to attend a party in Aransas Pass,
Texas. Quiroz attended the party with three friends from Ingleside, including Hailey
Hall, Daniel Cady, and Jonathan Martinez. Quiroz testified that appellant asked Quiroz,
Cady, and Martinez to leave the party minutes after they arrived. Quiroz's testimony
further shows that when Quiroz, Cady, and Martinez did not make an immediate
departure from the party after being commanded to leave by appellant, appellant hit
Quiroz with a closed fist in the jaw and broke it.
Quiroz's testimony was corroborated by the testimony of Cady and Martinez,
as well as the testimony of appellant. Martinez testified that appellant was angry
about their being at the party, and that appellant "got in Quiroz's face" in the backyard
right before Quiroz was hit. Cady testified that after arriving at the party, he stayed
in the house while Quiroz and Martinez went into the backyard; he heard someone yell
"fight," and someone told him Quiroz was hurt in the backyard. Cady also testified
he went outside, where he saw Quiroz grabbing his face and dazed with blood
everywhere. In addition, Cady testified that appellant approached him with a raised
fist, yelling and swearing loudly, but that someone held appellant back to prevent him
from hitting Cady. Appellant, in a written statement, indicated that he had gone after
Quiroz, but his girlfriend held him back. Furthermore, appellant indicated in his written
statement that he also chased one of the other Ingleside males out of the house, but
his girlfriend restrained him again.
Considering all of the evidence in the record in the light most favorable to the
verdict, we conclude a rational jury could have found beyond a reasonable doubt that
appellant, himself, was actually the individual who caused Quiroz's injury. See
Jackson, 443 U.S. at 319; Rosillo, 953 S.W.2d at 811. Thus, we conclude the
evidence was legally sufficient to support appellant's conviction for the offense of
class "A" misdemeanor assault.
Moreover, reviewing the evidence in a neutral light, Zuniga, 144 S.W.3d at 484,
and not substituting our own judgment because the jury is the exclusive judge of the
credibility of witnesses and of the weight to be given testimony, Beckham, 29 S.W.3d
at 152, we conclude that the evidence supporting the jury's finding that appellant,
himself, was actually the individual who caused Quiroz's injuries is not so obviously
weak as to undermine confidence in the verdict, nor greatly outweighed by contrary
proof. See Clewis, 922 S.W.2d at 129. Thus, we conclude the evidence was
factually sufficient to support appellant's conviction for the offense of class "A"
misdemeanor assault.
Having concluded that the evidence was legally and factually sufficient to
support appellant's conviction for class "A" misdemeanor assault, we overrule
appellant's sole issue on appeal.
III. Conclusion
Accordingly, we affirm the judgment of the trial court.
NELDA V. RODRIGUEZ
Do not publish.
Tex. R. App. P. 47.2(b).
Memorandum Opinion delivered and
filed this 3rd day of August, 2006.
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Electronically Filed
Intermediate Court of Appeals
CAAP-17-0000892
02-MAY-2018
11:07 AM
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810 F.2d 1040
UNITED STATES of America, Plaintiff-Appellee,v.Anthony AMORIN, Defendant-Appellant.
No. 85-5156Non-Argument Calendar.
United States Court of Appeals,Eleventh Circuit.
Feb. 20, 1987.
Frank J. Janda, III, Lenexa, Kan., for defendant-appellant.
Steve Schlessinger, David O. Leiwant, Nancy L. Worthington, Asst. U.S. Attys., Sonia Escobio O'Donnell, Deputy Chief, Miami, Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before HILL, VANCE and KRAVITCH, Circuit Judges.
PER CURIAM:
1
Defendant Antonio Amorin brought this appeal contesting his conviction of possession of cocaine with intent to distribute, 21 U.S.C. Sec. 841 (1982), conspiracy to distribute cocaine, 21 U.S.C. Sec. 846 (1982), and possession of an unregistered firearm. 26 U.S.C. Sec. 5861(d) (1982). In this appeal, defendant asserts that the district court erred on three grounds. We affirm the decision of the district court.
2
First, the defendant claims that the seizure of approximately 62 pounds of cocaine from the trunk of defendant's car constituted a violation of the fourth amendment. The arresting officers had ample probable cause to believe that a green duffle bag which the defendant placed in the vehicle contained a large quantity of cocaine. Hours prior to the seizure, the defendant had shown to a reliable police informant two green duffle bags containing cocaine. The defendant told the informant that the cocaine would soon be transported from his residence to another location for processing. The information provided by the informant to police was corroborated by visual surveillance of the defendant's residence. After a codefendant was observed placing a green duffle bag in his vehicle, the defendant was arrested by police officers as he was about to enter the car. The subsequent search of the vehicle clearly falls within the automobile exception to a warrant requirement. See, e.g., United States v. Johns, 469 U.S. 478, 105 S.Ct. 881, 83 L.Ed.2d 890 (1985); United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); United States v. Mazzone, 782 F.2d 757 (7th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 141, 93 L.Ed.2d 84 (1986).
3
In Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), the Supreme Court invalidated an automobile search based upon the lack of exigent circumstances justifying the failure to obtain a warrant. In Coolidge a suspect was arrested in his home after a lengthy investigation into a murder. The police suspected that Coolidge's automobile which was parked in his driveway at the time of the arrest contained evidence of the murder. The Supreme Court concluded: "[B]y no possible stretch of the legal imagination can this be made into a case where 'it is not practicable to secure a warrant.' " Id. at 462, 91 S.Ct. at 2036 (quoting Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925)). Unlike Coolidge, exigent circumstances amply justify the search in the case at bar. Police had been unable to obtain a search warrant at the time defendant loaded the car with cocaine. At the time of the arrest, the defendant had walked to the driver's side of the car and was about to embark upon the delivery of the cocaine. Officers wisely chose to conduct an arrest at this moment rather than risk the potential of a high speed chase once the defendant had gotten into the car. Thus, the search of the defendant's car is more closely analogous to a vehicle stop occurring on the open freeway as opposed to the situation in Coolidge where police, for a significant period of time, knew that the vehicle had probably been used in the commission of a murder. See Carlton v. Estelle, 480 F.2d 759 (5th Cir.) (warrantless search of car outside defendant's residence held constitutional in light of insufficient time to attain warrant), cert. denied, 414 U.S. 1043, 94 S.Ct. 546, 38 L.Ed.2d 334 (1973); accord United States v. Cisneros-Mireles, 739 F.2d 1000 (5th Cir.1984); United States v. Gaultney, 581 F.2d 1137 (5th Cir.1978), cert. denied, 446 U.S. 907, 100 S.Ct. 1833, 64 L.Ed.2d 259 (1980).
4
The second ground upon which the defendant attacks the validity of his conviction concerns the seizure of a silencer and machine gun found in the defendant's residence. The only issue raised in this appeal is whether these items were in the plain view of officers at the time of the seizure. At the suppression hearing, the defendant contended that these items were sealed in a box in a dresser drawer. The government presented evidence that these items were located in a topless box on top of a dresser and were in open view. The district court chose to believe the evidence presented by the government. Such a factual conclusion is not clearly erroneous. Thus we hold the seizure of the silencer/machine gun to be constitutionally valid.
5
The defendant's third contention is that insufficient evidence existed to sustain a conviction for conspiracy to distribute cocaine. Although appellant's co-defendant was found not guilty of possession of cocaine and not guilty of conspiracy to distribute, the indictment charges appellant with conspiring with "persons unknown to the grand jury." Ample evidence existed showing that appellant received the 62 pounds of cocaine from unnamed co-conspirators. Upon his arrest, the appellant confessed to drug agents that he had obtained the cocaine from Carlos Guaya, whom appellant identified as the Chief of a Colombian drug smuggling ring. Because the jury could reasonably have concluded that appellant conspired with Guaya and other unnamed individuals, we therefore reject appellant's argument that the conspiracy conviction was not supported by sufficient evidence.
6
For the reasons set forth herein, the decision of the district court is
7
AFFIRMED.
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490 F.2d 1407
U. S.v.Moore
73-1946
UNITED STATES COURT OF APPEALS Fourth Circuit
1/30/74
1
E.D.N.C.
AFFIRMED
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MEMORANDUM OPINION
No. 04-10-00845-CV
Phillip and Benita YOUNG,
Appellants
v.
Emilio and Mary SANCHEZ,
Appellees
From the 45th Judicial District Court, Bexar County, Texas
Trial Court No. 2003-CI-16473
Honorable Michael Peden, Judge Presiding
Opinion by: Phylis J. Speedlin, Justice
Sitting: Catherine Stone, Chief Justice
Phylis J. Speedlin, Justice
Marialyn Barnard, Justice
Delivered and Filed: October 12, 2011
AFFIRMED
Phillip and Benita Young appeal the trial court’s summary judgment rendered in favor of
Emilio and Mary Sanchez, claiming in part that the court had no jurisdiction to grant summary
judgment. We affirm the trial court’s judgment.
FACTUAL AND PROCEDURAL BACKGROUND
This case began in 2003 as a dispute between neighbors Phillip and Benita Young and
Emilio and Mary Sanchez over a concrete patio extension built by the Sanchezes in a five-foot
04-10-00845-CV
easement between the parties’ zero lot line residences in Woodlake Country Club Estates. The
Youngs claimed the patio extension interfered with their use of the easement and damaged their
property. The Youngs filed a declaratory judgment suit seeking confirmation of the easement
and requesting that the court order the Sanchezes to remove all fences, concrete slabs, and other
materials located within the easement. The Sanchezes answered by asserting a general denial
and several affirmative defenses; they claimed the Youngs were informed of the proposed patio
extension and had raised no objection. The Sanchezes also counterclaimed for nuisance and
invasion of privacy based on the Youngs’ construction of a balcony that overlooks the
Sanchezes’ fenced patio and yard.
In August 2005, the parties mediated the dispute with the Honorable Henry Schuble and
reached a settlement which was memorialized in a “Mediated Settlement Agreement” dated
August 10, 2005 and signed by all parties (the “Settlement Agreement”). Paragraph 2 of the
Settlement Agreement provides, “If any dispute arises with regard to the interpretation or
performance of this agreement or any of its provisions . . . the parties agree to try to resolve the
dispute by phone conference with the mediator who facilitated this settlement.” As part of the
Settlement Agreement, the judge selected an independent engineer to assess whether the
Sanchezes’ concrete patio extension was negatively affecting drainage of the Youngs’ property
and whether their home’s foundation had been damaged, and, if so, the estimated cost of any
necessary repairs; in addition, the parties both agreed to install gutters on their property
bordering the easement and to provide a key to any gate on the easement. Paragraph 3 of the
Settlement Agreement requires the parties to comply with the engineer’s recommendations
within 45 days of the engineer’s report. The engineer’s September 26, 2005 report found that
drainage improvements on the Sanchezes’ concrete patio were needed, and included an estimate
-2-
04-10-00845-CV
of $3,393 for the proposed drainage improvements by Lovell Construction Co. When the
Sanchezes commenced work on the drainage project, the Youngs objected that the report did not
address all the issues stated in the Settlement Agreement. In August 2006, the engineer
conducted a second evaluation at the Youngs’ request and prepared a second report in which he
found that the minor foundation movement on the Youngs’ property was caused by shifting of
the clay soil, and could not be attributed to the neighboring patio slab.
Two years passed with no resolution of the dispute. On September 15, 2008, the
Sanchezes filed a “Third Amended Answer and Counterclaims” in which they asserted a new
counterclaim for breach of contract alleging the Youngs had breached the Settlement Agreement
by failing to install gutters on their property as required by Paragraph 5, and by interfering with
the Sanchezes’ ability to comply with the agreement by completing the drainage improvements.
The Sanchezes asserted that they installed gutters on their home in November 2005, within 45
days of the engineer’s report in accordance with the Settlement Agreement, but that the Youngs
had not installed gutters on their property as required by the agreement. The Sanchezes sought
actual damages for the increased cost of completing the drainage project plus attorney’s fees.
The Youngs did not file any pleading in response to the counterclaim.
In 2009, the Sanchezes proceeded with completion of the drainage work on their
property. Lovell Construction’s cost to complete the project had increased by $907 from the
original estimate. The drainage improvements on the Sanchez property were inspected by the
engineer and found to be satisfactory on April 7, 2009.
On August 4, 2010, the Sanchezes moved for a no-evidence summary judgment on the
Youngs’ suit and for a traditional summary judgment on their counterclaim for the Youngs’
breach of the Settlement Agreement and their request for attorney’s fees. The Youngs did not
-3-
04-10-00845-CV
respond. On August 27, 2010, the trial court granted summary judgment in favor of the
Sanchezes, ordering that the Youngs take nothing by their suit and awarding the Sanchezes $907
in breach of contract damages and $9,201.57 in attorney’s fees, plus court costs. The court
further ordered the Youngs to install gutters on their home along the zero lot line wall by
October 31, 2010. 1 The Youngs now appeal.
ANALYSIS
On appeal, the Youngs assert the trial court’s summary judgment must be reversed
because: (1) there was a prior court ruling referring the matter back to mediation; (2) jurisdiction
over the matter was vested in the mediator, not the trial court; (3) the Sanchezes’ summary
judgment motion was barred by laches; (4) the Sanchezes failed to prove compliance with a
condition precedent of the Settlement Agreement which required additional mediation; and (5)
alternatively, the award of attorney’s fees is excessive as a matter of law.
Jurisdiction and Mediation
In their first and second issues, the Youngs assert the trial court had no jurisdiction to
grant summary judgment because any dispute was required to go back to mediation under
Paragraph 2 of the Settlement Agreement, and the case had in fact been referred back to
mediation by the trial court on April 13, 2006. The Youngs contend the Settlement Agreement
and an April 13, 2006 court ruling “vested jurisdiction with the mediator not the trial court.”
Although they assert that “the primary basis for this appeal is the lack of jurisdiction,” and “this
case presents a clear cut issue of law,” the Youngs cite no legal authority in support of their
argument. See TEX. R. APP. P. 38.1(i). Because subject matter jurisdiction cannot be waived,
however, we will briefly address the issue of jurisdiction raised by the Youngs. See Tex. Ass’n of
Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993) (subject matter jurisdiction is
1
The Sanchezes’ brief notes the Youngs installed the gutters in November 2010.
-4-
04-10-00845-CV
never presumed and cannot be waived); see also Tex. Natural Res. Conservation Comm’n v. IT-
Davy, 74 S.W.3d 849, 855 (Tex. 2002) (whether a trial court has jurisdiction is a question of law
subject to de novo review).
As noted, supra, Paragraph 2 of the Settlement Agreement recited the parties’ agreement
to “try to resolve” any dispute arising out of the agreement by phone conference with the
mediator. On April 6, 2006, the Sanchezes filed a “Motion to Enforce” the Settlement
Agreement, asserting the Youngs had blocked their completion of the drainage repairs within the
45-day time frame of the agreement. In their briefs, the parties agree that a hearing was held on
the motion to enforce on April 13, 2006, and that the trial court ruled that the issue should be
referred back to the mediator. 2 The Youngs argue that because the Sanchezes did not challenge
the April 13, 2006 ruling referring the dispute back to mediation, and the parties never returned
to mediation, the referral precluded the subsequent granting of summary judgment in favor of the
Sanchezes in 2010; as noted, supra, the Youngs cite no legal authority in support of this
argument.
Even if there were an order referring the case back to mediation in the record before us, it
would not affect the trial court’s jurisdiction over this case. “Subject matter jurisdiction exists
when the nature of the case falls within a general category of cases the court is empowered,
under applicable statutory and constitutional provisions, to adjudicate.” In re Barnes, 127
S.W.3d 843, 846 (Tex. App.—San Antonio 2003, orig. proceeding) (quoting McGuire v.
McGuire, 18 S.W.3d 801, 804 (Tex. App.—El Paso 2000, no pet.)). Texas district courts are
courts of general jurisdiction and are presumed to have subject matter jurisdiction over all
2
The appellate record does not contain a transcript of the hearing or oral ruling on April 13, 2006, and no written
order referring the case back to mediation appears in the record. The only thing in the record to reflect the trial
court’s ruling is a handwritten notation with the judge’s initials on the cover of the case file stating, “4-13-06 …
referring back to mediator.” The docket sheet, however, contains no entry for an order referring the matter back to
mediation or for any other ruling on the motion to enforce.
-5-
04-10-00845-CV
matters unless the Texas Constitution or another statute confers exclusive jurisdiction elsewhere.
See TEX. CONST., art. V, § 8; TEX. GOV’T CODE ANN. § 24.007 (West 2004); In re Entergy
Corp., 142 S.W.3d 316, 322 (Tex. 2004). Jurisdiction is vested in a court, not in a particular
individual. See Stine v. State, 935 S.W.2d 443, 444 (Tex. App.—Waco 1996, pet. ref’d)
(“Jurisdiction is the authority conferred upon a court by the constitution and laws of the state
which allows a court to adjudicate litigants’ rights and render a judgment.”).
Section 154.021(a) of the Civil Practice and Remedies Code authorizes a trial court to
refer a pending dispute for resolution by an alternative dispute resolution procedure such as
mediation. TEX. CIV. PRAC. & REM. CODE ANN. §§ 154.021(a), 154.023 (West 2011). When a
matter is referred to mediation, the trial court does not lose jurisdiction over the case as a
mediator does not have the power to render judgment; only the trial court has the authority to
render a final judgment. Id. § 154.023(b) (mediator may not impose own judgment on the
issues); id. § 154.071(b) (West 2011) (providing that the trial court may, in its discretion,
incorporate the terms of a settlement agreement into the court’s final decree disposing of the
case). The trial court retains jurisdiction over the case until a final judgment is rendered
disposing of all parties and issues. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001).
After entry of a final judgment, the trial court does not lose jurisdiction over the case until its
plenary power expires. See TEX. R. CIV. P. 329b.
A mediated settlement agreement is enforceable in the same manner as any other
contract. TEX. CIV. PRAC. & REM. CODE ANN. § 154.071(a) (West 2011); Hardman v. Dault, 2
S.W.3d 378, 380 (Tex. App.—San Antonio 1999, no pet.). Here, the Sanchezes requested
affirmative relief from the trial court based on the Settlement Agreement through their summary
judgment motion seeking enforcement of the Settlement Agreement and damages for its breach.
-6-
04-10-00845-CV
Stevens v. Snyder, 874 S.W.2d 241, 243 (Tex. App.—Dallas 1994, writ denied) (once parties
have accepted settlement agreement, enforcement is by suit upon the contract, either for breach
or specific performance). The Youngs, on the other hand, did not file any response to the
Sanchezes’ summary judgment motion, did not answer or plead any defense to the Sanchezes’
counterclaim for breach of the Settlement Agreement, and did not themselves plead for any
affirmative relief based on the Settlement Agreement. See Pickell v. Guaranty Nat’l Life Ins.
Co., 917 S.W.2d 439, 441-42 (Tex. App.—Houston [14th Dist.] 1996, no writ) (court cannot
take action on mediated settlement agreement without an affirmative request to do so through
pleadings); see also Martin v. Black, 909 S.W.2d 192, 195 (Tex. App.—Houston [14th Dist.]
1995, writ denied). The trial court had jurisdiction to rule on the Sanchezes’ summary judgment
motion and to render a final judgment in this case. The Youngs’ jurisdictional challenges are
without merit, and are overruled.
Laches
Next, the Youngs assert the summary judgment on the Sanchezes’ breach of contract
claim was barred by laches because the Sanchezes did not challenge the April 6, 2006 referral
back to mediation and delayed in filing their summary judgment motion. Laches is an
affirmative defense that must be pled and proved by the party asserting the defense. TEX. R. CIV.
P. 94; Jim Rutherford Invs., Inc. v. Terramar Beach Cmty. Ass’n, 25 S.W.3d 845, 852 (Tex.
App.—Houston [14th Dist.] 2000, pet. denied). An affirmative defense that is not specifically
pled is waived. TEX. R. CIV. P. 94; Kinnear v. Tex. Comm’n on Human Rights ex rel. Hale, 14
S.W.3d 299, 300 (Tex. 2000). The Youngs did not assert laches in any pleading in the trial
court—they did not file an answer to the Sanchezes’ counterclaim for breach of contract or a
response to the Sanchezes’ summary judgment motion. There is nothing in the record to show
-7-
04-10-00845-CV
the Youngs ever raised the issue of laches in the trial court or presented any evidence to prove
laches; further, there is nothing to indicate it was tried by consent. Therefore, the defense of
laches was waived. See Cont’l Homes of Tex., L.P. v. City of San Antonio, 275 S.W.3d 9, 15-16
(Tex. App.—San Antonio 2008, pet. denied).
Condition Precedent
The Youngs also assert the Sanchezes were not entitled to summary judgment on their
breach of contract claim because they failed to show their compliance with a condition precedent
to enforcement of the Mediated Settlement Agreement, i.e., to return to the mediator to resolve
any disputes. In their Third Amended Answer and Counterclaims, the Sanchezes pled that they
had attempted to resolve the on-going issues by returning to the mediator. Specifically, the
Sanchezes pled that they had “talked with Judge Schuble and these issues cannot be resolved by
phone conference. Therefore, Counter-Plaintiff brings the issue to this Court for determination.”
In addition, the Sanchezes pled that they had “acted in good faith in order to comply with the
Agreement” by paying their half of the engineer’s fee, installing gutters on the zero lot line side
of their home, and engaging the services of Lovell Construction to make the drainage
improvements to the patio area, which project was then postponed by the Youngs’ objection.
Once a party has generally alleged that all conditions precedent have been performed, the
burden shifts to the other party to specifically deny the conditions precedent that have not
occurred. See TEX. R. CIV. P. 54; Greathouse v. Charter Nat’l Bank-Southwest, 851 S.W.2d 173,
174, 177 (Tex. 1992); Trevino v. Allstate Ins. Co., 651 S.W.2d 8, 11 (Tex. App.—Dallas 1983,
writ ref’d n.r.e.) (plaintiff’s allegation under Rule 54 that all conditions precedent have occurred
shifts the burden of pleading, not proof, to defendant to specifically deny those conditions
precedent that have not occurred). The burden then shifts back to the plaintiff to prove
-8-
04-10-00845-CV
performance of the particular conditions precedent that were specifically denied. Betty Leavell
Realty Co. v. Raggio, 669 S.W.2d 102, 104 (Tex. 1984); Phifer v. Nacogdoches Cnty. Cent.
Appraisal Dist., 45 S.W.3d 159, 174 (Tex. App.—Tyler 2000, pet. denied). However, if the
defendant does not identify a specific condition that has not been complied with, it admits that all
conditions precedent have occurred. Greathouse, 851 S.W.2d at 177; Cmty. Bank & Trust,
S.S.B. v. Fleck, 107 S.W.3d 541, 542 (Tex. 2002) (absent a specific denial, plaintiff is relieved of
burden of proving that conditions precedent to recovery have been met). Here, the Sanchezes
alleged their compliance with the requirements of the Settlement Agreement, including making
an attempt to use the mediator to resolve issues related to the Settlement Agreement. The
Youngs did not file any responsive pleading specifically denying the occurrence of a condition
precedent; therefore, they are deemed to have admitted compliance with all conditions precedent.
Greathouse, 851 S.W.2d at 177; Fleck, 107 S.W.3d at 542. Accordingly, we overrule this issue.
Attorney’s Fees
Finally, the Youngs challenge the award of $9,201.57 in attorney’s fees, claiming it is
excessive as a matter of law because it bears no relationship to the $907 awarded in damages.
They suggest a remittitur of $7,000 to reduce the fee award to a reasonable amount of $2,201.57.
A party may recover reasonable attorney’s fees under section 38.001 of the Civil Practice
and Remedies Code if the party (1) prevails on a breach of contract claim and (2) recovers
damages. TEX. CIV. PRAC. & REM. CODE ANN. § 38.001(8) (West 2008); MBM Fin. Corp. v.
Woodlands Operating Co. L.P., 292 S.W.3d 660, 666 (Tex. 2009). The party need only recover
some amount in damages on its breach of contract claim. MBM Fin., 292 S.W.3d at 666. The
amount of attorney’s fees awarded is only required to bear some reasonable relationship to the
amount recovered. Chilton Ins. Co. v. Pate & Pate Enterprises, Inc., 930 S.W.2d 877, 896 (Tex.
-9-
04-10-00845-CV
App.—San Antonio 1996, writ denied); Cordova v. Sw. Bell Yellow Pages, Inc., 148 S.W.3d
441, 448 (Tex. App.—El Paso 2004, no pet.). Further, the amount of damages awarded is only
one of several factors used in determining the reasonableness of an attorney fee award. 3
Cordova, 148 S.W.3d at 448; Hicks Oil & Butane Co. v. Garza, No. 04-05-00836-CV, 2006 WL
2263896, at *4 (Tex. App.—San Antonio Aug. 9, 2006, no pet.) (mem. op.).
The fee award here is not excessive in view of the summary judgment record and the
five-year period during which the dispute continued after execution of the Settlement
Agreement. The dollar amount of fees awarded is supported by the uncontroverted affidavits of
attorneys Amy M. McLin and Robert E. Hughes, Jr. detailing the hourly rate each charged and
the legal work each performed on behalf of the Sanchezes in relation to enforcement of the
Settlement Agreement and their breach of contract claim. McLin states she worked 55.1 hours
after execution of the Settlement Agreement through the summary judgment at an hourly rate of
$150 per hour for a total of $7,195.71 in attorney’s fees and incurred $130.86 in expenses; her
affidavit is supported by a detailed billing statement covering the five-year period from August
15, 2005 through August 27, 2010. 4 Hughes, the prior lead counsel for the Sanchezes, states he
worked 12.5 hours at an hourly rate of $150 for a total of $1,875.00 in attorney’s fees; his billing
statement covers the period from February 23, 2005 through June 29, 2006. 5 Both attorneys’
affidavits describe their legal experience and familiarity with customary rates for similar legal
3
The factors frequently considered in determining the reasonableness of an attorney fee award are: (1) the time and
labor required, the novelty and difficulty of the question presented, and the skill required; (2) the likelihood that
acceptance of employment precluded other employment; (3) the fee customarily charged for similar services; (4) the
amount involved and the results obtained; (5) the time limitations imposed by the client or the circumstances; (6) the
nature and length of the professional relationship with the client; (7) the expertise, reputation, and ability of the
lawyer performing the services; and (8) whether the fee is fixed or contingent. Arthur Andersen & Co. v. Perry
Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997).
4
McLin’s billing statement is Exhibit 33 to the Sanchez summary judgment motion.
5
Hughes’ billing statement is Exhibit 34 to the Sanchez summary judgment motion.
- 10 -
04-10-00845-CV
services, and opine their legal services were reasonable and necessary on behalf of the
Sanchezes. The Youngs did not object to the Sanchezes’ summary judgment proof of attorney’s
fees in the trial court and do not challenge the sufficiency of the evidence on appeal, only the
disproportionality of the attorney’s fees with respect to the damages.
A disproportionate relationship between the amount of damages and attorney’s fees
awarded does not alone render the attorney fee award excessive, and the Youngs cite no other
factor to show the fee award was unreasonable. See, e.g., Northwinds Abatement, Inc. v.
Employers Ins. of Wausau, 258 F.3d 345, 354-55 (5th Cir. 2001) (applying Texas law and
affirming award of $712,000 in attorney’s fees on a recovery of $74,570 in actual damages under
Insurance Code); Herring v. Heron Lakes Estates Owners Ass’n, Inc., No. 14-09-00772-CV,
2011 WL 2739517, at *5 (Tex. App.—Houston [14th Dist.] Jan. 4, 2011, no pet.) (mem. op.)
(upholding attorney’s fees of $71,804 on a breach of contract damages award of $700 in unpaid
homeowner’s maintenance assessments); Padgett’s Used Cars & Leasing, Inc. v. Preston, No.
04-04-00579-CV, 2005 WL 2290249, at *5 (Tex. App.—San Antonio Sept. 21, 2005, no pet.)
(mem. op.) (holding attorney’s fee award that was approximately six times the actual damages
awarded was not excessive in light of entire record). Here, the summary judgment record shows
the case was prolonged for five years after the Settlement Agreement, due in large part to the
Youngs’ objections and conduct that delayed and prevented the Sanchezes’ ability to fully
comply with the Settlement Agreement. We hold the attorney’s fees are not excessive in light of
the prolonged nature of the litigation, and are supported by the record. Accordingly, we overrule
the Youngs’ challenge to the attorney’s fee award.
- 11 -
04-10-00845-CV
Conclusion
Based on the foregoing analysis, all of the Youngs’ issues are overruled, and the trial
court’s judgment is affirmed.
Phylis J. Speedlin, Justice
- 12 -
| {
"pile_set_name": "FreeLaw"
} |
534 Pa. 97 (1993)
626 A.2d 537
Jeffrey BLUM, a minor, by his parents and natural guardians, Joan and Fred BLUM, and Joan and Fred Blum, in their own right, Appellants,
v.
MERRELL DOW PHARMACEUTICALS, INC., and Rite-Aid Pharmacy, Appellees.
Supreme Court of Pennsylvania.
Argued January 22, 1992.
Decided June 3, 1993.
*98 Thomas R. Kline, Philadelphia, for appellants.
Andrew Rogoff, Joseph E. Conley, Jr. (pro hac vice), Edward W. Madeira, Philadelphia, for appellees.
Before NIX, C.J., and LARSEN, FLAHERTY, ZAPPALA, PAPADAKOS and CAPPY, JJ.
*99 OPINION
NIX, Chief Justice.
Appellants, Jeffrey Blum, a minor, by his parents and natural guardians, Joan and Fred Blum, and Joan and Fred Blum in their own right, appeal from an Order of the Superior Court affirming in part and reversing in part the Order of the Court of Common Pleas of Philadelphia County granting a motion for judgment notwithstanding the verdict ("judgment n.o.v."), in favor of Rite-Aid Pharmacy ("Rite-Aid"), and denying a motion for judgment n.o.v. and/or new trial filed by Appellee, Merrell Dow Pharmaceuticals, Inc., ("Merrell Dow"). The issue before this Court is whether Article I, Section 6 of the Pennsylvania Constitution entitles a party who demands a twelve person jury to a verdict from a jury of twelve persons. For the reasons that follow, we affirm the Superior Court Order and hold that Section 6 of Article I of the Pennsylvania Constitution entitles a party who properly demands a twelve person jury to a verdict from a jury of twelve persons.
This appeal stems from the following facts. In September of 1980, Mrs. Blum gave birth to a son, Jeffrey, who was born with deformities of both legs known medically as talus equinovarus, also described as bilateral "club feet." Subsequently, Mr. and Mrs. Blum, on behalf of their minor son, filed a complaint in trespass alleging that Mrs. Blum's ingestion of the prescription drug Bendectin during her pregnancy was the direct and proximate cause of Jeffrey's deformity. The Blums filed the complaint against Merrell Dow as the manufacturer and Rite-Aid as the supplier of the drug.
On October 24, 1986, Merrell Dow filed and served on the Blums a written demand for a twelve member jury with two alternates. Merrell Dow's request for twelve jurors was granted; however, no alternates were permitted to be chosen before the case went to trial on December 3, 1986.
On December 12, 1986, testimony during the trial was delayed when juror number 3, William G. Parsons, failed to appear. Merrell Dow objected to proceeding without twelve jurors. R.R. 201a. Nevertheless, following a recess during *100 which the trial court was informed that juror number 3 was ill, the trial court decided to continue the trial with only eleven jurors. R.R. 202a-203a. Merrell Dow then moved for a mistrial arguing that it was entitled to a jury of twelve members. R.R. 203a-205a. The trial court denied the Motion for Mistrial. R.R. 206a. On January 20, 1987, the eleven person jury returned a unanimous verdict for the Blums. R.R. 218a-223a. Subsequently, the trial court granted delay damages, granted a motion for judgment n.o.v. to Rite-Aid,[1] but denied a motion for judgment n.o.v. to Merrell Dow.
Both the Blums and Merrell Dow appealed to the Superior Court. Merrell Dow alleged, inter alia, that the trial court erred when it denied Merrell Dow's Motion for Mistrial when juror number 3 was excused from jury service by reason of illness. The Superior Court reversed and remanded for a new trial holding that Merrell Dow's right to a trial by a jury of twelve members pursuant to Section 6 of Article I of the Pennsylvania Constitution had been violated where the verdict rendered against Merrell Dow was by a jury of only eleven members. Blum v. Merrell Dow Pharmaceuticals, Inc., 385 Pa.Super. 151, 560 A.2d 212 (1989).[2] Additionally, the Superior Court affirmed the trial court to the extent it granted Rite-Aid a judgment n.o.v.
The Blums appealed to this Court. On May 7, 1991, this Court granted allocatur limited to the issue of whether the Pennsylvania Constitution, Article I, Section 6, entitles a party who demands a twelve person jury to a verdict of twelve persons. 527 Pa. 614, 590 A.2d 755 (1991). For the reasons that follow, we affirm the Superior Court and hold that the Pennsylvania Constitution, Article I, Section 6, entitles a party *101 who properly demands a twelve person jury to a verdict of twelve persons.
United States Constitution
Our starting point must be the decision of the United States Supreme Court in Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970). In Williams, the Supreme Court departed from a long history of requiring a twelve person jury as a necessary ingredient of the Sixth Amendment[3] guarantee of trial by jury in all criminal cases. Id. (departing from, e.g., Thompson v. Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061 (1898)). The Supreme Court in Williams concluded that the "twelve man panel is not a necessary ingredient of `trial by jury,' and that [Florida's] refusal to impanel more than six members provided for by Florida law did not violate [Williams'] Sixth Amendment rights as applied to the states through the Fourteenth [Amendment]." 399 U.S. at 86, 90 S.Ct. at 1898, 26 L.Ed.2d at 452-53.
In Williams, prior to his trial for robbery in the State of Florida, Williams filed a motion to impanel a twelve person jury[4] instead of a six person jury provided by Florida law in all capital cases. Id. at 80, 90 S.Ct. at 1895, 26 L.Ed.2d at 449. That motion was denied. Williams was convicted as charged and was sentenced to life imprisonment. The District Court of Appeal affirmed. The United States Supreme Court affirmed in a 7-1 decision.
Justice White, writing for the majority in Williams, first indicated "[t]hat history revealed a long tradition attaching *102 great importance to the concept of relying on a body of one's peers to determine guilt or innocence as a safeguard against arbitrary law enforcement." Id. at 87, 90 S.Ct. at 1899, 26 L.Ed.2d at 453. The Court observed "[t]hat same history, however, affords little insight into the considerations that gradually led the size of [the jury] to be generally fixed at 12." Id. (footnote omitted). Even though the size of the jury at common law became fixed at twelve, the Court perceived that particular feature to have been a historical accident. Id. at 89-90, 90 S.Ct. at 1899-1900, 26 L.Ed.2d at 454.
The Supreme Court therefore concluded:
[T]here is absolutely no indication in "the intent of the Framers" of an explicit decision to equate the constitutional and common-law characteristics of the jury. Nothing in this history suggests, then, that we do violence to the letter of the Constitution by turning to other than purely historical considerations to determine which features of the jury system, as it existed at common law, were preserved in the Constitution. The relevant inquiry . . . must be the function that the particular feature performs and its relation to the purposes of the jury trial.
Id. at 99-100, 90 S.Ct. at 1904-1905, 26 L.Ed.2d at 460. The Court reiterated that "the purpose of the jury trial . . . is to prevent oppression by the Government." Id. at 100, 90 S.Ct. at 1905, 26 L.Ed.2d at 460 (citing Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968)). As to the appropriate number of jurors, the Court announced that "the number should probably be large enough to promote group deliberation, free from outside attempts at intimidation, and to provide a fair possibility for obtaining a representative cross-section of the community." 399 U.S. at 100, 90 S.Ct. at 1905, 26 L.Ed.2d at 460. With these goals in mind, the Court found little reason to think that a jury of six was less likely to achieve the stated goals than when the jury numbers twelve. Id. Thus, the Court deduced that "the fact that the jury at common law was composed of precisely 12 is a historical accident, unnecessary to effect the purposes of the jury system *103 and wholly without significance `except to mystics.'" Id. at 102, 90 S.Ct. at 1907, 26 L.Ed.2d at 461 (citation omitted).
The Court in Williams then held that the twelve person panel is not a necessary ingredient of the Sixth Amendment right to "trial by jury" as applied to the states through the Fourteenth Amendment. Id. at 103, 90 S.Ct. at 1907, 26 L.Ed.2d at 462. However, it noted the states are free to determine the value of larger juries and smaller juries and that they are "unrestrained by an interpretation of the Sixth Amendment that would forever dictate the precise number that can constitute a jury." Id.
In Williams, however, the Supreme Court had reserved the question of whether "additional references to the `common law' that occur in the Seventh Amendment[5] might support a different interpretation" regarding jury trials in civil cases. Colgrove v. Battin, 413 U.S. 149, 151, 93 S.Ct. 2448, 2449, 37 L.Ed.2d 522, 526 (1973) (quoting Williams v. Florida, 399 U.S. 78, 92 n. 30, 90 S.Ct. 1893, 1901 n. 30, 26 L.Ed.2d 446, 455 n. 30 (1970)). In Colgrove, a United States District Court Judge placed a civil diversity case before a jury of six in compliance with Local Rule 13(d)(1) of the Revised Rules of Procedure of the United States District Court for the District of Montana. Justice Brennan, writing for the majority, held that a jury of six satisfies the Seventh Amendment's guarantee of trial by jury in civil cases. Id. at 160, 93 S.Ct. at 2454, 37 L.Ed.2d at 531. Moreover, the Supreme Court broke with earlier decisions that stated "trial by jury" means "a trial by twelve" because they were dicta. Id. at 157, 93 S.Ct. at 2452, 37 L.Ed.2d at 529. (citing Capitol Traction Co. v. Hof, 174 U.S. 1, 13, 19 S.Ct. 580, 585, 43 L.Ed. 873 (1899); Maxwell v. Dow, 176 U.S. 581, 20 S.Ct. 448, 44 L.Ed. 597 (1900); American Publishing Co. v. Fisher, 166 U.S. 464, 17 S.Ct. 618, 41 L.Ed. 1079 (1897)).
*104 The Supreme Court concluded that it was the right to trial by jury, not the incidents of trial by jury, that was preserved in the Seventh Amendment.
[B]y referring to the "common law," the Framers of the Seventh Amendment were concerned with preserving the right of trial by jury in civil cases where it existed at common law, rather than the various incidents of trial by jury. In short, what we said in Williams with respect to the criminal jury is equally applicable here: constitutional history reveals no intention on the part of the Framers "to equate the constitutional and common-law characteristics of the jury."
Id. 413 U.S. at 155-56, 93 S.Ct. at 2451-52, 37 L.Ed.2d at 528 (citation omitted) (footnote omitted). It found that twelve members is not a substantive aspect of the right of trial by jury warranting preservation. Id. at 157, 93 S.Ct. at 2452, 37 L.Ed.2d at 529. Moreover, because of the determination in Williams, "that there was `no discernable difference between the results reached by the two different-sized juries,'" the Court in Colgrove held that a jury of six satisfies the Seventh Amendment. Id. 413 U.S. at 158, 93 S.Ct. at 2453, 37 L.Ed.2d at 530 (quoting Williams, 399 U.S. at 101, 90 S.Ct. at 1906, 26 L.Ed.2d at 461.) The Court expressed no view, however, on whether a number less than six would pass constitutional muster.
In 1979, the United States Supreme Court addressed the issue of whether a state criminal trial to a jury of only five persons deprives the accused of the right to trial guaranteed to him by the Sixth and Fourteenth Amendments. Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978). In Ballew, the defendant was charged with a misdemeanor for violating Georgia obscenity statutes and was brought to trial before a five person jury pursuant to Ga. Const., Art. 6, § 16, ¶ 1, codified as Ga.Code § 2-5101 (1975), and to 1890-1891 Ga.Laws, No. 278, pp. 939-938, and 1935 Ga.Laws, No. 38, p. 498. Id. at 226, 98 S.Ct. at 1032, 55 L.Ed.2d 234 (footnote omitted). Justice Blackmun, writing for the majority, held that the five member jury did not satisfy the jury trial *105 guarantee of the Sixth Amendment as applied to the states through the Fourteenth Amendment. Id. at 228, 98 S.Ct. at 1032, 55 L.Ed.2d at 239. In doing so, the Supreme Court concluded "that the purpose and functioning of the jury in a criminal trial is seriously impaired, and to a constitutional degree, by a reduction in size to below six members." Id. at 239, 98 S.Ct. at 1038, 55 L.Ed.2d at 246.[6] Thus, the United States Supreme Court, in interpreting the Federal Constitution, allows trials by less than twelve member juries in civil and criminal cases and prohibits less than six member juries in criminal cases.
We must now determine whether the Williams, Colgrove and Ballew trilogy, which allows trial by less than twelve member juries in civil cases, is properly part of the jurisprudence of this Commonwealth, by virtue of Section 6 of Article I of the Pennsylvania Constitution. As previously stated, we find that it is not.
Pennsylvania Constitution
This Court has emphasized that, in interpreting a provision of the Pennsylvania Constitution, we are not bound by the decisions of the United States Supreme Court which interpret similar federal constitutional provisions. Commonwealth v. Edmunds, 526 Pa. 374, 388, 586 A.2d 887, 894 (1991). Moreover, this Court has recognized that our Constitution can provide greater rights and protections to the citizens of this Commonwealth than are provided under similar provisions of the Federal Constitution. Id. We have stated:
[T]he federal constitution establishes certain minimum levels which are "equally applicable to the [analogous] state constitutional provision." However, each state has the power to provide broader standards and go beyond the minimum floor which is established by the federal Constitution.
Id. (quoting Commonwealth v. Sell, 504 Pa. 46, 63, 470 A.2d 457, 466 (1983)). In Edmunds, Mr. Justice Cappy, writing for *106 the majority of the Court, established the following four part framework which we consider in analyzing our State Constitution:
[L]itigants [must] brief and analyze at least the following four factors:
1) text of the Pennsylvania Constitutional provision;
2) history of the provision, including Pennsylvania case law;
3) related case law from other states;
4) policy considerations, including unique issues of state and local concern, and applicability within modern Pennsylvania jurisprudence.
Depending upon the particular issue presented, an examination of related federal precedent may be useful as part of the state constitutional analysis, not as binding authority, but as one form of guidance. However, it is essential that courts in Pennsylvania undertake an independent analysis under the Pennsylvania Constitution.
526 Pa. at 390-91, 586 A.2d at 895. Therefore, in accordance with Edmunds, we will undertake this four part analysis.
Analysis
A. Text
The text of Section 6 of Article I of the Pennsylvania Constitution provides as follows:
Trial by Jury
Section 6. Trial by jury shall be as heretofore and the right thereof remain inviolate. The General Assembly may provide, however, by law, that a verdict may be rendered by not less than five-sixths of the jury in any civil case.
On its face, Article I, Section 6 preserves the following two things: the right to trial by jury shall be as heretofore; and the right to trial by jury remains inviolate. The Seventh Amendment to the United States Constitution,[7] although *107 worded differently, is similar to the Pennsylvania provision. On its face, the Seventh Amendment provides the right to trial by jury is preserved and no fact tried by a jury shall be otherwise reexamined other than according to the rules of common law. Although worded differently, both provisions retain the right to trial by jury in civil cases where it existed at common law. Therefore, we must undertake an examination of the history of Section 6 of Article I of our Constitution to determine the meaning of that provision and to decide whether our constitutional scheme is the same as the Federal Constitution or requires a verdict from a twelve member jury in a civil case when a demand for a twelve member jury is properly made.
B. The History of the Provision
The second element of the Edmunds analysis is an examination of the history of the provision, including Pennsylvania case law.
Before discussing any case law, however, we must give an overview of the concept of juries of twelve members throughout this Commonwealth's history. The Superior Court in this case gave an excellent overview of the twelve member jury concept in this Commonwealth. The Superior Court stated:
[T]he concept of juries of twelve in this Commonwealth . . . has its origin in a document introduced and adopted in Pennsylvania in 1682 by William Penn and known as "Laws Agreed Upon in England." Comment, The Jury Size Question In Pennsylvania: Six Of One And A Dozen Of The Other, 53 Temple L.Q. 89, 100 (1980).
Penn's other writings discussed the evolution of the jury and his belief that it was a "fundamental" part of the government and important to a free society. However, "nowhere did he endeavor to explain why a jury required *108 twelve members to fulfill its purpose." Id. at 103 (footnote omitted).
One commentator has observed:
. . . Penn's own writings and deeds appear to show that his commitment to twelve-member juries was not based on any reasoned notion that twelve was required to assure fairness, but instead stemming from his adherence to traditional common law principles that required twelve member juries. . . .
Id. at 104-105 (footnote omitted). Likewise, there is little information available that casts any light on the intent of the framers of the Pennsylvania Constitution of 1776 regarding the size of juries. Id. at 106. The same can be said with regard to the Constitutional Conventions of 1790 and 1838. As for the 1873 Convention, discussion was had on the deletion of the unanimity requirement and the elimination of the term "heretofore." Some saw no problem with this since they equated a trial by jury with a jury of twelve men, whereas others believed excising the word "heretofore" would pave the way for a jury of "`three or five or seven . . . [or less than twelve] as a constitutional jury. . . .'" Id. at 112-113. The proposal was defeated without explanation.
The framers at Pennsylvania's 1968 Convention did not consider the jury provision at all, believing that it was beyond their jurisdiction to affect that right. See Comisky & Krestal, Analysis of New Judiciary Article, 40 Pa.B.A.Q. 68, 77 (1968). Even so, our first Constitution of 1776 contained verbiage which has survived and appears in the present-day Article I, § 6. E.g., the 1776 Constitution declared that "trials by jury shall be as heretofore." The Constitution of 1790, and the amended ones of 1838, 1873 and 1968, adopted substantially the same provision. Their language was "trial by jury shall be as heretofore, the right thereof remain inviolate."
Blum v. Merrell Dow Pharmaceuticals, Inc., 385 Pa.Super. 151, 162-63, 560 A.2d 212, 217-18 (1989).
*109 As the Superior Court stated, all of our Constitutions have had the identical language, that being "trial by jury shall be as heretofore." The following language was added to Section 6 of Article I of our Constitution by amendment on May 18, 1971:
The General Assembly may provide, however, by law, that a verdict may be rendered by not less than five-sixths of the jury in a civil case.
Subsequently, the Legislature codified the five-sixths rule by passing section 5104 of the Judicial Code, 42 Pa.C.S. § 5104.[8] Subsections 5104(a) and (b) of the Judicial Code provide:
§ 5104. Trial by jury.
(a) General Rule Except where the right to trial by jury is enlarged by statute, trial by jury shall be as heretofore, and the right thereof shall remain inviolate. Trial by jury may be waived in the manner prescribed by general rules.
(b) Civil verdicts. In any civil case a verdict rendered by at least five-sixths of the jury shall be the verdict of the jury and shall have the same effect as a unanimous verdict of the jury.
42 Pa.C.S. § 5104(a), (b).
We begin our analysis of the case law by noting that Section 6 of Article I of our Constitution preserves the right to trial by jury in cases where the parties would have had that right at common law. Rhines v. Clark, 51 Pa. 96 (1866). In Rhines, the plaintiff brought an action at common law to recover damages for detention and loss because a dam built on a river upon which he was traveling prevented him from navigating that river. The trial court dismissed his common law action because a statutory mode of redress, which did not provide for trial by jury, had been supplied for such injuries. The Supreme Court found the statutory remedy inoperative and void and consequently no bar to the plaintiff's action. In so doing, the Court stated:
*110 In this respect we think the enactment [of the statute] was palpably unconstitutional. "Trial by jury shall be as heretofore, and the right thereof remain inviolate," has been the voice of all our constitutions and, long before any of them were made, the common law had defined the right of navigating navigable streams, and had provided a jury for assessing damages for the interruption of this right. . . . [F]or obstructing a navigable stream the common law did "heretofore" furnish remedy by jury trials; and therefore, however these remedies may be modified by statute . . . trial by jury must be preserved as an ultimate resort. . . .
Id. at 101. Thus, the use of the word "heretofore" in Section 6 of Article I of our Constitution preserves the right to trial by jury in cases where that right existed at common law.
Moreover, a reading of Pennsylvania case law shows that the earliest constitutions in our Commonwealth focused on the preservation of trial by jury, not its extension. Byers and Davis v. Commonwealth, 42 Pa. 89 (1862). In Byers, the Supreme Court held that where vagrant acts authorizing summary convictions existed prior to the adoption of our first constitution, the language "trial by jury" did not extend to all cases, but rather, to matters as theretofore; thus, people convicted under a newly enacted vagrant act were not entitled to "trial by jury." Id. at 96. The Court described the preservation of the right:
Even in England [the mode of trial] was fundamental or constitutional. . . . Its extent and privileges, how and when it was to be enjoyed, were perfectly understood, and in bringing it with them the founders of the Commonwealth doubtless intended to bring it as they had enjoyed it. None of the frame[r]s of government or constitutions under which we have lived have contemplated any extension of the right beyond the limits within which it had been enjoyed previous to the settlement of the state or the adoption of the constitution. No intention to enlarge it appears in the laws agreed upon in England in 1682. Our first constitution, that of 1776, declared that "trials by jury shall be as heretofore." The Constitution of 1790, and the amended one of 1838, *111 adopted substantially the same provision. Their language was, "trial by jury shall be as heretofore, and the right thereof remain inviolate." All looked to preservation, not extension. It is the old right, whatever it was, the one previously enjoyed, that must remain inviolable, alike in its mode of enjoyment and in its extent.
Id. at 94.
Section 6 of Article I of our Constitution secures the right to trial by jury in its accustomed form before rights of person and property shall be finally decided, but does not limit the power of the legislature to furnish modes of civil procedure in courts of justice. Haines v. Levin, 51 Pa. 412, 414 (1866). In Haines, the Supreme Court held that the Act of 1863 was constitutional where it sufficiently secured to the tenant an appeal and trial by jury. The landlord in that case proceeded under the Act of December 14, 1863, to recover possession of leased property. In determining that the Act did not infringe upon the right of trial by jury the Supreme Court stated:
[T]he right of trial as it then existed was secured, and the trial itself protected from innovations which might destroy its utility and its security as a palladium of the liberties of the citizen. But beyond this point there is no limitation upon legislative power in constructing modes of redress for civil wrongs, and regulating their provisions.
Id. Thus, we must determine what the right to trial by jury in its accustomed form is.
In discussing the meaning of the language "trial by jury shall be as heretofore" in Section 6 of Article I of our Constitution, this Court has stated that one of the substantial features of a "trial by jury" is that the jury shall consist of twelve.[9] Justice Mitchell discussed these features in Smith v. *112 Times Publishing Co., 178 Pa. 481, 36 A. 296 (1897) (Mitchell, J.). In Smith, the Supreme Court analyzed whether the Act of 1891 authorizing the Supreme Court to review alleged excessive jury verdicts was unconstitutional because it infringed upon the right to trial by jury. The Court in Smith reversed the trial court and held that the Act of 1891 did not infringe upon one's right to trial by jury and, in so doing, Justice Mitchell discussed the substantial elements of the right of trial by jury.
The provision of the constitution is that
"trial by jury shall be as heretofore, and the right thereof remain inviolate." . . . [I]n the constitution . . . the phrase "shall be as heretofore" refers to the method of trial itself, and means that it shall be preserved with its substantial elements, while the second phrase, "the right thereof remain inviolate," refers to the right to a jury trial before the final decision in all cases where it would have existed at the time of the adoption of the constitution. . . . "Trial by jury is by 12 free and lawful men who are not of kin to either party, for the purpose of establishing the truth of the matter in issue. . . ." [A]ll the authorities agree that the substantial features [of a jury], which are to be "as heretofore," are the number, 12, and the unanimity of the verdict. These cannot be altered, and the uniform result of the very numerous cases growing out of legislative attempts to make juries of less number, or to authorize less than the whole to render a verdict, is that, as to all matters which were the subject of jury trials at the date of the constitution, the right, which is to remain inviolate, is to a jury, "as heretofore," of 12 men, who shall render a unanimous verdict. Matters not at that time entitled to a jury trial, and matters arising under subsequent statutes prescribing a different proceeding, are not included. "The constitutional provisions do not extend the right. They only secure it in cases in which it was a matter of right before. But, in doing this, they preserve the historical jury of 12 men, with all its incidents."
*113 Id. at 498-99, 36 A. at 297 (citations omitted). Thus, it is clear from Smith that one substantial feature of "trial by jury" is that it is made up of twelve jurors.
The substantial features of "trial by jury" were also discussed in Commonwealth v. Collins, 268 Pa. 295, 110 A. 738 (1920). In Collins, the defendant was convicted of a murder that occurred approximately 644 feet from the line dividing two counties. The defendant alleged that if sections 48 and 49 of the Act of 1860 are construed as allowing trial upon indictment in one county for an offense shown to have been committed in an adjoining county, then both sections of the Act violate the provisions of the Constitution which guarantee that "trial by jury shall be as heretofore," and that an accused has a right, in prosecutions by indictment, to a trial by a "jury of the vicinage." In affirming the trial court and holding that the sections of the Act did not violate the Constitution, the Court found that under these sections, a 500-yard strip on the boundary of two or more counties becomes part of the vicinage or neighborhood in which the crime was committed; thus, the state may prosecute and try the offender in either county. Id. at 302, 110 A. at 740. In its analysis of the exceptions argued in the matter, the Court in Collins also discussed the meaning of the language in our Constitution "trial by jury shall be as heretofore."
These constitutional guaranties are reenactments of similar provisions in the Constitutions of 1790 and 1838. The provision that trial by jury shall be as heretofore and the right thereof remain inviolate has been a fundamental principle in this State from the time of Penn's Charter . . .; it was embodied in the Constitution of 1776, and appears ipsissimis verbis in the Constitutions of 1790 and 1838. Its meaning is that a jury shall continue to be the tribunal for the determination of all questions of fact in controversies between individuals and in actions and prosecutions brought by the Commonwealth, its substantial feature being that the jury shall consist of twelve good and lawful men, whose verdict must be unanimous.
Id. at 299, 110 A. 738-739 (citations omitted) (emphasis added).[10]*114 Clearly, our case law indicates that "trial by jury" means a jury of twelve persons.
Appellants argue that there is no rationale in 1991 for following the dicta of cases which commented upon the "heretofore" language in our earlier Constitutions. They submit that the substantial features of "trial by jury shall be as heretofore," as discussed in Smith, have already changed; therefore, Smith is not dispositive and does not serve as guidance to this Court in deciding this appeal. We disagree.
Every Constitution of this Commonwealth has guaranteed to the parties a verdict from a jury of twelve persons where the parties would have had that right at common law. The Constitution, beginning in 1776, has always provided that "trial by jury shall be as heretofore." As stated above, our history and our case law evidence that that language, "trial by jury shall be as heretofore," was understood to guarantee a jury of twelve persons. Thus, Appellants' statement that there is no rationale in 1991 for following Smith and the other cases which commented upon the "heretofore" language in our earlier Constitutions is incorrect.
Appellants are also wrong in their argument that Smith is not dispositive because the substantial features of a jury have changed. Appellants are correct when they state that the "unanimity" feature has changed. The people of this Commonwealth, by constitutional amendment in 1971, altered the unanimity requirement by authorizing the General Assembly to provide by law that a verdict may be rendered by not less than five-sixths of the jury in any civil case. The General Assembly then promulgated the five-sixths verdict in subsection 5104(a) and (b) of the Judicial Code, 42 Pa.C.S. § 5104(a), (b). The unanimity feature, therefore, was changed.
However, Appellants' statement that the other substantial feature, twelve free and lawful men, has changed is incorrect. Appellants emphasize that this Court changed the "men" requirement in Commonwealth v. Maxwell, 271 Pa. 378, 114 *115 A. 825 (1921), when it decided that women were eligible to serve as jurors. However, Appellants' reliance in this appeal on Maxwell which changed the qualifications to be a juror is misplaced. The substantial feature of "trial by jury" is the number twelve. Gender, contrarily, is a qualification of jurors which is controlled by the legislature. See Maxwell, 271 Pa. 378, 388-89, 114 A. 825, 828-29 (1921).[11] Thus, this Court in Maxwell did not change a substantial feature of "trial by jury shall be as heretofore" when it determined that women could serve as jurors; rather, the change involved juror qualifications which did not implicate the constitutional right to trial by jury. Therefore, the substantial feature, the number twelve, was not altered and remains "as heretofore."[12]
Appellants also argue, assuming arguendo that a right to a twelve person jury exists, the 1971 Pennsylvania Constitution and the subsequently enacted five-sixths rule, 42 Pa.C.S. § 5104(b), allow that a decision by ten of twelve jurors constitutes "the verdict of the jury" and it "shall have the same effect as a unanimous verdict of the jury." Appellants' Brief at 34. Therefore, Appellants aver that the decision of ten jurors is always constitutionally sufficient and no constitutional right in this appeal could have been violated where eleven of eleven jurors agree on a verdict.
When the people of this Commonwealth amended Section 6 of Article I of our Constitution in 1971, authorizing *116 the General Assembly to provide for a verdict by not less than five-sixths of the jury in any civil case, they reaffirmed the constitutional right to a jury of twelve persons. A provision of the Constitution will be interpreted, not in a strained or technical manner, but as understood by the people who adopted it. Firing v. Kephart, 466 Pa. 560, 565, 353 A.2d 833, 835 (1976). As previously discussed, in this Commonwealth "trial by jury shall be as heretofore" has always required a jury of twelve persons. When the people of this Commonwealth approved the May 18, 1971 amendment to Section 6 of Article I, they understood the reference to "the jury in any civil case" to be to a jury of twelve persons. Thus, the people of this Commonwealth amended only the unanimity feature and reaffirmed that a jury is made up of twelve persons.
While it is true that under subsection 5104(b) five-sixths of the jury shall be the verdict of the jury and shall have the same effect as a unanimous verdict of the jury, this in no way means that a verdict may be reached by a jury consisting of less than the constitutionally mandated twelve person jury where a demand for such is properly made. It is a logical assumption that if twelve jurors had deliberated in this matter, the five-sixths verdict might never have been reached. Moreover, an entirely different verdict may have been arrived at. Obviously, this would depend upon the leadership and persuasive abilities of the one juror who did not participate in the deliberations. Thus, our history and case law indicate that Section 6 of Article I of the Pennsylvania Constitution requires a twelve person jury where properly demanded, and that five-sixths of the jury shall be the verdict of the jury and shall have the same effect as a unanimous verdict of the jury.
C. Related Case Law from Other States
The third element we will analyze is the case law from other jurisdictions.[13] Subsequent to the United States Supreme *117 Court decisions, a number of states other than Pennsylvania confronted the issue of whether their state constitutions require a twelve person jury.
The highest courts of at least three states Indiana, Iowa and Kansas have held that their constitutions do not require twelve person juries. See In the Matter of Public Law No. 305 and Public Law No. 309 of the Indiana Acts of 1975, 263 Ind. 506, 334 N.E.2d 659 (1975); Pitcher v. Lakes Amusement Co., 236 N.W.2d 333 (Iowa 1975); Bourne v. Atchison, Topeka and Santa Fe Ry., 209 Kan. 511, 497 P.2d 110 (1972). Conversely, the highest courts of at least four other states Alabama, Illinois, Mississippi and Rhode Island have held that their constitutions require twelve person juries. See Gilbreath v. Wallace, 292 Ala. 267, 292 So.2d 651 (1974); Hartgraves v. Don Cartage Co., 63 Ill.2d 425, 348 N.E.2d 457 (1976); Brame v. Garwood, 339 So.2d 978 (Miss.1976); Advisory Opinion to the Senate of the State of Rhode Island and Providence Plantations, 108 R.I. 628, 278 A.2d 852 (1971).[14] A tally of the states that have decided this issue is not dispositive of the issue in Pennsylvania. See Commonwealth v. Edmunds, 526 Pa. at 400, 586 A.2d at 900. However, certain of those cases support our analysis under the Pennsylvania Constitution.
The Alabama Supreme Court held that in cases where the right to jury is preserved inviolate by Article I, Section 11 of the Alabama Constitution of 1901, a jury of twelve is required. Gilbreath v. Wallace, 292 Ala. 267, 292 So.2d 651 (1974). In Gilbreath, an Act providing for a six-member jury was applied to a will contest. However, Article I, Section 11 of the Alabama Constitution of 1901 provides "[t]hat the right of trial by jury shall remain inviolate." The Alabama Supreme Court, in holding that a jury of twelve persons is required where the right to trial by jury is preserved, reasoned that "[w]hile the Federal Constitution . . . establishes minimum standards, the states have the power and are free to provide greater safeguards *118 and to extend this protection through their own organic law the State Constitutions." Id. at 271, 292 So.2d at 654-55. That Court described the following basic principles of constitutional juries in Alabama:
The crucial words which control these principles are "shall remain inviolate." To provide that the right of trial by jury shall remain inviolate is to forbid the state through the legislative, judicial, or executive department one or all from ever burdening, disturbing, qualifying, or tampering with this right to the prejudice of the people. . . . Historically, a jury . . . has consisted of 12 people selected from the community in which the trial is to be held.
Id. at 271-72, 292 So.2d at 655 (citation omitted). The Court was not persuaded by the United States Supreme Court decisions in Williams and Colgrove to abandon its case law and constitutional history. In refraining from adopting the Williams and Colgrove analysis, the Court stated that "[i]t must be remembered that our duty is to speak the will of the people of this state, as that will is embodied in Section 11 of the Alabama Constitution of 1901." Id. at 272, 292 So.2d at 656. Thus, the Supreme Court of Alabama refused to part with its constitutional history and case law, and determined that juries of twelve people are constitutionally required.
Most significantly, after the United States Supreme Court decision in Williams, the Supreme Court of Rhode Island, in an advisory opinion to the Senate, held that the jury referred to in Section 15 of Article I of the Rhode Island Constitution[15] requires a panel of twelve. Advisory Opinion to the Senate of the State of Rhode Island and Providence Plantations, 108 R.I. 628, 278 A.2d 852 (1971). After a thorough analysis of Rhode Island's constitutional history, that court reasoned:
Although the Supreme Court in Williams described the common-law requirement that a petit jury be composed of precisely twelve people as an "historical accident," the Court obviously could not share this observation made in June 1970 with the framers and adopters of the Rhode Island *119 Constitution. Accident or not, it is our firm belief that in 1842 when the draftsmen and the voters said that the right to a jury trial was to remain inviolate, they were extending to an accused, or any litigant who might be entitled to a jury trial, the immutable right to have his case considered in the courts of this state by petit jury composed of exactly twelve persons.
Id. at 640, 278 A.2d at 858. Thus, the Rhode Island Supreme Court, after analyzing its case law and constitutional history, went above the minimum standards set forth by the United States Supreme Court in Williams and determined that, under the Rhode Island Constitution, a jury is composed of twelve members.
We similarly conclude that, because of Pennsylvania's history and case law, a jury must be composed of twelve persons where that right existed at common law and the demand for a twelve person jury is properly made. If this Court changed a right that had been understood and guaranteed to the people of this Commonwealth for over 200 years, we would be breaching our duty to speak the will of the people of this Commonwealth. We refuse to breach that duty by allowing a jury to be composed of less than twelve jurors. Only the people of this Commonwealth, by constitutional amendment, may make such a change.
D. Policy Considerations
The last prong of the Edmunds test is an examination of policy considerations and their applicability within modern Pennsylvania jurisprudence. One policy consideration Appellants request us to consider is the financial burden a jury of twelve persons presents for this Commonwealth.
Appellants argue that the financial and social costs of imposing a twelve person deliberative jury requirement cannot be justified in the operation of the courts of this Commonwealth and in the Court of Common Pleas of Philadelphia County. We are aware that the financial burden on the Commonwealth and its counties to ensure a twelve member jury to a party who is entitled to and properly demands such is a substantial *120 one. However, financial burden is of no moment when it is weighed against a constitutional right. If the citizens of this Commonwealth are concerned about the financial burden juries of twelve people present for the Commonwealth and its counties, the citizens may solve the problem by amending the Pennsylvania Constitution to allow juries to be composed of less than twelve.[16]
We find that the most substantial policy consideration is that the people of this Commonwealth have understood since our first Constitution was adopted in 1776 that a "trial by jury" meant a jury composed of twelve persons. Given that understanding of the constitutional right, it is not for the legislative, executive, or judicial branch to change that right; rather, it is exclusively left to the people of this Commonwealth to amend the twelve member jury requirement if they desire that change.
Conclusion
Our constitutional history and case law mandate that we refrain from adopting the United States Supreme Court analysis in Williams, Colgrove, and Ballew, which held that verdicts from juries of less than twelve did not violate the Federal Constitution. This Court is under a duty to guarantee that the intent of the people of this Commonwealth in adopting the Pennsylvania Constitution is carried forward. We are convinced that, when Pennsylvania adopted its first Constitution in 1776, the framers assumed that a jury meant twelve persons. This Court has repeatedly adopted that view. See, e.g., Commonwealth v. Collins, 268 Pa. 295, 110 A. 738 (1920); Smith v. Times Publishing Co., 178 Pa. 481, 36 A. 296 (1897). Therefore, even though Section 6 of Article I of the Pennsylvania Constitution does not explicitly state that a jury is constituted of twelve members, our constitutional history and *121 case law make it apparent that "trial by jury" means a jury of twelve persons.
It is clear from this Commonwealth's history and case law that our Constitution in 1776 meant "trial by jury" was a jury of twelve. Moreover, that constitutional guarantee has been consistently reaffirmed by the people of this Commonwealth and the only way to change it is by constitutional amendment. Thus, the people of this Commonwealth exclusively have the power to reduce the number of people required by our Constitution to constitute a jury.
In the instant case, Merrell Dow was deprived of its constitutional right of trial by jury when the trial judge overruled its Motion for Mistrial and proceeded to verdict with only eleven jurors, after one juror became ill. Section 6 of Article I of the Pennsylvania Constitution entitles Merrell Dow to a verdict from a jury of twelve persons where a twelve person jury was properly demanded and was available at common law.
Accordingly, we affirm the Order of the Superior Court which reversed the Court of Common Pleas and remanded for a new trial.
Justice McDERMOTT did not participate in the consideration or decision of this case.
Justice LARSEN files a concurring opinion in which Justice PAPADAKOS joins.
LARSEN, Justice, concurring.
I concur in the result reached by the majority; I believe, however, that the rationale employed by the majority in reaching that result is not appropriate in this case.
In Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991), this Court stated that, as a general rule, it is important that litigants brief and analyze certain factors in each case implicating a provision of the Pennsylvania Constitution. Such factors are intended to assist the courts in Pennsylvania in undertaking an independent analysis of a provision of the *122 Pennsylvania Constitution, vis-a-vis the United States Constitution.
The sole issue on appeal in this case is whether Article I, § 6 of the Pennsylvania Constitution entitles a party who demands a twelve person jury to a verdict from a twelve person jury. Once it is established that the minimum guarantees afforded by the United States Constitution are met, the focus of this appeal is Article I, § 6 of the Pennsylvania Constitution. The instant issue is resolved by interpreting the following language from Article I, § 6: "trial by jury shall be as heretofore"; this language has been included in every Pennsylvania Constitution since 1776. Where the words in the Constitution are plain, they must be given their common meaning. Breslow v. School Dist. of Baldwin Twp., 408 Pa. 121, 182 A.2d 501 (1962). Interpretations of related case law from other states or policy considerations involving issues of state and local concern are irrelevant to a determination by this Court of what the citizens of Pennsylvania understood these words to mean when they adopted Article I, § 6 of their Constitution.
The extended four-part analysis set out in Edmunds is appropriate only when there is a question of whether our constitution provides a source of individual rights which is alternative to and independent of rights guaranteed by the United States Constitution. Here, appellant grounds his claim only upon Article I, § 6 of the Pennsylvania Constitution. It is unnecessary, therefore, to subject this case and, indeed, every case involving a provision of the Pennsylvania Constitution to the four-part Edmunds analysis as a matter of course.
Justice PAPADAKOS joins in this concurring opinion.
NOTES
[1] The Superior Court affirmed the judgment n.o.v. as it pertained to Rite-Aid, relying on its decision in Coyle v. Richardson-Merrell, Inc., 372 Pa.Super. 118, 538 A.2d 1379 (1988), aff'd, 526 Pa. 208, 584 A.2d 1383 (1991), wherein the Superior Court held that a pharmacist could not be held strictly liable under § 402A of the Restatement Second of Torts as a supplier in the chain of a prescription drug. Accordingly, in the instant case, allocatur was denied as to that issue and, therefore, that issue will not be addressed.
[2] The Superior Court, finding this issue dispositive, did not address any other claims raised by Merrell Dow.
[3] The Sixth Amendment of the United States Constitution provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witness against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
U.S. Const. amend. VI.
[4] Williams also filed a "Motion for a Protective Order," seeking to be excused from the requirements of Rule 1.200 of the Florida Rules of Criminal Procedure.
[5] The Seventh Amendment provides:
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. U.S. Const. amend. VII.
[6] The Supreme Court acknowledged that the Court could not discern a clear line between six member and five member juries. However, the Court relied on the assembled data which questioned the reliability and appropriate representation of juries smaller than six. Id.
[7] The Seventh Amendment provides:
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
U.S. Const. amend. VII
[8] Act of July 9, 1976, P.L. 586, No. 142, § 2 (as amended Apr. 28, 1978, P.L. 202, No. 53, §§ 10(57), 21).
[9] The other substantial feature was that the jury's verdict must be unanimous in civil and criminal cases. However, by the authority of the language added to Article I, Section 6 by constitutional amendment in 1971, the General Assembly replaced the unanimity requirement in civil cases with the five-sixths rule of subsections 5104(a) and (b) of the Judicial Code, 42 Pa.C.S. § 5104(a), (b).
[10] Accord Commonwealth v. Eckhart, 430 Pa. 311, 242 A.2d 271 (1968); Commonwealth v. Fugmann, 330 Pa. 4, 198 A. 99 (1938).
[11] In holding that women were eligible to serve as jurors, the Court stated:
"[A]ll the authorities agree that the substantial features which, are to be "as heretofore" are the number twelve and the unanimity of the verdict. . . . [O]ther changes, such as the qualifications of the jurors themselves, the vicinage from which they shall come, the mode of selecting and summoning them, the regulation of venires, and notably, even the matter of challenges . . . have been held to be within legislative control."
Id. 271 Pa. 378 at 385, 114 A. at 827 (quoting Smith v. Times Publishing Co., 178 Pa. 481, 499, 36 A. 296, 297 (1897)).
[12] As discussed in Section D, Policy Considerations, infra, we are of the opinion that a constitutional amendment is required to change the substantial feature of the number twelve as was required to change the unanimity feature.
[13] We note Appellants have not presented related case law from other states. However, we analyze certain case law from other jurisdictions since it supports our analysis.
[14] For an analysis of the relevant constitutional provision of these seven states, see, Comment, The Jury Size Question In Pennsylvania: Six Of One And A Dozen Of The Other, 53 Temple L.Q. 89, 91 n. 16 (1980).
[15] Article I, Section 15 of the Rhode Island Constitution provides: "The right of trial by jury shall remain inviolate."
[16] Appellants also argue that the principles of fairness and equity dictate that a unanimous eleven person jury verdict in the absence of a showing of prejudicial error is valid. However, as previously stated, the one missing juror may have had the persuasive ability which may have resulted in an entirely different verdict. Thus, because Merrell Dow was denied a constitutionally mandated twelve person jury that it properly requested, Merrell Dow was prejudiced.
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628 F.2d 875
80-2 USTC P 9748
UNITED STATES of America and Internal Revenue ServiceOfficer Jay M. Wendell, Plaintiffs-Appellees,v.E. L. HARRIS, Sr., President Fresno Manufacturing Co.,Defendant-Appellant.UNITED STATES of America and Internal Revenue ServiceOfficer Jay M. Wendell, Plaintiffs-Appellees,v.FRESNO FARMS, INC., E. L. Harris, President, Defendant-Appellant.UNITED STATES of America and Internal Revenue ServiceOfficer Jay M. Wendell, Plaintiffs-Appellees,v.FRESNO STRUCTURAL and Hangar Fabricators, Inc., E. L.Harris, Sr., President, Defendant-Appellant.UNITED STATES of America and Internal Revenue ServiceOfficer Jay M. Wendell, Plaintiffs-Appellees,v.E. L. HARRIS, Sr., President, Patty's Ranch, Inc.,Defendant-Appellant.
Nos. 78-2958 to 78-2961.
United States Court of Appeals,Fifth Circuit.
Oct. 23, 1980.
Robert L. Rolnick, Andrew G. Shebay, III, Houston, Tex., for defendants-appellants.
M. Carr Ferguson, Asst. Atty. Gen., Gilbert E. Andrews, Tax Div., Dept. of Justice, Chief, Appellate Sec., Washington, D. C., Carleton D. Powell, Aaron P. Rosenfeld, Tax Div., Dept. of Justice, Washington, D. C., for plaintiffs-appellees.
Appeals from the United States District Court for the Southern District of Texas.
Before SIMPSON, HILL and HATCHETT, Circuit Judges.
SIMPSON, Circuit Judge:
1
In these consolidated appeals the taxpayer, E. L. Harris, Sr., seeks to overturn a district court order enforcing four summonses issued by an Internal Revenue Service (IRS) special agent pursuant to § 76021 of the Internal Revenue Code. Harris argues (1) that the district judge abused his discretion by denying taxpayer pretrial discovery; and (2) that the district judge's curtailment of the scope of witness interrogation at the summons enforcement hearing denied the taxpayer his right to an adversary hearing. Applying the principles set forth in United States v. LaSalle National Bank, 437 U.S. 298, 98 S.Ct. 2357, 57 L.Ed.2d 221 (1978), we find the district judge acted within his discretion, and affirm.
FACTS
2
In late August of 1977 an IRS special agent served four summonses on Harris in his capacity as president of the four corporate parties. The substantially identical summonses directed Harris to appear before the agent at which time he was to give testimony and produce the books and records of the corporations. Harris refused by mailing a document entitled "Notice of Protest" to the IRS. The protest alleged the summonses to be unenforceable because they were issued solely for the purpose of gathering evidence for the criminal prosecution of Harris, his wife, and/or his corporations.
3
Upon the government's request the district court ordered the taxpayer to appear before the court to show cause why the summons should not be enforced. See I.R.C. §§ 7402(b), 7604(a).2 Harris immediately began a massive discovery effort, including notices to depose three IRS agents and notices to produce at the deposition hearings every IRS document or paper that might be remotely related to the tax liability of Harris or his corporations. Five days later Harris filed answers to the government petitions. Each answer admitted every allegation in the petition to enforce the summonses, but stated that the taxpayer had protested the production of the records and denied that the records were subject to a § 7602 summons. Record vol. 1 at 39-40.
4
The government responded to Harris' discovery attempts by filing a motion for a protective order prohibiting the discovery. Fed.R.Civ.P. 26(c)(1). The accompanying memorandum of law argued that the attendant delay and likely compromise of confidential sources would prejudice the investigation. The memorandum pointed out that the taxpayer had not pled a specific reason why the summonses should not be enforced. However, the government assumed in its memorandum that the discovery was aimed at evidence that the summonses were issued solely to obtain evidence for a criminal prosecution as alleged in the taxpayer's "Notice of Protest".
5
The government's petition was heard on August 23, 1977. At the beginning of the hearing the taxpayer's counsel requested the court to "formally rule on the government's motion for protection that was heard yesterday in chambers." Tr. at 4. The court granted the motion. The government introduced testimony that the investigation was still in the fact finding stages; that no referral had been made to the Department of Justice recommending criminal prosecution;3 and that the requirements established in United States v. Powell, 379 U.S. 48, 85 S.Ct. 248, 13 L.Ed.2d 112 (1964), were satisfied.4
6
During the course of the hearing four IRS special agents were examined in depth by counsel for both sides, as indicated by the 127 page transcript of the hearing. A major portion of the taxpayer's inquiry concerned the government's purpose in issuing the summonses. Harris claims that the district judge denied his right to an adversary hearing5 by sustaining government objections to seventeen questions. After examination of all witnesses Harris moved to continue the hearing so that he could have discovery on the sole criminal purpose issue. The motion was denied and the court entered an order enforcing the summonses.BACKGROUND
7
The IRS is duty bound to inquire after persons who may be liable for the payment of taxes. I.R.C. § 7601; Donaldson v. United States, supra, 400 U.S. at 523, 91 S.Ct. at 539, 27 L.Ed.2d at 585. Section 7602 of the Internal Revenue Code gives the IRS broad investigatory authority to examine relevant materials and to summon persons to appear for the purpose of producing relevant records or giving testimony under oath. Although a § 7602 summons need not be supported by probable cause, the summons must be issued in good faith, for a purpose authorized by the statute and before the case is referred to the Department of Justice with a recommendation for criminal prosecution. See notes 3 and 4, supra. A taxpayer who receives a summons is required to attend but may refuse in good faith, if he intends to challenge the summons for lack of good faith on the part of the IRS. See United States v. Roundtree, 420 F.2d 845 (5th Cir. 1970). The IRS does not have direct authority to enforce a challenged summons; that authority is vested in the district courts. I.R.C. §§ 7402(b), 7604(a).
8
Before the district court may enforce a § 7602 summons the taxpayer is generally entitled to an adversary hearing (summons enforcement hearing) where "he 'may challenge the summons on any appropriate ground' . . . ." United States v. Powell, supra, 379 U.S. at 58, 85 S.Ct. at 255, 13 L.Ed.2d at 119, quoting Reisman v. Caplin, 375 U.S. 440, 449, 84 S.Ct. 508, 513, 11 L.Ed.2d 459, 466 (1964). An appropriate ground for challenge is that the summons was issued in bad faith. A summons is issued in bad faith if it is issued for an improper purpose such as to harass the taxpayer, to force the taxpayer to settle a collateral suit or for the sole purpose of gathering evidence for a criminal prosecution. United States v. Powell, supra, 379 U.S. at 58, 85 S.Ct. at 255, 13 L.Ed.2d at 120; United States v. LaSalle, supra, 437 U.S. at 314, 98 S.Ct. at 2368, 57 L.Ed.2d at 234.
9
A taxpayer's right to an adversary hearing on the good faith issue is not absolute. In United States v. Roundtree, supra, we held that when a § 7602 summons issues "the taxpayer is entitled to investigate the IRS's purpose where such purpose has been put in issue and may affect the legality of the summons." Id. at 852 (emphasis added). This court expanded upon the acceptable method for placing in issue the purpose behind the summons in United States v. Newman, 441 F.2d 165 (5th Cir. 1971). Newman held that before a taxpayer is entitled to the adversary summons enforcement hearing, he "must raise in a substantial way the existence of substantial deficiencies in the summons proceedings." Id. at 169 (footnote omitted). Newman did not decide whether the mere allegation that the summons was issued solely for criminal prosecution is sufficient to justify a district court allowing the deposition of the IRS agent (and the attendant adversary hearing). That issue was directly addressed by the court in United States v. Wright Motor Co., Inc., 536 F.2d 1090 (5th Cir. 1976), rehearing denied, 542 F.2d 576. There we approved a district court order requiring the agent to answer questions at a deposition even though the taxpayer had simply alleged, without alleging a factual background or providing a supporting affidavit, that the summons was issued solely to gather evidence for a criminal prosecution. Wright reviewed the Roundtree decision:
10
We understand Roundtree, supra, to have established the principle that when a taxpayer alleges in a responsive pleading that the material sought by the IRS is to be used solely for a criminal prosecution, or that the IRS is engaged upon a course of personal harassment, the taxpayer is entitled to investigate the IRS' purposes through deposition of the special agent.
11
Wright, supra, 536 F.2d at 1094.
12
In the instant case the taxpayer's responsive pleading merely admitted all the allegations in the government's petition and stated that the taxpayer had previously protested the summons and that the taxpayer denied the records were subject to the summons. Record vol. 1 at 39-40. Only in the notice of protest did the taxpayer allege that the sole purpose of the summons was in aid of criminal prosecution. The protest was not before the district judge until sometime after the court, at taxpayer's explicit request for a ruling granted the government's motion for a protective order denying discovery. Under these circumstances the district judge would have properly exercised his discretion under Roundtree, Newman, and Wright by denying the adversary hearing and deciding the summons enforcement issue on the pleadings. However, the judge also was within his discretion when he decided to proceed to the evidentiary hearing. Although the taxpayer's responsive pleading did not explicitly allege the sole criminal purpose defense, the parties evidently treated it as the primary issue in the case. The government's memorandum of law recognized it as the primary issue. Accordingly, we assume the district court found that the defense was adequately raised.
13
We hasten to add that the preferred method of raising the defense is to specifically allege the defense and to specifically allege supporting facts either in the pleadings or a supporting affidavit. Indeed, at least one circuit has held that the taxpayer is not entitled to an adversary hearing unless he opposes the government's allegations by affidavit and that legal conclusions or memorandum of law are insufficient. United States v. Garden State National Bank, 607 F.2d 61, 71 (3d Cir. 1979); see Thornton v. United States, 493 F.2d 164, 167 (3d Cir. 1974).6
PREHEARING DISCOVERY
14
We have previously upheld a district court's decision to deny broad discovery of IRS documents. United States v. Roundtree, supra, 420 F.2d at 851-52. Therefore, the following discussion addresses only the issue of whether the district judge abused his discretion by denying the taxpayer the right to depose the IRS agents.
15
The Federal Rules of Civil Procedure, including the discovery provisions, are applicable in IRS summons enforcement proceedings "except as otherwise provided by statute or by rules of the district court or by order of the court in the proceedings." Fed.R.Civ.P. 81(a)(3). The Advisory Committee Note of 1946 explained that while the rules are generally applicable, the above quoted portion "allows full recognition of the fact that the rigid application of the rules in the proceedings themselves may conflict with the summary determination desired . . . . (I)t is drawn so as to permit application of any of the rules in the proceedings whenever the district court deems them helpful." Fed.R.Civ.P. 81(a)(3) (Advisory Committee Note of 1946). See generally, 7 J. Moore, Federal Practice, P 81.06(1) (2d Ed. 1979).
16
Clearly a district court may limit application of the rules in a summons enforcement proceeding if the rights of the taxpayer are protected and the adversary hearing is made available upon request. Donaldson v. United States, supra, 400 U.S. at 528-29, 91 S.Ct. at 541, 27 L.Ed.2d at 588; United States v. Wright Motor, supra, 536 F.2d at 1095 (Broad discovery would place the IRS at a severe handicap because it would cause excessive delay and jeopardize the integrity and effectiveness of the investigation.); United States v. Newman, supra, 441 F.2d at 170. The question that must be addressed is whether LaSalle requires reevaluation of statements in our prior decisions which suggest that (assuming the sole criminal purpose defense is properly raised) the district judge abuses his discretion by prohibiting deposition of the IRS agent and, instead, allowing examination of the agent at the adversary hearing. See United States v. Garrett, 571 F.2d 1323 (5th Cir. 1978); United States v. Wright Motor, supra; United States v. Roundtree, supra.
17
In Roundtree the taxpayer alleged that the summons was unenforceable because its sole purpose was to gather evidence for a criminal prosecution and that the district court had abused its discretion by denying discovery. We approved the denial of requests for interrogatories, admissions and production of documents, but found error in the granting of the motion to quash the attempted deposition of the IRS agent. The decision concluded that "the taxpayer is entitled to investigate the IRS's purpose where such purpose has been put in issue and may affect the legality of the summons" and that "the district court has authority to curtail a deposition if it is conducted unreasonably." Id. at 852. It is important to recognize that the Roundtree opinion did not hold that the only appropriate way to satisfy a taxpayer's need for discovery is through prehearing deposition of the IRS agent.
18
Roundtree was followed by United States v. Wright Motor, supra, where the issue was whether the district judge abused his discretion by ordering the IRS agent to submit to limited prehearing deposition on the sole criminal purpose issue. After briefly discussing the prior case law the opinion concluded that there was no abuse of discretion. However, Wright Motor interpreted Roundtree to have established that when the sole criminal purpose defense is properly raised "the taxpayer is entitled to investigate the IRS' purposes through deposition of the special agent." Wright Motor, supra, 536 F.2d at 1094 (emphasis added). If the quote is interpreted to mean that a refusal to allow prehearing depositions is always an abuse of discretion, then the quote is dictum because it was not necessary to decision of the case. The Wright Motor court needed only to decide whether the judge may allow a prehearing deposition of the agent, not whether the deposition is always required. It is doubtful that the Wright court intended to require a prehearing deposition of the agent in all such cases. Immediately after the above quote the opinion continues: "We do not believe that either Donaldson or Newman reversed our holding in Roundtree that discovery procedures may be invoked for the limited purpose of determining whether the IRS has employed its summons powers for an improper purpose." Id. at 1094 (emphasis added). Furthermore, the opinion's discussion of the procedure of the First Circuit as described in United States v. Salter, 432 F.2d 697 (1st Cir. 1970) casts doubt that any blanket requirement of prehearing discovery was intended. The Salter court recognized that the general solution to the taxpayer's need for discovery is for
19
the district court to proceed directly to a hearing at which, if desired, the summonee could examine the agent who issued the summons, concerning his purpose. The court could then, by observation and, where necessary, its own questioning of the agent, make its own determination of whether exploration, as by discovery, seemed to be in order.
20
Wright Motor, supra, 536 F.2d at 1095, quoting United States v. Salter, supra, 432 F.2d at 700. Wright Motor explicitly held that the Salter procedure of allowing the taxpayer to take the testimony of the agent at the adversary hearing does not differ significantly from permitting the taxpayer to depose the agent. Id. The Salter court, in reviewing Roundtree also concluded that the two procedures do not differ significantly. United States v. Salter, supra, 432 F.2d at 701 n.7.
21
The issue was addressed by this court most recently in United States v. Garrett, supra, 571 F.2d at 1323. In that case, the district court, upon a bare request from the government, barred all discovery and proceeded directly to a hearing where the taxpayer was allowed to examine the IRS agents. On appeal we held that "(w)hen the district court, upon a bare request from the government and without further inquiry, issued a protective order barring all discovery without citing any reason, it departed from Roundtree and Wright Motor." Garrett, supra, 571 F.2d at 1326. The "technical" error of forbidding discovery by deposition was held not to be reversible error because the testimony at the hearing revealed that the taxpayer's case was not substantially prejudiced. Id. at 1330. However, and perhaps somewhat incongruously, the court reiterated Wright Motor's holding that the Salter procedure is "a general solution to the taxpayer's need for discovery in summons enforcement cases . . ." and that permitting the agent's deposition is not significantly different from allowing examination of the agent at the hearing. Garrett, supra, 571 F.2d at 1327.
22
Garrett suggests that a district judge always "technically" abuses his discretion if he denies deposition of the agent and instead allows examination of the agent at the hearing. The suggestion is open to question on several grounds. First, as the preceding discussion explains, neither Roundtree nor Wright Motor require such a broad curtailment of the district court's recognized discretion in this area. Second, if, as the Garrett opinion states, the procedure of allowing the deposition of the agent "does not differ significantly" from allowing the taxpayer to examine the agent in open court, Garrett, supra, 571 F.2d at 1327, quoting Wright Motor, supra, 536 F.2d at 1095, then one might inquire why a district judge abuses his discretion by opting for the latter. Finally, since the denial of discovery did not substantially prejudice the taxpayer's case in Garrett, there was no need to reach the issue of whether denial of the deposition was an abuse of discretion. That portion of the opinion we believe was dictum.
23
Leaving these criticisms to one side, we think the Supreme Court's decision in LaSalle requires reevaluation of the limits of a trial court's discretion in curtailing discovery in a summons enforcement proceeding. In LaSalle the district court quashed the § 7602 summonses on the ground that the sole purpose of the investigating agent was to gather evidence for a criminal prosecution. The United States Court of Appeals for the Seventh Circuit affirmed. 554 F.2d 302 (7th Cir. 1977). The Supreme Court reviewed the case law and the statutory history behind § 7602 with an especially thorough review of the sole criminal purpose defense. The primary limitation on the use of a § 7602 summons is that the summons may not issue after the IRS recommends criminal prosecution to the Department of Justice. LaSalle, supra, 437 U.S. at 311, 98 S.Ct. at 2365, 57 L.Ed.2d at 232; United States v. Donaldson, supra, 400 U.S. at 536, 91 S.Ct. at 545, 27 L.Ed.2d at 592. This, explained LaSalle, is because prior to that time the civil and criminal elements of the investigation are "inherently intertwined" and because it is quite proper for the summons to issue when the IRS has both civil and criminal investigation purposes. Id. 437 U.S. at 309, 98 S.Ct. at 2363. The heart of LaSalle is the Court's determination that the sole criminal purpose defense is not proven by showing that the investigating agent's single purpose in issuing the summons was to gather evidence for a criminal prosecution. The taxpayer must establish that the IRS "in an institutional sense had abandoned" pursuit of civil tax liability. Id. at 319, 98 S.Ct. at 2368. The agent's personal motivation is not dispositive because the agent's disposition of the case may be overturned by the IRS and before referral to the Department of Justice by either of at least two layers of review within the IRS. Id. at 314-16, 98 S.Ct. at 2366. A logical conclusion to be drawn from LaSalle, is that before the investigating agent completes his investigation the summons is "virtually unassailable" as far as the sole criminal purpose defense is concerned. United States v. Genser, 595 F.2d 146, 151 (3d Cir. 1979), cert. denied, 444 U.S. 928, 100 S.Ct. 269, 62 L.Ed.2d 185. However LaSalle issued a small caveat to that basic conclusion:
24
Because criminal and civil fraud liabilities are coterminous, the Service rarely will be found to have acted in bad faith by pursuing the former. On the other hand, we cannot abandon this aspect of the good-faith inquiry altogether. We shall not countenance delay in submitting a recommendation to the Justice Department when there is an institutional commitment to make the referral and the Service merely would like to gather additional evidence for the prosecution. Such a delay would be tantamount to the use of the summons authority after the recommendation and would permit the Government to expand its criminal discovery rights. Similarly, the good-faith standard will not permit the IRS to become an information gathering agency for other departments, including the Department of Justice, regardless of the status of criminal cases.
25
Id. 437 U.S. at 316-17, 98 S.Ct. at 2367-68. (Footnotes omitted). We read the Court's caveat to include situations where the substantial equivalent to a recommendation for criminal prosecution to the Department of Justice exists even though there may not be a formal recommendation. The heavy burden that the taxpayer had in establishing the sole criminal purpose before LaSalle is now even heavier. A taxpayer will rarely be able to prove a sole criminal purpose in cases like the instant case where the investigation has barely begun, but, of course, he is not prohibited from trying.
26
The taxpayer in the instant case and the dissent in LaSalle both argue that the LaSalle majority opinion requires expanded discovery in pursuit of the admittedly nebulous "institutional purpose" of the IRS. See Id. 437 U.S. at 320, 98 S.Ct. at 2369. We disagree. In ruling that the intent of the individual agent is not dispositive, the LaSalle majority evinced a clear intent to expedite the summons enforcement process by eliminating needless investigation of the personal motivation of the agent:
27
As in Donaldson, then, where we refused to draw the line between permissible civil and impermissible criminal purposes at the entrance of the special agent into the investigation, 400 U.S., at 536, 91 S.Ct., at 545, we cannot draw it on the basis of the agent's personal intent. To do so would unnecessarily frustrate the enforcement of the tax laws by restricting the use of the summons according to the motivation of a single agent without regard to the enforcement policy of the Service as an institution. Furthermore, the inquiry into the criminal enforcement objectives of the agent would delay summons enforcement proceedings while parties clash over, and judges grapple with, the thought processes of each investigator. See United States v. Morgan Guaranty Trust Co., supra (572 F.2d 36 (2nd Cir.)). This obviously is undesirable and unrewarding.
28
Id. at 316, 98 S.Ct. at 2367 (emphasis added, footnote omitted). After considering LaSalle, we reject any reading of Garrett, Wright Motor, or Roundtree which would require the district court always to permit the prehearing deposition of the IRS agent. We sanction the procedure stated by the First Circuit in Salter. See also, United States v. McCarthy, 514 F.2d 368, 373 n.6 (3d Cir. 1975); United States v. Church of Scientology of Calif., 520 F.2d 818, 824-25 (9th Cir. 1975). One commentator has stated persuasively that: "(s)ince the agent can be questioned on this subject (the improper purpose defense) the use of depositions and interrogatories prior to hearing is often quite unnecessary and serves the sole purpose of delaying the IRS examination." 7 J. Moore, Federal Practice, P 81.06(1) (2d ed. 1979). Although the discovery rules generally apply in summons enforcement proceedings, the district judge has discretion to limit application of the rules. He does not abuse that discretion by allowing prehearing deposition of the IRS agent, Wright Motor, supra. He also does not abuse his discretion by opting for the substantial equivalent to deposition of the agent-examination of the agent in open court. If the taxpayer is unable to produce evidence at either that suggests a sole institutional purpose of gathering evidence for a criminal prosecution, then the district court acts within its discretion when it issues an order enforcing the summons without further discovery. The burden of proving bad faith issuance of a § 7602 summons lies with the taxpayer. LaSalle, supra, 437 U.S. at 316, 98 S.Ct. at 2367, 57 L.Ed.2d at 235.
THE ADVERSARY HEARING
29
The taxpayer also argues that the trial court denied him his right to an adversary hearing by sustaining the government's objections to seventeen questions. In Wright Motor we held that the district court did not abuse its discretion by requiring the IRS agent, on deposition, to answer the following questions:
30
"Q. O.K., can you tell us what specific areas of the taxpayer's return are under investigation by you or the Intelligence Division in connection with this case?"
31
"Q. Can you tell us how the specific documents-well, can you tell us what issues are involved in your investigation of the taxpayer, what matters or particular circumstances are under consideration by the Intelligence Division?"
32
"Q. Can you tell us how the documents which you sought in your summons would relate to the particular issues under investigation by you?"
33
"Q. All right, have any statements been made to you by any person which would indicate to you criminal violations by Mr. Wright in connection with the filing of his tax returns?"
34
"Q. Are there allegations in this case involving omissions of income or erroneous deductions?"
35
Id. at 1092. Some of the taxpayer's questions are similar to the questions sanctioned in Wright Motor but we do not find that the district judge abused his discretion. If a court acts within its discretion in allowing certain questions in one fact situation, it does not necessarily follow that refusal to allow the questions is an abuse of discretion in another fact situation. The exercise of judicial discretion is not governed by any strict rule of law; it is governed by the personal judgment of the court. Wright, supra, 536 F.2d at 1093.
36
Furthermore, the questions in Wright are primarily concerned with the motivation of the individual agent. As the previous discussion illustrates, LaSalle recognizes that an in depth inquiry into the motives and purposes of the individual agent, while not wholly irrelevant, is generally "undesirable and unrewarding." Id. 437 U.S. at 316, 98 S.Ct. at 2367. The district court has discretion to limit inquiry into an individual agent's personal motivation.7
37
In summary, we emphasize that the method and scope of discovery in summons enforcement proceedings largely are committed to the discretion of the district courts. Here the district judge acted within his discretion by denying prehearing discovery and by limiting the scope of examination of the individual agents. Our holding today recognizes and echoes LaSalle's warning that extensive investigation of the personal motivation of individual IRS agents is generally a fruitless, time wasting gesture because the personal motivation of an individual agent in issuing a summons, while not wholly irrelevant, is not dispositive. The district court's order was correct.
38
AFFIRMED.
1
I.R.C. § 7602 provides:
For the purpose of ascertaining the correctness of any return, making a return where none has been made, determining the liability of any person for any internal revenue tax or the liability at law or in equity of any transferee or fiduciary of any person in respect of any internal revenue tax, or collecting any such liability, the Secretary is authorized-
(1) To examine any books, papers, records, or other data which may be relevant or material to such inquiry;
(2) To summon the person liable for tax or required to perform the act, or any officer or employee of such person, or any person having possession, custody, or care of books of account containing entries relating to the business of the person liable for tax or required to perform the act, or any other person the Secretary may deem proper, to appear before the Secretary at a time and place named in the summons and to produce such books, papers, records, or other data, and to give such testimony, under oath, as may be relevant or material to such inquiry; and
(3) To take such testimony of the person concerned, under oath, as may be relevant or material to such inquiry.
2
I.R.C. § 7402(b) provides:
If any person is summoned under the internal revenue laws to appear, to testify, or to produce books, papers, or other data, the district court of the United States for the district in which such person resides or may be found shall have jurisdiction by appropriate process to compel such attendance, testimony, or production of books, papers, or other data.
I.R.C. § 7604(a) provides:
If any person is summoned under the internal revenue laws to appear, to testify, or to produce books, papers, records, or other data, the United States district court for the district in which such person resides or is found shall have jurisdiction by appropriate process to compel such attendance, testimony, or production of books, papers, records, or other data.
3
The Supreme Court has ruled that a § 7602 summons may not be issued after the IRS has recommended criminal prosecution to the Department of Justice. Donaldson v. United States, 400 U.S. 517, 536, 91 S.Ct. 534, 545, 27 L.Ed.2d 580, 592 (1971). The purposes of the rule are to avoid broadening the discovery powers of the Department of Justice, to avoid infringing on the grand jury as the principal method of investigating criminal accusations, and to encourage maximum cooperation between the IRS and the Department of Justice. United States v. LaSalle, 437 U.S. at 311-13, 98 S.Ct. at 2365, 57 L.Ed.2d at 232-33
4
Powell ruled that the IRS is not required to establish probable cause in order to obtain enforcement of a § 7602 summons. Id. 379 U.S. at 57, 85 S.Ct. at 255. However the IRS "must show that the investigation will be conducted pursuant to a legitimate purpose, that the inquiry may be relevant to the purpose, that the information sought is not already within the Commissioner's possession, and that the administrative steps required by the Code have been followed . . . ." Id. at 57-58, 85 S.Ct. at 255. By establishing these four elements the IRS meets its initial burden of showing good faith issuance of the summons. See United States v. LaSalle, supra, 437 U.S. at 313-14, 98 S.Ct. at 2366, 57 L.Ed.2d at 234
5
See United States v. Euge, 444 U.S. 707, 100 S.Ct. 874, 63 L.Ed.2d 141, 152 (1980); Donaldson v. United States, supra, 400 U.S. at 525, 91 S.Ct. at 539, 27 L.Ed.2d at 586
6
We decide, infra, that a taxpayer is not always entitled to discovery before the summons enforcement hearing. Therefore it is appropriate to allow the adversary hearing even though the taxpayer has only alleged, without providing a supporting factual background, that the summons was issued for an improper purpose. Otherwise the taxpayer might be placed in the unfair dilemma of having to provide supporting facts, but having no way to obtain those facts
7
The Third Circuit has outlined the basic discovery available to a taxpayer under a § 7602 summons:
Our reading of LaSalle suggests several guidelines for discovery. At a minimum, the taxpayer should be entitled to discover the identities of the investigating agents, the date the investigation began, the dates the agent or agents filed reports recommending prosecution, the date the district chief of the Intelligence Division or Criminal Investigation Division reviewed the recommendation, the date the Office of Regional Counsel referred the matter for prosecution, and the dates of all summonses issued under 26 U.S.C. § 7602. Furthermore, the taxpayer should be entitled to discover the nature of any contacts, relating to and during the investigation, between the investigating agents and officials of the Department of Justice.
United States v. Genser, supra, 595 F.2d at 152. A district court within the Third Circuit must permit further investigation if the evidence reveals:
(1) that the IRS issued summonses after the investigating agents recommended prosecution, (2) that inordinate and unexplained delays in the investigation transpired, or (3) that the investigating agents were in contact with the Department of Justice, . . . .
Id. See also United States v. Garden State National Bank, supra, 607 F.2d at 71.
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 21 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
CLARENDON AMERICA
INSURANCE COMPANY,
Plaintiff-Appellee,
No. 00-6319
v. (D.C. No. 98-CV-1761-M)
(W.D. Okla.)
CONTINENTAL MASONRY
CORPORATION,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before EBEL , HENRY , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Plaintiff-appellee Clarendon America Insurance Company (Clarendon) filed
this declaratory judgment action pursuant to 28 U.S.C. § 2201 against
defendant-appellant Continental Masonry Corporation (Continental), seeking a
declaration that it was not obligated to provide coverage for an indemnity claim
made against Continental because it did not receive timely notice of the claim.
Jurisdiction in the district court was based on diversity of citizenship pursuant to
28 U.S.C. § 1332. Because this is a diversity case, the district court applied the
substantive law of the forum state, Oklahoma. See Farmers Alliance Mut. Ins. Co.
v. Salazar , 77 F.3d 1291, 1294 (10th Cir. 1996). The district court entered
summary judgment in favor of Clarendon, concluding it could properly deny
coverage under the insurance policy at issue. We affirm.
The parties to this case are familiar with its facts and procedural history,
which are accurately and thoroughly set forth in the district court’s order; thus, we
only very briefly summarize them here. During the relevant period, Continental
was covered by a commercial liability insurance policy issued by Mid-Continent
Casualty Company (Mid-Continent) and a commercial umbrella policy issued by
Clarendon. It purchased both policies through Insurance Agency of Mid-America
(IAM). Clarendon’s policy required Continental to notify it or Continental’s
broker of any accident or injury which could result in a liability claim as soon as
possible, even if no claim had been made. The policy also required Continental to
-2-
send Clarendon copies of all demands or legal documents if someone made a claim
or started a lawsuit.
The loss in question occurred in November 1988. It is undisputed that
Continental did not notify any of its insurers of the loss incident. The injured
parties filed a lawsuit against Continental in 1990, but later voluntarily dismissed
it. Continental did notify IAM of this first lawsuit, but Mid-Continent is the only
insurer listed in its loss notice. There is no evidence Clarendon was notified of
this first, dismissed lawsuit.
The injured parties filed a second lawsuit in 1991, naming different
defendants, one of whom filed a third-party complaint against Continental in 1992,
seeking indemnification. Continental did not notify Clarendon about either the
injured parties’ second lawsuit or the indemnification action filed against it, nor
did it send Clarendon copies of any of the relevant legal documents. In November
1997, the injured parties obtained a $2,150,000 judgment. In March 1998,
Continental notified Clarendon of this judgment and the indemnification claim
against it, seeking coverage. Clarendon then filed this declaratory action,
claiming, among other things, that Continental had breached the terms of the
policy by failing to give it timely notice.
Both parties filed motions for summary judgment. Clarendon presented
undisputed evidence that it received no notice of any accident or injury, no notice
-3-
of any claim or lawsuit, and no copies of any demands or legal documents until
March 1998, almost ten years after the loss occurred. Continental contended the
loss notice it provided to IAM in 1990 about the first dismissed lawsuit satisfied
its notice obligations under the policy, regardless of whether Clarendon ever
actually received notice.
The district court rejected Continental’s argument, holding that IAM was
not Clarendon’s agent as a matter of law under Okla. Stat. tit. 36, § 1423(B)
(1990), 1 and therefore, notice to IAM did not constitute notice to Clarendon.
Further, it ruled that any notice to IAM of the first lawsuit in 1990 was
insufficient, because that action was dismissed and Continental never provided
notice to Clarendon of the second lawsuit or the indemnity claim. The district
court also ruled that Clarendon was prejudiced by Continental’s failure to provide
timely notice. Because Continental failed to give Clarendon timely notice of
either the incidents giving rise to the claims or the claims themselves, as required
by the policy, the district court ruled Clarendon could properly deny coverage.
1
Clarendon is licensed in Oklahoma only to sell excess and surplus lines
policies, and may only do so through an excess and surplus lines broker.
Although Continental utilized IAM to acquire its umbrella policy from Clarendon,
IAM actually utilized an excess and surplus lines broker, Westphalen, Bradley &
James, Inc., to acquire the policy on behalf of Continental. Section § 1423(B),
since renumbered as Okla. Stat. tit. 1435.3 (B) (2003), provides that a surplus
lines insurance broker “shall . . . be regarded as representing the insured or the
insured’s beneficiary and not the insurer.”
-4-
“We review a grant of summary judgment de novo, applying the same
standard as the district court.” Ferroni v. Teamsters, Chauffeurs & Warehousemen
Local No. 222 , 297 F.3d 1146, 1149 (10th Cir. 2002). Summary judgment is
proper if the moving party shows “that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(c). “When reviewing cross-motions for summary judgment,
‘our review of the record requires that we construe all inferences in favor of the
party against whom the motion under consideration is made.’” Pirkheim v. First
Unum Life Ins. , 229 F.3d 1008, 1010 (10th Cir. 2000) (quoting Andersen v.
Chrysler Corp ., 99 F.3d 846, 856 (7th Cir. 1996)).
On appeal, Continental first contends the district court erred in ruling that
IAM was not its agent and, therefore, that its 1990 notice to IAM failed to satisfy
its notice obligations. Continental contends that, notwithstanding § 1423(B), the
terms of the Clarendon policy permitted it to provide notice to its broker, which it
identifies as IAM. We need not resolve IAM’s agency status under § 1423,
however, because, even if IAM was the authorized broker through whom
Continental could give notice to Clarendon, its 1990 notice was insufficient to
satisfy the notice requirements under the Clarendon policy. See Griffin v. Davies ,
929 F.2d 550, 554 (10th Cir. 1991) (holding that this court will not “undertake to
decide issues that do not affect the outcome of a dispute”).
-5-
The loss notice that Continental gave to IAM in 1990 listed only
Mid-Continent as its insurer and referenced only the Mid-Continent general
liability policy. Aplt. App. at 96. Continental’s 1990 loss notice made no
reference whatsoever to Clarendon or the Clarendon umbrella policy. Quite
simply, Continental’s loss notice neither requested nor authorized IAM to notify
Clarendon of any potential or actual loss or claim.
Moreover, we agree with the district court that the 1990 loss notice was
insufficient because it only provided notice of the 1990 lawsuit, which was
voluntarily dismissed shortly thereafter. It is undisputed that Continental gave
Clarendon no notice of the injured parties’ second lawsuit, which actually
proceeded to trial and judgment, or the indemnification action filed against
Continental. Continental does not suggest a reason why the 1990 notice would be
adequate to notify Clarendon of these two later-filed actions, other than to
summarily assert it is immaterial, nor does it dispute the district court’s ruling that
the 1990 loss notice was insufficient in this regard. See Snell v. Tunnell , 920 F.2d
673, 676 (10th Cir. 1990) (holding this court will not reach out and decide issues
where the adverse ruling has not been appealed). Further, Continental does not
challenge the district court’s factual finding, based on the undisputed evidence,
that Continental failed to send Clarendon copies of any legal documents relating to
any claim or action until March 1998, or its legal conclusion, based on the plain
-6-
meaning of the policy, that this failure violated the policy terms, requiring
Continental to send copies of all legal demands or legal documents directly to
Clarendon. See id.; see also VBF, Inc. v. Chubb Group of Ins. Cos. , 263 F.3d
1226, 1230 (10th Cir. 2001) (holding, under Oklahoma law, that insurance
contracts are to be interpreted “according to the plain meaning of the language in
the policy”).
Because we agree with the district court’s conclusion that Continental did
not notify Clarendon of the claim until March 1998, we need not address its
second argument on appeal that the 1990 notice was timely, despite its failure to
give notice of the 1988 incidents giving rise to the ultimate claims.
For the reasons more fully stated by the district court, we also reject
Continental’s third contention: that Clarendon was not prejudiced by its failure to
give timely notice. Although the indemnification action was still pending when
Continental gave notice in March 1998, the underlying action had proceeded to
judgment. It is undisputed that, because of the nearly ten-year delay, Clarendon
was unable to find any record of the policy, to undertake its own investigation or
analysis of the claim, to participate with the primary insurer in the underlying
litigation in an effort to resolve the claim within the collective policy limits, or to
obtain reinsurance protection from its reinsurers. See Montgomery v. Prof’l Mut.
Ins. Co. , 611 F.2d 818, 819-20 (10th Cir. 1980) (holding that nearly four-year
-7-
delay between claim and notice to insurer “to be beyond all periods of reason,” and
sufficient to demonstrate prejudice as a matter of law).
Finally, Continental claims there are genuine issues of material fact in
dispute, precluding summary judgment. It does not specifically identify any such
disputed facts, nor do we find there to be any genuine issue of material fact in
dispute. See Anderson v. Liberty Lobby, Inc ., 477 U.S. 242, 248 (1986) (holding
that, “[o]nly disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment”).
The judgment of the United States District Court for the Western District of
Oklahoma is AFFIRMED. Continental’s counsel’s motion to withdraw is
GRANTED.
Entered for the Court
David M. Ebel
Circuit Judge
-8-
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
September 13, 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 05-1047
v. (D. Colorado)
LONNIE LEE TUNCAP, (D.C. No. 04-CR-121-WM)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.
Defendant Lonnie Lee Tuncap pleaded guilty to unlawful possession of a
firearm by a convicted felon. See 18 U.S.C. § 922(g)(1). The Presentence Report
(PSR) recommended a base offense level of 24, see United States Sentencing
Guidelines (USSG) § 2K2.1(a)(2), because it concluded that Mr. Tuncap’s two
prior Colorado convictions for third-degree assault were crimes of violence, see
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
USSG § 4B1.2. After the adjustment for acceptance of responsibility, see USSG
§ 3E1.1, Mr. Tuncap’s total offense level of 21 and criminal history category V
yielded a guidelines range of 70 to 87 months.
Mr. Tuncap filed a motion objecting to the PSR’s recommendations on the
grounds that the prior Colorado convictions for third-degree assault were not
crimes of violence and that using the prior convictions to enhance his sentence
violated Blakely v. Washington, 542 U.S. 296 (2004). He also filed a motion for
downward departure, arguing that using the two prior Colorado convictions to
enhance his sentence took his case out of the heartland of § 2K2.1.
At the sentencing hearing the district court overruled Mr. Tuncap’s
objections and denied the motion for downward departure. The court, at the
behest of both Mr. Tuncap and the government, and noting that it was
“constrained by the law,” sentenced Mr. Tuncap to the 70-month guidelines
minimum. R. Vol. II at 13.
On January 12, 2005, five days after the January 7, 2005, sentencing
hearing, the Supreme Court handed down United States v. Booker, 543 U.S. __,
125 S.Ct. 738 (2005). That same day, Mr. Tuncap filed a motion to correct the
sentence. See Fed. R. Crim. P. 35(a). He filed his notice of appeal on January
19, 2005. On April 1, 2005, the district court held a hearing on Mr. Tuncap’s
motion and concluded that it did not have jurisdiction because Fed. R. Crim. P. 35
-2-
allowed for correction of sentence only within seven days of sentencing, a period
long past.
On appeal Mr. Tuncap argues that the district court erred when it found that
his two prior Colorado convictions for third-degree assault were crimes of
violence. He also asserts that his case must be remanded for resentencing because
there was error under Booker and the error was not harmless. The government
argues that the district court properly concluded that the Colorado convictions
were crimes of violence, but it concedes that United States v. Labistida-Segura,
396 F.3d 1140 (10th Cir. 2005), requires Mr. Tuncap’s case to be remanded for
resentencing.
We agree that Labistida controls, and we REMAND to the district court for
resentencing. The question whether third-degree assault is a crime of violence
was resolved in United States v. Paxton, 04-1427 (10th Cir. Sept. 9, 2005).
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
-3-
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 96-6334
ROBERT LEON WHITE,
Plaintiff - Appellant,
versus
POLICE DEPARTMENT; SHERIFF'S DEPARTMENT OF
LUNENBURG COUNTY OR VICTORIES COUNTY; W. D.
ADAMS, Sheriff; P. STOKES, Sheriff; J. F.
WHITLOW, Sargeant; A. TOWNSON, Sheriff; JESSIE
CARTER, Chief of Police,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern Dis-
trict of Virginia, at Alexandria. Claude M. Hilton, District
Judge. (CA-96-110-AM)
Submitted: May 16, 1996 Decided: June 6, 1996
Before RUSSELL, LUTTIG, and WILLIAMS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robert Leon White, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Appellant appeals from the district court's order denying
relief on his 42 U.S.C. § 1983 (1988) complaint. We have reviewed
the record and the district court's opinion and find no reversible
error. Accordingly, we affirm on the reasoning of the district
court. White v. Police Dep't, No. CA-96-110-AM (E.D. Va. Jan. 30,
1996). We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
2
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[Cite as Hoover v. Elyria, 2016-Ohio-8092.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
JAMES P. HOOVER C.A. No. 16CA010942
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
CITY OF ELYRIA, OHIO COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellee CASE No. 12CV176326
DECISION AND JOURNAL ENTRY
Dated: December 12, 2016
HENSAL, Judge.
{¶1} James Hoover appeals a judgment of the Lorain County Court of Common Pleas
that upheld the Elyria Civil Service Commission’s decision to suspend him for violating the
City’s anti-discrimination policy. For the following reasons, this Court affirms.
I.
{¶2} Mr. Hoover worked for the City of Elyria’s water pumping plant as an assistant
superintendent. On October 5, 2011, he noticed that one of the part-time employees, who is
African-American, was wearing coveralls that had the name “Buck” on them. Attempting to
make a joke, Mr. Hoover told the others in the room that, in addition to the other two Bucks who
worked at the plant, there was now “Black Buck” or “Big Black Buck.” Mr. Hoover repeated his
“joke” with minor variations to other employees of the plant throughout the course of the day.
{¶3} After a plant employee complained about Mr. Hoover’s statements, the City’s
service director scheduled a pre-disciplinary meeting on the issue and an unrelated smoking
2
violation. Following the meeting, the service director terminated Mr. Hoover for violating the
City’s anti-discrimination policy. Mr. Hoover appealed to the Civil Service Commission, which
held a hearing on the allegations. Although the Commission found that Mr. Hoover breached the
City’s anti-discrimination policy, it reduced his termination to a 45-day suspension without pay.
{¶4} Mr. Hoover appealed the Commission’s decision to the common pleas court. The
court determined that Mr. Hoover’s statements were insufficient to constitute harassment, so it
vacated his 45-day suspension. On appeal, this Court determined that the trial court had failed to
consider “the entirety of [the City’s] anti-discrimination code and it determined whether there
existed a preponderance of substantial, reliable, and probative evidence in the record before it to
support the Commission’s decision.” Hoover v. City of Elyria, 9th Dist. Lorain No.
12CA010288, 2014-Ohio-1783, ¶ 11. We, therefore, reversed the trial court’s judgment in part,
and remanded the matter for further proceedings consistent with our decision.
{¶5} On remand, the trial court requested additional briefing and held a hearing
regarding the City’s anti-discrimination policy. Upon consideration of “the entirety” of the anti-
discrimination code, it determined that “that there existed a preponderance of substantial, reliable
and probative evidence in the record to support the Commission’s decision.” Mr. Hoover has
appealed, assigning five errors.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT FAILED
TO UTILIZE FEDERAL OR STATE “HOSTILE WORK ENVIRONMENT”
COMMON LAW TO DETERMINE WHETHER JAMES HOOVER’S
CONDUCT VIOLATED THE CITY OF ELYRIA’S ANTI-DISCRIMINATION
POLICY.
3
{¶6} Mr. Hoover argues that the trial court incorrectly affirmed the Civil Service
Commission’s decision because, even if he made one racially insensitive joke a couple of times
over the course of a single day, it did not create a hostile work environment for the other
employees. According to Mr. Hoover, his statements, therefore, did not constitute
discriminatory or harassing behavior under the Codified Ordinances of Elyria.
{¶7} Under Section 2506.04 of the Ohio Revised Code, a common pleas court reviews
a decision of a political subdivision agency to determine if it was “unconstitutional, illegal,
arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable,
and probative evidence on the whole record.” The common pleas court’s decision is appealable
to this Court on “questions of law.” R.C. 2506.04. “An appeal to the court of appeals, pursuant
to R.C. 2506.04, is more limited in scope and requires [the appellate court] to affirm the common
pleas court, unless [it] finds, as a matter of law, that the decision of the common pleas court is
not supported by a preponderance of reliable, probative and substantial evidence.” Kisil v. City
of Sandusky, 12 Ohio St.3d 30, 34 (1984). That “does not include the same extensive power to
weigh ‘the preponderance of substantial, reliable and probative evidence,’ as is granted to the
common pleas court.” Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St. 3d 142, 147
(2000), quoting Kisil at 34, fn.4.
{¶8} The hostile work environment case law cited by Mr. Hoover applies to an action
brought by a person who has been the target of harassment or discrimination in the workplace,
not to the person causing such harassment. The question here was whether Mr. Hoover could be
disciplined for allegedly violating Section 165.29 of the Codified Ordinances of Elyria, not
whether anyone at the plant had experienced a hostile work environment under state and federal
law. We, therefore reject Mr. Hoover’s argument that the trial court failed to properly apply the
4
hostile-work-environment test in determining whether he could be disciplined for his comments.
Mr. Hoover’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE COURT OF APPEALS ON REMAND IMPERMISSABLY TOOK A
DEFINITION OF DISCRIMINATION FROM AN AFFIRMATIVE ACTION
ORDINANCE WHEN NOTHING IN THE CASE PREVIOUSLY INVOLVED
AFFIRMATIVE ACTION.
{¶9} Mr. Hoover argues that this Court incorrectly referred to Section 167.02(e) of the
Codified Ordinances in its previous decision in this action. According to Mr. Hoover, because
Section 167.02(e) is in a chapter called “Affirmative Action,” it had no applicability to his case.
He also argues that the trial court’s original decision, vacating his 45-day suspension for
discrimination was the correct decision and that this Court exceeded its authority when it vacated
that decision.
{¶10} Mr. Hoover’s argument essentially asks this Court to reconsider its decision in
the prior appeal. Under the doctrine of law of the case, “the decision of a reviewing court in a
case remains the law of that case on the legal questions involved for all subsequent proceedings
in the case at both the trial and reviewing levels.” Nolan v. Nolan, 11 Ohio St.3d 1, 3 (1984).
Absent extraordinary circumstances, which Mr. Hoover has not demonstrated, this Court has no
authority to change our prior decision. See id. at syllabus. Mr. Hoover’s second assignment of
error is overruled.
ASSIGNMENT OF ERROR III
THE CITY OF ELYRIA FAILED TO FOLLOW ITS OWN ORDINANCE IN
ANY FASHION WHICH WAS IGNORED BY THE REMAND ORDER TO
THE COMMON PLEAS COURT.
{¶11} Mr. Hoover next argues that the City failed to follow its ordinance in determining
whether he should be disciplined. According to Mr. Hoover, under Section 165.29, the
5
complaint against him had to be filed with the Equal Employment Opportunity Officer. That
officer would have then investigated the allegations and prepared a report for the safety service
director.
{¶12} The procedures that Mr. Hoover has cited only explicitly pertain to “incidents,
which fall under the term ‘sexual harassment.’” Even assuming they apply to other forms of
harassment, the person who was acting as the City’s safety service director at the time the
complaint against Mr. Hoover was filed testified that the City’s Equal Employment Opportunity
Officer was on vacation the week of the incident. He, therefore, conducted his own investigation
into the issue.
{¶13} After the safety service director made his decision, Mr. Hoover appealed to the
Civil Service Commission and received a full evidentiary hearing. Upon review of the record,
we conclude that Mr. Hoover has failed to establish a violation of his due process rights. See
Kennedy v. Marion Correctional Inst., 69 Ohio St.3d 20, 23 (1994).
{¶14} Mr. Hoover also argues that his “Black Buck” statements did not violate any law
and also did not offend his co-worker. There were several witnesses, however, who testified that
they heard Mr. Hoover’s statements and found them offensive, including the employee at whom
they were directed.
{¶15} Mr. Hoover further argues that he was not the other employee’s supervisor.
Neither the safety service director’s decision nor the civil service commission’s decision nor the
common pleas court’s decision, however, included such a finding. The only decision that
characterized the target of Mr. Hoover’s statements as Mr. Hoover’s “subordinate” was the
common pleas court’s initial decision, which was vacated. Mr. Hoover’s third assignment of
error is overruled.
6
ASSIGNMENT OF ERROR IV
THE CITY OF ELYRIA CHARTER AND CODE DOES NOT AND CANNOT
LEAVE IT UP TO THE ELYRIA CIVIL SERVICE COMMISSION TO
DEFINE RACIAL DISCRIMINATION OR HARASSMENT IN THE
WORKPLACE.
{¶16} Mr. Hoover’s next argument is that the decision of the civil service commission
had to be consistent with state and federal law. According to him, because the city’s ordinances
do not define “harassment,” it was appropriate for the trial court to determine, the first time it
considered the issue, that his joke to a group of guys did not constitute hostile-work-environment
discrimination.
{¶17} As explained earlier, whether Mr. Hoover’s statements created a hostile work
environment for the other employees is not the measure for determining whether the City could
discipline him for making those statements. Section 165.29(a)(1) of the Codified Ordinances
provides that “[d]iscrimination, harassment and sexual harassment shall not be tolerated and are
prohibited.” The Civil Service Commission only needed to determine whether Mr. Hoover’s
statements violated that provision. A dictionary definition of “harassment” includes “to create an
unpleasant or hostile situation for esp. by uninvited and unwelcome verbal or physical conduct.”
Merriam-Webster’s Collegiate Dictionary 567 (11th Ed.2005). According to the witnesses at the
civil service commission hearing, Mr. Hoover’s repeated “joke” was uninvited, unwelcome, and
unpleasant for several of his co-workers, who testified to their understanding that the term
“Black Buck” was a racial slur used against African-American men following the end of slavery.
Upon review of the record, we cannot say that the Civil Service Commission used the wrong
criteria in determining whether Mr. Hoover violated the City’s anti-discrimination ordinance.
Mr. Hoover’s fourth assignment of error is overruled.
7
ASSIGNMENT OF ERROR V
THE TRIAL COURT’S FACTUAL AND LEGAL CONCLUSIONS WERE
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶18} Mr. Hoover next argues that the common pleas court’s factual findings are against
the manifest weight of the evidence. He also argues that the court applied the wrong law in
reviewing the Commission’s decision.
{¶19} On remand, the common pleas court considered Section 165.29(a)(1) in order to
determine whether Mr. Hoover’s comments violated the City’s anti-discrimination policy. It also
considered whether the Civil Service Commission’s decision to suspend Mr. Hoover was
supported by the preponderance of the substantial, reliable, and probative evidence. It
determined that the commission had applied and interpreted Section 165.29 in reaching its
decision. It also determined that the record contained a preponderance of substantial, reliable,
and probative evidence to support the Commission’s decision.
{¶20} This Court’s review is more limited than the common pleas court’s. R.C.
2506.04. In light of the testimony of Mr. Hoover’s co-workers who described the offensiveness
of his repeated comments, we cannot say that the common pleas court erred when it determined
that the Commission’s decision was supported by a preponderance of the evidence. Mr.
Hoover’s fifth assignment of error is overruled.
III.
{¶21} Mr. Hoover’s assignments of error are overruled. The judgment of the Lorain
County Court of Common Pleas is affirmed.
Judgment affirmed.
8
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
WHITMORE, P. J.
SCHAFER, J.
CONCUR.
APPEARANCES:
MICHAEL P. HARVEY, Attorney at Law, for Appellant.
SCOTT F. SERAZIN, Law Director, and AMANDA R. DEERY, Assistant Law Director, for
Appellee.
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AMENDED DLD-013 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-3508
___________
UNITED STATES OF AMERICA
v.
CHARLES AARON BROOKS,
Appellant
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 2-95-cr-00564-001)
District Judge: Honorable Harvey Bartle III
____________________________________
Submitted for Possible Summary Action Pursuant to
Third Circuit LAR 27.4 and I.O.P. 10.6
October 14, 2011
Before: AMBRO, JORDAN AND VANASKIE, Circuit Judges
(Opinion filed: November 4, 2011)
_________
OPINION
_________
PER CURIAM
Charles Brooks is a federal prisoner, who was convicted in 1996 for his part in a
series of armed bank robberies. He appeals several District Court orders that denied: 1) a
motion for “all documents related” to his criminal case, and specifically “a true and
complete copy of all discovery” relating to various witnesses, ECF No. 278 (denied by
ECF No. 279); 2) a timely filed motion to reconsider the denial of his discovery request,
ECF No. 280 (denied by ECF No. 281); 3) a “Motion to Dismiss Superseding Indictment
for Violating Defendant[’s] Speedy Trial Rights,” ECF No. 288 (denied by ECF No.
295); 4) a timely filed motion to reconsider the speedy-trial denial, ECF No. 297 (denied
by ECF No. 302); 5) a Freedom of Information Act (FOIA) request for documents, ECF
No. 283 (denied by ECF No. 287); 6) a timely filed motion to reconsider the denial of his
FOIA request, ECF No. 289 (denied by ECF No. 292); 7) a motion for recusal of the
presiding District Court Judge, the Honorable Harvey Bartle III, ECF No. 291 (denied by
ECF No. 293); and 8) a “Motion and Affidavit Pursuant to 28 U.S.C. § 255
Disqualification of a Judge Should Be Granted,” ECF No. 298 (denied by ECF No. 301). 1
We must first determine whether our jurisdiction extends to all of the
abovementioned orders, which in turn depends on whether they are subject to the rules
controlling civil (Fed. R. App. P. 4(a)) or criminal (Fed. R. App. P. 4(b)) appeals. We
have previously held that Fed. R. App. P. 4(b), which governs appeals “in a criminal
case”—and whose relevant prescribed time limit, fourteen days, is not jurisdictional, see
Gov’t of V.I. v. Martinez, 620 F.3d 321, 327 (3d Cir. 2010)— is “construed narrowly to
encompass only a prosecution brought by the government to secure a sentence of
1
Brooks, who proceeds pro se, simultaneously pursued an appeal from the denial of his
motion to return property under Fed. R. Crim. P. 41(g). See United States v. Brooks,
C.A. No. 11-3235. We gave his basic allegations the scrutiny they deserved therein and
will not repeat ourselves here.
2
conviction for criminal conduct.” United States v. Lavin, 942 F.2d 177, 181 (3d Cir.
1991) (internal citations & quotations omitted). By contrast, the ambit of Rule 4(a)’s
“civil case” designation is far broader, covering proceedings (such as habeas corpus
petitions and, in Lavin itself, forfeiture proceedings under 21 U.S.C. § 853(n)(6)) that
may arise out of a previous criminal prosecution. Id. at 181–82; see also Impounded, 277
F.3d 407, 411 (3d Cir. 2002) (holding that, when “proceedings on [a] motion were clearly
not proceedings by the government to secure a sentence of conviction for criminal
conduct,” the proceedings were “civil” and not “criminal” for the purposes of Rule 4).
As the time for criminal prosecution has long since passed, Brooks’s post-trial motions
are akin to those cast as “civil” in Lavin, and are therefore subject to the time limits of
Rule 4(a)—which, as jurisdictional limits, are not subject to equitable modification, see
Bowles v. Russell, 551 U.S. 205, 214 (2007). We consequently lack jurisdiction to reach
the District Court orders denying Brooks’s initial discovery request and his related
motion for reconsideration—entered on January 25, 2011, and February 14, 2011,
respectively—which were not appealed within the sixty days allowed by Fed. R. Civ. P.
4(a)(1)(B).
With regard to the remaining orders, over which we exercise our 28 U.S.C. § 1291
jurisdiction, 2 we will leave the District Court’s judgment undisturbed. Construing
2
All of Brooks’s remaining motions were either appealed within the sixty days allotted—
for example, the order denying Brook’s speedy-trial motion was entered on July 18,
2011, fewer than sixty days before the September 6, 2011, notice of appeal—or were the
3
Brooks’s FOIA request as an attempt to gain further post-trial discovery, we note that “an
application for relief under the discovery rules is a matter within the sound discretion of
the district court and its ruling will be disturbed only for an abuse of discretion.” United
States v. Fioravanti, 412 F.2d 407, 410 (3d Cir. 1969); see also United States v. Webster,
162 F.3d 308, 337 (5th Cir. 1998) (applying the same standard to post-conviction
discovery requests). Throughout his confusing submissions, Brooks showed no
entitlement to discovery at this late date; in fact, he appeared to admit that the material he
now requests was available to his attorney at trial. Nor does FOIA otherwise expand the
scope of discovery available in a criminal case. United States v. U.S. Dist. Ct., 717 F.2d
478, 480 (9th Cir. 1983). To the extent that Brooks’s motions (e.g., his belated speedy-
trial motion) attacked the basis of his federal conviction and sentence, he was required to
proceed via 28 U.S.C. § 2255. See In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997).
Finally, with regard to Brooks’s requests for recusal, we see no reason why Judge Bartle
should have recused himself. Securacomm Consulting, Inc. v. Securacom Inc., 224 F.3d
273, 278 (3d Cir. 2000); Jones v. Pittsburgh Nat’l Corp., 899 F.2d 1350, 1356 (3d Cir.
1990). Finally, the District Court did not abuse its discretion in denying Brooks’s
motions for reconsideration. United States v. Dupree, 617 F.3d 724, 732 (3d Cir. 2010).
In sum, “[b]ecause this appeal does not present a substantial question, we will
summarily affirm the District Court’s judgment.” Murray v. Bledsoe, 650 F.3d 246, 2011
subject of a timely filed motion for reconsideration from which the appeal was timely
taken. See Fed. R. Civ. P. 4(a)(4)(A).
4
WL 2279428, at *1 (3d Cir. June 10, 2011, No. 10-4397); see also 3d Cir. L.A.R. 27.4;
I.O.P. 10.6. To the extent that it requests independent relief, Brooks’s “Motion to Appeal
Court to Clarify Matters” is denied.
5
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969 F.2d 1044
Johnsonv.Commissioners Court
NO. 91-1499
United States Court of Appeals,Fifth Circuit.
July 14, 1992
1
Appeal From: N.D.Tex.
2
VACATED.
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139 Ga. App. 632 (1976)
229 S.E.2d 113
STANCIL
v.
HUDSON OIL COMPANY.
52530.
Court of Appeals of Georgia.
Submitted September 13, 1976.
Decided September 27, 1976.
E. Graydon Shuford, for appellant.
Gambrell, Russell, Killorin & Forbes, Jack O. Morse, David A. Handley, for appellee.
QUILLIAN, Judge.
Appeal was taken from an order granting a motion for new trial. This court has not granted an interlocutory appeal. See Code Ann. § 6-701 (a) 2 (A) (Ga. L. 1965, p. 18; 1968, pp. 1072, 1073; 1975, pp. 757, 758). Hence, the appeal must be dismissed as premature. Gordon v. Gordon, 236 Ga. 99 (222 SE2d 380).
Appeal dismissed. Deen, P. J., and Webb, J., concur.
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790 F.2d 1524
Gerald BALBIRER, Norman Brainin, Plaintiffs-Appellants,v.Jack AUSTIN, Defendant-Appellee.B.J. APPAREL CORPORATION, Plaintiff-Appellant,v.Jack AUSTIN, Defendant-Appellee.
No. 84-5881.
United States Court of Appeals,Eleventh Circuit.
June 9, 1986.
Steven Goldsmith and Lawrence S. Gordon, Miami, Fla., for plaintiffs-appellants.
Joseph S. Paglino, Miami, Fla., for defendant-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before HILL, Circuit Judge, HENDERSON* and BROWN**, Senior Circuit Judges.
HENDERSON, Senior Circuit Judge:
1
This bankruptcy appeal results from a lengthy dispute concerning the sale and subsequent operation of a Florida corporation. The United States Bankruptcy Court for the Southern District of Florida rejected a claim by the purchasers of this corporation that debts owed by the former owner were not dischargeable in bankruptcy. In so holding, the court held that the issue of the debtor's liability already had been determined in the debtor's favor by a prior Illinois state court judgment and that collateral estoppel precluded relitigation of this issue. The United States District Court for the Southern District of Florida affirmed the bankruptcy court and the purchasers appealed to this court. We hold that the bankruptcy court failed to make adequate inquiry into the issues actually resolved by the prior Illinois litigation and consequently reverse the judgment of the district court.
2
On November 10, 1978, the appellee, Jack Austin, and his wife sold fifty-two percent of the outstanding stock in Austin's Rack, Inc. (Austin's Rack) and several other Florida corporations to the appellant, B.J. Apparel Corp. (B.J. Apparel), an Illinois corporation controlled by the appellants Gerald Balbirer and Norman Brainin. The contract of sale contained a warranty by Austin that all financial reports reflected the actual financial condition of Austin's Rack. The parties also signed an employment agreement in which Austin was retained as an employee of Austin's Rack. The employment agreement authorized Austin's Rack to discharge Austin for cause or for six other specified grounds. The two reasons pertinent to this appeal are (1) Austin's "participation in any conduct which directly threatens serious injury to the reputation or welfare" of Austin's Rack and (2) Austin's breach of any provision of the contract of sale between Austin and B.J. Apparel.
3
This relationship began to deteriorate in 1979. B.J. Apparel determined that the financial reports provided by Austin on the day of sale overstated the net worth of Austin's Rack by approximately $100,000.00. That year Austin also allegedly made false accusations about the financial practices of B.J. Apparel and its principals to Opelika Manufacturing Corp. (Opelika), a primary creditor of B.J. Apparel. The appellants complain that these accusations damaged the previously amicable business relationship between Opelika and B.J. Apparel.
4
Austin's Rack terminated Austin's employment as a result of these events and filed suit against Austin in the Circuit Court of Cook County, Illinois on October 19, 1979. The suit charged Austin with breach of the employment contract by misrepresenting the net worth of Austin's Rack to B.J. Apparel and by making false accusations of financial misconduct by Austin's Rack and its principals. The parties engaged in no discovery in the Illinois case and the only issue actually litigated was personal jurisdiction.
5
On November 1, 1979, Austin filed suit against Austin's Rack in the Circuit Court of Dade County, Florida, seeking damages for breach of contract. The parties conducted full discovery and this case proceeded to trial in March of 1980. On April 8, 1980, the Florida court rendered judgment in favor of Austin. Austin's Rack appealed this judgment to the Florida District Court of Appeal on May 7, 1980.
6
On September 16, 1980, Austin's Rack stipulated to a dismissal of its Illinois litigation and on September 19, 1980, the Illinois court entered a judgment dismissing the action with prejudice. The appellants maintain that they only agreed to dismiss the lawsuit without prejudice and that they intended to pursue their claims against Austin in the Florida courts. Both Balbirer and Brainin produced affidavits that they did not intend to abandon their cause of action and that their Illinois counsel erred in stipulating to a dismissal with prejudice. No effort was made to modify the Illinois judgment.
7
On April 7, 1981, the Florida District Court of Appeal reversed the judgment of the trial court and ordered judgment entered in favor of Austin's Rack. The appellate court found that Austin had misrepresented the value of Austin's Rack to B.J. Apparel and that this misrepresentation justified the termination of Austin's employment. Austin's Rack, Inc. v. Austin, 396 So.2d 1161 (Fla.3d Dist.Ct.App.), cert. denied, 402 So.2d 607 (Fla.1981).
8
Austin filed a voluntary petition for bankruptcy in the United States Bankruptcy Court for the Southern District of Florida on June 14, 1982. B.J. Apparel and its principals filed separate adversary complaints against Austin, seeking a determination that certain debts owed by Austin to them were nondischargeable in bankruptcy. B.J. Apparel contended that damages arising from Austin's misrepresentation of the value of Austin's Rack were not dischargeable under the provisions of 11 U.S.C. Sec. 523(a)(2) and that any damages occurring because of Austin's slanderous statements to Opelika were not dischargeable pursuant to 11 U.S.C. Sec. 523(a)(6). The company also sought leave to foreclose a mortgage it held on land owned by Austin. Balbirer's and Brainin's complaint contained a similar slander charge. The bankruptcy court consolidated these adversary proceedings for trial.
9
B.J. Apparel moved for partial summary judgment alleging the preclusive effect of the judgment from the Florida District Court of Appeal. On the date of trial in the bankruptcy court, Austin asserted the affirmative defense of collateral estoppel based on the dismissal of the Illinois lawsuit. After considering Brainin's testimony, the record of the Florida litigation, and the Illinois order of dismissal, the bankruptcy court held that the appellants were estopped by the Illinois judgment from pursuing their claims of relief against Austin. The court refused to accord preclusive effect to the Florida judgment because it was not in "irreconcilable conflict" with the Illinois judgment and the Illinois judgment purported to resolve all disputes between the parties. The United States District Court for the Southern District of Florida affirmed the bankruptcy court's judgment and the appellants filed this appeal.
10
In this case, we are confronted with the difficult task of applying the rules of collateral estoppel from two seemingly contradictory judgments. We note at the outset that application of collateral estoppel in a particular case is a matter of trial court discretion, Deweese v. Town of Palm Beach, 688 F.2d 731, 733-34 (11th Cir.1982), but that this court exercises plenary review over the rules governing collateral estoppel.
11
The basic test for collateral estoppel or issue preclusion was recently articulated by this court in In re Held, 734 F.2d 628, 629 (11th Cir.1984):
12
The doctrine of collateral estoppel bars relitigation of an issue if three requirements are met:
13
(1) that the issue at stake be identical to the one involved in the prior litigation;
14
(2) that the issue have been actually litigated in the prior litigation; and
15
(3) that the determination of the issue in the prior litigation have been a critical and necessary part of the judgment in that earlier action.
16
We must first apply this test to each state judgment and then address any conflict between them.1
17
The Illinois judgment was a consent decree dismissing the action with prejudice. A litigant can be collaterally estopped from pursuing an issue by a consent decree if the parties intended the decree to resolve that issue. Courts have recognized, however, that parties often enter into consent judgments for reasons other than a disposition of the issues in the case. In that event, the second and third requirements articulated in In re Held are not satisfied and the consent judgment does not settle the issues for future litigation.
18
The seminal case in this issue is United States v. International Building Co., 345 U.S. 502, 73 S.Ct. 807, 97 L.Ed. 1182 (1953). In that case, a taxpayer claimed that a prior consent decree stipulating that he owed no tax deficiency for three tax years barred the Internal Revenue Service from litigating a similar deficiency claim for subsequent tax years. The Supreme Court rejected this argument because the issue of the tax liability had not been litigated and determined on the merits in the consent decree. The Court concluded:
19
Perhaps the settlement was made for a different reason, for some exigency arising out of the bankruptcy proceeding. As the case reaches us, we are unable to tell whether the agreement of the parties was based on the merits or on some collateral consideration. Certainly the [consent] judgments entered are res judicata of the tax claims for the years 1933, 1938 and 1939, whether or not the basis of the agreements on which they rest reached the merits. But unless we can say that they were an adjudication of the merits, the doctrine of estoppel by judgment would serve an unjust cause: it would become a device by which a decision not shown to be on the merits would forever foreclose inquiry into the merits.
20
345 U.S. at 505-06, 73 S.Ct. at 809, 97 L.Ed. at 1188. See also Lawlor v. National Screen Service Corp., 349 U.S. 322, 75 S.Ct. 865, 99 L.Ed. 1122 (1955).
21
The former Fifth Circuit Court of Appeals utilized an identical approach in determining the collateral estoppel effect accorded to consent judgments. In Kaspar Wire Works, Inc. v. Leco Engineering & Machine, Inc., 575 F.2d 530 (5th Cir.1978),2 the plaintiff in a patent dispute dismissed its lawsuit with prejudice as part of the settlement of an unrelated case. A year later, the defendant in the first case filed suit charging the original plaintiff with patent infringement and alleged that infringement was established by collateral estoppel because of the dismissal of the first action. The court disagreed reasoning that the parties did not intend the dismissal to resolve the infringement question on the merits.
22
[A] consent decree is neither ignored nor treated solely as a contract, although, in considering the finality to be given it, the fact that it originated as a negotiated settlement is considered. Whatever type of repose is sought to be invoked as a result of a judicial consent decree, a court should take into account the fact that it was rendered by consent and determine its impact by the issues actually intended to be precluded by the parties.
23
575 F.2d at 539. A similar view was taken in Anderson, Clayton & Co. v. United States, 562 F.2d 972, 992 (5th Cir.1977), cert. denied, 436 U.S. 944, 98 S.Ct. 2845, 56 L.Ed.2d 785 (1978): "When one party ... concedes or stipulates the issue upon which the court bases its judgment, the issue is not conclusively determined for purposes of collateral estoppel unless it is clear that the parties so intended."
24
Other courts of appeal have followed this same course. See, e.g., Spilman v. Harley, 656 F.2d 224, 228 (6th Cir.1981) ("Thus, before applying the doctrine of collateral estoppel, the bankruptcy court must determine if the issue was actually litigated and was necessary to the decision in the state court. To do this, the bankruptcy court should look at the entire record of the state proceeding, not just the judgment ... or hold a hearing if necessary."); Matter of Ross, 602 F.2d 604, 608 (3d Cir.1979) ("A determination of whether the [elements of collateral estoppel] are met should be made in the first instance by the bankruptcy judge after a careful review of the record of the prior case, a hearing at which the parties have the opportunity to offer evidence, and the making of findings of fact and conclusions of law.").
25
Therefore, we hold that a consent judgment cannot constitute collateral estoppel unless the party pleading collateral estoppel proves from the record of the prior case or through extrinsic evidence that the parties intended the consent judgment to operate as a final adjudication of a particular issue. In the case at bar, the bankruptcy court considered only the Illinois judgment on its face and did not inquire into the intent of the parties. For this reason, it is necessary to remand the case for a hearing on the intent behind the Illinois dismissal.
26
Such an inquiry will not, as Austin maintains, violate the dictates of full faith and credit or federal-state comity. Such an investigation in no way challenges the validity of the Illinois judgment or circumvents its effect. On remand, the bankruptcy court need only determine what issues, if any, actually were resolved by the Illinois judgment. The court would then decide whether to declare those issues established in the present litigation as a matter of collateral estoppel.
27
We next turn to the collateral estoppel effect of the second state court judgment from the Florida District Court of Appeal. The bankruptcy court did not analyze the issue-preclusive effect of this judgment because it concluded that all disputed matters were settled by the prior Illinois judgment. Since the bankruptcy court erred in giving collateral estoppel effect to the Illinois judgment, the court also must reconsider the collateral estoppel consequences of the Florida judgment.
28
It is the general rule that when two judgments conflict, the subsequent judgment controls for purposes of collateral estoppel. See Garden Suburbs Golf & Country Club v. Murrell, 180 F.2d 435, 436 (5th Cir.) (per curiam), cert. denied, 340 U.S. 822, 71 S.Ct. 54, 95 L.Ed. 603 (1950); Donald v. J.J. White Lumber Co., 68 F.2d 441, 442 (5th Cir.1934). See also Reimer v. Smith, 663 F.2d 1316, 1327 (5th Cir.1981). As such, the Florida judgment would control for collateral estoppel purposes should there be any conflict with the Illinois judgment.
29
With this record, we cannot determine whether any such conflict does exist. The Florida judgment clearly establishes that Austin misrepresented the value of Austin's Rack when he sold the corporation to B.J. Apparel. See Austin's Rack, Inc. v. Austin, 396 So.2d at 1163. We cannot come to a similar conclusion as to the Illinois judgment. No court has yet conducted a full hearing into the intent of the parties when they consented to that judgment. Until this inquiry is made, we cannot say what issues actually were resolved by that judgment and thus whether there is any conflict.
30
Accordingly, we reverse the judgment of the district court with instructions to remand this case to the bankruptcy court for further proceedings. On remand, the bankruptcy court should conduct a hearing as to the parties' intent in consenting to the dismissal of the Illinois case. The court should consider the record of the Illinois litigation and any extrinsic evidence offered by the parties. After such an inquiry, the bankruptcy court must determine what issues, if any, were resolved by the Illinois judgment. The court should next determine whether any conflict exists between the Illinois and Florida judgments and resolve any conflicts in favor of the latter judgment. Finally, the court should decide whether to accord collateral estoppel effect to the issues actually settled by the earlier litigation. See Deweese v. Town of Palm Beach, 688 F.2d 731, 733-34 (11th Cir.1982).
31
As a final matter, the appellants ask that we enter a final judgment on the merits in their favor based on the evidence in the existing record. Since there has not yet been a full fact-finding, we decline their request. These factual findings should be made in the first instance by the bankruptcy court.
32
The judgment of the district court is REVERSED and the case is REMANDED for proceedings consistent with this opinion.
*
See Rule 3(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit
**
Honorable John R. Brown, Senior U.S. Circuit Judge for the Fifth Circuit, sitting by designation
1
The appellants were not actual parties to either the Illinois or the Florida state court cases. Nonetheless, they are in privity with an actual party, Austin's Rack, and, as such, are bound by the collateral estoppel effect of those two judgments. See Southwest Airlines Co. v. Texas International Airlines, 546 F.2d 84, 95 (5th Cir.), cert. denied, 434 U.S. 832, 98 S.Ct. 117, 54 L.Ed.2d 93 (1977); Drier v. Tarpon Oil Co., 522 F.2d 199, 200 (5th Cir.1975) (per curiam); Astron Industrial Associates, Inc. v. Chrysler Motors Corp., 405 F.2d 958, 961 (5th Cir.1968)
2
In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), this court adopted as precedent all decisions of the former Fifth Circuit Court of Appeals decided prior to October 1, 1981
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62 F.2d 32 (1932)
JOHNSON et al.
v.
UNITED STATES.
No. 6864.
Circuit Court of Appeals, Ninth Circuit.
December 5, 1932.
Henry Clay Agnew, of Seattle, Wash., for appellants.
Anthony Savage, U. S. Atty., of Seattle, Wash., and Joseph A. Mallery, Asst. U. S. Atty., of Tacoma, Wash., and Cameron Sherwood, *33 Asst. U. S. Atty., of Seattle, Wash., for the United States.
Before WILBUR and SAWTELLE, Circuit Judges.
SAWTELLE, Circuit Judge.
Appellants were convicted by a jury of conspiring with several others to violate the federal prohibition laws, as charged in count 1 of the indictment, and of violating the internal revenue laws and the federal penal code, as charged in counts 2, 3, and 4. The other defendants pleaded guilty. Appellants duly challenged the sufficiency of the evidence by a motion for a directed verdict.
Appellants were at one time connected with the federal prohibition department in Seattle. In November, 1930, they conspired with their codefendants, Gordon, Jauranas, Salo, and Menkes, to erect a still for the manufacture of intoxicating liquor. Appellants represented themselves as able to furnish protection for the enterprise.
On the trial appellants admitted that they were parties to this conspiracy, but contended that their motive in joining the conspiracy was to obtain information which they intended to turn over to the prohibition department and claim a reward; but the government asserted a guilty motive, and the jury so found.
A site referred to as the Donkers ranch, in King county, Wash., was selected as the location of the proposed still, and the necessary equipment was purchased. December 11, 1930, prohibition agents observed members of the conspiracy conveying the still equipment to the proposed site on the Donkers ranch. The conspirators also observed the agents, and abandoned their journey and returned to Seattle. No attempt was thereafter made to erect the still on the Donkers ranch and that proposed location was abandoned.
Appellants' fellow conspirators then became suspicious of appellants and thereafter gradually eliminated them from further activities relating to the selection of a new still site and the erection of a still thereon. Within a month, Salo, one of the conspirators, dropped out and left the state, and one Schloss and one Sadick were then taken into the conspiracy. The new site was located in Pierce county, Wash., and known as the Benston ranch, where the still was erected in March, 1931, and where defendants, not including appellants, were arrested in July, 1931. The manner in which the other defendants got rid of appellants, or attempted to do so, is described as follows by defendant Gordon:
"We decided that the Donkers place was too hot, and we immediately moved the equipment from that place and stored it in Seattle for a time. We continued to look for locations in Kitsap and Skagit Counties, Johnson and Stickels assisting us. I didn't like the way things were going, but we did not dare to throw Johnson and Stickels overboard for fear they would hinder our intended operations. I continued to give them $10 and $20 at different times to satisfy them. They were continually making demands upon us for money, although our agreement was that they should not receive any money until we had set up our still and got under way. Johnson and Stickels attended numerous meetings at Schloss' and Stickels' apartments in Seattle, at which plans for the future were discussed. These meetings were held early in January, 1931. All during this time we had been looking for locations, but gradually we drew away from Johnson and Stickels with the intent to ultimately get rid of them because we did not trust them. Stickels told us later that he had made arrangements for protection in Pierce County. * * *
"About this time we had a meeting at Schloss' apartment. Jauranas, Schloss, Menkes and myself were present. Menkes and I had found what we considered to be an ideal location in Pierce County. Schloss then said that he had necessary connections for protection, that he knew some parties who were in a position to give us complete protection in Pierce County and that if we would let them know where the place was they could make arrangements to rent the place. I asked Schloss who these men were. Because of our experience with Johnson and Stickels I wanted to be sure this time. He told us that Bill Sadick had a connection with some `big shot' who could give us absolute protection. That Sadick was related to him by marriage and could be trusted.
"Johnson and Stickels had dropped out shortly before the boiler was taken to Tacoma although they had attended some of the meetings at the Schloss and Stickels apartments after we had decided to go to Pierce County. They did not know the location of that still, however. We kept that information from them because we thought they were dangerous."
And in this connection defendant Jauranas testified: "After the officers had followed the boiler on December 11th, we continued to look for locations for a new set up. We *34 kept Johnson and Stickels in ignorance of our moves because we had begun to distrust them. We finally told Johnson and Stickels and Murray that we had given up the idea of setting up as it was too hot, and finally dropped them for good in January, 1931. Afterwards, about March 25, 1931, we took the boiler to the Benston Ranch and set up the still there. * * * Johnson and Stickels never knew the location of our still at the Benton place. We purposely kept them from knowing that."
At the conclusion of the government's case, the court denied the following motion: "Defendants separately move for a directed verdict of not guilty on each and all of the counts of the indictment on the ground of insufficiency of the evidence, and upon the further ground that the defendants affirmatively withdrew from the conspiracy and disavowed the same, and upon the further ground that the acts of the defendants were involved in a conspiracy separate and apart from that involved at the still at the Benston Ranch."
Appellants here, again, earnestly insist that there were two distinct conspiracies; "that appellants had been concerned in the first, but that it had come to an end three months before the one upon which the prosecution was bottomed was formed; that the second was formed in secret from appellants, and with it they had never had any connection."
The instructions of the court are not complained of and are not in the record, and it must be assumed that the issue as to whether there existed but one continuing conspiracy, as charged in the indictment, or two distinct conspiracies, was properly submitted to the jury. The jury found that the conspiracy charged was a single continuing one; and this finding is supported by the evidence.
The gist of the conspiracy was the unlawful agreement of the parties to manufacture intoxicating liquor, and was completed when one or more of the parties committed one of the overt acts charged to effect the object of the conspiracy. The indictment charged a single continuous conspiracy. It would seem that the acts of the appellants in furthering the so-called "first conspiracy," that is, their participation in the overt acts of purchasing the still equipment, the securing of a lease of the first proposed still site on the Donkers ranch, and other acts not necessary to be set forth in detail, were sufficient to warrant a conviction. In any event, the conspiracy was a single continuous one, set in motion by the acts of the appellants themselves. And it is clear that at no time did appellants withdraw from the unlawful agreement, nor did they attempt any affirmative act of withdrawal. On the contrary, after the abandonment of the Donkers site, they continued, or at least attempted to continue, to aid the object of the conspiracy. It is true they were "kept in the dark" as to the location of the second still site; but that fact does not excuse them. They were parties to the original conspiracy to manufacture intoxicating liquor at a place to be selected, and the abandonment of the first proposed still site and the selection of a second, though the latter place was unknown to appellants, did not constitute two distinct conspiracies, but was merely in furtherance of the original unlawful agreement to which appellants were parties, and they therefore remained liable for the acts of their coconspirators. See Coates v. United States (C. C. A.) 59 F.(2d) 173. Nor does the fact that some of the original conspirators withdrew therefrom and others entered change the legal status of those remaining. There was no error therefore in overruling appellants' motion for a directed verdict.
We have treated the first assignment of error, in which appellants challenge the sufficiency of the evidence, as the equivalent of an assignment based upon the overruling of the motion for a directed verdict and as applying to counts 2, 3, and 4 as well as the conspiracy count. Said counts 2, 3, and 4, as we have seen, charged that appellants carried on the business of a distiller contrary to law, fermented mash for the distillation of spirits, and maintained a common nuisance. The evidence shows that the parties were associated together for the illegal purpose of manufacturing intoxicating liquor, and any act done by one or more of the parties to accomplish that purpose was the act of all. And this is true regardless of the fact that counts 2, 3, and 4 do not directly charge a conspiracy. 18 USCA § 550. That section is as follows: "§ 550. (Criminal Code, section 332.) `Principals' defined. Whoever directly commits any act constituting an offense defined in any law of the United States, or aids, abets, counsels, commands, induces, or procures its commission, is a principal."
The evidence is sufficient to sustain the verdict of guilty on such last mentioned counts. The fact that these appellants were not personally present at the place where and the time when the liquor was manufactured is immaterial. It is not necessary that one who *35 aids and abets the commission of a crime shall be present when the crime is committed to sustain a conviction under this section. The jury necessarily found against appellants' contention that they had abandoned the unlawful enterprise. Having voluntarily entered into the undertaking and aided and assisted its execution, they are responsible for the consequences.
Error is assigned to a ruling of the court in refusing to require the witness Jauranas to testify to whom he made a series of $2,500 payments for protection, and to a ruling permitting this witness to testify in rebuttal concerning having paid appellant Johnson $500 to fix a case for him some months prior to the conspiracy charged.
These assignments do not comply with rule 11 of this court as to the necessity of quoting the full substance of the evidence admitted or rejected. However, we have examined the assignments and do not believe that they disclose any prejudice resulting to appellants under all the circumstances of the case.
Affirmed.
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Filed 7/30/14 P. v. Goree CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B243403
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA245379)
v.
CHRISTOPHER LEVI GOREE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Lance A. Ito, Judge. Affirmed in part, reversed in part, and remanded for resentencing.
Janyce Keiko Imata Blair, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., Shawn
McGahey Webb and Allison H. Chung, Deputy Attorneys General, for Plaintiff and
Respondent.
_________________________
Defendant and appellant, Christopher Levi Goree, appeals the sentence he
received following his conviction for special circumstances murder (during commission
of a rape) and forcible rape. He was sentenced to state prison for a term of life without
possibility of parole.
The judgment is affirmed in part, reversed in part, and remanded for resentencing.
BACKGROUND
1. The crime.
When defendant Goree was 17 years old he committed an extremely brutal rape
and murder. The victim was Dr. Josephine Tan.
Dr. Tan emigrated from the Philippines in the late 1980’s. She had practiced there
as a pediatrician and was preparing to take a qualifying examination so she could practice
in California. Tan was in her forties, weighed 97 pounds and was five feet tall. In
November 1993, Goree attacked Tan as she was crossing a pedestrian footbridge over the
110 freeway in Torrance. Goree weighed about 165 pounds and stood six feet, three
inches tall.
Tan’s naked body was discovered supine, her arms and legs stretched apart.
She had sustained two skull fractures, which rendered her unconscious. Parallel
markings indicated she had then been dragged from the footbridge to a concrete drainage
ditch adjacent to the freeway. Injuries to the soles of her bare feet indicated she had tried
to flee from her attacker. She had sustained severe facial injuries consistent with a
beating, and a shoe print on her right thigh indicated she had been held down during the
beating. Tan had likely been raped more than once because her vaginal cavity was cut
and contained a profuse amount of blood and semen. She died of asphyxiation by manual
strangulation, her bra having been wrapped around her neck and apparently used as a
ligature.
In 2002, the DNA profile obtained from the sperm recovered from Tan’s body
was matched to Goree. The chance of such a match was one in a hundred quintillion,
which is a one followed by 18 zeros. When Goree was arrested in June 2002, he was
26 years old.
2
2. The sentencing.
Goree was sentenced on June 15, 2012, at which time he was 36 years old.
He was sentenced under Penal Code section 190.5, subdivision (b),1 which provides:
“The penalty for a defendant found guilty of murder in the first degree, in any case in
which one or more special circumstances enumerated in Section 190.2 or 190.25 has been
found to be true under Section 190.4, who was 16 years of age or older and under the age
of 18 years at the time of the commission of the crime, shall be confinement in the state
prison for life without the possibility of parole or, at the discretion of the court, 25 years
to life.”
In pronouncing sentence, the trial court began by saying, “I have to evaluate
various facts and circumstances under 190.3. And under 190.5, the penalty for a murder
with special circumstances is life without the possibility of parole [LWOP], unless the
court in its discretion finds that there are factors in mitigation that would justify that.”
After noting various sentencing factors it had considered, the trial court said: “As I
started the discussion, the presumptive penalty in this case, because the jury did in fact
find the special circumstance to be true, is life imprisonment without the possibility of
parole. [¶] I have to make a finding and exercise my discretion in order to change
that. . . . [¶] At this time, I, therefore, elect not to exercise my discretion, and the
sentence will be the sentence prescribed by law.”
When defense counsel subsequently tried to challenge “the court’s determination
that . . . there is a presumption of LWOP in this case,” the trial court replied, “Let me
make it clear, I did not presume it was the ordained sentence. I weighed all the factors
and circumstances, and I find this is the appropriate penalty.”
CONTENTION
Goree’s life-without-possibility-of-parole sentence constitutes cruel and unusual
punishment.
1
All further references are to the Penal Code unless otherwise specified.
3
DISCUSSION
We agree with Goree that, in light of recent case law from both our Supreme Court
and the United States Supreme Court, this matter must be remanded to the trial court for
resentencing.
Goree was 17 years old when he murdered Dr. Tan. The United States Supreme
Court has, in recent years, expressed concern about sentencing juvenile offenders to
prison terms that prevent any possibility of rehabilitation and eventual release. In Roper
v. Simmons (2005) 543 U.S. 551 [125 S.Ct. 1183], the court held that juveniles must be
treated differently than adults when it comes to sentencing. “Roper established that
because juveniles have lessened culpability they are less deserving of the most severe
punishments. [Citation.] As compared to adults, juveniles have a ‘ “lack of maturity and
an underdeveloped sense of responsibility” ’; they ‘are more vulnerable or susceptible to
negative influences and outside pressures, including peer pressure’; and their characters
are ‘not as well formed.’ [Citation.] These salient characteristics mean that ‘[i]t is
difficult even for expert psychologists to differentiate between the juvenile offender
whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender
whose crime reflects irreparable corruption.’ [Citation.] Accordingly, ‘juvenile
offenders cannot with reliability be classified among the worst offenders.’. . . [¶]
No recent data provide reason to reconsider the Court’s observations in Roper about the
nature of juveniles. As petitioner’s amici point out, developments in psychology and
brain science continue to show fundamental differences between juvenile and adult
minds. . . . Juveniles are more capable of change than are adults, and their actions are
less likely to be evidence of ‘irretrievably depraved character’ than are the actions of
adults.” (Graham v. Florida (2010) 560 U.S. 48, 68, [176 L.Ed.2d 825].)
Roper held the imposition of capital punishment on juvenile offenders for any
offense whatsoever violated the Eighth Amendment. Graham held the imposition of a
life-without-possibility-of-parole sentence on a juvenile offender for a non-homicide
offense violated the Eighth Amendment. Miller v. Alabama (2012) 132 S.Ct. 2455, 2469
[183 L.Ed.2d 407], held “the Eighth Amendment forbids a sentencing scheme that
4
mandates life in prison without possibility of parole for juvenile offenders” who commit
homicide, although a trial court could in its discretion impose such a punishment.
(Italics added.)
In People v. Gutierrez (2014) 58 Cal.4th 1354, our Supreme Court held:
“[S]ection 190.5(b), properly construed, confers discretion on a trial court to sentence
a 16- or 17-year-old juvenile convicted of special circumstance murder to life without
parole or to 25 years to life, with no presumption in favor of life without parole.
We further hold that Miller requires a trial court, in exercising its sentencing discretion,
to consider the ‘distinctive attributes of youth’ and how those attributes ‘diminish the
enological justifications for imposing the harshest sentences on juvenile offenders’ before
imposing life without parole on a juvenile offender. [Citation.] Because the sentencing
regime created by section 190.5(b) authorizes and indeed requires consideration of the
distinctive attributes of youth highlighted in Miller, we find no constitutional infirmity
with section 190.5(b) once it is understood not to impose a presumption in favor of life
without parole.” (Id. at pp. 1360-1361, italics added.)
The result in Gutierrez overturned the previous, long-standing interpretation of
section 190.5 by California’s lower courts: “For two decades, since People v. Guinn
(1994) 28 Cal.App.4th 1130 . . . , section 190.5(b) has been construed by our Courts of
Appeal and trial courts as creating a presumption in favor of life without parole as the
appropriate penalty for juveniles convicted of special circumstance murder.” (People v.
Gutierrez, supra, 58 Cal.4th at p. 1360.) Gutierrez remanded for resentencing:
“Because the two defendants here were sentenced before Miller in accordance
with the interpretation of section 190.5(b) prevailing at the time [citation], we remand
for resentencing in light of the principles set forth in Miller and this opinion.”
(Id. at p. 1361.) Gutierrez reasoned, “Although the trial courts in these cases understood
that they had some discretion in sentencing, the records do not clearly indicate that they
would have imposed the same sentence had they been aware of the full scope of their
discretion. Because the trial courts operated under a governing presumption in favor of
5
life without parole, we cannot say with confidence what sentence they would have
imposed absent the presumption.” (Id. at p. 1391.)
Goree was sentenced on June 15, 2012, before either Miller (filed June 25, 2012)
or Gutierrez (filed May 5, 2014) was decided.
Nevertheless, the Attorney General argues Goree’s sentence was proper:
“Because of recent amendments to the Penal Code, appellant’s sentence falls outside
the Miller rule because it affords him the possibility of parole.” The Attorney General is
referring to legislation enacted in 2012, which provides in pertinent part “When a
defendant who was under 18 years of age at the time of the commission of the offense
for which the defendant was sentenced to imprisonment for life without the possibility of
parole has served at least 15 years of that sentence, the defendant may submit to the
sentencing court a petition for recall and resentencing.” (§ 1170, subd. (d)(2)(A)(i).)
But Gutierrez has already rejected this argument: “[T]he potential for relief under
section 1170(d)(2) does not eliminate the serious constitutional doubts arising from a
presumption in favor of life without parole under section 190.5(b) because the same
questionable presumption would apply at resentencing.” (People v. Gutierrez, supra,
58 Cal.4th at p. 1385.) “If anything, a decision to recall the sentence pursuant to
section 1170(d)(2) is a recognition that the initial judgment of incorrigibility underlying
the imposition of life without parole turned out to be erroneous. Consistent with
Graham, Miller repeatedly made clear that the sentencing authority must address this risk
of error by considering how children are different and how those differences counsel
against a sentence of life without parole ‘before imposing a particular penalty.’
[Citation.]” (Id. at p. 1387.)
The Attorney General argues Goree’s sentence did not violate Gutierrez because
“the trial court expressly indicated that LWOP was not the presumptive sentence in this
case.” We disagree. The trial court did say, “Let me make it clear, I did not presume
[LWOP] was the ordained sentence. I weighed all the factors and circumstances, and
I find this is the appropriate penalty.” But the court made this statement after
pronouncing sentence, and before pronouncing sentence the court had said:
6
“[U]nder 190.5, the penalty for a murder with special circumstances is life without the
possibility of parole, unless the court in its discretion finds that there are factors in
mitigation that would justify that.” The court also said: “[T]he presumptive penalty in
this case . . . is life imprisonment without the possibility of parole. [¶] I have to make a
finding and exercise my discretion in order to change that. . . . [¶] At this time, I,
therefore, elect not to exercise my discretion, and the sentence will be the sentence
prescribed by law.” Given this larger context, the language cited by the Attorney General
does not demonstrate the trial court understood life without possibility of parole was not
the presumptive sentence.
Finally, the Attorney General argues the record shows the trial court did take into
consideration Goree’s age. We cannot agree. The trial court acknowledged the extensive
evidence put on by the defense regarding Goree’s organic brain injuries,
neuropsychological impairments, borderline intellectual functioning, and severely
dysfunctional home life. But the trial court’s only apparent specific reference to Goree’s
juvenile status was the following remark: “Under factor 190.3(1), the age of the
defendant, he was seventeen, nine months and five days at the time of this event.”
This was not sufficient to satisfy Miller’s requirement that “a trial court, in exercising its
sentencing discretion, . . . consider the ‘distinctive attributes of youth’ and how those
attributes ‘diminish the penological justifications for imposing the harshest sentences on
juvenile offenders’ before imposing life without parole on a juvenile offender.
[Citation.]” (People v. Gutierrez, supra, 58 Cal.4th at p. 1361.)
Given these circumstances, the appropriate course is to affirm Goree’s
convictions, but reverse his sentence and remand to the trial court for resentencing in
accordance with the new case law from the United States Supreme Court and the
California Supreme Court cited in this opinion.
7
DISPOSITION
The judgment is affirmed in part, reversed in part, and remanded for resentencing.
Goree’s convictions are affirmed. His life-without-possibility-of-parole sentence is
vacated and the matter is remanded to the trial court for a resentencing determination
consistent with this opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN, P. J.
We concur:
KITCHING, J.
ALDRICH, J.
8
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853 N.E.2d 458 (2003)
341 Ill. App.3d 1129
POST v. SNYDER
4-02-0991
Appellate Court of Illinois, Fourth District.
August 28, 2003.
Disposition of Cases by Order in the Appellate Court under Supreme Court Rule 23. Rev'd & rem.
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900 F.Supp. 20 (1995)
Melvin L. PACE, Plaintiff,
v.
SUNTECH, INCORPORATED and United Student Aid Services, Defendants.
Civ. A. No. 3:94-CV-675BN.
United States District Court, S.D. Mississippi, Jackson Division.
August 8, 1995.
*21 Sharon Denotra Henderson, Henderson & Lumumba, Jackson, MS, Halbert E. Dockins, Jr., Halbert E. Dockins, Jr., Jackson, MS, for Melvin L. Pace.
Peter Larkin Doran, Eugene Ainsworth Simmons, Wells, Moore, Simmons & Neeld, Jackson, MS, for Suntech, Inc.
William F. Ray, Watkins & Eager, Jackson, MS, for United Student Aid Services.
OPINION AND ORDER
BARBOUR, Chief Judge.
The Court has before it two Motions for Summary Judgment, one filed by Defendant United Student Aid Services, Inc. ("USA"), the other by Suntech, Incorporated ("Suntech"). Plaintiff has responded to both motions. The Court, having considered the motions, responses and supporting memoranda, finds that the motions are well taken and should be granted, and that the Plaintiff's cause of action against both Defendants should be dismissed with prejudice.
I. Background[1]
Plaintiff Melvin L. Pace ("Pace") seeks injunctive relief requiring Defendants USA and Suntech to provide additional student aid to him in the form of guaranteed student loans.[2] Under the guaranteed student loan program, Suntech services loans for lenders, *22 and USA services loans for guarantors. Pace is currently a law student enrolled at the University of Mississippi School of Law, who has completed two years of study. He seeks additional loans so that he may complete law school.
In July of 1986, Pace signed an "Application For A Guaranteed Student Loan/Promissory Note For A Guaranteed Student Loan." Pursuant to the Note, he received a disbursement of funds (the "1986 loan"), which was guaranteed under the guaranteed student loan program of the federal government. Pace became delinquent in his obligation to repay this 1986 loan and in January, 1992, Defendant USA placed the 1986 loan in default status.[3]
In anticipation of beginning law school, Pace sought financial aid in the form of student loans. By virtue of two applications dated June 21, 1993, he sought separate loans, one in the amount of $4,494.00, and the other in the amount of $2,470.00. Notwithstanding the default status of the 1986 loan, Pace completed both loan applications and promissory notes by stating that he had no outstanding student loan balance, and that he had never defaulted on a student loan. On June 23, 1993, in an attempt to clear the balance on the outstanding 1986 loan, Pace sent a check to USA Funds, but it was returned for insufficient funds.
Based upon the information in the two documents Pace signed in June 1993, he was declared eligible for guaranteed student loans for the 1993-94 school year, and funds were disbursed under the guaranteed loan arrangement. In the summer of 1994, Pace contacted the financial aid office at the University of Mississippi to seek additional financial aid in the form of student loans for the 1994-1995 academic year. He was informed that his guaranteed student loan did not guaranty, and upon contacting the lender was informed that the 1986 loan was in default. Pace paid the balance of the 1986 loan in August 1994.
By letter of September 28, 1994, Suntech was informed by USA that Pace was judged by the guaranty agency to be ineligible for guaranteed student loans issued on August 11, 1993, and December 15, 1993, based on a previous default of a student loan on January 16, 1992. Pursuant to the instructions of USA (the guaranty agency), Suntech generated a demand letter dated October 14, 1994, informing Pace that he was ineligible for certain loans, and that pursuant to federal regulations, demand for total payment was being made requiring $7,479.27 to be paid not later than thirty days from the date of the letter. At the time demand was made, Pace had already received one-half of the $18,500.00 guaranteed student loan that he had taken for the 1994-1995 academic year. He has not paid back the $7,479.27, and Suntech has withheld the second disbursement of his 1994-1995 loan.
Pace essentially asks this Court for equitable relief, arguing that the "errors on his application were not due to any intentional or willful misrepresentation on his part," and that "Defendants [had] some independent responsibility to verify the information disclosed on the loan applications and promissory notes." Pl.'s Resp. Br. at 12. In an attempt to explain his erroneous negative response to the question, "Have you ever defaulted on an educational loan?," Pace submits by affidavit the following account:
I submitted loan applications in February 1993 for Title IV aid for the purpose of attending the University of Mississippi School of Law. On the February 1993 loan applications, I stated that I had approximately $900.00 in outstanding Title IV loans incurred in 1986. On February 6, 1993, I personally contacted the Defendant USA Services with regard to the outstanding Title IV loans and the effect of the outstanding balance on my present application for Title IV assistance. I was told to make three consecutive payments in order to prevent a default. Between February 1993 and July 1993 I received Notices of *23 Eligibility, Student Aid Reports, Notices of Loan Guarantees and Disclosure Statements, and Promissory Notes. I entered a voluntary agreement with Defendant USA Services to extinguish the 1986 loans, by paying $475.00 on May 28, 1993 and the balance of $407.64 by June 30, 1993. This agreement was proposed by me and entered into because I did not care to leave the small balance outstanding, not to cure any default in order to become eligible for Title IV aid.[4]
On June 21, 1993 I executed Promissory Notes under an oath which stated in pertinent parts:
I, the borrower, certify that the information contained on this form is true, complete and accurate to the best of my knowledge and belief and is made in good faith.
I authorize my lender, subsequent holder or their agents, or the MGSLA to check my credit and employment history and to answer questions about its experience with me.
I certify that I am not in default on a Stafford loan ...
I, to the best of my knowledge and belief and in good faith stated that I owed no balance on any SLS loan and had not defaulted on any previous loan. My knowledge and belief was founded upon the information received from the fact that I paid the loan as diligently as I could and when I could not, I informed the Educational Loan Servicing Center in order to have my monthly payments forborne, [and of the] fact that the previous loan was in Forebearance at the time the Defendant USA Services said it was in default. My information, knowledge and belief was further based upon my conversations regarding the prior loan with Toni, representative of Defendant USA Services on February 3, 1993, conversations regarding the guaranteeing of the 1993 funds and the posting of the June 30, 1993 payment with Chad, representative of Defendant USA Services on July 8, 1993, the conversations with Ms. Vicki McQueen of SunTech, Inc. regarding the same. As of June 21, 1993, I had already made arrangements with USA Services and intended to uphold my obligations thereunder to satisfy the outstanding student loan, therefore I put a zero in the outstanding loan amount. I also based my knowledge and belief upon the fact that I had received Notices of Eligibility, Student Aid Reports and Notices of Loan Guarantees and Disclosure Statements none of which indicated any previous default. I simply answered the questions to the best of my knowledge. I state that if I had known of a default I would have utilized my State of Mississippi Retirement funds to pay any default.
Aff. of Pace at 1-3 (paragraph numbers omitted).
Nowhere does Pace explain how his understanding justified a "no" response to the unambiguous question, "Have you ever defaulted on an educational loan?" (emphasis added). It is perhaps an acknowledgement of this fundamental flaw in his case that leads Pace to conclude in his affidavit, "I am without any remedy at law and unless this Court grants the relief requested I will be without the benefit of my pursuits, lodged deeply in debt, and deprived of an opportunity to enter the profession of my choosing and labor." Aff. of Pace at 5.
II. Applicable Legal Standard for Consideration of Defendants' Motions
Defendants' motions are styled as motions to dismiss for failure to state a claim for relief, or in the alternative, for summary judgment. Although motions to dismiss and motions for summary judgment are interrelated and are often asserted in the alternative, there are differences in the legal standards applied under the two motions. The purpose of a Rule 12(b)(6) motion to dismiss is to test the statement of the claim for relief *24 as set out in the complaint. See Murray v. Amoco Oil Co., 539 F.2d 1385, 1387 (5th Cir.1976). The motion may be granted "`only if it appears that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Barrientos v. Reliance Standard Life Ins. Co., 911 F.2d 1115, 1116 (5th Cir.1990) (quoting Baton Rouge Bldg. & Constr. Trades Council v. Jacobs Constructors, Inc., 804 F.2d 879, 881 (5th Cir.1986)). Thus, in considering a motion to dismiss, the court's inquiry is limited to the contents of the complaint. Jackson v. Procunier, 789 F.2d 307, 309 n. 4 (5th Cir.1986).
In contrast, a motion for summary judgment goes beyond the pleadings and tests the sufficiency of the evidence a party can produce in support of those issues on which it will bear the burden of proof at trial. Because the parties have submitted and the Court has considered materials outside of the pleadings, the Court will treat Defendants' motions as motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 12(b)(6); Murphy v. Inexco Oil Co., 611 F.2d 570, 573 (5th Cir.1980); Young v. Biggers, 938 F.2d 565, 568 (5th Cir.1991).
Rule 56 of the Federal Rules of Civil Procedure states in relevant part that summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56(c). The United States Supreme Court has held that this language "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a sufficient showing to establish the existence of an essential element to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); see also Moore v. Mississippi Valley State Univ., 871 F.2d 545, 549 (5th Cir.1989); Washington v. Armstrong World Indus., 839 F.2d 1121, 1122 (5th Cir.1988).
The party moving for summary judgment bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record in the case which it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552. The movant need not, however, support the motion with materials that negate the opponent's claim. Id. As to issues on which the non-moving party has the burden of proof at trial, the moving party need only point to portions of the record that demonstrate an absence of evidence to support the non-moving party's claim. Id. at 323-324, 106 S.Ct. at 2552-2553. The non-moving party must then go beyond the pleadings and designate "specific facts showing that there is a genuine issue for trial." Id. at 324, 106 S.Ct. at 2553.
Summary judgment can be granted only if everything in the record demonstrates that no genuine issue of material fact exists. The district court, therefore, must not "resolve factual disputes by weighing conflicting evidence, ... since it is the province of the jury to assess the probative value of the evidence." Kennett-Murray Corp. v. Bone, 622 F.2d 887, 892 (5th Cir.1980). Summary judgment is improper where the court merely believes it unlikely that the non-moving party will prevail at trial. National Screen Serv. Corp. v. Poster Exchange, Inc., 305 F.2d 647, 651 (5th Cir.1962).
III. Law Applicable to Guaranteed Student Loan Program, And Analysis Under That Law
A. Eligibility for 1993 Loans
Pace's loans, and the issues in this case, are governed by Title IV of the Higher Education Act of 1965, 20 U.S.C. § 1070 et seq. Through this federally-devised system of providing financial assistance through government guarantees of student loans, the United States both makes financial aid available and imposes restrictions on eligibility therefor. Eligibility for guaranteed student loans under Title IV is determined under 20 U.S.C. § 1091, "student eligibility," which states that "a student ... must not owe a refund on grants previously received or be in *25 default on any loan from a student loan fund at any institution provided for in part D of this subchapter, or a loan made, insured, or guaranteed by the Secretary under this subchapter and part C of subchapter I of 34 of Title 42 for attendance at any institution ..." 20 U.S.C. § 1091 (emphasis added).[5]
Because Pace's 1986 loan was guaranteed by the subchapter identified in the statute, and because Pace was in default on his 1986 loan in 1993, he was ineligible for the 1993 loans he obtained, and Defendants were required by the applicable law and regulations to call those loans. Despite Pace's protests that he attempted to correct the default, there is no issue of material fact in the record before this Court that Pace was in default on his 1986 loan when he applied for and received disbursements for his 1993 loan, regardless of his attempts to remedy the default.
B. Effect of Erroneous Statements in 1993 Loan Applications
Pace admits his delinquent 1986 loan was placed in default in January 1992. In spite of Pace's attempts to reach some agreement to pay off the loan after it was placed in default, the default was not cured until August 1994. His June 1993 answers in the negative to the questions, "Have you ever defaulted on an educational loan?," were erroneous. The effect of obtaining the 1993 loans based upon the erroneous statements in his application documents is found in 34 C.F.R. § 682.412, entitled "Consequences of the failure of a borrower or student to establish eligibility."
(a) The lender shall immediately send to the borrower a final demand letter meeting the requirements of § 682.411(e) when it learns and can substantiate that the borrower or the student on whose behalf a parent has borrowed, without the lender or school's knowledge at the time the loan was made, provided false or erroneous information or took actions that caused the student or borrower
(1) to be ineligible for all or a portion of a loan made under this part;
(2) to receive a Stafford Loan subject to payment of federal interest benefits as provided under § 682.301 for which he or she was ineligible;
....
(c) In the final demand letter transmitted under (a) of this section, the lender shall demand that within thirty (30) days the borrower repay in full the principal amount of the ineligible portion of the loan, accrued interest thereon, and all special allowance paid by the Secretary thereon up through the most recently ended quarter.
....
(3) If a borrower fails to comply with the terms of a final demand letter described in (a) of this section, the lender shall treat the entire loan as in default, and
(1) with its next quarterly interest billing submitted under § 682.305, refund to the Secretary the amount of the interest benefits received from the Secretary on the ineligible portion of the loan, whether or not repaid by the borrower; and
(2) within the time specified in § 682.406(a)(5), file a default claim thereon with the guarantee agency for the entire unpaid balance of principal and accrued interest.
34 C.F.R. § 682.412.
It is undisputed that, on behalf of the lender, Suntech sent the requisite demand letter and filed a default claim with USA, the guaranty agency. The Court therefore finds that, in all respects, Defendants' actions leading to this lawsuit were not only proper, but were required pursuant to the controlling federal regulations.
*26 C. Alternative Arguments Asserted by the Plaintiff
Because of the clarity of the pertinent regulations, and the propriety of the Defendants' actions under those regulations, Pace urges this Court to find in his favor by issuing a finding that "the actions mandated under Statute and Regulation balanced against the irreparable and irretrievable loss of career opportunity, money and time warrant equitable relief...." Pl.'s Mem.Br. at 1. Pace bolsters this argument throughout his brief with an insistence that, whatever mistakes he made in filling out the loan applications, those mistakes were not due to fraud on his part. He argues repeatedly that he "never knowingly made a false statement or misrepresentation about any aspect of his eligibility or loan status." Id. at 10. It is this absence of fraud which Pace argues raises genuine issues of material fact which preclude summary judgment.
Pace's reliance on the absence of proof of fraudulent intent in this case is misguided. The Court need not make a finding of fraud in order to find that no genuine issue of material fact exists to warrant trial of this case. Plaintiff was in default on the 1986 loan when he received funds for the 1993-94 loan, and was thus ineligible to receive the latter loan. Further, Pace, provided false or erroneous information or took actions that caused him to be ineligible for all or a portion of the 1993-94 loan. His attempt to shift the blame to the lenders, for their failure to discover acknowledgment of the default on earlier loan applications, does not negate the effect of his erroneous answers in June of 1993, upon which the lenders had a right to rely, and which, under federal regulations, required the lenders to take the actions which led to this lawsuit.
IV. Conclusion
Pace requests equitable relief from this Court because, he says, "Failure to grant relief to the Plaintiff would serve to punish the Plaintiff for exercising diligence and relying on information he received." Id. at 19. The Court disagrees. Because of the loans he received in 1993 and 1994, granted to him when he did not have the funds to cover a check for his earlier, defaulted loan, Pace has been able to attend two years of law school. He received these funds not as gifts, but as a participant in a government loan program which requires disclosure of past defaults. His "detrimental reliance" argument is therefore without merit, since it was Plaintiff's own representation and Defendants' reliance thereon which has led to the predicament from which Pace now attempts to extricate himself.
IT IS THEREFORE ORDERED that the requests of the Plaintiff Melvin L. Pace for a temporary restraining order and injunctive relief are hereby denied, and that Defendants' Motions for Summary Judgment are hereby granted.
IT IS FURTHER ORDERED that final judgment should be entered in Defendants' favor, dismissing Plaintiff's claims, with prejudice.
SO ORDERED.
NOTES
[1] The Court draws the factual and procedural background of this case from undisputed facts as submitted by the Defendants, and from the Plaintiff's Complaint.
[2] Plaintiff originally sought relief through both a temporary restraining order and a preliminary injunction. In light of the full briefing by all litigants on the summary judgment motion, and considering that the matter has been set for trial on the September calendar of this Court, the Court entered an order sua sponte on July 18, 1995, dismissing Plaintiff's Application for Temporary Restraining Order and Motion for Preliminary Injunction.
[3] While these facts are laid out in Plaintiff's Complaint at paragraphs and nine and twelve, and admitted in response to the listing of undisputed facts by Suntech, Pace denies the statement by Defendant USA in its listing of undisputed facts that "[i]n 1992 Mr. Pace's 1986 loan was declared to be in default, due to delinquency in payments." Pace's inconsistent efforts at hairsplitting fail to create genuine issues of material fact.
[4] Although Pace states that he was told to submit three consecutive payments, and that he "entered a voluntary agreement with Defendant USA Services to extinguish the 1986 loans, by paying $475.00 on May 28, 1993 and the balance of $407.64 by June 30," nowhere does he allege that he actually made the three consecutive payments, or that he paid the balance of $407.64 by June 1993.
[5] Eligibility to receive student loans is also governed by 34 C.F.R. § 668.7, which provides in part that a student is eligible for a loan as long as he "is not in default and certifies that he or she is not in default, on any loan made under the National Defense/Direct Student Loan, Perkins Loan, ICL or GSL programs." 43 C.F.R. § 668.7(a)(7).
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-295V
(not to be published)
*************************
ANGEL VILLA, *
* Special Master Corcoran
*
Petitioner, * Filed: October 2, 2017
*
v. *
* Decision by Stipulation; Damages;
SECRETARY OF HEALTH * Influenza (“flu”) Vaccine;
AND HUMAN SERVICES, * Guillain-Barré Syndrome (“GBS”).
*
Respondent. *
*
*************************
John Robert Howie, Howie Law, Dallas, TX, for Petitioner.
Darryl Wishard, U.S. Dep’t of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On March 3, 2016, Angel Villa filed a petition seeking compensation under the National
Vaccine Injury Compensation Program (“Vaccine Program”).2 Petitioner alleges that he suffered
from Guillain-Barré syndrome (“GBS”), as a result of his March 6, 2016, Varicella, Polio,
Meningococcal, Hepatitis A, or Hepatitis B vaccines. Petitioner further alleges that he has
experienced the residual effects of this condition for more than six months.
1
Although this Decision has been formally designated “not to be published,” it will nevertheless be posted on the
Court of Federal Claims’s website in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). This
means the ruling will be available to anyone with access to the internet. As provided by 42 U.S.C. § 300aa-
12(d)(4)(B), however, the parties may object to the decision’s inclusion of certain kinds of confidential information.
Specifically, under Vaccine Rule 18(b), each party has fourteen days within which to request redaction “of any
information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged
or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly
unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole decision in its present form will be
available. Id.
2
The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”).
Respondent denies that the Varicella, Polio, Meningococcal, Hepatitis A, or Hepatitis B
vaccines caused Petitioner’s GBS or any other injury. Nonetheless both parties, while maintaining
their above-stated positions, agreed in a stipulation (filed on October 2, 2017) that the issues before
them could be settled, and that a decision should be entered awarding Petitioner compensation.
I have reviewed the file, and based upon that review, I conclude that the parties’ stipulation
(as attached hereto) is reasonable. I therefore adopt it as my decision in awarding damages on the
terms set forth therein.
The stipulation awards:
a) A lump sum of $836,853.09, which amount represents compensation for first year
life care expenses ($14,834.22), lost earnings ($622,018.87), and pain and suffering
($200,000.00), in the form of a check payable to Petitioner; and
b) An amount sufficient to purchase the annuity contract (described in paragraph 10 of
the Stipulation), paid to the life insurance company from which the annuity will be
purchased.
Stipulation ¶ 8. This amount represents compensation for all damages that would be available
under Section 15(a) of the Act.
I approve a Vaccine Program award in the requested amount set forth above to be made to
Petitioner. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the Court is directed to enter judgment herewith.3
IT IS SO ORDERED.
/s/ Brian H. Corcoran
Brian H. Corcoran
Special Master
3
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by each filing (either jointly or separately)
a notice renouncing their right to seek review.
2
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8 Ariz. App. 477 (1968)
447 P.2d 569
Higinio GUTIERREZ, Petitioner,
v.
The INDUSTRIAL COMMISSION of Arizona and Arizona Highway Department, Respondents.
No. 1 CA-IC 201.
Court of Appeals of Arizona.
December 3, 1968.
Rehearing Denied January 7, 1969.
Review Denied February 11, 1969.
Gorey & Ely, by Joseph N. Bettini, Phoenix, for petitioner.
Robert D. Steckner, Chief Counsel by Donald L. Cross, Phoenix, for respondents.
STEVENS, Judge.
The basic issue is whether The Industrial Commission erred in failing to award compensation to an injured workman who sustained a 20 percent general physical functional disability and thereafter returned to his former employment at higher wages. It is the contention of the petitioner that notwithstanding these facts he could no longer compete for similar employment on the open labor market.
At the time of the petitioner's injury in an industrial incident on 13 December, 1965, he was an employee of the Arizona Highway Department classified as a truck driver. At that time his average monthly wage was $473. After his injury and before he returned to his employment he submitted to two separate surgical procedures on his back. He was released for work on 16 January, 1967, the doctor expressing doubt that the petitioner could fully perform his former employment involving heavy physical labor. The petitioner did return to his *478 former employment. The Arizona Highway Department did not have light work available for him and he continued in this former employment. He continued to suffer pain as a direct result of the industrial incident. On 23 August, 1967, an award was entered finding that the petitioner sustained a total temporary disability to 16 January, 1967; finding that as of the date of the award his physical condition was stationary; finding that the petitioner sustained a 20 percent general physical functional disability; finding that he could perform the same work he performed before his injury without loss of compensation; and further, finding that the petitioner was in need of further medicinal and medical supervision.
At that point petitioner employed counsel and a request for a formal hearing was timely filed. The petitioner protested the Commission's decision that he sustained no loss of earning capacity and urged that the "facts indicate that worth of his services on the open labor market were greatly reduced despite temporary high wages". A hearing was held where the petitioner, his wife and the petitioner's supervisor testified. The evidence was not controverted that petitioner continued to experience pain which was related to the industrial incident; that he had progressed in the pay scale from $473 a month to $494 a month in July 1967, and to $515 a month at the time of the January 1968 hearing; that he had continued his employment in his former job classification; that he was being paid highest wage scale for his job classification; that petitioner experienced some physical limitations which prevented his full performance of his job in the same manner that he performed prior to the industrial incident; that the petitioner's work was satisfactory; that if he was to be considered as a new applicant for the same job he would not be hired; and that he could not fully perform all of the various tasks which he had performed in private industry before the date of his employment with the Arizona Highway Department.
On 12 March, 1968, the 23 August, 1967 award was reaffirmed. The key finding in that award quoted as follows:
"f. Although applicant was awarded a 20% general physical functional disability, applicant failed to show how said disability in fact caused any reduction in his earning capacity at the time of the hearing."
The matter was then brought to this Court for review.
It is strenuously urged that an injured workman's present rate of pay is not the sole test in determining the presence or absence of loss of earning capacity. With this we agree. In our opinion the principles set forth in our recent decisions of McDaniel v. Industrial Commission, 8 Ariz. App. 303, 445 P.2d 860 (1968) and Lutich v. Industrial Commission, 8 Ariz. App. 347, 446 P.2d 251 (1968) apply equally in the case now under consideration. We quote briefly from McDaniel as follows:
"Post-injury earnings may raise a presumption of at least commensurate earning capacity. Allen v. Industrial Commission, 87 Ariz. 56, 347 P.2d 710 (1959); Maness v. Industrial Commission, 102 Ariz. 557, 434 P.2d 643 (1967).
"As the Supreme Court stated in the Maness case, supra:
`Sometime in the future, if conditions which affect his earning power should change and result in a decrease in earning capacity due to the effect of the injury, then of course he could seek a reopening of his case for a new award. Adkins v. Industrial Commission, 95 Ariz. 239, 389 P.2d 118 (1964).' 102 Ariz. at 559, 434 P.2d at 645."
The award is affirmed.
CAMERON, C.J., and DONOFRIO, J., concur.
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Darden v. State
IN THE
TENTH COURT OF APPEALS
No. 10-95-142-CR
NORMAN DARDEN,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the Criminal District Court No. 1
Dallas County, Texas
Trial Court # F94-57782-PH
O P I N I O N
Appellant Darden appeals from his conviction for delivery of cocaine less than 28 grams, for
which he was sentenced to eight years in the Texas Department of Criminal Justice, probated for
eight years, plus a $1,500 fine.
On October 6, 1994, Appellant waived a jury and pled guilty before the court to delivery of
cocaine, less than 28 grams, on August 4, 1994. The trial court found him guilty on October 6,
1994, and on that date sentenced him to eight years in the Texas Department of Criminal Justice,
probated for eight years, and a $1,500 fine.
Appellant appeals on one point of error: "The trial court erred by assessing punishment in
excess of the statutory maximum for a state jail felony."
Appellant contends the trial erred in punishing him as a first-degree felon because he should
have been prosecuted and punished for a state-jail felony under Texas Senate Bill 1067, Chapter
900, 73rd Legislature (1993), rather than for a first-degree felony under the provision of the
Health and Safety Code which was in effect at the time Appellant committed the charged offense.
The record reflects that Appellant's judicial confession stated he delivered less than 28 grams of
cocaine. Appellant committed the charged offense on August 4, 1994, and was sentenced on
October 6, 1994. He was prosecuted and sentenced under Texas Health & Safety Code §
481.112(b), which was in effect at the time of the commission of his offense, which provided that
delivery of less than 28 grams of cocaine was a first-degree felony. In 1993, the Legislature
amended section 481.112(b) to make delivery of less than one gram of cocaine punishable as a
state-jail felony with a lower range of punishment. S.B. 1067, ch. 900, sec. 2.01, 73rd Leg.
(1993). The amendment is effective for offenses committed on or after September 1, 1994. Tex.
Health & Safety Code sec. 481.112.
In amending the Health & Safety Code, the legislature specifically provided that "an offense
committed before the effective date of this article is covered by the law in effect when the offense
was committed and the former law is continued in effect for that purpose. Act of May 29, 1993,
73rd Leg. ch. 900, sec. 2.08(h) 1993, Tex. Gen. Laws 3586, 3714.
The trial court properly assessed punishment within the range provided by the laws in effect
at the time of the offense. Accord: Wilson v. State, 899 S.W.2d 36, 1995 (Tex. App.—Amarillo
1995, no pet.h.); Perry V. State, 902 S.W.2d 162, 163 (Tex. App.—Houston [1st Dist.] 1995,
pet. ref'd). Appellant's point is overruled.
The judgment is affirmed.
FRANK G. McDONALD
Chief Justice (Retired)
Before Justice Cummings,
Justice Vance, and
Chief Justice McDonald (Retired)
Affirmed
Opinion delivered and filed February 14, 1996
Do not publish
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119 S.W.3d 475 (2003)
Courtney Marie CHEEK, Appellant,
v.
The STATE of Texas, Appellee.
No. 08-02-00453-CR.
Court of Appeals of Texas, El Paso.
October 30, 2003.
*476 Sharon Letson Weathers, Midland, for Appellant.
Al W. Schorre, Jr., District Attorney of Midland County, Midland, for State.
Before Panel No. 1 SUSAN LARSEN, McCLURE, and CHEW, JJ.
OPINION
SUSAN LARSEN, Justice.
A jury convicted Courtney Marie Cheek of knowingly or intentionally causing bodily injury to her fourteen-month-old daughter, Alixandra. The court sentenced her to ten years in prison, suspended for ten years. On appeal, Cheek raises three points of error concerning a videotaped interview of her other daughter, three-year-old Britiny. Finding no error, we affirm.
Factual and Procedural Background
At trial, Cheek claimed that her boyfriend, David Prater, was responsible for Alixandra's injuries. She testified that when she woke up on October 27, 2001, she found that Alixandra had gotten into her makeup and had covered herself in lipstick "from head to toe." Cheek decided to walk to a neighbor's house to ask if the neighbor could babysit that night. She *477 left Alixandra and Britiny with Prater, who said that he would wipe the lipstick off of Alixandra. After Cheek left, the only people in the house were Prater, Alixandra, and Britiny. Cheek testified that when she returned, she noticed that the lipstick had been wiped off, but that Alixandra's "cheeks were reddened [a]nd she looked like she had been squeezed." Cheek asked Prater what had happened, and he said that Alixandra would not hold still while he was trying to clean her face. He squeezed Cheek's face really hard to demonstrate what he had done to Alixandra. Prater left the house about five or ten minutes later.
After the red marks on Alixandra's face began to turn to bruises, Cheek called the sheriff's office. Some deputies arrived and escorted Cheek and Alixandra to a hospital. At the hospital, Cheek met Sergeant Terry Cowin of the Midland County Sheriff's Office. She told him that Prater caused Alixandra's injuries. Two days later, she gave Cowin a written statement in which she again claimed that Prater caused the injuries.
In December, Cheek gave Cowin an oral statement, admitting that she caused Alixandra's injuries. In January, she gave Cowin a written statement in which she admitted that after Prater left the house, she "lost [her] cool" with Alixandra while cleaning the lipstick off of her face. She stated that she held Alixandra's face too hard and knocked her down to the floor. Cheek testified at trial that her December and January statements were not true. She claimed that Cowin promised her that if she confessed she would only be charged with a misdemeanor, she would not have to spend any time in jail, and she would be able to keep her children. Cowin denied making any promises or threats to obtain Cheek's confession.
Prater admitted that he watched the children while Cheek went to the neighbor's house. But he testified that he did not wipe the lipstick off of Alixandra's face, he did not cause her injuries, and she was not injured when he left the house.
On October 29, 2001, the same day that Cheek made her written statement blaming Prater for Alixandra's injuries and two days after those injuries occurred, Cowin took Cheek and Britiny to the Children's Advocacy Center. A forensic interviewer employed by the Center conducted a videotaped interview with Britiny. In the interview, Britiny indicated that Prater caused Alixandra's injuries. Cowin did not mention the videotaped interview in his reports. At trial, he claimed that he "flat forgot about it."
On the Friday before trial was to begin, Cheek's counsel learned about the videotape through discussions with her client.[1] At the commencement of trial the following Monday morning, defense counsel asked for a continuance to allow her to procure and view the tape and to make additional trial preparations based on the tape. The trial court delayed the voir dire until the afternoon and the commencement of testimony until the next morning. Later in the day, defense counsel filed a written motion seeking either a dismissal or a ten-day continuance because of the State's failure to disclose the videotape. The court denied the motion, but recessed court at 2 p.m. the next day to allow the defense some time to research issues raised by the videotape.
Because the defense indicated it might call Britiny as a witness, the judge interviewed her in the presence of the prosecutor *478 and defense counsel to determine whether she was competent to testify. The judge determined that she was competent and that the defense could call her as a witness if it desired to do so. But the judge announced in open court, outside the presence of the jury, that Britiny unequivocally told him two or three times that her mother was responsible for Alixandra's injuries. The prosecutor had stated earlier that according to CPS, Britiny told two other people that Cheek caused Alixandra's injuries.
The next morning, defense counsel announced that she would not call Britiny as a witness. She asserted, however, that the videotape should be admitted. Counsel argued that the tape was admissible as a business record pursuant to Rule 803(6) of the Texas Rules of Evidence, that it was admissible as an extension of section 104.002 of the Texas Family Code and article 38.071 of the Texas Code of Criminal Procedure, and that Cheek would be denied due process if the tape were not admitted. Nevertheless, the court refused to admit the videotape.
The videotape is included in the record as part of the defense's bill of exceptions. The bill of exceptions also includes the testimony of Cowin and the forensic interviewer regarding the circumstances under which the interview was conducted and the videotape was made.[2]
Inadmissibility of Videotaped Interview
In her first and second points of error, Cheek asserts that the trial court erred by refusing to admit the videotaped interview of Britiny. While acknowledging that the tape is hearsay, she argues that it was admissible under the business records exception to the hearsay rule. She also argues that exclusion of the videotape deprived her of her due process right to present a defense.
In reviewing a trial court's ruling on the admissibility of evidence, we must determine whether the court abused its discretion. Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App.2002). This means that we must uphold the ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Id. Furthermore, we must consider the trial court's ruling in light of what was before the trial court when the ruling was made. Id.
Business Records Exception
Under the business records exception to the hearsay rule, a record kept in the course of a regularly conducted business activity is admissible if it was made at or near the time of the event recorded, by a person who had both personal knowledge of the event and a business duty to report the event. See Tex.R. Evid. 803(6); Stapleton v. State, 868 S.W.2d 781, 784-85 (Tex.Crim.App.1993); Cathy Cochran, Texas Rules of Evidence Handbook 836-837 (5th ed.2003). If the person supplying the information contained *479 in a business record did not have a business duty to report the information, then the information is hearsay within hearsay or double hearsay. Stapleton, 868 S.W.2d at 784; Cochran at 841. Thus, although the business record itself will be admissible, the information contained within the record will be inadmissible unless it falls within another exception to the hearsay rule. Stapleton, 868 S.W.2d at 784; Cochran at 837-38, 841; see also Tex.R. Evid. 805 (providing that hearsay within hearsay is admissible if each part of the combined statements conforms with an exception to the hearsay rule).
Cheek argues that she proved up the videotape as a business record in her bill of exceptions. Relying on Porter v. State, 623 S.W.2d 374 (Tex.Crim.App.1981), she argues that the videotape was admissible. In Porter, the Court of Criminal Appeals upheld the admission of a tape recording and transcript of police radio transmissions. 623 S.W.2d at 382-85. The court held that the communications contained within the recording either fell within a hearsay exception or were not hearsay because they were not offered for the truth of the matters asserted. Id. at 385.
Unlike in Porter, Cheek offered the videotape for the truth of the matters stated therein by Britiny, and Cheek does not point to any hearsay exception that would make Britiny's statements admissible. It is clear that Britiny did not have a business duty to make the statements. Accordingly, the trial court did not abuse its discretion by refusing to admit the videotape under the business records exception.
Due Process
Cheek also argues that the exclusion of the videotaped interview of Britiny deprived her of her due process right to defend herself. She relies on Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973).
In Chambers, the combination of Mississippi's voucher and hearsay rules prevented the defendant from adequately presenting his defense that another man committed the crime. 410 U.S. at 294, 93 S.Ct. at 1045. The hearsay statements that Chambers sought to admit were declarations against penal interest. Id. at 299, 93 S.Ct. at 1048. Mississippi, however, did not treat such declarations as exceptions to the hearsay rule. Id. at 299, 93 S.Ct. at 1048.
The Court explained that hearsay statements are excluded from evidence because they lack conventional indicia of reliability. Id. at 298, 93 S.Ct. at 1047. The Court determined, however, that the declarations against penal interest at issue in the case were made under circumstances that assured their reliability. Id. at 300-01, 93 S.Ct. at 1048-49. Furthermore, the declarant was present in the courtroom and was under oath, and was thus available for cross-examination by the State. Id. at 301, 93 S.Ct. at 1049.
In concluding that Chambers was denied due process, the Court stated:
Few rights are more fundamental than that of an accused to present witnesses in his own defense. In the exercise of this right, the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence. Although perhaps no rule of evidence has been more respected or more frequently applied in jury trials than that applicable to the exclusion of hearsay, exceptions tailored to allow the introduction of evidence which in fact is likely to be trustworthy have long existed. The testimony rejected by the trial court here bore persuasive *480 assurances of trustworthiness and thus was well within the basic rationale of the exception for declarations against interest. That testimony also was critical to Chambers' defense. In these circumstances, where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice.
We conclude that the exclusion of this critical evidence, coupled with the State's refusal to permit Chambers to cross-examine [the declarant], denied him a trial in accord with traditional and fundamental standards of due process. In reaching this judgment, we establish no new principles of constitutional law. Nor does our holding signal any diminution in the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial rules and procedures. Rather, we hold quite simply that under the facts and circumstances of this case the rulings of the trial court deprived Chambers of a fair trial.
Id. at 302-03, 93 S.Ct. at 1049 (citations omitted).
Cheek argues that, as in Chambers, the videotaped interview was critical to her defense. She describes this case as a classic "Who done it?" because Prater and Cheekthe two people who had the opportunity to injure Alixandraeach claimed that he or she was not present when the injuries occurred. Britiny was the only witness and the only person who could corroborate Prater's or Cheek's version of events.
Cheek also argues, again as in Chambers, that the videotaped interview contains assurances of trustworthiness. For this argument, she relies on article 38.071 of the Code of Criminal Procedure. Article 38.071 provides that a recording of an oral statement of a crime victim who is younger than thirteen and who is unavailable to testify in the presence of the defendant is admissible if the court determines that "the factual issues of identity or actual occurrence were fully and fairly inquired into in a detached manner by a neutral individual experienced in child abuse cases that seeks to find the truth of the matter." Tex.Code Crim. Proc. Ann. art. 38.071, §§ 1-2 (Vernon Supp.2003); see also id. § 5 (setting forth additional requirements for admissibility); id. § 8 (setting forth the factors a court should consider in determining whether the child is unavailable).[3]
Cheek points out that the interview of Britiny at the Children's Advocacy Center was conducted in the same way that an interview of a child victim is conducted. Moreover, because the interview was taped, the jury would be able to evaluate Britiny's demeanor and credibility, as well as the techniques used by the interviewer. Cheek argues that if an interview of a child victim conducted pursuant to article 38.071's standards is sufficiently reliable to overcome hearsay concerns, then an interview of a child witness conducted under the same standards should also defeat a hearsay objection. Cheek additionally argues that it is hypocritical for the State to oppose the admission of a videotaped interview of a child witness, when it is the State that typically seeks to admit such interviews of child victims.
In short, Cheek argues that "Chambers in its broadest sense stands for the proposition that the accused has the right to present credible evidence that someone *481 else committed the crime." Accordingly, she requests that we extend article 38.071 to make the videotaped interview of Britiny admissible.
Although Cheek argues for a broad interpretation of Chambers, courts have steadfastly given it a narrow one. In Chambers itself, the Supreme Court cautioned against overreading the decision. See Chambers, 410 U.S. at 302-03, 93 S.Ct. at 1049. In a later decision, the Supreme Court essentially rejected Cheek's interpretation of Chambers. Noting that "Chambers specifically confined its holding to the `facts and circumstances' presented in that case," the Court stated that "Chambers ... does not stand for the proposition that the defendant is denied a fair opportunity to defend himself whenever a state or federal rule excludes favorable evidence." United States v. Scheffer, 523 U.S. 303, 316, 118 S.Ct. 1261, 1268, 140 L.Ed.2d 413 (1998) (citation omitted). The Court elaborated as follows:
A defendant's right to present relevant evidence is not unlimited, but rather is subject to reasonable restrictions. A defendant's interest in presenting such evidence may thus "`bow to accommodate other legitimate interests in the criminal trial process.'" As a result, state and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials. Such rules do not abridge an accused's right to present a defense so long as they are not "arbitrary" or "disproportionate to the purposes they are designed to serve." Moreover, we have found the exclusion of evidence to be unconstitutionally arbitrary or disproportionate only where it has infringed upon a weighty interest of the accused.
Id. at 308, 118 S.Ct. at 1264 (citations and footnote omitted); see also Gacy v. Welborn, 994 F.2d 305, 316 (7th Cir.1993) (stating that Chambers stands for the proposition that states must permit defendants to introduce reliable third-party confessions when direct evidence is unavailable).
Our own Court of Criminal Appeals has similarly refused to adopt a broad interpretation of Chambers. The court has noted that "[e]very rule of evidence works a hardship on some litigants part of the time, and it is easy to sympathize with the frustration of any party whose most promising strategy turns out to be objectionable under the law." Fuller v. State, 829 S.W.2d 191, 207 (Tex.Crim.App.1992), overruled on other grounds by Riley v. State, 889 S.W.2d 290 (Tex.Crim.App. 1994). Nevertheless, the court held that it is "not at liberty to relieve every such disappointment with an ad hoc suspension of the Rules." Id.
In Fuller, a capital murder case in which the defendant was sentenced to death, the defendant had conversations with another inmate in which he indicated that he did not commit the murder by himself. A deputy sheriff prepared a written report containing this information. The report was based on conversations she had overheard and on statements from other inmates who had overheard the conversations. The defendant attempted to question the deputy concerning her report, but the trial court excluded this evidence as hearsay. Id. at 207.
On appeal, the defendant suggested that the deputy's report was admissible under the hearsay exceptions for public records and reports, even though it did not fit within the literal terms of the exceptions. Id.; see also Tex.R. Evid. 803(8)(B), (C). He also argued that applying the hearsay rule in this situation, as in Chambers, would deprive him of due process. Fuller, 829 S.W.2d at 207. In evaluating these arguments, the Court of Criminal Appeals *482 distilled the holdings of Chambers and related cases into the following test:
[R]ules for the admission and exclusion of evidence should be found offensive to notions of fundamental fairness embodied in the United States Constitution only when, (1) without a rational basis, they disadvantage the defendant more severely than they do the State or (2) arbitrarily exclude reliable defensive evidence without achieving a superior social benefit.
Id. at 208.
Applying the test to the case before it, the court noted that the hearsay exceptions cited by the defendant either applied equally to the defendant and the State or benefitted only the defendant. Therefore, the hearsay the defendant sought to admit would have been just as objectionable if offered by the State. Id.
The same is true in this case. Cheek suggests that article 38.071 benefits only the State and that the State is hypocritically trying to exclude a class of evidence that it frequently seeks to admit. On its face, however, article 38.071 expressly allows either the State or the defendant to admit videotaped oral statements of victims. See Tex.Code Crim. Proc. Ann. art. 38.071, § 5 (stating that, if certain requirements are met, the recording of an oral statement is admissible "[o]n the motion of the attorney representing the state or the attorney representing the defendant"). The business records exception also applies equally to the State and defendants. See Tex.R. Evid. 803(6).[4]
Turning to the second part of the test, the Fuller Court concluded that the hearsay rule did not arbitrarily exclude reliable defensive evidence without achieving a superior social benefit. The court noted that the defendant elicited virtually the same information in the deputy's report by directly examining the inmate from whom the deputy obtained the information. Fuller, 829 S.W.2d at 208. The defendant contended, however, that the written report was more desirable to him than the inmate's testimony because the inmate gave testimony that was detrimental to the defendant during cross-examination. The court summarized and rejected the defendant's contention this way:
Evidently, [the defendant] believes that the United States Constitution somehow prefers a written report to the live testimony of a witness whenever it might enable an accused to curtail the State's opportunity for effective cross examination.
This proposition is, of course, untenable. It is inconceivable that the United States Constitution would sanction the suppression of relevant inculpatory evidence under the aegis of a doctrine whose very purpose is the removal of unreasonable obstacles to the truth-finding process.
Id.
We believe this reasoning applies in this case too. Although Cheek focuses her arguments on the fact that article 38.071 provides only for the admissibility of statements of child victims and not child witnesses, there is a more important reason why article 38.071 should not be extended to apply here. The statute states, "This article applies only to a hearing or proceeding in which the court determines that a child younger than 13 years of age would be unavailable to testify in the presence *483 of the defendant ...." Tex.Code Crim. Proc. Ann. art. 38.071, § 1 (emphasis added). In this case, the court determined that Britiny was competent to testify and expressly stated that the defense could call her as a witness if it desired to do so. It is also clear from the record that Britiny's testimony may very well have been unfavorable to Cheek. But, as in Fuller, the fact that Britiny may have given testimony detrimental to Cheek does not entitle Cheek to have the videotaped interview admitted in lieu of calling her as a witness.
Article 38.071 provides a way for a jury to hear from a child when the child is unable to testify in court. By requiring that the child be unavailable to testify, the Legislature expressed a preference for live, in-court testimony. Under the circumstances of this case, we are unable to conclude that this preference is an arbitrary one.
The first and second points of error are overruled.
Failure to Disclose Exculpatory Evidence
In her third point of error, Cheek argues that the trial court should have dismissed the case or granted a ten-day continuance when the videotaped interview was discovered.
To obtain a reversal because of the tardy disclosure of exculpatory evidence, the defendant must show that the evidence was material. Ex parte Richardson, 70 S.W.3d 865, 870 (Tex.Crim.App.2002); Wilson v. State, 7 S.W.3d 136, 146 (Tex. Crim.App.1999). In other words, the defendant must show a reasonable probability that the result of the proceeding would have been different if the evidence had been disclosed earlier. Wilson, 7 S.W.3d at 146; see also Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995) ("The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.").
In determining whether the defendant has satisfied this burden, we may consider the adverse effect that nondisclosure had on the preparation or presentation of the defendant's case. See United States v. Bagley, 473 U.S. 667, 683, 105 S.Ct. 3375, 3384, 87 L.Ed.2d 481 (1985); Thomas v. State, 841 S.W.2d 399, 405 (Tex. Crim.App.1992). We must consider the totality of the circumstances and be mindful of the difficulty of reconstructing the course that the defense and the trial would have taken if the evidence had been timely disclosed. See Bagley, 473 U.S. at 683, 105 S.Ct. at 3384; Thomas, 841 S.W.2d at 405.
Cheek acknowledges that the trial court delayed the trial for a few hours to allow the defense to consider the issues raised by the videotape, but she argues that this time was insufficient. She asserts that she needed more time to research the admissibility of the videotape and to investigate whether the videotape could lead to additional evidence.
These assertions fall far short of establishing a reasonable probability that the result of the trial would have been different. Regarding the assertion that more time was needed to research the admissibility of the videotape, we note that six months elapsed between the trial and the filing of Cheek's appellant's brief. Yet Cheek does not point to any ground for admitting the videotape other than the grounds she raised at trial. Regarding the assertion that more time was needed to investigate whether the videotape would lead to additional evidence, Cheek does not *484 point to anywhere in the record to show what evidence would have been admitted if there had been additional time to investigate, nor does she give us any reason to believe that additional evidence exists. See Wilson, 7 S.W.3d at 146 (refusing to reverse in a tardy disclosure case because the defendant failed to point to anywhere in the record to explain what witnesses might have been called if there had been additional time to investigate and failed to show any reason to believe that additional witnesses exist); Hampton v. State, 106 S.W.3d 846, 853-54 (Tex.App.-El Paso 2003, no pet. h.) (refusing to reverse in a tardy disclosure case because whether the late-disclosed information would have assisted the defense was speculative); Nelloms v. State, 63 S.W.3d 887, 892 (Tex. App.-Fort Worth 2001, pet. ref'd) (refusing to reverse in a tardy disclosure case because the defendant's assertions of prejudice lacked evidentiary support).
The third point of error is overruled.
Conclusion
For the reasons stated herein, the judgment of the trial court is affirmed.
NOTES
[1] It is undisputed that the prosecutor did not know anything about the videotape until defense counsel told her about it.
[2] In the videotape, Britiny describes Alixandra as her "baby." She states that "David" "spanked" her and her baby on the "butt" with a "paddle." When asked if David spanked her baby on other places, such as her leg, arm, or face, Britiny eventually stated that David spanked her baby on the face while her mom was gone. She also demonstrated how he hit Alixandra's face with his hand. Britiny gave nonsensical answers to some of the interviewer's questions. For example, she answered some questions with a random series of numbers (such as 8,9,4,5,7,8) when the questions did not call for a numerical answer. Britiny stated that she saw blood and red "boogers" come out of Alixandra's nose. When asked what else she saw when she saw the boogers, she responded, "Dinosaur."
[3] The Family Code contains a provision similar to article 38.071. See Tex. Fam.Code Ann. § 104.002 (Vernon 2002). The Family Code provision, which applies to suits affecting the parent-child relationship, does not require the victim to be unavailable. See id.
[4] Cheek's attorney argued in the trial court that if Britiny had implicated Cheek in the videotaped interview, the State would be arguing for its admission into evidence. The judge responded, "Well, I don't know whether they would be or not. If they would, I don't think they would be any more successful..."
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141 B.R. 384 (1992)
In re The JULIEN COMPANY, Debtor.
TALLAHATCHIE COUNTY BANK, Plaintiff,
v.
Jack F. MARLOW, Trustee, Bankers Trust Company, et al., Defendants.
v.
L.C. MABUS, James Mabus and Kenny Weeks, Third Party Defendants.
Bankruptcy No. 90-20283-B (mjn), Adv. No. 90-0344.
United States Bankruptcy Court, W.D. Tennessee, W.D.
June 22, 1992.
*385 William J. Landers, Robert E. Orians, Scott T. Beall, Martin, Tate, Morrow & Marston, P.C., Memphis, Tenn., for Bankers Trust Co.
Elder L. Shearon, III, Udelsohn, Blaylock & Marlow, Memphis, Tenn., for Jack F. Marlow, Trustee.
Charles J. Swayze, Jr., James Y. Dale, Greenwood, Miss., for Tallahatchie County Bank and third party defendants.
Julie C. Chinn, Asst. U.S. Trustee., Memphis, Tenn.
AMENDED SUPPLEMENTAL MEMORANDUM OPINION AND ORDER ON MOTIONS FOR SUMMARY JUDGMENT
WILLIAM H. BROWN, Bankruptcy Judge.
On April 3, 1992, this Court issued its Supplemental Memorandum Opinion and Order on Motions For Summary Judgment, 1992 WL 65723, 1992 Bankr. LEXIS 515 (Bankr.W.D.Tenn.1992), in which the Court did not issue a final order. Subsequently, Bankers Trust Company ("BTCo") and the Trustee jointly moved the Court to reconsider and amend its April 3 ruling as it related to the interpretation and application of the Food Security Act, 7 U.S.C. § 1631. In the alternative, the movants sought permission of this Court to file an interlocutory appeal. As to any interlocutory appeal, it is not within the bankruptcy court's jurisdiction to grant such motions. Rather, it is a motion acted upon by the United States District Court for the Western District of Tennessee after filing of a notice of appeal and a motion for leave to appeal under 28 U.S.C. § 158(a). The notice and motion are filed with the clerk of the bankruptcy court, who then transmits those pleadings to the clerk of the district court. See F.R.B.P. 8001(b) and 8003.
Interlocutory appeal may or may not be rendered moot by this Court's granting of the movants' request for reconsideration. This Court has considered the memoranda submitted by the parties, the oral arguments, and the Court's April 3, 1992, opinion along with the entire record of this adversary proceeding, and the Court has concluded that its April 3, 1992, opinion should be amended in order to clarify the Court's rationale and rulings and in order *386 to more clearly delineate the issues remaining for decision. The Court has made changes in its April 3, 1992, opinion, with the result being this amended opinion, which is not intended by the Court to be a final order except as to one issue upon which summary judgment will be granted. The Court does not have before it all pleadings or facts necessary to the granting of complete summary judgment; therefore, this amended opinion merely reserves a ruling on the motions for summary judgment, except for the one issue, without prejudice to amended pleadings being filed and further evidence being offered to support the motions for summary judgment.
This proceeding[1] is before the Court on Motion for Partial Summary Judgment filed by the plaintiff, Tallahatchie County Bank ("TCB"), and Cross-Motion for Summary Judgment filed by the defendant, BTCo and joined by the defendant Trustee, Jack F. Marlow.[2] It is important to note that the Trustee in this adversary proceeding has not sought specifically to avoid the lien of TCB.[3] At issue in the present summary judgment motions and the motion for reconsideration is whether TCB holds perfected security interests with priority over BTCo[4] in the 1989 cotton crops and proceeds of the third party defendants. The following constitutes findings of fact and conclusions of law pursuant to F.R.B.P. 7052 and 7056.
The record reflects that the first Motions for Summary Judgment filed by the respective parties were heard on November 25, 1991. This Court ruled orally and found that genuine issues as to material facts precluded the summary judgments sought. See Order Denying Motions for Summary Judgment (December 19, 1991). The Court also ordered the parties to simultaneously submit written memoranda, without oral argument, on the following issues:
(1) Whether the Food Security Act of 1985 (codified at 7 U.S.C. § 1631) preempts the operation of Uniform Commercial Code § 9-103(1)(d)(i) [Tenn.Code Annot. § 47-9-103(1)(d)(i) and N.C.Gen.Stat. § 25-9-103(1)(d)(i)];[5] and, if not,
(2) Whether TCB has lost its priority, perfected security interests in the 1989 cotton crops and proceeds of the third party defendants pursuant to UCC § 9-103(1)(d)(i).
BTCo and TCB filed their memoranda, and the Court issued its April 3, 1992, opinion, as is now modified in this opinion. In the earlier opinion, the Court may not have made clear that it was intending only to address the effect of 7 U.S.C. § 1631 on TCB's and BTCo's security interests. As previously stated, the Court was never asked to determine whether the Trustee may avoid TCB's security interests.[6] Therefore, the Court understands that it is called upon to resolve whether 7 U.S.C. § 1631 preempts UCC § 9-103(1)(d)(i) with respect to the competing priorities between *387 TCB and BTCo. The analysis begins with UCC § 9-103(1)(d)(i).
UCC § 9-103(1)(d)(i)
UCC § 9-103(1)(d)(i) states that:
(d) When collateral is brought into and kept in this state while subject to a security interest perfected under the law of the jurisdiction from which the collateral was removed, the security interest remains perfected, but if action is required by Part 3 of this Article to perfect the security interest.
(i) if the action is not taken before the expiration of the period of perfection in the other jurisdiction or the end of four months after the collateral is brought into this state, whichever period first expires, the security interest becomes unperfected at the end of that period and is thereafter deemed to have been unperfected as against a person who became a purchaser after removal;
. . .
(emphasis added).
A security interest becomes unperfected under the UCC's "four month rule" when collateral securing an interest required to be perfected under one state's laws is removed to another state and the secured party then fails to reperfect within four months of removal. However, this loss of perfection, according to the statutory language, only improves the position of "purchaser[s] after removal." See In re C Tek Software, Inc., 117 B.R. 762, 768 (Bankr. D.N.H.1990) (addressing trustee's inability to be a "purchaser"); Matter of Keystone General, Inc., 135 B.R. 275, 281 (Bankr. S.D.Ohio 1991).
In the present case, the parties do not dispute that TCB loaned money to the third party defendants in Mississippi for purposes of financing their 1989 cotton crops. These crops, along with the proceeds thereof, were given as collateral to secure TCB's loan. See Security Agreements between TCB and Kenny Weeks, James Mabus, and L.C. Mabus respectively (attached to Affidavits of Tallahatchie County Bank in Support of Plaintiff's Motion for Partial Summary Judgment, filed October 7, 1991). In the fall of 1989, the cotton was bought by The Julien Company and was shipped from Mississippi to Tennessee and North Carolina where it remained for over four months. At the November 25, 1991 hearing, TCB's attorney stipulated that TCB never filed any financing statements covering its collateral cotton in Tennessee or North Carolina as required by UCC § 9-103(1)(d)(i). See Bankers Trust Company's Second Supplemental Memorandum of Law in Support of Its Cross-Motion for Summary Judgment Against Tallahatchie County Bank; Exhibit A at 28-29 (January 21, 1992).
Thus, according to UCC § 9-103(1)(d)(i), TCB lost its perfected security interest, as to a "purchaser after removal" of the cotton from Mississippi, due to its failure to file financing statements in Tennessee and North Carolina. The following cases support this conclusion: United States v. Burnette-Carter Co., 575 F.2d 587, 590-92 (6th Cir.1978); In re Ken Gardner Ford Sales, Inc., 41 B.R. 105, 108-09 (Bankr.E.D.Tenn. 1984) (However, UCC § 9-103 subsequently has been amended in Tennessee, and the Burnette-Carter and Gardner cases did not address the "purchaser after removal" language). Nevertheless, TCB argues that this section of the UCC is preempted by § 1324 of the Food Security Act of 1985 (codified at 7 U.S.C. § 1631).[7] Before addressing this Act, it should be observed that the evidence is missing in this adversary proceeding as to when BTCo acquired its security interests in the cotton subject to this dispute. Therefore, the Court can not draw a final conclusion as to whether BTCo is a "purchaser after removal" under UCC § 9-103(1)(d)(i).
An analysis of that issue begins with UCC § 1-201(32) which defines "purchase:"
(32) "Purchase" includes taking by sale, discount, negotiation, mortgage, pledge, lien, issue or re-issue, gift or any other voluntary transaction creating an interest in property.
*388 "Purchase" appears to contemplate a voluntary transfer and would include a security interest such as that claimed by BTCo. See In re MacMillan Petroleum (Arkansas), Inc., 115 B.R. 175, 180 (Bankr. W.D.Ark.1990). BTCo has filed proofs of claims in this bankruptcy case, but those claims and their documentation are not before the Court as evidence in this adversary proceeding. In fact, the parties have specifically noted that the validity, extent, and priority of BTCo's security interests are not at issue. UCC § 1-201(33) defines "purchaser" as one "who takes by purchase," referring of course to § 1-201(32). The Court needs to make it clear that the parties have not briefed the issue of whether BTCo is a "purchaser after removal" for purposes of UCC § 9-103(1)(d)(i), and the Court may have assumed a fact not in evidence in its prior April 3 opinion. The Court has been under the impression from numerous pleadings and motions in this complex case that BTCo was asserting prior security interests that attached every time The Julien Company bought cotton or cotton equities.[8] If that is correct, it would seem to follow that BTCo's security interests attached immediately upon The Julien Company's purchase of this cotton in Mississippi and that BTCo could not be a "purchaser after removal" of the cotton from Mississippi to Tennessee and North Carolina. As a result, it would appear that BTCo could not benefit from the application of UCC § 9-103(1)(d)(i) to TCB's failure to file under the UCC in Tennessee and North Carolina. This result, which appears obvious from a reading of the statute, is what lead the Court to its conclusion in the April 3 opinion that BTCo acquired no greater interest than The Julien Company and that BTCo could not defeat TCB on the basis of TCB's failure to comply with UCC § 9-103(1)(d)(i). However, in view of the fact that the parties have not specifically addressed BTCo's status as a "purchaser after removal," the Court will allow the parties an opportunity to submit proof on this issue and, in the absence of such proof, simply will deny the cross motions for summary judgment as not being dispositive of this issue.[9]
7 U.S.C. § 1631
"Congress has specifically attempted to alleviate the burden on and obstruction to interstate commerce in farm products through the Food Security Act, 7 U.S.C. § 1631. The provisions of this statute became effective December 23, 1986." FDIC v. Bowles Livestock Comm'n Co., 739 F.Supp. 1364, 1375 (D.Neb.1990), rev'd on other grounds, 937 F.2d 1350 (8th Cir. 1991). The Act includes § 1324 "which statutorily abrogates the widely enacted `farm products' exception of § 9-307(1) of the Uniform Commercial Code." Lisco State Bank v. McCombs Ranches, Inc., 752 F.Supp. 329, 333 (D.Neb.1990). Section 1324 (codified at 7 U.S.C. § 1631) which is entitled "Protection For Purchasers Of Farm Products' . . . was a congressional attempt to eliminate potential exposure of `purchasers of farm products to double payment liability.'" Id. See 7 U.S.C. § 1631(a) (Congressional findings). In its abrogation of the "farm products exception," Congress intended to reallocate the loss from the buyer to the farm products lender when the borrower defaults. See United States v. Progressive Farmers Mktg. Agency, 788 F.2d 1327, 1331 (8th Cir.1986).
UCC § 9-307(1), which includes the "farm products exception," states that:
A buyer in ordinary course of business . . . other than a person buying farm products from a person engaged in farming operations takes free of a security interest created by his seller even though the security interest is perfected and even though the buyer knows of its existence.
*389 Id. (emphasis added).[10]
As previously stated, § 1631 was passed to abrogate this farm products exception. Specifically, § 1631(d) states that:
[e]xcept as provided in subsection (e) and notwithstanding any other provision of Federal, State, or local law, a buyer who in the ordinary course of business buys a farm product from a seller engaged in farming operations shall take free of a security interest created by the seller, even though the security interest is perfected; and the buyer knows of the existence of such interest.
Id. In addition, the Agriculture Committee reported that:
[t]he bill is intended to preempt state law (specifically the so-called "farm products exception" of the Uniform Commercial Code section 9-307) to the extent necessary to achieve the goals of this legislation. Thus, this Act would preempt state laws that set as conditions for buyer protection of the type provided by the bill requirements that the buyer check public records, obtain no-lien certificates from the farm products sellers, or otherwise seek out the lender and account to that lender for the sale proceeds. . . .
H.R.Rep. No. 271, 99th Cong., 1st Sess., pt. 1, at 110 (1985), U.S.Code Cong. & Admin.News 1985, pp. 1103, 1214.
Therefore, the "farm products exception" no longer exists and federal law (7 U.S.C. § 1631) is controlling on the subject. The Court in United States v. Walter Dunlap & Sons, Inc., 800 F.2d 1232 (3d Cir. 1986) (decided prior to the Food Security Act's effective date of December 23, 1986), held that:
. . . federal . . . regulations . . . enacted under a general enabling provision, do not constitute the sort of explicit "congressional directive" that will displace the application of state law as the federal rule of decision. . . . We therefore must heed Kimbell's [United States v. Kimbell Foods, Inc., 440 U.S. 715, 99 S.Ct. 1448, 59 L.Ed.2d 711 (1979)] direction to "adopt the readymade body of state law as the federal rule of decision until Congress strikes a different accommodation. . . ." 440 U.S. at 740, 99 S.Ct. at 1464. The wisdom of pursuing that approach is demonstrated by the enactment of The Food Security Act of 1985 . . . the type of congressional directive referred to in Kimbell.
Id. at 1239.
PREEMPTION
The question presented to this Court, however, is whether the "four month rule" for perfecting security interests in multi-state transactions (UCC § 9-103(1)(d)(i)) is preempted by 7 U.S.C. § 1631? This analysis should be considered as the second step of the effect of § 1631, the first step being that § 1631 preempts the "farm products exception" of UCC § 9-307(1). Perfection or lack of perfection has no impact on this first step. However, after affirming that the "farm products exception" is preempted, the Agriculture Committee's House Report, previously quoted, also states that ". . . the bill [Food Security Act] would not preempt the basic state-law rules on the creation, perfection, or priority of security interests." H.R.Rep. No. 271, 99th Cong., 1st Sess., pt. 1, at 110 (1985), U.S.Code Cong. & Admin.News 1985, p. 1214 (emphasis added). See Lisco State Bank v. McCombs Ranches, Inc., 752 F.Supp. at 338. UCC § 9-103(1)(d)(i) is a state law rule dealing with perfection, and therefore, this Court holds that BTCo is correct that UCC § 9-103(1)(d)(i) is not preempted by 7 U.S.C. § 1631. However, this Court disagrees with BTCo regarding the effect of that non-preemption on the case at hand. BTCo claims that if the "four month rule" is not preempted by § 1631, then TCB has lost its perfected security interests. Therefore, according to BTCo, as a holder of unperfected security interests, TCB does not have priority over BTCo's interests. See Bankers Trust Company's Second Supplemental Memorandum of Law In Support Of Its *390 Cross-Motion For Summary Judgment against Tallahatchie County Bank at 14 (January 21, 1992)
As this Court has already found, TCB did lose its perfected security interests under UCC § 9-103(1)(d)(i) as to "purchaser[s] after removal" by not perfecting in Tennessee or North Carolina within four months. However, its loss of perfection adds nothing to the operation of § 1631. Bringing UCC § 9-103(1)(d)(i) into play after the application of § 1631 does not benefit BTCo in this particular proceeding if BTCo is not a "purchaser after removal." 7 U.S.C. § 1631 is not in conflict with UCC § 9-103 because perfection is irrelevant in the operation of § 1631.
The federal statute clearly states that ". . . a buyer . . . shall take free of a security interest created by the seller, even though the security interest is perfected; and the buyer knows of the existence of such interest." 7 U.S.C. § 1631(d) (emphasis added). Therefore, according to § 1631(d), a buyer will take free and clear of a security interest whether or not it is perfected. To the extent that § 1631 conflicts with UCC § 9-312 regarding the priority among the conflicting security interests of BTCo and TCB in the same collateral, this Court notes § 1631(d) specifically states that: "[e]xcept as provided in subsection (e) and notwithstanding any other provision of Federal, State, or local law, a buyer . . . shall take free of a security interest . . ." Id. Thus, if § 1631 conflicts with UCC § 9-312's provisions as they apply to BTCo in this factual scenario and assuming that BTCo is not a "purchaser after removal," § 1631 may then preempt that state law, but only as to "a buyer [The Julien Company and its pre-removal lender BTCo] who in the ordinary course of business buys a farm product . . ." 7 U.S.C. § 1631(d) (emphasis added). In other words, unless BTCo is a "purchaser after removal" of the cotton from Mississippi, BTCo can hold no better position than the buyer, The Julien Company. That is a conclusion limited to the facts such as are present in this proceeding, recognizing that the general rule is that the states' comprehensive laws on the creation, perfection or priority of security interests in collateral remain the controlling law. See H.R.Rep. No. 271, 99th Cong., 1st Sess., pt. 1, at 110. (1985); compare with Moffat County State Bank v. Producers Livestock Mktg. Assoc., 833 F.2d 908 (10th Cir.1987); Lisco State Bank v. McCombs Ranches, Inc., 752 F.Supp. at 334-35, 335 n. 3 (addressing the general effect of 7 U.S.C. § 1631). And, of course, the states' laws would control as to "purchaser[s] after removal" of the collateral to another state.
The Julien Company, which was a buyer in the ordinary course of business, bought the cotton from the third party defendants free and clear of TCB's security interests created by the sellers, unless one of the exceptions in § 1631(e) is met. See 7 U.S.C. §§ 1631(c)(1) ("buyer in the ordinary course of business" defined), (e).
TCB claims that the conditions in § 1631(e)(2) have been satisfied and that The Julien Company did take subject to its security interests. That section states that:
(e) A buyer of farm products takes subject to a security interest created by the seller if
(2) in the case of a farm product produced in a State that has established a central filing system
(A) the buyer has failed to register with the Secretary of State of such State prior to the purchase of farm products; and
(B) the secured party has filed an effective financing statement or notice that covers the farm products being sold; . . .
Therefore, three requirements must be met in § 1631(e)(2). First, the state in which the farm product was produced must have established a "central filing system" certified by the Secretary of the U.S.D.A. See 7 U.S.C. § 1631(c)(2) ("central filing system" defined). In this case, the cotton collateral in question was produced in Mississippi, and that state established a central filing system on December 24, 1986.
The second requirement is that the buyer must have failed to register with the Secretary *391 of State of that state before purchasing the farm products. TCB claims it is undisputed that The Julien Company did not register with the Mississippi Secretary of State. See Memorandum Brief of Tallahatchie County Bank at 3 (Jan. 22, 1992). However, no proof, in the form of an affidavit from the Mississippi Secretary of State or otherwise, has been offered by TCB on this point. The Court therefore requests that the parties either stipulate to this fact or enter proof to meet this requirement. Without this proof the Court will not be in a position to grant summary judgment on the issues raised under § 1631(e).
Finally, if the first two requirements have been satisfied, the third is that the secured party must have filed an "effective financing statement"[11] or notice that covers the products sold. The statement must be filed with "the Secretary of State of a State by the secured party." 7 U.S.C. § 1631(c)(4)(B). See FDIC v. Bowles Livestock Comm'n Co., 739 F.Supp. at 1376 (Secured party failed to preserve security interest under 7 U.S.C. § 1631(g)(2)(C) or (D) because financing statements were filed with the County Clerk but not with the Secretary of State). TCB has submitted that it did file "effective financing statements" in Mississippi which covered the 1989 cotton crops and proceeds of third party defendants, Kenny Weeks, James Mabus and L.C. Mabus.[12]See Financing Statements (attached to Affidavits of Tallahatchie County Bank in Support of Plaintiff's Motion for Partial Summary Judgment, filed October 7, 1991). BTCo, however, claims that TCB failed to list all of the farmers' ASCS farm numbers so as properly to identify all farms on which crops were produced. TCB did not include ASCS farm number 527 on Kenny Weeks' financing statement, and this farm yielded bales of cotton which were sold to The Julien Company. See Joint Memorandum of Law in Opposition to Plaintiff's Motion for Partial Summary Judgment and Bankers Trust Company's Memorandum in Support of Its Cross-Motion for Summary Judgment Against Tallahatchie County Bank at 6 (Nov. 4, 1991); Affidavit of Kenny Weeks in Support of Tallahatchie County Bank's Motion for Partial Summary Judgment, ¶ 2 (Oct. 7, 1991); Financing Statement between Tallahatchie County Bank and Kenny Weeks (attached to Affidavit of Tallahatchie County Bank in Support of Plaintiff's Motion for Partial Summary Judgment) (Oct. 7, 1991). Therefore, these financing statements would be effective only as to the specific cotton collateral and its proceeds produced on the farms listed and described in each farmer's financing statement. See 7 U.S.C. § 1631(c)(4)(D)(iv). The Court will grant summary judgment against TCB on the issue of TCB's failure to file an effective financing statement in Mississippi on Kenny Weeks' ASCS farm number 527.
Thus, this Court holds that if TCB proves that The Julien Company failed to register with the Mississippi Secretary of State pursuant to 7 U.S.C. § 1631(e)(2)(A), then The Julien Company took the cotton subject to the security interests of TCB in the specific cotton collateral and proceeds identified in each third party defendant's financing statement. Further, if it is shown that BTCo's security interests attached prior to removal of the cotton from Mississippi, any security interests which BTCo may have in the cotton collateral and proceeds in question will be subject or junior to TCB's interests under UCC § 9-103(1)(d)(i). However, the Court is not in a position to grant summary judgment until *392 the proof establishes that all requirements of 7 U.S.C. § 1631(e)(2) are met and that BTCo is not a "purchaser after removal" under UCC § 9-103(1)(d)(i).[13]
CONCLUSION
This Court holds that the Food Security Act of 1985 (codified at 7 U.S.C. § 1631) that does preempt the "farm products exception" in UCC § 9-307(1) nevertheless does not preempt the operation of UCC § 9-103(1)(d)(i) [Tenn.Code Annot. § 47-9-103(1)(d)(i) and N.C.Gen.Stat. § 25-9-103(1)(d)(i)]. TCB did lose its perfected security interest in the 1989 cotton crops and proceeds of the third party defendants, but this loss only improves the position of a "purchaser after removal" of the goods from Mississippi. The perfection status of TCB's security interest in Tennessee and North Carolina is irrelevant to the operation of the federal statute and to the effectiveness of UCC § 9-103(1)(d)(i) in this proceeding if BTCo is not a "purchaser after removal." Section 1631(d) allows a buyer in the ordinary course of business to buy farm products free from security interests, regardless of perfection, unless § 1631(e) requirements are met. In this case, if the lender, TCB, satisfies all the conditions under § 1631(e)(2), then The Julien Company took subject to TCB's interests in the cotton collateral and proceeds covered in the financing statements filed with the Mississippi Secretary of State. It would necessarily follow that if BTCo's security interests attached upon The Julien Company's purchase in Mississippi, those security interests were then junior to the prior perfection by TCB in Mississippi. Unless BTCo can establish that it later became a "purchaser after removal" under UCC § 9-103(1)(d)(i), it would not benefit from TCB's failure to file in Tennessee and North Carolina. The policy rationale for that conclusion is obvious: BTCo already had constructive knowledge of TCB's perfection in Mississippi.
IT IS THEREFORE ORDERED that a status conference shall be set for July 30, 1992, at 9:30 a.m., in Courtroom 680, 200 Jefferson Avenue, Memphis, Tennessee. Prior to or at that time, the Court will accept further stipulations or documentation regarding 7 U.S.C. § 1631(e)(2) and at that conference, the parties will discuss the particular questions of fact and legal issues left for adjudication at trial, including the critical issue of whether TCB waived its security interests by its alleged participation in prior settlements reached between the third party defendant farmers and BTCo and the Trustee. Further, the Court will hear from the parties on BTCo's status as a "purchaser after removal" under UCC § 9-103(1)(d)(i). If this date is not mutually agreeable for counsel, said counsel may consult with each other and with Carol Smith, the Courtroom Deputy, for an alternate date. If the status conference reveals that the parties are unable to stipulate or offer proof in support of summary judgment on the issues of compliance with 7 U.S.C. § 1631(e)(2) and of BTCo's status as a "purchaser after removal" under UCC § 9-103(1)(d)(i), the Court will set this proceeding for trial.
The Court does grant summary judgment against TCB on the issue of TCB's failure to perfect a security interest in Kenny Weeks' cotton produced on ASCS farm number 527. The Court will not enter a judgment until a final order is entered on all issues.
SO ORDERED.
NOTES
[1] This proceeding and these motions are "core" pursuant to 28 U.S.C. § 157(b)(2)(A), (K), and (O).
[2] Trustee for The Julien Company, Jack F. Marlow, has joined in the Motion for Summary Judgment filed by BTCo and relies on the Second Supplemental Memorandum of Law of BTCo filed in support thereof, except that the Trustee does not join in BTCo's assertion that it or any other institutional Lender has a perfected security interest in the cotton collateral in question. See Trustee's Notice of Joining Bankers Trust Company's Motion for Summary Judgment (January 27, 1992).
[3] Although the Court is not ruling upon whether the Trustee has filed or may file an avoidance complaint against TCB, the Court notes that 11 U.S.C. § 546(a) imposes a statute of limitations which may have expired in this case.
[4] In an Order entered March 4, 1992, Bankers Trust Company was substituted in the place of and assumed all the rights and obligations of defendants: Amsterdam-Rotterdam Bank, N.V.; Bank Mees & Hope, N.V.; French American Banking Corporation; Team Bank; and Bayerische Vereinsbank, AG (Union Bank of Bavaria) New York Branch in this adversary proceeding.
[5] Tenn.Code Annot. § 47-9-103(1)(d)(i) and N.C.Gen.Stat. § 25-9-103(1)(d)(i) are the respective state's applicable versions of UCC § 9-103(1)(d)(i). For purposes of this opinion, the Uniform Commercial Code will be the only state code to which the Court refers.
[6] See 11 U.S.C. § 546.
[7] Food Security Act, Pub L. No. 99-198, 99 Stat. 1535 (1985). See also 9 C.F.R. § 205 et seq.
[8] See UCC § 9-203(1), (2) (explanation of when a security interest attaches and becomes enforceable against the debtor or third parties).
[9] It should also be noted that evidence is not before the Court in this adversary proceeding on when the security interests attached as to the other Institutional Lenders for whom BTCo has been substituted. See footnote 4.
[10] The current version of UCC § 9-307(1) no longer contains the farm products exception in Tennessee; however, the exception remains in the current North Carolina version. See Tenn. Code Annot. § 47-9-307(1); N.C.Gen.Stat. § 25-9-307(1).
[11] See 7 U.S.C. § 1631(c)(4) ("effective financing statement" defined).
[12] This Court notes that 7 U.S.C. § 1631(c)(4)(B) states that the financing statement must be filed with the Secretary of State of a State by the secured party. In the case of a multi-state transaction, this Court is not ruling on whether filing in the state to which the farm products have been removed is adequate; however, the Court does find that filing with the Secretary of State in the state in which the farm products were produced and in which a central filing system is in place is adequate. 7 U.S.C. § 1631(e)(2). See FDIC v. Bowles Livestock Comm'n. Co., 739 F.Supp. at 1376; Brubaker, Farm Products Collateral: Still a Problem?, 1987 U.Ill.L.Rev. 241, 268 (1987).
[13] Each of the Institutional Lenders has filed proofs of claims in this bankruptcy proceeding, and each asserts a perfected security interest in all of the debtor's personal property. The validity, extent and priority of these asserted security interests are not at issue here. See footnote 9.
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8 B.R. 803 (1981)
In re Wendell W. WEAVER, Kathryn Jane Weaver, Debtors.
HOUSEHOLD FINANCE CORPORATION, Plaintiff,
v.
Wendell W. WEAVER et al., Defendants.
Bankruptcy No. 2-80-01424, Adv. No. 2-80-0407.
United States Bankruptcy Court, S.D. Ohio, E.D.
January 14, 1981.
*804 Stephen K. Yoder, Columbus, Ohio, for debtors.
Robert E. Lee, Columbus, Ohio, for Household Finance Corp.
Frank Pees, Worthington, Ohio, trustee.
OPINION AND ORDER ON COMPLAINT TO LIFT STAY
R.J. SIDMAN, Bankruptcy Judge.
This matter is before the Court on the merits of a complaint filed by Household Finance Corporation ("HFC") which seeks a modification of the automatic stay of actions against co-debtors in this Chapter 13 proceeding to the extent that HFC's claim is not proposed to be paid under the Chapter 13 plan confirmed herein.
The debtors, Wendell and Kathryn Weaver, filed a joint petition under the auspices of Chapter 13 of the Bankruptcy Code on April 29, 1980. After appropriate notice and hearing, the Chapter 13 plan of the debtors was confirmed by order of the Court dated July 2, 1980. The terms of the confirmed plan include the payment of $480.00 monthly to the Chapter 13 trustee, payment of allowed secured claims in full, and payment of a 71% dividend to all allowed unsecured claims.
On May 27, 1980, HFC filed its unsecured claim in this proceeding in the amount of $2,775.41. The claim does not indicate either acceptance or rejection of the Chapter 13 plan of the debtors. Under the provisions of Rule 13-202(a) of the Rules of Bankruptcy Procedure, however, any creditor filing a claim who does not indicate an acceptance or rejection of the plan shall be deemed to have accepted such plan. While it may be true that, since unsecured creditors under Chapter 13 of the Bankruptcy Code do not have a vote on *805 confirmation of a plan, and thus the provisions of Rule 13-202(a) are not applicable to the unsecured creditors under present law, it is relevant to note that HFC did not reject the Chapter 13 proposal of these debtors. Further, and perhaps more relevant, HFC did not exercise its right to object to confirmation of the Chapter 13 plan of these debtors as that right is conferred under § 1324 of the Bankruptcy Code. Richard and Beatrice Weaver, the brother and sister-in-law of the debtor Wendell Weaver, have co-signed on the debt to HFC.
The provisions of § 1301 of the Bankruptcy Code were newly added to the statutory scheme of Chapter 13 as found in the Bankruptcy Reform Act of 1978. In substantive part it provides:
"Except as provided in subsections (b) and (c) of this section, after the order for relief under this chapter, a creditor may not act, or commence or continue any civil action, to collect all or any part of a consumer debt of the debtor from any individual that is liable on such debt with the debtor, or that secured such debt, unless
(1) such individual became liable on or secured such debt in the ordinary course of such individual's business; or
(2) the case is closed, dismissed, or converted to a case under Chapter 7 or 11 of this title." 11 U.S.C. § 1301(a).
This automatic stay of action against a codebtor is subject to modification under certain circumstances as stated in § 1301(c) of the Code:
"On request of a party in interest and after notice and a hearing, the court shall grant relief from the stay provided by subsection (a) of this section with respect to a creditor, to the extent that
(1) as between the debtor and the individual protected under subsection (a) of this section, such individual received the consideration for the claim held by such creditor;
(2) the plan filed by the debtor proposes not to pay such claim; or
(3) such creditor's interest would be irreparably harmed by such stay." 11 U.S.C. § 1301(c). (emphasis added).
The legislative history on this Code provision makes it clear that if the debtor proposes not to pay a portion of any debt under his Chapter 13 plan, then the stay against co-debtor pursuit can, and perhaps must, be lifted to that extent. See H.R.Rep.No.595, 95th Cong., 1st Sess. 122 (1977), U.S.Code Cong. & Admin.News 1978, 5787. See also In Re O'Leary, 1 C.B.C.2d 569 (W.D.N.Y. 1980).
Absent any other factors, this Court would be constrained to hold that the stay of action against a co-debtor provided for in § 1301 of the Bankruptcy Code must be modified in this case to the extent that the composition plan confirmed in this case proposes not to pay, in full, the claim of HFC. The stay would thus be modified to allow the pursuit of the co-debtors, Richard and Beatrice Weaver, to the extent of 29% of the HFC claim (this being a 71% composition plan).
However, a complicating factor in the present case is the existence of the following provision in the Chapter 13 plan confirmed in this case:
"By accepting this plan, or any modification thereof, creditors agree not to pursue co-signers, if any."
The genesis of this provision occurred prior to the enactment of the Bankruptcy Reform Act of 1978 and was an effort on the part of debtor's counsel to prevent creditors, under old Chapter XIII, from pursuing co-debtors. This provision was necessary because there was no comparable provision to § 1301 which existed prior to the enactment of the Bankruptcy Code. This practice has been specifically dealt with and approved by the Sixth Circuit Court of Appeals. See Schraer v. G.A.C. Finance Corporation, 408 F.2d 891 (6th Cir. 1969).
The effect of such a provision in a Chapter 13 plan has been discussed by this Court in a recent case entitled The City Loan and Savings Co. v. Betts (In re Betts), 8 B.R. 799 (1981).
*806 While the reason for the proposal of the broadened co-debtor protection in the present case is different than that in Betts, there appears to be no valid reason why such broadened protection should not be given effect in this case. The protection of co-debtors is a factor considered by debtors in choosing an appropriate remedy for their financial difficulties. To these debtors, the extension of the broadest possible co-debtor protection to their relatives on the HFC debt was obviously an important enough consideration to specifically be included within the terms of the proposed Chapter 13 plan in this case. There is nothing inconsistent with the concept or letter of the Chapter 13 provisions which would prevent the inclusion of such broadened co-debtor protection in this Chapter 13 plan. The plan, as confirmed, fully binds all creditors. See 11 U.S.C. § 1327(a). HFC, by failing to reject the plan and/or object to confirmation of the plan, has waived its right to avoid the application of the broadened codebtor stay in this Chapter 13 case as long as it remains pending and the debtors are making their payments to the Chapter 13 trustee. HFC's remedy against the co-debtors of these Chapter 13 debtors is merely being postponed during the pendency of this Chapter 13 proceeding. At the conclusion of this case, the automatic stay against co-debtor pursuit will be lifted automatically by operation of law and HFC will be able to freely pursue the co-debtors for that portion of its debt unpaid by these Chapter 13 debtors.
Based upon the foregoing, the Court determines that the relief requested by HFC in it complaint is not warranted and such relief is hereby denied.
IT IS SO ORDERED.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-2362
JOSE ROGELIO HERNANDEZ ALAS, a/k/a Jose Alas Hernandez,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals.
Submitted: May 17, 2019 Decided: July 24, 2019
Before KEENAN, DIAZ, and QUATTLEBAUM, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Arnedo S. Valera, LAW OFFICES OF VALERA & ASSOCIATES, Fairfax, Virginia,
for Petitioner. Joseph H. Hunt, Assistant Attorney General, John S. Hogan, Assistant
Director, Lindsay Corliss, Office of Immigration Litigation, Civil Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jose Rogelio Hernandez Alas, a native and citizen of El Salvador, petitions for
review of an order of the Board of Immigration Appeals (Board) denying his requests for
withholding of removal and protection under the Convention Against Torture. We have
thoroughly reviewed the record, including the transcript of Hernandez Alas’s merits
hearing and all supporting evidence. We conclude that the record evidence does not
compel a ruling contrary to any of the agency’s factual findings, see 8 U.S.C.
§ 1252(b)(4)(B) (2012), and that substantial evidence supports the Board’s decision, see
INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992).
Accordingly, we deny the petition for review for the reasons stated by the Board.
See In re Hernandez Alas (B.I.A. Oct. 18, 2018). We dispense with oral argument
because the facts and legal contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
PETITION DENIED
2
| {
"pile_set_name": "FreeLaw"
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462 F.Supp.2d 812 (2006)
Theresa SROCK, as Personal Representative of the ESTATE OF James Howard SROCK, Deceased, Plaintiff,
v.
UNITED STATES of America, Defendant.
No. 04-CV-72788-DT.
United States District Court, E.D. Michigan, Southern Division.
November 22, 2006.
*813 *814 James R. Acho, Robert L. Blamer, Cummings, McClorey, Livonia, MI, for Plaintiff.
Colleen L. Conlin, Bruce A. Ross, Justice Dept. Civil Division Torts Branch Aviation, Washington, DC, Peter A. Caplan, United States Attorney's Office, Detroit, for Defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW PURSUANT TO RULE 52(a)
CLELAND, District Judge.
I. INTRODUCTION
In this wrongful death case, filed pursuant to the Federal Tort Claims Act ("FTCA"),[1] Plaintiff claims that an allegedly deficient weather briefing by the FAA was the cause, or at least a cause, of the crash of a sleek, experimental "hotrod" of an airplane in which Plaintiff's decedent, passenger James Srock, was killed. In this opinion, the court finds that the relatively inexperienced owner/pilot of that aircraft chose to fly directly toward and into readily-visible, thick clouds that he knew were present and which were largely obscuring a mountain range that he knew he was approaching but through which he intended to navigate by "shooting" through the Cumberland Gap. These negligent decisions made by the pilot caused the accident and the tragic loss of life and property. The weather briefing at issue was not deficient, but even if it were it did not cause or contribute to the crash.
The court conducted a bench trial from October 16 to 25, 2006, and under Federal Rule of Civil Procedure 52(a), the court must set forth findings of fact and conclusions of law.
II. FINDINGS OF FACT
The parties have stipulated to many facts, including the following summary, relating to the events leading to this action:
On February 11, 2000, a private aircraft crashed into the Cumberland National Historic Forest in Virginia, killing both occupants, Daniel Wood and James Srock. The flight originated in Durnellon, Florida, destined for Pontiac, Michigan, when it crashed. During an enroute stop in Douglas, Georgia, the pilot telephoned the Automated Flight Service Station ("AFSS") in Macon, Georgia, for "some weather enroute." Plaintiff, Theresa Srock, claims the AFSS briefer negligently briefed the pilot, which caused or contributed to the crash, killing her husband who was not the pilot in command. The NTSB [National Transportation Safety Board] investigation revealed that the plane crashed in Virginia.
(3/21/06 Stipulation to Choice of Law at 1-2.)[2]
*815 Based upon the evidence credited by the court and received either on the record in court during trial or in the record as submitted in advance by the parties, the court renders the following findings of fact. Some other discrete findings have been announced in court during trial. Unless specifically overridden by a contrary finding in this opinion, any such earlier discrete finding on the record is adhered to. Where the parties differ about facts necessary to the resolution of this case, the court has resolved the difference with one or more of these findings. In several instances, as noted on the record or herein, the court has reached findings of fact by accepting opinion evidence offered by one or more expert witnesses.
Plaintiffs decedent, James Srock, and airplane owner Daniel Wood died on February 11, 2000 when Woods's experimental, amateur-built amphibious "Seawind" aircraft crashed after entering clouds at about 2:30 p.m. EST in the Virginia mountains of the Cumberland Gap National Historic Park.
The Wood Seawind was not a commercial, certified airplane, but after the required inspection and testing, accomplished by Paul Array, a highly-experienced Seawind pilot who test-flew the craft from May 19 to 21, 1999, it was issued an inspection report and a "Special Airworthiness Certificate for Experimental Amateur Built Aircraft." It was, despite being being home-built with many modifications from the standard *816 Seawind kit, a complex, high-performance airplane.
The Defendant offered as one expert witness Capt. Robert Gibson. The court readily credits the testimony and several opinions of Capt. Gibson, an aeronautical engineer and Naval pilot retiree who has "something over 13,500 hours" of flight time, with 847 of those hours accumulated in earth orbit on several space shuttle missions. He has also built at least one experimental airplane, re-designing the wing structure himself, and setting world altitude and speed records in it. He personally test-flew an exemplar Seawind airplane in preparation for formulating his opinions. It is difficult to imagine a witness in this field who would have more experience or be more extensively qualified to render opinions related to piloting an airplane.
According to Capt. Gibson, the Seawind is "very impressive," even a "gorgeous airplane." a is capable of extraordinary speed for an amphibian due to its unique flotation system that permits the landing gear to be retractable. Capt. Gibson further described the aircraft, saying that it was "[a] real pilot's airplane .... [which would require] more skill to fly it accurately and make it go precisely where you want it to go. It's not going to be as stable or as predictable, necessarily, as something like a Cessna or a Beechcraft." Capt. Gibson said that the Seawind is "a hotrod of an airplane."
Decedent's association with Wood's airplane was not the only connection Decedent had with Seawinds, as he owned his own partially-built Seawind kit and was in the process of working on it during early 2000. Srock well knew that the Wood Seawind was amateur-built and of an experimental design, and knew that it had many modifications to the standard Seawind kit design. Indeed, Srock had advised and assisted, and possibly designed and installed, at least one of those modifications, a substitute "water rudder." In addition to owning a Seawind, Srock owned at least one Lake amphibious aircraft and had accumulated more than 200 flight hours as a student pilot before the fatal February trip of 2000. He did not, however, have an instrument rating, and he was no longer qualified to fly because his student status was invalidated after an incident in Gallipolis, Ohio, in 1996 (also referred to below).
On February 5, 2000, Wood and Srock flew the Wood Seawind from Michigan to Florida for the annual "River Ranch Fly-In" for amphibious aircraft owners. After the Fly-In they departed from Ocala, Florida for their return fight to Pontiac, Michigan, in the same aircraft, on February 11, 2000. Twice on the morning of February 11, 2000, Wood checked flight weather by telephone, each time contacting a different Flight Service Station ("FSS"). The FSSs contacted were only two of many FAA facilities located throughout the United States.
Pilot Wood first telephoned the FSS in Gainesville, Florida, for a pre-flight briefing, and the Gainesville briefer responded with a "standard" weather briefing from about 7:44 to 7:49 a.m. EST. The Gainesville briefer first expressed doubt about whether Wood could get to Michigan that day. He told Wood, "I don't know if I can get you to Pontiac, sir. I can get you to Tennessee ... I got quite a bit of weather actually even if I can get you up there." The briefer told Wood that there was "a frontal system right over Tennessee ...." Noting that there was a gap between the two weather systems, he asked Wood "how long will it take you to get up [] towards H central Tennessee area?" After Wood estimated that he could be there by about 1:00 p.m., the briefer noted that weather *817 "in the central Tennessee area" would "deteriorate by around sunset," and that flying from central Tennessee toward Columbus, Ohio, would be "too far east" due to expected IFR, conditions. The briefer told Wood that a route "west of Columbus" through "southern Indiana" would allow Wood to "sneak in" between the two systems under VFR conditions. Near the end of the briefing, pilot Wood said to the briefer, "If we hit some bad stuff we'll just put it on the ground."
Plaintiff's expert FSS witness, Richard P. Burgess, testified that, in his opinion, the Gainesville briefer had not said anything that "suggested" a particular route: "I didn't see anything where he said to fly west." The court rejects that opinion as unfounded. The tape recording of the briefing could not be more clear in demonstrating that the briefer strongly suggested flying to central Tennessee and continuing from there through southern Indiana to Michigan. That route, compared to the one chosen, was the only one that the briefer envisioned that would allow Wood to "sneak in" safely between the east and the west weather systems, and would have indeed required that the plane be flown to the west.
Contrary to the Gainesville briefer's suggestion, however, Wood and Srock flew to Douglas, Georgia, which was along a nearly straight-line route toward Pontiac heading through eastern Tennessee. If they had flown on a northwesterly line out of Ocala as recommended by the Gainesville briefer, they could have completed their flight in VFR conditions without flying over mountains, and, had they proceeded toward central Tennessee as suggested, they should have been some 60 to 100 miles to the west instead of in Douglas.
Ahead of them, on that more-direct route, lay both the Great Smokey Mountains (over 6,000 feet high MSL) and, beyond, the Cumberland Mountains (about 2,500 feet high MSL). Directly over the Cumberland Mountains was the IFR weather system described by the Gainesville briefer.
They purchased a quart of oil in Douglas,[3] and checked in by telephone with the Macon, Georgia, FSS for an additional weather briefing. Wood spoke with the Macon FSS briefer, Gloria Day, beginning about 11:25 a.m. EST. He requested "some weather en route." The Macon briefer at first perceived that Wood was requesting a "standard" weather briefing, and she started to provide the same.
A "standard" briefing follows a preordained format consisting of certain weather information items presented in a particular order. It differs from an "abbreviated" briefing in that an abbreviated briefing consists only of the elements of weather information requested by the pilot. It is undisputed that the pilot, not the briefer, controls the briefing; further, it is clear that the briefer has no authority to direct a pilot to follow any particular *818 route, or to authorize or prohibit any pilot behavior. The pilot decides what information he requires in a briefing, and the pilot decides what route to fly.
The Macon briefer began by obtaining the background information from pilot Wood, including the aircraft type (Seawind experimental), its number (N94WB), the type of flight (visual rules: VFR), the departure (Douglas), the destination (Pontiac), the proposed altitude (8,500 feet MSL), and the estimated time of departure ("we're ready to go anytime").
These elements of information were reasonably required by the briefer in order to provide the pilot pertinent weather information. In listening to the recording, it appears to the court that a note of frustration on the part of the briefer emerged fairly early in the briefing. The court observes that the briefer had to ask Wood four successive times to persuade him to reveal or perhaps to decide the altitude at which he proposed to fly:
1) Day asked if Wood would "be below 10,000," and Wood replied "we can go above or below;"
2) Day then asked, "what altitude," and Wood replied with a non-sequitur, "but we will be VFR," as though he had not heard the question;
3) Day asked again, "OK, but what altitude are you gonna' go at," and Wood unresponsively said "we're not filing a flight plan; we're just asking for a weather briefing," indicating that he was not listening;
4) Day then began to explain that, without Wood's intended altitude, she couldn't "give you any of the flight precautions or anything for turbulence ..." Wood interrupted her explanation and said he would "probably be flying at about [] 8,000."
Intended altitude was important information for the briefer to be able to determine the influence of turbulence aloft, but Wood appeared either unwilling or uncertain about the particulars of any particular proposed altitude. The court concludes that this constituted one reason for frustration on the part of the briefer and led, in part, to her comment after the briefing that she would "hate to have to fly with that man." She later testified that she meant by her comment that she perceived disorganization on his part. The court credits that observation, and generally agrees, after listening several times to the tape recording, that Wood interrupted Day on at least two occasions and seemed disorganized.[4]
After finally eliciting required background information about the flight, the briefer began providing pilot Wood with pertinent flight precautions and adverse weather conditions. Wood interrupted the briefer, and began asking for specific weather information including cloud tops and winds aloft.[5] These had to be repeated. *819 The briefer advised Mr. Wood that, "on a direct route from Georgia straight up to Michigan," there was "some light precip[itation] en route." The meteorological evidence the actual weather radar summary for 1635 ZULU (which equals 11:35 EST) bears this out, and shows that there indeed were no storms, nor even any heavy precipitation, along a direct route from Douglas to Pontiac.
After Day provided Wood with winds and temperatures aloft information, pilot Wood stated `that's very helpful ma'am" and asked if there were any PIREPs ("Pilot Reports"). The briefer responded she had no PIREPs, and pilot Wood terminated the briefing. Day had provided all the information Wood requested that was available to her. Although the briefing began as a "standard briefing," the court finds that briefer Day reasonably perceived that Wood's disorganized but specific requests for particular information had converted it into an "abbreviated" briefing, and that Wood terminated the briefing before Day completed it.
According to Defendant's expert witness Earlis Bernard, whom the court credits, Wood's request for specific information about winds aloft came only four seconds after the briefer had entered into her computer the code for weather information designed to reveal AIRMETS, which would have included a text-based warning about IFR conditions and "mountain obscuration" in the area of the Cumberland Mountains. The briefer would have had to "page forward" one page on the computer screen in order to see that warning, but within those few seconds Wood presented his next specific request and the briefer immediately entered the code to respond to that request, effectively erasing the previously requested information. In addition to the text-based computer screen, the briefer had available a graphic display showing weather fronts, precipitation, etc., similar to that commonly seen on televised weather reports, which could have included the mountain obscuration indication. The court finds that the briefer did not see a graphic equivalent of the mountain obscuration text, and that it is likely that such graphic information was simply not present on the graphic display.
As pointed out by Defendant's expert witness Ray Hoxit, the briefer announced to Wood "the only other" weather advisory she had, indicating to Hoxit that she was looking at a screen that simply did not include mountain obscuration information. The court agrees. Had such an advisory been present, there is no reason the briefer would not have announced it. The graphics for the screen she was looking at were generated by a private contractor from numerical raw data and then transmitted in graphical form to FAA FSSs. The relevant graphic data was sought in preparation for the trial, but the parties found that the data had not been archived by the producing party and was not available for viewing.
The court finds that the Macon briefer complied with her duty to provide accurate and complete information in response to pilot Wood's requests, based on the information available to her. The briefing she gave was the one she reasonably believed was being requested by Wood, i.e., "abbreviated." Wood's unfortunate interruptions, his requests for specific information items and his disorganization in the briefing directly led to less than optimal information *820 being requested from, and provided by, the. briefer.
In any event, as explained below, the court finds that pilot Wood would have flown the same route directly toward the Cumberland Gap even if the "mountain obscuration" condition had been specifically reported to him by Macon as it had functionally been done from Gainesville earlier in the day. Wood's disinclination to follow Gainesville's suggestion led him on the more easterly path. The court concludes that pilot Wood would not have chosen to follow a more westerly path suggestion even if it had been offered by Macon as was done by Gainesville.
Indeed, Wood seemed determined to fly directly toward Pontiac. As the court will explain immediately below, Wood's decisions about the flight while preparing for and executing the flight were the cause of the tragedy. The Macon weather briefing did not cause and did not contribute to the in-flight decisions of pilot Wood to fly toward and then into clouds, or to subsequently lose control and to crash. The Macon weather briefing, even if it were deficient which the court finds it was not was neither the cause nor even one of several causes of the accident.
In their final 30 minutes of flight, Wood and Srock flew in generally clear, "broad daylight" VFR weather conditions over and beyond the vicinity of Knoxville further into eastern Tennessee. The weather permitting VFR flight included some scattered clouds until only a few miles south of the Cumberland Gap National Park, but those clouds and occasional turbulence at higher altitudes did not affect the pilot's visibility in any relevant way. They flew over mountains, the Great Smokeys, contrary to the specific advice they, and especially Wood, had received from far more experienced pilots in Florida a day or two before departing. Wood was advised to stick to what pilots call "flat land" as Wood was himself a "flatlander," and not accustomed to flying in mountainous terrain. Such terrain is, by every available account in the record, considerably more dangerous and unpredictable than flat land flying. It is known by experienced pilots that mountains tend to "make weather," and produce strong up- and downdrafts that make flying more difficult even for those who are used to it. Wood was specifically warned about these attributes of mountain flying by his fellows in Florida, and in general by the standard FARs, but either ignored the several warnings or concluded that he could accommodate the unpredictability of mountain flying even though he had logged fewer than twenty hours flying his Seawind.
As predicted by the Gainesville briefer, beyond the Smokeys and along the Cumberland Mountain ridge in which the Cumberland Gap is situated there was bad weather, specifically a "deck of clouds" consisting of an overcast layer almost one mile thick, extending from about 2,000 MSL feet to 6,000 feet MSL. There were, however, no thunderstorms or other similar severe weather in the area that could have affected the Seawind aircraft.
To the south of the Cumberland Mountain ridge in mid-afternoon on February 11, 2000, as Wood and Srock approached, the sun was shining brightly except for the area directly under the overcast layer along the ridge. The court finds that the cloud layer was clearly visible to Wood and Srock for at least ten miles, and more likely twenty to forty miles before the crash occurred. Both Wood and Srock should have known that "the weather was going downhill" ahead of them for many miles and several minutes before they ultimately were to crash.
Their speed in the Seawind at that time was probably in the range of 150 miles per *821 hour, which allowed them to cover about two and a half to three miles of ground per minute. Therefore, both Srock and Wood had substantial visual notice of the existence of the cloud deck for at the very least four minutes (assuming that they could see the cloud deck from ten miles out) or, as the court finds to be more likely, seven to fourteen minutes (assuming a twenty to forty miles range of sighting the weather).
At that speed, and while he was still in clear weather, Wood had an ample opportunity to either turn the aircraft 180 degrees around or "put it on the ground" (i.e., land) but chose to press on, closing in on obvious IFR conditions over the Cumberland Gap.
Witness Greg Lamb was in the town of Cumberland Gap, Tennessee, standing a few hundred yards from the foot of the ridge known as "The Pinnacle." The substance of his testimony was uncontroverted. The court credits Lamb. He saw the Seawind flying very low under the solid cloud layer that overlay the town, heading directly toward Cumberland Gap. He had seen other aircraft "shooting the Gap," i.e., flying over the "saddle" formed by the gap in the ridge line. He saw the Seawind turn to the right and almost immediately enter the clouds and disappear from view. Not long thereafter he heard increased power being applied to the engine, and then impact. The top of the ridge where the aircraft crashed was several hundred feet above and several hundred yards northeast of Lamb's position.
Explaining the handling of the Seawind, based upon his individual experimental experience flying an exemplar Seawind, Capt. Gibson testified:
The Seawind itself has some very unique flying characteristics because of this very high-mounted engine that we can see up on top of the vertical tail. Power changes in that airplane introduce significant pitch moments. And that would be a torque in the pitch axis. So a power addition is going to make the nose want to go down; a power reduction, if you're in trim flight, meaning basically, hands off. If you pull the power back, the nose is going to go up. Most certificated aircraft and most aircraft that you'll generally fly out there do exactly the opposite of this. And it isn't just the fact that it's doing the opposite of what you might be used to in a regular airplane; it's the degree of the torque that you're going to get. The engine is mounted so high above, basically, the center of gravity of the airplane and, what we call the aerodynamics center, the point at which most of the drag would be considered to be acting upon and the center of lift. There's enough of a moment out of that engine that this airplane pitches significantly if you're not right on top of it and if you're not very accurate with your control units. So it's a real performance airplane. It's a real pilot's airplane.
(Emphases added.)
The court further credits the testimony of and accepts the accident reconstruction opinions of Defendant's witness, Bernard Coogan, and in view of the persuasive testimony of Coogan, as well as Array and Gibson, the court finds certain facts about Wood's handling of the Seawind in this case, which follow.
In order to make a successful bank left or right, power must be applied because some altitude is normally lost during a turn; also, the nose of the Seawind must be urged up to counteract a tendency of the aircraft to slide downwards during a bank as well as the peculiar tendency of a Seawind to want to nose down whenever power is applied, given the unique placement of the engine above the center of *822 gravity of the airframe. When a pilot is in IFR conditions with no visual reference, a straight-ahead power-on climb feels to the airplane occupant much like a power on left or right bank, with an approximately equivalent G-force (additional apparent gravity force; the sense of being pulled down or back into one's seat) being experienced. A pilot experienced in other, conventional aircraft but inexperienced in flying the Seawind will have markedly greater difficulty in making the airplane do what he wants it to do, especially in an emergency situation. The court concludes in this regard that, after banking right and entering the clouds, pilot Wood, having only a few hours experience flying his Seawind, thought he was beginning to execute a hard left bank, bringing the nose up and applying increased power. In fact, Wood did not know what the attitude of the aircraft was, and had merely leveled out from the right bank observed by witness Lamb on the ground. The continued application of power with the nose up shortly resulted in the aircraft experiencing a "power-on stall" in which its wings lost all "lift." It immediately began to "slide" to the right. With nearly full power now being applied and the aircraft out of control, it inverted, continued its downward path and began to clip the tops of trees on the ridge, with the canopy being the first to receive impact. The Seawind was wrecked along a 600-foot path of debris down the side of the mountain. Although the airplane was losing both altitude and speed during its inversion and final descent, it was still traveling at a very high rate of speed, substantially greater than 100 miles per hour, and both pilot and passenger were killed almost instantly upon impact with either trees or the rocky ground below.
Regardless of any weather briefing received from Macon, Wood and Srock both are charged with knowing that Wood was required to avoid clouds (500 feet above, 1000 feet below, 2000 feet horizontally). Any pilot in command, looking at the weather in front of him, is in a better position than weather briefer, who looks only at forecasts and reports, to see actual adverse weather as it develops. Wood intentionally descended toward deteriorating weather conditions knowing that doing so was both prohibited and dangerous. Nothing in the Macon briefing relieved Wood of his duty under the Federal Aviation Regulations to avoid clouds while operating under VFR.
Wood's duties as pilot included familiarizing himself with both the weather and the terrain along his route of flight. Wood knew in fact that there was mountainous terrain in the vicinity of Cumberland Gap, but rather than remain at 8,500 feet MSL, as he had indicated to the Macon briefer he would and as he had been doing in order to traverse the Great Smokeys not very long before pilot Wood elected to descend below 2,500 feet MSL, eventually flying into the clearly visible solid cloud deck described above. He had placed his aircraft substantially below the "Maximum Elevation Figure" on the VFR Sectional chart of 3,800 feet MSL, and dangerously close to partly-visible mountainous terrain.
Some evidence indicates that Wood and Srock may have had in mind landing at the Middlesboro, Tennessee, airport just beyond the Gap where there is a rather well-known museum display of a downed World War II aircraft, "Glacier Girl," which was extracted from a glacier and rebuilt. The opinion of Defendant's witness Capt. Gibson was that Wood was likely trying to get back to Michigan using the fuel he had on board while there were still sufficient daylight hours remaining (a VFR pilot cannot legally fly after dark). Although the court credits the testimony of Capt. Gibson generally, the court need not resolve the question *823 of Wood's and Srock's near-term or ultimate intended destination for February
The court is able to conclude, from the evidence, what pilot Wood was trying to do and the circumstances under which he was doing it in the several minutes before the crash. The court finds that pilot Wood was "scudrunning," a risky practice in rising terrain, described by Capt. Gibson. Specifically, Wood was trying to fly just under the cloud layer and to "shoot the Gap," i.e., to fly through the Cumberland Gap, hoping to stay beneath the clouds but safely above the terrain in order to get beyond the Cumberland ridge. Beyond the ridge was VFR, weather which would allow continued scudrunning north below the cloud ceiling. The court need not and does not decide Wood's intended destination that day.
Given the proximity of pilot and passenger that the seating configuration in the Seawind requires, as well as Srock's intense interest in Wood's Seawind as well as his own, the court finds that the knowledge and decisions of Wood as pilot were known to and certainly discussed with Srock. It is not reasonably possible that Srock could have sat there as a passenger in the Seawind without being well aware of and at least tacitly approving the piloting decisions made by Wood.
Wood and Srock, while still in clear VFR weather, easily saw the towns of Harrow-gate and Cumberland Gap. They were not lost. They had sectional charts. They knew where they were, and how close they were to the mountains. Wood knew the cloud bank lay directly in their path. He chose to approach the clouds as closely as he did in his attempt to determine whether he could "safely" fly under the cloud layer in the "saddle" of the Gap. When he finally realized, perhaps because the cloud layer had lowered, that he could not see sufficiently far to make it through the Gap, he banked right to prepare to get away from the mountain ridge, which was becoming increasingly obscured by the moving cloud bank. Wood had miscalculated how close he was to both the ridge and the clouds, and could not avoid entering the clouds during his turn.
Because Plaintiff has not prevailed in its burden of showing either negligence or proximate cause, it is not absolutely necessary to find whether decedent Srock had assumed the risk of fatal danger in flying under the circumstances presented here. For the sake of completeness, the court nonetheless finds, by a preponderance of the evidence that he did indeed assume the risk. Of particular significance to the court's determination here are 1) Srock being warned specifically by more than one experienced pilot in Florida to not fly home with Wood due to Wood's lack of Seawind (and mountain) experience, and 2) Srock's own piloting experience involving an aircraft incident about three years earlier at Gallipolis, Ohio on December 8, 1996, in which he attempted to fly, alone, cross-country in his commercially-built Lake amphibious aircraft. This flight occurred in dangerous IFR weather well outside both the scope of his student licensure and of his fairly minimal visual-only flying abilities. The Lake airplane's safety certification was also out-of-date at that time, and could not legitimately be flown. When he encountered bad weather and icing, Srock failed in his attempt to land at the Gallipolis airport, severely damaging both his Lake and another airplane. He had earlier attempted, and apparently succeeded, in at least two other solo cross-country flights without proper authorization. His flight instructor had warned him against this kind of flying, but the warnings were not heeded.
*824 Based on the evidence of record, the court finds that decedent Srock contrary to a characterization by one of his sons as generally a "cautious" person was a fundamentally risk-seeking rather than cautious pilot. He knowingly and repeatedly violated rules of safe aircraft operation with his own aircraft, and refused to wait for the training process to qualify him for more advanced flying.
In sum, the court finds that decedent Srock well knew of and fully appreciated the risks attendant to flying with Wood. He knew that Wood did not have an instrument rating and was remarkably inexperienced in flying the Seawind to be taking it on such a long journey, especially over treacherous terrain. He heard, but disregarded, the specific `warnings against flying back with Wood expressed by far more experienced pilots before he departed the Florida gathering. He knew of and appreciated the risks attendant to flying in a modified and relatively untested Seawind aircraft cross-country from Florida to Michigan. He knew of and appreciated the risk of flying illegally near or illegally into clouds, and knew that Wood was prohibited from doing so. Simply put, Srock was willing to trust Wood's judgment and abilities, to his ultimate peril. James Srock knowingly assumed the risks, including the unfortunate possibility of a fatal crash, of flying cross-country from Florida to Michigan with Daniel Wood in his Seawind aircraft.
III. CONCLUSIONS, INCLUDING CONCLUSIONS OF LAW
The parties have stipulated that Georgia law will determine the substantive law to be applied in this case because the alleged negligence occurred in Georgia. (Id. at 2-3.) A Georgia court would apply the law of the state where the aircraft crashed, meaning that Virginia law will govern the substantive issues in this case. (3/21/06 Stipulation to Choice of Law at 1, 3.)
Under the FTCA, the United States can be held liable "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." 28 U.S.C. § 1346(b)(1). Thus, as the parties agreed, because the alleged act or omission occurred in Georgia, and because Georgia courts would apply Virginia law, Virginia law determines whether Plaintiff has produced sufficient facts to allow the trier of fact to find that Defendant's employee acted negligently in her briefing of the weather conditions on February 11, 2000.
Virginia law provides that "[t]he elements of an action in negligence are a legal duty on the part of the defendant, breach of that duty, and a showing that such breach was the proximate cause of injury, resulting in damage to the plaintiff." Blue Ridge Service Corp. of Virginia v. Saxon Shoes, Inc., 271 Va. 206, 624 S.E.2d 55, 62 (Va.2006) (citing Trimyer v. Norfolk Tallow Co., 192 Va. 776, 66 S.E.2d 441, 443 (Va.1951)). Case law is well established that "[s]ince the FAA has undertaken to advise requesting pilots of weather conditions, thus engendering reliance on facilities ..., it is under a duty to see that the information which it furnishes is accurate and complete." Pierce v. United States, 679 F.2d 617, 621 (6th Cir.1982) (citing Indian Towing Co. v. United States, 350 U.S. 61, 69, 76 S.Ct. 122, 100 L.Ed. 48 (1955); Reminga v. United States, 631 F.2d 449, 452 (6th Cir.1980); Gill v. United States, 429 F.2d 1072, 1075-77 (5th Cir.1970); Ingham v. Eastern Air *825 Lines, Inc., 373 F.2d 227, 238 (2d Cir. 1967)). Moreover, this duty is owed to passengers, such as the decedent, as well as pilots. Id. (citing Freeman v. United States, 509 F.2d 626, 629 (6th Cir.1975)). As explained by the Fifth Circuit:
The United States may be liable under the Federal Tort Claims Act for negligent provision of services upon which the public has come to rely. Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955). The government's duty to provide services with due care to airplane pilots may rest either upon the requirements of procedures manuals spelling out the functions of its air traffic controllers or upon general pilot reliance on the government for a given service, Hartz v. United States, 387 F.2d 870 (5th Cir. 1968). That duty, in appropriate circumstances, requires due care in providing both current weather information, Ingham v. Eastern Air Lines, 373 F.2d 227 (2d Cir.1967), and weather forecasts, Somlo v. United States, 274 F.Supp. 827 (N.D.Ill.1967).
Gill, 429 F.2d at 1075.
In order to establish a defendant's negligence, Virginia requires that a plaintiff prove "'why and how the incident happened'; `if the cause of the event is left to conjecture, guess or random judgment, the plaintiff cannot recover.'" Hodge v. Wal-Mart Stores, Inc., 360 F.3d 446, 451 (4th Cir.2004) (quoting Town of West Point v. Evans, 224 Va. 625, 299 S.E.2d 349, 351 (Va.1983)); Lawrence v. Snyder, 229 Va. 139, 326 S.E.2d 690, 692 (Va.1985). "[I]f the proof leaves it equally probable that a bad result may have been due to a cause for which the defendant was not responsible as to a cause for which he was responsible the plaintiff cannot recover." Marchant v. Boddie-Noell Enter., Inc., 344 F.Supp.2d 495, 498 (W.D.Va.2004) (quoting Clark v. United States, 402 F.2d 950, 953 (4th Cir.1968)).
The Federal Aviation Regulations prescribe limitations for Class E airspace (in which Wood and Srock were flying immediately before and at the time of the crash), which include maintaining three statute miles of visibility and a distance from clouds of 500 feet below, 1,000 feet above, and 2,000 feet horizontally. 14 C.F.R. § 91.155. "Rule one (of the FARs) makes it clear that the pilot in command, like the ship captain, has the ultimate responsibility for the safety of his plane and his passengers and must comply with the extensive body of regulations published by the FAA." Capello v. Duncan Aircraft Sales of Florida, Inc., 79 F.3d 1465, 1469 (6th Cir.1996) (citing 14 C.F.R. § 91.3). The FARs, published in Title 14 of the Code of Federal Regulations "have the force and effect of law." Id. at n. 3 (citation omitted). The Aeronautical Information Manual "constitutes evidence of the standard of care for all certified pilots in the aviation community." Id. (quotation omitted). "In visual conditions, the primary responsibility for safe operation of the aircraft rests with the pilot, regardless of the air traffic clearance." Schuler v. United States, 868 F.2d 195, 198 (6th Cir. 1989).
"VFR flight is limited to fair weather flying. 14 C.F.R. § 91.155. The pilot under VF'R flight rules may not fly through clouds or in weather in which the ceiling is low or the visibility is bad." Cappello, 79 F.3d at 1469; see also Pierce v. United States, 718 F.2d 825, 829 (6th Cir.1983) ("It is undisputed that VFR pilots are not to fly into clouds if they can be avoided.").
Although the duties of pilots and FAA employees are concurrent, nothing a flight service specialist does relieves a pilot of his duties and responsibilities. Moorhead v. Mitsubishi Aircraft Int'l, Inc., 639 *826 F.Supp. 385, 395 (E.D.Tex.1986), aff'd in part, rev'd in part on other grounds, 828 F.2d 278 (5th Cir.1987). "A flight service specialist has no duty to inform a pilot of that which the pilot should already know." Economou v. United States, No. C-3-85-694, 1992 WL 1258526, at *9 (S.D.Ohio Aug.26, 1992). "A controller's duty to warn does not relieve the pilot of his primary duty and responsibility. The pilot has a continuing duty to be aware of danger when he can gather adequate information with his own eyes." Schuler, 868 F.2d at 198 (quoting Spaulding v. United States, 455 F.2d 222, 226-27 (9th Cir. 1972)).
"The Air Traffic Control Service has no duty to restrain a pilot from taking off into a hazardous weather condition or offer a gratuitous opinion that he should delay his flight. In conditions where judgment is exercisable, the decision as to whether and when weather conditions permit a take off is up to the pilot." Bauer v. United States, 289 F.Supp.2d 944, 952 (N.D.Ill.2002), aff'd Spurgin-Dienst v. United States, 359 F.3d 451 (7th Cir.2004). "No duty is imposed upon controllers to warn pilots not to enter IFR weather conditions without a clearance, nor are they required to foresee or anticipate the unlawful or negligent ... acts of pilots." Peters v. United States, 596 F.Supp. 889, 896 (E.D.Pa.1984) (quoting Baker v. United States, 417 F.Supp. 471, 488 (W.D.Wash. 1975)). Flight Specialists "are entitled to assume that pilots with whom they communicate have complied with FAA regulations and have studied the basic maps of the area, know the terrain and the navigational facts concerning departure routes, TCA's, clearances and the like." Cappello, 79 F.3d at 1468 (citing 14 C.F.R. § 91.103).
The Flight Services Handbook (FAA Order 7110.10M) is an internal agency document and, although FAA employees must be familiar with the provisions of the manual, the provisions are not statutes or regulations, and it does not necessarily follow that any deviation from these guidelines constitutes negligence under the FTCA. See, e.g., Baker, 417 F.Supp. at. 485. A flight service specialist's duty to provide additional weather information ends when the pilot terminates the briefing. See generally Economou, 1992 WL 1258526, at *9.
The court has found that Defendant has proved its affirmative defense of assumption of risk consistent with Virginia law. A person's voluntary assumption of the risk of injury from a known danger operates as a complete bar to recovery for a defendant's alleged negligence in causing that injury. Arndt v. Russillo, 231 Va. 328, 343 S.E.2d 84, 86 (Va.1986); Landes v. Arehart, 212 Va. 200, 183 S.E.2d 127, 129 (Va.1971). " The defense of assumption of risk requires using a subjective standard, which asks whether the plaintiff "fully understood the nature and extent of a known danger and voluntarily exposed herself to that danger." Thurmond v. Prince William Prof'l Baseball Club, Inc., 265 Va. 59, 574 S.E.2d 246, 249 (Va.2003). The defense "rests on two premises: (1) that the nature and extent of the risk are fully appreciated; and (2) that it is voluntarily incurred." Leslie v. Nitz, 212 Va. 480, 184 S.E.2d 755, 757 (Va.1971) (quoting Davis v. Sykes, 202 Va. 952, 121 S.E.2d 513, 514 (Va.1961)). If the two elements of the assumption of risk defense are established, the defense represents a complete bar to any recovery by the plaintiff even though the defendant may be negligent. Berry v. Hamman, 203 Va. 596, 125 S.E.2d 851, 854 (Va.1962); Hoban v. Grumman Corp., 717 F.Supp. 1129, 1137-38 (E.D.Va. 1989) (finding Navy pilot assumed risk of crash where he knew of the possibility of a malfunction, and placed himself in a position *827 that subjected him to the risk of harm associated with that malfunction).
Defendant also asserts that Wood's alleged negligence constituted an intervening and superseding tort. The court has agreed, fording that pilot Wood's negligence was the only proven cause of this airplane crash. Whether a second tort is intervening and superseding rather than concurrent depends on a number of factors, including: (1) whether the harm caused was different in kind from that which would have followed from defendant's negligence; (2) whether the operation or the consequences of the intervening cause appear after the event to be extraordinary rather than normal in view of the circumstances existing at the time of its operation; (3) whether the intervening. force acts independently of the situation or is a normal part of the situation; and (4) whether the intervening cause is a third party's action or omission. Coles v. Jenkins, 34 F.Supp.2d 381, 387 (W.D.Va.1998).
Applying the law to the facts of this case, as found by the court and described above, the court specifically finds that while Defendant owed a duty to Plaintiff, it did not breach that duty in Day's briefing to Wood. Wood's interruptions and questions converted what began as a "standard" briefing into an "abbreviated" briefing. The court further finds that Day's briefing was not the proximate cause, nor even a cause, of decedent Srock's death. Despite the warning given by the Gainesville briefer, Wood flew his aircraft toward Eastern Tennessee. Even if Wood had been given additional warnings and been cautioned to fly a more westerly path, the court finds that he would not have heeded them. Additionally, decedent Srock voluntarily assumed the risk of flying with Wood in his experimental aircraft into dangerous weather conditions. Indeed, the decedent fully understood the nature and extent of the dangers inherent in the flight through the Cumberland Gap and voluntarily exposed himself to that danger. Finally, even if Day's briefing were negligent and a cause of the crash, Wood's actions in intentionally descending toward deteriorating weather conditions (while knowing that doing so was both prohibited and dangerous) were negligent to a degree not reasonably foreseeable and, therefore, constituted a superseding cause of the accident. Accordingly, Plaintiff is not entitled to relief under the FTCA.
IV. CONCLUSION
For the reasons discussed above, the court finds in favor of Defendant and against Plaintiff. A separate judgment will issue.
NOTES
[1] 28 § 1346(b) and 28 § 2671.
[2] In this opinion and in the record several relatively case-specific acronyms are used:
AFSS Automated Flight Service Station, also FSS, administered by the FAA, from which up-to-date weather information can be retrieved. The Aeronautical Information Manual describes the functions of an FSS as "air traffic facilities which provide pilot briefings, en route communications and VFR search and rescue services, assist lost aircraft and aircraft in emergency situations, relay ATC clearances, originate Notices to Airmen, broadcast aviation weather and NAS information, receive and process IFR flight plans, and monitor NAVAIDS. In addition, at selected locations FSSs provide En Route Flight Advisory Service (Flight Watch), take weather observations, issue airport advisories, and advise Customs and Immigration of transborder flights."
AIRMETs Airmen's Meteorological Information are weather advisories of conditions that are potentially hazardous to aircraft and include icing, turbulence and extensive mountain obscurement by clouds or fog.
FAA Federal Aviation Administration.
FARs Federal Aviation Regulations impose limitations on the use of airspace under particular circumstances, e.g., a VFR-rated pilot is required to maintain three statute miles of visibility and a distance from clouds of 500 feet below, 1,000 feet above, and 2,000 feet horizontally.
IFR Instrument Flight Rules govern the conduct of flight under instrument meteorological conditions, e.g., where visibility is limited due to clouds.
MSL Mean Sea Level, from which altitudes are measured
NOTAMs Notices to Airmen are distributed through FSSs and are designed to provide timely information for safe flight operations, including information about hazards in the national airspace system.
PIREPs: Pilot Reports distributed by FSSs concern observed weather and wind conditions, e.g., the approximate altitude of the tops of cloud formations.
UTC Coordinated Universal Time (or Universal Time Coordinated) is the standard time common to every place in the world, formerly called Greenwich Mean Time, and also known as "Zulu."
VFR Visual Flight Rules govern the procedures for conducting flight under visual conditions. "VFR" can also indicate weather conditions that are at least equal to minimum VFR requirements.
ZULU "Z time," (the same as UTC and formerly Greenwich Mean Time), using the military/air traffic control word "Zulu" to stand for the letter.
[3] The purchase of oil, combined with the NTSB-observed oil "blow-by" from the engine, suggests that the engine may have been losing oil and overheating, thus motivating Wood's descent from 8,500 feet MSL described later in these findings, and providing a possible proximate cause of the crash independent of the challenged Macon weather briefing. Such an additional possible contributing cause of the crash remains unexplained by Plaintiff, although Plaintiff set forth very similar equipment-failure claims (later to be dismissed for lack of progress) in an earlier complaint filed in the United States District Court for this District. The court finds it unnecessary to further explore or resolve this possibility, however, in light of the balance of the evidence and the court's findings about Wood's choice of route and Wood's piloting choices during the final several minutes of the flight.
[4] The record includes only a few weather briefing recordings, and some testimony about them, including expert opinion on their. quality. Given this fairly limited factual basis, the court cannot independently offer sweeping pronouncements as to the inherent quality of the Macon briefing or as to the typical content or complexity of abbreviated compared to standard weather briefings. The court instead relies upon expert witnesses, particularly Capt. Gibson and Mr. Bernard, who both opined that Wood, with his several questions, was asking for, or had converted a standard briefing into, an abbreviated briefing. The court heard credible evidence that it is very common for pilots to interrupt briefers with such specific questions in that context.
[5] Wood asked for winds at "6, 8 and 10" indicating 6,000, 8,000 and 10,000 feet MSL, whereas the well-known, standard "winds aloft" data are reported for 6,000, 9,000 and 12,000 feet MSL. Illustrating this, the pilot who called in to Day immediately after Wood terminated his briefing said "I need the winds aloft going down that way [from Athens, Georgia, to Daytona, Florida] at 9,000 and 12,000." Wood's deviation from the standard winds aloft altitude format may have contributed to the briefer's frustration and conclusion of Wood's disorganization.
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VALINDA JO ELLIOTT,
Plaintiff-Appellant,
v. No. 07-15041
WHITE MOUNTAIN APACHE TRIBAL D.C. No.
CV-05-04240-MHM
COURT; HONORABLE JOHN DOE
TRIBAL JUDGE; and WHITE OPINION
MOUNTAIN APACHE TRIBE,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Mary H. Murguia, District Judge, Presiding
Argued October 22, 2008
Resubmitted May 7, 2009
San Francisco, California
Filed May 14, 2009
Before: Sidney R. Thomas and Susan P. Graber,
Circuit Judges, and Stephen G. Larson,* District Judge.
Opinion by Judge Graber
*The Honorable Stephen G. Larson, United States District Judge for the
Central District of California, sitting by designation.
5819
ELLIOTT v. WHITE MOUNTAIN 5821
COUNSEL
Cari M. McConeghy-Harris, Law Offices of David Michael
Cantor, P.C., Tempe, Arizona, for the plaintiff-appellant.
5822 ELLIOTT v. WHITE MOUNTAIN
Robert C. Brauchi, Tucson, Arizona, and Alexander B. Rit-
chie, White Mountain Apache Tribe, Whiteriver, Arizona, for
the defendants-appellees.
Joe B. Sparks, The Sparks Law Firm, P.C., Scottsdale, Ari-
zona, for the amicus curiae.
OPINION
GRABER, Circuit Judge:
A tribal court’s jurisdiction over nonmembers of the tribe
is limited. As a matter of comity, however, federal courts gen-
erally decline to entertain challenges to a tribal court’s juris-
diction until the tribal court has had a full opportunity to rule
on its own jurisdiction. Finding that no exception to that gen-
eral rule applies here, the district court held that exhaustion of
tribal court remedies is required. On de novo review, Boozer
v. Wilder, 381 F.3d 931, 934 (9th Cir. 2004), we affirm.
FACTUAL AND PROCEDURAL HISTORY
In June 2002, Plaintiff Valinda Jo Elliott, a non-Indian, was
riding in a private vehicle with her employer in the high
desert of Arizona, in an area located within the borders of the
White Mountain Apache Tribe’s reservation. They got lost
and ran out of fuel. Unadvisedly, they split up to search for
help. Forest rangers rescued Plaintiff’s employer but could
not locate Plaintiff. For three days, she remained lost and
without food, water, or proper clothing.
In her wanderings, Plaintiff saw a forest fire in the distance.
On the third day, she spotted a news helicopter recording the
fire, which had been named the Rodeo fire. In an understand-
able effort to attract the helicopter occupants’ attention, Plain-
tiff set a small signal fire.
ELLIOTT v. WHITE MOUNTAIN 5823
Fortunately, her idea worked; the helicopter descended and
rescued Plaintiff. Unfortunately, her signal fire grew into a
substantial forest fire, which was named the Chediski fire.
That fire eventually merged with the Rodeo fire and was
dubbed, naturally, the Rodeo-Chediski fire. The combined fire
burned more than 400,000 acres of land and caused millions
of dollars in damage.
The United States Attorney’s Office did not prosecute Plain-
tiff.1 The tribe, however, brought a civil action against Plain-
tiff in tribal court, seeking civil penalties and an order of
restitution. The tribe brought eight claims against Plaintiff,
alleging violations of tribal executive orders, the tribal game
and fish code, the tribal natural resource code, and common
law negligence and trespass.2 Plaintiff (the defendant in that
action) filed a motion to dismiss for lack of jurisdiction. The
tribal trial court denied the motion, holding that it had juris-
diction under the relevant United States Supreme Court cases.
Plaintiff sought interlocutory appellate review of that deci-
sion in the tribal appellate court, but the tribal appellate court
issued an order denying Plaintiff’s request for appellate
review. The tribal appellate court held that, under its rules of
appellate procedure as promulgated by the tribal legislature,
it cannot entertain interlocutory appeals. It therefore dis-
missed the appeal from a nonfinal order for lack of appellate
jurisdiction and returned the case to the tribal trial court for
further proceedings.
Plaintiff then brought this action in federal district court.
Plaintiff seeks injunctive and declaratory relief against Defen-
1
The United States Attorney’s Office did prosecute Leonard Gregg, a
part-time forest fire fighter who set the Rodeo fire in an effort to seek
work. He was convicted of arson, sentenced to 120 months of imprison-
ment, and ordered to pay more than $27 million in restitution.
2
For simplicity, we refer to these sources of tribal law collectively as
“tribal regulations.”
5824 ELLIOTT v. WHITE MOUNTAIN
dants White Mountain Apache Tribe, Honorable John Doe
Tribal Judge, and White Mountain Apache Tribal Court, and
from conducting any further proceedings in tribal court. The
district court held that Plaintiff must exhaust her tribal court
remedies and granted Defendants’ motion to dismiss. The dis-
trict court dismissed the action without prejudice to its refiling
after Plaintiff has exhausted her tribal court remedies. Plain-
tiff timely appeals.
DISCUSSION
A. Appellate Jurisdiction
We have appellate jurisdiction pursuant to 28 U.S.C.
§ 1291 over the district court’s final decision that Plaintiff
must exhaust her tribal court remedies before refiling. Defen-
dants argue that the district court’s order and subsequent judg-
ment are not “final” for purposes of § 1291 because those
documents state that the action is dismissed “without preju-
dice.” According to Defendants, the present decision is not
“final” because Plaintiff eventually could refile after exhaust-
ing her tribal court remedies. We reject Defendants’ hyper-
technical reading of § 1291.
[1] The Supreme Court has explained that its
cases long have recognized that whether a ruling is
“final” within the meaning of § 1291 is frequently so
close a question that decision of that issue either way
can be supported with equally forceful arguments,
and that it is impossible to devise a formula to
resolve all marginal cases coming within what might
well be called the “twilight zone” of finality.
Because of this difficulty this Court has held that the
requirement of finality is to be given a “practical
rather than a technical construction.”3
3
A search for a blanket rule among our own cases on whether dismissals
without prejudice are “final” leads one into this “twilight zone,” as we
ELLIOTT v. WHITE MOUNTAIN 5825
Gillespie v. U.S. Steel Corp., 379 U.S. 148, 152 (1964) (quot-
ing Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546
(1949)). In turn, we have given the following practical con-
struction: “A ruling is final for purposes of § 1291 if it (1) is
a full adjudication of the issues, and (2) clearly evidences the
judge’s intention that it be the court’s final act in the matter.”
Nat’l Distribution Agency v. Nationwide Mut. Ins. Co., 117
F.3d 432, 433 (9th Cir. 1997) (internal quotation marks omit-
ted).
[2] We have no trouble concluding that the district court
intended that the order be the court’s final act in the matter.
In National Distribution Agency, we expressed frustration
with divining a court’s intent from ambiguous orders and
offered a practical suggestion: “Had the court entered a sepa-
rate final judgment subsequent to the dismissal order, we
would be confident the court intended no further action in the
case.” Id. at 434. Here, the district court followed our advice
and helpfully entered a final judgment. The second prong of
the finality test, which “focus[es] on the court’s intent,” id.,
is therefore met.
[3] The first prong of the test, which is separate from the
district court’s intent, is whether there has been a “full adjudi-
cation of the issues.” Id. at 433. Here, there has been a full
adjudication of the issue whether Plaintiff must exhaust tribal
court remedies. Unless and until Plaintiff exhausts her tribal
court remedies, there is nothing further for the district court
to do.
have given conclusory and somewhat contradictory statements on the sub-
ject. Compare, e.g., Laub v. U.S. Dep’t of Interior, 342 F.3d 1080, 1085
(9th Cir. 2003) (“A dismissal of an action without prejudice is a final
appealable order.”), with Wakefield v. Thompson, 177 F.3d 1160, 1162
(9th Cir. 1999) (“Although there are exceptions to the rule, dismissals with
prejudice generally constitute final orders, while dismissals without preju-
dice generally do not.”).
5826 ELLIOTT v. WHITE MOUNTAIN
Defendants counter that there are more issues before the
district court than just exhaustion of tribal court remedies.
They correctly point out that, if Plaintiff exhausts her tribal
court remedies and returns to district court, there will be other
issues on which the district court must rule (i.e., the merits of
whether the tribal court has jurisdiction). According to Defen-
dants, those issues remain before the district court now and
the order dismissing the action without prejudice is therefore
not final.
We reject Defendants’ strained understanding of the issues
before the district court. First, those additional issues may
eventually come before the district court, but that is far from
certain. It cannot be said that the district court will necessarily
have to rule on them (for instance, the tribal appellate court
could hold that it lacks jurisdiction or the parties could settle
their dispute). Second, those issues are plainly not before the
district court at the present time. Having dismissed the action,
the district court is powerless to rule on the issues that might
eventually come before it if a new action is filed in the future.
Third, as discussed above, the Supreme Court has directed
that appellate courts give a practical construction to the final-
ity requirement. That guidance undermines Defendants’ tech-
nical argument. We therefore turn to the merits of this appeal.
B. Exhaustion of Tribal Court Remedies
[4] “Non-Indians may bring a federal common law cause of
action under 28 U.S.C. § 1331 to challenge tribal court juris-
diction.” Boozer, 381 F.3d at 934 (citing Nat’l Farmers Union
Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 850-53
(1985)). But a plaintiff must first exhaust tribal court reme-
dies. See, e.g., Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 19
(1987); Nat’l Farmers, 471 U.S. at 856-57; see also Atwood
v. Fort Peck Tribal Court Assiniboine, 513 F.3d 943, 948 (9th
Cir. 2008) (applying the doctrine).
[5] Plaintiff acknowledges the doctrine generally but argues
that it does not apply for two reasons. First, she argues that
ELLIOTT v. WHITE MOUNTAIN 5827
she already exhausted her tribal court remedies. In the alterna-
tive, she argues that she need not exhaust tribal court reme-
dies because of an exception to the doctrine.
1. Full Exhaustion of Tribal Court Remedies
Plaintiff argues that she exhausted her tribal court remedies
because she sought—and received—a ruling by the tribal trial
court on jurisdiction and because she sought a ruling by the
tribal appellate court. Plaintiff argues that exhaustion is com-
plete notwithstanding the fact that the tribal appellate court
has not yet ruled on the merits of the jurisdictional issue
because it lacks authority to accept interlocutory appeals.
This issue is controlled by Iowa Mutual. The relevant facts
were identical: “Although the Blackfeet Tribal Code estab-
lishes a Court of Appeals, see ch. 11, § 1, it does not allow
interlocutory appeals from jurisdictional rulings. Accordingly,
appellate review of the Tribal Court’s jurisdiction can occur
only after a decision on the merits.” 480 U.S. at 12. The Court
in Iowa Mutual held that
[t]he federal policy of promoting tribal self-
government encompasses the development of the
entire tribal court system, including appellate courts.
At a minimum, exhaustion of tribal remedies means
that tribal appellate courts must have the opportunity
to review the determinations of the lower tribal
courts. In this case, the Tribal Court has made an ini-
tial determination that it has jurisdiction over the
insurance dispute, but Iowa Mutual has not yet
obtained appellate review, as provided by the Tribal
Code, ch. 1, § 5. Until appellate review is complete,
the Blackfeet Tribal Courts have not had a full
opportunity to evaluate the claim and federal courts
should not intervene.
Id. at 16-17.
5828 ELLIOTT v. WHITE MOUNTAIN
[6] Plaintiff makes policy arguments as to why the Iowa
Mutual rule should be different, but she does not, and cannot,
cite a case standing for the proposition that the Iowa Mutual
rule has been overruled.4 We therefore hold that Plaintiff has
not exhausted her tribal court remedies.
2. Exceptions to Exhaustion of Tribal Court Remedies
[7] The Supreme Court has outlined four exceptions to the
exhaustion rule: (1) when an assertion of tribal court jurisdic-
tion is “motivated by a desire to harass or is conducted in bad
faith"; (2) when the tribal court action is “patently violative
of express jurisdictional prohibitions"; (3) when “exhaustion
would be futile because of the lack of an adequate opportunity
to challenge the [tribal] court’s jurisdiction"; and (4) when it
is “plain” that tribal court jurisdiction is lacking, so that the
exhaustion requirement “would serve no purpose other than
delay.” Nevada v. Hicks, 533 U.S. 353, 369 (2001) (internal
quotation marks omitted).
Plaintiff makes brief arguments concerning the first three
exceptions, none of which is persuasive. The district court
correctly held that there is no evidence of bad faith or harass-
ment in the record. Plaintiff has failed to identify—and the
record does not reveal—any “express jurisdictional prohibi-
tion[ ]” against tribal court jurisdiction. And, as discussed
above, Plaintiff will have an adequate opportunity to chal-
lenge the tribal court’s jurisdiction in the tribal appellate
4
This court recently held that, if the tribal appellate court has a discre-
tionary interlocutory appeals process, that is sufficient for purposes of
exhaustion. See Ford Motor Co. v. Todecheene, 488 F.3d 1215, 1217 (9th
Cir. 2007) (order) (“Ford will be deemed to have exhausted its tribal reme-
dies once the Navajo Nation Supreme Court either resolves the jurisdic-
tional issue or denies a petition for discretionary interlocutory review
. . . .” ). That holding has no effect on the situation here, because Iowa
Mutual controls where the tribal court system lacks any jurisdiction over
interlocutory appeals.
ELLIOTT v. WHITE MOUNTAIN 5829
court; she simply must wait until trial is complete. Exhaustion
therefore is not “futile.”
[8] We focus on the fourth exception: whether it is “plain”
that the tribal court lacks jurisdiction. If “jurisdiction is ‘col-
orable’ or ‘plausible,’ ” then the exception does not apply and
exhaustion of tribal court remedies is required. Atwood, 513
F.3d at 948.
[9] In their unique relationship with the United States,
Indian tribes retain a certain amount of “inherent sovereign
power.” Montana v. United States, 450 U.S. 544, 565 (1981).
But the Supreme Court has “[s]tress[ed] that Indian tribes
cannot exercise power inconsistent with their diminished sta-
tus as sovereigns.” Id. For example, tribes cannot exercise
their inherent criminal jurisdiction over nonmembers. Oli-
phant v. Suquamish Indian Tribe, 435 U.S. 191, 212 (1978),
superseded by statute on other grounds as stated in United
States v. Lara, 541 U.S. 193, 205-07 (2004). The question is
murkier with respect to the exercise of a tribe’s inherent civil
jurisdiction over nonmembers. Where, as here, the nonmem-
ber is a defendant in the tribal court action, “whether tribal
courts may exercise jurisdiction over a nonmember defendant
may turn on how the claims are related to tribal lands.” Smith
v. Salish Kootenai Coll., 434 F.3d 1127, 1132 (9th Cir. 2006)
(en banc).
We begin our analysis with Montana, “the pathmarking
case concerning tribal civil authority over nonmembers.”
Strate v. A-1 Contractors, 520 U.S. 438, 445 (1997). In Mon-
tana, the Supreme Court addressed whether a tribe may regu-
late hunting and fishing by nonmembers on reservation lands
owned in fee by nonmembers (“fee lands”). 450 U.S. at 557.
The Court held that civil regulation of nonmembers on fee
lands is governed by “the general proposition that the inherent
sovereign powers of an Indian tribe do not extend to the activ-
ities of nonmembers of the tribe.” Id. at 565. But it described
two exceptions to that general rule:
5830 ELLIOTT v. WHITE MOUNTAIN
To be sure, Indian tribes retain inherent sovereign
power to exercise some forms of civil jurisdiction
over non-Indians on their reservations, even on non-
Indian fee lands. A tribe may regulate, through taxa-
tion, licensing, or other means, the activities of non-
members who enter consensual relationships with
the tribe or its members, through commercial deal-
ing, contracts, leases, or other arrangements. A tribe
may also retain inherent power to exercise civil
authority over the conduct of non-Indians on fee
lands within its reservation when that conduct threat-
ens or has some direct effect on the political integ-
rity, the economic security, or the health or welfare
of the tribe.
Id. at 565-66 (citations omitted).
The Court held that neither exception applied to hunting
and fishing regulations concerning fee lands. Id. at 566. But
the Court was clear that such regulation is permissible con-
cerning lands belonging to the tribe:
The Court of Appeals held that the Tribe may pro-
hibit nonmembers from hunting or fishing on land
belonging to the Tribe . . . and with this holding we
can readily agree. We also agree with the Court of
Appeals that if the Tribe permits nonmembers to fish
or hunt on such lands, it may condition their entry by
charging a fee or establishing bag and creel limits.
Id. at 557 (citation omitted).
Ownership status of the land also played an important role
in the Supreme Court’s decision in Strate. There, the Court
held that tribal courts lack jurisdiction over claims against
nonmembers arising out of traffic accidents on a state high-
way that passes through reservation lands. 520 U.S. at 442.
Key to the Court’s analysis was its holding that the short
ELLIOTT v. WHITE MOUNTAIN 5831
stretch of state highway that passed over reservation lands
was “equivalent, for nonmember governance purposes, to
alienated, non-Indian land.” Id. at 454 (footnote omitted). The
Court noted “that tribes retain considerable control over non-
member conduct on tribal land,” id., and expressly declined
to consider whether tribal courts would have jurisdiction over
accidents occurring on a tribal road, id. at 442.
Ownership status of the land is not necessarily dispositive.
In Hicks, the Supreme Court addressed whether a tribe “can
regulate state wardens executing a search warrant for evi-
dence of an off-reservation crime.” 533 U.S. at 358. The
Court rejected the argument that the tribe has regulatory juris-
diction over nonmembers on reservation lands owned by the
tribe simply because of that ownership status: “[T]he exis-
tence of tribal ownership is not alone enough to support regu-
latory jurisdiction over nonmembers.” Id. at 360. The Court
held that the same principles underlying the two Montana
exceptions also applied to civil regulation of nonmembers on
lands owned by the tribe. Id. The Court then balanced the
tribe’s interest in regulating activity by state wardens with the
state’s interest in investigating off-reservation crimes and held
that the state’s interest outweighed that of the tribe. Id. at 361-
65.
In responding to the concurrence’s argument that tribal
ownership of the land should have played a larger role in the
analysis, the majority stated: “[W]e acknowledge that tribal
ownership is a factor in the Montana analysis, and a factor
significant enough that it may sometimes be dispositive. We
simply do not find it dispositive in the present case, when
weighed against the State’s interest in pursuing off-
reservation violations of its laws.” Id. at 370 (alteration, cita-
tion, and internal quotation marks omitted).
We have held repeatedly that determining the scope of
tribal court jurisdiction is not an easy task. See, e.g., Smith,
434 F.3d at 1130 (“Sixteen years ago, we observed that
5832 ELLIOTT v. WHITE MOUNTAIN
‘[t]here is no simple test for determining whether tribal court
jurisdiction exists.’ The statement is no less true today.”
(alteration in original) (quoting Stock W., Inc. v. Confederated
Tribes of the Colville Reservation, 873 F.2d 1221, 1228 (9th
Cir. 1989))). Here, however, we need not make a definitive
determination of whether tribal court jurisdiction exists; we
must decide only whether jurisdiction is plausible. Atwood,
513 F.3d at 948. We conclude that tribal court jurisdiction is
plausible here.
[10] The tribe seeks to enforce its regulations that prohibit,
among other things, trespassing onto tribal lands, setting a fire
without a permit on tribal lands, and destroying natural
resources on tribal lands. The Supreme Court has strongly
suggested that a tribe may regulate nonmembers’ conduct on
tribal lands to the extent that the tribe can “ ‘assert a landown-
er’s right to occupy and exclude.’ ” Hicks, 533 U.S. at 359
(quoting Strate, 520 U.S. at 456). The tribal regulations at
issue stem from the tribe’s “landowner’s right to occupy and
exclude.” Trespass regulations plainly concern a property
owner’s right to exclude, and regulations prohibiting destruc-
tion of natural resources and requiring a fire permit are related
to an owner’s right to occupy. See Hicks, 533 U.S. at 359 (dis-
cussing a landowner’s right to occupy and exclude); Strate,
520 U.S. at 455-56 (same). Accordingly, the tribe’s ownership
of the land may be dispositive here. See Hicks, 533 U.S. at
370 (“[T]ribal ownership is a factor in the Montana analysis,
and a factor significant enough that it may sometimes be dis-
positive.” (alteration and internal quotation marks omitted));
id. at 359 (suggesting strongly that regulations concerning a
“landowner’s right to occupy and exclude” are permissible
against nonmembers).
We reject Plaintiff’s argument that the Court’s holding in
Hicks forecloses tribal court jurisdiction. The Court did hold,
in Hicks, that tribal courts lacked jurisdiction notwithstanding
tribal ownership of the land. But the crux of the Court’s rea-
soning was that the state’s strong interest in executing its
ELLIOTT v. WHITE MOUNTAIN 5833
criminal warrants concerning an off-reservation crime out-
weighed the tribe’s interest in regulating the activities of
“state wardens.” Id. at 370. The Court expressly stated that its
“holding in this case is limited to the question of tribal-court
jurisdiction over state officers enforcing state law. We leave
open the question of tribal-court jurisdiction over nonmember
defendants in general.” Id. at 358 n.2. Here, of course, Plain-
tiff cannot assert any state interest to be balanced against the
tribe’s strong interest in enforcing its regulations governing
trespass, prevention of forest fires, and preservation of its nat-
ural resources.
[11] Furthermore, the tribe makes a compelling argument
that the regulations at issue are intended to secure the tribe’s
political and economic well-being, particularly in light of the
result of the alleged violations of those regulations in this very
case: the destruction of millions of dollars of the tribe’s natu-
ral resources. See Montana, 450 U.S. at 566 (“A tribe may
also retain inherent power to exercise civil authority over the
conduct of non-Indians on fee lands within its reservation
when that conduct threatens or has some direct effect on the
political integrity, the economic security, or the health or wel-
fare of the tribe.”). Accordingly, even if we applied the two
Montana exceptions without regard to the Supreme Court’s
instruction that ownership of the land may be dispositive in
some cases, we reach the same conclusion: In the circum-
stances of this case, we cannot say that the tribal court plainly
lacks jurisdiction.5
5
It is an open question whether a tribe’s adjudicative authority is equal
to its regulatory authority. Hicks, 533 U.S. at 358. It is possible, therefore,
that the tribe may have authority to regulate a nonmember’s trespass and
destruction of natural resources yet lack authority to hale the nonmember
into tribal court. That possibility does not affect our conclusion that tribal
court jurisdiction is plausible. We need not, and do not, resolve the open
question whether tribal courts have jurisdiction to the same extent that a
tribe may regulate nonmember activity.
5834 ELLIOTT v. WHITE MOUNTAIN
CONCLUSION
We are sympathetic to Plaintiff’s concerns about defending
her actions in an unfamiliar court system. But, because tribal
court jurisdiction is plausible, principles of comity require us
to give the tribal courts a full opportunity to determine their
own jurisdiction in the first instance.
AFFIRMED.
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