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417 So.2d 703 (1982)
HAVATAMPA CORPORATION, a Florida Corporation, Appellant,
v.
McELVY, JENNEWEIN, STEFANY & HOWARD, ARCHITECTS/PLANNERS, INC., a Florida Corporation; C.A. Fielland, Inc., a Florida Corporation, Whatley Roofing & Sheet Metal, Inc., a Florida Corporation; Commercial Roof Decks of Tampa, Inc., a Florida Corporation; GAF Corporation, a Delaware Corporation; W.R. Grace & Company, a Massachusetts Corporation, Appellees.
No. 81-1950.
District Court of Appeal of Florida, Second District.
June 30, 1982.
Rehearing Denied August 4, 1982.
J. Bert Grandoff of Lawson, McWhirter & Grandoff, Tampa, for appellant.
Jon W. Zeder and Jerold I. Budney of Paul & Thomson, Miami, for appellees.
CAMPBELL, Judge.
Appellant brought this appeal from a summary judgment for appellees which *704 held that appellant's cause of action was barred by the statute of limitations as set forth in section 95.11(3)(c), Florida Statutes (1979).[1] The applicable portions of section 95.11(3)(c) provide as follows:
(3) WITHIN FOUR YEARS.
... .
(c) An action founded on the design, planning, or construction of an improvement to real property, with the time running from the date of actual possession by the owner, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his employer; except that when the action involves a latent defect, the time runs from the time the defect is discovered or should have been discovered with the exercise of due diligence... .
Appellees were the architect, contractor, subcontractors, materialmen and bonding company utilized in the design and construction of a new manufacturing facility for appellant. Appellees specifically were involved in the design and construction of the 250,000 square foot roof of the new facility. The date of actual possession or occupancy by appellant of the new facility was April 10, 1972. On that date appellant knew that the roof was leaking and so notified each of the appellees. Thereafter numerous inspections of the leaking roof were made as well as various attempts to repair the leaks. None of the attempted repairs were successful. The roof leaked more or less continuously from the day of occupancy until the present time. It was not until April of 1976 that appellant hired an independent consultant to inspect the roof. In August of 1976 that consultant reported to appellant that the cause of the leaking roof was complex and that it was not reasonably possible for appellant to know the true nature or full extent of the specific nature of the defects that caused the roof leaks. Appellant, therefore, argues that since it could not be expected to know the specific nature of the defects, they were "latent" defects within the terms of the statute, and appellant's cause of action did not accrue until it had knowledge or could reasonably be expected to have knowledge of the specific nature of the defects causing the leak. Appellant filed its complaint on August 26, 1976. We affirm the trial court's holding that section 95.11(3)(c) bars appellant's action.
On the day appellant took occupancy of the facility, it knew there was a problem with the roof. The problem has never been corrected. Appellant cannot rely on a lack of knowledge of the specific cause of the problem to protect it against expiration of the four year statute of limitations.
Appellant cites the recent case of School Board of Seminole County v. GAF Corp., 413 So.2d 1208 (Fla. 5th DCA 1982), as supportive of its position. We find that case to be distinguishable on the facts. There, the majority of our colleagues on the fifth district seemed to base their holding on a finding that the School Board of Seminole County relied on assurances by the defendant architect, after the roof problems were discovered, that they were being handled and that permanent repairs would be made under his direction. In addition it appears that the leaks were not present on occupancy but developed during the first two years following completion of construction. We reject School Board of Seminole County to the extent that it can be construed to require knowledge of the specific nature of the defect causing an obvious problem before the statute of limitations commences to run. If that was the basis of the court's holding in School Board of Seminole County, we would be required to concur with Judge Cowart's dissenting opinion which more closely parallels this court's view of the applicability of the statute of limitations. We also would not find it necessary to distinguish K/F Development & Investment Corp. v. Williamson Crane & *705 Dozer Corp., 367 So.2d 1078 (Fla. 3d DCA), cert. denied, 378 So.2d 350 (Fla. 1979), where the third district held that "people should exercise their rights within the limitations time set and that this time period should not be extended by good faith attempts to remedy a defect." Id. at 1080. We consider this sound reasoning applicable to the circumstances of this case.
AFFIRMED.
BOARDMAN, A.C.J., and RYDER, J., concur.
NOTES
[1] The court below held, and the parties never disputed, that the applicable statute was section 95.11(3)(c), Florida Statutes (1979). We, therefore, have not considered whether an earlier version of that statute may or may not have been applicable.
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STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re: J.F., L.F., and A.F. FILED
February 21, 2017
No. 16-0851 (Calhoun County 15-JA-43, 15-JA-44, & 15-JA-45) RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Father G.F., by counsel Ryan M. Ruth, appeals the Circuit Court of Calhoun
County’s August 1, 2016, order terminating his parental rights to J.F., L.F., and A.F.1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee Niezgoda,
filed a response in support of the circuit court’s order. The guardian ad litem (“guardian”), Tony
Morgan, filed a response on behalf of the children supporting the circuit court’s order. On
appeal, petitioner argues that the circuit court erred in denying him an extension of his post
adjudicatory improvement period.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.
In September of 2015, the DHHR filed an abuse and neglect petition against petitioner
and his wife that alleged that the home was filthy and unsanitary; the children suffered from
severe, chronic, and untreated head lice; there was insufficient food in the home; and the mother
was overmedicated and unable to parent the children properly due to the medication’s effects.
The petition further alleged that the parents made the eldest child, J.F., then eleven years old,
responsible for her younger siblings. The DHHR further alleged that the parents emotionally
abused J.F. by holding her responsible for Child Protective Services’ (“CPS”) intervention. The
following month, the DHHR filed an amended petition to include additional allegations of
inappropriate discipline and the children’s therapist’s observation that the children feared their
parents.
In October of 2015, the circuit court held an adjudicatory hearing, during which
petitioner admitted that he abused and neglected the children by virtue of the conditions in the
1
Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183
W.Va. 641, 398 S.E.2d 123 (1990).
1
home. Petitioner further admitted to medical neglect by failing to provide proper treatment for
the children’s lice issues and that he failed to protect the children from the effects of the mother’s
overmedication. However, petitioner contested the allegations of physical abuse. Ultimately, the
circuit court found that the parents physically abused the children.
In November of 2015, the circuit court granted the parents’ motions for post-adjudicatory
improvement periods. However, in March of 2016, the DHHR filed a motion to terminate both
parents’ improvement periods and their parental rights to the children. In April of 2016, the
circuit court held two hearings on the DHHR’s motion. The circuit court heard testimony
regarding the parent’s compliance with services from their therapist, their in-home service
provider, and the psychologist that evaluated petitioner, among other witnesses. According to the
therapist, the parents made no progress in correcting the conditions of abuse and neglect in the
home because they failed to acknowledge such abuse and neglect. Because the parents lacked
insight into the conditions, the therapist indicated that it would be impossible for them to remedy
the issues. The parents’ service provider testified that, although the parents made some progress,
they continued to deny the children’s hygiene issues. Further, according to the psychologist that
evaluated petitioner, he suffered from personality disorder with antisocial traits. The
psychologist also noted that petitioner’s statements during the evaluation were inconsistent with
information received from other sources and that petitioner was defensive in responding to tests
such that she felt petitioner was intentionally attempting to be deceitful. Based upon her
evaluation, the psychologist stated that petitioner’s prognosis for improved parenting was
nonexistent. At the conclusion of these hearings, the circuit court deferred ruling on the DHHR’s
motion.
In March of 2016, the circuit court held a status hearing regarding the DHHR’s
termination of rights motion. That same day, both parents filed motions for extensions to their
respective post-adjudicatory improvement periods. By order entered on June 21, 2016, the circuit
court terminated the parents’ improvement periods and set the matter for disposition. In July of
2016, the circuit court held a dispositional hearing and found that the parents “continue[d] to
deny that they were abusive and neglectful in their parenting.” As such, the circuit court
ultimately terminated the parents’ parental rights. It is from this order that petitioner appeals.
The Court has previously established the following standard of review:
“Although conclusions of law reached by a circuit court are subject to de
novo review, when an action, such as an abuse and neglect case, is tried upon the
facts without a jury, the circuit court shall make a determination based upon the
evidence and shall make findings of fact and conclusions of law as to whether
such child is abused or neglected. These findings shall not be set aside by a
reviewing court unless clearly erroneous. A finding is clearly erroneous when,
although there is evidence to support the finding, the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been
committed. However, a reviewing court may not overturn a finding simply
because it would have decided the case differently, and it must affirm a finding if
the circuit court’s account of the evidence is plausible in light of the record
2
viewed in its entirety.” Syl. Pt. 1, In Interest of Tiffany Marie S., 196 W.Va. 223,
470 S.E.2d 177 (1996).
Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). Upon our review, the Court finds
no error in the circuit court’s denial of petitioner’s motion for an extension of his post
adjudicatory improvement period.
Pursuant to West Virginia Code § 49-4-610(6), a circuit court “may extend any
improvement period granted pursuant to subdivision (2) or (3) of this section for a period not to
exceed three months when the court finds that the [parent] has substantially complied with the
terms of the improvement period[,]” among other findings. On appeal, petitioner argues that he
established his substantial compliance with the terms of his improvement period, as evidenced by
testimony from his in-home service provider. The Court, however, does not agree. While it is
true that petitioner’s provider testified that he made “some change” in regard to his parenting,
this testimony is insufficient to establish that petitioner substantially complied with the terms and
conditions of his improvement period. This is especially true in light of testimony from
petitioner’s therapist who stated that he made no progress in correcting the conditions of abuse
and neglect because of his “lack of ability to admit to the problems in the home” and the fact that
his lack of progress put the children at risk.
Moreover, petitioner’s in-home service provider testified that it would not be safe for the
children to return to petitioner’s care as of April of 2016. The provider also indicated that
petitioner required additional therapy before he could correct the conditions of abuse and neglect
in the home. According to petitioner, this recommendation for additional therapy supported his
request for an extension of his post-adjudicatory improvement period. However, petitioner’s
argument ignores the fact that his therapist established that his failure to acknowledge the issues
of abuse and neglect in the home resulted in a total lack of progress in therapy. We have
previously held that
[i]n order to remedy the abuse and/or neglect problem, the problem must first be
acknowledged. Failure to acknowledge the existence of the problem, i.e., the truth
of the basic allegation pertaining to the alleged abuse and neglect or the
perpetrator of said abuse and neglect, results in making the problem untreatable
and in making an improvement period an exercise in futility at the child’s
expense.
In re Timber M., 231 W.Va. 44, 55, 743 S.E.2d 352, 363 (2013) (quoting In re: Charity H., 215
W.Va. 208, 217, 599 S.E.2d 631, 640 (2004)). As such, it is clear that an extension to petitioner’s
improvement period would have been improper given his lack of progress in therapeutic
services.
On appeal, petitioner argues that he did, in fact, acknowledge his abuse and neglect of the
children and that, as a result, he was entitled to an extension of his post-adjudicatory
improvement period. The Court does not agree, as petitioner’s testimony to this issue was clearly
rebutted by testimony from both his therapist and the psychologist that evaluated petitioner. The
record on appeal is clear that petitioner provided only his own self-serving testimony in support
3
of his alleged acknowledgement of the issues of abuse and neglect. Petitioner responded that in
order to improve upon his parenting he needed to “raise [his] children properly.” He further
responded affirmatively to the question “[d]o you think you did anything wrong?” Simply put,
this testimony is insufficient to overcome the ample evidence from both petitioner’s therapist and
the psychologist that evaluated him, both of whom indicated that petitioner did not accept
responsibility for his actions. Specifically, the psychologist testified that petitioner denied that he
required services to correct his parenting and shifted the blame for his children’s lice issues to
the school system, despite the fact that the children’s school provided the children with
medication for lice that petitioner failed to apply. Further, as addressed above, petitioner’s
therapist not only testified to petitioner’s failure to acknowledge the conditions of abuse in the
home but also to the fact that this failure prevented petitioner from making any progress in
therapy.
We have previously stated that “[a] reviewing court cannot assess witness credibility
through a record. The trier of fact is uniquely situated to make such determinations and this
Court is not in a position to, and will not, second guess such determinations.” Michael D.C. v.
Wanda L.C., 201 W.Va. 381, 388, 497 S.E.2d 531, 538 (1997). While petitioner may have
testified to his alleged acknowledgment of the issues of abuse and neglect below, it is clear that
the circuit court made a credibility determination regarding that testimony based upon the
conflicting evidence from other witnesses. Ultimately, the circuit court had ample evidence upon
which to find that petitioner “continue[d] to deny that [he was] abusive and neglectful in [his]
parenting.” As such, it is clear that the circuit court did not err in denying petitioner an extension
to his post-adjudicatory improvement period.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
August 1, 2016, order is hereby affirmed.
Affirmed.
ISSUED: February 21, 2017
CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker
4
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577 P.2d 860 (1978)
Joanne Helen FRANKLIN, Appellant,
v.
The STATE of Nevada, Respondent.
No. 9601.
Supreme Court of Nevada.
April 24, 1978.
Rehearing Denied May 17, 1978.
Jeffrey D. Sobel, Las Vegas, for appellant.
Robert List, Atty. Gen., Carson City, George E. Holt, Clark County Dist. Atty., and L.J. O'Neale, Deputy Dist. Atty., Las Vegas, for respondent.
OPINION
GUNDERSON, Justice.
On appeal, appellant Joanne Franklin (formerly Wellman) raises eleven issues, one of which impels us to order a new trial, to-wit:
Are the due process rights of a defendant on trial offended, when the prosecutor not only plea bargains to obtain inculpatory testimony from a purported accomplice, by allowing him to plead guilty to a reduced charge, but also withholds the fruits of the bargain and continues the threat of full prosecution in order to assure testimony in accord with the prosecutor's vision of truth?
In such circumstances, we think, a defendant is denied due process of law within the meaning of both the Nevada and the federal constitutions.
On September 24, 1972, one Roosevelt Swift murdered William A. Wellman, father of his friend Robert Wellman, in the kitchen of the Wellman family home. Mrs. Wellman, who apparently was watching television in another room during the death struggle, reported the crime to the police. Following arrest, Swift entered plea negotiations. Under threat of a death sentence, Swift ultimately recited a version of events satisfactory to the prosecution, agreeing to testify against Mrs. Wellman. Accordingly, *861 the prosecution agreed Swift would be charged with second-degree murder only, receive credit for jail time served, and serve his remaining sentence outside Nevada, in a prison near his home. Only following Mrs. Wellman's trial and conviction, some three years later, did the state perform its side of the exchange. This June, after but five years total incarceration, Swift will be eligible for parole.
In Nevada, recognizing the dangers of accomplice testimony, our Legislature has provided: "A conviction shall not be had on the testimony of an accomplice unless he is corroborated by other evidence which in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense; and the corroboration shall not be sufficient if it merely shows the commission of the offense or the circumstances thereof." NRS 175.291(1). As presented at the original preliminary hearing, the State's case against Mrs. Wellman lacked any independent inculpatory evidence whatever. Thus, in Wellman v. Sheriff, 90 Nev. 174, 521 P.2d 365 (1974), this Court ordered the issuance of a writ of habeas corpus, without prejudice to institution of new proceedings, due to the State's failure to show probable cause to hold Mrs. Wellman for trial.
Subsequently, the State reinstituted charges, resulting in Mrs. Wellman's conviction and her sentence to life in prison without possibility of parole.[1] Therefore, on this second appeal, an enlarged record is before us, consisting not only of testimony elicited from Swift, but also evidence the State subsequently developed in an attempt to corroborate its theory of Mrs. Wellman's guilt.[2]
1. Plea bargaining to obtain testimony of an accomplice is not necessarily improper. LaPena v. State, 92 Nev. 1, 544 P.2d 1187 (1976). However, it has been held "that a defendant is denied a fair trial if the prosecution's case depends substantially upon accomplice testimony and the accomplice is placed, either by the prosecution or the court, under a strong compulsion to testify in a particular fashion." People v. Medina, 41 Cal. App.3d 438, 455, 116 Cal. Rptr. 133, 145 (1974). The accomplice witnesses in Medina had been granted immunity expressly conditioned upon the promise *862 that their testimony "not materially or substantially change" from prior tape-recorded statements given to law enforcement officials. Ibid: 116 Cal. Rptr. at 141. Under such an arrangement the court found the defendants had been denied "any effective cross-examination" and "deprived of the fundamental right to a fair trial." Ibid.[3]
In so holding the California court recognized the accepted practice to permit an accomplice witness to plea bargain only where he is willing to render a full, fair, and accurate account of the facts out of which the charge arose. See People v. Green, 102 Cal. App.2d 831, 228 P.2d 867 (1951); Harris v. State, 15 Tex.Cr.App. 629 (1884); Rex v. Robinson, 70 D.L.R. 755, 30 B.C. 369 (1921); see also United States v. Ford, 99 U.S. 594, 25 L.Ed. 399 (1878); cf. State v. Quinn, 142 S.W.2d 79 (Mo. 1940). However, such testimony becomes "tainted beyond redemption" where the accomplice is placed under compulsion to testify in a particular fashion in order to receive the benefits of his plea bargain. Green, citing above, 228 P.2d at 872.
We agree with the Medina rationale, deciding that its application may not be limited solely to situations where immunity is expressly conditioned on specific testimony. As a matter of logic, if the circumstances of the plea bargain would reasonably cause the alleged accomplice to believe he must testify in a particular fashion, then a less explicit arrangement also violates the defendant's due process rights.[4]
In Rex v. Robinson, cited above, the British Columbia Court of Appeals stated:
"It is obvious that if the witness . . get[s] the impression from the Court that unless he told the same story to the Court as he did to the police, he would be executed, then his testimony was tainted beyond redemption and could not, in a legal sense, be weighed by the jury, because the witness was no longer a free agent and there was no standard by which his veracity could be tested or estimated. This is not merely a matter going to the credibility of the witness, but something fundamentally deeper, viz., that by the action of the Court itself the witness was fettered in his testimony and put in so dire a position that the value of his evidence was not capable of appraisement, the situation being reduced to this, essentially, that while at the outset he was adjured to give his evidence freely and fully, yet later on he was warned that if it was not the same as he had already told the police he would be executed. Such a warning defeated the first object of justice, because what the witness should from first to last have understood was that, at all hazards, he was to tell the truth then in the witness box, however false may have been what he had said before in the police station." Ibid. at 761.
The court in Robinson merely inferred that the promised pardon depended upon the testimony being "the same as he had already told the police." Looking objectively at the facts of the instant case, we are led to the same conclusion.
The prosecution did not permit Swift to plead guilty until after his testimony was given at the preliminary hearing and trial. The prosecution obviously had so little faith in Swift's veracity, and willingness to implicate the defendant, that it felt constrained to use the plea bargain as the "fee" to induce his cooperation. Under these circumstances, it cannot be assumed that Swift's testimony was full, fair and accurate. Obviously, such tactics must be extremely effective to elicit testimony the *863 prosecutor desires.[5] However, a "prosecutor's primary duty is not to convict but to see that justice is done." SCR 181(3). In our view, justice is not served where the prosecutor must simultaneously purchase and coerce testimony in order to obtain a conviction which might not be achieved with trustworthy evidence.
We note that "[i]t is unprofessional conduct to compensate a witness ... for giving testimony." A.B.A. Standards on "The Prosecution Function," Standard 3.2, 81 (1971). Cf. People v. Sepeda, 66 Cal. App.3d 700, 136 Cal. Rptr. 119 (1977). A lawyer "should avoid any suggestion calculated to induce any witness to suppress evidence or deviate from the truth." SCR 188(1). Under our system of jurisprudence, if a defendant is to be presumed innocent, then any procedure which commits the prosecution to a chosen theory of guilt, necessarily precludes further inquiry into who may actually be guilty. By bargaining for specific testimony to implicate a defendant, and withholding the benefits of the bargain until after the witness has performed, the prosecution becomes committed to a theory quite possibly inconsistent with the truth and the search for truth. We deem this contrary to public policy, to due process, and to any sense of justice.[6]
2. The error committed by using the alleged accomplice's "tainted" testimony at the former trial, however, should not preclude his testimony on retrial. Swift has now been permitted to plead guilty. Thus, undue compulsion to testify in a particular way has been removed. If the prosecution believes it can win a fair trial, then Swift should now be given an opportunity *864 to testify fully and fairly. To insure this result, we should free the witness of any coercion other than his oath, and obviate any other possible prejudice to the defendant. To this end, we order that Swift's prior testimony, obtained contrary to due process of law, will be inadmissible either for impeachment purposes, for substantive evidence as a prior inconsistent statement, or in any future perjury prosecution. This is the approach taken in California, not to protect the witness, but to see that justice is served. See Medina, cited above, 116 Cal. Rptr. at 151.
3. In conclusion, we note that any limitation this decision imposes upon the practice of plea bargaining, in order to assure due process and respect for our court system, is neither oppressive nor confining. It deprives prosecutors of no expedient they should be permitted to employ. After all, if a prosecutor believes an alleged accomplice is telling the truth, then at least three inducements to relate that truth at trial can be expected to remain, even though the accomplice is first permitted to plead guilty. The first of these is the testimonial oath, backed with sanctions for perjury, which is what legally compels candor from other witnesses. The second is the court's contempt power. The third is hope of additional future clemency. If the prosecution deems its prospective witness so totally untrustworthy that these conventional inducements to truth are insufficient, then in our view the gas chamber or lengthy imprisonment should not be brandished as an additional sanction, in order to achieve a conviction for which there is otherwise no sufficient evidence.
Upon retrial of this cause, other assigned errors may well not reoccur in a comparable factual context, and are therefore not considered.
Reversed and remanded.
BATJER, C.J., and THOMPSON, J., concur.
MANOUKIAN, Justice, dissenting, with whom MOWBRAY, Justice, joins:
I am not in accord with the views expressed by the majority and cannot acquiesce in the reversal. The effect of the majority opinion is that should the State decide to institute a third prosecution of appellant, it must hope for the continued cooperation of accomplice Swift within the framework of gratuitous limitations set forth by the majority proscribing the use of his prior testimony and further expend, in my view, unnecessarily, substantial public funds in a protracted trial in an effort to again prove appellant's guilt.
Essentially, appellant charges error premised upon the fact that Swift, the admitted slayer, was permitted to plead to a charge of second-degree murder in exchange for testimony against her and that such plea was permitted only after his testifying. Appellant cites People v. Medina, 41 Cal. App.3d 438, 116 Cal. Rptr. 133 (1974), for the proposition that such prosecutorial tactics violate a defendant's right to due process. Medina, however, is easily distinguishable from our facts. There the witness was granted absolute immunity on the express condition that he testify precisely in accordance with the prior statements given to police. In that context, the district court of appeals justifiably held that "a defendant is denied a fair trial if the prosecution's case depends substantially upon accomplice testimony and the accomplice witness is placed, either by the prosecution or the court, under the strong compulsion to testify in a particular fashion." Id. 116 Cal. Rptr. at 145.
In the instant case, there was no such express condition compelling specific recitation of testimony. The majority attempt to fabricate compulsion by stating that "[u]nder threat of a death sentence, Swift ultimately recited a version of events... ." Such speculation is without support from the record. Appellant equally was under threat of a death sentence but instead received life imprisonment. This Court should not attempt to gauge the length of incarceration the Parole Commission and our correctional authorities might set for Swift. He is potentially imprisoned *865 for life and there exists no basis to contend that the sentences of Franklin and Swift were so disproportionate as to shock the conscience at such violation of due process. Compare, Farmer v. Sheriff, 93 Nev. 535, 569 P.2d 939 (1977).
There is a marked distinction between compulsion to testify as instructed and a reduction of charges conditioned upon a person's testifying fully and honestly pertaining to the facts surrounding the crime. Examination of the cases cited by the majority finds them clearly distinguishable on their facts. Each involved either absolute immunity or ultimate expungement negotiated for promised testimony. See, e.g., People v. Green, 102 Cal. App.2d 831, 228 P.2d 867 (1951). The existence of the bargain or the expectation of leniency affects the credibility of the testimony not its admissibility. State v. Quinn, 142 S.W.2d 79 (Mo. 1940); accord, Darden v. United States, 405 F.2d 1054 (9th Cir.1969); Diaz-Rosendo v. United States, 357 F.2d 124 (9th Cir.1966); United States v. Rainone, 192 F.2d 860 (2nd Cir.1951); People v. Bowley, 59 Cal.2d 855, 31 Cal. Rptr. 471, 382 P.2d 591 (1963). "The fact that [Swift] may have hoped for leniency affected only the weight which the jury should accord his testimony." Diaz-Rosendo, supra, 357 F.2d at 130.
What occurred here is little different from a trial court deferring the imposition of sentence after accepting a plea pending the defendant's giving the bargained-for testimony. Such court practice has received general judicial approval. See, e.g., United States v. Vida, 370 F.2d 759 (6th Cir.1966). Here, the full plea bargain was disclosed to the jury, emphasized on cross-examination, argued as an issue of accomplice credibility, and ultimately the subject of jury instructions.[1]Cf. Darden, supra; Diaz-Rosendo, supra; Minkin v. United States, 383 F.2d 427 (9th Cir.1967); United States v. Marchese, 341 F.2d 782 (9th Cir.1965).
I remain unimpressed in this factual context that the use of testimony offered by an accomplice unpled and unsentenced deprives a defendant of due process. Neither am I here disposed to establish yet another technicality in criminal procedure hitherto unknown to Nevada criminal jurisprudence, particularly so where the sentence of the defendant and the accomplice are not too disparate, the testimony of the accomplice is sufficiently credible and supported by other substantial evidence. This is especially true in view of what I glean from our Legislature's then intent to treat the initiator of a contract in such willful, deliberate, premeditated, and vicious homicides as primarily culpable.
Swift's testimony given as early as the preliminary examination and throughout all proceedings, including the trial, was quite consistent and was a reiteration of his prior video tape statements made to the police and at least one other person prior to his arrest. The statements initially given to the police preceded any offer of concessions by the authorities.[2] This testimony thereby achieved a high degree of credibility.
*866 The two young children of appellant provided corroborative evidence supporting Swift's testimony. Not only did their testimony parallel Swift's version of the facts, but the combined testimony of all three witnesses was markedly sharp in contrast to appellant's discrepant statements. Appellant originally told police that someone had broken into the home, although there was no indication of a forced entry. She stated that she had seen no one nor had she heard any yelling or scuffling in the kitchen where her husband was murdered. Later, in the presence of police officers, she told a neighbor that her husband was stabbed by the black man who had been "hanging around" the house for several days. When questioned by police about her statement, she denied any knowledge of the black man, although Swift's employers testified that he received a number of phone calls after the homicide from an adult female identifying herself as "Mrs. Wellman," appellant's then name.
Her children, however, testified that on the night of the murder a black man came to the home and talked with appellant before going into the kitchen to kill their father. The children further testified that they heard sounds of fighting emanating from the kitchen and heard their father calling for help from their mother. They stated that they wanted to go render assistance to their father but that appellant held them on the couch and continued to watch television. The children saw the black man leave through the front door and testified that their mother then called the police. After adamant denial, appellant eventually admitted acquaintance with Swift. Such fabricated and contradictory statements alone may constitute corroborative evidence. People v. Santo, 43 Cal.2d 319, 273 P.2d 249 (1954); People v. Simpson, 43 Cal.2d 553, 275 P.2d 31 (1954).
Confronted with this substantial evidence, still, my brethren feel that appellant's right to due process was offended. While I agree here with the majority that "a court should not accept a negotiated plea of guilty which would not serve the public interest," it seems in the best interests of the public, however, to convict two guilty coconspirators rather than merely one, possibly none at all. Prosecutorial etiquette, assuring that "justice is done," SCR 181(3), would demand nothing less.
In LaPena v. State, 92 Nev. 1, 6, 544 P.2d 1187, 1190 (1976), this Court held that although the accomplice's "participation in these crimes may have warranted a more serious charge than second-degree murder, plea bargaining is permissible." Thus, grants of immunity are generally permissible "[u]ntil legislatively [or otherwise] forbidden." Id. at 6, 544 P.2d at 1190. See also, Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). This is not the case for such prohibition. In the instant case, I observe no compulsion for rehearsed testimony effected by negotiation and consequently find no error. I hasten to caution, however, that if circumstances in future cases are any less cogent than those presently before the Court, I would not hesitate to remand for new trial despite considerations of time, convenience, expense, and unavailability of witnesses or evidence.
I would affirm the judgment of conviction.
MOWBRAY, J., concurs.
NOTES
[1] By the time Mrs. Wellman was sentenced on August 17, 1976, it had come to appear that Nevada's mandatory capital punishment provisions for "contract murder" were constitutionally impermissible, and that the facts asserted against her and Swift would constitute first degree murder only, with a maximum punishment of life without possibility of parole. See Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976).
[2] On oral argument of this appeal, the prosecutor could not explain why the evidence which the State now contends "corroborates" Mrs. Wellman's guilt was not presented during her first prosecution. However, Mrs. Wellman's counsel tendered this view:
"Defense counsel: Well, nobody really, I don't think detected these [statements] to be against the mother when they were made. Again, this isn't a matter of record, but they interviewed everybody that night, and the court seeks glimpses of the interviews of Billy and Melissa Wellman and the defendant, all of which were conducted on the night of the murder, all voluntarily at the police station. Now, those were not considered at the time to be sufficiently inculpatory that anybody was arrested as a result of it. They were not considered to be significant enough to even be introduced at the first preliminary hearing. Later, down the line, after this case had been thrown out as violative of the accomplice corroboration rule, then for the first time in the second preliminary hearing, come in these earlier statements and the statement of the defendant. The prosecution didn't even think it to be of sufficient importance to introduce them at the first preliminary hearing."
From the record, this court cannot determine why not even a prima facie case of corroboration was presented during the initial prosecution, if indeed the prosecutor entered his plea bargain with Swift on the basis of the "corroborative evidence" now tendered. Thus, this case demonstrates the potential for injustice which is inherent in selling an admitted felon leniency, in order to buy testimony against another person whom the Constitution presumes innocent, but who nonetheless has been tried and found guilty in the prosecutor's mind. Obviously, a danger exists that a prosecutor may later seek to vindicate his bargain by re-structuring as "corroboration" facts which, as originally and more objectively perceived in the context of events, did not seem to have such inculpatory quality.
[3] To allow prosecutors to enter such arrangements would also seem to vest them, in any given case, with power to enter an agreement calling upon an alleged "accomplice" to disregard his or her oath if need be, to avoid execution or to obtain other bargained-for penal consideration.
[4] Obviously, too, no rational distinction may be drawn between the purchase and coercion of testimony as in Medina, where full immunity was the price, as contrasted to the instant case, which involved drastic reduction of the legally appropriate charges coupled with the threat of maximum prosecution.
[5] The prosecutor's purpose is not only inferable from his actions, but, in this case, apparently was candidly acknowledged by the prosecutor himself. Defense counsel filed affidavits in support of Mrs. Wellman's motion for new trial, reflecting that (1) Swift believed before testifying at trial that his "deal" depended upon his incriminating Franklin; and (2) the prosecutor admitted he would not let Swift plead and complete his "deal" until after implicating Franklin at trial because he wanted "to keep a hammer over Swift." The prosecution made no attempt to controvert these averments. Indeed, the record shows that when the court heard Mrs. Wellman's motion for new trial, the prosecutor stated there was no need for defense counsel to call his witnesses to the stand, conceding: "I think that basically the affidavits state about what came up during the trial... ."
The prosecution has also acknowledged that, had Swift not incriminated Mrs. Wellman, the State would have pursued him for the maximum available penalty, rather than allowing him his agreed "deal." At oral argument, the following colloquy took place:
"Prosecutor: If he testified that he did not commit the murder for another person, if he testified that he committed the murder at his own instance, it would be an entirely different situation.
Court: And you would have pursued him for first degree murder, wouldn't you?
Prosecutor: Because under that situation he would have been culpable for first degree murder.
Court: Well under any circumstance, he would have been guilty of first degree murder, correct?
Prosecutor: That is correct. It was a question of whether we let the greater guilty party escape or whether we find both parties guilty, which is
Court: Very well. Well, if you would contain yourself, and not give me your moral reasons, but simply give me the answers. You are telling me that you would have pursued him for first degree murder. Correct?
Prosecutor: Had he testified that truthfully that he killed Mr. Wellman on his own instance, yes."
[6] Quite aside from due process concerns, in the manual on Nevada Criminal Justice Standards and Goals (1977), it is recommended that a court should not accept a negotiated plea of guilty which "would not serve the public interest." Ibid., Standard 3.7(10), at 167. A plea does not "serve the public interest if it: . . depreciates the seriousness of the defendant's activity or otherwise promotes disrespect for the criminal justice system;" ... or "would result in a conviction for an offense out of proportion to the seriousness with which the community would evaluate the defendant's conduct upon which the charge is based." Ibid. Here, the accomplice was given an extremely lenient sentence on a capital offense, in exchange for his testimony. It therefore may be questioned whether any court should have accepted his negotiated plea in light of the seriousness of his admitted crime. Of course, if the court should have rejected the plea bargain, then the prosecutor had no right to make it in the first instance.
[1] Instruction No. 15 read in part: "In determining whether an accomplice has been corroborated, you must first assume the testimony of the accomplice has been removed from the case. You must then determine whether there is any remaining evidence which tends to connect the defendant with the commission of the crime. If there is not such independent evidence which tends to connect the defendant with the commission of the offense, the testimony of the accomplice is not corroborated."
Instruction No. 16 read in part: "Apart from the issue of corroboration, it is further the law that the testimony of an accomplice ought to be viewed with suspicion and caution. This does not mean that you may arbitrarily disregard such testimony, but you should give to it the weight to which you find it to be entitled after examining it with care and caution and in the light of all the evidence in the case."
[2] During trial, the following exchange between Deputy District Attorney Koot and witness Swift occurred.
Direct Examination by Mr. Koot:
"Q. And what if in fact were the negotiations entered between you and through Mr. Beatty, your attorney, and the District Attorney's office?
A. . . .
Q. But that was done after you gave the video tape statement; was it not?
A. Yes, sir.
Q. In the video tape statement, did you relate basically what you have related to the jury today?
A. Basically, yes, sir.
Q. Now, at the time you did give that video statement to the police here in Las Vegas, had any promises been made to you?
A. No, sir, no promises."
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408 So.2d 292 (1981)
DESIGN & CORROSION ENGINEERING, INC., Plaintiff-Appellee,
v.
PIGGLY WIGGLY OF MANSFIELD, INC., Defendant-Appellant.
No. 14717.
Court of Appeal of Louisiana, Second Circuit.
December 7, 1981.
*293 Wiener, Weiss, Madison & Howell by John M. Madison, Jr., Shreveport, for defendant-appellant.
Rothell & Cohn, Ltd. (A Professional Law Corp.) by David A. Rothell, Mansfield, for plaintiff-appellee.
Before HALL, MARVIN and FRED W. JONES, Jr., JJ.
FRED W. JONES, Jr., Judge.
Plaintiff contractor sued a defendant property owner to recover the total amount allegedly due under a contract involving the asphalt overlay of a parking lot and incidental work. From a judgment in favor of plaintiff as prayed for, defendant appealed, contending that the trial judge erred in:
(1) Holding that plaintiff substantially performed its obligations under the contract, rather than limiting recovery to quantum meruit.
(2) Failing to reduce the amount of plaintiff's recovery by the sum proven necessary to perfect or complete the work.
(3) Finding, alternatively, that use of the parking lot by defendant constituted acceptance of the work, thus entitling plaintiff to recover the full contract price.
We affirm.
In June 1980 plaintiff and defendant entered into a written contract under which plaintiff was to fill in pot holes, sweep and overlay with asphalt cement defendant's grocery store parking lot in Mansfield for a contract price of $23,112. A subsequent agreement concerning additional work increased that total contract price to $24,512. Work under the contract commenced on June 10, 1980 and was purportedly completed a week later.
Defendant refused to pay any part of the contract price, contending that plaintiff's work was totally unsatisfactory. Consequently, plaintiff filed suit for $24,512. Defendant answered, denying owing plaintiff anything, and reconvened for $340.32 paid to engineers to conduct tests with reference to plaintiff's work. Trial was had on February 12, 1981.
In a written opinion the trial judge concluded that, although there were deficiencies in plaintiff's work, these were not of sufficient seriousness to prevent a finding of substantial performance of its contractual obligations; that defendant failed to prove either the extent of the claimed defects *294 or what it would cost to cure them; and that, even if the cost of remedying the defects had been proven, defendant was barred from recovering that cost because it had accepted the contract work.
As acknowledged by the parties, the written agreement involved in this litigation is a building contract as defined by Louisiana Civil Code Article 2756[1]. Consequently, Louisiana Civil Code Article 2769[2] contains the basic applicable law.
According to the consistent jurisprudential interpretation of Article 2769, substantial performance of a building contract entitles the contractor to recovery under the contract. Whether there has been substantial performance is a question of fact. Among factors to consider in determing substantial performance are the extent of the claimed defects or incomplete work, the degree to which the purpose of the contract is defeated, the ease of correction, and the use or benefit to the owner of the work performed. Airco Refrigeration Service, Inc. v. Fink, 242 La. 73, 134 So.2d 880 (1961); Lane Wilson Co., Inc. v. Gregory, 322 So.2d 369 (La.App. 2d Cir. 1975); Neel v. O'Quinn, 313 So.2d 286 (La.App. 3rd Cir. 1975); Florida Ice Machine Corp. v. Branton Insulation, Inc., 290 So.2d 415 (La.App. 4th Cir. 1974); Maloney v. Oak Builders, Inc., 224 So.2d 161 (La.App. 4th Cir. 1969).
Where there has been substantial performance of the contract, the remedy of an owner who complains of defective or incomplete work is to prove (a) the existence of the defects or omissions and (b) the cost of repairing the defective work or completing the unfinished work. If the owner discharges his burden of proof, recovery by the contractor of the total contract price will be reduced by the cost of correcting or completing the work. Airco Refrigeration Service, Inc. v. Fink, supra; Neel v. O'Quinn, supra; Florida Ice Machine Corp. v. Branton Insulation, Inc., supra.
Defendant argues that plaintiff's principal obligation under the contract was to overlay the parking lot with a 1½ inch layer of asphalt; that tests revealed the average thickness of the asphalt actually laid to be 1.36 inches; and that loose gravel, loose joints and rough spots on the parking lot evidenced defective workmanship. Because of this, defendant contends that plaintiff did not prove substantial performance of its contractual obligations.
J. R. Hunter, an employee of plaintiff who had been doing asphalt work for about 20 years, negotiated the contract on behalf of plaintiff, was in charge of the project and actually operated a machine which "rolled out" the asphalt on the surface encompassed by the contract. Hunter understood that under the contract he was to "patch all the holes ... sweep the lot with a sweeper, and clean it up and lay an inch and one-half asphalt." The area to be covered, including an access road, measured 5478 square yards. An industrywide "rule of thumb" calculated that, for a 1½ inch overlay, one ton of asphalt should cover an area of 12.12 square yards. Applying this formula to the area in question, something less than 500 tons would have been required. Hunter testified that, in fact, he applied 528.54 tons of asphalt on defendant's parking lot and access road.
Hunter further stated that, because certain areas of the parking lot were in good condition, he was requested by defendant's president, Thompkins, to take some of the asphalt intended for those areas and use it on a back access road which had been worn down by heavy delivery trucks. When this was done, asphalt placed on the access road was four or five inches thick in places.
According to Hunter, Thompkins was leaving town a day or so before the job was completed and offered at that time to pay *295 him the contract price. Hunter refused to accept the payment, suggesting that Thompkins wait until the job was completed.
Hunter testified that he inspected the parking lot on the morning of the trial and found it was "holding up real good, was real serviceable ..."
Mukesh Patel, a certified asphalt concrete technician employed by a Shreveport engineering laboratory, testified that at plaintiff's request he took from defendant's parking lot (including both old and new) a core sample of asphalt which tested 2¼ inches in thickness. Patel explained that the generally accepted method in the asphalt business for determining whether the required amount of asphalt has been applied is by use of a total tonnage criterion because:
"... when you overlay any kind of existing surface, and if they call for an inch and a half or two inch you are not going to have an inch and a half all the way down every place of the parking lot, because you have already got the existing surface, and you have to follow your contour and level it ... so when you overlay that's why it doesn't come out an inch and a half all the time ..."
Defendant's president, Thompkins, testified that during the course of the asphalt work he discussed with Hunter certain deficiencies in the work, such as areas that were not level and loose rocks. Hunter allegedly replied that these problems would be resolved once "traffic gets on it and the sun hits it ..." Thompkins admitted offering to pay Hunter on the last day of the project because he was leaving town on vacation, but Hunter told him "not worry about it because they were not through."
Thompkins stated that, upon returning from his vacation, he noticed big rocks coming up in the parking lot; areas around light poles that had not been compacted; and other areas that did not have a sufficient layer of asphalt. When he complained about these problems to plaintiff's president, the latter sent a crew to sweep the lot but this "just compounded the problem because when the rocks were swept off it just left holes." Thompkins then retained an engineering firm to test the thickness of the asphalt layer applied to his parking lot by plaintiff.
Thompkins conceded that the parking lot overlaid by plaintiff had been used by his customers seven days a week during the period between June, 1980 and February 12, 1981, the date of the trial. There was no evidence that defendant had any remedial work done to the parking lot. The record contains no photographs depicting the condition of the parking lot surface either after purported completion of the job or at the time of the trial.
Willis Brown, an officer of B.S.T. Testing, an engineering firm, stated that his firm was retained by defendant to obtain random core samples of asphalt from its grocery store parking lot to determine the thickness of the asphalt layer applied by plaintiff. According to Brown, the firm took eleven core samples which, upon testing, revealed an average thickness of 1.36 inches. The following pertinent colloquy took place between plaintiff's counsel and Brown:
"Q. And, of course, as it clearly reflects some were somewhat less than average and some were somewhat greater than average, is that right?
A. Yes, sir.
Q. Would you agree that if we went out today and took eleven different core samples in eleven different spots from the ones which you extracted the samples, it is very likely that we would come up with a different average than you got, is that correct?
A. Yes, sir.
Q. As a matter of fact you could run a great many tests and come up with different results every time, is that right?
A. Right."
William Bryant, who had been in the asphalt paving business a number of years, was called to testify by defendant. Bryant *296 stated that he examined the parking lot in question at the request of plaintiff's president. He found "a little bit of ravelling in two or three of the joints out front with some rocks showing." His general assessment of the job was that "it wasn't real bad and it wasn't real good, I mean, it still needed a little touch up done to it." Based upon a common industrywide use of 110 pounds of asphalt per square inch, Bryant calculated that roughly 456 tons of asphalt should have adequately covered the area involved here.
Bryant had told Thompkins that he would charge around $11,000 to bring the job up to his expectations. Bryant explained at the trial that "these figures were all verbal and off the top of our heads and so forth for a repair of the rough edge that we saw that day and a seal coat over the entire parking lot ..." It was conceded that seal coating was not in plaintiff's contract.
Queried concerning the variance in thickness found in the random core samples of the asphalt on the parking lot, Bryant expounded:
"Well, this would be due grade. This is normal on an overlay parking lot. It says here an inch and a half, but it should have been written out maybe as an average of an inch and a half, because you have a lot that is already there and sunk and wavy and what have you, it is not going to be true to grade, and then when you come in and overlay it with a machine it carries a true plane and when it goes across the top of a bump here it will be thinner here than it will be on the other side of that bump, and all over that lot you liable to find some places out there that has two inches and some places an inch you know."
Leland Carter, an expert in the asphalt construction business employed by a Shreveport engineering firm, at Thompkins' request examined the B.S.T. Testing report and visually inspected the parking lot. He testified that "there were several joints that looked like they were in exceedingly bad shape and they would have to be either cut out and there were some areas that would need to be patched, and certain areas probably needed an additional overlay on it."
Questioned concerning the cost of remedial work, Carter replied that he gave Thompkins a "ballpark figure" because "probably the cheapest way to bring that remedial measure would be a complete overlay of the lot which would run about $19,000." This recommendation was verbal, Carter explained, because they "just talked more or less in general terms."
Our review of the record leads us to the conclusion that the trial judge was not clearly wrong in the fact-finding that plaintiff had substantially performed the contract. As explained by Patel and Bryant, and admitted by Brown, the testing of core samples revealing an average asphalt thickness of .14 inch less than the stipulated 1½ thickness did not in itself represent a defect in view of the impossibility of achieving a uniform thickness when overlaying an existing surface. On the other hand, the evidence was unrefuted that plaintiff exceeded the accepted industry formula in applying the tonnage of asphalt generally recognized as necessary to overlay the area in question to a thickness of 1½ inches.
Repair of the two or three loose joints appeared to require only minor remedial work. Use of the parking lot by defendant's customers for some seven months between plaintiff's purported completion of its work and the trial date indicated rather conclusively that the purpose of the contract was accomplished to the manifest benefit of defendant.
Finding that there was substantial performance of the contract by plaintiff, the next question is whether defendant proved the existence of defects or omissions and, if so, proved the cost of correcting the defects or completing the unfinished work. As previously noted, defects in the job appeared to consist of several joints which were unravelling and some loose rocks. However, we agree with the trial judge that defendant did not prove with the required exactness the cost of repairing these *297 defects. Carter's "ballpark" figure of $19,000 obviously contemplated a virtual redoing of the entire projectthe necessity of which was ruled out by the preliminary finding of substantial performance. On the other hand, Bryant's "off the top of the head" estimate of $11,000 included seal coating which was not required by plaintiff's contract.
Contrary to appellant's argument, this evidence was insufficient, not because it involved "estimates", but because it did not purport to directly address with any degree of precision the nature of the work contemplated to correct the proven deficiencies.
In summary, defendant did not discharge its burden of proving the sum by which plaintiff's recovery of the contract price should be reduced. Therefore, the trial judge was correct in holding that plaintiff was entitled to recover the full contract price.
This disposition of the foregoing legal issues pretermits the necessity of our considering the correctness of the trial judge's alternative finding that defendant was barred from recovery for cost of curing the defects (even if proved) because it accepted the work performed under the contract.
For the reasons set forth, we affirm the judgment of the district court, at appellant's cost.
NOTES
[1] Art. 2756.
To build by a plot, or to work by the job, is to undertake a building or a work for a certain stipulated price.
[2] Art. 2769.
If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract.
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644 P.2d 26 (1982)
George CALDWELL and Hattie L. Caldwell, Petitioners,
v.
The DISTRICT COURT In and For the CITY AND COUNTY OF DENVER, State of Colorado, The Honorable Henry E. Santo, one of the Judges thereof, Respondents.
No. 82SA7.
Supreme Court of Colorado.
April 19, 1982.
*27 Roger T. Castle, Denver, for petitioners.
Madden & Strate, P. C., Trevor J. MacLennan, Wheatridge, Hall & Evans, Raymond J. Connell, Denver, for respondents.
*28 LOHR, Justice.
In this original proceeding pursuant to C.A.R. 21, we directed the Denver District Court to show cause why the petitioners' motion to compel discovery of certain documents possessed by Bruno Weinschel, The Hertz Corporation (Hertz), and their attorney, Ronald Hill, should not be granted. We conclude that the trial court erred in summarily denying the requested discovery and so make the rule absolute.
I.
The petitioners, George and Hattie Caldwell, brought this action in Denver District Court, contending that the defendants, Hertz, Hill, and Weinschel, fraudulently concealed information and misrepresented facts in an earlier personal injury action brought by the Caldwells, with the result that summary judgment for Weinschel was improperly granted and Hertz, as Weinschel's insuror, was unjustly insulated from payment of damages for the Caldwells' injuries. The petitioners' efforts to obtain discovery of information bearing on their claim of fraud have resulted in the issues now before us. A rather detailed exposition of the facts is necessary to an understanding of the questions that we must resolve.[1]
The present action stems from an automobile accident on December 5, 1974, in which a car carrying the Caldwells was struck by a second automobile owned by Hertz. The Hertz car had been rented by Bruno Weinschel, and was being operated by Werner Baumgart at the time of the accident. Weinschel was not in the car with Baumgart when the mishap occurred.
Baumgart and Weinschel had travelled together from the East Coast to Colorado for a skiing vacation. Weinschel had rented the Hertz car in order to provide transportation from the Denver airport to the resort community of Vail, Colorado. After arriving in Vail, it became necessary to return to Denver to pick up two women who were joining Baumgart and Weinschel for their skiing holiday. Baumgart departed alone for this purpose, picked up the women at Stapleton Airport, and was involved in the auto accident while returning to Vail on Interstate 70.
On August 14, 1975, the Caldwells brought a negligence action against Baumgart and Hertz in the Denver District Court (Action No. C-57586). Hertz retained attorney Ronald Hill to represent its interests and those of Baumgart. Shortly thereafter, the Caldwells stipulated that Hertz be dismissed as a party, without prejudice.
On January 23, 1978, with the permission of the court, the Caldwells added Bruno Weinschel as a defendant in the negligence action, claiming that Weinschel was vicariously liable for Baumgart's negligence on the theories of agency and joint enterprise. Hertz again turned to Hill, this time for representation of Weinschel. Hill filed a motion for a summary judgment dismissing Weinschel from the action. On October 17, 1978, the motion was granted.
The Caldwells proceeded with their action against Baumgart, which was set for trial on August 27, 1979. On August 22, 1979, the trial court granted Hill permission to withdraw as counsel for Baumgart due to his inability to locate Baumgart and prepare a defense. On August 30, 1979, the Caldwells obtained a judgment against Baumgart, which awarded damages of $74,989.86 to Hattie Caldwell and $20,451.78 to George Caldwell.
As judgment creditors, the Caldwells served a writ of garnishment on Hertz, contending that Hertz was liable for their damages as Baumgart's insurer. Hertz denied any obligation to pay the judgment. In the course of the garnishment action, the Caldwells' counsel was allowed limited discovery into the files of Hertz and its attorney Hill concerning the Baumgart action. Review of these documents led the Caldwells' counsel to believe that Hertz, Weinschel, and Hill had committed fraud in defending the Caldwell personal injury action.
*29 Consequently, a new action was filed in the Denver District Court against Hertz, Hill, and Weinschel (defendants), alleging fraud and civil conspiracy (No. 80-CV-3184). In the first claim for relief, the Caldwells alleged that the defendants knowingly made false representations and withheld material information concerning the presence of a joint venture or agency relationship between Baumgart and Weinschel at the time of the car accident in December 1974. Specifically, they alleged that in the summer of 1975 Hill and Hertz were aware of a statement by Baumgart that the purpose of Baumgart's trip to Denver was to transport two women to Vail to join Weinschel and Baumgart for their skiing vacation, and that Baumgart made this trip at Weinschel's request and with his consent. The complaint also alleged that Hertz and Hill had received letters from Baumgart stating that "[the Hertz car] was driven by me with the full consent of the lessee, Mr. Bruno Weinschel, of Gaithersburg, Maryland, for whom I am acting as an export consultant." The complaint states that awareness of the business relationship between Baumgart and Weinschel is also reflected by letters sent from Hill to Weinschel in 1977.
The complaint alleges that, notwithstanding this information, Hill submitted a motion for a summary judgment dismissing Weinschel from the Caldwells' personal injury action in which Hill stated that, at the time of the accident, Baumgart was performing a personal errand that did not involve or concern Weinschel in any way. The complaint states that, in support of the motion for summary judgment, Hill submitted an affidavit of Weinschel averring, "I [Weinschel,] did not request that [Baumgart] go to Denver, and he did not perform any errands or other functions for me. He used the automobile strictly for his own purposes." The complaint alleges these statements constituted knowing misrepresentations made with the intent to insulate Weinschel and Hertz from liability for the accident. If successful, the result would be to leave the Caldwells with a judgment against only Baumgart, who could not be located. In the second count of the Caldwells' complaint they incorporate the allegations of their first count and further assert that the alleged acts of misrepresentation and fraud were perpetrated pursuant to an agreement between the defendants constituting a civil conspiracy.[2]
Pursuant to C.R.C.P. 34, the Caldwells filed a request for production of documents concerning the defendants' assessments of the value of Baumgart's testimony and Baumgart's potential liability to the Caldwells. The Caldwells also requested production of any correspondence between Hill and Hertz or between Hill and Weinschel during the period from December 5, 1974, to April 1, 1980.[3] The defendants resisted discovery of these documents on the basis that they were privileged. The Caldwells filed a motion under C.R.C.P. 37 to compel production of the papers. On March 20, 1981, the *30 trial court denied the motion, agreeing with the defendants that the requested documents were privileged.
On January 6, 1982, the Caldwells filed a petition for relief in the nature of mandamus asking us to direct the trial court to order the requested discovery. We then issued a rule to show cause why the requested relief should not be granted. Two issues are presented by this proceeding: (1) whether this is a proper case for review under C.A.R. 21; and (2) whether the trial court erred in denying the requested discovery on the basis that the documents are privileged. We address these issues in turn.
II.
Hertz and Weinschel contend that this is not an appropriate case for C.A.R. 21 review and that, in any case, the Caldwells should be denied relief because of laches. We disagree.
The exercise of this court's original jurisdiction under C.A.R. 21 is discretionary and governed by the circumstances of the case. E.g., Coquina Oil Corp. v. District Court, Colo., 623 P.2d 40 (1981). Although orders relating to pre-trial discovery are interlocutory in nature and normally not reviewable in an original proceeding, we have not hesitated to exercise our original jurisdiction when a discovery order places a party at an unwarranted disadvantage in litigating the merits of his claim. E.g., Hawkins v. District Court, Colo., 638 P.2d 1372 (1982); Sanchez v. District Court, Colo., 624 P.2d 1314 (1981); Seymour v. District Court, 196 Colo. 102, 581 P.2d 302 (1978).
Our recent decision in Hawkins v. District Court, supra, is dispositive on this issue. In Hawkins the petitioner's home was destroyed by fire. He filed a loss claim with his insurance company but was refused payment. He sued the insurance company for breach of the insurance contract, bad faith refusal to pay his claim, and outrageous conduct. In the course of the ensuing litigation, he sought the production of certain insurance company documents relating to his claim. The company refused to comply and the petitioner filed a motion to compel discovery. The trial court denied the motion on the basis that the materials were privileged. We concluded that the court's denial of discovery was properly reviewable in an original proceeding, stating:
The respondent court's denial of the petitioner's motion to compel discovery will preclude the petitioner from obtaining information vital to his claims for relief and justifies our exercise of original jurisdiction under the circumstances present here.
638 P.2d at 1375.
Similarly, denial of discovery in the present case would undercut the Caldwells' ability to prove the allegations of their complaint. We find this an appropriate case for the exercise of our original jurisdiction.
Hertz and Weinschel also argue that the Caldwells are barred by laches. They point to the ten-month delay between the trial court's denial of the Caldwells' motion to compel discovery and their petition to this court. The doctrine of laches is applicable to original proceedings in this court and may bar our exercise of jurisdiction. Nolan v. District Court, 195 Colo. 6, 575 P.2d 9 (1978). However, there must be an unreasonable delay resulting in demonstrated prejudice for the doctrine to apply. Id. While Hertz and Weinschel assert that the ten-month delay in this case was prejudicial, they do not support that bald assertion with an explanation of the nature or extent of such prejudice. Under these facts, the doctrine is inapplicable.[4]
*31 Having resolved the procedural challenges to the present proceeding, we turn to the merits of the petitioners' contention that the trial court erred in denying the requested discovery.
III.
Hertz and Weinschel contend that the requested documents are protected from discovery by the attorney-client privilege, which is codified in section 13-90-107(1)(b), C.R.S.1973 (1981 Supp.). It provides:
(1) There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate; therefore, a person shall not be examined as a witness in the following cases:
. . . .
(b) An attorney shall not be examined without the consent of his client as to any communication made by the client to him or his advice given thereon in the course of professional employment; ...
Hertz and Weinschel argue that the statute does not provide for any exceptions to the privilege that its terms are absolute and unyielding. However, such a rigid approach to the attorney-client privilege is incorrect. We have previously limited its scope where the communications between a client and his attorney are made for the purpose of aiding the commission of a future crime or a present continuing crime. A. v. District Court, 191 Colo. 10, 550 P.2d 315 (1976), cert. denied, 429 U.S. 1040, 97 S.Ct. 737, 50 L.Ed.2d 751 (1977); Losavio v. District Court, 188 Colo. 127, 533 P.2d 32 (1975). The reason for this exception to the privilege was explained in A. v. District Court, supra:
The attorney-client privilege is rooted in the principle that candid and open discussion by the client to the attorney without fear of disclosure will promote the orderly administration of justice. The criminal purpose exception to the privilege grows out of a competing value of our society which is manifested in the rule that `the public has the right to every man's evidence, particularly in grand jury proceedings.' Consequently, the attorney-client privilege is not absolute.
191 Colo. at 22, 550 P.2d at 324-25 (citation omitted).
Our past recognition of the "future crimes" exception, however, does not dispose of the issue in this case. The question we now address is whether that exception should be extended to communications between attorney and client for the purpose of aiding a continuing or future civil wrong. We expressly reserved that question in A. v. District Court, supra, where we stated:
The cases seem to disagree on the breadth of the exception regarding non-criminal wrongdoings in the attorney-client relationship. As this case only involves certain alleged criminal conduct in the relationship, we need not address the issue of the scope of the exception in this opinion, and, of course, we do not decide it.
191 Colo. at 22, n.11, 550 P.2d at 324, n.11. We now hold that the exception does extend to civil fraud.
Although the exception to the attorney-client privilege created for future illegal activity was at one time limited to criminal activity, see Annot., 125 A.L.R. 508, 514 (1940), it is now well-settled that this exception is also applicable to advice or aid secured in the perpetration of a fraud. See 8 J. Wigmore, Evidence § 2298 (McNaughton Rev. 1961 and 1981 Supp.); McCormick, Evidence § 95 (2d ed. 1972 and 1978 Supp.); Gardner, The Crime or Fraud Exception to the Attorney-Client Privilege, 47 A.B.A.J. 708 (1961) (Gardner, The Crime or Fraud Exception); Uniform Rules of Evidence, Rule 502(d), 13 U.L.A. 250 (Master Ed. *32 1980); see generally Annot., 125 A.L.R. 508 (1940 and Supps.).
The rationale for excluding such communications from the attorney-client privilege is that the policies supporting the existence of that privilege are inapplicable where the advice and aid sought refers to future wrongdoing rather than prior misconduct. As stated by Wigmore:
[The policy reasons supporting the attorney-client privilege] predicate the need of confidence on the part not only of injured persons, but also of those who, being already wrongdoers in part or all of their cause, are seeking legal advice suitable for their plight. The confidences of such persons may legitimately be protected, wrongdoers though they have been, because, as already noticed (§ 2291 supra), the element of wrong is not always found separated from an element of right; because, even when it is, a legal adviser may properly be employed to obtain the best available or lawful terms of making redress; and because the legal adviser must not habitually be placed in the position of an informer. But these reasons all cease to operate at a certain point, namely, where the desired advice refers not to prior wrongdoing, but to future wrongdoing. From that point onwards, no protection is called for by any of these considerations.
8 J. Wigmore, Evidence, supra, § 2298 at 573 (emphasis in original).
We follow the majority rule that an appropriate case alleging civil fraud may also require that the privilege give way.[5] The remaining question is whether this is an appropriate case for application of this exception.
In A. v. District Court, supra, we addressed the procedure to be followed in determining whether the criminal purpose exception was applicable. There we held that a judge may order disclosure of the allegedly privileged documents upon a prima facie showing that the future crimes exception is applicable. We stated that this prima facie showing is "not tantamount to proof of a prima facie cases," but requires that there be a showing of "some foundation in fact" for the alleged illegal conduct. We also held that the trial court may conduct an in camera review of the allegedly privileged documents without first requiring a prima facie showing if it determines that this would aid its assessment of the privilege's applicability. The ultimate burden is upon the party asserting the exception to the privilege, and it must be demonstrated that the exception applies to each document before that document is stripped of its privilege. Id.
We believe that the procedure adopted in A. v. District Court, supra, is appropriate to the civil as well as the criminal context. The courts and commentators are generally agreed that the proponent of the crime or fraud exception must make a showing of the applicability of the exception before the privilege recedes. E.g., United States v. Hodge and Zweig, 548 F.2d 1347, 1354 (9th Cir. 1977); Union Camp Corp. v. Lewis, 385 F.2d 143 (4th Cir. 1967); Duplan Corp. v. Deering Milliken, Inc., 397 F.Supp. 1146, 1172, 1194 (D.S.C.1974); United Services Automobile Assn. v. Werley, 526 P.2d 28 (Alaska 1974); State ex rel. North Pacific Lumber Co. v. Unis, 282 Or. 457, 579 P.2d 1291 (1978); Note, The Future Crime or Tort Exception to Communications Privileges, 77 Harv.L.Rev. 730 (1964) (Note, The Future Crime or Tort Exception); Gardner, The Crime or Fraud Exception, supra. We recognize that there is some apparent division in authority over whether this showing must amount to a prima facie case or whether some lesser quantum of proof is adequate. See generally, Gardner, The Crime or Fraud Exception, supra. However, *33 we believe A. v. District Court, supra, appropriately reconciled the need for protection of the attorney-client relationship and the competing need to avoid use of that relationship as a shield for the perpetration of wrongful conduct by concluding that a foundation in fact for the charge is sufficient to invoke the crime exception. Requiring a strict prima facie case may not be possible at the discovery stage, and would result in an overzealous protection of the attorney-client privilege in a context where the rationale for that privilege may be inapplicable. This intermediate burden of proof has been approved in recognition of the significant proof problems facing a proponent of the exception. See Note, The Future Crime or Tort Exception, supra; Gardner, The Crime or Fraud Exception, supra.
Further, because of those proof problems, we follow A. v. District Court in holding that the trial court, in its discretion and without prior establishment of a foundation in fact that the crime or fraud exception applies, may order the production of relevant documents for an in camera inspection to determine whether that exception is applicable. See Duplan Corp. v. Deering Milliken, Inc., supra, 397 F.Supp. at 1195. In exercising that discretion the judge should require a showing of a factual basis adequate to support a good faith belief by a reasonable person that wrongful conduct sufficient to invoke the crime or fraud exception to the attorney-client privilege has occurred. Cf. C.R.C.P. 11 ("The signature of an attorney [on a pleading] constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief there is good ground to support it ... If a pleading... is signed with intent to defeat the purpose of this Rule, it may be stricken...").
Two additional issues which may arise in connection with further proceedings in this case are whether, in order for the crime or fraud exception to the attorney-client privilege to apply: (1) the attorney must be aware of the illegal use to which his advice is being put and (2) the client must know or reasonably should know of the unlawfulness of his conduct. In accord with the prevailing view we answer the first question in the negative and the second in the affirmative.
Whether or not the attorney is aware of the wrongful purpose for which his advice is sought, the policy considerations for recognizing an exception to the attorney-client privilege are equally applicable. Thus, his knowledge or participation is not necessary to application of the exception, and this is the general rule. E.g., 8 Wigmore, Evidence, supra, § 2298 at 573-77.
It is also generally accepted that the crime or fraud exception applies only when the client knows or reasonably should know that the advice is sought for a wrongful purpose. E.g., State ex rel. North Pacific Lumber Co. v. Unis, supra; McCormick, Evidence, supra, § 95 at 199 and n.48; Gardner, The Crime or Fraud Exception, supra at 710; see also United Services Automobile Assn. v. Werley, supra at 32 (advice must be sought for a knowingly unlawful end); 8 Wigmore, Evidence, supra § 2298 at 573-77 (advice must be sought for a knowingly unlawful end). The reason for this limitation on the scope of the exception has been expressed as follows:
Good-faith consultations with attorneys by clients who are uncertain about the legal implications of a proposed course of action are entitled to the protection of the privilege, even if that action should later be held improper.
State ex rel. North Pacific Lumber Co. v. Unis, supra, 282 Or. at 464, 579 P.2d at 1295.
Consequently, the trial court should determine in the course of further proceedings whether the Caldwells have made a prima facie showing one that gives their assertions a foundation in fact that the crime or fraud exception is applicable. If this showing is made, then the documents relevant to their claim of civil fraud are discoverable. In determining whether this is a proper case for application of the exception, *34 the court, if it deems it advisable, may order a production of the documents for in camera review. The court must also find that these communications were sought in furtherance of an end that the client knew or reasonably should have known to be improper, but it need not find that Hill was a participant in or aware of the alleged fraud.
Because we do not have the allegedly privileged documents before us, we do not resolve whether the Caldwells have made the necessary prima facie showing. We do note, however, that from the limited record available the Caldwells have sufficiently substantiated their allegations to merit careful review by the district court.
IV.
In refusing to order discovery of the documents requested by the Caldwells, the trial court stated only that they were privileged. The source of that privilege was not specified. While Hertz and Weinschel have based their argument upon the attorney-client privilege, it is possible that the trial court relied in part upon the work product privilege. C.R.C.P. 26(b)(3). As we stated in A. v. District Court, supra, the work product and attorney-client privileges are related but distinct theories:
Generally, the attorney-client privilege protects communications between the attorney and the client, and the promotion of such confidences is said to exist for the benefit of the client. On the other hand, the work-product exemption generally applies to "documents and tangible things... prepared in anticipation of litigation or for trial," C.R.C.P. 26(b)(3), and its goal is to insure the privacy of the attorney from opposing parties and counsel.
191 Colo. at 25, 550 P.2d at 327 (citations omitted).
Here, the Caldwells requested not only correspondence between Hill and Hertz or Weinschel, but also "memoranda, documents, notes or any other writing or item which in any way discusses or concerns any of the defendants' opinions, ideas, or comments... concerning the value of WERNER BAUMGART'S testimony, the value of WERNER BAUMGART as a witness, or the possibility of WERNER BAUMGART being found liable to the [Caldwells]." Some of these documents may qualify as the work product of attorney Hill.
However, the work product privilege is also subject to the crime or fraud exception. Natta v. Zletz, 418 F.2d 633 (7th Cir. 1969); Hercules Inc. v. Exxon Corp., 434 F.Supp. 136, 155 (D.Del.1977). Just as the attorney-client privilege may not be abused as a shield for ongoing or future illegal activity, so the privilege created for an attorney's work product cannot be allowed to protect the perpetration of wrongful conduct. Upholding the assertion of these privileges in that context would be a perversion of their legitimate purpose and scope.
Our rule to show cause is made absolute, and the trial court is directed to conduct further proceedings in accordance with the views expressed in this opinion.
NOTES
[1] The trial court record in this case is not before us. We rely upon the briefs of the parties and the available pleadings for the facts of this case.
[2] The Caldwells' complaint also contained a third claim for relief, asserting that they were third-party beneficiaries of the contracts between Hill and Baumgart and Hertz and Baumgart concerning liability insurance and legal representation of Baumgart in the Caldwells' personal injury action. The Caldwells allege that they were damaged as a result of the breach of those contracts by Hertz and Hill. The trial court dismissed this claim for relief and that ruling is not challenged.
[3] The motion requested:
"That the defendants produce and permit the plaintiffs to inspect and/or copy each of the following documents:
1. All correspondence, memoranda, documents, notes or any other writing or item which in any way discusses or concerns any of the defendants' opinions, ideas, or comments, or any of the defendants' agents', servants' or employees' opinions, statements or comments concerning the value of WERNER BAUMGART'S testimony, the value of WERNER BAUMGART as a witness, or the possibility of WERNER BAUMGART being found liable to the plaintiffs.
2. All notes, correspondence, memoranda or any other documents or item of communication between the defendants RONALD HILL or any member of his law firm, and the defendants HERTZ CORPORATION or BRUNO WEINSCHEL between December 5, 1974, and April 1, 1980."
[4] Hertz and Weinschel assert one other procedural bar to our review. They contend that the question of Weinschel's vicarious liability for Baumgart's negligence was decided in the Caldwells' initial personal injury action, No. C-57586, by Weinschel's dismissal from that action on a motion for summary judgment. They argue that the Caldwells cannot now bring a collateral attack relitigating this issue. The Caldwells state that Hertz and Weinschel raised this argument in their motion to dismiss in the trial court, and that it was rejected by the trial judge on the basis that the Caldwells' complaint was at least in part an independent equitable action directly attacking the summary judgment dismissing Weinschel from case No. C-57586. We also conclude that the present case is proper as an independent equitable action. See Atlas Construction Co., Inc. v. District Court, 197 Colo. 66, 589 P.2d 953 (1979); Dudley v. Keller, 33 Colo.App. 320, 521 P.2d 175 (1974). Consequently, it is not subject to the time limits of a C.R.C.P. 60(b) motion or the common law rules prescribing the limits of a collateral attack. Id.
[5] There is a division of authority over whether the crime or fraud exception extends to all form of tortious conduct. See United Services Automobile Assn. v. Werley, 526 P.2d 28, 32 (Alaska 1974); Annot., 2 A.L.R.3d 861 (1965 and 1981 Supp.); McCormick, Evidence, supra § 95 at 201; 8 Wigmore, Evidence, supra § 2298 at 573-577. Because the present case involves a claim of fraud, we need not and do not reach the question of whether this exception to the attorney-client privilege extends to other forms of tortious conduct.
| {
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-4052
___________
PERCY HOGAN, JR.,
Appellant
v.
THE RAYMOND CORPORATION;
GIANT EAGLE INCORPORATED
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civ. No. 2-10-cv-00846)
District Judge: Honorable Joy Flowers Conti
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 20, 2013
Before: FUENTES, VANASKIE and VAN ANTWERPEN, Circuit Judges
(Opinion filed: August 20, 2013)
_________
OPINION
_________
PER CURIAM
Percy Hogan, Jr., appeals pro se from the District Court’s order dismissing his
action as a sanction and challenges earlier orders of the District Court as well. We will
affirm the substance of the orders under review but will vacate one of them in part and
remand for a limited purpose.
I.
Hogan is employed as a truck driver by Giant Eagle Incorporated (“Giant”). In
2008, he was injured while unloading groceries with a power jack, which he alleges was
manufactured by The Raymond Corporation (“Raymond”). Raymond denies that
allegation. The parties also dispute the scope of Hogan’s injuries, but they included groin
and back injuries that resulted in Hogan obtaining workers’ compensation benefits from
Giant before resuming full-time employment. See Hogan v. Workers’ Comp. Appeal Bd.
(Giant Eagle, Inc./OK Grocery Co.), No. 2032 C.D. 2011, 2012 Pa. Commw. Unpub.
LEXIS 843 (Pa. Commw. Ct. Nov. 8, 2012), allowance of appeal denied, No. 544 WAL
2012, 2013 Pa. LEXIS 966 (Pa. May 14, 2013).
In 2010, Hogan filed pro se a personal injury complaint against Raymond and
Giant in Pennsylvania state court, asserting a products liability claim against Raymond
and a negligence claim against Giant. Raymond, which no one disputes is a citizen of
New York, removed the complaint on the basis of diversity jurisdiction under 28 U.S.C.
§§ 1332 and 1441(b). Although Hogan and Giant are both citizens of Pennsylvania and
thus non-diverse, Raymond argued that Giant’s citizenship should be disregarded under
the fraudulent joinder doctrine because Hogan’s claims against Giant are barred by the
exclusivity provision of Pennsylvania’s Workers’ Compensation Act. Giant filed a Rule
12(b)(6) motion to dismiss on that basis, and Hogan filed both a motion to remand to
state court and a motion to amend his complaint. Hogan sought to add, inter alia, a tort
2
claim that Giant spoliated the power jack by removing it from its store and thus
prejudiced his products liability claim against Raymond. By order entered March 18,
2011, the District Court (1) denied Hogan’s motion to remand, (2) denied Hogan’s
motion to amend as to Giant, and (3) granted Giant’s Rule 12(b)(6) motion and dismissed
the complaint as to Giant for failure to state a claim. Hogan filed a premature appeal
from that order, which we dismissed for lack of jurisdiction. (C.A. No. 11-1886.)
Hogan’s claim against Raymond proceeded. Hogan failed to respond to
Raymond’s initial discovery requests, and Raymond filed a motion to compel him to do
so. The District Court granted it on March 7, 2012. Hogan failed to comply with that
order as well, and Raymond filed another motion to compel and for sanctions. The
District Court granted the motion to compel on June 1, 2012. The District Court declined
to impose sanctions, but it stated that “Plaintiff is specifically cautioned that a failure to
comply with an Order of this Court may result in the imposition of sanctions, including
. . . a dismissal in whole or in part of this civil action.” (ECF No. 69 at 2.) The District
Court then held a conference on June 7, 2012, to make sure that Hogan understood his
discovery obligations.
Despite these measures, Hogan once again failed to respond to the discovery
requests and Raymond filed a motion for an order to show cause why the case should not
be dismissed on that basis. The District Court entered the order to show cause and then
held another conference on August 7, 2012. (In the meantime, Hogan had finally
provided discovery responses, but Raymond argued that they remained deficient.) At the
3
conference, the District Court sanctioned Hogan by ordering him to pay (1) the costs and
fees incurred by Raymond in bringing its most recent motion, and (2) the costs (but not
fees) that Raymond would incur in re-deposing Hogan after receiving complete discovery
responses. The District Court explained to Hogan that it was refraining from dismissing
his action only because it was imposing this alternative sanction and that Hogan would
have to pay the sanction in order for his case to proceed. The District Court also
specifically warned Hogan three times that, if he did not pay the sanction within fifteen
days of receiving an invoice from Raymond, it would dismiss his case with prejudice.
(ECF No. 75 at 15-16, 18, 21.) Hogan did not (and does not) claim any inability to pay
the sanction. Instead, although he initially argued that he should not be sanctioned at all
because his discovery responses were substantially compliant, he ultimately agreed to pay
the sanction in order to proceed with his suit.
After Raymond provided its invoice, however, Hogan filed a motion to “disallow”
it on the ground that it included amounts beyond the scope of District Court’s award. He
also argued, once again, that he should not have been sanctioned at all. On September
12, 2012, the District Court granted that motion in part and provided: “IT IS
ORDERED that the total amount of sanctions to be paid is: $5,504.97. If plaintiff
fails to pay that amount . . . to defendant on or before September 20, 2012, this case
will be automatically dismissed with prejudice.” (ECF No. 80 at 2) (emphasis in
original). Hogan did not pay the sanction by September 20 and instead, on that day,
mailed to the District Court another motion once again contesting the imposition of
4
sanctions for the same reasons he previously argued. Raymond filed a motion to dismiss
the action, and the District Court granted it by order entered September 28, 2012. The
court’s order states that it dismissed Hogan’s action with prejudice “for [his] failure to
comply with the Orders and directives of this Court,” including the September 12 order
directing the payment of sanctions and its orders compelling discovery. Hogan appeals. 1
II.
On appeal, Hogan challenges the District Court’s March 18, 2011 order denying
his motion to remand, its August 7, 2012 order imposing monetary sanctions, and its
September 28, 2012 order dismissing the case. We address them in turn.
A. Diversity Jurisdiction and Fraudulent Joinder
We begin with this issue because it implicates the District Court’s jurisdiction.
See Boyer v. Snap-On Tools Corp., 913 F.2d 108, 110 (3d Cir. 1990). The fraudulent
joinder doctrine permits courts to ignore the citizenship of a non-diverse defendant for
diversity purposes if the plaintiff’s joinder of that defendant is “fraudulent.” In re
Briscoe, 448 F.3d 201, 216 (3d Cir. 2006). “‘Joinder is fraudulent where there is no
reasonable basis in fact or colorable ground supporting the claim against the joined
defendant[.]’” Id. at 217 (citing Batoff v. State Farm Ins. Co., 977 F.2d 848, 851 (3d Cir.
1992)). The plaintiff’s mere failure to state a claim does not satisfy this standard, and the
plaintiff’s claim must instead be so “wholly insubstantial and frivolous” as to fail to
1
As we discuss below, the District Court had diversity jurisdiction under 28 U.S.C. §
1332. We have jurisdiction under 28 U.S.C. § 1291.
5
invoke the subject matter jurisdiction of the District Court. Batoff, 977 F.2d at 852
(quotation marks omitted). We review this legal and jurisdictional issue de novo. See
Emerald Investors Trust v. Gaunt Parsippany Partners, 492 F.3d 192, 197 (3d Cir. 2007).
In this case, the District Court determined that Hogan’s personal injury claims
against Giant are barred by the exclusivity provision of Pennsylvania’s Workers’
Compensation Act, 77 P.S. § 481(a). Hogan does not challenge that conclusion on
appeal, and we agree that his personal injury claims against Giant are barred beyond
question under Pennsylvania law. See Winterberg v. Transp. Ins. Co., 72 F.3d 318, 322
(3d Cir. 1995) (citing, inter alia, Poyser v. Newman & Co., 522 A.2d 548, 550-51 (Pa.
1987)). This clear legal bar means that Hogan’s claims against Giant are not colorable
for purposes of fraudulent joinder. See In re Briscoe, 448 F.3d at 219 (addressing claims
barred by statute of limitations); cf. Boyer, 913 F.2d at 111 (“[T]his is not a case where
the action . . . is defective as a matter of law.”).
Hogan argues that the District Court should have permitted him to amend his
complaint to assert a tort claim that Giant spoliated the power jack and that such claims
are not subject to the workers’ compensation bar. The District Court analyzed this issue
under Rules 12(b)(6) and 15(a) and concluded that amendment would be futile because
Hogan had not stated a claim. The Rule 12(b)(6) standard does not govern the fraudulent
joinder inquiry, see Batoff, 977 F.2d at 852, but we need not reach that issue because the
District Court was not required to consider Hogan’s proposed amendment in the first
6
place. 2 We have stated numerous times that, in applying the fraudulent joinder doctrine,
“the district court must focus on the plaintiff’s complaint at the time the petition for
removal was filed.’” In re Briscoe, 448 F.3d at 217 (quoting Batoff, 977 F.2d at 851); see
also Abels v. State Farm Fire & Cas. Co., 770 F.2d 26, 29 (3d Cir. 1985) (citing Pullman
Co. v. Jenkins, 305 U.S. 534, 537 (1939)); Cavallini v. State Farm Mut. Auto Ins. Co., 44
F.3d 256, 264 & n.16 (5th Cir. 1995) (explaining the rationale for this requirement). The
complaint at the time of removal contained only personal injury claims against Giant that
are clearly barred as a matter of Pennsylvania law. 3 Thus, the District Court properly
disregarded Giant’s citizenship and concluded that it had diversity jurisdiction.
Hogan’s only other argument on this point is that the District Court should not
have dismissed his claims against Giant with prejudice. We agree. The fraudulent
joinder inquiry is a jurisdictional one and not a merits determination. See Batoff, 977
F.2d at 852. Thus, instead of dismissing Hogan’s claims against Giant with prejudice
under Rule 12(b)(6), the District Court should have dismissed them for lack of subject
matter jurisdiction under Rule 12(b)(1). We will vacate the March 18, 2011 order to that
2
We nevertheless note that Hogan has provided no reason to question the District Court’s
conclusion that his spoliation allegations do not state a claim under Pennsylvania law.
We also note that the Pennsylvania Supreme Court has since held that there is no cause of
action against a third party (which Giant would be in light of the workers’ compensation
bar) for negligently spoliating evidence that the plaintiff hoped to use against someone
else. See Pyeritz v. Commonwealth, 32 A.3d 687, 692 (Pa. 2011).
3
Hogan’s state-court complaint contained a single reference to Giant having removed the
power jack, but the complaint did so by way of attempting to show Giant’s alleged
7
limited extent and remand for the District Court to enter an appropriate order.
B. The Monetary Sanction
We generally review monetary sanctions for abuse of discretion. See Figueroa v.
Buccaneer Hotel Inc., 188 F.3d 172, 175-76 (3d Cir. 1999). Hogan raises two arguments
in this regard, but neither is persuasive.
First, Hogan argues that the District Court should not have sanctioned him at all
because he substantially complied with his discovery obligations. Hogan raised this
argument at the August 7 conference and again in his motion to “disallow” Raymond’s
invoice, and the District Court rejected it. Regardless of whether Hogan had by then
complied with his discovery obligations (which Raymond disputes), Hogan admittedly
had not done so at the time of his deposition or when Raymond filed the motion for an
order to show cause on which the monetary sanction was based. Moreover, Hogan’s
argument misstates his discovery obligations. Hogan argues, as he did below, that he
submitted everything in his possession supporting his claim. But Raymond’s requests
and the scope of discovery are broader than that, see Fed. R. Civ. P. 26(b)(1), and the
District Court twice ordered Hogan to provide additional discovery, which he admittedly
failed to do.
Second, Hogan argues that the District Court erroneously imposed this sanction in
the absence of a finding that he acted in bad faith. Hogan cites no authority for the
awareness that the jack was dangerous. The state-court complaint sought damages solely
for personal injury and did not claim any injury arising from Giant’s alleged spoliation.
8
proposition that a finding of bad faith is required before imposing this type of sanction,
and the rules authorizing it do not contain such a requirement. See, e.g., Fed. R. Civ. P.
16(f), 37(b)(2). Indeed, we have expressly approved the entry of this type of sanction as
an alternative to dismissal, and a litigant’s bad faith is merely one factor to consider even
in imposing that more drastic sanction. See Poulis v. State Farm Fire & Cas. Co., 747
F.2d 863, 869 (3d Cir. 1984). In any event, the District Court clearly explained to Hogan
at the August 7 conference why it was imposing the sanction and why Hogan had to pay
it to proceed, and we cannot say that it abused its discretion. 4
C. Dismissal
Finally, Hogan challenges the District Court’s order dismissing his case. Because
dismissal is a drastic sanction, courts generally must first consider the six factors we
enumerated in Poulis, which are set forth in the margin. 5 The District Court did not
4
Hogan raises additional arguments regarding the terms of the sanction that we need not
address because he did not pay it. We note, however, that the award includes Raymond’s
cost of re-deposing Hogan, which it did not do because it cancelled Hogan’s second
deposition in light of his still-incomplete discovery. It is not clear whether Raymond
intends to seek enforcement of the monetary sanction following this appeal. We express
no opinion on that issue other than to note that enforcement may not be warranted
because the District Court expressly made the sanction the price of Hogan’s ability to
proceed, which he now cannot do. If the sanction remains at issue following this appeal,
however, it should not include costs that Raymond has not actually incurred.
5
The factors are: (1) the party’s personal responsibility; (2) prejudice to the opposing
party; (3) a history of dilatoriness; (4) the party’s willfulness or bad faith; (5) the
effectiveness of alternative sanctions; and (6) the merits. See Poulis, 747 F.2d at 868-70.
The District Court did not specify whether its dismissal was under Rule 37(b) or Rule
41(b), but Poulis generally applies in either case. See Knoll v. City of Allentown, 707
F.3d 406, 409 (3d Cir. 2013).
9
expressly consider those factors. We have recognized situations, however, in which a
District Court can dismiss an action without expressly considering the Poulis factors
when confronted with a litigant’s outright refusal to proceed as the District Court directs.
See, e.g., Doe v. Megless, 654 F.3d 404, 411 (3d Cir. 2011); Spain v. Gallegos, 26 F.3d
439, 454-55 (3d Cir. 1994). We have also recognized that “Poulis did not provide a
magic formula,” that “not all of the Poulis factors need be satisfied in order to dismiss a
complaint,” and that the decision to dismiss ultimately “must be made in the context of
the district court’s extended contact with the litigant.” Mindek v. Rigatti, 964 F.2d 1369,
1373 (3d Cir. 1992). For that reason, we give the District Court’s decision “great
deference” and review it only for abuse of discretion. Id. Having reviewed the entire
record, we cannot say that the District Court abused its discretion in this case.
The District Court had extended contact with Hogan, and it clearly understood that
“[d]ismissal must be a sanction of last, not first, resort.” Poulis, 747 F.2d at 869. The
District Court warned Hogan that failure to comply with its orders could result in
dismissal, but it did not impose any sanctions on Hogan at all until he failed to respond to
Raymond’s discovery requests and then undisputedly violated two court orders that he do
so. Even then, the District Court did not dismiss Hogan’s action but instead imposed the
alternative sanction (which we specifically endorsed in Poulis) of awarding Raymond the
costs and fees it incurred in bringing its latest motion. In doing so, the District Court
again warned Hogan, both orally and in writing, that it would dismiss his case if he failed
to pay. Despite these numerous opportunities and warnings, Hogan once again simply
10
disregarded the court’s order that he pay and instead, on the date payment was due,
mailed the District Court another motion contesting the award of sanctions for reasons
that the District Court already had rejected twice. Hogan does not argue that the District
Court abused its discretion by not expressly considering the Poulis factors under these
circumstances, and we cannot say that it did. 6
Hogan’s arguments are not persuasive and are largely disingenuous. He argues
that he believed he had the “green light” to continue challenging the amount of the
District Court’s sanction award instead of paying it, but he cites nothing of record
arguably conveying that impression. To the contrary, the District Court’s last word on
the subject was its order of September 12, 2012, which stated that the case “will be
automatically dismissed with prejudice” if he did not pay the sanction by September
20. That order could not have been more clear. And Hogan did not merely continue to
challenge the amount of the award, but instead continued to contest the imposition of
sanctions in the first place for reasons the District Court already had rejected. Hogan also
argues that the September 12 order gave him less than the fifteen days to pay afforded by
the District Court’s August 7 order, but that argument is specious because the District
Court did not dismiss his action until sixteen days later on September 28. Hogan did not
pay during that time and has not argued in the District Court or this one that he was
6
In fact, the parties and the District Court effectively addressed many of the Poulis
factors at the June 7 and August 7 conferences. The District Court considered (and
indeed imposed) alternative sanctions, and the parties and the District Court discussed the
history of Hogan’s conduct, its effect on the litigation, and the merits of his claim.
11
unable to do so.
Finally, Hogan argues that the District Court denied him due process. The District
Court conducted a conference on both the monetary sanction and the possibility of
dismissal, however, and Hogan had ample opportunity to be heard. See Figueroa, 188
F.3d at 183. Hogan clearly was on notice of the consequence of failing to pay the
sanction, and he has not claimed in either the District Court or this one that his failure to
do so was the result of anything other than his disagreement with the District Court’s
imposition of that sanction. The District Court made clear that Hogan’s action would
proceed only if he complied with that ruling, and “[a] party disappointed with a court’s
ruling may not refuse to proceed and then expect to obtain relief on appeal from an order
of dismissal or default.” Megless, 654 F.3d at 411 (quotation marks omitted).
III.
For the foregoing reasons, we will (1) affirm the District Court’s order entered
August 7, 2012, (2) affirm the District Court’s order entered September 28, 2012, (3)
affirm in part and vacate in part the District Court’s order entered March 18, 2011, and
(4) remand for the District Court to enter an order dismissing Hogan’s complaint against
Giant for lack of subject matter jurisdiction.
12
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Case: 10-50822 Document: 00511752038 Page: 1 Date Filed: 02/08/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 8, 2012
No. 10-50822
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
NAHUM SAMIENTO RAMIREZ, also known as Nahum Sarmiento Ramirez;
RUILBER ALEXANDER ALEMAN,
Defendants-Appellants
Appeals from the United States District Court
for the Western District of Texas
USDC No. 1:10-CR-123-3
Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Nahum Samiento Ramirez and Ruilber Alexander Aleman appeal from
their convictions of bank robbery, using, carrying, or brandishing a firearm
during and in relation to a crime of violence, and aiding and abetting. Both
Ramirez and Aleman challenge the introduction of certain evidence, and
Ramirez challenges the sufficiency of the evidence to support his bank robbery
conviction.
*
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.
Case: 10-50822 Document: 00511752038 Page: 2 Date Filed: 02/08/2012
No. 10-50822
The convictions under consideration here arose from the robbery of
Cattleman’s National Bank (CNB) in Round Mountain, Texas, on November 20,
2009. The district court allowed the Government to present testimony about the
robbery of an Allstate insurance agency in San Antonio on November 19, 2009,
and testimony about the robbery of the Covarrubias Insurance Agency in San
Antonio on November 6, 2009. Aleman and Ramirez both challenge the
introduction of evidence of the Allstate and Covarrubias robberies. Aleman
further contends that his motion for a severance should have been granted
because the evidence of the other robbery was relevant to Ramirez but not to
him. The Government contends that evidence of the Allstate robbery was
intrinsic to the CNB robbery because the two robberies were hours apart and
were part of a single criminal episode. Moreover, the Government argues, the
robberies were sufficiently similar to the CNB robbery to be admitted as
extrinsic evidence pursuant to Federal Rule of Evidence 404(b), and that any
prejudice was obviated by the district court’s instruction that Aleman and
Ramirez were not on trial for any acts not charged in the indictment.
A district court’s evidentiary rulings are reviewed under the abuse of
discretion standard. United States v. Setser, 568 F.3d 482, 493 (5th Cir. 2009).
Rule 404(b) prohibits the introduction of evidence of other acts “to prove a
person’s character in order to show that . . . the person acted in accordance with
the character,” but other act evidence may be admitted “for another purpose,
such as proving motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.” FED. R. EVID. 404(b). “In a
criminal case, Rule 404(b) evidence must be strictly relevant to the particular
offense charged.” United States v. Yi, 460 F.3d 623, 631 (5th Cir. 2006).
Moreover, Rule 404(b) evidence “is relevant only if the jury can reasonably
conclude that the act occurred and that the defendant was the actor.”
Huddleston v. United States, 485 U.S. 681, 689 (1988). “Even if the district court
abused its discretion, this court will not overturn a conviction unless the
2
Case: 10-50822 Document: 00511752038 Page: 3 Date Filed: 02/08/2012
No. 10-50822
defendant was prejudiced by erroneous admission of evidence.” Yi, 460 F.3d at
631.
Here, the testimony about the Allstate and Covarrubias robberies was
relevant as extrinsic act evidence because the modus operandi employed, the
clothing worn by the robbers, and the language spoken by the robbers was
similar to the modus operandi, clothing, and language in the CNB robbery.
Additionally, a camera belonging to a victim of the Allstate robbery was found
in the CNB getaway car, and one of the Allstate robbers brandished a firearm
visually similar to the firearm taken from Aleman when he was arrested.
Moreover, a victim of the Covarrubias robbery identified Ramirez as a robber,
and his fingerprints were found at the scene. The testimony about the two other
robberies was relevant to the CNB robbers’ identity, their modus operandi, their
planning, and their preparation. See Rule 404(b). Admission of the evidence
was not an abuse of discretion. See Setser, 568 F.3d at 493.
The Government contends that evidence of the Allstate robbery was
intrinsic to the CNB robbery. We need not decide that issue, as the evidence was
admissible pursuant to Rule 404(b).
Aleman cannot demonstrate that the joint trial prejudiced him to the
extent that the district court could not protect him, and the denial of the
severance request was not an abuse of discretion. See United States v. Peterson,
244 F.3d 385, 393 (5th Cir. 2001). First, both robberies were relevant to the case
against Aleman, even if the evidence was circumstantial and the evidence as to
the Covarrubias robbery was much stronger as to Ramirez. Thus, any spillover
effect was minimal. Second, although Aleman did not request any limiting
instruction, the district court instructed the jury that Aleman “is not on trial for
any act, conduct, or offense not alleged in the indictment.” Third, the prosecutor
told the jurors during closing arguments that it would not be asked to reach a
verdict as to the two robberies and that the evidence was presented to assist the
jury “make decisions about the planning of this case, about the aiding and
3
Case: 10-50822 Document: 00511752038 Page: 4 Date Filed: 02/08/2012
No. 10-50822
abetting of these individuals together . . . , to help you make decisions about
identity of the robbers.” The jurors were informed correctly that Aleman was not
on trial for the other robberies and informed of the permissible uses of the
evidence. See FED. R. EVID. 404(b).
This court will uphold the jury’s verdict if a reasonable trier of fact could
conclude from the evidence that the elements of the offense were established
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979);
United States v. Percel, 553 F.3d 903, 910 (5th Cir. 2008). This court “view[s] the
evidence in the light most favorable to the verdict and draw[s] all reasonable
inferences from the evidence to support the verdict.” Percel, 553 F.3d at 910
(internal quotation marks and citation omitted).
This court does “not weigh evidence or assess the credibility of witnesses,
and the jury is free to choose among reasonable constructions of the evidence.”
United States v. Ramos-Cardenas, 524 F.3d 600, 605 (5th Cir. 2008). The jury
alone decides the credibility of witnesses and chooses among reasonable
constructions of the evidence. United States v. Zuniga, 18 F.3d 1254, 1260 (5th
Cir. 1994). This court must “consider the evidence, all reasonable inferences
drawn therefrom, and all credibility determinations in the light most favorable
to the prosecution.” United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996).
Review is “limited to whether the jury’s verdict was reasonable, not whether
[this court believes] it to be correct.” United States v. Williams, 264 F.3d 561,
576 (5th Cir. 2001).
To establish a violation of 18 U.S.C. § 2113(a), “bank robbery and
incidental crimes,” the Government was required to prove beyond a reasonable
doubt that an individual or individuals “by force and violence, or by intimidation,
t[ook], or attempt[ed] to take, from the person or presence of another . . . any
property or money or any other thing of value belonging to, or in the care,
custody, control, management, or possession of, any bank, credit union, or any
savings and loan association.” § 2113(a). The statute defines a bank as an
4
Case: 10-50822 Document: 00511752038 Page: 5 Date Filed: 02/08/2012
No. 10-50822
institution whose deposits are insured by the Federal Deposit Insurance
Corporation. § 2113(f). The FDIC-insured status of CNB is not at issue on
appeal; Ramirez challenges only his identity as a robber.
Much of Ramirez’s brief is devoted to attacking the credibility of Police
Chief Randy Holland’s identification of Ramirez. Even without that
identification, however, the evidence was sufficient to support Ramirez’s
conviction. First, Ramirez’s DNA was found in the getaway car and on a ski
mask found at George and Susie Bircks’s residence. Second, Ramirez was
wearing items of the Bircks’s clothing when he was arrested. Third, Ramirez
was identified as one of the robbers of the Covarrubias agency; Ramirez’s
fingerprints were found at the scene of that robbery; and the modus operandi of
the CNB and Covarrubias robbers was very similar. Fourth, the modus operandi
of the CNB and Allstate robberies was very similar. Fifth, Ramirez was engaged
in telephone calls with Aleman and codefendant Baltazar Nava that ended
approximately two hours before the CNB robbery. The jury could have inferred
beyond a reasonable doubt from this evidence that Ramirez was one of the CNB
robbers.
Finally, Aleman moves for an order compelling counsel to file a brief or, in
the alternative, for appointment of new counsel. Counsel filed a merits brief,
rendering Aleman’s motion moot.
AFFIRMED; MOTION DENIED.
5
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292 So.2d 139 (1974)
In re David DUCHAC
v.
STATE. Ex parte David Duchac.
SC 709.
Supreme Court of Alabama.
February 28, 1974.
*140 Elno A. Smith, Jr., Montgomery, for petitioner.
No brief for the state, respondent.
BLOODWORTH, Justice.
We deny this petition for the sole reason that it is insufficient in that it does not comply with the provisions of our Rule 39, as interpreted by our case law. It merely makes the bare-bones assertion of a "conflict with a prior decision of this Court on the same point of law." There is no averment as to what portion of the decision of the Court of Criminal Appeals conflicts with which decision of our Court. Nor are we advised with what part of a decision of our Court there is a conflict.
Again, we point out as we have heretofore done, first on November 7, 1969, in Ex parte State ex rel. Attorney General (In Re Clarence Stallworth v. State of Alabama), 285 Ala. 72, 229 So.2d 27, viz.:
"There is no set or magic language to use in petitioning this court for a writ of certiorari to the Court of Criminal Appeals or the Court of Civil Appeals. However, since this procedure is new, we set out acceptable language in each of the five instances * * *
"(4) The decision of the Court of (Criminal, Civil) Appeals is in conflict with a prior decision of the Supreme Court on the same point of law. In its opinion, the appellate court stated: (copy of the alleged conflicting holding.)
In the case of _______ v. _______, (citation) the Supreme Court stated: (copy). These statements of the law are in conflict and the Court of (Criminal, Civil) Appeals erred in failing to follow the decision of the Supreme Court on the same point of law."
Ex parte State ex rel. Attorney General, 285 Ala. 72, 229 So.2d 27 (1969).
Writ denied.
HEFLIN, C. J., and COLEMAN, McCALL and JONES, JJ., concur.
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874 F.2d 242
131 L.R.R.M. (BNA) 2671, 53 Ed. Law Rep. 475
TEXAS STATE TEACHERS ASSOCIATION, Et Al., Plaintiffs-Appellants,v.GARLAND INDEPENDENT SCHOOL DISTRICT, Et Al., Defendants-Appellees.
No. 87-1221.
United States Court of Appeals,Fifth Circuit.
May 17, 1989.
Jeremiah Collins, John Rothchild, Robert H. Chanin, Washington, D.C., for plaintiffs-appellants.
Earl Luna, Mary Milford, Law Offices of Earl Luna, Dallas, Tex., for defendants-appellees.
Appeal from the United States District Court for the Northern District of Texas; Jerry Buchmeyer, Judge.
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before GOLDBERG, WILLIAMS and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:
1
The decision of this Court denying attorneys' fees to appellant was reversed and remanded by the United States Supreme Court on March 28, 1989, 103 U.S. 866, 109 S.Ct. 1486, 103 L.Ed.2d 866. The case is remanded to the United States District Court for the Northern District of Texas for the purpose of the awarding of reasonable attorneys' fees as mandated by the Supreme Court.
2
REMANDED.
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915 So.2d 288 (2005)
BOATFLOAT® LLC, a Florida Liability Company, Appellant,
v.
John GOLIA, M.D., Appellee.
No. 4D05-426.
District Court of Appeal of Florida, Fourth District.
December 7, 2005.
*289 Ronnie Adili of Sweetapple, Broeker Varkas & Feltman, Boca Raton, for appellant.
Margaret Z. Villella of Atkinson, Diner, Stone, Mankuta & Ploucha, P.A., Fort Lauderdale, for appellee.
PER CURIAM.
John Golia, M.D., filed a complaint against Boatfloat® LLC. After not being able to serve Boatfloat via a registered agent, due to the fact that the only address for Boatfloat was in a gated residential community with no regular business hours open to the public, Golia issued an alias summons which was served on the Secretary of State. After some time passed with no response from Boatfloat, Golia filed a motion for default which was granted. Ultimately final judgment was entered in his favor. Upon learning of the default, Boatfloat moved to have the default set aside and service of process quashed. The trial court denied the motion. We reverse.
The issue in this case is whether a party may serve a limited liability company via the Secretary of State in Florida. Appellant Boatfloat, LLC argues that it cannot. We agree.
Section 608.463, Florida Statutes (2003), addresses how a limited liability company should be served, but it does not address the situation at bar and thus, this court is left to determine if, in the statute's silence, service on the Secretary of State is proper. Section 608.463 provides that service of process on a limited liability company should be completed as if the limited liability company were a partnership. That reference takes us to section 48.061, Florida Statutes (2003), which addresses service of process on a partnership. The first section of this statute applies to partnerships, while the other two sections discuss service of process on other types of partnerships, a domestic limited partnership and a foreign limited partnership. Id. Section 48.061(1) provides that service of process on a partnership should be completed on a partner or if a partner is not available during regular business hours, he or she may designate an employee to accept service. If a party makes one attempt to serve either a partner or a designated employee to no avail, the party may serve process on "the person in charge of the partnership during regular business hours." Id. This section illustrates the conundrum at hand in the instant case, mainly that there is no provision in the applicable statute that provides a method of service of process where the partnership, *290 or in this case the limited liability company, does not have regular business hours open to the public. While we recognize the challenge Golia faced, we cannot read into the statute an alternative method of service of process.
Golia urges us to look to subsection two of section 48.061 which discusses how service of process must be completed on a domestic limited partnership. This section provides that in certain situations service upon the Secretary of State is proper as the agent of the limited domestic partnership. § 48.061(2), Fla. Stat. While this is tempting, the language of the applicable statutory section on limited liability companies indicates looking to section two of section 48.061 would not be a prudent choice. Section 608.463 provides service of process against a limited liability company may be served "[i]n accordance with chapter 48 or chapter 49, as if the limited liability company was a partnership." § 608.463(1)(a), Fla. Stat. While the reference to chapter 48 may lead one to believe looking to section two of section 48.061 is permissible, the last clause of the statute limits the reference to chapter 48. This limitation, "as if the limited liability company was a partnership" leads this court to determine that section 608.463 does not give the trial court free reign to look at any section of section 48.061 it chooses. Instead, section 608.463 limits the sections of 48.061 the trial court may look to, only that which applies to partnerships, not limited partnerships. Accordingly, we decline to accept Golia's invitation to look to other statutory sections in the statute's silence regarding how to approach the situation he faced.
This conclusion leads to an unfortunate result, that Golia had no way to serve Boatfloat given that it had no regular business hours open to the public. We suggest that the Legislature review this situation in the future and provide guidance to parties, like Golia, who find themselves with no way to serve a limited liability company in such a situation. However, until the Legislature provides otherwise, we must adhere to the applicable statutes. Accordingly, we reverse the trial court's order in the instant case.
Reversed.
GUNTHER, GROSS and HAZOURI, JJ., concur.
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275 Wis.2d 832 (2004)
2004 WI App 155
686 N.W.2d 712
STATE of Wisconsin, Plaintiff-Respondent,[]
v.
Christopher ANSON, Defendant-Appellant.
No. 03-1444-CR.
Court of Appeals of Wisconsin.
Submitted on briefs April 22, 2004.
Decided July 21, 2004.
On behalf of the defendant-appellant, the cause was submitted on the briefs of Steven J. Watson of Steven J. Watson Law Office, Lyndonville, Vermont.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Christopher G. Wren, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
Before Anderson, P.J., Brown and Snyder, JJ.
*836 ¶ 1. SNYDER, J.
Christopher Anson appeals from *837 a judgment of conviction and an order affirming his conviction for second-degree sexual assault of a child in violation of WIS. STAT. § 948.02(2) (2001-02).[1] This is the second time that Anson's case is before us. In State v. Anson, 2002 WI App 270, 258 Wis. 2d 433, 654 N.W.2d 48, we discussed the legality of statements that the State obtained from Anson and introduced at trial. Id., ¶ 21. We held that the State violated Anson's Sixth Amendment right to counsel when it undertook its interrogation, and accordingly, the trial court erred when it failed to suppress Anson's statements. Id. We remanded the matter for an evidentiary hearing to determine whether a link existed between the State's introduction of inadmissible statements and Anson's decision to testify at trial. Id., ¶ 29. Anson argues that the trial court failed to follow our directions on remand and that the State failed to prove that its use of the inadmissible statements did not impel Anson to take the stand. We agree and conclude that Anson is entitled to a new trial.
FACTS
¶ 2. We have set forth the historical facts of this case in our previous opinion. Id., ¶¶ 2-7. Those relevant to this appeal are repeated here, with additional facts provided as necessary. On July 26, 2000, the State issued an arrest warrant for Anson and charged him with three counts of sexual contact with a child under the age of sixteen in violation of WIS. STAT. § 948.02(2).
¶ 3. In early August, an officer from the Fontana police department contacted the Orange County California sheriff and asked for assistance in obtaining a *838 statement from Anson. On August 7, the Orange county investigator received a fax that contained an eight-page narrative, a copy of the criminal complaint against Anson, and a Xerox of a photograph of Anson and the victim. The next day, the investigator and his partner went to Anson's workplace, both to get a statement from him regarding an alleged sexual assault that had occurred in Wisconsin and ultimately to arrest him. Anson agreed to speak with the investigators.
¶ 4. During the interview, one of the investigators asked Anson why the victim would make up such a story and Anson stated that the victim had some grounds for the allegation. Anson then admitted to the investigators that the victim, while on the couch, took his hand and placed it over her clothes on her vagina and that he left his hand there for a period of time. Anson also told the investigators that from his point of view no other incidents occurred. He also stated that he had lied to his wife about the incident, telling her that the victim had taken his hand and put it on her breast rather than on her vagina. After the interview, the investigators placed Anson under arrest.
¶ 5. Prior to trial, Anson moved to suppress the statement he gave to the California investigators. The trial court denied the motion. Anson filed an interlocutory appeal of the denial, which was rejected. At trial, Anson's statement was introduced through the testimony of one of the California investigators.
¶ 6. Anson subsequently took the stand and testified that the victim had taken his hand and placed it over her clothes on her vagina. He disputed the California investigator's characterization that he had left his hand there for more than a couple of seconds. Anson also testified about lying to his wife about the incident, explaining that he had tried to minimize the event to *839 avoid upsetting her. Anson denied the allegations related to two other incidents reported by the victim.
¶ 7. A jury convicted Anson on count three of the information, second-degree sexual assault of a child in violation of WIS. STAT. § 948.02(2), which represented the incident on the couch. The jury found Anson not guilty on counts one and two of the information.
¶ 8. Anson appealed the conviction. We concluded that the statement Anson made to the California investigators violated his Sixth Amendment right to counsel and should have been suppressed. Anson, 258 Wis. 2d 433, ¶ 21. In addition, we concluded that if, by testifying, Anson waived his right against self-incrimination, any error created by the illegally obtained statement would be harmless. Id., ¶ 26. We determined that a waiver analysis under Harrison v. United States, 392 U.S. 219 (1968), and State v. Middleton, 135 Wis. 2d 297, 302, 399 N.W.2d 917 (Ct. App. 1986), was required, and we remanded the matter to the trial court with these instructions:
We direct the trial court on remand to hear evidence and make findings of historical fact concerning whether Anson testified in order to overcome the impact of the incriminating statements he made to the investigators. The State bears the burden of showing that its use of the unlawfully obtained statements did not induce Anson's testimony. Further, even if the trial court finds that Anson would have testified anyway, Harrison dictates that for the State to meet its burden of proving that Anson's testimony was obtained by means sufficiently distinguishable from the underlying constitutional violation, it must dispel the natural inference that Anson would not have repeated the inculpatory statements when he took the stand. If the trial court finds that a link in fact exists between the State's constitutional violation and Anson's subsequent *840 decision to take the stand and repeat the inculpatory statements, Anson has not waived his right against self-incrimination and is entitled to a new trial.
Anson, 258 Wis. 2d 433, ¶ 29 (citations omitted).
¶ 9. On remand the State argued that Anson's testimony presented information outside the scope of the California statement and therefore the inducement for testifying was distinguishable from the inadmissible statement. The State also asserted that the prosecution witnesses were so credible that Anson had no choice but to take the stand to rebut their testimony. The court ruled that Anson would have testified even if the inadmissible statement had been suppressed, and that there were independent, distinguishable reasons for his decision to take the stand. Anson appeals.
DISCUSSION
¶ 10. The ultimate issue here is whether Anson waived his constitutional protection against self-incrimination when he testified at trial. To make that determination, Harrison requires a two-part analysis. First, the court must determine whether the trial testimony was impelled by the prosecution's wrongful use of the illegally obtained confession. Harrison, 392 U.S. at 224. If not, the court must then decide whether the incriminating statements would have been repeated in the trial testimony had the illegally obtained confession been suppressed. Id. at 225-26. In other words, Anson's decision to testify and the content of his testimony are to be scrutinized.
¶ 11. On remand the court found that the State's use of Anson's illegally obtained statement did not *841 impel him to testify at trial. The issue before us is whether this finding is in error. We apply a two-step standard of review to issues of constitutional fact. We will not set aside a trial court's finding of historical fact unless it is clearly erroneous. WIS. STAT. § 805.17(2). Our review of a constitutional fact on the grounds of established historical fact, however, is de novo. State v. Turner, 136 Wis. 2d 333, 344, 401 N.W.2d 827 (1987).
¶ 12. The State argues that at the evidentiary hearing the court properly applied a "totality of the circumstances" framework for its ruling. We agree with the State that similar postconviction hearings provide an opportunity to look at the entire record when assessing whether error occurred. See, e.g., State v. Johnson, 153 Wis. 2d 121, 130, 449 N.W.2d 845 (1990) (where the court applied a "totality of the circumstances" analysis at a Machner[2] hearing on ineffective assistance of counsel); see also State v. Bangert, 131 Wis. 2d 246, 275, 389 N.W.2d 12 (1986) (The State may examine the defendant or the defendant's counsel to shed light on the defendant's understanding or knowledge necessary to enter a plea, and may also use the entire record to demonstrate that the defendant knew that constitutional rights would be waived.). We do not agree, however, that the evidentiary hearing court can stray from the record and consider intangible or speculative information from the trial. We hold that at an evidentiary hearing under Harrison/Middleton, the State may examine the defendant or defendant's counsel regarding the defendant's reason for testifying, and may use the entire record to meet its burden of showing *842 that its use of an unlawfully obtained statement did not induce the defendant's trial testimony.
¶ 13. We now turn to the evidentiary hearing. Under Harrison, when a defendant takes the stand in order to overcome the impact of an illegally obtained statement, his or her testimony is tainted by the same illegality that rendered the statement inadmissible. Middleton, 135 Wis. 2d at 302. The State must prove that Anson's testimony was obtained "by means sufficiently distinguishable" from the underlying illegality "to be purged of the primary taint." See Harrison, 392 U.S. at 226 (citing Wong Sun v. United States, 371 U.S. 471, 488 (1963)).
¶ 14. The State called one witness: Jeffrey Recknagel, its primary investigating officer. Recknagel testified that Anson did not have any criminal history and that Anson was calm and articulate on the taped California interview. He further testified as to the appearance and demeanor of several State's witnesses during the trial.[3] The State argued that
[t]he issue is: did [Anson] testify only because this statement was put into evidence, or because of other factors; such as, all of these other witnesses who, if they didn't come across at all credible, it's obvious he wouldn't have bothered or cared to testify to rebut their testimony; however, if they came across as clean cut, articulate, and credible people, that would add to the *843 state's argument that he would have had more reason to testify to rebut their testimony.
¶ 15. The State also referenced trial transcripts to demonstrate that Anson announced during his opening statement that he would testify. Furthermore, the State argues, Anson testified about matters outside the scope of the California statement, including his family history and his relationship with the victim. Finally, the State argued that because Anson's testimony was the same as his California statement, he did not testify to rebut any of its contents.
¶ 16. Anson called one witness, his trial attorney Larry Steen, whose undisputed testimony was that Anson's trial testimony was induced by the admission of Anson's illegally obtained confession. See Harrison, 392 U.S. at 224 (The question is "whether the petitioner's trial testimony was in fact impelled by the prosecution's wrongful use of his illegally obtained confessions."). Steen testified that he knew of the California interview and that he moved for suppression of the statement; however, the court ruled that the statement was admissible. Steen then explained the advice he had given his client about testifying at trial:
My recommendation to [Anson] was that he was going to have to testify at the jury trial because of the fact that the statement was going to be entered in as evidence . . . . On the day of his testimony, I was approached by . . . [Anson's] stepfather, who told me that [Anson] did not want to testify . . . . I then found [Anson] either in the courtroom or the hall. I don't remember. I asked [Anson] what was wrong. He said he did not want to testify. I told him he absolutely had to because of the damaging effect of that statement . . . . He told me he would follow [my] advice.
On cross-examination, Steen responded as follows:
*844 Q . . . What sort of factors did you take into consideration in your discussions with the defendant in deciding whether or not he would take the stand?
A The statement was the sole reason. The statement was the key piece of evidence, except for what [the victim] said happened. That was the only evidence the state had.
¶ 17. Anson points out that by the time he made his opening statement, his motion to suppress had been denied and his attempt at an interlocutory appeal on that decision had been unsuccessful. Anson further observes that the State's opening comments broadcast to the jury that it would use the California statement against him. During its opening statement, the State told the jury that Anson admitted the victim might have some grounds for her allegation. The State also told the jury that it would hear Anson's admission that when the victim took his hand and put it on her vagina, he froze for three minutes. Finally, the State told the jury that Anson had lied to his wife about the incident. Steen testified that the defense felt "the case turned on the statement given in California."
¶ 18. At the conclusion of the evidentiary hearing, the court ruled that there was an "independent distinguished basis" for Anson's testimony other than the California statement. The court relied on the following findings of historical fact:[4] (1) In the taped statement, Anson admitted to one incident of touching but explained it by the concept of consent; (2) In addition to Anson's statement, the State offered the testimony of *845 the victim and other witnesses; (3) Anson had no criminal record; (4) Anson's trial testimony was substantially the same as the California statement; and (5) Steen told Anson he had to take the stand.
¶ 19. The record reveals that the court also considered facts not in evidence at trial or the hearing. The court referenced its observations of family distress in the courtroom during the trial, as well as trial witness credibility to make its findings. These were not appropriate considerations. By straying into intangible aspects of the trial, the evidentiary hearing court violated Anson's Sixth Amendment right to confront witnesses against him. Specifically, the court based its ruling in part on the following observation:
Quite honestly, [Anson testified] also perhaps to have some kind of compatibility with what he had told his wife before. That might not have been known to the state, but that might have been something he had to face the family to get up there and take the stand. And I saw the whole family scenario here as a trial Judge. So I know there was a tremendous division, and reason for [Anson] to take the stand and deny or explain it.
In effect, the court speculated on the family's influence without providing Anson with an opportunity to confront the family members on the issue. Based on its findings, the court stated that Anson "really had no other reason not to testify" because he had no criminal record to hide and he did not substantially change the story he told the investigators. The court concluded, "I'm making my determination that it's not linked in the sense that is set forth in the Harris(sic) case, which I believe was adopted . . . and that's it."
*846 ¶ 20. We will find an erroneous exercise of discretion when the record shows that the lower court failed to exercise its discretion, the facts fail to support the court's decision, or we find that the court applied the wrong legal standard. State v. Black, 2001 WI 31, ¶ 9, 242 Wis. 2d 126, 624 N.W.2d 363. Here, we have several concerns regarding the exercise of discretion.
¶ 21. First, the court mischaracterized the inquiry. The State's burden was to prove that its use of illegal evidence did not induce Anson to testify. Anson, 258 Wis. 2d 433, ¶ 29. The court's determination that Anson "really had no other reason not to testify" reflects the wrong legal standard. The Harrison Court acknowledged that there may be many reasons for a person to take the stand. Harrison, 392 U.S. at 224 ("It is, of course, difficult to unravel the many considerations that might have led the petitioner to take the witness stand . . . . But, having illegally placed his confessions before the jury, the Government can hardly demand a demonstration by the petitioner that he would not have testified as he did if his inadmissible confessions had not been used."); see also United States v. Pelullo, 173 F.3d 131, 136 (3rd Cir. 1999) ("The Harrison Court recognized the importance of examining that causal link to determine whether the government's use of a defendant's illegal confession at trial induced the defendant to take the stand to testify and, in doing so, make a number of admissions that might not have come out but for that testimony. While acknowledging that a number of factors inevitably play a part in a defendant's decision to testify, the Court concluded that the government had failed to prove that the defendant's testimony was obtained by means sufficiently distinguishable *847 from the underlying constitutional violation."). Had Anson's inadmissible statement been properly suppressed, he had a compelling and constitutionally sound reason not to testify: the Fifth Amendment protection against self-incrimination. More importantly, he would have had the opportunity to weigh that protection against the benefits of testifying to refute legally introduced evidence.
¶ 22. Second, the court did not explicitly identify the historical facts underpinning its decision. We were left to infer from the evidentiary hearing record which facts may have influenced the court's ruling. We are particularly concerned that the court resorted to facts not in evidence to reach its conclusion. Specifically, the court's characterization, and apparent consideration, of the family's courtroom interactions during trial deprived Anson of his Sixth Amendment right to confront witnesses against him. Here, the court speculated on Anson's motive for testifying without any facts to support the inferences drawn and without an opportunity for Anson to cross-examine those whose behavior apparently influenced the court.
¶ 23. Finally, the court did not address the second part of the Harrison test: whether Anson would have repeated the incriminating statements on the stand had the California statement been properly suppressed. See Harrison, 392 U.S. at 225. Even if Anson would have chosen to testify, it is unlikely that he would have said that the victim "may have some grounds for the allegation," or referenced a three-minute time frame for the touching episode, or admitted lying to his wife about the incident. The State has not, therefore, defeated the "natural inference" that "no testimonial admission so *848 damaging would have been made if the prosecutor had not already spread the petitioner's confessions before the jury." Id. at 225-26.
¶ 24. Interestingly, the only direct evidence of Anson's inducement to testify came from Steen's testimony at the hearing. The State did not call Anson to refute Steen's testimony, nor did it undertake to call Steen's credibility into question. We acknowledge that the trial court has no obligation to believe everything a witness says, and when the record reveals inconsistencies within a witness's testimony or between one witness and another, the court as fact finder determines the weight and credibility accorded to the testimony. State v. Daniels, 117 Wis. 2d 9, 17, 343 N.W.2d 411 (Ct. App. 1983). Here, however, the court was not presented with any inconsistencies from which to choose. The State failed to present any testimony or other evidence to rebut Steen's statements, nor did the State undertake to challenge Steen's credibility. The court simply decided, "I just can't put that much weight on that as a link."
¶ 25. Clearly, having had his own inculpatory statements submitted to the jury, Anson was "powerfully impelled to explain them: after all, no one else was in a position to do so." See Pool v. State, 780 S.W.2d 350, 351 (Ark. App. 1989) ("The Harrison Court placed a great emphasis on the powerful inducement to testify which arises when a defendant's confession is introduced into evidence."). Our independent review of the record allows us to draw only one reasonable inference: that the State's use of the illegally obtained California statement at trial impelled Anson to take the stand and testify in rebuttal. We may decide which *849 inferences may be reasonably drawn from the facts. Middleton, 135 Wis. 2d at 321. Determining the reasonableness of an inference is a "recognized appellate function." Id. If only one reasonable inference is available, the drawing of that inference is a question of law. Pfeifer v. World Serv. Life Ins. Co., 121 Wis. 2d 567, 571, 360 N.W.2d 65 (Ct. App. 1984). The competing inference, that Anson was not impelled by the State's illegal use of his statement, is unreasonable in light of the facts.
¶ 26. At the close of the hearing, the court reinstated Anson's conviction, ruling that the error was harmless. Because we disagree with the court's conclusion that Anson waived his right against self-incrimination, our previous harmless error analysis applies. We resolved this issue, pending the resolution of the waiver issue, as follows:
We cannot conclude that the error was harmless beyond a reasonable doubt . . . . [W]e note that the only count on which the jury convicted Anson is the count involving the incident about which he had made the incriminating statements. In the two other counts, where the sole evidence consisted of testimony, the jury found Anson not guilty. Based on our reading of the record, we cannot conclude that a rational jury would have found Anson guilty absent his statements.
Anson, 258 Wis. 2d 433, ¶ 31. For this reason, we hold that the State's original violation of Anson's constitutional right to counsel is not harmless.
CONCLUSION
¶ 27. We conclude that at an evidentiary hearing under Harrison/Middleton, the State may examine the defendant or defendant's counsel regarding the defendant's *850 reason for testifying, and may use the entire record to meet its burden of showing that its use of an unlawfully obtained statement did not induce the defendant's trial testimony. We further conclude that the State did not meet its burden to prove that "its use of the unlawfully obtained statements did not induce Anson's testimony." Anson, 258 Wis. 2d 433, ¶ 29. Also, at the evidentiary hearing the court failed to complete the second step of the Harrison analysis which requires the court to determine whether the State has dispelled the natural inference that even if the defendant takes the stand, he or she will not repeat the inculpatory statements. Anson, 258 Wis. 2d 433, ¶ 29. Finally, we conclude that Anson did not waive his Fifth Amendment protection against self-incrimination when he testified because he took the stand to overcome the impact of his illegally obtained and used confessions. See Harrison, 392 U.S. at 223 (If a defendant takes the stand "in order to overcome the impact of confessions illegally obtained and hence improperly introduced, then his testimony was tainted by the same illegality that rendered the confessions themselves inadmissible."); see also Middleton, 135 Wis. 2d at 317 ("If [the defendant's] testimony was, in fact, impelled by the prosecution's use at the trial of his illegally obtained confessions, then his testimony is as tainted as his confessions."). Anson's conviction on count three is therefore reversed and he is entitled to a new trial.
By the Court.Judgment and order reversed and cause remanded with directions.
NOTES
[] Petition to review granted 12-15-04.
[1] All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.
[2] State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
[3] For example, Recknagel testified that one witness against Anson was "[v]ery calm, collect, fully adult . . . very proper [and] well-dressed." Anson objected to Recknagel's testimony, arguing that Recknagel was not competent to testify on witness credibility. The court did not explicitly rule on the objection, but allowed the testimony to continue.
[4] Although not explicitly identified as findings of fact, the court incorporated these statements into its oral ruling at the evidentiary hearing.
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686 F.Supp. 631 (1988)
Barbara ZAMLEN, et al., Plaintiffs,
v.
CITY OF CLEVELAND, et al., Defendants.
UNITED STATES of America, Plaintiff,
v.
CITY OF CLEVELAND, et al., Defendants.
Nos. C83-2484, C83-4998.
United States District Court, N.D. Ohio, E.D.
May 27, 1988.
*632 *633 *634 Jane M. Picker, Kathryn Olson, Kathryn M. Braeman, Edward G. Kramer, Roberta Reed, Vincent T. Lombardo, Marilyn Tobocman Sobol, Kenneth J. Kowalski, Kramer & Tobocman, Cleveland, Ohio, for plaintiffs in No. C83-2484.
Janet Burney, John D. Maddox, Director of Law, City of Cleveland, Cleveland, Ohio, for defendants.
Richard J. Giffels, Walter A. Rodgers, Beth Sebaugh, Quandt, Giffels, Buck & Rodgers, Cleveland, Ohio, for Dr. Norman Henderson.
Roger Colaizzi, William Bradford Reynolds, Richard S. Ugelow, Clifford Johnson, Civil Rights Div., U.S. Dept. of Justice, Washington, D.C., for plaintiffs in No. C83-4998.
MEMORANDUM OF OPINION AND FINDINGS OF FACT AND CONCLUSIONS OF LAW
KRENZLER, District Judge.
This Memorandum of Opinion and Findings of Fact and Conclusions of Law will be written in several sections. First there will be a discussion in the form of a memorandum of opinion. Second, there will be findings of fact and conclusions of law. Finally, there will be general conclusions.
I. Procedural Background
In Case No. C83-2484, the named plaintiffs, who brought the action on behalf of themselves and as class representatives, include Barbara Zamlen, Charlene Cuffari, Sharon Pirosko, Leana Adkins, Jennifer Garuccio, Concetta K. Zingale, Diane Horne, and Denise Campbell. The class includes all women who were unsuccessful applicants for entry-level firefighters in 1983 for the City of Cleveland ("City").
The original defendants included the City of Cleveland; George Voinovich, Mayor; Reginald M. Turner, Director, Department of Public Safety ("Safety Director Turner"); Thomas Skulina, President, Civil Service Commission; Edmund J. Turk, Vice-President, Civil Service Commission; Irene M. Morrow, Secretary, Civil Service Commission; Nancy Oliver, Civil Service Commission member; Solomon Harge, Civil Service Commission member; Karl Schneider, Personnel Administrator, Civil Service Commission; James McNamee, Fire Chief for the City ("Chief McNamee"); and Norman D. Henderson, Personnel Testing and Statistical Analysis ("Dr. Henderson"). All of the public officials were sued as individuals and in their official capacities.
The action was originally brought in four counts. Count One alleged that both the physical and written portions of the examination for entry-level firefighters in the City had an adverse impact on women applicants, was discriminatory, and violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. ("Title VII"). Count Two alleged a violation of 42 U.S.C. § 1983 ("§ 1983") based upon violations of the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. Count Three alleged a conspiracy among the defendants under 42 U.S.C. § 1985(3) ("§ 1985(3)") to deprive the plaintiffs of their rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. Count Four alleged that the defendants committed fraud by violating Ohio Rev.Code Ann. § 124.58, in that the defendants defeated, deceived or obstructed the plaintiffs' rights of examination, appointment or employment.
The plaintiffs are seeking injunctive relief as well as backpay, prejudgment and post-judgment interest, costs, attorneys' fees, and such other permanent relief as the Court deems just and proper.
The municipal defendants filed an answer which is in the form of a general denial of all of the principal allegations of the plaintiffs' complaint. In addition, the municipal defendants raised several affirmative defenses including that the selection device at issue is job related and predictive *635 of job performance. Dr. Henderson filed a separate answer in the form of a general denial of all of the principal allegations of the amended complaint. In addition, he asserted several affirmative defenses, the principal one being that the test that he designed and administered was job related.
In Case No. C83-4998, the United States of America ("United States"), the plaintiff, brought the action against the following named defendants: the City, Cleveland Civil Service Commission, Cleveland Fire Department, and in their official capacities, Turner, Director, Department of Public Safety; McNamee, Fire Chief, Cleveland Fire Department; Thomas Skulina, Edmund J. Turk, Irene M. Morrow, Nancy Oliver, Solomon Harge, members of the Cleveland Civil Service Commission.
This action was brought pursuant to § 707 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-6(a). The United States alleges that the defendants are responsible for establishing the terms, conditions, and other practices which bear upon the employment of firefighters in the City. The City employs approximately 961 individuals in sworn positions in the Cleveland Fire Department. At the time the complaint was filed not one of them was a woman. It is alleged by the United States that the defendants have pursued, and continue to pursue, policies or practices which discriminate against women and which deprive or tend to deprive women of employment opportunities because of their sex. It is alleged that the defendants have failed to adopt and use selection procedures for hiring which do not have an adverse impact on women and which are valid predictors of successful job performance or which are shown to be required by business necessity. The defendants' acts and practices constitute a pattern or practice of resistance to women's right to the full enjoyment of equal employment opportunities within the Cleveland Fire Department.
The United States is only seeking injunctive relief against the defendants to halt discrimination on the basis of sex in hiring, training and the assignment of female applicants or employees. The defendants filed an answer in the form of a general denial and raise the same affirmative defenses as in Case No. C83-2484. The two cases were consolidated for trial.
CLASS CERTIFICATION
In Case No. C83-2484, the Court certified the class as all unsuccessful women applicants for the 1983 entry-level firefighters examination in the City and all future women applicants.
DISMISSAL OF DR. NORMAN D. HENDERSON
The defendant Dr. Henderson was dismissed as a party defendant through settlement prior to trial.
DISMISSAL OF OTHER DEFENDANTS
Prior to and during trial, all of the public officials were dismissed as defendants in the litigation.
DISMISSAL OF COUNTS TWO, THREE AND FOUR OF CASE NO. C83-2484
At the end of the plaintiffs' case, the defendants moved for a directed verdict as to all four counts of the complaint. The Court granted the defendants' motion as to Count Two, the § 1983 case; Count Three, the conspiracy or § 1985 case, and Count Four, the pendent state claim for fraud. After dismissal of Counts Two, Three and Four and of the parties listed above, the trial continued as to Count One, the Title VII case against only the City.
II. Discussion
This is a typical Title VII case with the usual three-part procedures for trial. The plaintiffs must first establish a prima facie case of sex discrimination. The defendants must then establish a business purpose or, in this case, the job relatedness of the test used to select firefighters. The plaintiffs must then proceed to establish that the job-related test is a pretext for discrimination. This is done by proving that there is another test that is equally job related, will have less adverse impact on women, is not discriminatory, and that will result in a strong probability that women applicants will be hired as entry-level fire-fighters. The purpose of this portion of *636 the trial is to show pretext and to negate the finding that the test given was nondiscriminatory.
There are many discrimination cases brought against governmental agencies by the United States or by minorities. Many of these cases are resolved by consent decrees which provide for set asides, which give a certain percentage of the jobs to minorities. When these cases are challenged they are usually upheld on the basis of a finding of past discrimination against the minority.
Further, many municipalities now have affirmative action plans which accomplish the same result as these consent decrees. When affirmative action plans are challenged, they also are usually upheld on the basis of past discrimination. The courts have held that municipalities can set aside or provide for a certain percentage or a number of entry-level positions and/or promotions for minorities.
In the present action, we are not dealing with black, white, or Hispanic male applicants for entry-level firefighters. Also, there is no consent decree or affirmative action plan which sets aside jobs for women. The question in the instant action is whether the theory of current preferential hiring to remedy past discrimination which applies to other minorities also applies to women.
There is no question that women have been discriminated against in many fields, intentionally or otherwise. There is no dispute that discrimination against women is unlawful. 42 U.S.C. §§ 2000e, et seq.; Berkman v. City of New York, 812 F.2d 52 (2d Cir.1987); Brunet v. City of Columbus, 642 F.Supp. 1214 (S.D.Ohio 1986), appeal dismissed, 826 F.2d 1062 (6th Cir. 1987). There can be no job discrimination on the basis of sex. The question is whether courts should recognize the fact of past discrimination against women and afford the same type of relief as that given to other minorities because of past discrimination.
In the case of blacks, the courts have made an accommodation because of past discrimination. However, current law does not provide that a certain percentage or number of jobs must be set aside for women because of past discrimination. Further, current law does not require that an affirmative action plan have a percentage or a stated number of women as entry-level firefighters. It is possible that this could be accomplished voluntarily by a consent decree or an affirmative action plan. No such voluntary resolution has occurred in this action. The current law, however, provides only that employers shall not discriminate against women, either in initial hiring or promotion.
Dr. Henderson was hired by the City to prepare entry-level firefighter examinations for 1977, 1980 and 1983. It is the written and physical components of the 1983 examination that are under attack in this action. Simply stated, the plaintiffs are alleging that both the physical and written portions of the examination have an adverse impact on women, are discriminatory, are not job related and, in the alternative, that there are tests that are equally job related that have a lesser adverse impact on women. The City contends that it is not liable because the written and physical components of the examination did not have an adverse impact on women, are job related and are nondiscriminatory.
The City has charter provisions and Civil Service regulations providing for the examination, testing, and hiring, by rank-order of City employees. These provisions provide for preference points which give veterans five points and residents of the City ten points on the Civil Service Examination. Cleveland, Ohio, Charter, ch. 27, § 74. The City also provides for rank-order, one-in-three hiring which means that for every opening three applicants will be considered by the hiring agency. Cleveland, Ohio, Charter, ch. 27, § 131. The procedure used by the City is to have tests, both written and physical, administered and graded. Successful applicants then are certified to the hiring agency.
For entry-level firefighters, the following is the procedure:
(1) written test;
(2) physical examination;
*637 (3) psychological examination;
(4) medical examination; and
(5) background check.
In the present case, there was both a written and a physical examination, each with a maximum of fifty points or a total of 100 points on both components. Seventy percent is passing.
In this action we are dealing with firefighters. Firefighting is a highly skilled profession which requires strength, speed, endurance and a high degree of intellect. Because firefighting is concerned with matters of life and death and destruction of valuable property, it is a very important job. The standards normally applicable to the average job are not necessarily applicable to firefighting jobs.
The City, a charter city, has decided to use rank order for the hiring of firefighters. The City has decided that it wants the best possible firefighters. There is nothing improper with this, as long as the procedures used are not discriminatory against minorities and women. The City is not required to lower or reduce qualifications for entry-level firefighters for the purpose of accommodating minorities and women. The City can make a policy decision to hire the best qualified applicants and provide for rank-order hiring, but it cannot discriminate. The City could make a policy decision to hire generally qualified and adequate persons for the job, use a rank-order or pass/fail system with random selection and not discriminate. It is the City's choice. In other words, the City is free to choose any system of hiring as long as it does not discriminate against women and minorities.
Further, the City has elected not to have a formal affirmative action plan, as such. Nor is the City required to have an affirmative action plan. It is recognized that Title VII contemplates and encourages voluntary affirmative action plans, but there is no actual legal requirement that the City have an affirmative action plan that would mandate a certain minimum number of women firefighters.
There was testimony in this action that the City had some type of affirmative action plan to encourage women applicants to apply and be hired as firefighters. The City also provided for some training for women applicants over a twelve-week period. This Court does not find that the City has a typical affirmative action plan but only a quasi-policy to afford women applicants an equal opportunity to be hired. This was nothing more than a statement of the law regarding discrimination. This Court would not classify the recruitment and training program for women as a very concentrated effort to qualify women applicants for entry-level firefighters. The so-called affirmative action plan did not provide for a guarantee of the hiring of women firefighters.
Based on the testimony in this action, we are learning more about the strengths and weaknesses of women as firefighters. This is a new phenomenon and will have to be developed. There was testimony at the trial that it will be necessary to develop recruitment and training programs over a long period of time and have a very concentrated effort to increase the upper body strengths and other strengths of women to qualify as firefighters.
One of the principal complaints of the plaintiffs is that the physical test did not have an aerobic element. There was testimony that the principal portion of the physical examination tested upper body strength, speed, and anaerobic capacity with very little emphasis on aerobic capabilities. This Court finds that for the performance of firefighter's duties strength and speed are more important than aerobics. Aerobics can be tested by the Harvard Step Test, treadmill, bicycle, or other types of stress tests and can be a part of the medical examination, rather than the physical component of the examination.
If the City is serious about affording equal opportunity for women to become firefighters, it must do as Seattle, Washington, did and have a long-range, concentrated, strenuous training program for women applicants prior to examination. In this way their necessary skills can be developed *638 and improved so that they can pass the entrance-level firefighting examinations.
The expert witnesses provided undisputed testimony that in a city such as Cleveland, Ohio, which uses rank-order hiring, has approximately 3,000 applicants for every test, and has the eligibility list expire every two years, it would be virtually impossible for women to be hired inasmuch as only approximately 40 firefighters are hired every year. The highest ranking woman applicant on the eligibility list in 1983 was No. 334.
The plaintiffs in the class action contend that the examination was discriminatory and resulted in an adverse impact against women applicants for the position of firefighters. Thus, the plaintiffs contend that the examination was invalid.
The contested aspects include the following:
(1) adding five preference points to veterans' scores;
(2) adding ten preference points to City residents' scores;
(3) adding one-and-three-quarter points to women's scores for the barbell physical portion of the examination;
(4) recognizing the Headen Decree, Headen v. City of Cleveland, Case No. C73-330 (N.D. Ohio April 25, 1975) ("Headen Decree"), and adding six points to minority applicants' scores on the written portion of the examination;
(5) failing to announce the exact physical examination events to be given;
(6) using a capping system;
(7) using an improper sequence of the physical events;
(8) using nonuniform rest periods between physical events;
(9) using a biased sampling in the validation system used by Dr. Henderson;
(10) using validation by Dr. Henderson which was done too late;
(11) constructing a rank order which was improper;
(12) failing to include an aerobic component in the physical portion of the examination.
(13) permitting late applications to be filed by some male applicants;
Each of the foregoing will be discussed.
1. VETERANS' PREFERENCE5 POINTS
This applies equally to men and women and is not considered to be discriminatory against women.
2. RESIDENCY10 POINTS
This applies equally to men and women and is not deemed to be discriminatory against women.
3. ADDING BARBELL POINTS FOR WOMEN1¾ POINTS
Dr. Henderson added one-and-three-quarter points to women's scores for the barbell event because of their lack of familiarity with barbells. Adding these points was advantageous to women and, therefore, not discriminatory against women.
4. RECOGNITION OF THE HEADEN DECREE6 POINTS
The Headen Decree was a valid decree of this Court which required the hiring of Black and Hispanic firefighters if they were qualified. There is no question that adding six points to the qualified Black and Hispanic applicants did have some adverse impact on the women. But the Headen Decree binds this Court. While the Headen Decree may have contributed somewhat to the disparate impact, it did not in any way affect the hiring of women firefighters who took the 1983 entry-level examination.
5. ANNOUNCEMENT OF EXACT PHYSICAL EXAMINATION
The City is not required to announce the exact physical tasks to be given on the examination. If the announcement of the written and physical components of the examination is fairly representative of the examination and puts applicants on sufficient *639 notice to prepare for the test, that is all that is required. It is not necessary for the City to give the exact written or physical examination in advance to applicants. All that the City is required to do is to announce, in a fair manner, the type of physical and written examination that will be given in order for the applicants to prepare for the examination. It is not necessary to give the exact events.
6. USE OF CAPPING SYSTEM
This is a method that limits or caps the maximum score that a person can receive on certain sections of the written examination. This permits an applicant to have some wrong answers and still get the maximum score in that section. This does not discriminate against women applicants.
7. SEQUENCE OF EVENTS
The plaintiffs complain about the sequence of physical events. No two fires are exactly alike and the sequence of events varies from fire to fire. It is not necessary for the City to announce in advance the sequence of physical events. The sequence was the same for male and female applicants. The sequence of events in the physical examination in 1983 was fair and reasonable and did not discriminate against women.
8. REST PERIODS BETWEEN PHYSICAL EVENTS
There were rest periods between physical events 1 and 2 and events 2 and 3. There were twelve to fifteen minutes between physical events 1 and 2 and eight to nine minutes between events 2 and 3. These rest periods were fair and reasonable and it was not necessary to have the same rest periods between the physical events. The rest periods did not discriminate against women.
9. BIASED SAMPLING IN VALIDATION PROCEDURES
When the City made its validation study for 1980, it sampled 277 firefighters. When it did the validation study for 1983, it sampled only 113 of those 277 firefighters. The plaintiffs contend that this was a biased sampling. In making this concurrent validation, the City gave the 1983 physical and written examination to firefighters currently on the force and compared their scores with their academy training records and their job evaluations. While it would have been preferable to have the 1983 concurrent validation use all 277 firefighters, the fact that only 113 of the 277 were used did not result in discrimination against women. This was not a biased sampling.
10. TIMING OF VALIDATION STUDIES
The plaintiffs complain that the 1983 examination was flawed because the validation studies conducted by Dr. Henderson were not conducted in a timely fashion and were conducted merely for the purpose of preparing for the present litigation. There is no question that Dr. Henderson should have conducted his validation studies as soon as possible to make sure that the 1983 examination was job related. However, the question is whether the 1983 examination was or was not job related. It is the results of the validation that matters and not when the validation study is made.
11. RANK ORDER
The Charter of the City requires listing successful applicants in rank order. Cleveland, Ohio, Charter, ch. 27, § 131. For every opening or position to be filled, three names are given to the head of the department. The plaintiffs contend that the rank-order system is improper and that a pass/fail system with random hiring would be more appropriate and have less adverse impact on women and consequently no discrimination.
The City is free to choose either a pass/fail or a rank-order system. Under either method, the test must be job related and not discriminatory. The City, in its Charter, has chosen the rank-order system. It is not for the courts to determine whether the City should be required to have pass/fail or rank order. It is the court's function to decide if the City discriminated *640 in the preparation and administration of the test and the hiring of firefighters.
When a rank-order system is used, the City is required to demonstrate that by using this system, the higher score will result in a better firefighter. Based on the evidence in this action, including and the validation studies, this Court hereby approves the rank-order system and finds that it has not resulted in discrimination against women applicants for firefighters.
12. AEROBICS
Plaintiffs contend that the physical examination was discriminatory against women because it did not have an aerobic component but only had an anaerobic component. The statistics demonstrate, and the exercise physiologists testified, that men perform better than women in aerobic testing. In longer events, the difference between men and women is less but men still score substantially better than women in aerobic testing. There was no independent aerobic component in the physical examination. However, this lack of an aerobic component in the physical examination is not discriminatory. The aerobic component can be done as part of the medical component of the examination, after applicants pass the written and physical components of the examinations. While both aerobic and anaerobic components are important in firefighting, it is the anaerobic component that is more important because of the nature of firefighting. The initial period of the fire is critical. This is where the anaerobic component comes into play. Not having an independent aerobic component on the physical examination was not discriminatory against women.
13. CITY PERMITTING LATE APPLICATIONS
While the plaintiff introduced some evidence concerning this issue, it was so minor and insignificant that it does not warrant discussion and in no way affected the validity or job relatedness of the examination. It is at best a "throw in" argument of no significance.
There is no question that the statistics in this action demonstrate an adverse impact on women applicants. However, adverse impact by itself does not mean that there was discrimination against women applicants or that the test was not job related. Adverse impact results in discrimination when there is no justification for the adverse impact. If a test results in adverse impact but the test is job related, it will stand as valid unless the plaintiff can demonstrate that another test is equally job related and has lesser adverse impact. Then, the original test will be found discriminatory. The plaintiffs did not prove that the job-related test designed and administered by Dr. Henderson was a pretext and thus discriminatory, by showing that another test that was equally job related would have a lesser adverse impact to such an extent that Dr. Henderson's test would be considered discriminatory and invalid.
This Court finds that the plaintiffs proved their prima facie case that there was disparate impact. The Court finds that the City proved that the physical and written components of the examination were job related. The Court further finds that the plaintiffs failed to prove that there was an equally job-related, alternative test that would afford lesser adverse impact. Therefore, the plaintiffs failed to prove that Dr. Henderson's test was discriminatory.
FINDINGS OF FACT
1. The selection of firefighters by the City is a multi-component process. First, candidates receive a score based upon performance on a professionally designed examination. Where applicable, veteran and/or residency preference points are added to the test scores. Candidates receiving 69.5 or more points are placed, in rank order, on an eligibility list.
2. After establishment of the eligibility list, further selection components include a medical test, a psychological test, and a background check. These three procedures are conducted only upon the highest ranking candidates. These procedures are performed only on a number of applicants *641 which coincide with a particular hiring demand.
3. Insufficiencies in any of the last three selection components result in the removal of the candidate's name from the eligibility list.
4. The general practice, based on the City's Charter is for the Director of Public Safety to hire in strict top/down rank numerical order from the eligibility list. Cleveland, Ohio, Charter, ch. 27, § 131. With respect to hiring firefighters, the only departure from strict top/down rank order hiring has been pursuant to the minority (Black/Hispanic) quota hiring system instituted by the Headen Decree, designed to remedy intentional and egregious racial discrimination.
5. To meet the requirements of the Headen Decree, the City's eligibility list was, in effect, divided into minority and non-minority lists, and appointments to the position of firefighter are made in rank-order from each eligibility list.
6. If selecting firefighters from the eligibility list by numerical order did not produce the necessary number of minorities to reach the 35% required by the Headen Decree, Safety Director Turner would instruct Chief McNamee that only minorities are to be considered.
7. The Cleveland Fire Department has several different types of companies based on the equipment used: (a) engine, (b) hook and ladder, and (c) rescue squads.
8. The City has twenty-eight pumpers, fourteen hook and ladder and three rescue squads.
9. In 1984, the authorized strength of the Cleveland Fire Department was 1,500 sworn officers.
10. According to the 1980 United States Census, the workforce in the Cleveland Standard Metropolitan Statistical Area is 46% female.
11. The necessary physical qualities of a firefighter include manipulative skills and sufficient strength and endurance to perform under fire conditions.
12. Non-physical qualities desired include initiative, courage, judgment, the abilities to learn and to cooperate.
13. The City stated in its Policy Statement of Affirmative Action and Equal Employment Opportunity in 1981 that the "administration is committed to the laws and ideals of Equal Employment Opportunity for minorities, women, and the handicapped." It stated further:
Specifically the City commits itself to the development and implementation of result-oriented goals, procedures and programs to reduce the under-utilization of minorities and women, and to achieve equity throughout the entire City's work force.
14. During meetings with Chief McNamee and members of his staff, Safety Director Turner found objections being made questioning the physical capacity of women to be firefighters to be invalid.
15. Safety Director Turner expressed his belief that it is an operational need for the City's Fire Department to have a personnel force reflective of Cleveland's population, male and female, because the community expects this kind of reflectionit provides awareness, a sensitivity to community problems and enhances the division's ability to function within the community.
16. Safety Director Turner did not recommend any new criteria for the employment of firefighters from those applied in prior years except for an effort to recruit minorities and women. Being satisfied with the applicants on the 1980 eligibility list, he had not suggested that either the written or physical components of the examination be made more difficult.
17. Prior to the hiring of the women as firefighters on April 22, 1985 pursuant to this Court's March 20, 1985, Order of Dissolving Preliminary Injunction Subject to Stipulated Conditions, no woman had ever been hired by the City as a firefighter.
18. Women firefighters observed by Assistant Fire Chief William E. Lee ("Chief Lee") performed very well on the job.
*642 19. Women are firefighters presently in the cities of Columbus, Ohio; New York, New York; Seattle, Washington; and other major cities.
20. Pursuant to contract, Dr. Henderson provided examinations for entry-level firefighter selection for the City in 1977, 1980 and 1983.
21. The last three entry-level firefighter examinations given by the City were administered in 1977, 1980 and 1983. The three examinations differed somewhat in detail, but all tested similar cognitive and physical abilities.
22. A predictive criterion study was conducted correlating the performance of 277 firefighters selected from the 1980 examination with supervisory ratings obtained in 1985.
23. In 1980, twenty-eight females filed applications to take the examination.
24. In 1980, 911 applicants took both the written and physical components of the examination. Eight hundred ninety-two were identified as male and eighteen were identified as female. One applicant was unidentified by sex.
25. Of the eighteen persons identified as women who took the physical component portion of the 1980 examination, only one was placed on the eligibility list and was ranked 634, and thus, not high enough to be hired.
26. Three hundred fourteen people were hired from the 1980 eligibility list. Not one was female.
27. Of the male applicants who took both portions of the 1980 firefighter entry examination, 787 or 88.2% were placed on the eligibility list. Of the female applicants who took both portions of the 1980 firefighter entry examination, one or 5.6% was placed on the eligibility list.
28. In 1980, the rate at which women achieved a combined written and physical performance score high enough to be placed upon the eligibility list was 6.3% of the rate at which men achieved a combined written and physical performance high enough to be placed upon the eligibility list.
29. The average number of points received by persons identified as males on the physical performance portion of the 1980 entry-level firefighter examination was forty-one and the average number of points received by persons identified as females on the physical performance portion of the 1980 entry-level firefighter examination was 10.2.
30. The woman who received the highest score on the physical performance portion of the 1980 entry-level firefighter examination received 29.3 points.
31. Dr. Henderson has extensive experience in the area of job analysis and examination development for safety forces, including the position of entry-level firefighter. He has conducted over seventy job analyses and developed numerous tests, both entry level and promotional, for a variety of municipalities for the selection of safety forces.
32. The examination development process included interviews with hundreds of firefighters, the examination of fire training materials, the examination of written materials regarding operational procedures and the examination of equipment. Also used were consultations with high ranking officers, and the questionnaires to ascertain the frequency and importance of firefighting tasks.
33. Dr. Henderson's concern about gender differences and efforts to minimize adverse impact on females originated in the development of the 1977 examination and was a factor influencing development of the 1977, 1980 and 1983 examinations.
34. Building on his previous work, Dr. Henderson began a new job analysis in December of 1982. The purposes were to: (1) establish a list of tasks required of entry-level firefighters, (2) determine the frequency with which each task is performed and its importance to acceptable job performance, (3) group tasks into broad job dimensions, (4) assess the knowledge, skills and abilities required for learning and adequately performing critical and highly important job tasks, (5) determine overall knowledge, skills and abilities required for entry-level firefighters with respect to the *643 above tasks, (6) identify and define abilities and skills to be tested based on the above data.
35. An initial task list was compiled using data collected in 1974. By that time 271 Cleveland firefighters had rated 95 firefighting tasks in terms of the frequency performed and relative importance.
36. This original task list was reviewed in conjunction with the 1980 revision of the Ohio Trade and Industrial Education Fire Service Training Manual. Other sources examined were Cleveland written materials describing training and performance objectives. Task lists derived from other cities were also reviewed.
37. Revisions resulted in approximately 150 task statements.
38. The task statements were reviewed by Chief Lee, who was then Director of the Cleveland Fire Training Academy and a senior officer with over twenty-six years of firefighting experience. As a result of the review by Chief Lee and interviews with him, a final checklist of approximately 135 tasks was derived.
39. A total of thirty-five firefighters sampled from five fire stations were contacted individually to assist in the development of the job analyses. Firefighters were briefed on the purpose of the task analyses and then asked to review the task list questionnaire to clarify any misunderstanding as to how to complete the questionnaire using a computer-readable answer sheet. Each firefighter was to indicate the frequency with which he performed the job task listed. Firefighters were also asked to make note of any firefighting tasks which they thought had been omitted from the list.
40. Five senior officers in the Division were asked to rate each task listed on the questionnaire in terms of its relative importance. Each task was rated on a scale ranging from 1 (critical importance) to 4 (minor importance).
41. A list of equipment commonly used in firefighting was also compiled by Dr. Henderson and supplemented by using items found in various manuals. The list was reviewed by Chief Lee and other firefighters who were asked to add and delete items where appropriate. The equipment list was used in part to analyze knowledge skills and abilities involved in individual tasks.
42. Dr. Henderson, in conducting his job analyses, identified and evaluated twelve intellectual and perceptual abilities. They are described in the Technical Report.
43. Dr. Henderson's rating procedure for seventy-five job tasks was in accordance with professionally acceptable standards.
44. The written component of the 1983 examination measured intellectual and perceptual abilities in the approximate degree to which they are represented on the job.
45. Lieutenant John J. McManamon of the Cleveland Fire Department ("Lieutenant McManamon") designed and implemented a pre-examination recruitment and training program for women interested in becoming firefighters. He undertook this program under the direction of Chief McNamee, Chief Gerald Holman and Safety Director Turner.
46. Beginning in the fall of 1982, the City conducted an extensive recruitment campaign designed to advise females of the opportunities for employment as firefighters and to encourage qualified females to seek employment. The City also provided a free twelve-week pre-test training program for females covering both the cognitive and physical abilities necessary for firefighting. There was also a minority pre-test training program conducted by the City which was attended by both males and females.
47. Lieutenant McManamon sought and received funding from the Comprehensive Employment and Training Act (C.E.T.A.) program for the women's training program to pay for textbooks, equipment and instructors.
48. Classes in the women's training program began Monday, February 14, 1983, and continued for twelve weeks. Classes were held at the Fire Training Academy, as sanctioned by Safety Director Turner, Monday *644 through Thursday evenings from 6:30 p.m. to 10:30 p.m.
49. Due to his expertise, Chief Lee, Director of the Training Academy, was in charge of the classroom portion of the women's training program.
50. The 1982 edition of the "ARCO" Civil Service Test Tutor training manual ("ARCO book") was the textbook used for classroom instruction in the women's training program by instructors Chief Lee and John Lash.
51. Chief Lee encouraged the women to use the ARCO book and advised them that if they studied it well they should be successful on the written exam.
52. The training in the women's training program for the physical component of the 1983 entry-level firefighter examination was based primarily on the content of examinations given in prior years.
53. The physical portion of the women's training program contained evolutions in the following activities:
Dummy lift and carry (approximately 100 pounds);
Dummy drag (approximately 100 pounds);
Foam can carry (approximately 42½ pounds each2 cans);
Hose drag (two sections of 125 feet weighing approximately 100 pounds);
Tower run (running up 6 stories carrying a 2¼ inch section of hose weighing approximately 50 pounds);
Tower run (carrying an air pack weighing approximately 49 pounds and a 1½ inch section of hose weighing approximately 35 pounds);
Six-foot fence climb;
Ladder lift (12-foot extension ladder lifted from a four-foot stage, raised over the head, placed on the floor and replaced in the original position);
Balance beam walk;
Hose coupling (connecting and disconnecting section of 2½ inch hose to fire hydrant).
54. Each session in the women's training program began with a 20-minute warm-up session and a one-mile run. Generally, the physical portion of the training session lasted 2½ hours and the non-physical portion 1½ hours. The physical portion of each session ended with a volleyball game which lasted from one-half to one hour.
55. Although the discussion between Dr. Henderson and Chief Lee concerning barbells occurred early in the development of the physical agility test, Chief Lee never recommended to any of the women training for the test that they work out with barbells.
56. One week before the actual physical component of the examination, applicants received a notice describing the events that would be on the actual examination. The events listed included a barbell event, in which applicants would be required to press a thirty-three-pound barbell thirty-five times.
57. The lifting of barbells was never required in previous Cleveland Firefighter entry-level examinations.
58. The training instructors obtained a set of barbells in order to provide some training to the women for this event. In the week immediately prior to the actual examination, the women trained for the first time for this event. The women who did such training improved somewhat, but it was the opinion of Lieutenant McManamon that with additional training the women could have become more proficient with the barbells.
59. In 1983, 485 persons enrolled in the Don McNea Police and Fire School in preparation for the 1983 firefighter entry-level examination. Of the top 100 persons on the eligibility list, forty-eight were McNea students; of the top 200, ninety-two or ninety-three were McNea students, and out of the top 300, 134 were McNea students. Six of the nine women who took the McNea classes were on the eligibility list.
60. Don McNea based his curriculum on prior examinations and from the study guide prepared by Dr. Norman Henderson. These materials indicated to him that mechanical *645 reasoning and technical subjects would be covered on the written component of the examination, including material found in the Ohio Fire Training Manual.
61. Basing its curriculum for the physical component of the course on Henderson's earlier tests, the McNea School's training included a dummy drag, a hose drag (a 2½ inch hose), and a stair climb carrying a donut roll of hose. Weight lifting was recommended to develop biceps and forearms to enable candidates to carry the donut roll up 5 or 6 flights of stairs.
62. The Civil Service Announcement, issued January 3, 1983, informed candidates that the written portion would measure basic reading and math skills, the ability to follow directions, the ability to recall basic factual materials, and a variety of judgment and reasoning skills related to firefighting performance. Candidates were also informed that the physical agility portion would measure endurance, upper and lower body strength, and hand/eye coordination. The announcement advised that candidates be required to perform a series of events using actual firefighting equipment and that such equipment may have to be carried up and down stairs; that they have to drag hoses; and that they would perform a simulated rescue with a dummy of adult body weight. Candidates were informed that prior physical fitness training to increase physical endurance was recommended to maximize performance on the examination.
63. On April 30, 1983, the City administered the written portion of the examination. The physical portion was administered between May 7 and May 13, 1983.
64. 3,612 persons applied to take the 1983 entry-level firefighter examination. 2,212 took the written test and 1,223 took the physical examination.
65. A composite score of 100 points was the maximum achievable score, with fifty points achievable for each portion.
66. In addition to the composite examination score, each candidate who was a qualifying veteran received five points pursuant to the City charter. Cleveland, Ohio, Charter, ch. 27, § 74.
67. Each candidate who was a Cleveland resident at the time of application and who received a score of 69.5 or greater (composite test score plus veterans' points, if applicable) received 10 points pursuant to the City charter. Id. Most candidates received residency points and nearly every candidate who was hired in 1983 and 1985 received residency points.
68. Pursuant to instructions from the Civil Service Commission, the 1983 entry-level firefighter examination required that applicants complete the written portion of the examination successfully before taking the physical performance test.
69. The job of firefighter in the City of Cleveland requires certain cognitive abilities including reading comprehension, numerical skills, and various forms of reasoning.
70. The written examination included 120 questions divided into six sections. Dr. Henderson pre-tested all reading and math materials on four women and one man, each of whom was either a student or a relative of Dr. Henderson. Some of these same individuals also assisted in the development of test questions.
71. The first section of the written examination consisted of twenty questions which were based on study materials distributed at the beginning of the examination. The second section consisted of twenty-eight questions designed to test reading comprehension. The third section consisted of fifteen questions designed to test the candidates' ability to follow directions. The fourth section consisted of twenty-five mathematical questions, one of which was not graded. The fifth section consisted of eighteen questions designed to test judgment. The sixth section consisted of fourteen questions designed to test reasoning ability.
72. Although each question answered correctly on the written examination gave the candidate a half point, the scoring of the written examination involved the setting of a cap on maximum scores within each section of the examination. The capping *646 of scores was used in the scoring of examination answer sheets of all candidates taking the written examination.
73. The examination answer sheets of candidates of certain minority groups were graded differently from those of other candidates, pursuant to the Headen Decree.
74. Candidates who had indicated on Civil Service Commission racial information forms, completed at the time they applied to take the 1983 entry level firefighter examination, that they were Black or of Hispanic background received certain additional points on the written examination, pursuant to the Headen Decree.
75. The passing score on the written examination was 35.00 for whites and 29.00 for minorities. These cutoffs were not based on possible job performance but only on whether the applicant could reasonably be expected to rank high enough on the eligibility list to be considered for hiring.
76. Points were awarded to qualified veterans prior to their taking the written examination. Five points were added to the scores of veterans without regard to whether they received a passing score of 35.00 on their written examinations.
77. 285 women took the written portion of the 1983 entry-level firefighter examination and 122 women successfully completed it. 1,927 males took the written portion of the examination and 1,206 successfully completed it. Twenty-nine females were placed on the eligibility list but none ranked high enough to be hired during the two-year period within which the eligibility list is used.
78. The City was required by Court Order of January 17, 1977, to follow the Uniform Guidelines on Employee Selection, 29 C.F.R. §§ 1607, et seq. ("Uniform Guidelines"), with respect to future hirings for firefighters. Headen v. City of Cleveland, C733-330, slip opinion at 5. Dr. Henderson was also required by the City's RFP for the 1983 examination to follow the Uniform Guidelines.
79. Up to six points were added to the written score of male and female minority candidates who had not already earned full credit within the ceiling approach used for scoring. This was done in an effort to ensure that a sufficient number of minorities were available to take the physical portion of the examination in an attempt to comply with the minority preference provisions of the Headen Decree.
80. Hiring is done within race pursuant to the Headen Decree, thereby adding points to the written scores of male and female minority candidates and thus did not affect the validity of the 1983 examination.
81. The scoring of the written portion of the 1983 examination was as follows:
Section Items Ceiling Maximum
Points
1 Study Material 20 18 9.0
2 Reading Comprehension 28 23 11.5
3 Following Directions 15 15 7.5
4 Numerical Skills 25 20 10.0
5 Conclusions & Judgment 18 13 6.5
6 Reasoning 14 11 5.5
Total 120 100 50
82. The physical component of the 1983 examination consisted of three events. In Event 1, using a barbell containing thirty-three pound weights, candidates were required to repeatedly lift the barbell overhead for one minute or until they reached the maximum of thirty-five lifts. In Event 2, while wearing a standard self-contained breathing apparatus tank, which had been individually fitted by fire personnel, a candidate was required to drag two lengths of standard 2½ inch hose a total of 180 feet (ninety feet in one direction, drop coupling, run to the other end of the hose, pick up and return ninety feet dropping the coupling in a designated area), run approximately seventy feet to a pumper, remove a one-person ladder (twelve feet and approximately thirty-five pounds) from the side of the pumper, carry the ladder into the fire tower, place the ladder against the back wall of the first landing which was marked with a sign, and continue up the inside stairwell to the fifth floor where a monitor observed that the candidate reached this point. The applicant then returned to the first landing, retrieved the ladder and placed it on the pumper. A candidate's score was based on the time required to *647 complete the entire event. All candidates were given verbal instructions concerning the procedures to be followed, including the proper way to direct the hose over their shoulder to maximize their pulling capacity. In Event 3, applicants, also wearing the self-contained breathing apparatus tank, were required to drag a bag weighing 100 pounds seventy feet, including forty feet of low headroom area (thirty-eight inches high), turn and return to the starting point. The time to complete this event was used as a basis for establishing performance score.
83. The Training Academy provided instruction with respect to subjects on which the applicants were examined in the written component of the 1983 entry-level firefighter test. Training in the Academy was based on the Ohio Fire Service Training Manual. This book was distributed to all cadets and the Academy has been using it since 1972.
84. Instructors at the Training Academy instruct the cadets, in using a pike pole, to bend their knees. The barbell lift was meant to simulate the use of pike poles in tearing ceilings. Directions for this physical event required candidates to perform the lifts with their legs straight.
85. The probability that only one woman would achieve a score high enough to be placed on the eligibility list to be unrelated to sex is one in 5,000.
86. The scoring of the physical portion of the 1983 examination was as follows:
Event 1 (Barbell Lift)
Ceiling35 lifts
Score = (10 × no. of lifts)/35
Maximum points10
Event 2 (Hose Drag and Tower Climb)
Ceiling95 seconds
Score = (195 sec. - applicant's time)/4
More than 175 sec. but less
than 5 min. = 5 pts.
More than 5 min. = 0 pts.
Maximum points25
Event 3 (Dummy Drag)
Ceiling30 seconds
Score = (90 sec. - applicant's time)/4
More than 76 sec. but less
than 5 min. = 4 pts.
More than 5 min. = 0 pts.
Maximum points15
87. Up to 1.75 points were added to the physical agility scores of females who had not already earned the full credit on the barbell event (Event No. 1) to adjust for lack of familiarity with barbells. The effect was to reduce male/female differences on the barbell event to less than one (1) point.
88. The most critical aspects of firefighting occur during the initial few minutes after arrival at the fire and whenever rescue is being performed. The physical abilities necessary for successful performance of the most critical aspects of firefighting include strength, both upper body and lower body, and speed. Strength is important for the successful performance of many firefighting tasks.
89. One critical aspect of firefighting is the provision of a continuous supply of water.
90. This activity is generally performed in a non-highrise structural fire by having a single firefighter drag a supply hose from a pumper a distance which may exceed 180 feet and coupling the hose to the hydrant within a short enough time that the pump operator can begin supplying water to the attack lines before the on-board water in the pumper is exhausted.
91. Firefighting is a very labor intensive job.
92. It is common for firefighters to take ladders off a pumper and carry them up steps.
93. It is common for firefighters to have to climb several flights of stairs wearing air tanks. This must be done with speed particularly in the contexts of a rescue or when locating and accessing a water supply (stand pipe) in a high rise structure.
94. Numerous critical and important firefighting tasks require significant levels of upper body strength including, among others, operating the jaws-of-life, operating a K-12 saw (a power saw with a very high torque), removing ladders from apparatus, raising ladders, using a pike pole to tear ceilings, chasing fire or looking for hidden fire, operation of an ax to chop roofs for ventilation or to open walls to chase fire or *648 look for hidden fire, carrying a multitude of heavy equipment, hanging ventilation fans, carrying ladders, using ladders as a tool to break second-story windows for ventilation, using axes or other tools to break windows for ventilation while keeping a leg lock on a ladder.
95. Many firefighting tasks involve substantial upper body strength, involving lifting and/or working overhead with heavy objects.
96. The greater the aerobic capacity of a firefighter, the longer the firefighter will be able to sustain activity without rest.
97. It is the City's practice to dispatch a sufficient number of firefighters so that fresh firefighters can replace those who are exhausted, providing a period of rest and recovery.
98. The physical agility portion of the 1983 test was a reasonable measure of the physical abilities necessary for successful performance of firefighting, particularly its most critical aspects.
99. Event No. 1 tests the elbow extenders and shoulder flexors and the requisite strength to lift and/or work with heavy objects overhead. Lifting and working with heavy objects overhead is an important job behavior.
100. The prohibition against bending knees during the performance of Event No. 1 was necessary in order to isolate for testing the muscle groups involved in lifting overhead.
101. Event No. 2 is principally a power event involving leg power and back strength. Tasks performed in Event No. 2 are representative of critical firefighting tasks frequently performed in situations where speed is the principal concern.
102. Event No. 3 assesses the strength and power and muscles required to perform dragging type action including, amongst others, rescue. The event simulates the critical firefighting task of rescuing a disabled adult when smoke and/or heat necessitate the use of low drag.
103. There are significant gender differences with respect to physical abilities. Males greatly exceed females in upper body strength, leg strength, and aerobic capacity.
104. In terms of upper body strength, the difference between males and females is approximately two to one. In terms of lower body strength, females have approximately 75% of the lower body strength of males. In terms of overlap, generally only the top 15% of the females overlap the bottom 15% of males in terms of upper body strength. With respect to lower body strength, that is leg strength, there is a 35% overlap between upper females and lower males. The upper 25% of females overlap the lower 25% of males in terms of relative aerobic capacity.
105. Another critical aspect of firefighting is ventilation. One common form of ventilation requires chopping holes in the roof of a structure.
106. Roof chopping requires removing and raising of a wall ladder against the structure, carrying and eventual pushing up of a roof ladder onto the roof, ascending the roof by climbing the roof ladder while carrying axes, and chopping holes in the roof with axes, frequently while straddling the peak of the roof.
107. The entire process of ventilating a roof must be accomplished within approximately five minutes.
108. Failure to quickly perform activities, such as providing a continuous supply of water and ventilation, increases the risk of injury to firefighters, delays extinguishment efforts, increases fire spread, and delays victim rescue efforts.
109. Another critical aspect of firefighting is the rescue of unconscious or otherwise disabled victims. It is common for a single firefighter to conduct the rescue of an adult victim. It is very common for the firefighter to drag the victim while assuming a low crawl position. Strength and speed are essential to successful performance of this activity.
110. There is no typical fire or typical series of activities performed during firefighting.
*649 111. A job-related test for firefighting does not require that representative tasks be performed in any particular sequence.
112. The validation studies prepared by Dr. Henderson, including his ratings on the relationship between the abilities identified as necessary for the job and the task and the relationship between the abilities identified and the test were not prepared prior to or at the time of the development of the test. Instead, they were only prepared after the start of this litigation. The technical studies underlying Dr. Henderson's attempts at validating both the written and physical components of the examination were completed sometime in 1986, long after the examination was administered and graded.
113. The ratings relating the abilities identified as necessary for firefighting to both the specific tasks of the job and the test, which is an important part of the job analysis, are studies that should be prepared as a test is being developed in order to insure that the test is job related.
114. The maximum attainable score for candidates on the physical portion of the 1983 entry-level firefighter examination was 50.00. 35.00 was considered a passing score. Of the 1,125 men taking the physical test, 1,002 passed. Of the 101 women taking the physical test, 15 passed.
115. Dr. Henderson included the barbell lift to measure absolute muscular endurance of shoulder and upper limbs.
116. This event did not allow use of the lower body, as applicants had to lock their legs.
117. Event No. 3, the dummy drag, was designed to be a content valid item by demonstrating the drag rescue of a victim from a smoke-filled room.
118. The Court finds that the 1983 physical performance examination puts a premium on speed and is primarily a test of anaerobic, rather than aerobic, capacity.
119. The Court finds that the 1983 physical performance examination is content valid.
120. A concurrent criterion study was conducted of the 1983 examination using a pool of 113 firefighters hired from the 1980 examination.
121. A sub-sample of 61 firefighters was also given the Harvard step test. The Harvard step test is a measure of sub-maximal aerobic capacity and is commonly used in screening and for research. The results of the Harvard step test were then correlated with scores on the physical ability component of the examination. Results revealed a within race correlation between the Harvard step test and the physical ability component of .39. When this correlation was corrected for range restriction, that is, comparing it to the applicant pool and reliability of the step-up test, the estimated true correlation between the fitness scores on the Harvard step-up test and the physical ability scores was .55, with a standard error of .09. This indicated that the 1983 examination reflected a relatively high degree of general cardio-vascular fitness.
122. The correlation between the 1983 entry-level examination scores and job ratings in terms of overall performance criteria was as follows: For average job rating, correlation for the total test was .42; for percentile ranking, correlation was .45; for career rescue estimates, the correlation was .45; for dollar value of work, the correlation was .46; and for productivity, the correlation was .42. All these correlations are highly statistically significant and are well beyond the demands of the Uniform Guidelines.
123. Correlation coefficients of .3 or greater are considered high by industrial psychologists.
124. The concurrent validation study of the 1983 examination revealed that firefighters scoring highest on the 1983 examination also had the highest job ratings. Those scoring an average of ninety-one points on the 1983 examination had higher job ratings than those scoring average points of eighty-two and further higher job ratings than those with average points of sixty-nine.
125. The 1983 entry-level firefighter examinations predicted job performance.
*650 126. The addition of a direct assessment of aerobic fitness to the city's selection process would not result in less adverse impact upon the selection rate of females.
127. The alternative scoring mechanisms advanced by plaintiffs would not result in less adverse impact upon the selection rate of females.
128. Speed and strength, not aerobic capacity, are the distinguishing physical abilities necessary for successful firefighting during the first moments of arrival at a fire scene when matters of life and death and the extent of property damage are critical.
129. The content of the 1983 entrance examinations is representative of important aspects of performance of the job of firefighting.
130. The 1983 examination measures the degree to which candidates have characteristics which are important for successful job performance.
131. There is a statistically significant relationship between scores on the 1983 examination and job performance.
132. For the same reason, the plaintiffs challenge to the criterion study for the 1983 examination is unpersuasive. Additionally, plaintiffs have failed to establish that the sample of 113 firefighters used in the study was nonrepresentative of the full population of over 900 Cleveland firefighters.
133. The policy of the City respecting the selection of firefighters is that the testing procedures identify those candidates best able to protect the health, safety and welfare of the citizens of Cleveland and that it is fair without arbitrarily excluding women from selection.
134. Dr. Henderson's arbitrarily adding points to scores based on race and sex without a mandate from the City of Cleveland or the courts is not in accord with professionally accepted standards.
135. An eligibility list was certified by the Civil Service Commission on May 19, 1983 and included the names of 1,098 successful candidates.
136. The eligibility list established after administration of the 1983 entry-level firefighter examination included the names of 1,069 men and 29 women. The woman with the highest score, Frances Hansen, was number 334 on the list of eligibles.
137. Because of their scores on the entry-level firefighter examinations, no women were hired by the Fire Department in 1983.
138. Notwithstanding his or her position on the eligibility list, each individual who appears on the eligibility list possesses the necessary cognitive and physical abilities to be a Cleveland firefighter.
139. The 1983 entry-level firefighter examination has been demonstrated to be valid using a criterion related strategy.
140. The 1983 entry-level firefighter examination has been validated using a construct validity strategy.
141. Women were not treated adversely in terms of the opportunity to apply and take the 1983 entry-level firefighter examination.
142. The 1980 entry-level firefighter examination had an adverse impact upon the employment opportunities for women.
143. On April 22, 1985, the City hired seventy-five firefighters, sixty-five of whom were males and ten were females. But for this Court's Order dated March 20, 1985, no females would have been hired.
144. The lowest non-minority male hired on April 22, 1985 was ranked number 107. The lowest minority male was ranked number 215.
145. Females hired in 1985 pursuant to this Court's order were ranked numbers 334, 631, 837, 940, 950, 952, 987, 1,039, 1,099 and 1,097 on the eligibility list.
146. Candidates possessing higher levels of cognitive skills, strength and speed are likely to better perform the job of firefighting.
147. Higher scores on the examination are likely to result in better performance of the job of firefighting.
*651 148. Firefighters scoring higher on the examination are likely to be more productive than firefighters scoring lower.
149. A validation study was conducted of the 1980 examination. Supervisor ratings for 277 firefighters were compared with scores of those same firefighters on the 1980 examination. The results showed that those firefighters who scored highest on the examination received higher supervisor performance ratings.
150. Based on any of the three accepted statistical measurements to determine disparate impact, binomial probabilities, chi square analyses or the fourth/fifth's rule, the 1983 entry-level firefighter written test had a disparate impact on women applicants.
151. The percentage of males passing the written examination was 62.5%. The percentage of females passing the written examination was 42.8%. A comparison of the two percentages indicates that the pass rate for females was only 50.64% of the pass rate for males. This pass rate satisfies the Uniform Guidelines' definition of adverse impact.
152. Of the 1,328 people passing the written examination, 122 were female. Given the representation of women in the applicant pool12.8%the probability of having that few women pass the examination is significantly lower than by chance.
153. In 1983, 1,223 applicants took the physical performance examination, of whom 1,122 or 91.7% were male and 101 or 8.3% were female.
154. 1,069 or 89.3% of the males achieved a combined score on the written and physical performance examinations high enough to be included on the 1983 eligibility list. Twenty-nine or 28.7% of the females achieved a combined score high enough to be included on the 1983 eligibility list.
155. 1,002 or 89.3% of the males received a score of thirty-five or higher on the 1983 physical performance examination. Fifteen or 14.9% of the females received a score of thirty-five or higher on the 1983 physical performance examination.
156. The rate at which women received a combined written and physical score high enough to be placed upon the eligibility list was 30.2% of the rate at which men received a combined written and physical score high enough to be placed upon the eligibility list.
157. The rate of women scoring thirty-five or higher on the 1983 physical examination was 16.7% of the rate for men.
158. The physical performance component of the examination administered in 1983 had an adverse impact upon women.
159. In May of 1983, the City adopted an eligibility list.
160. Alternative scoring schemes provided by the plaintiffs demonstrate that the removal of minority points would not have resulted in the selection of any female within her race classification.
161. The eligibility list would have expired on May 19, 1985. However, pursuant to Order of this Court dated March 20, 1985, the list was extended until July 31, 1987.
162. On July 18, 1983, Cleveland hired thirty-five firefighters.
163. The highest female on the 1983 eligibility list is ranked number 334 and is a non-minority. The highest minority female is ranked number 778.
164. The probability that only one woman would achieve a score high enough to be placed on the eligibility list to be unrelated to sex is one in 5,000.
CONCLUSIONS OF LAW
1. Title VII is concerned with discrimination in hiring and promotion, not merely discrimination in testing and test results. There must be a direct relationship between testing and test results and hiring and promotion. Tests that are designed whereby women applicants score lower than men, resulting in women being denied the opportunity and right to be hired, produce a disparate impact and are thus discriminatory. The adverse impact or discriminatory effect relates to a denial of job *652 opportunities to women. The concern is discriminatory effect. It is not merely that women do not test as well as men that is important. Before the disparate impact can be considered discriminatory the differential in test scores must result in women being denied the opportunity to be hired in a pattern significantly the same as the pool of applicants.
2. To establish a prima facie case of a pattern or practice of discrimination under § 2000e-6, the plaintiff must show by a preponderance of the evidence that the discrimination was the defendant's "standard operating procedure"; that is, the "regular rather than the unusual practice." Teamsters v. United States, 431 U.S. 324, 336, 97 S.Ct. 1843, 1855, 52 L.Ed. 2d 396 (1977). The evidence must show, or allow the court to draw an inference of, the employer's intent to discriminate against a particular group protected by Title VII.
3. Once a prima facie case of pattern or practice discrimination is established by the plaintiff, the burden then shifts to the defendant to show either that the plaintiff's statistical evidence is inaccurate or misleading or that there was a legitimate nondiscriminatory reason for the disparity. Hazelwood School District v. United States, 433 U.S. 299, 305 n. 9, 97 S.Ct. 2736, 2740, 53 L.Ed.2d 768 (1977).
4. After a prima facie case has been established, it becomes incumbent upon the defendant to show that its employment practice, which results in the statistical disparity, is a result of some bona fide occupational qualification which is reasonably necessary to the safe operation of the business. Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 2726-2727, 53 L.Ed. 2d 786 (1977).
5. If a plaintiff in a Title VII case proves a prima facie case of disparate impact, the employment practice is presumed discriminatory unless the defendant justifies its conduct. Adverse impact means that there is a substantially different rate of selection, hiring, promotion or other employment decisions which works to the disadvantage of members of a race, sex, or ethnic group. Disparate impact means that the impact of the test is unequal. Disparate impact means, for purposes of an employment discrimination suit, those employment practices which are neutral on their face but result in a comparatively harsh impact on one group, not justified by business necessity. In such a case, proof of discriminatory motive is not required and the plaintiff must show only that facially neutral standards select applicants in a significantly discriminatory pattern. Id. In other words, the plaintiff must show that the defendant's employment practices, although facially neutral in their treatment of different groups, in fact, fall more harshly on one group than another and cannot be justified by business necessity.
Discrimination means unfair treatment or denial of normal privileges to persons because of their race, age, nationality, or religion. In other words, discrimination is a failure to treat all persons equally where no reasonable distinction can be found between those favored and those not favored.
6. The differential selection rate of males versus females for the job of firefighter in the City constitutes adverse impact.
7. "Two theories are available to a plaintiff under current law to prove a case of unlawful discrimination [under Title VII of the 1964 Civil Rights Act]: disparate treatment and disparate impact." Rowe v. Cleveland Pneumatic Co. v. Numerical Control, 690 F.2d 88, 92 (6th Cir.1982).
8. An employer violates Title VII if it bases its selection decisions on procedures which have an adverse impact on women in opportunities to be selected, unless the employer can show that the use of the procedures validly predicts successful job performance. Connecticut v. Teal, 457 U.S. 440, 451, 102 S.Ct. 2525, 2532-2533, 73 L.Ed.2d 130 (1982); Dothard, 433 U.S. at 329, 97 S.Ct. at 2726-2727; Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975); Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 854, 28 L.Ed.2d 158 (1971); Harless v. Duck, 619 F.2d 611, 616 *653 n. 6 (6th Cir.1980); Guardians Association v. Civil Service Commission, 630 F.2d 79, 88 (2d Cir.1980), cert. denied, 452 U.S. 940, 101 S.Ct. 3083, 69 L.Ed.2d 954 (1980); Brunet v. City of Columbus, 642 F.Supp. 1214, 1245 (S.D. Ohio 1986), appeal dismissed, 826 F.2d 1062 (6th Cir.1987).
9. Proof of disparate impact requires the plaintiff to prove the disparate impact of the selection device, after which the burden of proof shifts to the defendant to demonstrate that the selection device is required by business necessity. In the event that the defendant succeeds in meeting its burden, the burden of proof then returns to the plaintiff to demonstrate pretext. This is done by demonstrating that a less restrictive alternative test exists, and that the defendant was using the original test as a pretext for discrimination. Teal, 457 U.S. at 446-47, 102 S.Ct. at 2530; Dothard, 433 U.S. at 312, 329, 97 S.Ct. at 2726-2727; Albermarle, 422 U.S. at 425, 95 S.Ct. at 2375; Harless, 619 F.2d at 616 n. 6; Brunet, 642 F.Supp. at 1245.
10. Once it has been shown that a test or other selection procedure has a discriminatory impact on the selection of women, the defendant has the burden of showing that the selection procedure was a business necessity and has been validated in accordance with accepted standards of the psychological profession. Albermarle, 422 U.S. at 431, 95 S.Ct. at 2378; Harless, 619 F.2d at 616, n. 6; Brunet, 642 F.Supp. at 1221, 1230.
11. Only after the defendant proves that the test was validated, is job related, and is not discriminatory are the plaintiffs put to their burden of rebuttal.
In the rebuttal stage, the plaintiffs must prove pretext. First, the plaintiffs must prove that the test is in fact not job related and thus discriminatory. Second, the plaintiffs may show that there is an alternative test that is equally job related and result in less adverse impact on women applicants than the test at issue. In cases where some women or other minorities are being hired, the alternative job related test should result in more women or minorities being hired. Under these circumstances, courts would then hold that the plaintiff has shown pretext and that, while the test at issue may still be job related, it is discriminatory and thus invalid.
Because no women have placed high enough on the eligibility list to be hired, the plaintiffs, in the present action, must show more in their rebuttal case than if any women had been hired. Based on the evidence adduced at trial, women applicants rank so low that none ranked high enough on the eligibility list to be hired.
It is not sufficient for the plaintiffs, on rebuttal, to show only that the alternative test was job related and that women would do proportionately better on the alternative test than they did on the defendants' test. Rather, the plaintiffs must prove that the alternative test is job related and would result in a strong likelihood and probability that women applicants would rank high enough on the eligibility list to be considered for hiring. The mere fact that a job-related alternative test would only provide a lesser adverse impact on test scores is not a sufficient basis on which to nullify or declare invalid the defendants' test.
In the present case, the plaintiffs did not demonstrate that there was an alternative test that was as equally job related as the defendants' test and that would produce a lesser adverse impact on the hiring of women than the defendants' test. Further, the plaintiffs did not prove that an alternative job related test would increase the women's examination scores or would result in a strong probability or likelihood that women would place high enough on the eligibility list to be in a position to be hired.
12. The Supreme Court, the Uniform Guidelines, and the standards of the psychological profession, American Psychological Association, Standard for Educational and Psychological Testing (1985) ("APA Standards"), recognize three validation strategies: criterion-related validity, content validity, and construct validity. Uniform Guidelines, 29 C.F.R. § 1607.5; APA Standards, p. 9; Washington v. Davis, 426 U.S. 229, 247 n. 13, 96 S.Ct. 2040, 2051, n. 13, 48 L.Ed.2d 597 (1976); Harless, 619 *654 F.2d at 616, n. 5; Brunet, 642 F.Supp. at 1242; Principles for the Validation and Use of Personnel Selection Procedures, Division 14 of the American Psychological Association, p. 6 (September 8, 1986) ("Division 14 Principles").
13. Content validity is appropriate where the content of the test "closely approximates tasks to be performed on the job." Washington, 426 U.S. at 247, n. 13, 96 S.Ct. at 2051, n. 13; United States v. City of Chicago, 573 F.2d 416, 425 (7th Cir.1978); Brunet, 642 F.Supp. at 1242. If the validity of a test which measures knowledge, skills or abilities is supported on the grounds of content validity the test must measure operationally defined knowledge, skills, or abilities that are prerequisites to successful job performance for critical tasks necessary to perform the job successfully. Uniform Guidelines, 29 C.F.R. § 1607.14. Content validity is not an appropriate strategy for a selection procedure involving knowledge, skills or abilities which the employee will be expected to learn on the job.
14. Criterion-related validity requires empirical data demonstrating that the selection procedure is predictive of, or significantly correlated with, a criterion which represents an important work behavior, and that the correlations are practically significant. Ensley Branch of N.A.A.C.P. v. Seibels, 616 F.2d 812, 816, n. 11 (5th Cir.1980), cert. denied, 449 U.S. 1061, 101 S.Ct. 783, 66 L.Ed.2d 603 (1980).
15. Construct validity requires the demonstration of a "relationship between underlying traits or `hypothetical constructs' inferred from behavior and a set of test measures related to those constructs." Uniform Guidelines, 29 C.F.R. §§ 1607.14(D), 1607.15(D).
16. The job of firefighter requires a high degree of skill and physical ability. The public interest clearly lies in having the most highly qualified person selected for the position of firefighter.
17. The risks to the public in terms of life, limb and property as a consequence of hiring an unqualified firefighter are great, resulting in a less heavy burden for demonstrating the job relatedness of the employment criteria. Spurlock v. United States Airline, Inc., 475 F.2d 216, 219 (10th Cir. 1972); Davis v. City of Dallas, 777 F.2d 205, 211-13.
18. To justify hiring requirements as a business necessity, an employer must show that the challenged practice bears a manifest relationship to the employment at issue; i.e., that the practice is related to job performance. Teal, 457 U.S. at 446, 102 S.Ct. at 2530; Chrisner v. Complete Auto Transit, Inc., 645 F.2d 1251, 1259 (6th Cir. 1981).
19. The City has the burden of demonstrating that the 1983 written and physical components of the examination are valid and job related in accordance with standards of the psychological profession.
20. Because important aspects of the job analysis were not performed as the test was being developed, but were instead prepared in contemplation of litigation, the job analysis is suspect. Studies done post hoc in an attempt to validate a test already given are inherently suspect due to a danger of lack of objectivity. Albermarle, 422 U.S. at 433, 95 S.Ct. at 2379, n. 32. However, this fact alone does not require a finding that the validation procedures are invalid.
21. The defendant did meet its burden of demonstrating business necessity for the use of the 1983 firefighter entry-level written component of the examination. The City proved that the examination was developed, administered and scored in an acceptably professional manner consistent with the Uniform Guidelines, APA Standards, or Division 14 Principles.
22. The Uniform Guidelines require that a selection device having a disparate impact be operationally validated for the use to which it has been put, and that an employer must show "that a higher score ... is likely to result in better job performance" in order for scores to be used in rank order. Uniform Guidelines, 29 C.F.R. § 1607.14(C)(9).
23. The City has demonstrated that the 1983 entry-level firefighter examination adequately *655 reflected the important aspects of the job of firefighting and that the 1983 test scores varied sufficiently with job performance to warrant rank-order hiring of firefighters.
24. The use of the results of the 1983 entry-level firefighter examination to rank order applicants is valid and job-related in that the evidence showed that a higher score on the physical components of the examination correlates to a more successful job performance.
25. The job relatedness and utility of the 1983 examination has been demonstrated to be strong enough to justify rank ordering.
26. The 1983 examination is content valid.
27. The 1983 examination is valid based upon construct validity.
28. The 1983 examination is valid based on criterion validity.
29. The City has met its burden of proving the 1983 examination to be a valid predictor of successful job performance.
30. The City has shown that the 1983 selection procedure taken either as a whole, or by its individual components, is valid for its intended use.
31. The scoring of the 1983 examination and the resulting eligibility list were proper mechanisms for selection of firefighters.
32. Cutoff scores can properly "be set so as to be reasonable and consistent with normal expectations of acceptable proficiency within the work force. Where applicants are ranked on the basis of properly validated selection procedures and those applicants scoring below a higher cutoff score than appropriate in light of such expectations have little or no chance of being selected for employment, the higher cutoff may be appropriate, but the degree of adverse impact should be considered." Uniform Guidelines, 29 C.F.R. § 1607.5(H).
33. The Uniform Guidelines should always be considered in determining the validity of a test, but they should not be regarded as conclusive evidence thereof unless reason and statutory interpretation support their conclusions.
34. The Uniform Guidelines are persuasive, but they are not law.
35. The raw scores used to establish the eligibility lists generated from the 1983 entry-level firefighter examination were valid because they were based on evidence that the scores are predictive of successful job performance.
36. The weighing of the written and physical components of the 1983 entry-level firefighter examination was valid and job-related.
37. The City does not have a policy of denying females equal opportunity of employment as firefighters within the Fire Department.
38. The 1983 firefighter entry-level examination was not designed to discriminate against females.
39. A specific measurement of stamina or aerobic capacity is not required in order for a firefighter examination to be valid and not vulnerable to a Title VII challenge. Berkman v. City of New York, 812 F.2d 52, 59-60 (2nd Cir.1987).
40. Both aerobic and anaerobic qualities are important to firefighters. Anaerobic qualities are more important than aerobic qualities. It is not necessary that an aerobic test be a part of the physical portion of the examination in order for the examination to be valid and job related. Aerobic qualities may be tested independently by a step test, stress test, or other similar activity. This may be a part of the medical examination. In any event, aerobics should be tested before a person is placed on the eligibility list. The failure to have the aerobics as a portion of the physical examination process does not invalidate the examination. It may be given after the written and physical portions of the examination.
41. A decision by the City to adopt an affirmative action plan that would provide for a dual list of men and women for entry-level firefighters and which would provide for a number of women to be hired as entry-level firefighters is an administrative and policy decision and is not a legal *656 requirement. Whether the City uses a rank-order system or a pass/fail system with random selection is an administrative and policy decision and is not a legal requirement.
42. Plaintiffs failed to establish the existence of an alternative selection device which has comparable utility as the 1983 examination, and would have a less adverse impact on either test scores or the hiring rate of women.
43. Plaintiffs have failed to prove the existence of a selection procedure of equal validity which would have a less adverse impact upon the selection rate of females.
44. The City has shown that the 1983 firefighter examination is valid for its intended use. Accordingly, an order to that effect will be entered.
45. The plaintiff, United States Government, in the pattern or practice case proved in its prima facie case that there was a disparate impact. The defendant proved that its test was job related and not discriminatory. The plaintiffs did not prove pretext which would nullify or require a declaration that the defendant's test was discriminatory and not valid. The plaintiffs did not demonstrate that there was an alternative job related test that would result in the probability of women ranking high enough to be considered for employment as entry-level firefighters.
46. In Case No. C83-2484, the plaintiffs did not prove that the defendant discriminated against women applicants for entry-level firefighters. Plaintiffs failed to prove that the 1983 entry-level written and/or physical examination was not job related. Plaintiffs failed to prove that the 1983 entry-level written and/or physical examination was discriminatory against women.
47. In Case No. C83-4998, the plaintiffs failed to prove that the defendant engaged in a pattern and practice of discrimination against women applicants for entry-level firefighters. The plaintiffs failed to prove that the 1983 entry-level written and/or physical examination for entry-level firefighters was not job related. Plaintiffs failed to prove that the 1983 entry-level written and/or physical examination for firefighters was discriminatory against women.
CONCLUSION
1. Cities should be aware of the teachings of Brunet, Berkman, and the present action.
2. Cities should design and administer firefighter entry-level examinations that are job related and are not discriminatory against women.
3. In the area of validation, the cities should validate their examinations, both written and physical, as soon as possible. Ideally, validation should be done after the test is designed and before it is given. This is not feasible because of the security of the examination. This validation system is done by administering the test to a number of current firefighters. Their test results are compared with their training academy records and their on-the-job performance ratings and other experiences. It is not ideal because the present firefighters do not always take the test seriously. Also, performance ratings are very subjective. While this is not the ideal method, it is the best available method.
4. Some cities use rank-order hiring and other use a pass/fail method coupled with random selection hiring from the list of those passing the examination. If municipalities want to continue to use rank-order hiring, they may do so but they should be made aware of the fact that rank-order hiring is coming under increasing attack. For those using rank-order hiring, cities must make sure that they can demonstrate that there is a probability that those with the higher rank would be better firefighters than those with the lower rank. If this cannot be demonstrated, it will be argued that rank order is not a valid method of hiring and thus is discriminatory.
5. If cities are serious about wanting to hire the best qualified persons for firefighters and still hire women firefighters, they must engage in long-range, meaningful recruitment and training programs to get women interested in becoming firefighters and to train them for firefighting tasks. A mere announcement of policies stating that *657 a city will not discriminate against women in hiring firefighters is not enough. Cities know, or should know, that if they want the best qualified firefighters and use a rank-order system, very few, if any, women will qualify at the present time and will not be hired in any significant number because they generally cannot compete with men physically.
6. For those women interested in becoming firefighters, they must know and understand what is necessary to become firefighters and they must train accordingly.
7. During the trial of this case, this Court was inundated with statistics and opinions of experts, including statisticians, industrial psychologists, and exercise physiologists, as well as the opinions of unsuccessful applicants for firefighting positions and present firefighters. The written and physical components of the examination were designed, came under attack, and then were validated. This Court believes, after reading all of the reported cases on the subject, listening to all of the witnesses, and reviewing all of the exhibits, that any entry-level examination can be attacked and conclusions reached by witnesses that the examination has an adverse impact, is not job related, and is discriminatory. The courts are faced with picking and choosing from the testimony and exhibits of the various experts. This procedure is not an exact science, and it appears to this Court that any and all tests can be subject to attack, with some credible evidence.
8. In May of 1985, during the pendency of this action the City desired to hire some additional firefighters. This Court used its persuasive powers and was instrumental in getting the City to agree to hire ten women firefighters, the first women firefighters in the City's history. The experiences of these women over the last several years should go a long way in helping the cause of women who want to become firefighters. Their test scores in the written and physical components of the examination administered in 1983, together with their academy training records, job evaluations and experiences should prove helpful.
Based on the foregoing, the Court shall enter judgment for the defendant, City of Cleveland, and against the plaintiffs in Case No. C83-2484.
The Court shall enter judgment for the defendant, City of Cleveland, and against the plaintiff, United States of America, in Case No. C83-4998.
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Case: 12-41125 Document: 00512472573 Page: 1 Date Filed: 12/16/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 16, 2013
No. 12-41125
Lyle W. Cayce
Clerk
In the Matter of: JAMES GLEN WHITLEY, doing business as Whitley
Properties, doing business as Edna Housing, doing business as Whitley
Ranch & Seed Company,
Debtor
------------------------------
REESE W. BAKER; BAKER & ASSOCIATES,
Appellants
v.
TRUSTEE LOWELL T. CAGE,
Appellee
Appeal from the United States District Court
for the Southern District of Texas
Before HIGGINBOTHAM, OWEN, and HIGGINSON, Circuit Judges.
HIGGINSON, Circuit Judge:
A bankruptcy judge may regulate attorney compensation by ordering
debtor’s counsel to return to the estate excessive compensation. 11 U.S.C.
§ 329(b). 1 Separately, a bankruptcy judge has authority to discipline attorneys
1 Section 329 provides:
(a) Any attorney representing a debtor in a case under this title, or in
connection with such a case, whether or not such attorney applies for
compensation under this title, shall file with the court a statement of the
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No. 12-41125
who violate the disclosure requirements of the Bankruptcy Code and Rules.
Arens v. Boughton (In re Prudhomme), 43 F.3d 1000, 1003 (5th Cir. 1995).
Because a bankruptcy judge’s reach under the plain language of § 329(b) is
limited to attorney compensation, however, we REVERSE and REMAND the
bankruptcy court order before us.
FACTS AND PROCEEDINGS
In 2008 and again in 2009, James Whitley made failed endeavors to
reorganize his debts under Chapter 13 of the Bankruptcy Code. Appellants
Reese Baker and Baker & Associates (“Baker”) served as Whitley’s counsel in
both proceedings. On March 4, 2009, the bankruptcy court dismissed Whitley’s
2008 petition without prejudice and on July 20, 2009, the bankruptcy court
dismissed Whitley’s 2009 petition with prejudice. On October 8, 2009, the
bankruptcy court vacated its order dismissing Whitley’s 2009 petition and
converted Whitley’s case to Chapter 7.
Between July 20, 2009, when the bankruptcy court dismissed Whitley’s
2009 case with prejudice, and October 8, 2009, when the bankruptcy court
vacated its order and converted Whitley’s case to Chapter 7, Whitley and Baker
engaged in the transactions giving rise to this appeal. Whitley was convicted
of sexual assault of a minor and on August 27, 2009 he was sentenced to life in
compensation paid or agreed to be paid, if such payment or agreement was
made after one year before the date of the filing of the petition, for services
rendered or to be rendered in contemplation of or in connection with the case
by such attorney, and the source of such compensation.
(b) If such compensation exceeds the reasonable value of any such services, the
court may cancel any such agreement, or order the return of any such payment,
to the extent excessive, to--
(1) the estate, if the property transferred--
(A) would have been property of the estate; or
(B) was to be paid by or on behalf of the debtor under a plan
under chapter 11, 12, or 13 of this title; or
(2) the entity that made such payment.
2
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No. 12-41125
prison. Also on August 27, 2009, Whitley transferred two properties—the
Church Street property and the Highway 111 property—to Baker’s wholly
owned entity BK/HSH, LLC. 2 William and Miriam Ackley held liens on the two
properties, and after Whitley transferred them to Baker, the Ackleys
foreclosed. The Ackleys noticed the properties for foreclosure sales on
September 1, 2009. Baker attended and won both foreclosure sales, bidding
$60,040 for the Highway 111 property and $38,735 for the Church Street
property. Baker never disclosed these transactions to the bankruptcy court. 3
On June 4, 2010, Appellee-Trustee Lowell T. Cage (“Trustee”) filed an
adversary proceeding against Baker claiming that Whitley’s various transfers
to Baker, including Whitley’s transfer of the two properties, were voidable
under 11 U.S.C. §§ 548, 549, and 550. The Trustee’s complaint alleges that
“[a]lthough the case had been dismissed at [the time of the transfers],” the
transfers were without court authority, were for less than reasonably
equivalent value, and were executed in breach of Baker’s fiduciary relationship
with Whitley.
The bankruptcy judge, Judge Steen, denied the Trustee’s motion for
summary judgment on these claims, reasoning that “although some very
limited issues might be appropriate for summary judgment, the best procedure
is to decide, first, under Bankruptcy Code § 329 whether Baker must disgorge
compensation. There are material issues of fact with respect to that question.
2 Baker stipulates that BK/HSH, LLC is his alter ego. Accordingly, we also refer to
Baker’s wholly owned entity as “Baker.”
3 In the 2008 proceeding, Baker received a $1,800 retainer fee and requested an
additional $16,474.62. The Chapter 13 Trustee objected to Baker’s fee application as
“unreasonable for the work performed” and Baker withdrew his application in open court. In
the 2009 proceeding, Baker filed another fee application disclosing that Whitley had paid him
$12,074 and requested an additional $9,859.75. The Chapter 13 Trustee and multiple
creditors objected to Baker’s fee application and Baker withdrew his fee application. On
October 8, 2009, in the same order reopening Whitley’s 2009 petition and converting it to
Chapter 7, the bankruptcy court granted Baker’s motion to withdraw his fee application.
3
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No. 12-41125
Determination of that question may make other issues moot.” Specifically, the
court noted that § 329 may be the most efficient way to recover the money
Baker had already received as fees. If the court could recover the money under
§ 329 then it would not need to “address the preference issue[s]” under § 547.
As to the Trustee’s action to recover the properties, the court did not refer
to § 329, but noted the following remaining material issues of fact and law:
(1) “[W]hat was the value of [Baker’s] legal services and was the
transfer [of the real properties] for less than reasonably
equivalent value, potentially making the property (or the
value in excess of liens) recoverable under Bankruptcy Code
§ 548 as well as § 549?”
(2) “What was the value of the real property when it was
transferred and what did Baker pay for it?”
(3) “On the date of the transfer of the real property, did Debtor
and Baker intend to transfer the property with the intent to
hinder . . . creditors” as to make the transfer avoidable “(or
is the value of the equity thereby transferred on that date
recoverable by the Trustee)” avoidable under § 548?
(4) “Did the transfer of the real property constitute a breach of
fiduciary duty and legal ethics” and “is Baker liable for the
value (if any) removed from the estate by the transfer?”
After denying summary judgment, Judge Steen transferred the case to
Judge Bohm. Judge Bohm, in turn, issued a show cause order pursuant to
§ 329(b) instructing Baker to “provide evidence of the reasonable value of
services rendered to the Debtor” in connection with Baker’s representation of
Whitley and to “show cause why any compensation previously paid should not
be disgorged to the extent in excess of the reasonable value of such services
pursuant to 11 U.S.C. § 329(b).” After an evidentiary hearing spanning
multiple days, the bankruptcy court denied Baker all of his requested fees and
also ordered Baker to return all of the “consideration” that he had received. In
total, the court ordered Baker to return $12,074 plus the two properties to the
estate.
4
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The bankruptcy court found that Baker’s services provided Whitley “no
reasonable value” and also that Baker violated his duty of disclosure. Noting
that it “polices the disclosure requirements of the Bankruptcy Code and Rules
with its sanction powers, including the discretion to order the disgorgement of
all sums received by counsel and the forfeiture of all compensation paid to
counsel in a particular case,” the bankruptcy court admonished Baker for
failing to disclose his property transactions with Whitley. “Disgorgement of the
fees already paid,” the court held, “includes unwinding the transfers of the Hwy
11 [sic] Property and the Church Street Property.”
Baker filed an emergency motion to alter or amend the bankruptcy
court’s order, arguing that the court failed to consider the $98,775 Baker
himself paid to purchase the properties at the foreclosure sales as well as
money Baker had spent to maintain and repair the properties after his
purchase of them. The bankruptcy court denied Baker’s motion, reasoning that
the amount Baker paid at the foreclosure sales would not change the result
because these “were payments to retain ill-gotten gains” and that Baker’s
payments had “no relevance to the analysis on whether the Properties were
properly acquired.”
Baker appealed the bankruptcy court’s disgorgement order and denial of
his motion to alter to the district court. After a hearing, the district court
affirmed the bankruptcy court. The district court rejected Baker’s attempts to
justify his nondisclosures. The district court also held that the foreclosure sales
did not “insulate the properties from disgorgement.” That Baker would forfeit
his foreclosure purchases of $98,775 to the estate, the district court explained,
was “irrelevant” and “the price Baker must pay for concealing his
5
Case: 12-41125 Document: 00512472573 Page: 6 Date Filed: 12/16/2013
No. 12-41125
compensation and relevant business dealings from the bankruptcy court and
for failing to provide valuable services to his client.” 4 This appeal followed.
STANDARDS OF REVIEW
“This court reviews the decision of a district court, sitting as an appellate
court, by applying the same standards of review to the bankruptcy court’s
findings of fact and conclusions of law as applied by the district court.” Waldron
v. Adams & Reese, L.L.P. (In re Am. Int’l Refinery, Inc.), 676 F.3d 455, 461 (5th
Cir. 2012). This court reviews a bankruptcy court’s findings of fact under the
clearly erroneous standard and decides conclusions of law de novo. Barron v.
Countryman, 432 F.3d 590, 594 (5th Cir. 2005). “A bankruptcy court’s decision
to disgorge fees or impose a sanction is reviewed for abuse of discretion.” In re
Am. Int’l Refinery, 676 F.3d at 461.
ANALYSIS
Baker does not appeal the portion of the bankruptcy court’s order
obliging him to return $12,074 he received as fees, nor does he dispute the
bankruptcy court’s finding that his services were not worth any reasonable
value, which finding earlier had the effect of disallowing Baker’s two fee
requests. Instead, Baker appeals only the bankruptcy court’s order obliging
him to return the two properties outright.
A.
The bankruptcy court rested its order obliging Baker to return the
properties on two grounds. It first held that Baker violated his duty of
4 Subsequent to the bankruptcy court’s order obliging Baker to return the properties,
the bankruptcy court granted the Trustee authority to sell the Church Street property for
$32,400. The Trustee also requested court authority to sell the Highway 111 property and
appraised its value as $33,000. The Trustee also requested an additional $5,000 to settle
disputes between the buyers and the estate. The court, however, did not approve the
Trustee’s proposed resolution of a dispute with the tenant residing on the Highway 111
property.
6
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No. 12-41125
disclosure. Specifically, the court ordered Baker to disgorge compensation he
received in the 2008 case because he failed to make a timely disclosure under
§ 329(a) and Rule 2016. Also, the court found that Baker failed to make a timely
Rule 2016 disclosure in the 2009 proceeding and ordered him to disgorge all
compensation in connection with the 2009 case. Further, with regard to
Baker’s property transactions with Whitley, the court faulted Baker for failing
to disclose his connections with the debtor. Noting that it “must protect the
integrity of the bankruptcy system by ensuring that these disclosure
requirements are satisfied,” and that it “polices the disclosure requirements of
the Bankruptcy Code and Rules with its sanction powers,” the court held that
the “forfeiture of all fees paid to Baker is both proper and necessary to protect
the integrity of the bankruptcy system.” “Disgorgement of the fees already
paid,” the court held, includes “unwinding” the transfers of the two properties.
Second, the bankruptcy court held that even assuming that Baker
complied with his disclosure requirements, “his fees were nevertheless
unreasonable—which provides still another basis for disgorging all monies
paid to him and denying all fees that he requests.” After determining that
“Baker’s services did not provide a benefit” to Whitley, the court held “the fees
should be denied and any compensation already paid should be disgorged.”
B.
“Without doubt, the Bankruptcy Code seeks to protect both debtors and
their estates from excessive or unnecessary legal fees.” Barron, 432 F.3d at
595. “While these provisions are potent, they are not limitless,” id., and the
plain language of § 329(b) tethers the bankruptcy court’s reach to attorney
compensation. Section 329(b) provides that if “such compensation exceeds the
reasonable value of any such services, the court may cancel any such
agreement, or order the return of any such payment, to the extent excessive, to
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. . . the estate, if the property transferred . . . would have been property of the
estate.” Id. (emphasis added). Under § 329(b), then, it is the value Baker
received as compensation that concerns the bankruptcy court. See Pope v.
Knostman (In re Lee), 884 F.2d 897, 889 (5th Cir. 1989) (“The bankruptcy court
is empowered . . . to order the return of any unreasonable or excessive portion
of an attorney’s fee . . . .”); see also Brown v. Luker (In re Zepecki), 258 B.R. 719,
725 (B.A.P. 8th Cir. 2001) (“A disgorgement is allowed only to the extent that
the fees are excessive.”).
Because the record gives no details about any express agreement
between Whitley and Baker and because Baker was paid, in part, in real
property encumbered by liens that he later purchased at a foreclosure sale, the
value of his compensation for services rendered in these bankruptcy cases, on
the existing record, cannot be ascertained. 5 The parties have not cited any
authority applying § 329(b) to recover real property paid as compensation, but
Wootton v. Ravkind (In re Dixon), 143 B.R. 671 (Bankr. N.D. Tex. 1992),
provides a comprehensive and helpful framework. In Dixon, the debtor paid
his attorney $200,000 in cash and $100,000 worth of artwork without court
approval and without making the proper disclosures. Id. at 674–75. The
bankruptcy court ordered all but $35,000 of the fee returned to the estate. Id.
at 680. The attorney had sold some of the artwork, but the court found that the
present value of the remaining art was $10,000 and it ordered that the attorney
additionally return “$90,000 representing the value of the art disposed of.” Id.
at 674, 679. The court also noted that the attorney “is to advise whether he
wishes to offer more definitive testimony with respect to the credit for the value
of the art ordered turned over.” Id. at 680.
5At best, we have testimony from Whitley suggesting that Baker’s account for services
was credited $20,000 after the transfer of the properties. The bankruptcy court, however, did
not make any findings as to the value of the properties.
8
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No. 12-41125
Unlike the bankruptcy court in Dixon—which used the $100,000 value
of the artwork paid as compensation as a basis for the funds and property it
ordered returned under § 329(b)—the bankruptcy court here did not value the
property at the time Whitley transferred it to Baker, nor did it value the
property at the time it ordered Baker to return it to the estate. 6 Accordingly,
the § 329(b) remedy the bankruptcy court imposed was not indexed to the
compensation Whitley actually paid to Baker. See generally Palmer & Palmer,
P.C. v. U.S. Trustee (In re Hargis), 895 F.2d 1025, 1026 (5th Cir. 1990); see also
Schroeder v. Rouse (In re Redding), 247 B.R. 474, 478 (B.A.P. 8th Cir. 2000)
(“Because § 329 is aimed solely at preventing overreaching by a debtor’s
attorney . . . a court’s consideration of whether to order disgorgement of fees
under § 329(b) is limited to the comparison of the amount of compensation
received by the attorney with the reasonable value of the services performed.”).
In fact, the remedy imposed went beyond what Whitley paid to Baker as
compensation because Baker did not use estate funds to buy the properties at
the foreclosure sales. It is undisputed that Baker paid the $98,775 foreclosure
purchase from his account. As the district court recognized, “the foreclosure
sale purchase and property maintenance costs were losses for Baker”
(emphasis added), not the estate. Had the Ackleys kept the properties or sold
them to a third party at the foreclosure sales, the bankruptcy court could not
have obliged Baker to pay $98,775 to the estate under § 329(b). In that
circumstance, the bankruptcy court’s § 329(b) remedy against Baker would
have been limited to the value of the properties that Baker received at the time
Whitley transferred them as compensation. See In re Redding, 247 B.R. at 478–
6 We observe that this step did not occur, in part, because this case was transferred
between bankruptcy judges. Judge Steen had highlighted that “material issues of fact”
existed relevant to § 329 disgorgement, and also highlighted various valuation
determinations needed to be made.
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79 (“The plain language of § 329 provides that there must first be a
determination that the fees are excessive. Only after that determination, and
only to the extent excessive, would there be a disgorgement.”). There is no
reason to treat Baker differently in this case, as the $98,775 value he was
obliged to return to the estate was not paid to him as compensation.
Accordingly, the bankruptcy court improperly relied on § 329(b) in
ordering Baker to return the two properties outright.
C.
Section 329(a) requires a debtor’s attorney to disclose “a statement of the
compensation paid or agreed to be paid,” and we have said that the bankruptcy
court’s “broad discretion in awarding and denying fees paid in connection with
bankruptcy proceedings empowers the bankruptcy court to order disgorgement
as a sanction to debtors’ counsel for nondisclosure.” In re Prudhomme, 43 F.3d
at 1003; see also Anderson v. Anderson (In re Anderson), 936 F.2d 199, 204 (5th
Cir. 1991) (“[T]he bankruptcy court is one of equity and thus has broad
equitable—and hence discretionary—powers to award attorney’s fees.”). We
have been clear that “[t]he bankruptcy court has inherent power to guard the
practice of attorneys who appear in that court.” Suffness v. Petros (In re Avante
Real Estate, Inc.), No. 95-10442, 1995 WL 625456, *8 (5th Cir. Oct. 11, 1995)
(citing 11 U.S.C. § 105). “These powers are discretionary and the bankruptcy
court has broad authority to discipline attorneys and to award or disgorge fees
paid in connection with bankruptcy proceedings.” Id. While its authority is
broad, when a bankruptcy court imposes a disciplinary sanction it “must use
the least restrictive sanction necessary to deter the inappropriate behavior,”
Harris v. First City Bancorporation of Tex., Inc. (In re First City
Bancorporation of Tex., Inc.), 282 F.3d 864, 867 (5th Cir. 2002), and “[t]he
sanction levied must thus be commensurate with the egregiousness of the
10
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conduct.” Mapother & Mapother, P.S.C. v. Cooper (In re Downs), 103 F.3d 472,
478 (6th Cir. 1996).
In this case, the bankruptcy court ordered Baker only to “show cause
why any compensation previously paid should not be disgorged to the extent
in excess of the reasonable value of such services pursuant to 11 U.S.C.
§ 329(b),” yet the court then ordered Baker to “disgorge all of the consideration
that [Baker] has already received from the Debtor” (emphasis added). As
described above, however, the bankruptcy court’s order obliging Baker to
transfer the properties outright, now free of the Ackleys’ liens, imposed a
sanction beyond the amount of compensation Baker received. The bankruptcy
court did not address Baker’s $98,775 foreclosure purchase in its order, did not
value the properties at the time that Whitley transferred them to Baker, and
did not value the properties at the time it ordered Baker to return them to the
estate. Further, when it denied Baker’s motion to amend, it held that Baker’s
payments had “no relevance to the analysis on whether the Properties were
properly acquired.” Accordingly, the bankruptcy court did not assess the extent
of the disciplinary sanction it imposed, nor assess that amount in connection
with Baker’s conduct in this case.
Both lower courts relied on SEC v. Huffman, 996 F.2d 800, 802 (5th Cir.
1993), for the proposition that disgorgement is not “restitution” but an
equitable remedy aimed at “‘wrest[ing] ill-gotten gains from the hands of the
wrongdoer.’” The bankruptcy court, in denying Baker’s motion to amend, relied
on Huffman’s definition of disgorgement, and also elaborated that “if Baker
and the Baker-Owned LLC paid money to keep and repair the Properties, then
those payments were made to retain ill-gotten gains. The[se] facts have no
relevance to the analysis on whether the Properties were properly acquired.”
The bankruptcy court has authority to impose disciplinary sanctions on
attorneys beyond the return of compensation, but the amount of the sanction
11
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No. 12-41125
imposed is essential to a bankruptcy court’s sanction analysis because “[w]hen
a court metes out a sanction, it must exercise such power with restraint and
discretion.” In re Downs, 103 F.3d at 478. Although a $98,775 sanction may
have been appropriate considering Baker’s conduct as adverted to in these
proceedings (e.g. Baker’s “ill-gotten gains” and his “nasty habit of non-
disclosure”), in order to ensure that a sanction is “chosen to employ the least
possible power to the end proposed,” the bankruptcy court must in the first
instance compare the sanction amount to the sanctioned party’s conduct. In re
First City Bancorporation of Tex., 282 F.3d at 867 (internal quotation marks
omitted).
CONCLUSION
The bankruptcy court ordered Baker to return all consideration he
received, but in so doing it imposed an additional sanction beyond return of
compensation. Because such an order cannot rest on § 329(b), and because the
bankruptcy court did not develop the basis for and extent of any further
sanction it imposed, we REVERSE and REMAND for further proceedings
consistent with this decision.
12
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236 F.Supp. 385 (1964)
Marie CHAIRALUCE and George Chairaluce, Plaintiffs,
v.
The STANLEY WARNER MANAGEMENT CORP., the Wise Shoe Company, Inc., and Spiegel, Inc., Defendants.
Civ. A. No. 10079.
United States District Court D. Connecticut.
December 18, 1964.
Richard J. Parrett, Buckley & Parrett, New Haven, Conn., for plaintiffs.
Francis J. Moran, New Haven, Conn., for defendant, The Stanley Warner Management Corp.
David M. Reilly, Jr., Reilly & Peck, New Haven, Conn., for defendants, The Wise Shoe Company, Inc., and Spiegel, Inc.
ZAMPANO, District Judge.
The defendant, The Wise Shoe Company, Inc., hereinafter designated as "Wise", has moved pursuant to Rule 12 (b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., for an order dismissing the second count of plaintiffs' amended complaint for failure to state a claim upon which relief can be granted. Specifically, the question presented is whether this cause of action against Wise, which is predicated upon breach of express and implied warranties, must be dismissed because plaintiffs have failed to allege privity of contract or reliance on defendant's representations or advertising.
This action was brought to recover damages for injuries sustained by the wife-plaintiff when she fell on a stairway in a theater owned by the defendant, The Stanley Warner Management Corp. At the time of the accident she was wearing for the first time a pair of new shoes which were manufactured by Wise and *386 purchased by the plaintiff from the mail-order retail store of the defendant, Spiegel, Inc. She alleges her fall was caused by the breaking of a defective heel on one of these shoes.
The first cause of action is based upon negligence against all three defendants and is not involved in this motion. The second count concerns Wise and Spiegel and is founded upon the breach of express and implied warranties in the manufacture and sale of the defective shoe. As against Spiegel, the plaintiffs allege a purchase in reliance on misleading advertising contained in its mail-order catalogue. The cause of action against Spiegel is not challenged here. But, with respect to Wise, the plaintiffs merely contend there was a breach of "the warranties and duties which were owed to the plaintiff under the laws of the State of Connecticut".
Wise claims that absent allegations of representations through advertising by which the plaintiffs were misled, lack of privity between manufacturer and ultimate consumer bars recovery based upon breach of implied warranty. The Connecticut state courts have not yet ruled directly on this issue and, therefore, this Court must examine the effect of the recent far-reaching change in the Connecticut law of warranties. Arfons v. E. I. Du Pont De Nemours & Company, 261 F.2d 434, 436 (2 Cir. 1958). Deveny v. Rheem Manufacturing Company, 319 F.2d 124 (2 Cir. 1963).
The Supreme Court of Errors of Connecticut in Hamon v. Digliani, 148 Conn. 710, 174 A.2d 294 (1961), stressing consumer reliance on a manufacturer's misleading advertising, ruled for the first time that privity of contract was not prerequisite to liability for breach of express warranty. In a searching inquiry into the relevant policy considerations, the Court commented: "The maxim `caveat emptor' has become a millstone around the necks of dealer and customer. While the customer may maintain an action under the Sales Act against the retailer for breach of implied warranty, the dealer in turn must sue his supplier to recoup his damages and costs where the customer prevails. Eventually, after several separate and distinct pieces of costly litigation by those in the chain of title, the manufacturer is finally obliged to shoulder the responsibility which should have been his in the first instance." 148 Conn. at 717, 174 A.2d at 297. Continuing at page 718, 174 A.2d at page 297, the Court established the following rules:
"The manufacturer or producer who puts a commodity for personal use or consumption on the market in a sealed package or other closed container should be held to have impliedly warranted to the ultimate consumer that the product is reasonably fit for the purpose intended and that it does not contain any harmful and deleterious ingredient of which due and ample warning has not been given. * * * Where the manufacturer or producer makes representations in his advertisements or by the labels on his products as an inducement to the ultimate purchaser, the manufacturer or producer should be held to strict accountability to any person who buys the product in reliance on the representations and later suffers injury because the product fails to conform to them."
Wise contends the Hamon case merely carved out an exception to the long-standing rule of privity in circumstances where a sealed package is involved or where the manufacturer's express representations are relied upon by the consumer. Wise urges, in effect, that the Hamon holding not be extended beyond the narrow factual circumstances there presented.
The obvious trend of the Connecticut law on the subject militates against defendant's position. Under the old Sales Act, § 42-16 of the Connecticut General Statutes, the protection of implied warranty of fitness of food and drink was extended to all persons for whom the purchase was intended. In 1961, the legislature enacted the Uniform Commercial Code which, by its § 42a-2-314, § 42a-2-315 *387 and § 42a-2-318, further expands an implied warrant of merchantability and fitness for a particular purpose to any person in the family or household of the buyer, or who is a guest in his home. Recent amendments to the statutes now allow an action for wrongful death based on breach of warranty. Conn.Gen.Stat. § 52-555 (Rev. 1958). In Simpson v. Powered Products of Michigan, Inc., 24 Conn.Sup. 409 (1963), the plaintiff was not the buyer but his lessee, and the Court permitted the cause of action in warranty to stand against the seller of a defective golf cart which allegedly caused plaintiff's injuries.
These recent statutory changes and cases, coupled with the broad language and a review of the citations of authorities in Hamon, indicate to this Court that giant steps toward the inevitable demise of the privity requirement have been taken in Connecticut. The heights attained in this field by the legislature and judiciary in Connecticut should not now serve as pinnacles from which this Court backslides toward resuscitation of the privity doctrine. Sound public policy requires that a manufacturer be held strictly accountable to a plaintiff who, using his product in a way it was intended, is injured as a result of a defect in manufacture of which plaintiff was not aware.
Moreover, discarding the privity bugaboo in such cases harmonizes with the modern trend in other states and with the views of learned scholars in the field. The Court of Appeals for this Circuit, in two recent cases, supported the principle of strict liability against manufacturers who placed defective articles in the stream of commerce. Deveny v. Rheem Manufacturing Company, supra; Delaney v. Towmotor Corporation, 339 F.2d 4 (2 Cir. 1964). See, also, Conlon v. Republic Aviation Corporation, 204 F. Supp. 865 (D.C.S.D.N.Y.1960). In Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69, 75 A.L.R.2d 1, (1960), and in Rogers v. Toni Home Permanent Co., 167 Ohio St. 244, 147 N. E.2d 612, 75 A.L.R.2d 103 (1958), both of which received approving citation in the Hamon case, supra, the Courts stressed the role of public policy in protecting innocent buyers from the harm of manufacturers' defective articles. The Third Circuit's approach to the issue is expressed in Mannsz v. Macwhyte Co., 155 F.2d 445 (3 Cir. 1946), wherein the Court, at page 450, noted: "The abolition of the doctrine (privity) occurred first in the food cases, next in the beverages decisions and now it has been extended to those cases in which the article manufactured, not dangerous or even beneficial if properly made, injured a person because it was manufactured improperly."
Under the facts in the instant case, the reasoning of the Court in Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 (1963) is directly in point. There the Court recognized a plaintiff's right of action based on express warranty and went on to hold that "* * * it should not be controlling whether plaintiff selected the machine because of the statements in the brochure, or because of the machine's own appearance of excellence that belied the defect lurking beneath the surface, or because he merely assumed that it would safely do the jobs it was built to do. * * * To establish the manufacturer's liability it was sufficient that plaintiff proved that he was injured while using the Shopsmith in a way it was intended to be used as a result of a defect in design and manufacture of which plaintiff was not aware that made the Shopsmith unsafe for its intended use." 59 Cal.2d at 64, 27 Cal.Rptr. at 701, 377 P.2d at 901.
Professor Fleming James, Jr., noting that several cases "have stressed the extensive advertising" in holding a manufacturer liable, comments: "It would be a pity if they should emerge as requirements or limitations on liability under implied warranty. If injury from defective products is properly a risk of the producer's enterprise, it would be so whether he advertised or not and whether or not there was a conscious need to rely on his skill." James, Products Liability, *388 34 Texas L.R. 192 (1955). See also, Harper and James, The Law of Torts, Vol. 2, pp. 1570-73.
These views are shared by Dean Prosser who deplores the "expensive, time-consuming, and wasteful process" of the privity requirement and advocates a "blanket rule which makes any supplier in the chain liable directly to the ultimate user, and so short-circuits the whole unwieldy process". Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer), 69 Yale L.J. 1099, 1124 (1960). See also, Prosser on Torts, 2nd Ed., pp. 507-509; Restatement (Second), Torts, § 402A, Tent. Draft No. 10 (1964).
In light of the evident trend of the law in Connecticut and elsewhere, this Court concludes that the plaintiffs have alleged facts sufficient to state a claim upon which relief may be granted.
Accordingly, defendant's motion to dismiss is denied.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Alston, Decker and Senior Judge Coleman
UNPUBLISHED
MARY ELIZABETH CLANAHAN
MEMORANDUM OPINION*
v. Record No. 1742-13-4 PER CURIAM
JANUARY 7, 2014
SHENANDOAH COUNTY PUBLIC SCHOOLS AND
VIRGINIA ASSOCIATION OF COUNTIES RISK POOL
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
(Bradley G. Pollack, on brief), for appellant. Appellant submitting
on brief.
(John C. Johnson; Frith Anderson & Peake, P.C., on brief), for
appellees. Appellees submitting on brief.
Mary Elizabeth Clanahan (“claimant”) appeals a decision of the Workers’ Compensation
Commission finding the evidence insufficient to establish a causal connection between the June
4, 2010 compensable accident and her migraines and neck conditions.
Upon reviewing the opening brief, we affirm the commission’s opinion because claimant
failed to comply with Rule 5A:20(e), which mandates that the opening brief include “[t]he
standard of review and the argument (including principles of law and authorities) relating to each
assignment of error.” Claimant cites no legal authorities supporting her arguments. See Fadness
v. Fadness, 52 Va. App. 833, 851, 667 S.E.2d 857, 866 (2008) (“If the parties believed that the
circuit court erred, it was their duty to present that error to us with legal authority to support their
contention.”); Parks v. Parks, 52 Va. App. 663, 664, 666 S.E.2d 547, 548 (2008).
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Claimant has the burden of showing that reversible error was committed. See Lutes v.
Alexander, 14 Va. App. 1075, 1077, 421 S.E.2d 857, 859 (1992). Unsupported assertions of
error “do not merit appellate consideration.” Buchanan v. Buchanan, 14 Va. App. 53, 56, 415
S.E.2d 237, 239 (1992). Accordingly, we affirm the commission’s final opinion, Clanahan v.
Shenandoah Cnty. Pub. Schs., VA00000307592 (Aug. 13, 2013).
Affirmed.
-2-
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88 Ill. App.2d 447 (1967)
232 N.E.2d 302
People of the State of Illinois, Plaintiff-Appellee,
v.
Cleon Robbins, (Impleaded), Defendant-Appellant.
Gen. No. 51,115.
Illinois Appellate Court First District, Third Division.
November 2, 1967.
*448 *449 Gerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
John J. Stamos, State's Attorney of Cook County, of Chicago (Elmer C. Kissane and David B. Selig, Assistant State's Attorneys, of counsel), for appellee.
MR. PRESIDING JUSTICE SULLIVAN delivered the opinion of the court.
This is an appeal from a conviction of robbery for which defendant was sentenced to the penitentiary for fifteen to forty-five years.
Defendant contends on appeal that the identification of him was insufficient to sustain a conviction beyond a reasonable doubt; that defendant was denied effective assistance of counsel; that evidence of his prior conviction should not have been allowed; that the jury was improperly instructed as to that evidence; that the manner in which that evidence was introduced was prejudicial to defendant, and that evidence obtained in violation of defendant's constitutional rights was improperly admitted.
The evidence showed that on December 12, 1964, defendant entered the Chateau DuRoi Hotel in Chicago and *450 asked the hotel guard, Mr. King, if he could purchase a soft drink. He then asked the cashier for change, purchased the soft drink and left the hotel. Seconds thereafter another man, Bass, entered the hotel and disarmed the guard. The cashier ducked down on the floor in the cashier's cage and telephoned the police. King testified that at that time defendant Robbins reentered the hotel and said, "Come on, man. She's calling the police." According to King, defendant was twelve to fourteen feet from him when he reentered the hotel. Bass took King's gun belt and fled the premises. The cashier said she did not see defendant enter the hotel a second time because she was down on the floor calling the police. Both witnesses testified that when they saw defendant he was wearing a short brown overcoat.
Police officers Wilkins and Lundin testified that they received a radio call concerning an armed robbery in progress. As they drove southbound in an alley about one and a half blocks from the scene of the crime they observed two men cross in front of the car. The men were walking eastbound "shoulder to shoulder" at a rapid pace and looking back over their shoulders. The officers, in a marked squad car, pulled alongside the men and told them to stop. Defendant stopped and the other man (Bass) ran away, but was later captured. Defendant was arrested and searched since the police radio message had indicated that it had been an armed robbery. They removed a loaded .38 caliber revolver with the hammer cocked from defendant's pocket. One officer testified that Robbins had on a short coat.
The defendant and Bass (after his capture) were taken to a police station where they were identified by the hotel guard and cashier.
The defendant testified that he went to the hotel, after having visited a friend nearby, to buy a soft drink but saw no one on his way out. He said that, as he was walking toward the place of his arrest, he was alone, but *451 he noticed two men behind him walking very fast. One of them walked across the street and defendant was nervous because he had on a new full length black leather coat and a new hat and he did not know what "they had on their mind." He claimed that he had no gun and that the gun the police recovered was lying on the ground near him.
Codefendant Bass testified that he met a friend named Eddie a few minutes after 6:00 p.m. on the evening in question. He, armed with a .38 caliber revolver, told Eddie that he had to go to the hotel for something. He proceeded into the hotel, disarmed the guard and told the cashier not to move, but she ducked down behind the counter. Eddie then appeared and said, "Come on, Jack, she is calling the police." The two, Bass and Eddie, left together. Just before the police officers told Bass to stop, Eddie crossed the street and disappeared. Bass did not know Eddie's last name nor how to reach him although they had grown up together. Bass said Robbins was not involved in the robbery nor was he walking with Bass when the police stopped them.
Defendant and Bass, according to their testimony, had known each other for about fifteen years but neither recognized the other as they walked down the street.
The State produced certified copies of prior convictions of defendants. Both defendants were convicted and Robbins appealed.
[1, 2] Defendant first contends that the identification of him was insufficient to sustain a conviction beyond a reasonable doubt. We do not agree. Mr. King talked with Robbins at close range about the purchase of a soft drink. It was only a matter of minutes later that he again saw defendant in the hotel, when he called to Bass. The witness was unshaken in his certainty of identification and it is well settled that the "testimony of one witness as to identification, if positive and the witness credible, is sufficient to convict even though the *452 testimony is contradicted by the accused." People v. Crenshaw, 15 Ill.2d 458, 155 NE2d 599. Furthermore, the sufficiency of the identification was a question of fact for the jury and this court will not reverse unless the testimony is so unsatisfactory as to leave a reasonable doubt of the guilt of the accused. People v. Brengettsy, 25 Ill.2d 228, 184 NE2d 849. There is no such doubt here. The face-to-face encounters afforded King ample opportunity for a positive identification of defendant.
[3] Defendant also claims that, because there was no lineup, the identification was inherently unreliable. People v. Gardner, 35 Ill.2d 564, 221 NE2d 232, holds that such could affect the weight to be given the testimony but does not make the identification useless. The United States Supreme Court decisions, upon which defendant relies are United States v. Wade, 35 Law Week 4597; Gilbert v. California, 35 Law Week 4614; and Stovall v. Denno, 35 Law Week 4610. These cases say that, with prospective application only, during a lineup or other identification procedure, defendant is entitled to be represented by counsel. These cases are inapplicable to the case at bar.
Defendant next contends that he was denied effective assistance of counsel in that his trial counsel refused to make a motion to suppress evidence, failed to object to the prejudicial presentation of evidence of defendant's prior conviction, failed to object to the sending of the court record of that conviction to the jury room, and initiated testimony by the defendant in a manner indicating he thought it was unwise for defendant to testify.
The criteria to be used in evaluating counsel's competency were set forth in United States ex rel. Weber v. Ragen, 176 F.2d 579, at page 586:
"As to the requirement under the Fourteenth Amendment, the services of counsel meet the requirements of the due process clause when he is a member in good standing at the bar, gives his client his complete loyalty, serves him in good faith to the best of *453 his ability, and his service is of such a character as to preserve the essential integrity of the proceedings as a trial in a court of justice. He is not required to be infallible. We know that some good lawyer gets beat in every law suit. He made some mistakes. The printed opinions that line the walls of our offices bear mute testimony to that fact. His client is entitled to a fair trial, not a perfect one."
In People v. Ashley, 34 Ill.2d 402, 411, 216 NE2d 126, the court said:
"... it is well settled that in order to establish incompetency of counsel, actual incompetent representation and substantial prejudice to the defendant as a result thereof must be established. (Citing cases.) Nor can charges of incompetency be based solely upon assertions."
[4] It is with the above principles in mind that we examine the specific instances decried by defendant. He claims that counsel should have made a motion to suppress evidence obtained from defendant at the time of his arrest. The record shows that counsel had considered making the motion and determined that "no legal benefit would accrue to the defendant" in presenting the motion. Counsel acted in a rational manner and had defendant's best interest in mind when he decided not to make the motion. We shall discuss this point later, but, here, it will suffice to say that it was not proof of incompetency of counsel.
[5-7] Defendant further alleges that his counsel failed to object to the presentation of evidence of defendant's prior conviction and the taking of the court record thereof into the jury room. It is the law in Illinois that evidence of prior convictions may be introduced by presenting certified copies of the clerk of the court of the prior convictions. People v. Novak, 343 Ill. 355, 175 NE 551; People v. Crump, 12 Ill.2d 402, 147 NE2d 76. Defendant *454 asserts that it was highly prejudicial to allow the part of the record of conviction which stated that defendant had first pleaded not guilty and then later changed his plea to guilty and the statement that he was convicted of armed robbery involving a lead pipe. However, the Novak case, supra, held that the indictment and arraignment are parts of the record indispensible to the judgment of conviction. See also People v. Smith, 63 Ill. App.2d 369, 211 NE2d 456. The showing in the record that defendant first pleaded not guilty and then changed his plea to guilty and that he was convicted of armed robbery involving a lead pipe did not, in our opinion, affect the admissibility of the evidence. As to the taking of the document to the jury room, defendant's reliance on People v. Spranger, 314 Ill. 602, 145 NE 706, is misplaced. That case said that instruments of evidence depending for their value on the credibility of the maker may not be taken to the jury room. This rule is inapplicable to the evidence here involved, as the document was a court record. Certainly counsel is not to be deemed incompetent for failing to make objections which had no legal basis and which could only be overruled.
The other alleged error of counsel is his initial questioning of defendant. The relevant testimony follows:
"Q.... you are testifying of your own accord here, is that correct?
"A. That is correct.
"Q. And you have instructed your defense counsel, namely, myself and Mr. ____ that you do wish to testify and present your case to the Court and to this jury, is that correct, sir?
"A. Yes, that is correct.
"Q. And you are testifying, although you have been informed by your defense counsel, and you also know that you don't have any obligation to testify, is that correct, sir?
"A. Yes, I know this.
*455 "Q. Knowing that, you still persist in testifying?
"A. I will."
The reasoning behind such questioning cannot be here determined with certainty but defendant's assertion that counsel was seeking to indicate that he felt defendant should not testify and that he felt defendant was lying is mere conjecture. It could just as readily be said that counsel was stressing the fact that defendant did not have to testify and was doing so because he had no fear of truth. This was a matter of trial tactics and does not render counsel incompetent.
The remaining contentions of defendant were not properly preserved for review in that they were not objected to during trial. People v. Clements, 28 Ill.2d 534, 192 NE2d 923; People v. Dauphin, 53 Ill. App.2d 433, 203 NE2d 166; People v. Pecho, 362 Ill. 568, 200 NE 860; People v. Brancztet, 59 Ill. App.2d 381, 208 NE2d 416. However, we have reviewed the record and have determined that none of the alleged errors constituted reversible error. We set forth below our reasons for deciding that the result would have been the same even if all points hereafter discussed had been properly preserved for review.
Defendant contends that the rule allowing the introduction of evidence of defendant's prior conviction is unconstitutional, that the instruction governing the use of such evidence was improper and prejudicial, especially in light of the court's comments at the time of introduction, and that the manner of introduction resulted in substantial prejudice to defendant.
[8] The United States Supreme Court recently considered the admission of evidence of prior convictions in the case of Spencer v. Texas, 35 Law Week 4164. The majority opinion said in part:
"Because such evidence is generally recognized to have potentiality for prejudice, it is usually excluded *456 except when it is particularly probative in showing such things as ... when the defendant has testified and the State seeks to impeach his credibility....
"... To say that the United States Constitution is infringed simply because this type of evidence may be prejudicial and limiting instructions inadequate to vitiate prejudicial effects, would make inroads into this entire complex code of state criminal evidentiary law, and would threaten other large areas of trial jurisprudence.... This type of prejudicial effect is acknowledged to inhere in criminal practice, but it is justified on the grounds that (1) the jury is expected to follow instructions in limiting this evidence to its proper function...."
[9] The instruction given here was in the language of the statute and read as follows:
"The Court instructs the jury, in the language of the statute, that no person shall be disqualified as a witness in any criminal case by the reason of his having been convicted of any crime; but such conviction may be shown for the purpose of affecting his credibility."
Defendant argues that the above did not properly limit the use of the evidence of prior convictions. We do not agree. Were it not introduced for a limited purpose no specific instruction would have been necessary. This instruction pointed out that limited use, thereby precluding any other use. The identical instruction was used and approved by us in People v. Wright, 80 Ill. App.2d 300, 225 NE2d 460. In that case the instruction was not attacked directly but we commented that the court had correctly instructed the jury on the matter of the use of prior convictions. We feel that the instruction here given informed the jury of the limited use of the evidence of *457 prior convictions and to say that having been so instructed the jury might consider them as evidence of guilt in the instant case is, in our opinion, an implication that the present day jury has little intelligence. With this implication we do not agree.
Defendant also argues that the remarks of the court regarding the certified copy of defendant's prior conviction at the time it was introduced constitute reversible error. During a discussion before the bench the court said to the assistant state's attorney, "you may read them to the jury as evidence." Defendant argues that this statement did not limit the use of the prior record. Of course, the record was in evidence and constituted evidence. The court instructed the jury in writing of the purpose for which that evidence might be used. We do not feel the remarks of the court were prejudicial particularly in view of the subsequent instruction to the jury. Although defendant refers us to the Wright case, supra, that case is distinguishable in that the objectionable remarks therein were by the state's attorney, who, in effect, attempted to instruct the jury as to their consideration of the documents, and thereby usurp the function of the court.
Further, we believe that the State chose the only correct method of presentation of prior evidence of this sort in providing certified copies of the court clerk of the prior conviction. People v. Novak, supra; People v. Crump, supra.
[10] Defendant next contends that evidence obtained in violation of his constitutional rights was improperly admitted. Probable cause for arrest exists when an offense has been committed and the officer has reasonable grounds for believing that the person to be arrested has committed it. (Ill Rev Stats 1965, c 38, par 107-2; People v. Peak, 29 Ill.2d 343, 194 NE2d 322.) In this case the officers had information that an offense had been committed and defendant and Bass were sighted, just a block and a half from the scene of the crime, acting suspiciously *458 in walking at a rapid pace and looking back over their shoulders as if they were running from someone. Here the suspicious actions of defendant and Bass and their physical proximity to the scene of the crime provided a sufficient factual basis for the officers to have probable cause to believe the men had committed the crime. The search was an incident to that lawful arrest and was within the officers' rights to search for evidence of the armed robbery and insure their own safety.
For the above reasons the judgment is affirmed.
Affirmed.
SCHWARTZ and DEMPSEY, JJ., concur.
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806 N.E.2d 280 (2004)
346 Ill. App.3d 996
282 Ill.Dec. 305
BILL MAREK'S THE COMPETITIVE EDGE, INC., Plaintiff-Appellee,
v.
MICKELSON GROUP, INC., Defendant-Appellant.
No. 2-03-0259.
Appellate Court of Illinois, Second District.
March 17, 2004.
Rehearing Denied April 12, 2004.
*282 James J. Flood, James J. Flood, PC, Skokie, Ronald A. Bredemann, Crystal Lake, for Mickelson Group, Inc.
Bryan R. Bagdady, Bryan R. Bagdady, P.C., Lisle, for Bill Marke's the Competitive Edge, Inc.
Justice BYRNE delivered the opinion of the court:
Union Underwear Company, Inc.(Union), which is not a party to this appeal, purportedly owed plaintiff, Bill Marek's The Competitive Edge, Inc., unpaid sales commissions but mistakenly paid them to defendant, Mickelson Group, Inc. Plaintiff made numerous demands upon defendant for the immediate transfer of the funds to plaintiff, the funds totaling $65,008.99, and defendant refused. Thereafter, plaintiff filed a two-count complaint against defendant based on the claims of conversion and constructive trust. The trial court granted plaintiff's motion for summary judgment on the conversion count for $65,008.99, plus interest. Defendant contends on appeal that the trial court (1) erred in granting summary judgment for plaintiff on the conversion claim; (2) abused its discretion by imposing discovery sanctions against defendant; (3) abused its discretion by failing to strike plaintiff's supporting affidavits; and (4) erred in denying defendant's motions to dismiss for lack of jurisdiction and for failure to join Union as a necessary party. We affirm.
The following facts are taken from the complaint as well as the supporting documents and affidavits. On January 6, 1997, plaintiff entered into a sales representative agreement with Union. Plaintiff remained a sales representative for Union until its contract was terminated by letter on May 5, 1999. The original sales agreement between plaintiff and Union and the notice of termination letter provided that plaintiff was to receive commission payments on orders taken, submitted, and shipped within six months after the effective date of the termination, i.e. from the effective date of May 5, 1999, through December 5, 1999.
Defendant became Union's successor sales representative after the relationship between plaintiff and Union ended. Due to an administrative error, Union sent plaintiff's commission payments, totaling $65,008.99, to defendant.
On November 24, 1999, Union and plaintiff discovered that plaintiff's earned commissions were mistakenly sent to defendant. Union acknowledged in writing to plaintiff that it sent plaintiff's commission payments to the wrong agency and documented the nature of the error in two reports, dated December 21 and December 22, 1999. The reports, which were referenced in a spread sheet as group "Exhibit E," were attached to plaintiff's complaint. Exhibit E was later attached to plaintiff's motion for summary judgment.
*283 Plaintiff then verbally demanded that defendant transfer the funds to plaintiff. Defendant failed to transfer the funds as demanded. Defendant admitted that it is the successor sales representative for Union; that it received copies of the Union reports dated December 21 and 22, 1999, which documented the nature of the error in payment; and that plaintiff made numerous verbal demands for the transfer of the funds identified in the complaint.
On December 29, 1999, Union filed for bankruptcy. Plaintiff received a creditor's notice. On April 11, 2000, plaintiff prepared a claim for bankruptcy court that sought, inter alia, unpaid commissions from Union.
Thereafter, on May 4, 2000, plaintiff filed the instant complaint to collect its unpaid commissions that Union mistakenly paid to defendant. In count I, the conversion count, plaintiff alleged that defendant had no claim or right to plaintiff's sales commissions and defendant wrongfully assumed control, dominion, and ownership over these funds. Plaintiff alleged that the orders identified in Exhibit E were taken by plaintiff and submitted to Union for approval on or before June 5, 1999, and the products identified in Exhibit E were shipped on or before December 5, 1999. Plaintiff further alleged that there were no deductions taken against plaintiff's account and the commissions identified in Exhibit E are plaintiff's property. Plaintiff alleged that defendant was paid the sum of $65,008.99, which represents the total commissions that were and are due and owing to plaintiff. Plaintiff further alleged that defendant did not take, submit, or ship any of the orders identified in Exhibit E.
On June 14, 2000, defendant filed its answer and affirmative defenses to count I. On August 2, 2000, plaintiff filed a motion to dismiss defendant's affirmative defenses. Thereafter, defendant filed a motion to amend its answer and affirmative defenses. The trial court granted defendant's motion and ordered that the case be continued for a case management conference on October 23, 2000.
On October 23, 2000, the trial court granted defendant's motion for an extension of time. The trial court also ordered that written discovery be completed by December 22, 2000, that oral discovery be completed by March 23, 2001, and that the cause be heard for a pretrial conference on April 6, 2001. Defendant filed its first amended answer and one affirmative defense.
Defendant's affirmative defense stated that the prior sales agreement between Union and plaintiff provided that commissions could not and would not be paid on bulk projections but, rather, on purchase orders identified by purchase order numbers that had been issued by the customer and on products shipped to the customer. Plaintiff denied the affirmative defense.
Plaintiff issued interrogatories, including Supreme Court Rules 213(f) and (g) interrogatories (177 Ill.2d Rs. 213(f), (g)), on December 19, 2000. Defendant did not issue any interrogatories to plaintiff. Although the record does not contain a corresponding notice of written discovery, defendant did propound a Supreme Court Rule 214 (166 Ill.2d R. 214) notice to produce to plaintiff, and plaintiff provided responsive documents to defendant.
On February 22, 2001, defendant answered plaintiff's Rules 213(f) and (g) interrogatories. Interrogatory number one called for the names and addresses of all witnesses who would testify at trial and requested the identification of the subject or subjects of the testimony of each witness. Defendant did not identify any subject matter. Interrogatory number two asked for the identification of the name *284 and address of each opinion witnesses who would testify at trial and asked that the subject matter, the conclusions and opinions, and the qualifications of each such witness be identified. Defendant answered: "None, investigation continues." Interrogatory number six asked for the identification of each and every person who defendant believed was of the opinion that defendant properly received or was entitled to retain the commissions. Defendant stated, "Tim Kenney, address unknown, investigation continues." Timothy Kenney is an affiant for plaintiff and the author of Exhibit E.
On April 13, 2001, the trial court heard the matter for a case management conference. The trial court closed discovery as of August 3, and set a pretrial hearing for August 10, 2001. At the pretrial hearing, the trial court closed discovery and ordered that the case be heard for trial on January 7, 2002.
Thereafter, the parties agreed to present the conversion count to the trial court on cross-motions for summary judgment. Accordingly, on December 28, 2001, plaintiff filed an agreed motion for hearing on partial summary judgment. The motion stated that the parties were prepared to file their motions for summary judgment instanter. The trial court granted the motion and ordered the parties to file their cross-motions for summary judgment by January 4, 2002, and to respond to the cross-motions by January 30, 2002. The trial court further ordered that the crossmotions for summary judgment be heard on February 27, 2002, and struck the trial date of January 7, 2002.
Plaintiff timely filed its motion for summary judgment. Defendant did not file a cross-motion for summary judgment. Instead, on January 28, 2002, defendant filed a motion for judgment on the pleadings, a motion to dismiss for lack of jurisdiction, and a motion to dismiss for plaintiff's failure to join Union as a necessary party. Defendant also filed a motion to strike in lieu of a response to plaintiff's motion for summary judgment.
On February 15, 2002, plaintiff received defendant's supplemental answers to plaintiff's Rules 213(f) and (g) interrogatories. On February 19, plaintiff filed a motion to strike defendant's supplemental answers. When the briefing schedules were set with respect to plaintiff's motion to strike, counsel for defendant stated to the court that "the light went on after [he] received plaintiff's motion for summary judgment" and that counsel thereafter conducted his own discovery that led to the development of the supplemental answers. The trial court found that defendant's supplemental answers were not timely disclosed and granted plaintiff's motion to strike.
After the trial court denied defendant's motion to strike in lieu of a response to plaintiff's motion for summary judgment, defendant asserted that it had never directly responded to the summary judgment motion, and it sought leave to file a direct response. Defendant assumed that the motion for summary judgment would be "muted" by its other motions and therefore never directly responded to the summary judgment motion. The trial court allowed defendant to file a response.
On August 28, 2002, defendant filed a response to the motion for summary judgment. Attached to defendant's response were the counteraffidavits of Douglas Kelly, Daniel Raskin, and James Gilberto. Plaintiff filed a motion to strike the affidavits. The trial court granted the motion to strike on the basis of defendant's failure to timely answer plaintiff's Rules 213(f) and (g) interrogatories.
Following oral argument on the summary judgment motion as to the conversion *285 count, the trial court entered judgment in favor of plaintiff in the amount of $65,008.99, plus interest. Because the constructive trust count requested the same relief as the conversion count, the trial court found it unnecessary to impose a constructive trust. See Fujisawa Pharmaceutical Co. v. Kapoor, 16 F.Supp.2d 941, 952 (N.D.Ill.1998) (under Illinois law, a constructive trust describes an equitable remedy, rather than a separate cause of action). Defendant timely appeals.
We first examine whether the trial court erred in granting summary judgment for plaintiff on the conversion count. Summary judgment is properly granted where the pleadings, depositions, admissions, and affidavits on file, when viewed in the light most favorable to the nonmoving party, reveal that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2002). We review de novo an order granting summary judgment. City of Chicago v. Holland, 206 Ill.2d 480, 487, 276 Ill.Dec. 887, 795 N.E.2d 240 (2003).
Conversion is "`any unauthorized act, which deprives a man of his property permanently or for an indefinite time.'" In re Thebus, 108 Ill.2d 255, 259, 91 Ill. Dec. 623, 483 N.E.2d 1258 (1985), quoting Union Stock Yard & Transit Co. v. Mallory, Son & Zimmerman Co., 157 Ill. 554, 563, 41 N.E. 888 (1895). The substance of conversion is "`the wrongful deprivation of one who has a right to the immediate possession of the object unlawfully held.'" Thebus, 108 Ill.2d at 259, 91 Ill.Dec. 623, 483 N.E.2d 1258, quoting Bender v. Consolidated Mink Ranch, Inc., 110 Ill.App.3d 207, 213, 65 Ill.Dec. 801, 441 N.E.2d 1315 (1982). Accordingly, to prove conversion, the plaintiff must prove the following elements by a preponderance of the evidence: (1) the defendant's unauthorized and wrongful assumption of control, dominion, or ownership over the plaintiff's personal property; (2) the plaintiff's right in the property; (3) the plaintiff's right to immediate possession of the property, absolutely and unconditionally; and (4) the plaintiff's demand for possession of the property. Stathis v. Geldermann, 295 Ill.App.3d 844, 856, 229 Ill.Dec. 809, 692 N.E.2d 798 (1998).
Defendant asserts that unpaid sales commissions cannot form the basis for a claim of conversion. Defendant contends that, as a matter of law, an action for conversion may not be maintained for a mere failure to pay money unless it is capable of being described as a specific chattel. See Fonda v. General Casualty Co. of Illinois, 279 Ill.App.3d 894, 899, 216 Ill.Dec. 379, 665 N.E.2d 439 (1996). We disagree.
It is no longer necessary that money be specifically earmarked in order to sustain an action for conversion. An action for conversion may also be maintained where the converted funds are capable of being described, identified, or segregated in a specific manner. See Thebus, 108 Ill.2d at 260-62, 91 Ill.Dec. 623, 483 N.E.2d 1258; Roderick Development Investment Co., Inc. v. Community Bank of Edgewater, 282 Ill.App.3d 1052, 1058, 218 Ill.Dec. 297, 668 N.E.2d 1129 (1996); Fonda v. General Casualty Co., 279 Ill.App.3d 894, 899, 216 Ill.Dec. 379, 665 N.E.2d 439 (1996) (insurance proceeds of $20,091.70 sufficiently identifiable to support conversion action); Addante v. Pompilio, 303 Ill.App. 172, 25 N.E.2d 123 (1940) ($3,000 transmitted to brother sufficiently identifiable to support conversion action). A right to an indeterminate sum is insufficient to maintain a cause of action in conversion. See, e.g., Mid-America Fire & Marine Insurance Co. v. Middleton, 127 *286 Ill.App.3d 887, 892, 82 Ill.Dec. 555, 468 N.E.2d 1335 (1984).
In Thebus, 108 Ill.2d at 264, 91 Ill.Dec. 623, 483 N.E.2d 1258, the supreme court held that an attorney had not converted funds he withheld from his employees' paychecks by failing to pay this money to the Internal Revenue Service. The court explained that, although a specified identifiable fund could be the subject of a conversion action, there could be no conversion action for money represented by a general debt or obligation. The court decided that the character of the funds the attorney withheld for taxes was in the nature of a debt to the government rather than an identifiable fund, and the attorney did not maintain a separate bank account in which the taxes withheld and owed to the Internal Revenue Service were deposited. Similarly, he did not maintain a separate payroll account. Therefore, the attorney held no identifiable sum of money or fund for the Internal Revenue Service. The money owed to the government did not come into the attorney's hands from any outside source. It was an amount that accrued with each period as he wrote the payroll checks from his general checking account for the net amount of wages after taxes, retaining in his checking account the difference between the gross wages and the amount of the checks. Thebus, 108 Ill.2d at 263, 91 Ill.Dec. 623, 483 N.E.2d 1258.
Unlike the funds at issue in Thebus, the funds here were specifically identifiable. The amount plaintiff claims defendant exercised control over was specifically identifiable given the sales agreement between plaintiff and Union, the notice of termination letter, the orders identified in Exhibit E, which were taken, submitted, and shipped within six months after the effective date of termination, and the affidavits attached to the motion for summary judgment. The exact sales identified in Exhibit E show that the earned commissions amounted to $65,008.99. In particular, the affidavit of Timothy Kenney, Union's customer service manager and the author of Exhibit E, stated that the commissions generated in Exhibit E were based on the orders generated by plaintiff and accurately reflected the business records and computer data that Union maintained. Kenney averred that the orders identified in Exhibit E amounted to $65,008.99, representing the commissions which were due and owing to plaintiff.
Further, unlike the amount allegedly converted in Thebus, the amount defendant converted in this case was not a portion of its own assets that defendant was obligated to use to satisfy a debt to plaintiff. Rather, the funds were the specific funds transferred to defendant from an outside source, Union. Therefore, the funds also were identifiable in this respect.
We also find Roderick Development Investment Co., Inc. v. Community Bank of Edgewater, 282 Ill.App.3d 1052, 218 Ill. Dec. 297, 668 N.E.2d 1129 (1996), particularly instructive. Similar to the argument presented here, the defendant in Roderick argued in defense of the conversion claim that the action involved money that was not specifically identifiable or in a separate account. In rejecting this argument, the Roderick court pointed out that the amount the plaintiff claimed the defendant converted did not accrue but was specific and identifiable; it was exactly 5% of the final payment that was due under the purchase agreement, which was paid in a lump sum. The court further noted that the money was identifiable because it was a specific amount transferred from an outside source. Roderick, 282 Ill.App.3d at 1059, 218 Ill.Dec. 297, 668 N.E.2d 1129.
The Roderick court also rejected the defendant's argument that the amount *287 claimed by the plaintiff was not identifiable because it was not segregated or kept in a separate account. Roderick, 282 Ill. App.3d at 1062-63, 218 Ill.Dec. 297, 668 N.E.2d 1129. The court explained that, where the allegedly converted funds come from an outside source, the failure to segregate the funds does not make them unidentifiable. The court stated that it would be unfair to fashion a rule that prohibits a conversion action for funds that are not segregated. "Such a rule gives the alleged converter control over whether certain funds are subject to conversion because, depending on the type of account in which he chooses to place the funds, the funds may or may not be considered identifiable and, therefore, may or may not be subject to conversion. A party, such as the plaintiff, with no contractual relationship with the alleged converter could not dictate the manner in which the funds were held." Roderick, 282 Ill.App.3d at 1063, 218 Ill. Dec. 297, 668 N.E.2d 1129; see also Greene County Board of Education v. Bailey, 586 So.2d 893, 898 (Ala.1991) (requirement that there be earmarked money or specific money capable of identification before there can be a conversion has been complicated as a result of the evolution of our economic system); Autoville, Inc. v. Friedman, 20 Ariz.App. 89, 91, 510 P.2d 400, 402 (1973) (converted funds must be described, identified, or segregated in a specific manner). We are persuaded by the Roderick court's reasoning.
Defendant argues that the relationship between defendant and plaintiff is one of debtor-creditor, and therefore, a conversion action is inappropriate. Contrary to defendant's argument, the relationship between defendant and plaintiff is not one of debtor and creditor. In General Motors Corp. v. Douglass, 206 Ill.App.3d 881, 151 Ill.Dec. 822, 565 N.E.2d 93 (1990), for example, the court held that a conversion action was not appropriate because the relationship between the plaintiff and the defendant was represented by a general debtor obligation. General Motors maintained a "holdback" account for its dealers from which it made periodic payments. It mistakenly paid one of its dealers, the defendant, $37,364.36, although it owed the defendant only $12,836.88. The defendant refused to return the amount General Motors had overpaid it. General Motors, 206 Ill.App.3d at 883, 151 Ill.Dec. 822, 565 N.E.2d 93. As explained in General Motors, 206 Ill.App.3d at 888, 151 Ill.Dec. 822, 565 N.E.2d 93, a debtor-creditor relationship is created when a party (the creditor) voluntarily transfers his property to another (the debtor). See also Fonda, 279 Ill. App.3d at 901, 216 Ill.Dec. 379, 665 N.E.2d 439. Because General Motors had created a debtor-creditor relationship with the defendant when it voluntarily transferred money to the defendant, the court held that there could be no conversion. General Motors, 206 Ill.App.3d at 891-92, 151 Ill.Dec. 822, 565 N.E.2d 93. Similarly, in Thebus, the government became a creditor of the attorney by allowing the attorney to collect withholding taxes for it. See also Katz v. Belmont National Bank of Chicago, 112 Ill.2d 64, 96 Ill.Dec. 697, 491 N.E.2d 1157 (1986) (third party's action in depositing plaintiff's funds into defendant bank created a lawful creditor-debtor relationship between third party and bank so that legal title passed to bank and therefore plaintiff could not bring conversion action against bank).
Here, by contrast, there was no creditor-debtor relationship between plaintiff and defendant. Plaintiff never voluntarily transferred funds to defendant. Rather, defendant mistakenly received plaintiff's funds from a third party. The funds were not a debt and, therefore, were subject to conversion.
*288 Defendant further argues that, once it received the money from Union, it never committed an act of conversion. The uncontroverted evidence shows that plaintiff was due a percentage of the sales commissions, which were earned before Union fired plaintiff, in the amount of $65,008.89; that this amount represents the property of plaintiff; that there were no deductions or setoffs against plaintiff's account; and that the amount of the commissions identified represents the total amount paid to defendant. It is further undisputed that plaintiff made a demand for its unpaid sales commissions that were mistakenly paid to defendant, and defendant refused to pay the amount to plaintiff. Once plaintiff made the demand to transfer its property and defendant refused to do so, defendant committed an act of conversion.
We next address whether the trial court abused its discretion by imposing discovery sanctions against defendant. Defendant asserts that the trial court abused its discretion in striking its proposed supplemental answers to plaintiff's Supreme Court Rules 213(f) and (g) interrogatories (177 Ill.2d Rs. 213(f), (g)), and barring defendant from presenting any witnesses as a sanction pursuant to Supreme Court Rule 219 (166 Ill.2d R. 219). We note that defendant's arguments rely on revised Supreme Court Rule 213, which became effective July 1, 2002. However, because discovery closed on August 3, 2001, the previous rule governs this analysis. See Official Reports Advance Sheet No. 8 (April 17, 2002), Rs. 213(f), (g), eff. July 1, 2002.
Supreme Court Rule 213(f) provides that "[u]pon written interrogatory, a party must furnish the identity and location of witnesses who will testify at trial, together with the subject of their testimony." 177 Ill.2d R. 213(f). Rule 213(i) imposes on a party the continuing duty to supplement discovery responses, including the disclosure of witnesses and proposed testimony, "whenever new or additional information subsequently becomes known to that party." 177 Ill.2d R. 213(i). Under the rules, to avoid surprise, a party has the obligation of disclosing the identity, location, and anticipated testimony of all witnesses who will testify at trial. Athans v. Williams, 327 Ill.App.3d 700, 702, 261 Ill. Dec. 971, 764 N.E.2d 586 (2002).
Defendant supplemented its responses to plaintiff's interrogatories on February 15, 2002, after discovery had closed and after plaintiff had filed its motion for summary judgment. Defendant stated the names of Peter Lewis, Doug Kelly, James Gilberto, Frank Novelli, Bette Nelson, Hugh Hoffman, and Daniel Raskin as witnesses whom defendant intended to call at trial and stated the subject of their testimony as follows. Defendant did not list Lewis's qualifications. Defendant stated only that Lewis would acknowledge the oral agreement between defendant and Pro Player Sports Apparel Company, a subsidiary of Union. Defendant stated that Doug Kelly, the president of Pro Player, was aware of the payment issues between plaintiff and defendant in December 1999. Kelly was also fully knowledgeable about the reports used in Pro Player's commission statements, as well as the definition of a "Bulk Order" and a "Confirmed Purchase Order." Based on his knowledge, position, and background, Kelly believed that the commissions on the sales identified in Exhibit E were earned by and payable to defendant. Defendant did not list Gilberto's qualifications. Defendant stated that Gilberto's testimony would confirm that plaintiff's bulk orders were nonbinding because they were routinely changed, canceled, or reworked. Gilberto would also state that defendant's orders were confirmed purchase orders for the *289 several accounts within its territory, and that the commissions from these orders ultimately belonged to defendant, not plaintiff. Raskin, the vice president of sales for Pro Player, hired defendant to replace plaintiff and would testify to the particulars of the relationship between defendant and Pro Player. Hoffman, an independent sales contractor who entered into an agreement with defendant on June 6, 1999, for services as a key account salesman for Kohl's Department Stores, would testify that due to a buyer change at Kohl's after the first week in June 1999, many of the bulk orders that plaintiff initially entered were completely changed and reentered by defendant due to the new buyer's product selection on those bulk orders. Hoffman worked with Nelson, who was his customer service associate. Nelson would confirm Hoffman's testimony.
Here, neither the identity of the witnesses nor the subject matter of their testimony was timely disclosed. Moreover, these disclosures were issued without leave of court. Defendant did not file a motion for leave to supplement its answers. Nor did defendant file a motion to extend or reopen discovery or file a motion to modify the briefing schedule set on the original cross-motions for summary judgment. Instead, after defendant received plaintiff's summary judgment motion, defendant undertook ex parte discovery.
Supreme Court Rule 219 specifies the consequences for a litigant's refusal to comply with the rules or court orders regarding discovery. 166 Ill.2d R. 219. Supreme Court Rule 219(c) empowers the trial court to enter sanctions, including barring witnesses from testifying, for a party's unreasonable failure to comply with the rules or court orders regarding discovery. 166 Ill.2d R. 219(c)(iv). The imposition of sanctions for the failure to comply with discovery lies in the trial court's discretion. Athans, 327 Ill.App.3d at 703, 261 Ill.Dec. 971, 764 N.E.2d 586. The trial court's decision in fashioning such a remedy will not be reversed absent a clear abuse of discretion. Athans, 327 Ill.App.3d at 703, 261 Ill.Dec. 971, 764 N.E.2d 586.
In determining whether the exclusion of a witness was a proper sanction for nondisclosure pursuant to Rule 213(f) or (g), the court must consider the following factors: (1) the surprise to the adverse party; (2) the prejudicial effect of the testimony; (3) the nature of the testimony; (4) the diligence of the adverse party; (5) the timely objection to the testimony; and (6) the good faith of the party calling the witness. Boatmen's National Bank of Belleville v. Martin, 155 Ill.2d 305, 314, 185 Ill.Dec. 509, 614 N.E.2d 1194 (1993).
In this case, defendant was obligated to provide the names of the trial witnesses and the subjects of their testimony in advance of trial so that plaintiff was apprised of defendant's position and the facts defendant intended to rely on in its defense. After the trial date, defendant disclosed new information that changed the entire defense. The disclosure substantially changed defendant's original answers to plaintiff's interrogatories, which stated that Kenney was the only person of the opinion that defendant had a right to retain the commissions identified in the complaint. Plaintiff relied upon defendant's original disclosure and proceeded to trial, and ultimately summary judgment, on the basis that Kenney was the uncontroverted and critical witness in the case. For defendant to change this posture after agreeing to decide the case at the summary judgment stage was clearly a surprise and prejudicial to plaintiff.
*290 We further find that defendant's failure to seasonably supplement its responses to the interrogatories prior to trial demonstrates a lack of diligence. Defendant had ample time and opportunity to investigate the matter through discovery. There is no indication in the record that these witnesses could not have been located or otherwise previously deposed. Defendant did not offer any reasonable excuse for its delay in locating them or disclosing the information. Other than stating that defense counsel conducted his own discovery after he received plaintiff's summary judgment motion and "the light went on," defendant offers no explanation for supplementing the interrogatories beyond the date set for trial. Accordingly, we cannot say that the trial court abused its discretion in striking the answers and barring the witnesses from testifying as a sanction pursuant to Rule 219.
Defendant contends that the trial court abused its discretion by striking its affidavits. On August 28, 2002, more than a year after all discovery closed and eight months after the trial date, defendant offered the affidavits of Doug Kelly, Dan Raskin, and James Gilberto. Our review of the affidavits shows that they substantially mimic the statements and opinions contained in the supplemental answers to the interrogatories that the trial court struck as a sanction pursuant to Rule 219. For the same reasons as above, we find that the trial court did not abuse its discretion in striking the affidavits.
Defendant asserts that its affidavits are acceptable because the trial date was stricken. The trial date was vacated so that the trial court could hear count I on the cross-motions for summary judgment. Defendant apparently chose not to file a cross-motion for summary judgment. However, the record does not reflect that trial was continued to permit further discovery. The practice of continuing trial for parties to depose an undisclosed opinion witness should not be, and is not, looked upon favorably. Warrender v. Millsop, 304 Ill.App.3d 260, 267, 237 Ill. Dec. 882, 710 N.E.2d 512 (1999). Accordingly, we reject defendant's argument.
We next address whether the trial court abused its discretion in denying defendant's motion to strike plaintiff's affidavits for failing to comply with Supreme Court Rule 191(a) (145 Ill.2d R.191(a)). Rule 191(a) provides that affidavits "shall be made on the personal knowledge of the affiants; shall set forth with particularity the facts upon which the claim, counterclaim, or defense is based; shall have attached thereto sworn or certified copies of all papers upon which the affiant relies; shall not consist of conclusions but of facts admissible in evidence; and shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto." 145 Ill.2d R. 191(a). The rule further provides that "[i]f all of the facts to be shown are not within the personal knowledge of one person, two or more affidavits shall be used." 145 Ill.2d R. 191(a). The granting or denying of a motion to strike a summary judgment affidavit is within the sound discretion of the trial court. Lake County Trust Co. v. Two Bar B, Inc., 238 Ill.App.3d 589, 599, 179 Ill.Dec. 426, 606 N.E.2d 258 (1992).
Defendant argues that plaintiff's affidavits do not support the motion for summary judgment because they are replete with personal opinions and hearsay, the affiants have no personal knowledge of the terms of the agreement between defendant and Union, and the affiants are not competent to speak on behalf of Union. We disagree.
Plaintiff presented the affidavits of Bill Marek, Mark Appleman, Peter Lewis, and *291 Timothy Kenney in support of its motion for summary judgment. The affidavits, when read in their entirety, contain the relevant facts to support Exhibit E and plaintiff's motion for summary judgment. Bill Marek is the principal for plaintiff. Mark Appleman was the national sales manager for Union. Peter Lewis was the key account sales manager for Kohl's, Sears, and Wards, and Timothy Kenney was the customer service manager for Union who authored the two reports for Union, commonly referenced as Exhibit E.
Exhibit E was authenticated by the affidavits as true, accurate, and maintained in the normal course of business. Each witness stated that he was familiar with the exhibit and that it was the type of report that he normally relied upon in his capacity as an employee or manager for Union. The commissions from sales that were generated by plaintiff during the relevant time period were identified in Exhibit E as earned by plaintiff, but were incorrectly paid to defendant by Union. As such, their affidavits complied with Rule 191, and we cannot say that the trial court abused its discretion in finding them to be admissible.
Finally, we examine whether the case should have been dismissed for lack of jurisdiction and failure to join a necessary party. Defendant asserts that the trial court could not determine the value of plaintiff's services to Union without Union's presence. Defendant further contends that the court was without jurisdiction because all matters against Union had to be brought in the bankruptcy court under the principle of federal preemption. Defendant asserts that plaintiff's status as a creditor in the Union bankruptcy means that plaintiff should protect the interests of Union. Defendant implies that plaintiff's claim against the bankrupt entity bars plaintiff from prevailing on its claim for conversion.
Illinois law provides that a necessary party is one who has a legal or beneficial interest in the subject matter of the litigation and will be affected by the action of the court. Holzer v. Motorola Lighting, Inc., 295 Ill.App.3d 963, 970, 230 Ill.Dec. 317, 693 N.E.2d 446 (1998). Case law has analyzed the concept of a necessary party in terms of the reasons such parties must be joined, such that a lawsuit ought not proceed in a party's absence: (1) to protect an interest that the absentee has in the subject matter of the controversy that would be materially affected by a judgment entered in its absence; (2) to protect the interests of those who are before the court; or (3) to enable the court to make a complete determination of the controversy. Holzer, 295 Ill.App.3d at 970, 230 Ill.Dec. 317, 693 N.E.2d 446.
Defendant has failed to demonstrate any interest that Union has in the subject matter of this controversy. There is no support for the proposition that plaintiff's bankruptcy claim against Union bars plaintiff from prevailing on its claim for conversion against defendant. Union filed for bankruptcy on December 29, 1999. The documents filed in support of the motion for summary judgment confirm that Union sent plaintiff's commissions to defendant prior to filing for bankruptcy. Thus, Union no longer had an interest in the asset as it belonged to either plaintiff or defendant. Moreover, while plaintiff might be barred from having a double recovery, there is nothing in the law or in Union's bankruptcy matter that bars plaintiff from pursuing recovery of its funds that are wrongfully possessed by defendant.
Even if Union had an interest in the subject matter of the litigation, which it does not, the doctrine of representation *292 resolves this matter. See Holzer, 295 Ill. App.3d at 973, 230 Ill.Dec. 317, 693 N.E.2d 446 (a necessary party need not be joined if his interests are fully and adequately represented). Here, the funds identified in plaintiff's complaint irrefutably belong to either plaintiff or defendant. No other possibility is demonstrated by the pleadings in this matter. As such, regardless of the decision of the trial court, the "interests" of Union are actually protected because the proper party in interest, vis-avis Union, will possess the funds.
Furthermore, if defendant believed that Union was a necessary party, for whatever reason, then defendant should have brought Union into this action. Defendant possessed a clear right to bring in a new party if it so desired. See 735 ILCS 5/2-406 (West 2002). We reject defendant's arguments.
For the foregoing reasons, the judgment of the circuit court of Du Page County is affirmed.
Affirmed.
CALLUM and GILLERAN JOHNSON, JJ., concur.
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186 F.2d 562
UNITED STATES,v.NATIONAL CITY LINES, Inc., et al.
Nos. 9943-9953.
United States Court of Appeals Seventh Circuit.
Jan. 3, 1951.Rehearing Denied Jan. 31, 1951.
Joseph Thomas, Akron, Ohio, for Firestone Tire & Rubber Co. and L. R. Jackson.
Henry M. Hogan, New York City, for General Motors Corp. and H. C. Grossman.
John H. Hershberger, Chicago, Ill., Mayer, Meyer, Austrian & Platt and Poppenhusen, Johnstone, Thompson & Raymond, all of Chicago, Ill., of counsel, for Mack Mfg. Corp.
John T. Chadwell, Chicago, Ill., C. Frank Reavis, New York City, Weymouth Kirkland, A. Leslie Hodson, Charles R. Morrow, Ferris E. Hurd, Edward R. Johnston and John Paul Stevens, all of Chicago, Ill., Rayburn L. Foster, Bartlesville, Okl., Paul M. Godehn, H. Templeton Brown, Chicago, Ill., for other appellants.
Willaim C. Dixon, Chief, Edwin U. Driscoll and Alex D. Fred, U.S. Department of Justice, all of Los Angeles, Cal., Willis L. Hotchkiss, Ralph M. McCareins, Atty., Dept. of Justice, Chicago, Ill., William Amory Underhill, Acting Asst. Atty. Gen., Richard E. Guggenheim, Sp. Asst. to Atty. Gen., for appellee.
Before DUFFY, FINNEGAN and LINDLEY, Circuit Judges.
LINDLEY, Circuit Judge.
1
On April 9, 1947, nine corporations and seven individuals, constituting officers and directors of certain of the corporate defendants, were indicted on two counts, the second of which charged them with conspiring to monopolize certain portions of interstate commerce, in violation of Section 2 of the Anti-trust Act, 15 U.S.C.A. § 2. The American City Lines having been dismissed, the remaining corporate and individual defendants were found guilty upon this count. From the judgment upon the verdict, the remaining eight corporate defendants and five of the individuals have perfected this appeal. They contend that the count fails to state an offense, that the evidence is insufficient to support the verdict, that a fatal variance between the proof and the charge exists and that the court erred in excluding certain evidence.
2
The first count of the indictment, with which, in view of the fact that defendants were acquitted thereon, we are only incidentally concerned, charged defendants with having knowingly and continuously engaged in an unlawful combination and conspiracy to secure control of a substantial number of the companies which provide public transportation service in various cities, towns and counties of the several states, and to eliminate and exclude all competition in the sale of motor busses, petroleum products, tires and tubes to such transportation companies then owned or controlled by National City Lines, Inc., or Pacific City Lines, Inc., or of which said companies should acquire control, in the future, all in violation of Section 1 of the Anti-trust Act, 15 U.S.C.A. 1.
3
The second count charged defendants with having conspired to monopolize part of the interstate trade and commerce of the United States, to wit, that part consisting of the sale of busses, petroleum products, tires and tubes used by local transportation systems in those cities in which defendants National, American and Pacific owned, controlled or had a substantial financial interest in, or had acquired, or in the future should acquire ownership, control or a substantial financial interest in such transportation systems, in violation of Section 2 of the Act.
4
It was averred further that the conspiracy to monopolize had consisted of a continuing agreement and concert of action upon the part of defendants under which the supplier defendants, Firestone, Standard, Phillips, General Motors and Mack, would furnish capital to defendants National, American and Pacific, and the latter companies would purchase and cause their operating companies to purchase from the supplier companies substantially all their requirements of tires, tubes and petroleum products; the capital made available by the supplier defendants would be utilized by National and Pacific, to purchase control of or financial interest in local public transportation systems, located in various states, when the securing of such control and interest would further the sale of and create an additional market for the products of the supplier defendants to the exclusion of products competitive therewith; National and Pacific and their operating companies would not renew or enter into any new contracts for the purchase or use of such products from companies other than the supplier defendants without the consent of the latter; National and Pacific would not dispose of their interest in any operating company without requiring the party acquiring the same to assume the obligation of continuing to purchase its requirements of the commodities mentioned from the supplier defendants, and would not purchase any new equipment making use of products other than those sold by the supplier defendants; as National and Pacific acquired local transportation systems in the other sections of the country, those markets would be allocated to and preempted by a company selling petroleum products in such sections. The count further charged that the agreements and understandings were carried out and effectuated, thereby completing the offense of monopolization of a part of Interstate Commerce. The jury having acquitted defendants upon the first count and having found them guilty upon the second, we are concerned only with the legality of the judgment entered upon that verdict.
5
We shall follow the pattern adopted by the parties, who have referred to the National City Lines, Inc., and Pacific City Lines, Inc., as the City Lines defendants and to Firestone, Phillips, General Motors, Mack, Standard Oil of California and Federal Engineering Corporation as supplier defendants.
6
It is undisputed that on April 1, 1939, defendant National City Lines, Inc., had grown from an humble beginning in 1920, consisting of the ownership and operation of two second-hand busses in Minnesota, to ownership or control of 29 local operating transportation companies located in 27 different cities in 10 states. At the time the indictment was returned, the City Lines defendants had expanded their ownership or control to 46 transportation systems located in 45 cities in 16 states. The supplier defendants are manufacturers and marketers of busses, tires, tubes and petroleum products necessarily used by the local operating companies of the City Lines defendants and others. The value of their products introduced in commerce and sold to the City Lines defendants and their operating companies for the year 1946 was over 11 million dollars and, for the period from 1937 to May 1, 1947, over 37 million dollars.
7
There is no dispute that the City Lines defendants and the suppliers entered into various oral and written arrangements in accord with which the latter purchased preferred stock from the former, at prices in excess of the prevailing market prices, amounting in total cost to over nine million dollars and that the money received from the sales of such stock was used by City Lines defendants to acquire control of or a substantial financial interest in various local transportation companies throughout the United States. The respective supplier defendants entered into separate ten-year contracts with City Lines under which all of the busses, tires, tubes, and petroleum products requirements of the City Lines operating companies were purchased from the suppliers with an agreement not to buy any part of the same from any party competing with them. They provided, in short, that existing purchase contracts of all operating companies with other competitive suppliers should be terminated at their earliest possible moment; that the operating companies would equip all their units with defendant suppliers' products to the exclusion of any products competitive therewith and that City Lines and their operating companies would not renew or enter into any new contracts with third parties for the purchase of such products or change any then existing type of equipment or purchase any new equipment using any fuel or means of propulsion other than gas.
8
National City Lines, organized in 1936, as a holding company to acquire and operate local transit companies, had brought, up to the time when the contracts were executed, its necessary equipment and fuel products from different suppliers, with no long-term contract with any of them. Pacific City Lines was organized for the purpose of acquiring local transit companies on the Pacific Coast and commenced doing business in January 1938. American was organized to acquire local transportation systems in the larger metropolitan areas in various parts of the country in 1943. It merged with National in 1946.
9
Additional facts, while not largely in dispute, are partially controverted, at least in so far as inferences are concerned; however, we think the evidence adequately justified the jury in finding affirmatively that they existed. In 1938, National conceived the idea of purchasing transportation systems in cities where street cars were no longer practicable and supplanting the latter with passenger busses. Its capital was limited and its earlier experience in public financing convinced it that it could not successfully finance the purchase of an increasing number of operating companies in various parts of the United States by such means. Accordingly it devised the plan of procuring funds from manufacturing companies whose products its operating companies were using constantly in their business. National approached General Motors, which manufactures busses and delivers them to the various sections of the United States. It approached Firestone, whose business of manufacturing and supplying tires extends likewise throughout the nation. In the middle west, where a large part of its operating subsidiaries were to be located, it solicited investment of funds from Phillips, which operates throughout that section but not on the east or west coast. Pacific undertook the procurement of funds from General Motors and Firestone and also from Standard Oil of California, which operates on the Pacific coast. Mack Truck Company was also solicited. Eventually each of the suppliers entered into a contract with City Lines defendants of the character we have described whereby City Lines companies agreed that they would buy their exclusive requirements from the contracting supplier and from no one else. We think the evidence is clear that when any one of these suppliers was approached, its attitude was that it would be interested in helping finance City Lines, provided it should receive a contract for the exclusive use of its products in all of the operating companies of the City Lines, so far as busses and tires were concerned, and, as to the oil companies, in the territory served by the respective petroleum companies. It may be of little importance, but it seems to be the fact, at least we think the jury was justified in inferring it to be the fact, that the proposal for financing came from City Lines but that proposal of exclusive contracts came from the suppliers. At any rate, it is clear that eventually each supplier entered into a written contract of long duration whereby City Lines, in consideration of suppliers' help in financing City Lines, agreed that all of their operating subsidiaries should use only the suppliers' products. These were not joint contracts; each supplier entered into a separate agreement. Whether the action of the suppliers in this connection was so concerted as to justify the jury in finding that defendants conspired to monopolize that setment of interstate commerce reflected by the purchase and shipment in commerce of busses, tires and petroleum products to the operating companies, we shall discuss more fully later. The facts related present only a sketchy outline of the setup as it was presented to the jury.
10
The Sufficiency of the Indictment.
11
Defendants' first point is stated thus: 'Count II alleges as a violation of Section 2 of the Sherman Act no more than a conspiracy to monopolize sales to certain specified customers. That allegation does not charge an offense against the United States, since section 2 of the Sherman Act applies only to the monopolization of a geographic market.' We have seen that the charge is that defendants conspired to monopolize the sale of petroleum products, busses and tires, to the subsidiary operating companies of the City Lines defendants with the result that competition was done away with in the sale of those products to those customers. But, say the defendants, there is no averment, that the purchases of petroleum products, busses and tires by the City Lines defendants constituted a substantial portion of the total market for such products. Though defendants recognize that Section 2 makes it unlawful to conspire to monopolize trade or commerce among the several states, they insist that sales to the City Lines defendants and their subsidiaries do not constitute a part of interstate trade within the meaning of Section 2, for the reason that they amount only to control of a single customer's business. They admit that, if the statute were to be given literal reading, the Government's position would be supportable, for the words 'any part' are broad enough to apply to a single customer. However, relying upon Standard Oil Co. of N.J. v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619, they argue that the commerce referred to by the words 'any part' has both a geographical and a distributive significance not present in the indictment. They admit that is is not open to a monopolist to defend his monopoly on the ground that he controls sales in only a limited geographic area, and that monopolization of the sale of any one product in any one city may be unlawful, even though sales throughout the nation are not controlled, but they insist that the indictment does not charge monopolization of the sale of gas, tires or busses in any state, city or region but only of sales to one customer which are beyond the rule of reason established in the Standard Oil case, 221 U.S. 1 at 61, 31 S.Ct. 502 st 516, 55 L.Ed. 619. They also rely upon Patterson v. United States, 6 Cir., 222 F. 599, certiorari denied 238 U.S. 635, 35 S.Ct. 939, 59 L.Ed. 1499, and United States v. Standard Oil Co., C.C., 173 F. 177, 191, where Judge Sanborn said: 'If the second section of the act prohibits every attempt to monopolize any part of interstate commerce, it forbids all competition therein, and defeats the only purpose of the law; for there can be no competition, unless each competitor is permitted * * * to draw to himself, and thereby to monopolize, some part of the commerce.' They argue that requirement contracts with separate customers do not monopolize any part of interstate trade and that this contention is supported by United States v. Columbia Steel Co., 334 U.S. 495, 68 S.Ct. 1107, 92 L.Ed. 1533. Zealous argument is made in support of their contention that, under the decisions upon which they rely, the charge in the indictment is not sufficient to sustain a conviction under Section 2 of the Act. However, in spite of the ardor of counsel, after mature consideration, we are not persuaded of the soundness of the argument.
12
The indictment charges a concerted conspiracy by the City Lines defendants and supplier defendants to monopolize that part of interstate commerce which consists of all the busses, all the tires and tubes and all the gas, oil and grease, used by the public transportation systems of some 45 cities owned or controlled by the City Lines companies. That, to our mind, is a very substantial segment of interstate commerce, having 'geographic and distribution' significance. It is charged that, under the plan of defendants, competing suppliers may not be patronized; that only the suppliers' products and theirs alone will be accepted. It is perfectly obvious that under such averments, that part of commerce which would be reflected in other suppliers furnishing products would be foreclosed and barred. Their competition is completely eliminated and the business of supplying busses, tubes, tires to the public transportation system of the 45 cities is entirely in the hands of the suppliers,- in other words, monopolized by them. We conclude that, on the face of the indictment, there is a charge of elimination of competition, of monopolization, as to a substantial segment of interstate commerce, within the language of the Act and as limited by the 'rule of reason.'
13
We are impelled largely to this conclusion by United States v. Yellow Cab Co., 332 U.S. 218, 67 S.Ct. 1560, 91 L.Ed. 2010. In the course of that opinion, the court is well-nigh conclusive upon the issue of sufficiency of this indictment. On pages 226 and 227 of 332 U.S., 67 S.Ct. on page 1565, 91 L.Ed. 2010, is found a paragraph which we adopt, substituting, however, for the words 'cab' and 'taxi' therein the words 'bus and busses.' With that change only, it reads as follows: 'By excluding all bus manufacturers other than CCM from that part of the market represented by the bus operating companies under their control, the appellees effectively limit the outlets through which busses may be sold in interstate commerce. Limitations of that nature have been condemned time and again as violative of the Act. Associated Press v. United States, 326 U.S. 1, 18, 19, 65 S.Ct. 1416, 1423, 1424, 89 L.Ed. 2013, and cases cited. In addition, by preventing the bus operating companies under their control from purchasing busses from manufacturers other than CCM, the appellees deny those companies the opportunity to purchase busses in a free, competitive market. The Sherman Act has never been thought to sanction such a conspiracy to restrain the free purchase of goods in interstate commerce.' We can conceive of no logical basis upon which we can distinguish this language from the averments of the indictment here.
14
In the same case, the Supreme Court proceeded, 332 U.S. on pages 225 and 226, 67 S.Ct. on page 1564, 91 L.Ed. 2010, as follows: 'And Sec. 2 of the Act makes it unlawful to conspire to monopolize 'any part' of interstate commerce, without specifying how large a part must be affected. Hence it is enough if some appreciable part of interstate commerce is the subject of a monopoly, a restraint or a conspiracy. The complaint in this case deals with interstate purchases of replacements of some 5,000 licensed taxicabs in four cities. That is an appreciable amount of commerce under any standard. See Montague & Co. v. Lowry, 193 U.S. 38, 24 S.Ct. 307, 48 L.Ed. 608.' If we again substitute for the word 'taxicabs' the word 'busses,' the language is directly applicable to the case at bar. If, by preventing controlled cab operating companies in four cities from purchasing cabs from manufacturers other than the one favored, opportunity to purchase cabs in a free competitive market is removed and monopolization results, we can see no reason why prevention of 46 controlled bus operating companies in 45 cities from purchasing busses from any manufacturer other than the one favored is not likewise destructive of a free competitive market and an attempt to monopolize that segment of commerce. True, under this indictment, other suppliers may sell to other customers in various cities; but one substantial segment of interstate commerce consisting of supplies to 46 public transportation systems in 45 cities, holding local monopolies, is charged to have been monopolized so far as their purchases of busses, gas, grease, oil and tires are concerned. As the Supreme Court said in the Yellow Cab case: 'Likewise irrelevant is the importance of the interstate commerce affected in relation to the entire amount of that type of commerce in the United States. The Sherman Act is concerned with more than the large, nation-wide obstacles in the channels of interstate trade. It is designed to sweep away all appreciable obstructions so that the statutory policy of free trade might be effectively achieved. As this Court stated in Indiana Farmers' Guide Pub. Co. v. Prairie Farmer Pub. Co., 293 U.S. 268, 279, 55 S.Ct. 182, 185, 79 L.Ed. 356, 'The provisions of Secs. 1 and 2 have both a geographical and distributive significance and apply to any part of the United States as distinguished from the whole and to any part of the classes of things forming a part of interstate commerce." We do not find anything in United States v. Columbia Steel Co., 334 U.S. 495, 68 S.Ct. 1107, 92 L.Ed. 1533, at odds with the announcements of the Yellow Cab case.
15
The Alleged Inconsistency of the Verdicts.
16
Defendants contend that the charges in the two counts were in substance the same and that, inasmuch as the same evidence was relied upon by the government to support each, the verdict of acquittal on Count 1 is inconsistent with that of guilty on Count 2; that, though we have previously held that an inconsistency in verdicts does not as a matter of law prevent judgment from being entered on the verdict rendered, the inconsistency here strips the verdict of any logic or valid reasoning.
17
We have seen that the language of the first count is entirely different from that of the second, for it charges, first, a conspiracy to acquire control of a substantial number of the companies which provide local transportation service in various cities of the United States,- conspiracy to restrain trade by obtaining control of companies conducting transportation systems in various cities. This is a far cry from a charge of monopolization of sales of supplies to such transportation companies. True, Count 1 does not include a further charge of conspiracy to eliminate and exclude all competition in the sale of motor busses, petroleum products, tires and tubes to the transportation companies. Thus Count 1 undoubtedly meant to the jury that defendants were charged with restraint of trade in obtaining control of transportation systems plus a conspiracy to restrain competition in sales to those companies. Though it is immaterial, we think it was entirely reasonable for the jury to conclude that the entire charge of the first count had not been sustained. In other words, it seems clear that there is no inconsistency in the verdicts. This thought is fortified by holdings that the same acts and course of conduct may constitute separate violations of Sections 1 and 2 of the Sherman Act. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 226, 60 S.Ct. 811, 84 L.Ed. 1129; United States v. MacAndrews & Forbes Co., C.C., 149 F. 836, 838; United States v. General Motors Corp., 7 Cir., 121 F.2d 376; United States v. Buchalter, 2 Cir., 88 F.2d 625, 628; Montrose Lumber Co. v. United States, 10 Cir., 124 F.2d 573. At all events, we can see no inconsistency in the jury's finding that there was a conspiracy to acquire a monopoly of the sales to local transportation companies in 45 communities but no conspiracy to restrain trade by securing control of those transportation systems.
18
However, irrespective of the correctness of our views in this connection, it is clear that inconsistency in verdicts rendered on separate counts of an indictment is not fatal. We so held in United States v. General Motors, 7 Cir., 121 F.2d 376 at page 411, as did the 6th Circuit in American Tobacco Co. v. United States, 147 F.2d 93, 115, where the court said: 'But the circumstance that there might be perceived an inconsistency in a possible finding of guilt on the charge of conspiring to monopolize by price-fixing, and a verdict of not guilty on a charge of conspiracy to restrain trade by the same means, would not vitiate the charge or the verdict.' To the same effect is the holding in Garrison v. Hunter, 10 Cir., 149 F.2d 844, 845: 'Where a defendant is charged by two or more counts in an indictment, consistency between the verdicts on the several counts is not necessary. A verdict of acquittal on one count does not invalidate a verdict of guilty on another count although the same evidence is offered in support of each.' The correctness of these decisions, we think, is apparent from such Supreme Court cases as Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 76 L.Ed. 356, and Borum v. United States, 284 U.S. 596, 52 S.Ct. 205, 76 L.Ed. 513. We conclude, then, that there was no inconsistency of verdicts and, further, that even if there were an inconsistency, the law recognizes no exception to the rule that such inconsistency is wholly immaterial. We are not persuaded that the verdict of guilty is, by the circumstances of this case, robbed of any presumption ordinarily applied to a jury verdict, for we are concerned not with whether the defendants were rightfully acquitted on Count 1, a wholly irrelevant question, but with whether the evidence is sufficient to sustain a verdict of guilty on Count 2.
19
Sufficiency of Evidence.
20
Defendants maintain that, even though we hold that Count 2 of the indictment sufficiently charges them with an offense against the United States, their conviction must be set aside for the reason that the evidence does not support the verdict. It is their contention that the evidence fails to establish (1) that there was a conspiracy, (2) that the defendants or any of them acted with an unlawful specific intent, or (3) that they shared such intent in an illegal concerted undertaking, but that it discloses only activities lawful in all respects. The government, on the other hand, asserts that the evidence establishes the existence of all the elements essential to a finding of guilty and that, consequently the verdict may not be disturbed by this court on review. This difference presents the difficult crucial question of this appeal. Of course we are not trying this case de novo; nor are we called upon to decide whether as triers of the facts we would have found defendants guilty. Our only function is to determine whether the evidence was of such character as to require submission to the jury, or in other words, whether it was the duty of the trial court, as a matter of law, to direct a verdict of not guilty. The proper discharge of this function has made it necessary for us to scrutinize with care voluminous evidence upon which we can only briefly comment, if this opinion is to be limited to a reasonable length.
21
The first evidentiary question presented is whether the evidence was sufficient to support a finding that defendants acted in concert, with a common design or purpose. The government's evidence, much of it in documentary form, is that, during the period preceding the execution of the contracts under consideration, representatives of the City Lines defendants on several occasions met and conferred with one or more of the supplier defendants; that each of the latter knew that other supplier defendants had executed or were about to execute investment and requirements contracts with one or more of the City Lines defendants, and that these conferences and proposed contracts were the subject of no inconsiderable amount of correspondence among the several defendants, including correspondence between supplier defendants as well as between supplier defendants and City Lines defendants. Thus on February 6, 1938, National City Lines wrote Palmer of Standard of California in reference to its proposed stock subscription contract, that it 'must be sent' also to Yellow Truck (General Motors) and sent copies of the letter to Grossman of General Motors, Fitzgerald and Stevens. On March 5, National City wrote Standard, saying that at a conference it was 'understood' that the stock of Pacific would be subscribed by Standard and Yellow Truck (General Motors). Copies of the letter went to Palmer, Grossman, Fitzgerald and Stevens. On November 7, 1939, National advised Mack of Yellow Truck's (General Motors) and Standard's investments in pacific. Before that, on May 10, 1938, National had addressed a letter to the 'subscribers to the capital stock of Pacific City Lines,' advising them of the exact commitment of each subscriber. A file memorandum tells of a conference on February 2 and 3, 1939, in which the investments of Phillips and 'other prospective investors,' in return for exclusive supply contracts, were discussed at length. The 'others' included Firestone, Standard and General Motors. Copies of the memorandum went to various individuals. A letter of April 19, 1939, from National to Phillips, refers to the agreement of Phillips and 'other purchasers' and states that 'You are buying the stock at $50 a share, when the market, which is very thin, is about $40,' and advises Phillips that 'certain privileges of yours under the oil contract are affected by your holding or failure to hold your stock.' A copy was sent to Firestone. A letter to Firestone written February 18, 1939, advises that company that Phillips was then making its investigation. Another of February 25 advised Firestone that the Pacific Lines 'deal is closed' and that Phillips was 'practically ready for closing' and that 'two or three other deals' 'were very hot.' On March 6, 1939, Firestone wrote Phillips concerning its contract with City Lines. On April 12, 1939, Phillips wrote Firestone expressing its belief that 'everything has now been mutually agreed upon' and on July 26, Phillips wrote Firestone that 'General Motors and Mack Truck are going in for $500,000 each on the same basis as the rest of us.' To this Firestone replied that it understood that General Motors, Mack Truck and Standard 'were in' and that 'we will probably all benefit by the agreement.' Many other letters and documents persuasive of concerted understanding were received in evidence.
22
Although defendants insist that each supplier merely obtained business from the City Lines defendants through separate negotiations, the documentary evidence referred to above and other circumstances in evidence seem to us clearly sufficient to justify the jury in finding that the contrary was true. It is clear that representatives of two or more supplier defendants were in attendance in Chicago and New York at meetings and conferences, out of which grew the investment and requirements contracts. And the fact that copies of a memorandum of discussions held between one of the supplier defendants and one of the City Lines defendants, as well as copies of many of the letters which passed between the contracting parties prior to the execution of the contracts, were sent to representatives of other supplier defendants, coupled with the fact that the latter corresponded with one another relative to the provisions of the contracts, is hardly reconcilable with defendants' contention that their several contracts were negotiated independently of one another but is, rather, convincing that each of the contracts was regarded by the parties as but a part of a 'larger deal' or 'proposition', to use the words of certain of the defendants, in which all of the supplier defendants were involved. At least the evidence submitted to the jury in this respect was clearly adequate to support its verdict. Buttressing this conclusion is the correspondence exchange between Leonard of Firestone and Riggins of Phillips, in the course of which Riggins informed Leonard that 'Roy Fitzgerald advised me that General Motors and Mack Truck are going in for $500,000 each on the same basis as the rest of us' and that he understood that 'Palmer got into Chicago on Wednesday and immediately tried to get in on the deal' (emphasis supplied) and in which Leonard said, 'I have been in New York this week hob-nobbing with Roy Fitzgerald and some of the others who are interested in our proposition' and 'Everything seems to be going along very nicely and I do think we will probably all benefit by the arrangement.' Of the same import is the statement, in the contract of May 15, 1939, between Firestone and National City Lines, that Firestone's agreement to purchase stock is made 'on the representation of National that it will secure the balance of the financing necessary for the completion of a one and a half million dollar expansion program.'
23
Concluding, then, that the record contains the substantial evidence necessary to support a finding that defendants acted in concert rather than independently, it is necessary to determine further whether the evidence justified the jury in finding that they did so with the specific intent outlawed by the Sherman Act. In view of our conclusion that the indictment charges defendants with an offense cognizable under Section 2 of the Act, there would seem to be little doubt as to this issue, for the defendants do not deny the execution of the requirements contracts or that it was their intention to execute them, or that the effect of those contracts is to exclude competitors from selling busses, tires, tubes and petroleum products to the City Lines defendants. Of course, it may well be that defendants did not intend affirmatively to violate the law, but it seems quite evident that they did intend, by making their mutually concerted investments in City Lines' stock conditional on the execution of exclusive requirements contracts in their favor, to join forces in making investments in consideration of the several exclusive contracts and thus, by their united and concerted action, to exclude their competitors from a market composed of the City Lines defendants and their operating subsidiaries, present and future, and, thus, that they intentionally performed acts which inevitably led to violation of Section 2 of the statute.
24
Defendants argue that the government's evidence discloses two separate and distinct lines of activity, one relating to transactions between the supplier defendants and National, the other encompassing the activities of the suppliers and Pacific; such evidence, they say, not only will not suffice to establish the existence of the single conspiracy charged in the indictment but constitutes a prejudicial variance. They also maintain that the evidence does not establish the existence of a common design or purpose shared by all defendants. However, the fact that one of the supplier defendants was interested only in supplying tires and tubes to both the City Lines defendants and their subsidiaries while another was concerned with only the sale of its petroleum products to the particular City Lines' companies operating in its marketing territory does not negative the existence of a common design to promote, through investments in the stock of one or both of the City Lines defendants, the acquisition by them of more and more local transit companies and, thus, to provide each of the supplier defendants with an ever-expanding market to which it would have exclusive rights as to its particular product by virtue of its requirements contracts. Nor does the circumstance that certain of the supplier defendants had requirements contracts with one but not both of the City Lines defendants absolve those defendants of participation in the conspiracy charged in the indictment or prove that no such conspiracy existed; it was not incumbent on the government to prove that each defendant participated in that conspiracy in all of its ramifications, for, in order that one be found guilty as a conspirator, it need only be shown that, with knowledge of the existence of the conspiracy, he knowingly performed an act designed to promote or aid in the attainment of the object of that known conspiracy. Craig v. U.S., 9 Cir., 81 F.2d 816, 822, certiorari dismissed 298 U.S. 637, 56 S.Ct. 670, 80 L.Ed. 1371, certiorari denied 298 U.S. 690, 56 S.Ct. 959, 80 L.Ed. 1408; Johnson v. U.S., 9 Cir., 62 F.2d 32, 34-35; Marcante v. U.S., 10 Cir., 49 F.2d 156, 157.
25
Exclusion of Testimony.
26
Defendants assert error upon the part of the trial court in excluding evidence offered to show (1) the motives and reasons for the actions taken by them and (2) that the business obtained from the supplier defendants for the City Lines was an insignificant portion of the market for tires, tubes and petroleum products. They insist that, though the defendant suppliers were permitted to introduce testimony as to their reasons for making the investments and entering into the supply contracts, they were unduly limited in that they were not permitted to prove customs, background and business practices in general and, that, though the amount of business transacted between suppliers and City Lines was shown, they should have been permitted to prove that it was a small part of the total commerce in such articles. Thus City Lines offered the testimony of a qualified expert to the effect that financing of customers by suppliers had long been a customary and accepted practice in American business. The supplier defendants tendered evidence to the effect that other companies frequently make investments such as they made in the City Lines. Standard offered to show that other buyers had entered into long-term exclusive contracts, that it and the oil industry in general have availed themselves of requirements contracts extensively, that, thereby, they were aided in long range planning for production and refining, and that Standard could have sold the products delivered to City Lines to others at higher prices.
27
We had thought it well established that evidence of customs and practices in an industry is irrelevant in determining whether there has been an attempted monopolization. This court, in United States v. New York Great Atlantic & Pacific Tea Company, 7 Cir., 173 F.2d 79, 89, said: 'That others engaged in the same practices as the defendants certainly would not exonerate the defendants or tend to disprove their guilt. Certainly trade customs and practices not shown to have been practiced in the same manner as the defendants were shown to have practiced them would not be competent to show that the defendants' practices were not illegal.' We made earlier announcement of this and related rules in United States v. General Motors, 7 Cir., 121 F.2d 376, 406, where we said: 'When persons conspire to impose a direct restraint on interstate commerce, benevolent motives or the activities of third parties do not save them from criminal prosecution for violation of the Sherman law. See United States v. Socony-Vacuum Oil Co., (310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129). * * * the activities of third parties cannot justify the defendants' violation of law. See Hills Brothers v. Federal Trade Commission, 9 Cir., 9 F.2d 481, 485. * * * evidence of benevolent motives or good intention is immaterial where the operation of the conspiracy, and the specific acts and things done pursuant thereto, necessarily result in a direct restraint of interstate commerce. United States v. Patten, 57 L.Ed. 333, 44 L.R.A., N.S., 325.' In both of these cases we think we were fully justified in our holdings by the language of the Supreme Court in United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129.
28
Obviously defendants were entitled to offer evidence as to their intent and motives and this they were permitted to do. They supplied testimony at some length as to their reasons, purposes and motives in entering into the transactions covered by the charge and to prove that the various sales and investment contracts were for the best business interests of City Lines and their operating companies as well as those of the suppliers. Standard was allowed to present evidence as to its policy and the advantages to it of requirements contracts. Indeed, defendants admit that they were permitted to give their individual reasons for making the investment and requirements contracts but insist that they were too narrowly limited in the scope of such testimony. Standard offered evidence which the court received to the effect that it always had other places to sell its products; that it never had more products than it could sell. However, the court refused to permit the testimony to go further, saying that there should be some practical limitations to such collateral evidence.
29
From an examination of the record, it seems apparent to us that the court, endowed with discretion as to the amount of collateral evidence proper, did not abuse its discretion. This is in line with what the Supreme Court said in United States v. Socony-Vacuum Oil Co., 310 U.S. 150 at 230,60 S.Ct. 811 at 847, 84 L.Ed. 1129: 'While the offer was not wholly irrelevant to the issues, it was clearly collateral. The trial court has a wide range for discretion in the exclusion of such evidence. See Golden Reward Mining Co. v. Buxton Mining Co., 8 Cir., 97 F. 413, 416, 417; Chesterfield Mfg. Co. v. Leota Cotton Mills, 8 Cir., 194 F. 358, 359. Admission of testimony showing the market conditions late in 1934 would have opened an inquiry into causal factors as involved and interrelated as those present during the indictment period. That might have confused rather than enlightened the jury. In any event it would not have eliminated the buying programs as contributory causes to the market rise and stability in 1935 and 1936. And it would have prolonged the inquiry and protracted the trial. As once stated by Mr. Justice Holmes, one objection to the introduction of collateral issues is a 'purely practical one- a concession to the shortness of life.' Reeve v. Dennett, 145 Mass. 23, 28, 11 N.E. 938, 944. And see Union Stock Yard & Transit Co. v. United States, 308 U.S. 213, 223, 224, 60 S.Ct. 193, 197, 198, 84 L.Ed. 198. * * * In conclusion, we do not think that there was an abuse of discretion by the trial court in the exclusion of the proffered evidence.' The jury's inquiry was not one as to customs or practices or as to what others had done on other times and occasions. The question before the jury was whether what defendants had done amounted to violation of law as charged. The mere fact, if it be a fact, that other suppliers had followed a similar course of conduct by doing what defendants are charged with doing, would in no wise excuse defendants for their acts if those acts were illegal.
30
That the evidence offered by defendants comparing their total sales to City Lines and their companies and their total sales in the national market was not erroneously excluded is shown by our earlier quotation from the Yellow Cab case, 332 U.S. 218, 67 S.Ct. 1560, 91 L.Ed. 2010. In other words, it was not incumbent upon the government to show that a certain stated percentage of the total commerce was involved in this particular cause. We think the jury could not properly have found other than that the sales of all tires, busses and petroleum products to 46 operating companies in 45 states, aggregating many millions of dollars, constituted a substantial segment of interstate commerce and that evidence comparing this with the amount involved in the total business of the companies was wholly irrelevant. It was not a question of what percentage of the total commerce in such products was but a question of whether a substantial part of commerce was monopolized.
31
We have considered carefully all the evidence offered and excluded. We think that the court's rulings were fair, and that, having permitted great latitude in admitting testimony as to intent, purpose and reasons for the making of the contracts, the court, in its discretion, was entirely justified in excluding the additional testimony offered.
32
We believe that what we have said sufficiently disposes of all contentions of defendants without further extension of this opinion. Inasmuch as the charge was sufficient at law, the evidence substantial and adequate and the trial without error, as a court of review, we may not properly interfere.
33
The judgment is affirmed.
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333 B.R. 794 (2005)
In re Randy L. CROSSON, Debtor.
Randy L. Crosson, Plaintiff,
v.
A.A. Fire Safety; Ahern Fire Protection; James J. Bobowice; Arthur Blank; Joseph Birkett, Dupage County State's Attorney; Chicago Title Insurance Co.; City of Chicago; Brian J. Donoghue; Experian; Equifax; Fire Control Systems; Fire Authority Systems; Ford Motor Credit Corp.; Guaranty Title Insurance; Donald E. Glickman; Chad M. Haywood; Home Depot; Daniel Hoseman; Randye A. Kogan; LaSalle Bank National Assoc.; Stephen E. Lewis; William D. Maddux; New Lenox State Bank; Nicor Gas; Ed O'Brien; Patricia Norum O'Brien; Kevin M. O'Donnell; Bessie O'Malley; Duane Leroy O'Malley; James D. O'Malley; Marilyn O'Malley; Traci O'Malley; O'Malley Excavating, Inc.; O'Malley Trucking & Excavating; Andrew Papke; Plainfield Police Dept.; Robert J. Quinn; Steven R. Radtke; Judge Jack Schmetterer; Victoria Senadonas; Shapiro & Kreisman, LLC; Thomas Sheehan, Cook County Sheriff; Donald N. Snyder, Director Illinois Dept. of Corrections; Southwest Financial Bank & Trust Co.; Joe Spillane; Ann R. Taylor, Chairperson of the Illinois Prison Review Board; Ticor Title Insurance Co.; Trans Union; Anderson J. Ward; *795 Michael Walsh; Alexander White; Attorney Registration and Disciplinary Commission; Stetson Atwood; Alan Bernstein; Andrew M. Cohen; William Fenili; Patrick J. Fitzgerald; Daniel Konicek; Edward Krzyminski; James A. Payonk, Jr.; Judson Todhunter; United States Attorney; Judge Joan B. Gottschall; Judge Robert Ginsberg; Magistrate Judge Geraldine Soat Brown; and Will County State's Attorney, Defendants.
Bankruptcy No. 98 B 33985. Adversary No. 05 A 00015.
United States Bankruptcy Court, N.D. Illinois, Eastern Division.
February 18, 2005.
*797 Randy L. Crosson, pro se.
Thomas L. Browne, Lead Attorney, Sean Chaudhuri, Lead Attorney, Celina A. Stearney, Lead Attorney, Illinois Attorney General, Chicago, IL, for Defendants.
ORDER
JOHN H. SQUIRES, Bankruptcy Judge.
This matter comes before the Court on the complaint filed by Randy L. Crosson (the "Debtor") against numerous defendants (the "Defendants"). For the following reasons, the Court finds that it lacks subject matter jurisdiction of this adversary proceeding. Accordingly, this adversary proceeding is hereby dismissed.
The Debtor alleges in paragraph one of the complaint that the Court has jurisdiction of this adversary proceeding pursuant to 28 U.S.C. § 157(b)(2)(H), which includes proceedings to determine, avoid or recover fraudulent conveyances, and further contends in paragraph two that this is a core proceeding.[1] The Debtor further alleges in the complaint that various Defendants perpetrated fraud, theft, conversion, embezzlement, perjury, attempted murder, assault and numerous other criminal acts against him. The complaint rambles through a litany of state court and district court cases that were filed as well as various orders that were entered in those cases.
In what the Debtor styles the conclusion of the complaint, he seeks the following relief: (1) that all Defendants should be barred from any contact with the Debtor, including phone, personal, mail, fax, thirdparty and any other contacts and that all Defendants and their agents, employees, attorneys and officers are not to come within ten miles of the Debtor; (2) that the Illinois Department of Corrections and/or Prison Review Board take Duane L. O'Malley, one of the named Defendants, into custody until all the disputes herein are resolved; (3) that all property and assets belonging to the Debtor should be deposited with the Clerk of the Bankruptcy Court within twenty-four hours after the summons and complaint are served upon the Defendants; (4) that LaSalle National Bank Association be barred from any contact with the Defendants and a permanent order of protection be entered as to the Debtor clear of any and all liens and other claims; (5) that the Court should award sanctions or damages in the sum of $100,000,000.00 pursuant to the Fair Debt Collection Practices Act, plus all actual damages and attorney's fees accrued by the Debtor; (6) that the Debtor be given leave to file a counterclaim if this adversary proceeding fails to resolve all of the issues; (7) that judgment in the amount of $1,000,000,000,000.00 should be entered in favor of the Debtor pursuant to the Fair Debt Collection Practices Act, or in the alternative, that judgment should be entered for specific performance, breach of contract, intentional emotional distress or any other causes of action or torts inflicted upon the Debtor or any of his family members by LaSalle National Bank Association; (8) that a final judgment in the amount of $500,000,000,000,000.00 should be entered against LaSalle National Bank *798 Association and its attorneys, and an order entered directing that all of LaSalle National Bank Association's alleged claims are no longer valid and enforceable pertaining to the Debtor and the Defendants; (9) that this matter should be sealed because the Debtor's minor children's lives are in danger; (10) that all Defendants, including the DuPage County Sheriff, the Cook County Sheriff and the DuPage County State's Attorney and their subordinates should have no contact with the Debtor, including in person or by agent, deputy, mail, telegram, third-party, drive by, business, recreation, job site, courthouse or other; (11) that LaSalle National Bank Association and its attorneys, agents and employees should have no contact with the Debtor either in person or by agent, deputy, mail, telegram, third-party, drive by, business, recreation, job site, courthouse or other; (12) that violation of the Court's order and each subsequent violation shall have a penalty of $1,000,000,000,000.00 and twenty years in jail or prison for each incident by any person or entity; (13) that any violation of the Court's order shall result in a fine in the amount of $10,000,000,000.00, plus five years in prison; and (14) any other additional relief that the Court deems necessary to protect the Debtor from the Defendants.
Initially, the Court notes that pleadings filed by pro se litigants must be read liberally and held to less stringent standards than those applied to pleadings drafted by attorneys. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Swofford v. MandreU, 969 F.2d 547, 549 (7th Cir.1992). While a judge is not to become an advocate for a pro se litigant, Donald v. Cook County Sheriffs Dept., 95 F.3d 548, 555 (7th Cir.1996), the Court does have a duty to "take appropriate measures to permit the adjudication of pro se claims on the merits, rather than to order their dismissal on technical grounds." Id. It is a court's obligation to ensure that the claims of a pro se litigant are given a "fair and meaningful consideration." Palmer v. City of Decatur, 814 F.2d 426, 428-29 (7th Cir.1987) (internal quotation omitted). The Court is mindful of the fact that the Debtor is a pro se litigant, and the Court has given this complaint a fair and meaningful consideration.
Nevertheless, as a threshold matter, the Court must address whether it has jurisdiction over this adversary proceeding. The United States Supreme Court stated that "[t]he jurisdiction of the bankruptcy courts, like that of other federal courts, is grounded in and limited by statute." Celotex Corp. v. Edwards, 514 U.S. 300, 307, 115 S.Ct. 1493, 131 L.Ed.2d 403 (1995). Thus, bankruptcy court jurisdiction should be interpreted narrowly. In re FedPak Sys., Inc., 80 F.3d 207, 214 (7th Cir.1996). The bankruptcy court's jurisdiction extends to "all civil proceedings arising under title 11, or arising in or related to cases under title 11." 28 U.S.C. § 1334(b). Specifically, that statute provides in pertinent part:
(a) Except as provided in subsection (b) of this section, the district courts shall have original and exclusive jurisdiction of all cases under title 11.
(b) Notwithstanding any Act of Congress that confers exclusive jurisdiction on a court or courts other than the district courts, the district courts shall have original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11.
28 U.S.C. § 1334(a) and (b).
Bankruptcy judges "constitute a unit of the district court," 28 U.S.C. § 151, and the bankruptcy courts receive their powers by reference from the district court pursuant *799 to 28 U.S.C. § 157, which provides in relevant part:
(a) Each district court may provide that any or all cases under title 11 and any or all proceedings arising under title 11 or arising in or related to a case under title 11 shall be referred to the bankruptcy judges for the district.
(b)(1) Bankruptcy judges may hear and determine all cases under title 11 and all core proceedings arising under title 11, or arising in a case under title 11, referred under subsection (a) of this section, and may enter appropriate orders and judgments, subject to review under section 158 of this title.
28 U.S.C. § 157(a) and (b)(1).
The District Court for the Northern District of Illinois has referred any and all bankruptcy cases and related adversary proceedings under its jurisdiction to the bankruptcy judges of this District. See Internal Operating Procedure 15(a). Therefore, through the reference from the District Court, this Court has jurisdiction over matters arising under, arising in, or related to bankruptcy cases under 28 U.S.C. § 1334.
Section 157 limits bankruptcy jurisdiction by dividing the matters which the Court may hear into two categories: core and non-core. Core matters are those "arising under" title 11 or "arising in" a case under title 11. 28 U.S.C. § 157(b). A matter "arising under" title 11 involves a cause of action created by a statutory provision of title 11. Barnett v. Stern, 909 F.2d 973, 981 (7th Cir.1990); In re Wood, 825 F.2d 90, 96 (5th Cir.1987). A proceeding "arising in" a case under title 11 involves those administrative matters that arise only in bankruptcy cases. Diamond Mtg. Corp. of III. v. Sugar, 913 F.2d 1233, 1239 (7th Cir.1990), cert, denied, 498 U.S. 1089, 111 S.Ct. 968, 112 L.Ed.2d 1054 (1991); Wood, 825 F.2d at 97. " '[A]rising in' proceedings are those that are not based on any right expressly created by title 11, but nevertheless, would have no existence outside of the bankruptcy." Wood, 825 F.2d at 97.
Non-core matters over which bankruptcy courts have jurisdiction are those "related to" a bankruptcy case. Neither the Bankruptcy Code nor the jurisdictional statutes define the term "related to." The Seventh Circuit, however, held that a case is "related to" a bankruptcy when it affects either the amount of property in the bankruptcy estate or the distribution of that property among the creditors. FedPak, 80 F.3d at 213-14; In re Xonics, Inc., 813 F.2d 127, 131 (7th Cir.1987). "Overlap between the bankrupt's affairs and another dispute is insufficient unless its resolution also affects the bankrupt's estate or the allocation of its assets among creditors." Home Ins. Co. v. Cooper & Cooper, Ltd., 889 F.2d 746, 749 (7th Cir. 1989). The Seventh Circuit explained how matters are "related to" a bankruptcy case:
The reference to cases related to bankruptcy cases is primarily intended to encompass tort, contract, and other legal claims by and against the debtor, claims that, were it not for bankruptcy, would be ordinary stand-alone lawsuits between the debtor and others but that section 1334(b) allows to be forced into bankruptcy court so that all claims by and against the debtor can be determined in the same forum.
Zerand-Bernal Group, Inc. v. Cox, 23 F.3d 159,161 (7th Cir.1994).
The Court finds that it lacks the proper subject matter jurisdiction to hear this adversary proceeding. None of the allegations in the complaint arise under title 11 or arise in a case under title 11. Further, none of the acts complained of by *800 the Debtor involve a cause of action created by a statutory provision of title 11. Despite the Debtor's contention that the Court has jurisdiction over this adversary proceeding under 28 U.S.C. § 157(b)(2)(H), none of the allegations in the complaint seek to determine, avoid or recover any fraudulent conveyances. Further, none of the allegations in the complaint involve administrative matters that arise only in bankruptcy cases. Rather, those claims exist outside of bankruptcy in that many of them are criminal in nature. Hence, none of the allegations made by the Debtor constitute core proceedings. In addition, none of the claims are related to the bankruptcy case. The Debtor's Chapter 7 case was filed in 1998. He received his discharge in 1999, and the bankruptcy case was closed shortly thereafter. These claims in the instant complaint do not affect the amount of property in the bankruptcy estate or the distribution of that property among the creditors. Rather, these allegations are mostly criminal in nature, and the Court has no jurisdiction over criminal matters. None of the relief sought by the Debtor arises under, arises in, or is related to his 1998 bankruptcy case which is now closed.
Moreover, as a general rule, dismissal or closure of a bankruptcy case usually results in dismissal of related adversary proceedings because federal jurisdiction is premised upon the nexus between the underlying bankruptcy case and the related proceedings, but this general rule is not without exception. In re Statistical Tabulating Corp., Inc., 60 F.3d 1286, 1289 (7th Cir.1995). The Seventh Circuit stated that in the case of a related adversary proceeding or a related state law claim, the bankruptcy court would have the discretion to retain or relinquish jurisdiction over the related matter when the underlying bankruptcy case is dismissed. Id. at 1287 n. 1. In Chapman v. Currie Motors, Inc., 65 F.3d 78 (7th Cir.1995) the court held that "related to" jurisdiction is sufficiently capacious to protect the interest of judicial economy and argues powerfully for keeping a case in a court system when a case has proceeded through one court system and is almost finished there. Id. at 81. The issue in Chapman was whether the district court had the discretion to relinquish its jurisdiction of an adversary proceeding based solely and purely on state law claims when the underlying bankruptcy case was dismissed. The Seventh Circuit held that where the issues involved revolved solely around the meaning of a pair of state court judgments, the federal link was so tenuous that the district court had the discretion to relinquish its "related to" jurisdiction, and that it properly exercised that discretion, even though jurisdiction of the adversary proceeding did not automatically end upon the dismissal of the underlying bankruptcy case. Id. at 81-82. "As Chapman and Statistical Tabulating make clear, this Court has discretion to retain jurisdiction over any adversary proceeding when dictated by judicial economy, fairness and convenience to the parties, and the degree of difficulty of the related legal issue involved." Rodriguez v. Volpentesta (In re Volpentesta), 187 B.R. 261, 270 (Bankr. N.D.Ill.1995).
Turning to the matter at bar, the Debtor received his discharge on February 26, 1999, and the underlying bankruptcy case was closed on March 10, 1999. Because the bankruptcy case is closed, the Court, in the exercise of its discretion, dismisses this adversary proceeding. The complaint in this proceeding fails to allege any bankruptcy core matters or causes of action. Rather, it is an attempt by the Debtor to have this Court enter relief beyond its subject matter jurisdiction, as well as a *801 collateral attack on decisions rendered by other courts.
Along those lines, the Court notes that in this adversary proceeding the Debtor seeks to collaterally attack the decisions made by the state and federal courts in several matters that were filed in those courts. Debtors are not entitled to have the bankruptcy court hear complaints simply because they are disgruntled with the process in the state court. In re Double W Enters., Inc., 240 B.R. 450, 455 (Bankr.M.D.Fla.1999). This Court must afford the state court's final rulings full faith and credit. See 28 U.S.C. § 1738.
In addition, the Court finds that the Rooker-Feldman doctrine bars this Court from exercising subject matter jurisdiction over this adversary proceeding. The doctrine, which emerged from two United States Supreme Court cases, Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923) and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983), prohibits the inferior federal courts from reviewing state court decisions. Rooker-Feldman is a jurisdictional doctrine premised on the basis that, because federal district courts are courts of original jurisdiction, lower federal courts are not authorized to review appeals from state court judgments, except where Congress has authorized such collateral review. Crestview Vill. Apts. v. United States Dept. of Hous. & Urban Dev., 383 F.3d 552, 555-56 (7th Cir.2004); Levin v. Attorney Registration & Disciplinary Comm'n, 74 F.3d 763, 766 (7th Cir.), cert, denied, 518 U.S. 1020, 116 S.Ct. 2553, 135 L.Ed.2d 1072 (1996) ("The Rooker-Feldman doctrine dictates that federal district courts lack jurisdiction to review decisions of state courts."). "Inferior federal judges lack jurisdiction to review the judgments of state courts, which are open to question, if at all, only in the Supreme Court of the United States under 28 U.S.C. § 1257." Homola v. McNamara, 59 F.3d 647, 650 (7th Cir.1995); see also Garry v. Geils, 82 F.3d 1362, 1365 (7th Cir.1996).
The Seventh Circuit has consistently applied the Rooker-Feldman doctrine in holding that federal courts lack jurisdiction to engage in appellate review of state court decisions, even when a federal question is presented. See Maple Lanes, Inc. v. Messer, 186 F.3d 823, 825 (7th Cir.1999); Centres, Inc. v. Town of Brookfield, Wis., 148 F.3d 699, 702 (7th Cir.1998). Parties seeking review of state court decisions must pursue relief in the state court. Long v. Shorebank Dev. Corp., 182 F.3d 548, 554 (7th Cir.1999). Lower federal courts lack jurisdiction to review state court decisions, regardless of what errors the state court may have committed. Remer v. Burlington Area Sch. Dist, 205 F.3d 990, 996 (7th Cir.2000).
The Rooker-Feldman doctrine applies to direct attacks on state court judgments as well as "claims that are inextricably intertwined with state court determinations." Long, 182 F.3d at 554. Whether a claim is "inextricably intertwined" with a state court judgment depends on "whether the federal plaintiff seeks to set aside a state court judgment or whether he is, in fact, presenting an independent claim." Brokaw v. Weaver, 305 F.3d 660, 665 (7th Cir.2002) (internal quotations omitted). The relevant inquiry in every Rooker-Feldman situation is whether the lower federal court "is in essence being called upon to review the state-court decision." Zurich Am. Ins. Co. v. Superior Ct, 326 F.3d 816, 823 (7th Cir.2003) (internal quotation omitted). If "success in the federal court would require *802 overturning the state court decision," the federal court lacks jurisdiction over the matter. Epps v. Creditnet, Inc., 320 F.3d 756, 759 (7th Cir.2003).
The Court finds that the Rooker-Feldman doctrine bars the majority of the claims made here which are based on prior state court litigation. This adversary proceeding is nothing more than an attempt to have a federal court review state court decisions and overturn them. The Court lacks the jurisdiction to do that. See Epps, 320 F.3d at 761 (observing that the Rooker-Feldman doctrine blocks an "attempt to use the federal courts as a substitute appellate tribunal for the state courts"). Further, the Court lacks the power to review decisions from other federal courts. If the Debtor is unhappy with decisions rendered by other federal courts, then he must follow the appropriate federal appellate procedures. This Courta unit of the district courtis not the proper forum for the review of decisions made by the district court that the Debtor is dissatisfied with. The review of any final decision made by the district court is reserved for the jurisdiction of the federal courts of appeals. See 28 U.S.C. § 1291.
Accordingly, for the foregoing reasons, the Court finds that it lacks subject matter jurisdiction of this complaint and hereby dismisses this adversary proceeding.
NOTES
[1] As the Court discusses later in this Order, this adversary proceeding is not a core proceeding.
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FILED
JAN 19 2011
NOT FOR PUBLICATION MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
YVONNE CUMMINS, No. 09-15423
Plaintiff - Appellant, D.C. No. 2:08-cv-00440-SRB
v.
MEMORANDUM*
CITY OF YUMA, Arizona; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Argued and Submitted January 14, 2011
San Francisco, California
Before: WALLACE, NOONAN, and SILVERMAN, Circuit Judges.
Plaintiff Yvonne Cummins appeals the district court’s dismissal of her age
discrimination action. We have jurisdiction pursuant to 28 U.S.C. § 1291, review
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
de novo, William O. Gilley Enters., Inc., v. Atlantic Richfield Co., 588 F.3d 659,
662 (9th Cir. 2009), and affirm.
The district court properly dismissed the individual defendants because they
cannot be liable under the Age Discrimination in Employment Act (ADEA). 29
U.S.C. §§ 621-34 (2006); Miller v. Maxwell’s Int’l, Inc., 991 F.2d 583, 587-88 (9th
Cir. 1993). Plaintiff argues that she could have amended her complaint to assert §
1983 equal protection claims against the individual defendants. However, the
ADEA is plaintiff’s exclusive remedy. As a matter of law, plaintiff cannot state a §
1983 equal protection claim for age discrimination in employment. Ahlmeyer v.
Nev. Sys. of Higher Educ., 555 F.3d 1051, 1060-61 (9th Cir. 2009).
Plaintiff argues that the district court erred by dismissing her pre-October
2007 claims as time-barred by 29 U.S.C. § 626(d)(1). She alleges that the
continuing violations doctrine allows her to claim that the city has discriminated
against older workers and refused to hire her for the past 20 years. However, at
most, the continuing violations doctrine allows plaintiff to sue for the October
2007 job announcement even though the city’s comprehensive work history policy
was established before the limitations period. Comm. Concerning Cmty.
Improvement v. City of Modesto, 583 F.3d 690, 701 (9th Cir. 2009). Plaintiff’s one
timely allegation does not allow her to sue for other alleged discrete discriminatory
2
acts over the past 20 years. See id.; Raad v. Fairbanks N. Star Borough Sch. Dist.,
323 F.3d 1185, 1192 (9th Cir. 2003).
Plaintiff argues that the district court misapplied Federal Rule of Civil
Procedure 12(b)(6) by requiring that she allege more facts and focusing on the
affirmative defense of reasonable factors other than age to dismiss her disparate
impact claim. However, a claim can be dismissed for failure to state a claim if the
allegations in the complaint establish an affirmative defense. Jones v. Bock, 549
U.S. 199, 215 (2007). To apply the “reasonable factors other than age” defense in
an ADEA disparate impact case, we consider whether the neutral factor causing the
disparate impact on older workers is reasonable. Meacham v. Knolls Atomic
Power Lab., 554 U.S. 84, 87 (2008). Even if the City’s requirement that an
applicant provide a complete work history has a disparate impact on older workers,
the employer is not liable under the ADEA if the work history requirement is
reasonable. We agree with the district court that an employer may reasonably
require that job applicants provide a complete work history. Therefore, the district
court did not err in dismissing plaintiff’s disparate impact ADEA claim.1
Finally, the district court did not err in dismissing any potential state claims
as barred by the Arizona notice of claim statute, Ariz. Rev. Stat. Ann. § 12-
1
Plaintiff concedes that she is not asserting a disparate treatment claim.
3
821.01(A) (2003) (West). Plaintiff argues that the parties received notice when the
EEOC forwarded her discrimination charge to the state attorney general. However,
the attorney general is not the proper party to serve for a notice of claim against a
city. See § 12-821.01(A); Ariz. R. Civ. P. 4.1(i). “Actual notice and substantial
compliance do not excuse failure to comply with the statutory requirements.”
Falcon ex rel. Sandoval v. Maricopa County, 144 P.3d 1254, 1256 (Ariz. 2006)
(En Banc). The district court did not err in holding that plaintiff’s failure to
comply with § 12-821.01 bars any potential state claims.
AFFIRMED.
4
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367 F.Supp.2d 861 (2005)
Dan PHILLIPS, Plaintiff,
v.
Larry MABE, in his personal and individual capacity; Donald Whitt, in his personal and individual capacity, Defendants.
No. 1:04 CV 00198.
United States District Court, M.D. North Carolina.
February 28, 2005.
*862 *863 *864 Alan McSurely, Susan Ashley Osment, Chapel Hill, NC, for Plaintiff.
Donna R. Rascoe, Mark Allen Davis, Raleigh, NC, for Defendants.
MEMORANDUM OPINION
BEATY, District Judge.
I. INTRODUCTION
This matter is a civil rights action arising out of Plaintiff Dan Phillips' ("Plaintiff" or "Phillips") employment as a law enforcement officer who was stationed as a Student Resource Officer ("SRO") at two Chatham County High Schools. Plaintiff's term as SRO took place during the time that Defendant Larry Mabe ("Mabe") was Superintendent of the Chatham County Schools. Plaintiff served as a law enforcement officer under the command of Defendant Donald Whitt ("Whitt"), who was Sheriff of Chatham County until he resigned at the end of November 2000. Plaintiff was fired by Whitt's successor, Sheriff Ike Gray, on January 16, 2001. Plaintiff alleges that Mabe and Whitt violated Plaintiff's constitutional rights under the Fourteenth Amendment's guarantees of equal protection and due process brought pursuant to 42 U.S.C. §§ 1981, 1983, and 1985. Plaintiff further alleges that Mabe and Whitt established a conspiracy to punish Plaintiff, who is white, for wanting to participate in an investigation of a racially hostile environment against black students at Chatham Central High School. In response, Mabe and Whitt have each filed Motions to Dismiss [Document Nos. 8 and 2, respectively] Plaintiff's Complaint. Plaintiff has filed a Response to both of these Motions to Dismiss, and both Mabe and Whitt have filed a Reply. Plaintiff also has filed a Motion to Strike Defendant Whitt's Reply [Document # 17]. Thus, these Motions are ripe for review.
II. FACTUAL ALLEGATIONS
Taking the facts in a light most favorable to Plaintiff, as the Court must do when considering a Motion to Dismiss, the following is an abbreviated account of the record in this case. Plaintiff alleges that he was employed for four and a half years by the Chatham County Sheriff's Department prior to his firing on January 18, 2001. At some point, Plaintiff was assigned by Defendant Whitt to serve as an SRO at Chatham Central High School ("CCHS"), where he was expected to perform criminal law enforcement duties within the school. Just before the May 1999 graduation at CCHS, a series of racially *865 hostile acts were allegedly committed at the school. Pictures of black students with nooses around their necks were drawn in school bathrooms, students celebrated a senior "slave day," and racially hostile pictures were allegedly published in the school yearbook. John Glover, then principal of CCHS, tried to discipline a group of white students. Those students appealed their discipline, and it was overturned. Subsequently, Defendant Mabe as Superintendent of Chatham County Schools demoted Glover from principal to teacher, and transferred him to another school. In response to these actions against Glover, black students and parents organized a county-wide organization called Correcting Racial Injustices for Success in Society ("CRISIS"). This group then complained about Defendant Mabe to the U.S. Department of Education's Office of Civil Rights ("OCR"), which began an investigation into the matter. Defendant Mabe appointed William J. Fowler ("Fowler") as the new principal at CCHS.
In August 1999, Fowler allegedly told Plaintiff that Defendant Mabe had assigned him to the school for the purpose of straightening out the school and not to "take anything off any of these Niggers, but be damn sure before I got rid of them that I built a good case." Plaintiff alleges that in subsequent months, Fowler continued to make racially discriminatory comments to him, which offended Plaintiff. In December 1999, Fowler told Plaintiff that "All Niggers Must Die" had been written on the wall at CCHS, but that he, Fowler, had already erased the statement prior to any photograph being taken. During the following months, Plaintiff told his supervisor, Defendant Whitt, about Fowler's statements and the other acts against black students at the High School. Defendant Whitt allegedly told Plaintiff that he didn't "want to hear a damn thing you have to say." (Pl.'s Compl., at 3.) Also during that winter, investigators from OCR visited CCHS to gather evidence as to the environment, and Plaintiff tried to provide evidence to them as to the environment at the school. Plaintiff alleges that Defendant Whitt learned of Plaintiff's desire to become involved with the OCR investigation and told him to "cease those activities" unless those activities related to law enforcement or investigating a crime. (Id.) Plaintiff alleges that Defendants Whitt and Mabe were aware of Fowler's allegedly racist attitude and did not want OCR to know of it. Plaintiff further alleges that Defendants Whitt and Mabe plotted together to cover up Fowler's actions. Defendants also targeted Plaintiff with a "campaign of intimidation" and ultimately they planned to discharge Plaintiff after OCR's investigation ended. (Id. at 4.)
In the spring of 2000, Defendant Whitt transferred Plaintiff to a different high school. Plaintiff was replaced by David Seagroves ("Seagroves") at the SRO position at CCHS. Fowler allegedly continued making racist comments, but said them to Seagroves and not to Plaintiff. In July 2000, an audiotape containing excerpts of Fowler's voice was given to Rick Givens ("Givens"), the Chair of the Chatham County Commissioners. This tape implicated Fowler in making racist statements. Givens wanted to ask Plaintiff questions about the tape, but was prevented from doing so by orders from Defendant Whitt, who allegedly told Plaintiff that he could not attend a meeting with the County School Board and the County Commissioners that was to discuss this matter. In any case, the result of that meeting was an order by the County School Board to Defendant Mabe to investigate the matter. Defendant Mabe allegedly conducted a superficial investigation, in which he failed to interview any black students, the Plaintiff, or the current SRO, Seagroves. Mabe reported back to the County School Board that there was nothing to the allegations against Fowler. Subsequently, Defendant *866 Mabe learned that Givens had a secret audiotape of Fowler making racist statements. When Mabe failed to take action against Fowler, Givens told other School Board members about the tape and played it for them. Allegedly, on August 25, 2000, after receiving a letter from Defendant Mabe that the action had been fully investigated and appropriate action taken, Givens told Defendant Mabe he was going to involve N.C. Gov. Jim Hunt, N.C. Sen. Howard Lee, and CRISIS leaders in the problem. Defendant Mabe then met with Fowler and agreed that Fowler would request immediate retirement as of September 1, 2000. Defendant Mabe and Fowler also allegedly agreed that Plaintiff would be punished for allegedly making the audiotape of Fowler. This allegedly was accomplished by Defendant Mabe giving the audiotape of Fowler to Defendant Whitt. Mabe, however, but did not ever divulge the tape or its existence to the OCR investigators.
In October 2000, Defendant Whitt began an internal affairs investigation of Plaintiff, and also investigated Seagroves, to determine who had taped Fowler. Plaintiff was interviewed by internal affairs on November 8, 2000 about the audiotape and about Fowler's racist statements to him. Defendant Whitt resigned as Sheriff at the end of November 2000. He was succeeded by Ike Gray ("Gray") as Sheriff. In December 2000, Gray allegedly told a School Board member that he was under pressure to find out who had made the audiotape of Fowler, and that he would punish the responsible person. OCR continued its investigation of CCHS until December 21, 2000, when investigators stated in a letter that due to no more racial incidents at CCHS, there was insufficient evidence to find a violation of Title VI of the Civil Rights Act. OCR allegedly had never been informed of the existence of the audiotape or the disposition of former principal Fowler. On January 18, 2001, Plaintiff alleges that Gray fired Plaintiff for a "pretextual reason." (Id. at 8.)
Plaintiff alleges that Defendants Mabe and Whitt entered into a conspiracy with Gray to have Plaintiff fired, because Plaintiff wanted to speak out against racism at CCHS. Plaintiff alleges he was not fired by Defendant Whitt prior to Whitt's retirement because of Defendant Whitt's fear that Plaintiff would go to the OCR investigators with the audiotape while the investigation was still open. Therefore, Plaintiff alleges that Defendants Mabe and Whitt relied on Gray to finish the conspiracy they had started to punish Plaintiff.
III. MOTION TO STRIKE
Plaintiff has filed a Motion to Strike Defendant Whitt's Reply Brief [Document # 17]. Under Local Rule 7.3(h), a Reply brief must be filed within ten days after service of the Response, and is limited to "discussion of matters newly raised in the Response." In his Motion, Plaintiff argues that Defendant Whitt raised a new issue by titling his Reply Brief "In Support of Defendant Whitt's Motion for Summary Judgment" rather than referring to it as a Reply Brief in Support of Defendant Whitt's Motion to Dismiss. Specifically, Plaintiff objects to Defendant Whitt raising the issue of whether Plaintiff's claims are time-barred and the issue of whether Plaintiff's claims are "sufficient to give rise to a cause of action since they did not constitute a tangible deprivation of Plaintiff's rights." (Pl.'s Mot. Strike, at 3.)
Defendant Whitt filed a Memorandum [Document # 20] opposing Plaintiff's Motion to Strike. Whitt argues in that Memorandum that he inadvertently titled his Reply Brief "Motion for Summary Judgment" as opposed to "Motion to Dismiss," and would have this Court read it as a Reply Brief supporting his Motion to Dismiss. Furthermore, Whitt argues that his *867 Motion to Dismiss included the issue of whether Plaintiff's claims are time-barred, so that issue is not new (Def. Whitt's Mot. Dismiss, at 2-3.), and that Defendant Whitt's argument in his Reply as to time-barred claims was included to rebut Plaintiff's argument in his Response regarding whether claims were time-barred. Additionally, Defendant Whitt argues that, contrary to Plaintiff's assertions, Plaintiff did raise additional issues in the Response that could then be raised by Defendant Whitt in the Reply.
The Court notes that Defendant Whitt's Motion to Dismiss included the argument that "Plaintiff cannot show a tangible harm attributable to Defendant Whitt." (Def. Whitt's Mot. Dismiss, at 4.) The Court finds that this argument is sufficiently similar to the argument that Plaintiff objects to in Whitt's Reply, that is, that Plaintiff's claims do not constitute a tangible deprivation of Plaintiff's rights. Furthermore, the Court finds that Plaintiff's Response argued that the claims were not time-barred (Pl.'s Response, at 4-15.) but failed to respond to the question of whether Plaintiff suffered a "tangible harm" at the hands of Defendant Whitt.
The Court finds that Defendant Whitt's Reply brief was misnamed, but that is not enough to strike the Reply, particularly as it specifically discusses Defendant's arguments under Federal Rule of Civil Procedure 12(b)(6). Furthermore, the Court finds that the Reply properly discusses matters raised by Plaintiff's Response. Therefore, Plaintiff's Motion to Strike is denied.
IV. MOTIONS TO DISMISS
With respect to a motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted, dismissals are allowed "only in very limited circumstances." Rogers v. Jefferson-Pilot Life Ins. Co., 883 F.2d 324, 325 (4th Cir.1989). Generally, "[a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 122 S.Ct. 992, 998, 152 L.Ed.2d 1 (2002) (internal quotations omitted); accord Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993). In making this determination, a court must view the complaint in the light most favorable to the plaintiff, accepting as true all well-pleaded factual allegations. Randall v. United States, 30 F.3d 518, 522 (4th Cir.1994). Thus, the purpose of a motion to dismiss is to test the legal sufficiency of the complaint and not the facts that support it. Neitzke v. Williams, 490 U.S. 319, 326-27, 109 S.Ct. 1827, 1832, 104 L.Ed.2d 338 (1989). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Revene v. Charles County Comm'rs, 882 F.2d 870, 872 (4th Cir.1989)(internal quotations omitted).
Plaintiff brings claims against both Defendants under 42 U.S.C. §§ 1981, 1983, and 1985. The Court will now discuss each of these claims in turn, and in making this determination, the Court will discuss arguments raised by both Defendant Mabe and Defendant Whitt in their respective Motions to Dismiss. However, the Court will first address Defendant Whitt's argument that all of Plaintiff's claims are barred by the statute of limitations and should also be barred by judicial estoppel. These two arguments are without merit.[1]
*868 A. Statute of Limitations and Judicial Estoppel
Plaintiff was terminated on January 18, 2001, and brought this lawsuit on January 16, 2004. In May 2004, the U.S. Supreme Court decided Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 124 S.Ct. 1836, 158 L.Ed.2d 645 (2004), which held that if a plaintiff's claim was made possible by the Civil Rights Act of 1991, then that claim would be governed by a "catch-all" four-year statute of limitations period. R.R. Donnelley & Sons Co., 124 S.Ct. at 1845. Claims that allege a wrongful termination would arise under the 1991 Act, in that they were made possible by that act. Id. at 1845-46. Therefore, Defendant Whitt's argument that the statute of limitations applies here because he retired in November 2000, which occurred more than three years before Plaintiff brought suit, is without merit. Plaintiff has four years to file suit under R.R. Donnelley & Sons Co., and Plaintiff did so within that time period.
Defendant Whitt also argues that Plaintiff is judicially estopped from bringing these claims against him. Judicial estoppel is a prudential doctrine in which a party is precluded from adopting a factual position that is inconsistent with a stance taken in prior litigation. Lowery v. Stovall, 92 F.3d 219, 223 (4th Cir.1996). However, the Court finds that it is not an inconsistent factual position for Plaintiff to argue that he was fired by Sheriff Gray in an earlier state court action, and then argue in this Court that the former sheriff, Defendant Whitt, and the school superintendent, Defendant Mabe, conspired with Gray to terminate Plaintiff. Therefore, Defendant Whitt's arguments as to judicial estoppel are without merit.
B. 42 U.S.C. § 1981
Plaintiff first alleges that Defendants' actions to cause his discharge are actionable under 42 U.S.C. § 1981. Specifically, Plaintiff alleges that Defendants were motivated by improper racial motives against Plaintiff, who is white, but who was standing in the black students and parents shoes when he tried to resist racial hostility at the High School. Plaintiff alleges that Defendants' conduct violated both his employment contract and his ability to give evidence to federal investigators.
Section 1981 provides that "all persons shall have the same right to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens." 42 U.S.C. § 1981. As amended by the Civil Rights Act of 1991, § 1981(b) provides that the term "make and enforce contracts" includes "the making, performance, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship."
While Plaintiff does not specifically label it as such, it is clear that Plaintiff accuses Defendants Mabe and Whitt of retaliation based on his actions in favor of the Black students, and not of direct racism against him because of his white race.[2] Defendants *869 argue that as a matter of law, Plaintiff cannot bring a claim against them under § 1981, for two reasons: first, because Plaintiff did not have a contract with either Defendant, and second, because Plaintiff has not described any protected activity for the purpose of making a § 1981 retaliation claim. The Court will now discuss each argument in turn.
Defendants cite to Danco, Inc. v. Wal-Mart Stores, 178 F.3d 8, 13-15 (1st Cir.1999) and Spriggs v. Diamond Auto Glass, 165 F.3d 1015, 1018-19 (4th Cir.1999) for the proposition that the existence of a contractual relationship between plaintiff and defendant is a requirement of a § 1981 claim. However, Defendants misconstrue the findings in both Spriggs and Danco. In Spriggs, the Fourth Circuit only determined that at-will employment can serve as the contract for § 1981 purposes, not that the contract must be between Plaintiff and Defendant. Spriggs, 165 F.3d at 1018-19. In fact, the Spriggs decision allowed the plaintiff to sue his former employer, the company itself, along with the company's president, and plaintiff's supervisor two parties that plaintiff did not have a contract with for racial harassment and retaliation under § 1981. Id. at 1020.
Despite Defendants' assertions, Danco determined only that § 1981 does not provide a cause of action to someone who is merely affiliated with a contracting party that suffers interference with its making and enforcement of a contract, not that the contract must be between plaintiff and defendant. Danco, 178 F.3d at 14. In Danco, the First Circuit Court of Appeals ruled that an independent contractor could sue a corporate defendant under § 1981 for creating a racially-hostile environment, but that the employee of the independent contractor had no claim under § 1981 because he was not a party to the contract between the independent contractor and the corporation. Id. However, in the instant case, Plaintiff is a party to the contract between himself and the Sheriff's Department. See North American Roofing & Sheet Metal Co., Inc. v. Building & Construction Trades Counsel of Philadelphia & Vicinity, No. Civ. A. 99-2050, 2000 WL 230214, at *3 (E.D.Pa. Feb. 29, 2000)(stating that "[s]omeone who is not a party to a contract, however, does not have standing to make a § 1981 claim for interference with their right to make and enforce that contract."). That Plaintiff does not have a contract with Defendant Mabe, the superintendent, and Defendant Whitt, the former Sheriff, is not important, because tortious interference by Defendants of Plaintiff's ability to contract with the Sheriff's Department satisfies the contract requirement of § 1981. See Collin v. Rector & Bd. of Visitors of the Univ. of Va., 873 F.Supp. 1008, 1015 (W.D.Va.1995)(allowing claim against university dean and other faculty members who influenced a tenure decision to go forward under § 1981 and stating that, "[w]here a fellow employee intentionally interferes with the right of a coworker to make or enforce a contract with the employer and that interference is based on illegal discrimination, the employee's conduct is actionable under § 1981"); see also Kolb v. State of Ohio, Department of Mental Retardation & Developmental Disabilities, 721 F.Supp. 885, 891-92 (N.D.Ohio 1989)("[N]o contractual relationship or expectation of employment is required between a defendant and the plaintiff to support the individual liability under section 1981 of that defendant for discriminatory interference with the plaintiff's contractual relationship with the defendant employer.... More simply put, a third party's interference with rights guaranteed by section 1981 will subject such a person to personal liability." (internal quotations omitted)). Danco only addresses the existence of some contract for § 1981 purposes, and not the question of tortious *870 interference. Therefore, the Defendants' argument as to the necessity of a contract between Plaintiff and Defendants is not valid, because tortious interference with a contract is enough to raise § 1981 liability.
However, Defendants also argue that Plaintiff has not described any protected activity for the purposes of a § 1981 retaliation claim. Defendants argue that in order to make out a retaliation claim, the retaliation must be based on opposition to conduct that is itself a violation of § 1981. See Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684, 693 (2d Cir.1998)("[T]o be actionable under § 1981, the retaliation must have been in response to the claimant's assertion of rights that were protected by § 1981."); see also Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 237, 90 S.Ct. 400, 404, 24 L.Ed.2d 386 (1969)(Allowing a claim under § 1982 where white appellants were "punished for trying to vindicate the rights of minorities protected by [the statute]."); De Matteis v. Eastman Kodak Co., 511 F.2d 306, 312 (2d Cir.1975)(Allowing a claim under § 1981 where white appellant was "punished for trying to vindicate the rights of [non-white] minorities," in particular, selling his house to a black man, thereby vindicating the right of a fellow black employee to "make ... [a] contract"). Plaintiff must be able to identify a right under § 1981 that he vindicated with "some particularity." See Albert v. Carovano, 851 F.2d 561, 572 (2d Cir.1988)("The Section 1981 rights being vindicated by white plaintiffs must be identified with some particularity in order to limit actions under that statute to its purpose. Otherwise, non-minority plaintiffs could bring actions where Section 1981 rights are not implicated."). In Response to Defendants' arguments that Plaintiff must identify such a Section 1981 right, Plaintiff states that "Sgt. Phillips pled that he was prevented from `giving evidence' in a federal civil rights Title VI case and that his efforts to provide equal protection for the Black students at his workplace (CCHS) was also the reason his employment contract was breached by the machinations of Defendants Mabe and Whitt." (Pl.'s Resp. Def. Mabe's Mot. Dismiss, at 10.) While equal protection rights are constitutional, they are not contractual. See Fowler v. McCrory Corp., 727 F.Supp. 228, 231 n. 3 (D.Md.1989)(stating that all acts of unlawful discrimination do not constitute a breach of contract actionable under § 1981). In this instance, Plaintiff has not identified any specific right under § 1981 of a minority that Plaintiff tried to vindicate and that in turn caused Defendants to retaliate against Plaintiff. Therefore, Plaintiff's claim under § 1981 must be dismissed.
C. 42 U.S.C. § 1983
Plaintiff alleges that Defendants are liable to him under 42 U.S.C. § 1983, based on a violation of Plaintiff's rights secured by the Fourteenth Amendment and rights to equal protection under the law. Defendants argue that ordinary allegations of retaliation do not state a claim under the Equal Protection Clause, and that to the extent that Plaintiff claims his own Equal Protection rights were violated because Fowler or Defendant Mabe allegedly violated the rights of students, Plaintiff lacks standing to bring the claim.
The Fourteenth Amendment's Equal Protection clause provides that "[n]o State shall ... deny to any persons within its jurisdiction the equal protection of the laws." U.S. Const. Amend. XIV. The Fourth Circuit has held that "[a] pure or generic retaliation claim ... simply does not implicate the Equal Protection Clause." Edwards v. City of Goldsboro, 178 F.3d 231, 250 (4th Cir.1999) (citation omitted); see also Watkins v. Bowden, 105 F.3d 1344, 1354-55 (11th Cir.1997)(stating that to the extent plaintiff claims she was *871 dismissed based on expressive activity, that conduct arises under the First Amendment, but not under the Equal Protection Clause); Bernheim v. Litt, 79 F.3d 318, 323 (2d Cir.1996)("[W]e know of no court that has recognized a claim under the equal protection clause for retaliation following complaints of racial discrimination.").
However, the Edwards court went on to discuss, without deciding, whether to recognize another theory of equal protection law: Whether the Equal Protection Clause is violated when a government or government official selectively enforces a policy or regulation against an individual, who is not a member of an identifiable group, merely because the government or government official harbors animosity towards the individual.[3]Edwards, 178 F.3d at 250; see also Esmail v. Macrane, 53 F.3d 176, 179 (7th Cir.1995). Under this theory of equal protection law, selective prosecution where the decision to prosecute is made in retaliation for the exercise of a constitutional right is actionable under the equal protection clause. Esmail, 53 F.3d at 179. In Edwards, that would have meant considering whether the police officer suspended for engaging in secondary employment without permission was disciplined because the defendants in that case "harbored animosity toward him personally." Edwards, 178 F.3d at 250. Notably, this Court may not grant a motion to dismiss unless it is "clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 122 S.Ct. 992, 998, 152 L.Ed.2d 1 (2002) (internal quotations omitted). However, this Court is not required to guess at what facts may be available to support Plaintiff's claims. See Bass v. E.I. Dupont de Nemours & Co., 324 F.3d 761, 765 (4th Cir.2003)("While a plaintiff is not charged with pleading facts sufficient to prove her case, as an evidentiary matter, in her complaint, a plaintiff is required to allege facts that support a claim for relief."). Plaintiff alleges in his Complaint that "Defendant Whitt was angry at Sgt. Phillips" for getting involved in the school business, and that Defendant Mabe "was motivated by similar retaliatory feelings against Sgt. Phillips." (Pl.'s Compl., at 8.) Plaintiff contends that Defendants were angry with him because they believed he had secretly taped Principal Fowler and had given the tape to the School Board. Thus, while Plaintiff has sufficiently pled that Defendants harbored animosity towards him personally, Plaintiff does not state why he was fired by the Sheriff in his Complaint, other than to say it was for "pretextual reasons." As such, Plaintiff fails to plead a policy or regulation that was selectively used against Plaintiff by Defendants in violation of the equal protection clause, such as the policy against engaging in secondary employment without permission that was discussed in Edwards. This Court will not speculate as to what, if any, policy or regulation was selectively used against Plaintiff. Therefore, because the Fourth Circuit does not recognize generic retaliation claims based on equal protection, and because Plaintiff has not met the pleadings standards as to retaliation based on selective enforcement of a policy or regulation, Defendants' motions to dismiss Plaintiff's § 1983 claim are granted.[4]
*872 D. 42 U.S.C. § 1985
Finally, Plaintiff also alleges that Defendants are liable to him under various parts of 42 U.S.C. § 1985, based on a violation of Plaintiff's rights to "be a witness in to (sic) the United States Department of Education's investigation into an illegal, racially-hostile learning environment at CCHS, (sic) Further Defendants conspired in North Carolina for the purpose of impeding, hindering, obstructing and defeating the due course of justice in North Carolina with the intent of denying to Sgt. Phillips and the constitutionally protected interests of the African American students and parents he represented the equal protection of the laws." (Pl.'s Compl., at 10.) While Plaintiff does not specifically state in his Complaint which parts of § 1985 he alleges were violated, Plaintiff's subsequent pleadings state that he is claiming a violation of the second part of § 1985(2),[5] and a violation of § 1985(3).[6]
The portion of 42 U.S.C. § 1985(2) which is at issue here provides: "[O]r if two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws ..." then that person so injured may have a cause of action.
Defendants, however, argue that Plaintiff cannot state a violation of the second part of § 1985(2), because the second part of § 1985(2) only applies to conspiracies that obstruct the course of justice in state courts, which Plaintiff does not allege. The U.S. Supreme Court determined in Kush v. Rutledge, 460 U.S. 719, 725, 103 S.Ct. 1483, 1487, 75 L.Ed.2d 413 (1983), that this section of § 1985 "applies to conspiracies to obstruct the course of justice in state courts." Plaintiff states in his Response to Defendant Mabe's Motion to Dismiss that he is relying on the final clause of § 1985(2). However, as Plaintiff has not pled any indication that Plaintiff was prevented from giving evidence in any state proceeding, the Court finds that Plaintiff has not met the test to bring a claim under the second section of § 1985(2). See Roper v. County of Chesterfield, 807 F.Supp. 1221, 1226 (E.D.Va.1992)("In order to state a valid claim under this clause, a litigant must demonstrate some interference with `the course of justice in state courts.'")(quoting Kush, 460 U.S. at 725-26, 103 S.Ct. at 1487). As such, Defendants' motions to dismiss Plaintiff's claim under § 1985(2) are granted.
*873 Defendants argue as well that Plaintiff cannot assert a claim under 42 U.S.C. § 1985(3), which states that:
If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.
42 U.S.C. § 1985(3). In particular, Defendants argue that Plaintiff cannot state a § 1985(3) claim, because he is not a member of a protected class which suffered the alleged discrimination. Additionally, Defendants argue that Plaintiff cannot state a § 1985(3) conspiracy claim because Plaintiff does not allege that all of the conspirators shared a prohibited animus that motivated Defendants' actions toward Plaintiff. Finally, Defendants argue that Plaintiff cannot state a § 1985(3) claim because that section creates no rights, and so Plaintiff must allege that some other defined right was violated, which Plaintiff has not done.
To state a claim under § 1985(3), under the test set forth in Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971), a plaintiff must allege that a federally secured right has been invaded by the defendants, that defendants conspired to deprive plaintiff of his rights, and that the defendants' actions were motivated by a class-based invidiously discriminatory motive. See Hicks v. Resolution Trust Corp., 767 F.Supp. 167, 171 (N.D.Ill.1991). Plaintiffs have "standing under § 1985 only if they can show they are members of a class that the government has determined `requires and warrants special federal assistance in protecting their civil rights.'" See Maynard v. City of San Jose, 37 F.3d 1396, 1403 (9th Cir.1994)(quoting Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536-37 (9th Cir.1992)). In Maynard, the Ninth Circuit Court of Appeals found that a white plaintiff who was retaliated against for assisting a black woman by complaining about irregular hiring practices had standing under § 1985 because Title VII of the Civil Rights Act of 1964 grants special protection to all employees, regardless of race, who are subjected to retaliation for assisting in the investigation of discriminatory employment practices. Maynard, 37 F.3d at 1403; 42 U.S.C. § 2000e-3(a); see also Yesteryears, Inc. v. Waldorf Restaurant, Inc., 730 F.Supp. 1341, 1355 (D.Md.1989)(allowing white nightclub owner to bring suit under § 1985 where defendants conspired against him because nightclub was frequented by blacks). Therefore, the Court finds that Defendants' argument that Plaintiff cannot *874 rely on § 1985(3) because he is not a minority is without merit. However, Plaintiff still must be able to show, as in Maynard, that he is a "member of a protected class" that warrants special federal protection. The Court finds that Plaintiff has not done so. To the extent that Plaintiff could claim that he is part of a "whistle blower" class for trying to enforce the rights of the black students at CCHS, courts have not found that that classification possesses characteristics comparable to a "discrete and insular minority" that has been granted § 1985(3) protection because of race, national origin or gender. Hicks, 767 F.Supp. at 171. To the extent that Plaintiff is arguing that he is vindicating the rights of black students and their parents, Plaintiff has not shown that he is a member of that class with standing to argue for their rights. See United States v. Hays, 515 U.S. 737, 743-44, 115 S.Ct. 2431, 2435, 132 L.Ed.2d 635 (1995)("[E]ven if a governmental actor is discriminating on the basis of race, the resulting injury accords a basis for standing only to those persons who are personally denied equal treatment by the challenged discriminatory conduct." (internal quotation marks omitted)).
Furthermore, the Court notes § 1985(3) does not create any substantive rights on behalf of individuals such as Plaintiff. Great Am. Fed. Sav. & Loan Ass'n v. Novotny, 442 U.S. 366, 372, 99 S.Ct. 2345, 2349, 60 L.Ed.2d 957 (1979)(stating that § 1985(3) "provides no substantive rights itself; it merely provides a remedy for violation of the rights it designates"). As such, for the conduct of a state official to violate § 1985(3), the conduct must have violated an independent right granted to Plaintiff. United Bhd. of Carpenters & Joiners, Local 610 v. Scott, 463 U.S. 825, 833, 103 S.Ct. 3352, 3358, 77 L.Ed.2d 1049 (1983). This Court has already determined, however, that Plaintiff cannot bring a generic retaliation claim based on a violation of his alleged equal protection rights. Because of this, and because of Plaintiff's failure to properly state a claim under § 1981 as the Court previously discussed, Plaintiff has not identified any violations of his independent rights. Therefore, Plaintiff has failed to plead a claim under § 1985(3), and as such, Defendants' motions to dismiss the entirety of Plaintiff's claim based upon § 1985 must be granted.
V. CONCLUSION
For the reasons stated herein, Plaintiff's Motion to Strike [Document # 17] Defendant Whitt's Reply is denied. Furthermore, Defendant Mabe's Motion to Dismiss [Document # 8] and Defendant Whitt's Motion to Dismiss [Document # 2] Plaintiff's claims under 42 U.S.C. §§ 1981, 1983, and 1985 are granted. An Order and Judgment consistent with this Memorandum Opinion shall be filed contemporaneously herewith.
ORDER AND JUDGMENT
For the reasons stated in the Memorandum Opinion filed contemporaneously herewith, IT IS HEREBY ORDERED and ADJUDGED that Plaintiff's Motion to Strike [Document # 17] Defendant Whitt's Reply is DENIED. Furthermore, Defendant Mabe's Motion to Dismiss [Document # 8] and Defendant Whitt's Motion to Dismiss [Document # 2] Plaintiff's claims under 42 U.S.C. §§ 1981, 1983, and 1985 are GRANTED, and Plaintiff's Complaint is DISMISSED.
NOTES
[1] Defendant Whitt also argues that Plaintiff cannot state a claim against him in his official capacity because of collateral estoppel and various other legal arguments under § 1983. However, Plaintiff states in his Response to Defendant Whitt's Motion to Dismiss that he only brings claims against Defendant Whitt in his individual, personal capacity. As such, the Court need not address those arguments further. (Pl.'s Resp. Def. Whitt's Mot. Dismiss, at 4.)
[2] While Plaintiff does not specifically call his claim retaliation, Plaintiff does state in his Complaint that Defendant Whitt was angry at Sgt. Phillips for getting "involved" in this "school business" and that "Defendant Mabe was motivated by similar retaliatory feelings against Sgt. Phillips." (Pl.'s Compl., at 8.) Plaintiff never asserts that either Defendant was prejudiced against Plaintiff because he is white, just that he violated the "white line" custom of "white males automatically protecting each other, when one of them has been rightly accused of racial discrimination by Black people." (Id.)
[3] This theory of liability was recognized in Cottom v. Town of Seven Devils, No. 1:00CV89, 2001 WL 1019410, at *7 (W.D.N.C. June 13, 2001), in which the court considered whether police attention was selectively and illegally focused on a ski resort that served alcohol because the resort owner spoke out against police misconduct. The court ultimately found that there was no equal protection violation in Cottom.
[4] Plaintiff perhaps could have been able to bring a § 1983 claim against Defendants based on a violation of his First Amendment rights. Despite Defendants' assertion that Plaintiff is estopped from bringing such a claim based on res judicata, it appears to this Court that that may not necessarily be the case as the state court denied the claim based on the availability of adequate state remedy, which in turn precluded access to a free speech claim under the North Carolina Constitution. It appears to this Court that the state court did not consider the question under the U.S. Constitution. However, Plaintiff has not pled such a claim in this Court based upon the First Amendment for the apparently egregious conduct that Plaintiff has alleged as to Defendants' activities, so this Court need not address this matter any further.
[5] Plaintiff's Response to Defendant Mabe's Motion to Dismiss states that, "Here, Sgt. Phillips, relied on the final clause of § 1985(2) that requires race-based animus in the conspiracy..." (Pl.'s Resp. Def. Mabe's Mot. Dismiss, at 16.)
[6] Plaintiff concedes in his Response to Defendant Mabe's Motion to Dismiss that § 1985(1) only applies to federal officials, and since Plaintiff was a deputy sheriff, he does not qualify for protection under that statute.
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615 F.2d 1362
U. S.v.Codogan
No. 79-5173
United States Court of Appeals, Sixth Circuit
2/4/80
1
E.D.Mich.
AFFIRMED
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409 P.2d 116 (1965)
Robert L. GEE and Alberta C. Gee, His Wife, Plaintiffs-Respondents,
v.
Floyd WEST, Tax Collector, for the State of Idaho, Defendant-Appellant.
No. 9712.
Supreme Court of Idaho.
December 24, 1965.
Allan G. Shepard, Atty. Gen., and William M. Smith, Asst. Atty. Gen., Boise, for defendant-appellant.
McCarthy & Adams, Lewiston, Charles T. Sharp, Clarkston, Wash., for plaintiffs-respondents.
McFADDEN, Justice.
During the times involved herein, Robert L. Gee and Alberta C. Gee, husband and wife, the plaintiffs, resided at and were domiciled in Clarkston, Washington. Mr. Gee was employed by the Camas Prairie Railroad as a conductor of a train made up at Lewiston, Idaho; this train's daily run was from Lewiston, Idaho, to Raparia, Washington, of which daily run 6 miles was in Idaho and 141 miles in Washington. Mr. Gee left Lewiston in the morning, where he received his orders, and returned there at the end of the run.
During 1963, except for some interest received, plaintiffs' sole income was from his earnings, and his employer withheld from his wages the sum of $307.44 for Idaho Income Tax purposes, reporting all his wages as being subject to the Idaho Tax. In their 1963 income tax return, the plaintiffs allocated their income between Idaho and Washington, which allocation was based upon the respective mileage and time spent by Mr. Gee in the respective States. On their tax return on the basis of such allocation they claimed *117 they owed only $39.39 taxes due the State of Idaho, and that they were entitled to a refund of $268.05 on the sum withheld. The defendant Tax Collector denied this claim and demanded an additional $127.57, as being due. A deficiency notice was sent to the plaintiffs for the sum of $127.57, plus interest, which plaintiffs paid under protest. The basis of the Tax Collector's claim of deficiency and denial of the allocation of income between the two states was his conclusion that Mr. Gee's sole business situs was in Idaho and hence all his income from services was subject to the Idaho tax.
Plaintiffs brought this action against the defendant Tax Collector for a refund of $268.05, plus the sum paid under protest as a deficiency, with interest. The defendant Tax Collector answered the plaintiffs' complaint, and both parties moved for summary judgment, which motions were based on the pleadings and affidavits filed by the respective parties. The trial court determined that the plaintiffs had properly allocated their income between the two states, and granted the plaintiffs' motion for summary judgment, and entered judgment accordingly in the amount prayed for by their complaint. From this judgment this appeal has been taken.
The trial court's findings of fact recited the facts as outlined by the pleadings and affidavits of the parties, and held by the conclusions of law, among other things, that Mr. Gee had a business situs both in the State of Idaho, and State of Washington. By his assignments of error, the defendant challenges this conclusion that plaintiffs were entitled to allocate their income between the two states.
At the outset, it must be noted that this case arises under the Idaho Income Tax statutes as they existed prior to amendment in 1965.
Pertinent portions of the statutes involved are:
I.C. § 63-3002 (1959, ch. 299, § 2, p. 616):
"Declaration of intent. It is the intent of the Legislature by the adoption of this act: * * * to impose a tax on residents of this state measured by taxable income wherever derived and on the income of non-residents which is the result of activity within or derived from sources within this state." (Emphasis added).
I.C. § 63-3024 (1959, ch. 299, § 24, p. 620):
"Individuals' tax and tax on estates and trusts. A tax is hereby imposed for each taxable year commencing on and after January 1, 1959, * * * upon that part of the taxable income of any non-resident individual, * * * derived from sources within the state of Idaho as set forth in Section 27 (I.C. § 63-3027) hereof, * * *." (Emphasis supplied).
I.C. § 63-3027 (1961, Ch. 328, § 10, p. 628):
"(a) In computing the taxable income of a non-resident person with business situs in this state * * * income realized from or derived from sources within this state includes: * * * (3) Compensation for labor or personal services performed in the state. * * *
"(b) * * *
"(c) In the case of items of income derived from sources partly within and partly without the state, including income from transportation or other services rendered partly within and partly without the state * * * the portion of taxable income may be determined by processes or formulas of general apportionment prescribed herein.
"(d) Allocation: If the taxpayer's total income is derived from sources both within and without the state of Idaho, and the part within is so separate and distinct from and unconnected from the part without that the taxable income within can be determined without regard to the part without, then the part without the state of Idaho shall not be considered in computing *118 the tax imposed hereunder." (Emphasis supplied).
I.C. § 63-3023 (1961, Ch. 328, § 6, p. 626) states:
"The term `business situs' shall include * * * working for salary or wages, * * * or any other activity from which income is received, realized or derived from Idaho sources * * *." (Emphasis supplied).
In this appeal both parties rely on the case of Barraclough v. State Tax Commissioner, 75 Idaho 4, 266 P.2d 371, for their respective positions. That case dealt solely with a resident of this state.
The Supreme Court in the Barraclough case, supra, defines the word "sources" as follows:
"The word `sources' when used in statutes dealing with sources of income as compensation for personal services has reference not to the person or entity paying for the services, but to the location where the services are performed." 75 Idaho at page 10, 266 P.2d at page 374. (Italics supplied.)
and continuing:
"It is generally held that if the income is compensation for labor or services, the place where the labor is performed or services rendered is decisive as being the source of the income." 75 Idaho at page 10, 266 P.2d at page 374.
The appellant contends that respondent's income is exempt only if he can show that he has a business situs outside the State of Idaho. The Supreme Court in the Barraclough case pointed out that this applies to a resident of the State of Idaho who is attempting to exclude a portion of his income earned outside the state. The language of the court is:
"The income of a nonresident for personal services performed within the state to the extent that he has a business situs within the state is to be treated as taxable income. On the other hand, the income of a resident for personal services performed outside the state to the extent that he has a business situs outside the state is to be exempt from taxation by the state. * * *" 75 Idaho at page 11, 266 P.2d at page 375. (Italic words by the Court.)
Reading I.C. §§ 63-3002, 63-3023, 63-3024 and 63-3027(a) (3) and (c) and (d), together in the light of the Barraclough case, shows that the intent of the Legislature was to tax only the amount of income a nonresident received as compensation for labor or personal services performed in Idaho, and derived from Idaho sources. However, it should be noted that we are not confronted with the issue of whether or not a business situs was or was not established in Idaho or Washington, because I.C. §§ 63-3002, 63-3024, and § 63-3027(c) and (d) supra, do not deal with the question of business situs. The criterion as set forth by § 63-3027(c) and (d) (which authorizes the allocation of income derived from sources partly within and partly without this State) is where the labor was performed or services rendered The trial court's conclusion that Mr. Gee had a business situs both in Idaho and in Washington is immaterial, for the issue of business situs is not controlling here, as Mr. Gee, whose residence was outside this State, derived his income for services rendered partly within and partly without this state.
Under the provisions of I.C. § 63-3027(c) and (d), plaintiffs properly allocated their income. The judgment for plaintiffs is affirmed.
Costs to respondents.
McQUADE, C. J., TAYLOR and KNUDSON, JJ., and WEBB, D. J., concur.
WEBB, District Judge, I concur in the Court's opinion and present these additional reasons for my conclusion.
I see ambiguity in the pre-1965 statutes applicable to the taxation of the income of *119 non-residents. If we compare, in determining the definition of "sources", the key word in the statutes, the proposition of location where labor is performed with the proposition of location of the compensation paying institution, we rightly conclude that the legislature must have meant the former. Barraclough v. State Tax Commissioner, 75 Idaho 4, 10, 266 P.2d 371. But, if we compare the first proposition with a proposition of location of the sole "business situs" or, if you prefer, the location of the "base of operations" for the day's work, it is not nearly so easy to find the legislative intent from the statutes themselves. Fortunately, we are not this limited.
It is recognized law in this State that when a statute is amended, it is presumed that the legislature intended a different meaning from the statute before its amendment. Pigg v. Brockman, 79 Idaho 233, 244, 314 P.2d 609 (1957); Wellard v. Marcum, 82 Idaho 232, 239, 351 P.2d 482 (1960); Messenger v. Burns, 86 Idaho 26, 382 P.2d 913 (1963). This rule of statutory construction is helpful not only in determining the meaning of the new law but also in interpreting the old. 82 C.J.S. Statutes § 384, p. 899, Houck & Sons v. Ellis, 229 Or. 21, 366 P.2d 166, 170 (Oregon 1961). As the Oregon Court there states:
"* * * any essential change in the phraseology of a statutory provision indicates an intention on the legislature's part to change the meaning of such provision rather than to interpret it." Id., p. 171.
In our case, there is not only a wholesale change in the wording of the new law (63-3027, I.C.) but there is a statement by the legislature that change is exactly what they intended:
"* * * amending section 63-3027, Idaho Code, to change the method of allocating and taxing income from multi-state business operations." (Emphasis supplied). S.L.I., 1965, c. 254, p. 639.
In the new law it is precisely stated that the income of a non-resident will be taxed where:
"* * * (3) some of the service is performed in the state and (i) the base of operations * * * is in the state * * *." 63-3027(n) (3).
It follows, then, that if we now tax all of the income of a taxpayer in the plaintiff's situation, and if the new law is a change, we did not previously determine his taxable income dependent upon a "base of operations". Therefore, the first proposition was, before 1965, the correct one.
Moreover, I think it can be correctly said that the power of a state to tax the incomes of non-residents should be exercised only to the extent that the legislature clearly and unambiguously authorizes it. A court certainly ought not to extend the power of taxation beyond that necessarily contemplated by the legislature. To adopt the Tax Collector's position in this case would be to do exactly that. The resolution of ambiguities in this area ought to be in favor of the taxpayer, not the state.
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605 F.2d 557
Pattersonv.Jago
No. 78-3613
United States Court of Appeals, Sixth Circuit
9/14/79
S.D.Ohio
AFFIRMED
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REVISED, JUNE 15, 2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 31, 2012
No. 11-10458 Lyle W. Cayce
Clerk
NANCY KOEHLER,
Plaintiff - Appellant
v.
AETNA HEALTH INC,
Defendant - Appellee
Appeal from the United States District Court
for the Northern District of Texas
Before REAVLEY, HAYNES, and GRAVES, Circuit Judges.
REAVLEY, Circuit Judge:
Plaintiff-Appellant Nancy Koehler appeals the district court’s summary
judgment dismissing her suit to recover health insurance benefits under an
employee benefits plan governed by the Employee Retirement Income Security
Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001-1461. Defendant-Appellee Aetna
Health Inc., a Texas health maintenance organization (“HMO”), provides and
administers the plan’s health insurance benefits under an agreement giving
Aetna discretion to interpret the plan’s terms. Aetna refused to reimburse
Koehler for care she received from a specialist outside of the Aetna HMO to
whom she had been referred by a physician in the HMO. Aetna denied her claim
No. 11-10458
because the referral was not pre-authorized by Aetna. The district court found
as a matter of law that Aetna did not abuse its discretion in denying coverage.
We find that the plan is ambiguous and the need for pre-authorization was not
clearly stated in Aetna’s summary description of the plan. And under the
circumstances of this case it cannot be said as a matter of law that Aetna did not
abuse its discretion in denying coverage.
We REVERSE the district court’s judgment and REMAND the case for
further proceedings.
I. Standard of Review
We review a summary judgment de novo, applying the same standards as
the district court. Trinity Universal Ins. Co. v. Employers Mut. Cas. Co., 592
F.3d 687, 690 (5th Cir. 2010). Summary judgment should be affirmed “if,
viewing the evidence in the light most favorable to the non-moving party, there
is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” U.S. ex rel. Jamison v. McKesson Corp., 649 F.3d
322, 326 (5th Cir. 2011).
II. Background and Proceedings Below
Koehler suffered from chronic sleep apnea. In 2007, her primary care
physician in the HMO referred her to Dr. Raj Kakar, another doctor in the HMO.
After attempting various treatments, Dr. Kakar concluded that Koehler should
use a dental device designed to prevent her airway from closing during sleep.
After consulting with her primary care physician, Dr. Pedro Checo, Dr. Kakar
referred Koehler to a specialist outside the HMO, Dr. Marcus Whitmore. After
the May 27, 2009 referral, Dr. Whitmore fitted Koehler for the dental device on
June 2, 2009. The bill for his services was $2,300. Aetna denied coverage for
those charges, and Koehler pursued Aetna’s internal appeals process.
At Koehler’s request, Dr. Kakar wrote a letter to Aetna, dated February
10, 2010, in which he asked Aetna for a retroactive referral directing Koehler to
2
No. 11-10458
Dr. Whitmore for the device fitting. Dr. Kakar stated that “[w]e were and are
unaware of any Aetna Participating Provider as of May 27, 2009, who could have
provided the device.” Aetna upheld its initial decision denying Koelher’s claim.
Aetna cited the absence of pre-authorization for Dr. Whitmore’s services,
explaining in its denial letter that “services provided by nonparticipating
providers require a referral from an Aetna contracted provider and a prior
approval by Aetna Patient Management Department.”1
Koehler filed suit in state court on April 20, 2010. She seeks to recover
under 29 U.S.C. § 1132, which permits a plan beneficiary to bring a civil action
“to recover benefits due to him under the terms of his plan, to enforce his rights
under the terms of the plan, or to clarify his rights to future benefits under the
terms of the plan” 29 U.S.C. § 1132(a)(1)(B). Aetna removed the case to federal
court, and sought summary judgment on the ground that it “correctly denied
Koehler’s claim for benefits because the Plan excludes out-of-network services
unless such services are pre-authorized.”2 The district court granted summary
judgment for Aetna, and Koehler filed this appeal.
The parties agree that the relevant plan provisions are found in the plan’s
“Certificate of Coverage” (“COC”), which sets forth the plan’s health insurance
benefits. However, in addition to appearing in the plan, the COC’s text also
constitutes the “summary plan description” which ERISA requires plan
administrators to provide to participants and beneficiaries.3 Thus, although a
1
The letter cites two other bases for denying the claim, but Aetna did not rely on these
in its motion for summary judgment.
2
Federal jurisdiction is based on 28 U.S.C. § 1331 and 29 U.S.C. § 1132(e).
3
Title 29, United States Code, § 1021(a)(1) requires that a plan administrator “shall
cause to be furnished in accordance with section 1024(b) of [Title 29] to each participant
covered under the plan and to each beneficiary who is receiving benefits under the plan . . . a
summary plan description described in section 1022(a)(1) . . . .” 29 U.S.C. § 1021(a)(1).
Section 1024(b)(1) states that “[t]he administrator shall furnish to each participant, and each
beneficiary receiving benefits under the plan, a copy of the summary plan description . . . .”
3
No. 11-10458
plan summary is a separate document from the plan itself, in this case the
summary’s text is simply a verbatim copy of the underlying plan provisions.4 We
now relate the provisions relevant to this case.
Before coverage begins, the COC requires an insured to select a
participating provider to be his “Primary Care Provider,” or “PCP.”5 The
benefits scheme described in the COC contemplates that nearly all of an
insured’s medical care be provided by physicians in the HMO, at the direction
of the insured’s PCP. The plan does, however, provide limited coverage of
services from outside providers. That coverage is addressed in Subsection H of
the “HMO Procedure” section:
H. Out-of-Network Services
If the Member’s PCP is part of a practice group or association of
Health Professionals and Medically Necessary Covered
Benefits are not available within the PCP’s limited provider network,
the Member has the right to a Referral to a Participating
Provider outside the PCP’s limited provider network. If Medically
Necessary Covered Benefits are not available from Participating
Providers, HMO will allow a Referral to a non-participating
Provider. The following apply:
1. The request must be from a Participating Provider.
Aetna produced a copy of the COC in response to Koehler’s request for a copy of “the
summary plan description applicable to [her] claim.” Also, Aetna concedes in its appellate brief
that the regulations governing the writing and formatting of summary plan descriptions apply
to the COC.
4
Summary plan descriptions “provide communication with beneficiaries about the plan,
but . . . do not themselves constitute the terms of the plan.” CIGNA Corp. v. Amara, 131 S. Ct.
1866, 1878 (2011).
5
Many terms in the COC are printed in bold typeface. The COC’s introduction states
that terms “appear[ing] in bold type with initial capital letters” have the meanings set forth
in the COC’s “Definitions” section. We note, however, that making sense of the COC’s
provisions sometimes requires disregarding that instruction. For example, Subsection H of the
“HMO Procedure” section speaks of “a Referral to a non-participating Provider,” which is a
contradiction in terms if one applies the COC’s definition of “Referral” as “[s]pecific directions
or instructions . . . that direct a Member to a Participating Provider for Medically
Necessary care” (emphasis added).
4
No. 11-10458
2. Reasonably requested documentation must be received by
HMO.
3. Before HMO denies a Referral, a review will be conducted by
a Specialist of the same or similar specialty as the type of
Provider to whom a Referral is requested.
4. The Referral will be provided within an appropriate time, not
to exceed five business days, based on the circumstances and
the Member’s condition.
5. The Member shall not be required to change his or her PCP or
Participating Specialist to receive Medically Necessary
Covered Benefits that are not available from Participating
Providers.
6. HMO will reimburse the non-participating Provider at the
usual and customary or an agreed upon rate, less the
applicable Copayment(s).6
A number of provisions in the COC address pre-authorization. On the COC’s
first page are the words “IN SOME CIRCUMSTANCES, CERTAIN MEDICAL
SERVICES ARE NOT COVERED OR MAY REQUIRE PRE-AUTHORIZATION
BY HMO.” Subsection J of the “HMO Procedure” section is titled “Pre-
Authorization.” That subsection states, “Certain services and supplies under
this Certificate may require pre-authorization by HMO to determine if they are
Covered Benefits under this Certificate.”
A separate section of the COC, titled “Medically Necessary Covered
Benefits,” includes several subsections devoted to particular categories of
medical treatment. Several of these include explicit statements that the
particular service requires pre-authorization. Notable among these provisions
is language specifically requiring pre-authorization for services rendered
pursuant to a standing referral to a specialist inside or outside of the HMO.7
6
We will refer to this provision below simply as “Subsection H.”
7
The standing referral paragraph reads:
If a Member requires ongoing care from a Specialist, the Member may receive
5
No. 11-10458
Also notable is the specifically stated pre-authorization requirement for second
opinions from outside providers.8 The parties agree, however, that Dr.
Whitmore’s services did not take the form of a second opinion and were not
provided pursuant to a standing referral.
Subsection I of the COC’s “General Provisions” section disavows liability
for any service from a non-participating provider without “prior arrangements
. . . made by HMO”:
Except in cases of Medical Emergency or Urgent Care, or as
otherwise provided in this Certificate, services are available only from
Participating Providers. HMO shall have no liability or obligation
whatsoever on account of any service or benefit sought or received by
a Member from any non-participating Provider or other person,
entity, institution or organization unless prior arrangements are made
by HMO.
Finally, language in the “Exclusions and Limitations” section states that covered
benefits do not include “[u]nauthorized services, including any service obtained
by or on behalf of a Member without a Referral issued by the Member’s PCP
or pre-authorized by HMO.”
III. Discussion
a standing Referral to such Specialist. If PCP in consultation with an HMO
Medical Director and an appropriate Specialist determines that a standing
Referral is warranted, the PCP shall make the Referral to a Specialist. This
standing Referral shall be pursuant to a treatment plan approved by the HMO
Medical Director in consultation with the PCP, Specialist, and Member.
The term “Specialist” is defined as “[a] Physician who provides medical care in any generally
accepted medical or surgical specialty or subspeciality.”
8
The second opinion paragraph reads:
Member may request a second opinion regarding a proposed surgery or course of
treatment recommended by Member’s PCP or a Specialist. Second opinions may
be obtained on referral from the Member’s PCP. Requests for second opinions
from non-participating Providers must be pre-authorized.
6
No. 11-10458
A. Interpreting the COC
Because the plan gives Aetna discretion to interpret the plan’s terms, we
review Aetna’s interpretation for abuse-of-discretion. Firestone Tire & Rubber
Co. v. Bruch, 489 U.S. 101, 115, 109 S. Ct. 948, 957 (1989). “The most
important” factor in that analysis is “whether the administrator’s interpretation
is consistent with a fair reading of the plan . . . .” Gosselink v. American Tel.,
Inc., 272 F.3d 722, 727 (5th Cir. 2001).9 In interpreting an ERISA plan, we give
its language the ordinary and generally accepted meaning. See Provident Life
& Acc. Ins. Co. v. Sharpless, 364 F.3d 634, 641 (5th Cir. 2004).
Koehler contends that Subsection H of the COC requires only that a doctor
within the HMO send Aetna a request for ad hoc referral to an outside physician,
and that the request can be made after the patient receives the services. Aetna
contends that the pre-authorization requirement is unambiguously expressed in
Subsection H, Subsection I of the COC’s “General Provisions” section, and the
language in the “Exclusions and Limitations” section.
We find that the COC is ambiguous with respect to pre-authorization for
outside services rendered on an ad hoc basis. Subsection H seems to
contemplate that at some point a participating provider will submit a request for
Aetna to approve the outside referral. But it does not state when that request
must occur relative to the provision of services, and it does not state that failing
to submit that request beforehand will irrevocably forfeit whatever coverage the
insured would otherwise have enjoyed. Considering other provisions in the
COC, there are the statements on pages one and seven saying that some services
9
Other factors often considered include any unanticipated costs resulting from different
interpretations of the plan, the internal consistency of the plan under the administrator’s
interpretation, any relevant regulations formulated by the appropriate administrative
agencies, and the factual background of the determination and any inferences of bad faith.
Wildbur v. ARCO Chemical Co., 974 F.2d 631, 637-38 (5th Cir. 1992). If the plan
administrator both evaluates and pays claims, then courts also consider the administrator’s
conflict of interest. Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 111-12, 128 S. Ct. 2343, 2347-
48 (2008).
7
No. 11-10458
may require “pre-authorization,” and then in provisions for a number of services
“pre-authorization” is expressly required, but not in Subsection H. As for the
exclusion of services obtained “without a Referral issued by the Member’s
PCP or pre-authorized by HMO,” that language at most requires that one of its
two disjuncts be satisfied.
Then there is the sentence in Subsection I of the “General Provisions”
section speaking of “prior arrangements . . . made by HMO” as a prerequisite for
any services from an outside provider to be covered. That language does not
unambiguously require pre-authorization in the sense of a claim-by-claim
process for which the patient or his doctors would be responsible. “[P]rior
arrangements” has a broader meaning than “pre-authorization,” and while the
latter term is repeatedly used to indicate a pre-authorization requirement
elsewhere in the COC, “prior arrangements” is not. Also, Subsection I is in the
“General Provisions” section, not the “HMO Procedure” section, where one would
expect to find procedures applicable to services inside and outside the HMO.
And the qualifying words “. . . made by HMO,” suggests that the “prior
arrangements” refer to some undertaking that Aetna would initiate, whereas
pre-authorization would be initiated by the patient or her doctors in the HMO.
Moreover, the “prior arrangements” language encompasses all outside services,
including second opinions and outside services under a standing referral. The
specific pre-authorization language in the provisions devoted to those services
suggests that Subsection I’s reference to “prior arrangements” has a different
meaning, possibly referring to a one-time undertaking that Aetna wished to
complete in the initial organization of the HMO before being obliged to process
claims for services by outside providers.
Finally, there is the COC’s assurance that Aetna “will not use any decision
making process that operates to deny Medically Necessary care that is a
Covered Benefit . . . .” That promise seems to disavow relying on a harmless
8
No. 11-10458
procedural lapse as a basis for refusing reimbursement for services that would
otherwise be covered. An insured’s receiving outside services without pre-
authorization does not prejudice Aetna’s ability to refuse coverage if it concludes
that the services were not medically necessary or that they were in fact available
within the HMO. Nor does making an after-the-fact determination prejudice
Aetna’s ability to refuse to pay more than a reasonable charge for the outside
provider’s services.
As noted above, the plan gives Aetna discretion to resolve ambiguities in
the plan language in its favor. However, Aetna’s discretion to resolve
ambiguities in the plan does not extend to the plan summary, notwithstanding
that in this instance the summary is a verbatim copy of text in the plan.
See Rhorer v. Raytheon Eng’rs & Constructors, Inc., 181 F.3d 634, 642 (5th Cir.
1999.10 Ambiguities in a plan summary are resolved in favor of the beneficiary.
Id. (holding that contra proferentum applies when interpreting a plan summary
even “when the plan administrator has expressly been given discretion to
interpret the plan”); Hansen v. Continental Ins. Co. 940 F.2d 971, 982 (5th Cir.
1991). That is because ERISA requires that plan summaries be “written in a
manner calculated to be understood by the average plan participant, and . . .
sufficiently accurate and comprehensive to reasonably apprise such participants
and beneficiaries of their rights and obligations under the plan.” 29 U.S.C.
§ 1022(a); see also, e.g., Harris Methodist Ft. Worth v. Sales Support Servs. Inc.
Emp. Health Care Plan, 426 F.3d 330, 336 (5th Cir. 2005) (noting that plan
summaries are interpreted from the perspective of a layperson). Therefore,
when considering the COC as a plan summary we must resolve its ambiguity
10
Cf. Hansen, 940 F.2d at 982 (refusing to give effect to language in a plan summary
stating that all rights are governed by the underlying plan, because that would “wholly
undermine” the statutory “requirement of an accurate and comprehensive summary plan
description.”) The district court’s reliance on High v. E-Systems Inc., 459 F.3d 573 (5th Cir.
2006), is mistaken. That case did not concern a discrepancy between the administrator’s
interpretation of the plan and the terms of the plan summary. Id. at 576.
9
No. 11-10458
against requiring pre-authorization of ad hoc outside services. That of course
diverges from the interpretation Aetna has given to identical language in the
underlying plan.11 If that outcome seems puzzling, the anomaly is traceable to
Aetna’s curious decision to use identical language in both plan and plan
summary–documents that serve quite different functions and are accordingly
subject to differing interpretative standards. See Hansen, 940 F.2d at 981.
In Hansen, we held that the terms of the plan summary control over
inconsistent terms in the underlying plan. 940 F.2d at 981. And in Rhorer we
held that the employer/administrator’s “interpretation of the plan [was] legally
incorrect” because it conflicted with one possible interpretation of ambiguous
language in the plan summary. 181 F.3d at 642. Those cases preceded CIGNA
Corp. v. Amara, 131 S. Ct. 1866 (2011), in which the Supreme Court held that
the text of § 1132(a)(1)(B) does not authorize courts to enforce the terms of a plan
summary, because that provision only authorizes enforcement of the “‘terms of
the plan.’”12 Section 1132(a)(1)(B) does, however, allow courts to “look outside
the plan’s written language in deciding what those terms are, i.e., what the
language means . . . .” CIGNA, 131 S Ct. at 1877. Also, even if the plan’s
language unambiguously supports the administrator’s decision, a beneficiary
may still seek to hold the administrator to conflicting terms in the plan
11
Typically, the plan summary is not a verbatim copy of the text of the plan itself. See
Hansen, 940 F.2d at 981 (“[T]he very purpose of having a summary description of the policy
is to enable the average participant in the plan to understand readily the general features of
the policy, precisely so that the average participant need not become expert in each and every
one of the requirements, provisos, conditions, and qualifications of the policy and its legal
terminology.”)
12
CIGNA, 131 S. Ct. at 1877 (quoting 29 U.S.C. § 1132(a)(1)(B) (emphasis added in
CIGNA removed)); see also id. at 1877-78.
10
No. 11-10458
summary through a breach-of-fiduciary-duty claim under § 1132(a)(3). CIGNA,
131 S. Ct. at 1878-82.13
Thus, CIGNA changes our case law to the extent that the plan text
ultimately controls the administrator’s obligations in a § 1132(a)(1)(B) action,
but CIGNA does not disturb our prior holdings that (1) ambiguous plan language
be given a meaning as close as possible to what is said in the plan summary, and
(2) plan summaries be interpreted in light of the applicable statutes and
regulations. See McCall v. Burlington Northern/Santa Fe. Co., 237 F.3d 506,
512 (5th Cir. 2000); Hansen, 940 F.2d at 980-81; Rhorer, 181 F.3d at 641-42.
Those regulations require considerably greater clarity than the COC provides.14
For example,“restrictive plan provisions,” like a pre-authorization requirement,
“need not be disclosed . . . in close conjunction with the description or summary
of benefits,” but only if “adjacent to the benefit description the page on which the
restrictions are described is noted.” 29 C.F.R. § 2520.102-2(b).15 The plan does
13
Section 1132(a)(3) permits a beneficiary to seek equitable relief “(A) . . . enjoin[ing]
any act or practice which violates any provision of [29 U.S.C. §§ 1001-1119c] or the terms of
the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii)
to enforce any provisions of [29 U.S.C. §§ 1001-1119c] or the terms of the plan.” Section
1132(a)(3) supplies a “catchall” or “safety net, offering appropriate equitable relief for injuries
caused by violations that § [1132] does not elsewhere adequately remedy.” Varity Corp. v.
Howe, 516 U.S. 489, 512, 116 S. Ct. 1065, 1078 (1996).
14
See, e.g., 29 C.F.R. § 2520.102-3(l)(2) (requiring that a plan summary “clearly
identify[] circumstances which may result in disqualification, ineligibility, or denial, loss,
forfeiture, suspension, offset, [or] reduction . . . .”); 29 C.F.R. § 2520.102-2(b) (requiring that
the summary’s format “not have the effect [of] misleading, misinforming or failing to inform
participants and beneficiaries . . . ,” and that “[a]ny description of exception[s], limitations,
reductions, and other restrictions of plan benefits shall not be minimized, rendered obscure or
otherwise made to appear unimportant.”)
15
This regulation states in full:
The format of the summary plan description must not have the effect to
misleading, misinforming or failing to inform participants and beneficiaries. Any
description of exception, limitations, reductions, and other restrictions of plan
benefits shall not be minimized, rendered obscure or otherwise made to appear
unimportant. Such exceptions, limitations, reductions, or restrictions of plan
benefits shall be described or summarized in a manner not less prominent than the
11
No. 11-10458
not preclude Aetna from requiring pre-authorization for ad hoc services from
outside doctors in the future, so long as it provides a plan summary that
expresses that requirement with the clarity that ERISA requires.16 Aetna having
failed to do that, we find that it has not given a fair reading to the plan.17
We next consider the facts surrounding the denial of the claim and
evidence of bad faith, Rhorer, 181 F.3d at 643, along with Aetna’s conflict of
interest as the entity that both evaluates and pays claims. Glenn, 554 U.S. at
115, 128 S. Ct. at 2347. The district court concluded that “[Koehler] does not
allege any facts that would rise to the level of bad faith considered by Rhorer, or
any level of bad faith for that matter.”18 We disagree.
In Rhorer, we found “some evidence, although slight, that the plan
administrator had acted in bad faith” in refusing to pay optional life insurance
style, captions, printing type, and prominence used to describe or summarize plan
benefits. The advantages and disadvantages of the plan shall be presented without
either exaggerating the benefits or minimizing the limitations. The description or
summary of restrictive plan provisions need not be disclosed in the summary plan
description in close conjunction with the description or summary of benefits,
provided that adjacent to the benefit description the page on which the restrictions
are described is noted.
29 C.F.R. § 2520.102-2(b).
16
See Wise v. El Paso Natural Gas Co., 986 F.2d 929, 933, 938 (5th Cir. 1993) (refusing
to consider outdated summaries’ unconditional promises of health benefits upon retirement,
because plaintiffs retired over a year after their employer/plan-administrator had published
a revised plan summary that accurately reflected its right to amend or terminate post-
retirement benefits).
17
See Hansen, 940 F.2d at 980 (“‘It is grossly unfair to . . . disqualify [an employee] from
benefits if . . . [the] conditions [which lead to the disqualification] were stated in a misleading
or incomprehensible manner in the plan booklets.’” (quoting H.R.Rep. No. 93-533, 93d Cong.,
2d Sess., reprinted in 1974 U.S. Code Cong. & Admin. News 4639, 4646) (bracketing added in
Hansen)).
18
The district court also observed that Dr. Whitmore’s services may not have been
medically necessary, and that they may in fact have been available within the HMO. But
Aetna did not reach those questions in evaluating Koehler’s claim, and courts reviewing an
administrator’s denial of benefits consider only the actual basis on which the administrator
denied the claim, “not its post-hoc rationalization[s].” Robinson v. Aetna Life Ins. Co., 443 F.3d
389, 395-96 n.4 (5th Cir. 2006).
12
No. 11-10458
because the decedent had not returned to active, full-time employment in the
period between his enrollment in the plan and his death. 181 F.2d at 643. The
administrator had enrolled the decedent in the plan and accepted his premiums
for the extra life insurance, all the while knowing that his declining health
would not permit him to return to active employment. Id. at 638, 643. Also, the
administrator subsequently sought to revoke the life insurance shortly before the
decedent died. Id. at 643-44. “Though far from conclusive,” we found that those
circumstances “smack[ed] of bad faith” and precluded summary judgment for the
administrator on the bad-faith factor. Id. at 644. Here, there is the inadequate
summary and evidence that Aetna failed to apprise Dr. Rajak and Dr. Checo,
Koehler’s doctors in the HMO, that they should not refer patients to outside
providers without requesting permission from Aetna beforehand. As in Rhorer,
this does not conclusively establish bad faith. But it suggests a device to cause
insureds to inadvertently forfeit coverage through ignorance of the correct
procedures. Given Aetna’s conflict of interest, it smacks of bad faith to invoke
pre-authorization if that requirement is unknown to both doctors and patients
in the HMO. See Glenn, 554 U.S. at 115, 128 S. Ct. at 2347.
We have held that Aetna relied on a legally incorrect interpretation of
ambiguous plan language, and that Aetna violated ERISA regulations in
providing an inadequate plan summary. We do not address what more, if
anything, Koehler must show in order to establish that Aetna abused its
discretion.19 Though we also hold that there is some evidence of bad faith, we
express no opinion on whether Koehler must demonstrate bad faith in order to
recover. See Jones v. SONAT, Civ. Master Emp. Ben. Plan. Admin. Cmte., 997
F.2d 113, 116 (5th Cir. 1993) (A denial based on a legally incorrect interpretation
of a plan is an abuse of discretion if it benefits the plan fiduciary at the expense
19
We note that there is no right to a jury trial in ERISA denial-of-benefits cases.
Calamia v. Spivey, 632 F.2d 1235, 1236-37 (5th Cir. 1980).
13
No. 11-10458
of the beneficiary, unless the decision can be justified “in terms of greater benefit
to the class of Plan participants and beneficiaries.”)
B. Exhaustion of Administrative Remedies
We also leave for consideration on remand Aetna’s argument that Koehler
had failed to exhaust her administrative remedies, which the district court did
not reach in its summary judgment ruling. We note, however, that under 29
C.F.R. § 2560.503-1(b), an ERISA benefit plan must “establish and maintain
reasonable procedures governing the filing of benefit claims, notification of
benefit determinations, and appeal of adverse benefit determinations . . . .”
Procedures cannot be considered reasonable unless they “do not contain any
provision, and are not administered in a way, that unduly inhibits or hampers
the initiation or processing of claims for benefits.” 29 C.F.R. § 2560.503-1(b)(3).
“In the case of the failure of a plan to establish or follow claims procedures
consistent with the requirements of [29 C.F.R. § 2560.503-1] . . . a claimant shall
be deemed to have exhausted the administrative remedies available under the
plan and shall be entitled to pursue any available remedies under [29 U.S.C.
§ 1132(a)]. . . .” It is difficult to see how Aetna’s leaving both Koehler and her
doctors ignorant of the pre-authorization requirement would not “inhibit or
hamper[]” her from initiating the procedures necessary for her to realize her
entitlements under the plan.
IV. CONCLUSION
The district court’s judgment is REVERSED and the case is REMANDED.
14
No. 11-10458
HAYNES, Circuit Judge, concurring in part:
I agree that the decision of the district court should be reversed.
However, I have reviewed the provisions of the plan so carefully and thoroughly
set forth in the majority opinion. Taken as a whole, I cannot read these
provisions to require preauthorization for this particular circumstance as a
condition precedent to any recovery regardless of any other circumstances.
Thus, I conclude there is no ambiguity, and I would hold that the plan
administrator abused its discretion in concluding to the contrary. However,
other reasons were given for denial of benefits, so I concur in remanding for
purposes of considering those issues.
15
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187 S.E.2d 462 (1972)
14 N.C. App. 97
STATE of North Carolina
v.
George PARKS.
No. 7223SC188.
Court of Appeals of North Carolina.
March 29, 1972.
Certiorari Denied May 2, 1972.
*463 Atty. Gen. Robert Morgan by Associate Atty. Gen. Charles A. Lloyd for the State.
Franklin Smith, Elkin, for defendant appellant.
Certiorari Denied by Supreme Court May 2, 1972.
BRITT, Judge.
Defendant assigns as error the denial of his motion to suppress the State's evidence consisting of two guns found in an automobile near the scene of the shooting, contending an illegal "search and seizure." We find no merit in this contention.
Pertinent testimony of Deputy Sheriff McCann with respect to this assignment of error is summarized thusly: He was on duty on the night of 12 June 1971 and around midnight received a call over the radio relative to a shooting. He immediately went to Gentry's store and on arrival saw that Tommy Lee Triplett had been shot. The victim was lying on the ground; defendant was lying on the ground beside the victim with Tommy Redding holding defendant down. They were near the driver's side of a 1960 Ford that defendant had been driving. While the victim and defendant were being placed in an ambulance, Officer McCann opened the car door and saw two guns lying on the driver's seat under the steering wheel; "the guns were laying there in visible sight." One of the guns was a .32 revolver and the other a .38 revolver. The .32 had been recently fired and contained five unspent cartridges with an empty round in the chamber. A pathologist testified that the victim died as the result of bullet wounds to vital internal organs.
Neither the Fourth Amendment nor G.S. § 15-27 is applicable where no search is made; the law does not prohibit a seizure without a warrant by an officer in the discharge of his official duties where the article seized is in plain view. State v. Howard, 274 N.C. 186, 162 S.E.2d 495 (1968). The limits of reasonableness which are placed upon searches are equally applicable to seizures, and whether a search or seizure is reasonable is to be determined on the facts of the individual case. State v. Howard, supra. We think the reasoning and authorities set forth in State v. Howard, supra, and in State v. *464 Fry, 13 N.C.App. 39, 185 S.E.2d 256 (1971) are applicable to this case and no useful purpose would be served by a repetition of the reasoning and authorities set forth in those opinions.
Defendant assigns as error the denial of his motion for nonsuit interposed at the close of all the evidence. The record reveals that there was no exception taken at that time and the exception under this assignment of error in defendant's brief is that taken at the denial of his motion at the close of the State's evidence. Where defendant introduces evidence, the motion for nonsuit at the close of the State's evidence is waived, and a renewed motion must be made at the close of all the evidence. State v. Prince, 270 N.C. 769, 154 S.E.2d 897 (1967). In such instance the assignment of error should be based on the second exception. State v. Cotten, 2 N.C.App. 305, 163 S.E.2d 100 (1968). In any criminal case upon motion for nonsuit all the evidence admitted must be considered in the light most favorable to the State, giving it the benefit of every reasonable inference to be drawn therefrom, and so much of the defendant's evidence as is favorable to the State must also be considered. State v. McWilliams, 277 N.C. 680, 178 S.E.2d 476 (1971); State v. Cutler, 271 N.C. 379, 156 S.E.2d 679 (1967). A review of the evidence in this case, taking the defendant's and State's evidence together, leaves no question but that the evidence was sufficient to withstand a nonsuit motion even if it had been properly presented on appeal.
Defendant's contention that the court erred in denying his motion to dismiss the charge of second degree murder and submit the case to the jury only on the issue of manslaughter is untenable since if error was committed, it was not prejudicial to defendant inasmuch as the jury answered favorably to defendant on this point by returning a verdict of manslaughter. State v. Brannon, 234 N.C. 474, 67 S.E.2d 633 (1951).
Defendant presents four assignments of error concerning the argument of the solicitor to the jury. The control of the argument of the solicitor and counsel must be left largely to the discretion of the trial court, and an impropriety must be sufficiently grave to be prejudicial in order to entitle defendant to a new trial. State v. Seipel, 252 N.C. 335, 113 S.E.2d 432 (1960). We find nothing in the solicitor's argument in this case that has been held to be condemned conduct sufficient to be prejudicial. See 2 Strong, N.C. Index 2d, Criminal Law, § 102, p. 64 et seq.
We have reviewed the other assignments of error brought forward and argued in defendant's brief but find them without merit. They are all overruled.
No Error.
CAMPBELL and GRAHAM, JJ., concur.
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528 F.2d 688
Louise BOND, Individually and on behalf of her minorchildren, et al., Plaintiffs-Appellees,v.Wayne A. STANTON, Individually and in his capacity asAdministrator of the Indiana State Department ofPublic Welfare, et al., Defendants-Appellants.
No. 75--1459.
United States Court of Appeals,Seventh Circuit.
Argued Oct. 31, 1975.Decided Jan. 7, 1976.Certiorari Granted June 1, 1976.See 96 S.Ct. 2224.
Theodore L. Sendak, Atty. Gen., Donald P. Bogard, Asst. Atty. Gen., Indianapolis, Ind., for defendants-appellants.
Ivan E. Bodensteiner, Kenneth A. Rathert, Valparaiso University School of Law Valparaiso, Ind., Seymour Moskowitz, Gary, Ind., for plaintiffs-appellees.
Before STEVENS, Circuit Justice,* TONE, Circuit Judge, and HOFFMAN, Senior District Judge.**
TONE, Circuit Judge.
1
This appeal presents the question of whether the eleventh amendment bars the assessment of attorneys' fees against state officials sued in their official capacity under 42 U.S.C. § 1983. We hold that it does not, because we consider ourselves bound by the Supreme Court's summary affirmance in Sims v. Amos, 340 F.Supp. 691 (M.D.Ala.), aff'd, 409 U.S. 942, 93 S.Ct. 290, 34 L.Ed.2d 215 (1972).
2
Plaintiffs brought this class action to compel the defendant Indiana officials to comply with an amendment to Title XIX of the Social Security Act, 42 U.S.C. §§ 1396--1396g, which was added in 1967. That amendment, 42 U.S.C. § 1396d(a) (4)(B), required the states to adopt an early and periodic screening, diagnosis, and treatment (EPSDT) program for all Medicaid-eligible children, covering those under six years of age by February 7, 1972, and those under twenty one by July 1, 1973. When the defendant officials failed to meet either deadline, plaintiffs brought this action. The District Court found that defendants had failed to comply with the amendment and ordered them to do so by July 1, 1974, reserving the question of attorneys' fees. 372 F.Supp. 872 (N.D.Ind.1974). This court affirmed. 504 F.2d 1246 (7th Cir. 1974). Later, in an unpublished order, the District Court assessed attorneys' fees against defendants in their official capacities in the amount of $2,366. The award was based on the private attorney general theory, now defunct by reason of Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975), and on the defendants' bad faith both in failing to comply with the requirements of federal law before the action was commenced and in the course of the litigation. This is an appeal from that order.
3
A federal court has inherent power to assess attorneys' fees against a losing party who has acted in bad faith. See Alyeska Pipeline Service Co. v. Wilderness Society, supra, 421 U.S. at 259, 95 S.Ct. 1612; F. D. Rich Co. v. Industrial Lumber Co., 417 U.S. 116, 129, 94 S.Ct. 2157, 40 L.Ed.2d 703 (1974). The bad faith which is the basis for the award may be in the conduct which necessitated the action or in conduct occurring during the course of the action. Hall v. Cole, 412 U.S. 1, 15, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973).
4
The District Court's finding of bad faith in this case is amply supported by the evidence. The defendant state officials, disregarding their clear legal duty, were, in the words of the District Court, 'more than two years late in even attempting to implement a statewide EPSDT program.' It was this conduct which necessitated the present injunctive suit. Cf. Doe v. Poelker, 515 F.2d 541, 548 (8th Cir. 1975); Fairley v. Patterson, 493 F.2d 598, 606 (5th Cir. 1974). In addition, defendants, after suit was filed, 'continually asserted compliance with HEW requirements in the face of documentation to the contrary.' Stringent as the standards for establishing bad faith may be, Satoskar v. Indiana Real Estate Commission, 517 F.2d 696, 698 (7th Cir. 1975), they were more than satisfied by the facts before us. The award of attorneys' fees was therefore justified unless barred by the Constitution.
5
As noted by the Supreme Court in Alyeska, supra, 421 U.S. at 269, n. 44, 95 S.Ct. 1612, and by us in Satoskar, supra, 517 F.2d at 698 n.,1 the circuits are divided on the question of whether the eleventh amendment prohibits assessment of attorneys' fees against a state or state officers acting in their official capacity. Courts have also differed about whether lower federal courts faced with that question are bound by the Supreme Court's summary affirmance of Sims v. Amos, supra.2 In that case a three-judge court, after finding malapportionment in the Alabama legislature, 336 F.Supp. 924, awarded attorneys' fees and costs to the plaintiffs, 340 F.Supp. 691. It is not clear from the second opinion of the three-judge court in Sims, 340 F.Supp. 691, which dealt with attorneys' fees and costs, whether the defendant state officials asserted their constitutional immunity, although the court did say in a footnote that the state had no power to impart any immunity to is officers 'from (an) injunction or from its consequences, including court costs incident thereto.' 340 F.Supp. at 694 n. 8. The Supreme Court, however, will consider a claim of immunity under the eleventh amendment even though it was not raised in the trial court. Edelman v. Jordan, supra, 415 U.S. at 677--678, 94 S.Ct. 1347. And, in their jurisdictional statement filed in the Supreme Court, the Sims defendants specifically raised the attorneys' fees issue, 409 U.S. 942, 93 S.Ct. 290, 34 L.Ed.2d 215, and asserted that the award of attorneys' fees against 'elected state officials sued in their official capacity . . . was tantamount to the award of a monetary judgment against the State of Alabama in direct violation of the doctrine of sovereign immunity.' See Newman v. Alabama, supra, 522 F.2d at 74 (Gewin, J., dissenting). A state's sovereign immunity was historically, see Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), the basis for the line of cases culminating in the present doctrine that the eleventh amendment governs suits against a state by its own citizens, even though the literal words of the amendment refer only to suits 'by Citizens of another State, or by Citizens or Subjects of any Foreign State.' See Edelman v. Jordan, supra, 415 U.S. at 663, 94 S.Ct. 1347. See also Employees of the Dept. of Public Health & Welfare v. Department of Public Health & Welfare, 411 U.S. 279, 280, 284, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973); compare Mr. Justice Marshall's concurrence, 411 U.S. at 290--294, 93 S.Ct. at 1620--1622, and Mr. Justice Brennan's dissenting remarks at 411 U.S. at 309--315, 93 S.Ct. at 1630--1633, and in Yeomans v. Kentucky, --- U.S. ---, ---, 96 S.Ct. 404, 46 L.Ed.2d 309 (1975). Accordingly, it would appear that the Sims jurisdictional statement sufficiently raised the question of whether the eleventh amendment barred the attorneys' fees award. There can be no doubt, moreover, that the Court intended to rule on the award of attorneys' fees. The initial publication of its order in theunbound volume of official reports referred only to 336 F.Supp. 924, the decision on the merits, as affirmed. As finally published, however, the order of affirmance included 340 F.Supp. 691, the decision which awarded attorneys' fees and costs. 409 U.S. 942, 93 S.Ct. 290, 34 L.Ed.2d 215. We believe that the Supreme Court's summary affirmance of the district court's award of attorneys' fees against state officials in their official capacity was a decision on the merits of the immunity issue presented to us in this case.
6
In Hicks v. Miranda, 422 U.S. 332, 344--345, 95 S.Ct. 2281, 2289, 45 L.Ed.2d 223 (1975), the Supreme Court set at rest any doubts about whether its summary disposition of a case on the merits is binding on the lower federal courts:
7
'(T)he lower courts are bound by summary decisions by this Court 'until such time as the Court informs (them) that (they) are not."
8
We do not find in Edelman v. Jordan evidence of an intention to overrule Sims or of a doctrinal development indicating that Sims would be decided differently today. Cf. Hicks v. Miranda, supra, 422 U.S. at 344, 95 S.Ct. 2281.3 Mr. Justice Rehnquist observed in Edelman that the difference between prohibited and permitted relief 'will not in many instances be that between day and night,' 415 U.S. at 667, 94 S.Ct. at 1357. The prescience of that observation is illustrated by the conflicting views of the circuits and of judges within the circuits on the question before us. Finally, the citation of Sims without comment in the footnote in Alyeska which collects the conflicting cases on the application of the eleventh amendment to attorneys' fees, 421 U.S. at 269 n. 44, 95 S.Ct. 1612, does not, in our view, show an intention to repudiate the Sims holding. A signal to the lower courts would take, we think, a clearer form than that.
9
Affirmed.
*
Mr. Justice Stevens participated initially as Circuit Judge, and on and after December 19, 1975 as Circuit Justice
**
Senior District Judge Julius J. Hoffman of the Northern District of Illinois is sitting by designation
1
In addition to the cases cited in the footnotes in Alyeska and Satoskar referred to in the text, see Gates v. Collier, 522 F.2d 81 (5th Cir. 1975) and Newman v. Alabama, 522 F.2d 71 (5th Cir. 1975) (both cases remanding issue of attorneys' fees to the district court for reconsideration); Mathews v. Bitzer, 519 F.2d 559 (2d Cir. 1975), cert. granted, --- U.S. ---, 96 S.Ct. 561, 46 L.Ed.2d 404 (1975); cf. Hoitt v. Vitek, 361 F.Supp. 1238, 1255 (D.N.H.1973), aff'd, 495 F.2d 219 (1st Cir. 1974). For a comprehensive discussion of attorneys' fees and the eleventh amendment see Note, 88 Harv.L.Rev. 1875 (1975)
2
The Ninth Circuit relied on Sims in awarding attorneys' fees in Brandenburger v. Thompson, 494 F.2d 885, 888 (9th Cir. 1974). A majority of the Fifth Circuit, sitting in banc, evidently did not view Sims as controlling in Newman v. Alabama, supra, 522 F.2d 71, when they remanded for reconsideration in light of Alyeska and Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 693 (1974), but five members of that court, speaking through Judge Gewin, felt bound by Sims. See also the companion case of Gates v. Collier, supra, 522 F.2d 81, in which Judge Tuttle, writing for himself and the five dissenters in Newman, endorsed Judge Gewin's Newman dissent. In the Sixth Circuit, two panels have not followed Sims. Jordon v. Gilligan, 500 F.2d 701, 710 (6th Cir. 1974), cert. denied, 421 U.S. 991, 95 S.Ct. 1996, 44 L.Ed.2d 481 (1975); Taylor v. Perini, 503 F.2d 899 (6th Cir. 1974), vacated for further consideration in light of Alyeska (presumably as to the part of the opinion upholding an award against a defendant individually on a private attorney general theory), 421 U.S. 982, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). In an intervening decision, Milburn v. Huecker, 500 F.2d 1279 (6th Cir. 1974), another panel permitted an award of attorneys' fees in an opinion which denies retroactive welfare benefits on the ground of Edelman's interpretation of the eleventh amendment, but, in discussing attorneys' fees, makes no reference to Edelman, or the amendment although citing Sims. Milburn was cited in Taylor only for another point. 503 F.2d at 904. Judge Edwards dissented in Taylor, arguing, inter alia, that Sims was binding. 503 F.2d 906, 907--908. Finally, the Third Circuit, in Skehan v. Board of Trustees, 501 F.2d 31, 42 (3d Cir. 1974), vacated in light of Alyeska and Wood v. Strickland, 421 U.S. 983, 95 S.Ct. 1986, 44 L.Ed.2d 475 (1975), held that Edelman 'appears to bar the award of attorneys fees from the state treasury,' and in a footnote attributes the Supreme Court's failure to overrule its summary affirmance of Sims to inadvertence. See also Sincock v. Obara, 320 F.Supp. 1098 (D.Del.1970) (three-judge court)
3
Compare the discussion in the Sixth Circuit's Jordon v. Gilligan, supra, 500 F.2d at 707--708, with Doe v. Hodgson, 500 F.2d 1206, 1207--1208 (2d Cir. 1974), and Judge Edwards dissent in Taylor v. Perini, supra, 503 F.2d at 907
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475 F.Supp.2d 1256 (2007)
GET OUTDOORS II, LLC, Plaintiff,
v.
CITY OF EL CAJON, Defendants.
No. 03-CV-1437 W(RBB).
United States District Court, S.D. Florida.
February 12, 2007.
*1257 Edward Adam Webb, Webb and Porter, Atlanta, GA, Patrick Lund, Lund Martin O'Neil, Newport Beach, CA, for Get Outdoors LLC A Nevada Limited Liability Company, Plaintiff.
Steven Eugene Boehmer, McDougal Love Eckis Smith Boehmer and Foley, El Cajon, CA, for City of El Cajon, California, Defendant.
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
WHELAN, District Judge.
On July 21,2003, Plaintiff Get Outdoors II, LLC ("Get Outdoors") commenced this action against Defendant City of El Cajon ("El Cajon") claiming that El Cajon violated Get Outdoors' First Amendment rights. El Cajon now moves for summary judgment on all claims. The Court decides the matter on the papers submitted and without oral argument pursuant to Civil Local Rule 7.1(d.1). For the reasons stated below, the Court DENIES El Cajon's summary-judgment motion.
I. BACKGROUND
Get Outdoors is a Nevada limited liability company, authorized to operate outdoor advertising signs throughout the State. El Cajon is a political subdivision of the State of California.
Get Outdoors is "pursuing opportunities in the outdoor advertising industry in Southern California." In the instant case, they seek to post signs in El Cajon for the purpose of "communicating commercial and noncommercial messages regarding products, services, ideas, candidates, issues, events, and other topics." (Pltf. Opp. at 2:5-8.) To that end, Get Outdoors negotiated with various property owners in El Cajon and arranged to lease space to display its signs. The properties are located in heavily commercial and industrial areas adjacent to major roads. On June 9, 2003, Get Outdoors submitted twelve signpermit applications to El Cajon.
On June 10, 2003, El Cajon informed Get Outdoors by correspondence that only four applications for "off premises signs" could be submitted at one time, because that was the maximum allowable number of additional off premises signs under El Cajon's Zoning Ordinance. (Decl. Jim Griffin, Ex. A.) Get Outdoors was asked to retrieve its applications, select four, and properly resubmit. Get Outdoors never resubmitted. Instead, on July 24, 2003, Get Outdoors filed its First Amended Complaint, seeking injunctive relief.
On September 30, 2003, El Cajon adopted Ordinance No. 4752 titled "An Urgency Ordinance of the City of El Cajon, Implementing New Regulations for the Placement of Signs in the City of El Cajon," repealing the Zoning Ordinance that Get Outdoors applied under. On October 6, 2003, this Court stayed the action pending final adjudication of similar cases. In 2005, the action recommenced and after a lengthy series of hearings and conferences, El Cajon moved for summary judgment on October 10, 2006.
On November 21, 2006, this Court requested supplemental briefing addressing whether El Cajon had in fact repealed the sign ordinance in effect when Get Outdoors applied for sign permits. The Court received the requested briefing from both parties and now rules on the motion.
II. LEGAL STANDARD
Summary judgment is appropriate under Rule 56(c) where the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. See Fed. R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A fact is material when, under the governing substantive *1258 law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir.1997). A dispute about a material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.
A party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The moving party can satisfy this burden in two ways: (1) by presenting evidence that negates an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. Id. at 322-23, 106 S.Ct. 2548. "Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment." T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987).
"The district court may limit its review to the documents submitted for the purpose of summary judgment and those parts of the record specifically referenced therein." Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1030 (9th Cir.2001). Therefore, the court is not obligated "to scour the record in search of a genuine issue of triable fact." Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir.1996) (citing Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th Cir.1995)). If the moving party fails to discharge this initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).
If the moving party meets this initial burden, the nonmoving party cannot defeat summary judgment merely by demonstrating "that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir.1995) (citing Anderson, 477 U.S. at 252, 106 S.Ct. 2505) ("The mere existence of a scintilla of evidence in support of the nonmoving party's position is not sufficient."). Rather, the nonmoving party must "go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 56(e)).
When making this determination, the court must view all inferences drawn from the underlying facts in the light most favorable to the nonmoving party. See Matsushita, 475 U.S. at 587, 106 S.Ct. 1348. "Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, [when] he [or she] is ruling on a motion for summary judgment." Anderson, 477 U.S. at 255, 106 S.Ct. 2505.
III. DISCUSSION
El Cajon moves for summary judgment on the grounds that the case: (1) is moot because El Cajon enacted a new sign ordinance and thus the one Get Outdoors applied under is no longer in effect; and (2) Get Outdoors lacks standing to claim damages because they never received a permit.
A. MOOTNESS
"Mootness is like standing, in that if it turns out that resolution of the issue presented cannot really affect the plaintiffs rights, there is, generally speaking, *1259 no case or controversy for the courts to adjudicate; no real relief can be awarded." Smith v. University of Washington Law School, 233 F.3d 1188, 1193 (9th Cir. 2000). An action is moot where the issues presented are no longer "live" or when the parties lack a cognizable interest in the outcome. Jacobus v. Alaska, 338 F.3d 1095, 1102 (9th Cir.2003). For instance, often a case becomes moot when a challenged law is repealed or expires. See Burke v. Barnes, 479 U.S. 361, 363, 107 S.Ct. 734, 93 L.Ed.2d 732 (1987) (bill expired during pendency of appeal, rendering moot the question of whether the president's pocket veto prevented it from becoming law); Diffenderfer v. Central Baptist Church, 404 U.S. 412, 414, 92 S.Ct. 574, 30 L.Ed.2d 567 (1972) (challenged law was repealed while case was on appeal, rendering the case moot); Princeton University v. Schmid, 455 U.S. 100, 103, 102 S.Ct. 867, 70 L.Ed.2d 855 (1982) (case mooted by substantial amendment of challenged regulations).
There are exceptions to the mootness doctrine. For example, when the defendant's conduct is a wrong "capable of repetition, yet evading direct review," or when the defendant voluntarily ceases an allegedly illegal practice but is free to resume it at any time. Native Village of Noatak v. Blatchford, 38 F.3d 1505, 1509 (9th Cir.1994) ("Noatak").
El Cajon argues that the case is moot because the former sign ordinance was repealed when the "city properly enacted permanent legislation replacing the challenged ordinance." (Def. Sup. Br. at 2:17-18, emphasis added.) Get Outdoors counters by arguing that the challenged regulation is still in effect because the ordinance enacted to adopt a new sign code (Ordinance No. 4752) expired forty-five days after it was enacted, thereby reviving the constitutionally deficient regulation. (Pl. Sup. Br. at 4:12-14.) The Court agrees with the Get Outdoors that Ordinance No. 4752 has expired. Thus, Get Outdoors' challenge is not moot.
California Government Code § 65850 defines the scope of power granted to California cities to regulate by ordinance. See Cal. Govt.Code § 65850. That power specifically includes the authority to "Regulate signs and billboards." Id. at 65850(b). The chapter further explains that any zoning ordinance imposing any regulation in Section 65850 "shall be adopted in the manner set forth in Sections 65854 to 65857." Id. at 65853. Those sections detail, in part, various procedural safeguards required before adopting an ordinance. For example, Section 65854 requires the planning commission to hold a public hearing on their recommendation and to give prior notice of the hearing to the public. Id. at 65854. The required procedures are constitutionally mandated to guarantee property owners due process of law. Scott v. City of Indian Wells, 6 Cal.3d 541, 549, 99 Cal.Rptr. 745, 492 P.2d 1137 (Ca.Sup. Ct.1972).
A city, however, can adopt an urgency measure as an interim ordinance without following the aforementioned procedural safeguards, pursuant to Section 65858(a), which provides in relevant part:
Without following the procedures otherwise required prior to the adoption of a zoning ordinance, the legislative body of a . . . city . . . may adopt as an urgency measure an interim ordinance prohibiting any uses that may be in conflict with a contemplated general plan, specific plan, or zoning proposal that the legislative body, planning commission or the planning department is considering or studying or intends to study within a reasonable time . . . The interim ordinance shall be of no further force and effect 45 days from its date of adoption. After notice pursuant to Section *1260 65090 and public hearing, the legislative body may extend the interim ordinance for 10 months and 15 days and subsequently extend the interim ordinance for one year.
Cal. Govt.Code § 65858(a) (emphasis added). Other California cities have used Section 65858 to quickly address sign-ordinance challenges and any associated litigation. E.g., Covenant Media of Cal., L.L.C. v. City of Huntington Park, Cal., 377 F.Supp.2d 828, 836-837 (C.D.Cal.2005). It appears that the El Cajon City Council had similar intentions.
On September 30, 2003, the City Council unanimously passed Ordinance 4752, entitled "An Urgency Ordinance of the City of El Cajon, Implementing New Regulations for the Placement of Signs in the City of El Cajon." (Def. Sup. Br., Ex. B at 1.) The third and fourth opening recitals and Section 35 of Ordinance 4752 are of particular relevance. Those sections state:
(Third) Whereas, the Community Development Department is undertaking an independent study to assist with the City's amendment of its Municipal Code to clarify and update regulations for the placement of signs in the city of El Cajon, and anticipates changes to address those issues raised in recent lawsuits filed against the City, including THG Enterprises, Inc. V. City of El Cajon, thereby avoiding the costs and expenses associated with such litigation; and
(Fourth) Whereas, in conjunction with this Ordinance, the City shall incorporate into subsequent study, the effect of changes to the Municipal Code and its regulations of signs in the city of El Cajon, for City Council consideration and possible adoption. Section 35: This ordinance shall take effect immediately upon passage by a 4/5ths vote of the City Council, and in accordance with Government Code Section 65858, and the City Clerk shall certify to the adoption of this ordinance and cause it to be published at least once within fifteen (15) days after its adoption.
Ordinance 4752's language establishes that the El Cajon City Council (1) identified a need to update its sign regulations due to impending lawsuits, (2) was aware their Community Development Department was undertaking an independent study of proposed changes for future consideration and possible adoption, and thus (3) passed an urgency ordinance by a 4/5ths vote under Section 65858. Without an extension, Ordinance 4752 would expire as a matter of law on November 14, 2003. El Cajon has not provided the Court with any evidence that the proper actions to extend Ordinance 4752 or to enact a permanent ordinance were ever taken.
Instead, El Cajon argues that Ordinance 4752's reference to Section 65858 was a "typographical error" and should have been passed under Section 36937.[1] (Def. Sup. Br. at 2:23-3:22.) In support of this contention, El Cajon submitted a declaration by El Cajon City Attorney Morgan L. Foley. The declaration includes the following relevant sections:
3. I am familiar with the procedures required to adopt ordinances under Government Code Sections 36947 (urgency ordinance) and 65858 (interim ordinance). An urgency ordinance becomes effective immediately upon passage. An interim ordinance is in effect for a limited period of time. When I have drafted *1261 interim ordinances, I include a sunset clause indicating when the ordinance will expire. Because urgency ordinances become immediately effective, no sunset clause is included in the ordinance.
3. I drafted Ordinance 4752 which was adopted by the City of El Cajon on September 3, 2003. Ordinance 4752 was intended to be an Urgency Ordinance pursuant to Government Code Section 36947. The City Council adopted this Ordinance as an Urgency Ordinance under section 36947.[2]
5. Although the ordinance references Government Code Section 65858, this ordinance was not adopted as an interim ordinance. It was my intent and the intent of the City Council to adopt Ordinance 4752 as an urgency ordinance. The reference to Government Code section 65858(a) on page 28 of the Ordinance is a typographical error.
Apparently, El Cajon hopes the Court will alter the written language of Ordinance 4752 based on Mr. Foley's declaration. This request does not constitute a minor correction of an insignificant typographical error. Rather, substituting the number 36937 in place of 65858 would alter both the stated intent of the El Cajon City Council and legal significance of Ordinance 4752, potentially giving it permanence.[3]
Mr. Foley's declaration may be absolutely true. However, Mr. Foley is neither the Mayor of El Cajon, a City Council Member, or the City Clerk. His name does not appear anywhere in the text of Ordinance 4752. This Court does not have license to casually make a substantial alteration to an ordinance, properly passed into law by the City Council, based on one individual's declaration. Without further evidence, Ordinance 4752 must be interpreted by this Court as written. In doing so, the Court concludes that Ordinance 4752 was passed under Government Code § 65858 and has expired as a matter of law. The constitutionally challenged regulation has been revived. Thus, Get Outdoors' claims are not moot.
B. STANDING
Because the Court has concluded based on the evidence presented that Ordinance 4752 has expired, at issue is whether Get Outdoors has standing to challenge the ordinance in effect at the time of its application.
El Cajon argues that Get Outdoors lacks standing because it never received any permits. In support of this contention, El Cajon cites the "vested rights" doctrine under California state law. (Def. MSJ at 9:3-10.) However, the majority of cases El Cajon cites under this doctrine address an individual's "vested rights" in property, based on the prior issuance of a building *1262 permit. E.g.; Lakeview Dev. v. City of S. Lake Tahoe, 915 F.2d 1290, 1294 (9th Cir. 1990); Avco Cmty. Developers, Inc. v. S. Coast Reg'l Comm'n, 17 Cal.3d 785, 132 Cal.Rptr. 386, 553 P.2d 546 (Cal.1976); Taiga v. Ross, 70 Cal.App.4th 309, 321, 82 Cal.Rptr.2d 649 (Cal.Ct.App.1998). The more appropriate standard, based on Get Outdoors' claims, is the doctrine of standing under the First Amendment.
To prove standing, a plaintiff must show (1) injury in fact, (2) a causal connection between the injury and the conduct complained of, and (3) a likelihood that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). As a general rule, a party may assert only his or her own rights and cannot raise claims on behalf of parties not before the court. Secretary of State Md. v. Joseph H. Munson Co., Inc., 467 U.S. 947, 955, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984).
In the First Amendment context, however, a party may prosecute claims on behalf of third parties.
When a case concerns a challenge that a statute or ordinance is, on its face, unconstitutional, particularly in the First Amendment context, the type of facial challenge at issue affects the standing analysis. While a plaintiff must demonstrate an injury in fact, a plaintiff may in some circumstances assert not just his own constitutional rights, but also the constitutional rights of others.
Horizon Outdoor, LLC v. City of Industry, CA, 228 F.Supp.2d 1113, 1123 (C.D.Cal. 2002). Thus, facial constitutional challenges come in two varieties; A Plaintiff may seek to vindicate his own constitutional rights by arguing an ordinance is "unconstitutionally vague or . . . impermissibly restricts a protected activity." Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1033 (9th Cir.2006) quoting Foti v. City of Menlo Park, 146 F.3d 629, 635 (9th Cir.1998). Or, an individual whose own speech or expressive conduct may validly be prohibited is permitted to challenge an ordinance on its face because it is overly broad and threatens others not before the court. Brackett v. Spokane Arcades Inc., 472 U.S. 491, 503, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985). These challenges can be pled together allowing a plaintiff to argue that its own activity is protected and that the ordinance impermissibly suppresses the speech of others. See NAACP v. City of Richmond, 743 F.2d 1346, 1352 (9th Cir.1984). It is within this framework that the Court evaluates Get Outdoors' standing. Santa Monica Food Not Bombs, 450 F.3d at 1034.
As discussed above, Get Outdoors submitted twelve sign-permit applications. El Cajon responded by informing Get Outdoors that only four applications for "off premises signs" could be submitted at one time, and requesting Get Outdoors to resubmit four applications. Get Outdoors never reapplied. (Decl. Jim Griffin, Ex. A.) El Cajon, therefore, argues that Get Outdoors lacks standing because it never properly applied.
Even if the Court were to conclude that Get Outdoors never applied for a permit, it would not preclude standing. See City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 755-756, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988) ("[O]ne who is subject to the law may challenge it facially without the necessity of first applying for, and being denied, a license.") In City of Lakewood, the Supreme Court confirmed that where a statute involving expressive activity vests unbridled discretion in a government official over whether to permit or deny the activity, the plaintiff's failure to apply does not preclude standing:
*1263 Recognizing the explicit protection accorded speech and the press in the text of the First Amendment, our cases have long held that when a licensing statute allegedly vests unbridled discretion in a government official over whether to permit or deny expressive activity, one who is subject to the law may challenge it facially without the necessity of first applying for, and being denied, a license.
Id. at 755-756, 108 S.Ct. 2138.
Here, Get Outdoors alleges that the City requires prior approval before signs may be posted. (FAC at ¶ 45.) Get Outdoors also alleges that City officials "are granted a virtually limitless discretion in deciding whether permission will be granted or denied" and also "retain the discretion to circumvent or alter the applicability of the Sign Regulations without regard to any enunciated standards or guidelines." Id. Get Outdoors further asserts that the City rejected the sign applications based on a numerosity requirement that was not listed in the ordinance. Get Outdoors, therefore, argues that the City's rejection is an example of El Cajon officials exercising unbridled discretion. (Pl. Opp. at 3:1-8.)
El Cajon responds by attempting to link the numerosity requirement to the maximum number of additional off-premises signs permitted under the ordinance. (Decl. Jim Griffin, Ex. A.) This may be a valid processing restriction. However, as previously stated, this requirement is not listed in the sign ordinance and Get Outdoors has cited other concerns about insufficient application instructions that could provide the basis for future rejections. (Pl. Opp. at 3, fn. 1) El Cajon, as the moving party, bears the burden of showing that sufficient notice of the numerosity requirement is given to all potential applicants, or that Get Outdoors' applications were insufficient for a constitutional reason that is identified in the sign ordinance or some other statute. The Court finds that based on the evidence submitted, El Cajon has failed to do so and the absence of express standards in the ordinance makes it difficult to distinguish between "a licensor's legitimate denial of a permit and its illegitimate abuse of censorial power." City of Lakewood, 486 U.S. at 758, 108 S.Ct. 2138.
Moreover, aside from standing under the City of Lakewood, the Court finds that Get Outdoors also has standing under the Lujan test. Get Outdoors' concern that upon resubmission it would be subject to the "unbridled discretion" of El Cajon via unknown application requirements is sufficient to establish an injury-in-fact. Lujan, 504 U.S. at 560-561, 112 S.Ct. 2130; Santa Monica Food Not Bombs, 450 F.3d at 1034. Additionally, the two remaining prongs of the standing requirement are met because the injury alleged is linked to the sign ordinance and would likely be redressed by a decision in Get Outdoors' favor. Id. Therefore, Get Outdoors has standing to challenge the sign ordinance on its own behalf under Lujan.[4]
IV. CONCLUSION AND ORDER
In light of the foregoing, the Court DENIES El Cajon's motion for summary judgment.
IT IS SO ORDERED.
NOTES
[1] Actually, El Cajon repeatedly argues that Ordinance 4752 was meant to be passed under Section 36947, which does not exist. Morgan Foley's declaration makes the same mistake. Based on El Cajon's quoted citations, the Court assumes El Cajon and Foley meant to argue Section 36937.
[2] The Court has accurately quoted Mr. Foley's Declaration, but acknowledges three errors in the quoted portion. First, there are two paragraphs numbered as "3." Second, Ordinance 4752 was actually passed on September 30, 2003. Third, as previously stated, Section 36947 does not exist.
[3] In its Supplemental Brief, El Cajon essentially argued that Section 65858 could not be used in regards to a sign ordinance, and thus the Court should accept its "typographical error" theory because the El Cajon City Council's usage of Section 65858 was improper on its face. Apparently, instead of researching the available uses of Section 65858, El Cajon simply cited the Morgan Foley's declaration in support of its argument. (Def's Sup. Br. 3:21-27.) As the Court has shown, El Cajon and Mr. Foley's representations about Section 65858 are incorrect. E.g., Covenant Media of Cal., L.L.C., 377 F.Supp.2d at 836-837. Get Outdoors, therefore, characterizes El Cajon's "typographical error" theory as a misrepresentation, and requests the Court to issue an Order under Rule 11(c)(1)(B) directing El Cajon's counsel to show cause as to why it should not be sanctioned. While the Court is tempted by the suggestion, it currently declines to issue the requested Order.
[4] El Cajon has not expressly challenged Get Outdoors' standing to assert the right of third parties through an overbreadth facial challenge, and thus the Court need not address that issue.
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918 F.2d 957
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.Wilford Larry BROOKS, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee.
No. 90-2056.
United States Court of Appeals, Sixth Circuit.
Nov. 20, 1990.
Before KEITH and BOGGS, Circuit Judges, and CONTIE, Senior Circuit Judge.
ORDER
1
This appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit.
2
A review of the documents before the court indicates that the district court entered on September 15, 1990, an order denying appellant's motion for an enlargement of time to respond to the magistrate's report and recommendation. The appellant appealed from that order.
3
This court lacks jurisdiction as purely administrative decisions of a district court may not be appealed under 28 U.S.C. Sec. 1291. See In re Rini, 782 F.2d 603, 606-07 (6th Cir.1986). In addition, this is not a final, appealable decision as it does not terminate all issues presented in the litigation on the merits, leaving nothing to be done except to enforce by execution what has been determined. See Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 373 (1981).
4
It is ORDERED that the appeal be, and it hereby is, dismissed for lack of jurisdiction. Rule 9(b)(1), Rules of the Sixth Circuit.
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945 So.2d 520 (2006)
ANCIKOVSKY
v.
ANCIKOVSKY
No. 3D06-531, 3D06-532
District Court of Appeal of Florida, Third District
October 11, 2006.
Decision Without Published Opinion. Affirmed.
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980 So.2d 703 (2008)
STATE ex rel. Brian HOARD
v.
STATE of Louisiana.
No. 2007-KH-1665.
Supreme Court of Louisiana.
May 16, 2008.
In re Hoard, Brian; Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, No. 389-366; to the Court of Appeal, Fourth Circuit, No. 2007-K-0664.
Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.
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Petition for Writ of Mandamus Denied, Motion for Temporary Relief Denied
as Moot, and Memorandum Opinion filed November 26, 2014.
In The
Fourteenth Court of Appeals
NO. 14-14-00944-CV
IN RE AMELIA V. KELLY, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
122nd District Court
Galveston County, Texas
Trial Court Cause No. 11CV0325
MEMORANDUM OPINION
On November 25, 2014, relator Amelia V. Kelly filed a petition for writ of
mandamus in this court. See Tex. Gov’t Code § 22.221; see also Tex. R. App. P.
52. In the petition, relator asks this court to compel the Honorable John Ellisor,
presiding judge of the 122nd District Court of Galveston County, to vacate three
orders pertaining to a motion by the real party in interest to enforce the final
judgment in the underlying litigation by foreclosure of relator’s real property.
Along with her petition, relator also filed in this court a motion for temporary
relief, asking this court to stay enforcement of one of the challenged orders in
which the trial court ordered foreclosure of the subject property and a
corresponding Sheriff’s sale of the property. See Tex. R. App. P. 52.8(b), 52.10.
Just in October of this year, relator filed a petition for writ of mandamus in
this court with respect to the same orders that are challenged in the present case.
We denied relator’s previous petition. See In re Kelly, No. 14-14-00789-CV, 2014
WL 5492809, *1 (Tex. App.—Houston [14th Dist.] Oct. 30, 2014, orig.
proceeding) (mem. op., per curiam). Relator now returns with a new petition for
writ of mandamus, but presents the same issues and arguments that were contained
in the earlier petition. Relator has not identified any compelling reason for us to
reconsider our prior decision, nor are we aware of any such reason.
Accordingly, we deny relator’s petition for writ of mandamus. We further
deny as moot relator’s motion for temporary relief.
PER CURIAM
Panel consists of Justices Boyce, Jamison, and Donovan.
2
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290 S.W.3d 756 (2009)
STATE of Missouri ex rel. Jeremiah W. (Jay) NIXON, Attorney General, Respondent,
v.
RCT DEVELOPMENT ASSOCIATION, et al., Appellants.
No. WD 69789.
Missouri Court of Appeals, Western District.
June 16, 2009.
*757 Shane L. Farrow, Jefferson City, MO, for Appellants.
Michael J. Wambolt, Kansas City, MO, for Respondent.
Before THOMAS H. NEWTON, C.J., HAROLD L. LOWENSTEIN, and JAMES M. SMART, JR., JJ.
*758 THOMAS H. NEWTON, Chief Judge.
Mr. Russell Rose, Ms. Chris Ann McPherson, and Mr. Timothy Divers (Defendants) appeal from the trial court's judgment concluding they had violated section 407.020 of the Missouri Merchandising Practices Act (MPA) in connection with soliciting charitable donations. The court granted the Attorney General's request for a preliminary and permanent injunction and found Defendants jointly liable for restitution, civil penalties, and payment of $8,507 for the Attorney General's costs of investigation and prosecution. We affirm in part, reverse in part, and remand.
Factual and Procedural Background
RCT Development Association, Incorporated (RCT, Inc.) was incorporated in the State of Kansas in July of 2007. In November of 2007, Defendants registered the fictitious names "RCT Development Association" (RCT) and "Helping Our Heroes" (HOH) in Missouri. Both name registrations listed an Independence, Missouri, address and were signed by Mr. Rose. Defendants were listed as the owners of RCT, with Mr. Rose having fifty percent ownership, Ms. McPherson having forty-one percent, and Mr. Divers having nine percent. RCT was listed as the owner of HOH.
In the fall of 2007, RCT began soliciting donations in Missouri through professional fundraisers. A website, helpingouramericanheroes.com, was also set up to solicit donations. In December of 2007, "Helping Our Heroes, Inc." (HOH, Inc.) registered as a charitable organization with the Missouri Attorney General's Office, even though the corporate entity had not yet been established. A charitable organization registration statement was also filed with the Attorney General's Office for "RCT Development Association, Inc.," but it was refused as incomplete. In January of 2008, the entities "RCT Development Association, Incorporated" and "Helping Our Heroes, Incorporated" incorporated in Missouri.
In February of 2008, in response to complaints, the Missouri Attorney General's Office investigated RCT, HOH, and the website helpingouramericanheroes.com. Its investigation revealed a number of discrepancies. The website stated that HOH was a division of RCT and assisted veterans in obtaining transitional housing and down payment assistance. The site also stated that it was a 501(c)(3) charity, indicating that donations were tax deductible. Neither HOH or RCT, however, had status with the IRS as a tax-exempt charity. A page titled "Where Your Money Goes" displayed a scan of a charitable organization form from the Missouri Attorney General's Office and stated that it was HOH's annual report to the Attorney General for 2007, though it had not been filed. The form listed funds collected as $8,344.16, and indicated that one hundred percent of the funds had been allocated to fundraising. The site also included the name and telephone number for a registration specialist at the Missouri Attorney General's Office and invited visitors to contact her for verification. A news page on the site thanking donors for their Christmas contributions listed 79 individuals and organizations.
The Attorney General's Office served a civil investigative demand on Mr. Divers and discussed the discrepancies with him. When its investigator next visited the website, the website explained that its 501(c)(3) status was in progress. On a subsequent visit, the website stated that HOH was a not-for-profit corporation rather than a division of RCT, and the dollar amount on the charitable organization form changed to $7,252.16.
The Attorney General filed a petition alleging violations of the MPA, section 407.020, which prohibits, inter alia, misrepresentation *759 in connection with soliciting charitable funds. Defendants sought to dismiss the petition against them as individuals, claiming they were protected through the Kansas corporation, RTC, Inc., and the later created Missouri corporation, RCT Development Association, Inc. The Attorney General, however, alleged that at all times relevant to the petition, Defendants were soliciting donations under the names of associations and thus did not enjoy corporate protections. Defendants' motion to dismiss was denied.
At a hearing, in addition to the facts discussed, two individuals testified to being solicited for donations. The first witness, an attorney, stated that he was called on November 13, 2007, by a woman who said she was with "RCT Development." When he asked whether the organization was a 501(c)(3) charity because he was concerned about the donation being tax-deductible, the woman said yes. She also told him no portion of his donation would go to fund-raising activities. The second witness, the service manager at an auto shop, testified that he was called shortly before Christmas 2007 and asked to donate to HOH. He gave a check for a $25 donation, which he was told would feed five veterans on Christmas Day.
The trial court found the MPA had been violated by Defendants in that: HOH was misrepresented as a not-for-profit corporation when it was on file as a fictitious name registration rather than a corporation; HOH was misrepresented as a tax-exempt 501(c)(3) charity; donors were deceived into believing the Missouri Attorney General's Office endorsed their fundraising because of the inclusion of forms using its name, seal, address, phone number, and emailand separately because the helpingouramericanheroes.com website referenced an Attorney General's Office employee by name and phone number; and donors were led to believe their donations would help homeless veterans obtain housing when in fact all donations were spent on fundraising.
The trial court granted the Attorney General's request for a preliminary and permanent injunction and entered judgment. RCT, HOH, and Defendants were found jointly liable for $8344.16 in restitution to donors, payable to the Merchandising Practices Restitution Fund; $5,000 in civil penalties; and $8,507 to the State of Missouri for its costs of investigation and prosecution. This appeal followed.
Standard of Review
Our review of this court-tried case is under Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). State ex rel. Webster v. Cornelius, 729 S.W.2d 60, 63 (Mo.App. E.D.1987). We affirm the judgment unless no substantial evidence supports it, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. We view the evidence in the light most favorable to the judgment, make all reasonable inferences in its favor, and ignore contrary inferences. State v. Shaw, 847 S.W.2d 768, 771 (Mo. banc 1993).
Legal Analysis
In their first point, Defendants dispute the judgment finding them individually liable for MPA violations. They contend (1) they are not responsible for the actions of RCT, Inc., which was at all times a Kansas corporation, (2) no evidence was presented showing Defendants personally misrepresented the organizations, and (3) no evidence was presented showing Defendants were personally liable through an agency theory.
The MPA's objective is consumer protection. Gibbons v. J. Nuckolls, Inc., 216 S.W.3d 667, 669 (Mo. banc 2007). The chapter prohibits:
*760 The act, use or employment by any person of any deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression, or omission of any material fact in connection with the sale or advertisement of any merchandise in trade or commerce or the solicitation of any funds for any charitable purpose ...
§ 407.020.[1] MPA violations result from a defendant's conduct rather than a defendant's intent. State ex rel. Webster v. Eisenbeis, 775 S.W.2d 276, 278-79 (Mo. App. E.D.1989).
Where the legislature provides a statutory definition for a term, it supersedes any commonly accepted or judicially defined meaning of that term. State ex rel. Nixon v. Estes, 108 S.W.3d 795, 798 (Mo.App. W.D.2003). A "person" prohibited from unlawful practices under the MPA is:
any natural person or his legal representative, partnership, firm, for-profit or not-for-profit corporation, whether domestic or foreign, company, foundation, trust, business entity or association, and any agent, employee, salesman, partner, officer, director, member, stockholder, associate, trustee or cestui que trust thereof[.]
§ 407.010(5). Thus, MPA violations may be committed by both entities and individuals. See Gibbons, 216 S.W.3d at 669.
The trial court found Defendants jointly liable for five specific violations of the MPA in the solicitation of charitable donations. The record reflects that each of these violations may be attributed to RCT or HOHnot RCT, Inc. The evidence does not support that donors were being solicited by a Kansas corporation acting in Missouri. Nor is the fact that Defendants also owned RCT, Inc. determinative; a shared identity of owners does not by itself result in an identity of interest between entities. See, e.g., Renaissance Leasing, LLC. v. Vermeer Mfg. Co., No. WD68929, ___ S.W.3d ___, 2009 WL 1181498, at *5 (Mo.App. W.D. May 5, 2009).
The evidence also does not show that RCT, Inc. was a parent of any entity in Missouri. The purpose of fictitious name registration is to prevent fraud and inform the public of the identity of those with whom they are dealing. See Kusnetzky v. Security Ins. Co., 313 Mo. 143, 281 S.W. 47, 49 (1926). Nowhere on the fictitious name registrations for RCT or HOH does the Kansas corporation "RCT, Inc." appear. Rather, Defendants registered RCT as a fictitious entity and listed themselves individually as its owners. They then registered HOH under the name RCT and commenced soliciting donations.[2]
"Unincorporated associations have no entity status beyond the status of those persons who comprise the association." *761 Exec. Bd. of the Mo. Baptist Convention v. Carnahan, 170 S.W.3d 437, 445 (Mo.App. W.D.2005). Consequently, RCT and HOH were not legal entities separate from Defendants.[3] On these facts, we conclude that Defendants' ownership of a distinct Kansas corporation during the timeframe does not insulate them from individual liability, nor did the trial court err in finding Defendants jointly liable for the MPA violations. Defendants' first point is denied.
Award of Attorney General's Costs
In their second point, Defendants argue that the trial court erred in awarding $8,507 to the Attorney General pursuant to section 407.130 for its costs of investigation and prosecution because no evidence was offered to support the amount. Section 407.130 provides:
In any action brought under the provisions of section 407.100, the attorney general is entitled to recover as costs, in addition to normal court costs, the cost of the investigation and prosecution of any action to enforce the provisions of this chapter.
The State contends that, even if Defendants' argument is true, the trial court had statutory authority to award a discretionary amount under section 407.140, which establishes the Merchandising Practices Revolving Fund. Section 407.140(3) provides:
In any case in which the court awards damages as provided in section 407.100, there shall be added, in addition to restitution and costs, an amount equal to ten percent of the total restitution awarded, or such other amount as may be agreed upon by the parties or awarded by the court, which amount shall be paid into the state treasury to the credit of the merchandising practices revolving fund.
(Emphasis added.)
Despite the broad language of section 407.140(3), we must agree with Defendants. The trial court's order makes clear that its order to pay $8,507 was under the authority of section 407.130: the amount was awarded "for the costs [the Attorney General] incurred investigating and prosecuting this lawsuit." However, no evidence appears in the record to support the amount of $8,507. "It is well established that, as a general rule, a judgment must be supported by legally adduced evidence." Epperson v. Eise, 167 S.W.3d 229, 231 (Mo.App. E.D.2005). Moreover, section 407.130 is punitive in nature. Cornelius, 729 S.W.2d at 66. As a result, it must be strictly construed. See Cook v. Burke, 693 S.W.2d 857, 861 (Mo.App. W.D.1985).
In State ex rel. Webster v. Areaco Inv. Co., the Eastern District remanded an award under section 407.130 because an affidavit from the Attorney General's office filed after the hearing was insufficient to support the award and because the defendant was entitled to an opportunity to challenge the amount. 756 S.W.2d 633, 637 (Mo.App. E.D.1988). By contrast, in State v. Polley, we affirmed an award under section 407.130 precisely because the State had presented evidence supporting the costs at trial. 2 S.W.3d 887, 895 (Mo. App. W.D.1999). Consequently, because there is nothing in the record supporting the award of $8,507 and since the Defendants were entitled to an opportunity to challenge the amount, we find in accord with Areaco that while "[i]t is clear from the record that the Attorney General has incurred some statutorily recoverable *762 costs," we must remand for evidence of those costs. See 756 S.W.2d at 637.
Conclusion
The award of $8,507 is reversed and remanded. The judgment is otherwise affirmed.
LOWENSTEIN and SMART, JJ., Concur.
NOTES
[1] All statutory references are to RSMo 2000 and the Cumulative Supplement 2008.
[2] While Appellants rely on Fairbanks v. Chambers, 665 S.W.2d 33, 36-37 (Mo.App. W.D. 1984) to argue that the failure to include `Inc.' or some other indication of corporate status in a corporate name does not negate corporate protections, their reliance is misplaced. Fairbanks dealt with the equitable doctrine of piercing the corporate veil. In that case, the court merely states that "technical statutory noncompliance" with naming requirements in all of the company's representations is not enough to cause the loss of corporate protections. Id. at 37. Rather, because the doctrine of piercing the corporate veil is founded in equity, an improper purpose in using the corporate cloak must also be shown. See id. at 38-39. The Fairbanks court then went on to hold that the defendant could be held liable under an undisclosed principal theory. Id. at 40; see also Grote Meat Co. v. Goldenberg, 735 S.W.2d 379, 384-85 (Mo.App. E.D.1987) (discussing liability under the undisclosed principal theory). Here, however, Appellants were not acting through any corporate entity in Missouri.
[3] Although Appellants later incorporated new entities in Missouri, the restitution awarded reflects donations collected for HOH in 2007. Nor have Appellants shown that the MMPA violations were in fact committed by later-created corporate entities rather than RCT and HOH.
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39 A.3d 937 (2012)
425 N.J. Super. 94
ALPHA BEAUTY DISTRIBUTORS, INC., Plaintiff-Appellant,
v.
WINN-DIXIE STORES, INC., Fruth Pharmacy, Inc., Primary One, LLC, JPM LLC, and URM Stores, Inc., Defendants, and
C & S Wholesale Grocers, Inc., and United Natural Foods, Inc., Defendants-Respondents.
Docket No. A-3111-10T2
Superior Court of New Jersey, Appellate Division.
Submitted March 13, 2012.
Decided April 3, 2012.
*938 McCusker, Anselmi, Rosen & Carvelli, attorneys for appellant (Paul F. Carvelli and Kathleen A. Hirce, Florham Park, on the brief).
Drinker Biddle & Reath, attorneys for respondent C & S Wholesale Grocers, Inc. (Frank F. Velocci and Marita S. Erbeck, Florham Park, on the brief).
Brenner & Levine, attorneys for respondent United Natural Foods, Inc., join in *939 the brief of respondent C & S Wholesalers, Inc.
Before Judges FISHER, BAXTER and MAVEN.
The opinion of the court was delivered by
FISHER, J.A.D.
In this appeal, we consider whether the trial judge properly dismissed this action because plaintiff Alpha Beauty Distributors, Inc. did not include the claims asserted in this action or join the defendants here in a pending federal action. We conclude that the trial judge did not equitably apply the entire controversy doctrine. The core of the federal action was Alpha shareholder Bebert Azran's claim that the two other shareholders, Noel and Reid Kleinman, breached the fiduciary duties they owed to Azran and Alpha, while the object of the suit at hand was to collect customer debts that the Kleinmans may have unduly or inappropriately reduced or compromised. We, thus, reverse the order under review.
I
The inapplicability of the entire controversy doctrine is demonstrated by reference to the procedural histories of the federal action and this action and the nature of the claims asserted in both. In dismissing this suit against defendants C & S Wholesale Grocers, Inc., and United Natural Foods, Inc., the trial judge did not conduct an evidentiary hearing to ascertain the facts deemed relevant to the disposition, but instead relied upon what was revealed by the pleadings in the federal suit and this suit. Accordingly, we examine the record in the light most favorable to Alpha. See NCP Litig. Trust v. KPMG LLP, 187 N.J. 353, 365, 901 A.2d 871 (2006) (holding that, on a motion to dismiss, the opponent is entitled to "a generous and hospitable approach," an assumption of the truth of its allegations, and the benefit of all reasonable inferences).
Alpha was formed by the Kleinmans. Azran made several loans to the Kleinmans to help establish Alpha, in return for which he became the owner of eight percent of Alpha's outstanding shares. According to Azran, he lent additional funds to Alpha and as a consequence, in September 2008, the Kleinmans "agreed to convey to Azran the majority of their ownership interests in Alpha ... such that Azran assumed ownership" of eighty percent of Alpha's outstanding shares.
Azran formally terminated the Kleinmans' employment relationships with Alpha on November 6, 2008. That same day, Azran commenced a civil action on behalf of Alpha and himself against the Kleinmans in the United States District Court for the District of New Jersey. Azran alleged he had "only very recently learned the extent to which [the] Kleinman[s] ... engaged in a blatant and systematic pattern of fraudulent conduct concerning Alpha in rampant violation of their fiduciary duties." Azran and Alpha sought "to recover damages from [the Kleinmans] to satisfy the debts and obligations they incurred on Alpha's behalf during the period when they controlled its business and operations, from January to September 2008, by which time they had abandoned all responsibility for Alphabut only after stripping Alpha of its assets, destroying its business relationships and implicating substantial guarantees of Alpha's debts made by Azran as a result of their unlawful conduct." In describing this parade of wrongdoings, Azran asserted that his "review of Alpha's purchase and sales records. . . showed that many of Alpha's customers and vendors had requested [and] were permitted to assert certain credits and *940 chargebacks against purchases from Alpha that reduced the amount of money owed to Alpha for the inventory purchases they made." In this regard, Alpha mentioned a few customers by name but did not refer to C & S or United. In fact, Azran and Alpha alleged they had "yet to unravel the provenance and legitimacy of numerous other credits or chargebacks that [the Kleinmans] agreed to on Alpha's behalf."
A final pretrial order was entered in the federal shareholder suit on May 24, 2010. The detailed pretrial order reveals that the suit involved only Azran's multi-faceted claim that the Kleinmans had damaged Azran and Alpha through a course of self-dealing and conversion of corporate assets. The pretrial order did not encompass any claims that Alpha may have possessed against any customers or other entities that may have received goods or funds and paid less than the proper amount as a result of the Kleinmans' alleged violation of their fiduciary duties.
A month after entry of the federal final pretrial order, Alpha commenced this action against C & S and United, among others, alleging, in essence, unpaid book accounts. As for C & S, Alpha alleged that between approximately March and June 2008, C & S purchased $157,712.82 worth of goods for which it paid only $65,754.08. Alpha's complaint recognized that C & S had asserted certain "credits, chargebacks and deductions" and that, between October 2009 and February 2010, Alpha had attempted "to reconcile its accounts with C & S," which included a request for information from C & S. According to the complaint, "C & S thereafter requested an opportunity to review its records and justify its having taken credits, chargebacks and deductions in excess of the amount due Alpha," but C & S had not responded by the time Alpha filed its complaint. The complaint makes similar allegations against United; Alpha claimed that United was indebted to it in the amount of $7,137.15, and recounted similar attempts made between October 2009 and February 2010 to ascertain United's entitlement to credits, chargebacks and deductions in excess of the amount Alpha believed to be owed.
Alpha did not refer to the federal action in its Rule 4:5-1(b)(2) certification. In October 2010, approximately one month after C & S and United filed their answers to the complaint, and having learned of the federal suit, United moved for leave to amend its answer to include an entire-controversy defense; C & S and United also sought dismissal of the complaint on that ground. After summarizing the parties' arguments and after referring to parts of the considerable body of case law that has developed regarding the entire controversy doctrine, the trial judge drew the following conclusions from the pleadings:
It was inexcusable for [Alpha] to fail to disclose the existence of the federal court action which had been pending for two years. The failure to comply with [Rule] 4:5-1(b)(2) was addressed at oral argument at which time counsel for [Alpha] acknowledged it as a purposeful omission by saying that she determined that the cases were so different that it did not bear mentioning. The rule requires disclosure of other actions regarding the same "matter in controversy." Clearly, the allegations and remedies sought in the federal court action arise from the same set of transactions. The same chargebacks and credits form the basis for both cases. The failure to disclose the existence of the federal court action resulted in substantial prejudice to [defendants] inasmuch as the Kleinmans are identified as the wrongdoers who had *941 full authority to act on behalf of Alpha []. This contention alone would have serious impact on the defense posture of [defendants] to the allegations that they took improper credits or chargebacks. Moreover, the federal case seeks monetary damages from the [Kleinmans] for the same transactions (albeit many other[s] as well) as involve the movants. The potential for a double recovery is real and likely since the federal court matter is much further along and about to go to trial. The intention of and the policy considerations underlying the [e]ntire [c]ontroversy [d]octrine warrant dismissal of the [c]omplaint.
An order of dismissal of the claims against C & S and United was entered on November 17, 2010. The claims against Winn-Dixie Stores, Inc. had been previously dismissed for lack of personal jurisdiction; Alpha and Fruth Pharmacy, Inc. had previously reached a settlement. On January 14, 2011, the claims against the remaining defendants were dismissed for lack of prosecution.
Meanwhile, on February 8, 2011, the federal district judge entered summary judgment in favor of Azran and Alpha and against the Kleinmans in the amount of $1,366,358.30.
Alpha then filed this timely appeal, which seeks review of the order that dismissed its action against C & S and United.
II
We discern from the trial judge's written decision two separate components to the dismissal of Alpha's claims against C & S and United. The first stemmed from what the judge perceived to be a violation of Rule 4:5-1(b)(2), and the second ground was the judge's belief that the entire controversy doctrine obligated Alpha to assert its claims against C & S and United in the federal action. Although the judge's decision conflated the two concepts, we view them separately.
A
The judge's invocation of Rule 4:5-1(b)(2) and the sanctions available for its breach were simply inapplicable here. The Rule itself, as relevant here, obligates a party in its first pleadingand further imposes a continuing obligationto advise the court of other related matters or potentially necessary parties. Specifically, the Rule requires that a pleader give notice "as to whether the matter in controversy is the subject of any other action pending in any court or of a pending arbitration proceeding, or whether any other action or arbitration proceeding is contemplated; and, if so, ... the identi[t]y [of] such actions and all parties thereto." The Rule also requires that the pleader "disclose... the names of any non-party who should be joined ... or who is subject to joinder ... because of potential liability to any party on the basis of the same transactional facts." Sanctions for a violation are described in the Rule. Ibid.
Momentarily putting aside whether Alpha actually violated the Rule by failing to mention the pending federal action, we initially turn to its language to determine whether dismissal was an appropriate sanction in these circumstances for the alleged violation. The Rule's only authorization for a dismissal relates to the preclusion "of a successive action" that is appropriate only if "the failure of compliance was inexcusable and the right of the undisclosed party to defend the successive action has been substantially prejudiced by not having been identified in the prior action." R. 4:5-1(b)(2).
*942 The action the trial judge dismissed here was not "a successive action." By "successive action," the Rule clearly meant to encompass only actions following the suit in which the Rule 4:5-1(b)(2) violation occurred. The most obvious example of this would be an action where A sues B for personal injury damages, and then, later, after A v. B is concluded, A brings a claim against C for having caused the same injuries. A v. C would be a "successive action" within the intendment of the Rule and, in certain circumstances, the Rule authorizes dismissal of the successive suit against C. See, e.g., Mitchell v. Procini, 331 N.J.Super. 445, 453-54, 752 A.2d 349 (App.Div.2000). The Rule, however, does not expressly authorize dismissal of a suit because of a pleader's failure to identify a pending action, such as the federal action here.
Moreover, even if we were to assume Alpha violated the Rule, we would conclude that the leap to dismissal rather than some lesser sanction was inappropriate. Our Court Rules, from their inception, have been understood as "a means to the end of obtaining just and expeditious determinations between the parties on the ultimate merits." Ragusa v. Lau, 119 N.J. 276, 284, 575 A.2d 8 (1990) (quoting Tumarkin v. Friedman, 17 N.J.Super. 20, 27, 85 A.2d 304 (App.Div.1951), certif. denied, 9 N.J. 287, 88 A.2d 39 (1952)); see also Ponden v. Ponden, 374 N.J.Super. 1, 9-10, 863 A.2d 366 (App.Div.2004), certif. denied, 183 N.J. 212, 871 A.2d 90 (2005); Tucci v. Tropicana Casino and Resort, Inc., 364 N.J.Super. 48, 53, 834 A.2d 448 (App.Div. 2003). As a result, the Supreme Court has recognized a "strong preference for adjudication on the merits rather than final disposition for procedural reasons." Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 356, 771 A.2d 1141 (2001) (quoting Mayfield v. Cmty. Med. Assocs., P.A., 335 N.J.Super. 198, 207, 762 A.2d 237 (App.Div.2000)). Indeed, the propriety of the ultimate sanction of dismissal for a violation is, as the Rule makes perfectly clear, dependent upon whether "the undisclosed party ... has been substantially prejudiced" by the lack of notice. R. 4:5-1(b)(2) (emphasis added). Because C & S and United do not qualify as "undisclosed parties"their identity was disclosed in the complaint to which the certification was appendeddismissal was unauthorized in this instance.
We also conclude, for the sake of completeness, that even if we were to find that Alpha violated the Rule by failing to mention the pending federal action, no lesser sanction would be appropriate here. C & S and United have not demonstrated they suffered any prejudice by the lack of notice. The impact of the lack of notice in Alpha's Rule 4:5-1(b)(2) certification was of very brief duration; C & S and United soon learned of the federal action and quickly moved for relief.[1] At best, United could have argued that the cost of moving for an amendment of their answers, to include the entire controversy doctrine defense, was caused by Alpha's alleged violation. Indeed, such a discretionary sanction would be appropriate if the Rule were, in fact, violated. Ibid. (authorizing "the imposition on the non-complying party of litigation expenses that could have been avoided by compliance with this rule"). But the brief delay in learning of the federal action caused no appreciable injury here. United was essentially in no different position when it moved to amend its answer than it was in the short, intervening *943 time-span following Alpha's failure to mention the federal action in its Rule 4:5-1(b)(2) certification. As United and C & S moved for dismissal at that same time, the additional expense incurred by United in also seeking leave to amend its answer was negligible.
For these reasons, even if there were a violation of Rule 4:5-1(b)(2) due to Alpha's failure to mention the federal action, that violation did not warrant dismissal of the complaint or, for that matter, any other sanction. We also conclude, for the reasons that follow, that the Rule did not require identification of the federal action because of the slim nexus between that action and the claims asserted here against C & S and United.
B
Finding no basis for dismissal based on Rule 4:5-1(b)(2), we turn to whether the entire controversy doctrine was breached and required dismissal.
We, first, conclude that the claims asserted in this action did not lie at the core of the federal action. Second, regardless of whether there was a sufficient link between the two suits to warrant inclusion of the claims asserted here in the federal action, the entire controversy doctrine is an equitable device and its application is dependent upon notions of fairness. Here, the judge did not consider the doctrine's equitable underpinnings, which, if weighed, would have militated against dismissal.
(1)
The entire controversy doctrine compels at times, and encourages at others, the joinder of related claims so as "to eliminate delay, prevent harassment of a party and unnecessary clogging of the judicial system, avoid wasting the time and effort of the parties, and promote fundamental fairness." Cogdell v. Hospital Center at Orange, 116 N.J. 7, 15, 560 A.2d 1169 (1989) (quoting Barres v. Holt, Rinehart and Winston, Inc., 74 N.J. 461, 465, 378 A.2d 1148 (1977) (Schreiber, J., dissenting)). In light of these considerations, the doctrine imposes on a litigant the duty to present "all aspects of a controversy in one legal proceeding." The Malaker Corp. Stockholders Protective Comm. V. First Jersey Nat'l Bank, 163 N.J.Super. 463, 496, 395 A.2d 222 (App.Div.1978), certif. denied, 79 N.J. 488, 401 A.2d 243 (1979). In determining what constitutes a single controversy, courts "look at the core set of facts that provides the link between distinct claims against the same or different parties." Hobart Bros. Co. v. Nat'l Union Fire Ins. Co., 354 N.J.Super. 229, 244, 806 A.2d 810 (App.Div.2002).
The lack of relationship or commonality between the federal suit and the suit at hand is similar to that found in the successive actions considered in Joel v. Morrocco, 147 N.J. 546, 688 A.2d 1036 (1997). There, an action in lieu of prerogative writs led to a settlement, which required the partnership developing a condominium project to pay periodic sums to a neighboring property owner. Id. at 551, 688 A.2d. 1036. In supplementary proceedings, the neighbor's successor learned the identity of the partnership's members and filed suit against the individual partners because, as had been determined in Seventy-Three Land, Inc. v. Maxlar Partners, 270 N.J.Super. 332, 637 A.2d 202 (App.Div.1994), a judgment against a partnership alone, in an amount in excess of the partnership's assets, would not reach its individual partners. Joel, supra, 147 N.J. at 552-53, 688 A.2d 1036. The Joel Court concluded that the second suit against the individual partners was not barred by the failure to include them in the first suit not only because of fundamental fairness, to which we will shortly turn, but also because *944 what was viewed as the first suitthe controversy concerning the condominium projectwas not a suit by a creditor of the partnership; accordingly, the Court found there was no "commonality of facts undergird[ing] each set of claims." Id. at 553, 688 A.2d 1036 (quoting DiTrolio v. Antiles, 142 N.J. 253, 258, 662 A.2d 494 (1995)). See also Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 381, 114 S.Ct. 1673, 1677, 128 L.Ed.2d 391, 397-98 (1994) (finding a breach of contract claim and a suit based on the alleged breach of the agreement that settled the breach of contract suit to be separate and distinct).
To be sure, there are facts common to both the federal action and the claims asserted by Alpha here, but these actions are not part of the same core controversy. In the federal action, Azran sought to demonstrate that the Kleinmans violated fiduciary duties owed to Alpha and him, as a fellow shareholder, for a host of reasons, including the rendering of improper discounts or credits to customers.[2] The claims for collection on the accounts of C & S and United in this suit may have been part of the anticipated ripples caused by the Kleinmans' alleged misconduct, but the claims did not lie at the heart of the federal controversy.
We, thus, reject the contention that the entire controversy doctrine required the inclusion in the federal action of the tangentially-related claims asserted against C & S and United in this action.
(2)
Even if it could be said that the two suits had a closer relationship than we attribute, the trial judge's decision to dismiss this action failed to account for the doctrine's equitable underpinnings. Joel, supra, 147 N.J. at 555, 688 A.2d 1036; Hobart Bros., supra, 354 N.J.Super. at 241, 806 A.2d 810. As our Supreme Court has recognized, the entire controversy doctrine rests on the "`twin pillars' [of] fairness to the parties and fairness to the system of judicial administration." Joel, supra, 147 N.J. at 555, 688 A.2d 1036 (quoting Prevratil v. Mohr, 145 N.J. 180, 197, 678 A.2d 243 (1996)). Because not every successive suit imperils those concerns, and some only in varying degrees, it has been recognized that "preclusion is a remedy of last resort." Vision Mortg. Corp. v. Chiapperini, Inc., 156 N.J. 580, 584, 722 A.2d 527 (1999) (quoting Olds v. Donnelly, 150 N.J. 424, 446-47, 696 A.2d 633 (1997)).
In considering the impact on these "twin pillars" here, we find that the continuation of this suit would be neither unfair to C & S and United nor prejudicial to the efficient administration of justice. Indeed, had C & S and United been joined to the federal action, they might have been prejudiced by being required to appear for proceedings of no particular interest to them. The major theme of the federal action was the contention that the Kleinmans had violated the fiduciary duties they owed to Alpha and their fellow shareholder by engaging in a host of conduct detrimental to the well-being and future existence of Alpha. Among those many alleged defalcations were Azran's claims that improper credits were given to customers; although not mentioned in the federal complaint, C & S and United were two such customers. Certainly, C & S and United had an indirect interest in the federal actionan outcome in the Kleinmans' favor would likely have dampened Alpha's likelihood of a recovery against C & S and United. But C & S and United would otherwise likely *945 have had little or no interest in actually participating in the federal litigation and the many other disputes involving the relationship between and among Alpha's shareholders. It would, thus, be neither unfair nor prejudicial to C & S and United to permit this action to continue to a disposition on its merits because it was neither unfair nor unreasonable for Alpha and Azran to have left them out of the federal litigation.
The trial judge was also required to consider whether it would be fair to Alpha to dismiss the action. That determination required consideration of whether Alpha "had a fair and reasonable opportunity" to assert the claim in the federal action but chose not to do so. DiTrolio, supra, 142 N.J. at 273, 662 A.2d 494. The record, viewed in the light most favorable to Alpha, see NCP Litig. Trust, supra, 187 N.J. at 365, 901 A.2d 871, reveals that the circumstances preceding the federal complaintand the potential for continuing damage and the implication for personal guarantees provided by Azran[3]rightfully counseled in favor of the quick commencement of suit by Azran and Alpha against the Kleinmans. Azran had obtained a majority interest in Alpha only a short time before commencement of the federal suit and, indeed, did not formally terminate the Kleinmans as employees until the day the federal suit was filed. In moving at such a rapid pace, Alpha and Azran alleged, as we have already noted, that the investigation into the Kleinmans' conduct had a long way to go. And the mention in the federal complaint of alleged improper credits to two customers, Winn-Dixie and Fruth, but not others, such as C & S and United, further suggested that Alpha and Azran did not yet have sufficient facts to prosecute claims against C & S and United. As the opponent of a motion to dismiss, Alpha was entitled to have the trial judge assume that Alpha was in no position to assert a claim against C & S and United at the time the federal complaint was filed.
The record also required the trial judge's assumption that Alpha's readiness to proceed against C & S and United did not improve until the time it actually filed the complaint here. As the complaint here alleged, Alpha had engaged in communications with both C & S and United between October 2009 and February 2010 in an attempt to reconcile their accounts. Alpha also alleged that C & S and United both sought additional time to review their own records to determine the bases for the credits, chargebacks and deductions they had asserted. Rather than precipitously assert claims against these and other customers, Alpha's new management investigated and engaged in discussions with its customers before commencing this action. The proper application of the standard applicable to motions to dismiss required that the trial judge assume that Alpha did not have "a fair and reasonable opportunity" to include C & S and United as defendants in the federal action either when it originally filed the complaint or at any point prior to the entry of the final pretrial order, which signaled the termination of *946 any further opportunity to amend the federal pleadings.
Lastly, in considering the impact on the efficient administration of justice by permitting this suit to proceed, the chief question, as described by Justice O'Hern for the Joel Court, is whether the trial court here would have had "to rerun a course previously run." Joel, supra, 147 N.J. at 553, 688 A.2d 1036. As it turns out, on February 8, 2011, Azran and Alpha obtained summary judgment against the Kleinmans for $1,366,358.30. To prevent a double-recovery that might result from this satellite action brought by Alpha against its customers, the federal district judge ordered:
to the extent that [p]laintiffs recover from any customers any monies due and owing for product sold and delivered by Alpha Beauty Distributors, Inc., then [the Kleinmans] shall be entitled to an OFFSET against the amount of the Judgment entered herein against them in the amount equal to fifty percent (50%) of the NET PROCEEDS....
This language demonstrates that rather than find anything untoward in the pendency of a second suit against Alpha's customers in another jurisdiction, the federal district judge simply addressed ramifications of Alpha's potential recovery in our courts. Moreover, this disposition of the claims against the Kleinmans eliminated the possibility that evidence adduced during a federal court trial, which had been rendered unnecessary by the entry of summary judgment, would be replayed in a trial here of Alpha's claims against C & S and United.
We are mindful that the summary judgment entered in federal court occurred a few months after the trial judge here dismissed Alpha's complaint. Through the hindsight provided by the federal summary judgment, we know that the two cases could have co-existed without generating a dismissal of this case. We are not suggesting that the trial judge should be held to a standard of clairvoyance.
That the federal action was surely to terminate before much had occurred in the case at hand was obvious. Before the complaint here was filed, a final pretrial order had been entered in the federal action. That event signaled the end of discovery and a preclusion of the parties' ability to join additional parties, leaving only the disposition of the case on its merits by motion or trial. The trial judge here recognized this when she noted in her written decision that "the federal court matter is much further along and about to go to trial."[4] Considering that the federal action was nearing its end when the suit at hand had just begun, there was much to commend a delay in the disposition of the motion to dismiss pending the termination of the federal action.
In short, the trial judge was not relegated to merely granting or denying the motion to dismiss; she should have also considered whether it was more propitious to simply postpone decision pending further developments in federal court. Had the judge taken that step, it would have become apparentafter summary judgment was entered in federal court a few months laterthat dismissal out of a concern for a double recovery or duplication of effort was not appropriate.
III
For these reasons, we conclude that Alpha did not violate Rule 4:5-1(b)(2) by *947 failing to mention the pending federal action and that the entire controversy doctrine did not warrant dismissal of this action.
Reversed.
NOTES
[1] United filed its answer on September 13, 2010, and C & S filed its answer on September 20, 2010. United moved to amend its answer to include a defense based on the entire controversy doctrine, and for dismissal on that ground, on October 22, 2010. C & S notified the trial court on November 4, 2010, of its joinder in United's motion to dismiss.
[2] Although the federal complaint discussed improper discounts or credits, only two customers were mentioned. C & S and United were not referred to in the federal complaint.
[3] Alpha and Azran alleged in their federal complaint that the Kleinmans "controlled [Alpha's] business and operations, from January to September 2008, by which time they had abandoned all responsibility for Alphabut only after stripping Alpha of its assets, destroying its business relationships and implicating substantial guarantees of Alpha's debts made by Azran as a result of their unlawful conduct." Assuming the truth of this allegationas we must on a motion to dismissit behooved Alpha and Azran to expeditiously pursue their remedies against the Kleinmans, even though they may not have then understood the full extent of the damage or the availability of relief from others, such as Alpha's customers and vendors.
[4] Any doubt about the status of the federal action could have been clarified by communications between the two courts.
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Docket No. 80891–Agenda 1–January 1998.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
JOHN SZABO, Appellant.
Opinion filed December 3, 1998.
JUSTICE MILLER delivered the opinion of the court:
The defendant, John Szabo, brings this appeal from an order of the circuit court of Will County denying his post-conviction petition after an evidentiary hearing. Because the defendant received the death penalty for the underlying murder convictions, the present appeal lies directly to this court. 134 Ill. 2d R. 651(a).
The defendant was convicted of murder and sentenced to death in the circuit court of Will County in 1979. In the appeal from that judgment, this court vacated the defendant's convictions and remanded the cause for a determination whether a new trial was necessary because of an alleged discovery violation. At the same time, the court vacated the defendant's death sentence and directed the trial court to conduct a new sentencing hearing if the convictions were able to stand.
People v. Szabo
, 94 Ill. 2d 327, 447 N.E.2d 193 (1983). On remand, the trial court reinstated the defendant's convictions, and a new sentencing hearing, conducted before a jury in 1984, again resulted in a sentence of death. This court subsequently affirmed the defendant's convictions and death sentence (
People v. Szabo
, 113 Ill. 2d 83, 497 N.E.2d 995 (1986)), and the United States Supreme Court denied
certiorari
(
Szabo v. Illinois
, 479 U.S. 1101, 94 L. Ed. 2d 181, 107 S. Ct. 1330 (1987)).
The defendant initiated post-conviction proceedings in August 1987. In a
pro se
petition, the defendant challenged the competence of the lawyer who represented him at trial in 1979, David Landau. The defendant also challenged the competence of the two lawyers who represented him at the second sentencing hearing in 1984, Paul Bjekich and Daniel Doyle. The defendant contended that Landau, the 1979 trial lawyer, was ineffective because he was under investigation by the Attorney Registration and Disciplinary Commission while he was representing the defendant. Separately, the defendant contended that Bjekich and Doyle, his 1984 resentencing lawyers, did not adequately prepare and present certain mitigating evidence, including evidence of the defendant's good conduct while incarcerated for the present offenses, and evidence that the defendant was acting under extreme mental or emotional disturbance at the time of the offenses. Counsel, Lawrence Morrissey, was appointed to represent the defendant in the post-conviction proceedings. The circuit court denied relief after an evidentiary hearing, and this court affirmed the judgment (
People v. Szabo
, 144 Ill. 2d 525, 582 N.E.2d 173 (1991)). The United States Supreme Court denied
certiorari
.
Szabo v. Illinois
, 506 U.S. 832, 121 L. Ed. 2d 59, 113 S. Ct. 99 (1992).
In February 1993, this court filed an opinion in an unrelated post-conviction matter,
People v. Johnson
, 154 Ill. 2d 227, 609 N.E.2d 304 (1993), which addressed the duties of post-conviction counsel under Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)). Regarding the record that must be prepared in the circuit court by appointed counsel in a post-conviction case, Rule 651(c) provides in pertinent part:
“The record filed in that court shall contain a showing, which may be made by the certificate of petitioner's attorney, that the attorney has consulted with petitioner either by mail or in person to ascertain his contentions of deprivation of constitutional right, has examined the record of the proceedings at the trial, and has made any amendments to the petitions filed
pro se
that are necessary for an adequate presentation of petitioner's contentions.”
Johnson
found that post-conviction counsel in that case had failed to comply with Rule 651(c) because he had not amended the defendant's
pro se
petition or submitted affidavits from possible mitigation witnesses identified in the petition. The court remanded the cause so that counsel could satisfy the requirements of the rule.
In May 1993, several months after the
Johnson
decision, the defendant, represented by new counsel, initiated the present action by filing a second post-conviction petition in the circuit court of Will County. By agreement of the parties a pending federal
habeas corpus
proceeding, which the defendant had filed in late April 1993, was dismissed without prejudice, so that the defendant could proceed on his state action. As the contents of the second post-
conviction petition make clear, the impetus for the defendant's new petition was this court's decision in
Johnson
. Citing
Johnson
, the defendant alleged in his second petition that the lawyer representing him in the first post-conviction proceeding, Lawrence Morrissey, had failed to comply with Rule 651(c) by not submitting affidavits in support of the petition and by not amending the original
pro se
petition, as Rule 651(c) requires. In addition, the second post-conviction realleged the claims raised in the first petition regarding the conduct of Bjekich and Doyle at the resentencing hearing.
The State initially moved to dismiss the defendant's second post-conviction petition, arguing that it was a repetitive action barred by this court's earlier decision on the defendant's first post-
conviction petition. The circuit court denied the State's dismissal motion. An evidentiary hearing on the substantive allegations in the defendant's second post-conviction petition was later conducted before a different judge, who denied relief. The defendant now brings this appeal from the denial of his second post-conviction petition. 134 Ill. 2d R. 651(a).
I
As a preliminary matter, we believe it is appropriate to consider whether the defendant may prosecute a second post-
conviction petition in this case. Although the State does not renew before this court its contention that the present matter must be dismissed as a repetitive action, we believe that this inquiry, undertaken on our own initiative, is proper here. Waiver is not a bar to our consideration of the issue, for we have an obligation to ensure the uniform and orderly development of the law (see
Hux v. Raben
, 38 Ill. 2d 223, 224-25 (1967)), and therefore we will consider here the timeliness of the defendant's second post-
conviction petition.
As we have stated, this court previously affirmed the circuit court's denial of relief on the defendant's first post-conviction petition.
People v. Szabo
, 144 Ill. 2d 525, 582 N.E.2d 173 (1991). At that time the court found that the lawyer who represented the defendant at the initial post-conviction hearing, Lawrence Morrissey, had substantially complied with Supreme Court Rule 651(c).
Szabo
, 144 Ill. 2d at 531-33. Notwithstanding that determination, the defendant subsequently initiated the present proceeding, which constitutes his second post-conviction challenge to the underlying convictions and death sentence. The question that arises is whether the defendant may now pursue a second post-conviction petition, following the rejection of his first.
This court has previously allowed a successive post-
conviction petition to go forward only when the proceedings on the initial petition were “deficient in some fundamental way.”
People v. Flores
, 153 Ill. 2d 264, 273-74, 606 N.E.2d 1078 (1992). This limitation on the circumstances in which successive petitions are allowed is designed to achieve a balance between society's interest in the finality of criminal convictions and the individual defendant's interest in vindicating constitutional rights.
Flores
, 153 Ill. 2d at 274. In opposition to the State's dismissal motion in the circuit court below, the defendant contended that the proceedings on his initial post-conviction petition were fundamentally deficient. The defendant argued below, in opposition to the State's dismissal motion, that our earlier decision regarding the initial petition should not preclude the present action, because the earlier decision did not adequately resolve all the issues then pending. The defendant asserted that this court had misapprehended the basis for the argument on appeal that counsel had failed to comply with Rule 651(c). The defendant believed that this court had focused on the challenge to the performance of trial counsel, David Landau, and had failed to consider the separate challenges to the performance of counsel at the resentencing hearing, Bjekich and Doyle.
Our earlier decision affirming the denial of post-conviction relief,
People v. Szabo
, 144 Ill. 2d 525 (1991), would normally be sufficient to negate any suggestion that the defendant is now entitled to a second opportunity to establish a constitutional defect in the sentencing proceedings. The defendant's first post-
conviction petition alleged incompetence by the defendant's trial lawyer and by the two lawyers who represented the defendant at the resentencing hearing. On appeal from the denial of post-conviction relief, the defendant argued before this court that post-
conviction counsel had failed to properly substantiate those claims.
Szabo
, 144 Ill. 2d at 532. At that time, this court rejected the defendant's challenge to post-conviction counsel's performance, concluding that adequate compliance with Rule 651(c) had been shown. Although the record did not contain an affidavit from post-conviction counsel, as required by Rule 651(c), the court nonetheless excused its absence, noting that the record as a whole evidenced sufficient compliance with the requirements of the rule. The court explained, “The record indicates that there was considerable communication between post-conviction counsel and defendant, and that defendant received reasonable assistance of counsel as contemplated by the rule.”
Szabo
, 144 Ill. 2d at 532.
Our subsequent decision in
Johnson
cited favorably to this court's disposition of defendant Szabo's first post-conviction petition.
Johnson
stated:
“Rule 651(c) requires post-conviction counsel to file an affidavit certifying that he or she has complied with these requirements. Although this court has held that compliance with the duties set out in Rule 651(c) is mandatory, the absence of counsel's affidavit will be excused where the record demonstrates that counsel adequately fulfilled his duties as post-conviction counsel.
People v. Szabo
(1991), 144 Ill. 2d 525.”
Johnson
, 154 Ill. 2d at 238.
Thus, our earlier opinion in
Szabo
concluded that Rule 651(c) had been complied with, and our later opinion in
Johnson
reaffirmed that holding. Nonetheless, the defendant now wishes to challenge that earlier determination–in substance, the defendant now seeks a reexamination of the holding in the appeal from the first post-
conviction petition (
Szabo
, 144 Ill. 2d 525) that post-conviction counsel sufficiently complied with Rule 651(c)'s requirements. We believe that a number of important considerations bar a reexamination of our earlier ruling.
We see no reason to excuse this repetitive filing, even on the ground that the holding in
Johnson
required post-conviction counsel to do more than what was done in that earlier proceeding.
Johnson
was decided after the present defendant's appeal from the denial of his first post-conviction petition. We do not believe that
Johnson
controls the outcome of the present case, any more than we believe that
Johnson
governs other post-
conviction matters that were concluded long ago. The proceedings on defendant Szabo's first post-conviction petition had been entirely completed by the time
Johnson
was decided.
Johnson
remanded a post-conviction appeal to the circuit court so that post-
conviction counsel could submit affidavits from potential witnesses in support of the petition. That we did not order the same remedy in defendant Szabo's earlier appeal, decided before
Johnson
, does not mean that we must now permit defendant Szabo to proceed with a second post-conviction petition, which is based, in substance, on a challenge to the performance of his initial post-
conviction lawyer.
We have previously held that the post-conviction process does not provide a forum by which a defendant may challenge the conduct of counsel at an earlier post-conviction proceeding.
People v. Flores
, 153 Ill. 2d 264, 276-77, 606 N.E.2d 1078 (1992). The reasons for this rule are clear. Post-conviction relief is limited to constitutional deprivations occurring at trial or sentencing. 725 ILCS 5/122–1(a) (West 1996). The conduct of counsel in an earlier post-conviction proceeding, however, is by definition outside the ambit of post-conviction relief. Moreover, because there is no constitutional right to counsel in post-conviction proceedings (
Pennsylvania v. Finley
, 481 U.S. 551, 555, 95 L. Ed. 2d 539, 546, 107 S. Ct. 1990, 1993 (1987)), the conduct of post-
conviction counsel is not subject to a later constitutional challenge. Because the present defendant's second post-conviction petition is, in essence, a challenge to the performance of counsel at the initial post-conviction proceeding, this successive petition should be barred.
Flores
, 153 Ill. 2d at 280.
Johnson
itself does not endorse successive petitions; that case involved a first post-
conviction petition.
II
Even if we were to consider the merits of the defendant's second post-conviction petition, we would not find that the defendant had established a violation of the right to the effective assistance of counsel occurring at his resentencing hearing.
Allegations of ineffective assistance of counsel are generally measured against the two-part standard expressed by the United States Supreme Court in
Strickland v. Washington
, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984). To prevail on a claim of ineffective assistance under
Strickland
, a defendant must establish both that counsel's performance was deficient and that the deficiency proved to be prejudicial.
Strickland
, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. Judicial scrutiny of counsel's performance is highly deferential under
Strickland
, and a court considering an ineffectiveness claim “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.”
Strickland
, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065. To establish prejudice resulting from an asserted deficiency in counsel's performance, “[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Strickland
, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.
A
The defendant first argues that counsel at the resentencing hearing should have presented favorable testimony from a number of jail and prison officers who would have described the defendant as a model prisoner following his incarceration on the charges here. The judge below concluded that the defendant sustained prejudice by his attorneys' failure to present this evidence. Still, the judge concluded that counsel was not deficient in failing to do so, and the judge accordingly rejected this claim of ineffective assistance of counsel.
At the evidentiary hearing on the defendant's second post-
conviction petition, the judge heard the testimony of one of the lawyers, Paul Bjekich, who represented the defendant on resentencing. Bjekich stated that it was his understanding that the defendant would still testify, even after the denial of a defense motion
in limine
that sought to restrict any cross-examination of the defendant. Counsel proposed to present evidence of the defendant's favorable adjustment to prison life through the testimony of the defendant himself.
At the evidentiary hearing below, Bjekich was confronted with a portion of the transcript from the resentencing hearing, at which the defendant briefly took the stand in the wake of the denial of the defense motion
in limine
. At that time the defendant said that, because the motion had been denied, he would not testify in his own behalf. At the evidentiary hearing below, however, Bjekich stated that it had still been the defense plan for the defendant to testify, even after the denial of the motion
in limine
. The judge in the proceedings below credited Bjekich's testimony, and the judge found that counsel was not deficient for failing to have an alternative plan ready in case the defendant did not take the stand in his own behalf at the resentencing hearing. The credibility determination made by the judge is entitled to substantial weight, and we will not interfere with it.
The defendant further suggests, however, that counsel acted unreasonably, even if Bjekich's testimony at the evidentiary hearing below is accepted as true. The defendant apparently believes that counsel should have made the defendant's good conduct while incarcerated the centerpiece of the mitigation case at the second sentencing hearing. In fact, although counsel did not choose to make this the central feature of the defense, counsel did introduce some evidence on this point, and we will not attempt to second-guess this strategic decision. At the resentencing hearing, counsel chose instead to emphasize the disparity between a death sentence for the defendant and the relatively brief prison term received by a codefendant convicted of the same offenses. In addition, counsel presented testimony from the defendant's family members, who described, among other things, the defendant's favorable adjustment to prison life. To be sure, counsel could have introduced testimony from jail and prison officials, for evidence like that may not be barred at a capital sentencing hearing.
Skipper v. South Carolina
, 476 U.S. 1, 90 L. Ed. 2d 1, 106 S. Ct. 1669 (1986).
Skipper
did not also hold, however, that counsel must be deemed ineffective for failing to present available testimony of that nature.
In describing the proposed testimony of these omitted witnesses, the defendant mentions their opinions that the defendant should not have received the death sentence for these crimes. We note, however, that testimony of that nature is not allowed at a death penalty hearing. This court has consistently held that mitigation witnesses' views that the defendant should not be sentenced to death are inadmissible at a capital sentencing hearing.
People v. Stewart
, 105 Ill. 2d 22, 67 (1984);
People v. Yates
, 98 Ill. 2d 502, 535 (1983);
People v. Williams
, 97 Ill. 2d 252, 300-01 (1983). Thus, certain portions of the favorable testimony proposed by the defendant would not have been admissible at his capital sentencing hearing.
Before this court, the defendant briefly argues that resentencing counsel should have also introduced expert testimony about the defendant's future lack of dangerousness if sentenced to prison instead of death. The defendant did not raise this claim in his second post-conviction petition, however, and therefore we must consider it waived.
People v. Davis
, 156 Ill. 2d 149, 619 N.E.2d 750 (1993).
B
The defendant also presented a second ground in the proceedings below in support of his contention that his two lawyers at the resentencing hearing were ineffective. Specifically, the defendant presented testimony from a psychologist, Dr. William Hillman, regarding the defendant's mental condition at the time of the offenses. The defendant sought to show through Dr. Hillman's testimony that counsel acted unreasonably in failing to present evidence of the defendant's psychological state at the time of the offenses here. The defendant argued that evidence of this nature would have been mitigating and could have been used to establish that the defendant was acting under the influence of an extreme mental or emotional disturbance when he committed the charged offenses.
The judge below rejected this claim following the evidentiary hearing. The judge concluded that counsel did not act deficiently in failing to present testimony of the type proposed by the defendant and, further, that the defendant was not prejudiced by counsel's failure to do so. The judge did not believe that he should give much weight to Dr. Hillman's testimony in 1995, the time of the hearing on the second post-conviction petition, regarding the defendant's mental state some 16 years earlier, at the time of the commission of the offenses. The court noted that Bjekich was aware of similar testimony from the initial sentencing hearing, conducted in 1979, which resulted in a sentence of death. The judge explained further that evidence of psychological or mental impairment could be construed either favorably or unfavorably by a sentencing jury, and that use of evidence of that nature was essentially a question of strategy, subject to different opinions.
We conclude that the judge's determination is not against the manifest weight of the evidence. The judge found unpersuasive Dr. Hillman's testimony about the defendant's mental state in 1979, and we see no reason to disturb that determination. We cannot conclude that the counsel was required to add this additional theory to the mitigation strategy they pursued at the resentencing hearing. See
People v. Erickson
, 161 Ill. 2d 82, 89-92 (1994).
* * *
In sum, the defendant may not pursue a second post-
conviction petition. Moreover, even if we consider the merits of the defendant's second post-conviction petition, we do not believe that the defendant is entitled to relief on the grounds raised in that petition.
For the reasons stated, the judgment of the circuit court of Will County is affirmed. The clerk of this court is directed to enter an order setting Monday, March 22, 1999, as the date on which the sentence of death entered in the circuit court of Will County is to be carried out. The defendant shall be executed in the manner provided by law (725 ILCS 5/119–5 (West 1996)). The clerk of this court shall send a certified copy of the mandate in this case to the Director of Corrections, to the warden of Tamms Correctional Center, and to the warden of the institution where the defendant is now confined.
Judgment affirmed.
CHIEF JUSTICE FREEMAN, specially concurring:
I agree that the doctrine of
res judicata
bars this, defendant's second successive, post-conviction petition. Accordingly, I join in Part I of the above opinion, and it is on this basis that I concur in the conclusion that the circuit court's judgment must be affirmed. That being the case, I see no legitimate reason to further hold, in Part II, that defendant has not established a violation of the right to the effective assistance of counsel, an analysis that I can only characterize as an “alternative” holding. Such an alternative holding, however, sends a mixed message to both bench and bar–that despite this court's professed disapproval of successive post-conviction petition filings and despite the fact that the Post-
Conviction Hearing Act contemplates the filing of only one petition, we will nevertheless look to the merits of the claim even when
res judicata
bars relief. Accordingly, I do not join in Part II. In view of my belief that
res judicata
bars defendant's petition, I write separately in order to express my thoughts regarding (i) why our decision in
Johnson
does not support relaxing the
res judicata
effect of defendant's first post-conviction proceeding and (ii) the circumstances under which a second post-conviction petition may be proper.
I
A detailed factual recitation is warranted in light of the important procedural questions which have arisen in this case. Defendant's original convictions and sentence of death were vacated by this court on direct appeal. See
People v. Szabo
, 94 Ill. 2d 327 (1983) (
Szabo I
). On remand, the circuit court reinstated defendant's convictions, and following a second capital hearing, a jury voted to impose the death penalty. This court affirmed both the convictions and the sentence of death (see
People v. Szabo
, 113 Ill. 2d 83 (1986) (
Szabo II
), and the United States Supreme Court denied
certiorari
(
Szabo
, 479 U.S. 1101, 94 L. Ed. 2d 181, 107 S. Ct. 1330 (1987)).
In August 1987, defendant filed a
pro se
petition for post-
conviction relief, alleging in part, that he had received ineffective assistance of counsel during his second capital sentencing hearing held in 1984. Specifically, defendant claimed that his attorneys, Paul Bjekich and Daniel Doyle, were ineffective for failing to call or conduct any investigation regarding (i) eight named jail and prison officials who were available and willing to testify to defendant's good behavior while he was incarcerated between 1979 and 1984 and (ii) various experts who would have testified about the effect of defendant's drug usage on his mental health at the time of the murders. Because these claims were
de hors
the record at the time of defendant's direct appeal in
Szabo II
and therefore could not have been asserted in that appeal, defendant's presentation of them in a post-conviction petition was proper. See,
e.g.
,
People v. Eddmonds
, 143 Ill. 2d 501 (1991);
People v. Owens
, 129 Ill. 2d 303 (1989). Accordingly, the circuit court appointed attorney Lawrence Morrissey to represent defendant during his post-conviction proceedings. Morrissey informed the circuit court that the defense would stand on the
pro se
petition, and the State moved to dismiss the action. The circuit court denied the State's motion and held an evidentiary hearing on the petition. The court ultimately denied post-conviction relief, finding,
inter alia
, that defendant had presented no evidence at the evidentiary hearing to substantiate his claim that Bjekich and Doyle provided ineffective assistance during the 1984 capital sentencing hearing.
Defendant again appealed to this court–this time represented by the office of the State Appellate Defender. In that appeal, defendant maintained, among other things, that Morrissey failed to comply with Supreme Court Rule 651(c) in representing defendant during the post-conviction proceedings.
People v. Szabo
, 144 Ill. 2d 525, 531-32 (1991) (
Szabo III
). Rule 651(c) requires appointed counsel to certify that he or she has made the necessary amendments to a
pro se
petition so that a petitioner's contentions are adequately presented to the courts for their consideration of whether post-conviction relief must be granted. See 134 Ill. 2d R. 651(c). This court rejected defendant's claim, specifically holding that Rule 651(c) had been satisfied and that the “record clearly support[ed] the trial court's finding of effective assistance of appointed counsel [Morrissey].” The United States Supreme Court denied
certiorari
.
Szabo
, 506 U.S. 832, 121 L. Ed. 2d 59, 113 S. Ct. 99 (1992).
Defendant, having thus exhausted his state appeals, next initiated federal
habeas corpus
proceedings. Meanwhile, this court stayed defendant's execution pending the filing and disposition of defendant's petition for
habeas corpus
which was to be filed on April 30, 1993. At that time, defendant was represented by attorneys from the Illinois Capital Resource Center for the office of State Appellate Defender, who began an investigation of the correctional guards named in defendant's first petition for post-
conviction relief. These attorneys also hired a psychological expert to evaluate defendant's mental health. It was during this time that we announced our decision in
People v. Johnson
, 154 Ill. 2d 227 (1993). A short while later, defendant's attorneys filed defendant's second petition for post-conviction relief on May 20, 1993, the denial of which is the subject of this appeal. The record reveals that in the petition, defendant maintained that our decision in
Johnson
“dictate[d] that [the circuit] court entertain the present post-conviction petition [because] [l]ike Johnson, [defendant] named in his post-conviction petition prison officials who were available to testify at this sentencing hearing.” Defendant contended that his original post-conviction counsel, Morrissey, “had no strategic reason” for failing to present the evidence regarding the prison officials. He also noted that this second petition was “really nothing more [than] amended petition contemplated by the Post-Conviction Hearing Act, *** being filed expeditiously by the first trial attorneys [defendant] has had since Morrissey left the case.” Defendant asserted that the grounds for post-conviction relief were the failure of Bjekich and Doyle to investigate and present as witnesses (i) the various correctional officials who were willing to testify as to defendant's good behavior while defendant was incarcerated between 1979 and 1984 and (ii) several psychological experts who would have testified that defendant committed the crime while under extreme mental or emotional disturbance. Attached to the petition were the affidavits of five prison officials and a psychological report prepared by a mental health expert. Notably absent from the petition was any affidavit from Morrissey which explained the reason for his decision not to pursue the issue of the correctional officers' potential testimonials.
The State moved to dismiss defendant's petition, arguing that the asserted claims had been previously adjudicated in defendant's initial post-conviction proceeding. Although the State acknowledged that Illinois courts have, in limited cases, allowed the filing of a second petition, the State insisted that defendant's second petition was devoid of the necessary allegations that would permit a successive filing. The State also contended that concerns of finality prevented a successive petition in this case. In response, defendant admitted that his claim of ineffective assistance of counsel at sentencing had been presented in his initial post-
conviction petition. Nevertheless, he maintained that his attorney, Morrissey, had not presented any evidence to substantiate the claim at that proceeding, even though defendant's
pro se
petition had identified the potential witnesses by name. Defendant emphasized that although he had identified these witnesses as early as 1987, he “ha[d]
never
had a chance to present those arguments to
any
court.” (Emphasis in original.) Thus, according to defendant, Morrissey provided him with “no representation whatsoever regarding the claims relating to the sentencing hearing.” The circuit court denied the State's motion to dismiss and eventually held the evidentiary hearing described in the majority opinion. At the conclusion of the hearing, the circuit court denied defendant's second petition, and this appeal followed.
II
The circuit court apparently agreed with defendant that our decision in
Johnson
“dictates” that the state courts must once again entertain his claims regarding the ineffectiveness of Bjekich and Doyle. Notwithstanding defendant's characterizations, this petition cannot, in any way, be deemed an “amended” petition. Once this court issued its opinion in
Szabo III
and the United States Supreme Court denied
certiorari
in the matter, there was simply nothing left of defendant's first petition to amend. Defendant's post-conviction petition and the claims raised in it were finally adjudicated at that point in time. See
People v. Richeson
, 50 Ill. 2d 46, 47 (1971).
Defendant's motivation for portraying his second petition as nothing more than an “amended first petition” becomes obvious upon review of this court's previous holdings with respect to multiple petitions for post-conviction relief. Under Illinois law, successive post-conviction proceedings cannot be used to assail previous post-conviction counsel. In
People v. Flores
, 153 Ill. 2d 264, 276 (1992), we explained that the sixth amendment right to counsel has not been found to apply to attorneys representing petitioners in post-conviction proceedings. See also
Pennsylvania v. Finley
, 481 U.S. 551, 555, 95 L. Ed. 2d 539, 546, 107 S. Ct. 1990, 1993 (1987). As the majority correctly notes, the reason a sixth amendment right to counsel does not attach in post-
conviction proceedings is because a defendant's right to counsel in the proceedings derives not from the state or federal constitution, but from the Post Conviction Hearing Act (Act) itself. As a result, post-conviction petitioners are guaranteed only the level of assistance provided by the Act. This court has interpreted the Act to provide only for a “reasonable” level of assistance from their attorneys during these proceedings. See
Flores
, 153 Ill. 2d at 276. Thus, post-conviction petitioners cannot present claims of ineffective assistance of post-conviction counsel based on the sixth amendment in subsequent post-conviction petitions. In addition,
“where a defendant files a second or subsequent post-
conviction petition wherein he claims ineffective assistance in his first post-conviction proceeding, because the Act is confined to errors which occurred in the original proceeding [the actual trial] only, such claims are beyond the scope of the Act.”
Flores
, 153 Ill. 2d at 280.
Finally, petitioners cannot obtain relief under the Act simply by “rephrasing previously addressed issues in constitutional terms” in their petitions.
People v. Gaines
, 105 Ill. 2d 79, 90 (1984).
In his second post-conviction petition, defendant was careful not to assert a specific claim of ineffectiveness on the part of Morrissey as grounds for granting relief under the Act. His action was prudent–the above-noted caselaw teaches us that such a claim would fall outside the scope of the Act.
(footnote: 1) Only those claims which assert a deprivation of a constitutional right
which occurred at trial
fall within the ambit of the Act. Defendant's second petition, however, once again mentions Morrissey's failure, during the first proceeding, to comply with Rule 651(c) and his failure to substantiate defendant's
pro se
allegations, although defendant does not ground his request for post-conviction relief on these purported shortcomings. Rather, he identifies only Bjekich and Doyle's (the 1984 sentencing attorneys) purported ineffectiveness as the
actual
basis for the relief. This bootstrapping explains why defendant chose to characterize the second petition as an amendment–any subsequent petition which solely challenged Morrissey's performance would not meet the criteria for relief under the Act. Moreover, the operation of
res judicata
would bar any second petition which attempted solely to relitigate the Bjekich/Doyle claim, for that very issue had been adjudicated against defendant at the initial post-conviction proceeding. In the words of the trial judge who denied the petition, “no evidence [was] presented in connection with [the] substantiation of that []claim.” We affirmed that finding on appeal, rejecting defendant's argument that Morrissey had failed to comply with Rule 651(c). This determination ordinarily will bar, under the doctrine of
res judicata
, any successive claim concerning Morrissey's failure to substantiate defendant's
pro se
allegations concerning the prison guards. In fact, this court very recently reaffirmed this basic tenet of post-conviction jurisprudence in
People v. Erickson
, 183 Ill. 2d 213 (1998) (foreclosing relitigation of defendant's failure to investigate claim in a second post-conviction proceeding where defendant had raised same claim in a first petition).
Apparently mindful of these rather well-settled principles, defendant now attempts to use our decision in
Johnson
in order to skirt the
res judicata
effect of our decision in
Szabo III
and to avoid the conclusion that defendant's second petition is, in reality, nothing more than an improper challenge to Morrissey's performance at the first post-conviction proceedings. Although the majority rightly rejects this argument (see slip op. at 5-6), I would add the following observations to the analysis.
In my view, nothing in our opinion in
Johnson
allows Morrissey's performance in the first post-conviction proceedings to form the basis for relief in a second proceeding. As an initial matter, I strongly question the propriety of relying on a case decided
after
a defendant has completed post-conviction review in order to allow that same defendant to renew claims which had, up until that point in time, been finally adjudicated.
Johnson
did not announce a new rule of constitutional law to which one might argue necessitates retroactive application. Rather, the case concerned only an interpretation of one of this court's own rules. Moreover, unlike the present case, defendant Johnson's appeal came before this court upon the dismissal, without an evidentiary hearing, of his
first
post-conviction petition.
Johnson
, 154 Ill. 2d at 234. Therefore, this court was not presented with the procedural concerns which arise whenever a
subsequent
petition is filed, and, as a result, those concerns were necessarily absent from our analysis. Notwithstanding this important distinction, the specific facts in
Johnson
serve to further differentiate it from the case at bar. While Johnson's petition had been pending before the circuit court, Johnson's appointed counsel failed to support the
pro se
allegations with affidavits or other supporting documents, despite the fact that Johnson had specifically identified both witnesses and documents which would have supported the allegations raised in the petition.
Johnson
, 154 Ill. 2d at 239. Appellate counsel then filed a supplemental record on appeal in this court which contained the affidavit of Johnson's post-conviction trial attorney. In this affidavit, counsel admitted that he did not attempt to contact or obtain affidavits from any of the prison employees named in the
pro se
petition. Nor did he attempt to review the documents to which Johnson had referred.
Johnson
, 154 Ill. 2d at 245-47. Based on the allegations contained in the affidavit, appellate counsel argued that post-conviction counsel could not be said to have complied with Rule 651. We agreed, determining from the affidavit that post-conviction counsel made no effort at all to contact the witnesses specifically identified by name in Johnson's
pro se
petition even though he had an obligation to do so under Rule 651(c). In addition, the record in
Johnson
“suggest[ed] that counsel may have been under the misapprehension that the post-conviction petition would not [have been] dismissed without an evidentiary hearing. Counsel may have believed that there was no need to contact witnesses named in the post-conviction petition until after the matter was set for an evidentiary hearing.”
Johnson
, 154 Ill. 2d at 248-49. For this reason, we concluded that a remand was necessary to give counsel the opportunity to contact the witnesses named in the post-conviction petition. In this way, the circuit court could then reconsider the State's motion to dismiss the petition on the basis of a properly developed record.
Johnson
, 154 Ill. 2d at 249.
In contrast, I note that no affidavit from attorney Morrissey has ever been made a part of the record in this case. Defendant's present attorneys merely attached the affidavits of the prison guards themselves to the self-styled “amended” petition. As a result, we today do not know the reasons behind Morrissey's decision not to produce evidence of the guards' opinions regarding defendant's behavior while incarcerated. Consequently, we have no objective basis on which to conclude, as we did in
Johnson
, that Morrissey did not meet his obligation under Rule 651(c). More importantly, no such affidavit was supplemented to the record when the matter of Morrissey's failure to contact these witnesses was first presented to this court in
Szabo III
back in 1991. Therefore, this court in 1991 did not know the reason behind Morrissey's decision not to seek out affidavits from the guards and, as a result, we could not grant defendant in 1991 the type of relief we ultimately granted to Johnson in 1993. In light of these facts,
Johnson
simply does not provide this court with the proper basis for relaxing the
res judicata
effect of our previous holding in
Szabo III.
III
In order to maintain a consistent body of law in the area of post-conviction review, the threshold question that must be addressed in this case is whether the doctrine of
res judicata
can, in any way, be relaxed so that this court can
legally and legitimately
reach the merits of defendant's claim that Bjekich and Doyle failed to investigate and offer the testimony of the guards at the 1984 sentencing hearing. After reviewing the precedent of this court, I conclude that, absent a radical departure from our previous holdings, we cannot do so in this case.
This court has long recognized that the Act provides a statutory remedy to criminal defendants who claim that substantial violations of their constitutional rights occurred at trial.
People v. Eddmonds
, 143 Ill. 2d 501, 510 (1991) (and cases cited therein). As such, a proceeding under the Act is not an appeal
per se
but, rather, a collateral attack on a final judgment.
People v. Ruiz
, 132 Ill. 2d 1, 9 (1989). Thus, where a petitioner has previously taken a direct appeal from a judgment of conviction, the ensuing judgment of the reviewing court will bar, under the doctrine of
res judicata
, post-conviction review of all issues actually decided by the court, and any other claims that could have been presented to the reviewing court will be deemed waived.
People v. Neal
, 142 Ill. 2d 140, 146 (1990). Moreover, section 122–3 of the Act specifically states that “[a]ny claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived.” 725 ILCS 5/122–3 (West 1992). Accordingly, this court has held, consistent with its own precedent and the statutory language of the Act, that a ruling on an initial post-
conviction petition has
res judicata
effect with respect to all claims that were raised or could have been raised in the initial petition.
People v. Free
, 122 Ill. 2d 367, 376 (1988).
Nevertheless, this court has not deemed section 122–3 to be an ironclad bar on multiple post-conviction petitions and has, in the past, allowed successive filings when the proceedings on the original petitions were said to be deficient in some fundamental way. See,
e.g.
,
People v. Nichols
, 51 Ill. 2d 244, 246 (1972);
People v. Hollins
, 51 Ill. 2d 68, 70 (1972);
People v. Slaughter
, 39 Ill. 2d 278 (1968). I note that Justice Harrison's dissent posits that “[t]he criteria for establishing that the first proceeding was deficient is not set forth with any precision in our case law” (slip op. at 23 (Harrison, J., dissenting)); however, this is, in fact, not an entirely accurate statement. In
Flores
, this court undertook a thorough examination of the various situations in which a defendant will attempt to bring a successive petition. After reviewing our precedent and the language of the Act, we held without dissent that
“[t]he Act does not *** provide a forum to test the propriety of conduct at an earlier post-conviction proceeding. Thus, where a petitioner files a second or subsequent post-conviction petition wherein he claims ineffective assistance in his first post-conviction proceeding, consideration of those claims is beyond the scope of the Act.”
Flores
, 153 Ill. 2d at 277.
In so holding, we necessarily overruled,
sub silentio
,
People v. Hollins
, 51 Ill. 2d 68, 70 (1972), and
People v. Slaughter
, 39 Ill. 2d 278 (1968), at least to the extent that those cases suggest that inadequate representation at the prior proceeding–standing alone–constitutes a fundamental deficiency. Implicit in our holding in
Flores
is the recognition that the “fundamental deficiency” alleged to have occurred in the prior proceeding must flow from something other than the purported ineptitude or inadequacy of the prior post-conviction attorney. To hold otherwise would allow the fundamental-deficiency exception to
res judicata
to swallow the general proscription against the use of successive petitions to assail the conduct of post-conviction counsel. In addition, although we acknowledged in
Flores
that concerns of “fundamental fairness” colored the inquiry into whether a first post-conviction proceeding was fundamentally deficient, we also specifically spoke to a “ `cause and prejudice' ” evaluation to be applied in such circumstances. See
Flores
, 153 Ill. 2d at 279;
People v. Whitehead
, 169 Ill. 2d 355, 407 (1996) (Miller, J., specially concurring). We further recognized that, even in the absence of cause and prejudice, a court may, “nonetheless, entertain successive claims if necessary to prevent a fundamental miscarriage of justice.”
Flores
, 153 Ill. 2d at 279. I note that the United States Supreme Court has stated that this latter exception serves “as `an additional safeguard against compelling an innocent man to suffer an unconstitutional loss of liberty' [citation], guaranteeing that the ends of justice will be served in full.”
McCleskey v. Zant
, 499 U.S. 467, 495, 113 L. Ed. 2d 517, 546-47, 111 S. Ct. 1454, 1471 (1991). In acknowledging these standards, we attempted in
Flores
to formulate objective guidelines to which the lower courts could turn in determining what constitutes a fundamental deficiency in prior post-conviction proceedings.
In light of the guidelines recognized in
Flores
, I do not believe defendant's allegations warrant a finding that his first post-
conviction proceeding was deficient in some fundamental way. I must point out that this is not a case in which defendant's first post-conviction petition was cursorily dismissed by the circuit court without an evidentiary hearing. Rather, defendant was allowed to litigate his claims in an evidentiary hearing. Defendant thus received an unrestricted opportunity during his first post-
conviction proceeding to develop his claim of ineffective assistance of counsel. Defendant's second petition alleges that Morrissey “had no strategic reason” for failing to present the evidence of the correctional officers. Moreover, when the State countered that defendant's petition was devoid of the necessary allegations which would permit a successive filing, defendant responded–along the same lines contained in his petition–that Morrissey provided him with “no representation whatsoever regarding the claims relating to the sentencing hearing.” In essence, these allegations amount to nothing more than a challenge to the performance of his first post-conviction attorney. In my opinion, they do not establish “cause” for a finding of a fundamental deficiency in the prior proceeding as contemplated in
Flores
.
(footnote: 2) See also
Antone v. Dugger
, 465 U.S. 200, 79 L. Ed. 2d 147, 104 S. Ct. 962 (1984) (holding second successive
habeas corpus
petition improper despite argument that previous
habeas
counsel had inadequately and hastily prepared prior petition). Defendant's allegations lead only to the inescapable conclusion that this case presents this court with the very type of prior post-
conviction proceeding that we, in
Flores
, specifically refused to recognize as “fundamentally deficient.” See
Flores
, 153 Ill. 2d at 282 (holding such claims to be beyond the scope of the Act). As such, defendant's second request for post-conviction relief should have been denied by the circuit court on the grounds that it was barred by the doctrine of
res judicata.
In my view, the fact that the circuit judge in this case failed to recognize defendant's second petition as an invalid successive filing does not mean that this court is required on appeal to follow suit. For this reason and the reasons set forth above, I concur in Part I of the majority's analysis.
JUSTICE HEIPLE joins in this special concurrence.
JUSTICE HARRISON, dissenting:
In 1991, this court rejected defendant's appeal from the trial court's denial of post-conviction relief.
People v. Szabo
, 144 Ill. 2d 525 (1991). Two years later, in
People v. Johnson
, 154 Ill. 2d 227 (1993), this court granted relief to a defendant asserting the exact same claim,
i.e.
, that his post-conviction counsel had violated his duty under Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)), by failing to substantiate the defendant's
pro se
petition alleging his capital sentencing counsel had been ineffective for failing to call certain named prison officials to testify in mitigation about his good prison conduct. Today, the majority,
sua sponte
, holds that defendant may not pursue a second post-conviction petition, stating: “That we did not order the same remedy in defendant Szabo's earlier appeal, decided before
Johnson
, does not mean that we must now permit defendant Szabo to proceed with a second post-conviction petition, which is based, in substance, on a challenge to the performance of his initial post-conviction lawyer.” Slip op. at 6. I cannot agree with this holding, particularly when defendant's life is at stake.
It is true that the Post-Conviction Hearing Act (725 ILCS 5/122–1
et seq.
(West 1992)) contemplates the filing of only one petition, and a ruling on a post-conviction petition has
res judicata
effect with respect to all claims that were raised or could have been raised in the initial petition.
People v. Caballero
, 179 Ill. 2d 205, 211 (1997);
People v. Flores
, 153 Ill. 2d 264, 273-74 (1992). The majority properly observes that successive post-conviction petitions raise two competing interests, “the State's interest in providing a forum for the vindication of the petitioner's constitutional rights *** [and its] interest in the finality of criminal litigation and judgments.”
Flores
, 153 Ill. 2d at 274. Generally, the operation of waiver and
res judicata
contribute to the finality of criminal litigation, but this court has acknowledged that, under certain circumstances, these procedural bars may be ineffectual in bringing about the finality which ordinarily follows direct appeal and the initial post-conviction proceeding. See
Flores
, 153 Ill. 2d at 275, citing
People v. Stewart
, 141 Ill. 2d 107 (1990). This court has therefore allowed successive filings when the proceedings in the original petition were deficient in some fundamental way. See,
e.g.
,
People v. Hollins
, 51 Ill. 2d 68, 70 (1972) (appointed counsel on prior petition failed, in either the trial court or the supreme court, to amend the
pro se
petition so that petitioner's contentions could adequately be addressed);
People v. Slaughter
, 39 Ill. 2d 278 (1968) (inadequate representation on first petition where counsel merely repeated the conclusory allegations made in defendant's
pro se
petition).
Thus, the determination to be made in this case is whether defendant's initial post-conviction proceeding was deficient in some fundamental way. The criteria for establishing that the first proceeding was deficient is not set forth with any precision in our case law. See
Flores
, 153 Ill. 2d at 278-79 (noting that fundamental fairness concerns control the question);
Hollins
, 51 Ill. 2d at 70 (recognizing that justice and fundamental fairness will dictate relaxation of the bar);
Slaughter
, 39 Ill. 2d at 285 (holding that bar will be excused where defendant did not receive adequate representation during initial post-conviction proceeding). Indeed, the author of the majority opinion herein has stated that a successive petition is permissible when the initial proceeding is deficient and “defendant can demonstrate both cause for his failure to present his claims in a timely manner and prejudice from the procedural default.”
People v. Whitehead
, 169 Ill. 2d 355, 407 (1996) (Miller, J., specially concurring). As these cases make clear, the determination regarding the deficiency of the initial proceeding is not subject to bright line standards; rather, the court must undertake an individualized, fact-dependant analysis in order to decide the propriety of any successive petition.
In my opinion, the record in this case demonstrates that defendant's first post-conviction proceeding was deficient in that it did not provide an adequate hearing on defendant's
pro se
allegations concerning the existence of mitigating evidence from correctional officers. The record shows that defendant had, as early as 1987 in his post-conviction petition, identified by name the guards who allegedly would have been willing to testify as mitigation witnesses at his 1984 sentencing hearing, had counsel Bjekich and Doyle conducted an adequate investigation. Despite this fact, no action was ever taken by counsel Morrissey during the first post-conviction proceedings to present that evidence in any meaningful form to the circuit court. While defendant did all that could be expected of him to bring the alleged constitutional deprivation to the attention of the court in timely fashion, his claim went unheeded. To enforce the procedural bar under these circumstances would be to punish defendant for his failure to do something more to pursue this claim. However, I am at a loss to conceive of what more defendant himself could have done to have his claim addressed. As this court has stressed, the legislature provided for counsel to be appointed to represent post-conviction petitioners, “not to protect them from the prosecutorial forces of the State, but to shape their complaints into the proper legal form and to present those complaints to the court.”
People v. Owens
, 139 Ill. 2d 351, 365 (1990). Through no fault of defendant, his claim with respect to the guards' testimony was not adequately presented during the initial post-conviction proceeding. Thus, I believe that proceeding was fundamentally deficient and the time has now come for defendant's claim to be heard on the merits.
The majority suggests that this court's earlier decision affirming the denial of defendant's initial petition “would normally be sufficient to negate any suggestion that the defendant is now entitled to a second opportunity to establish a constitutional defect in the sentencing proceedings.” Slip op. at 4. Again, I find it significant that this defendant, acting
pro se
, timely presented this claim in 1987, providing the names of specific witnesses he believed would have proven his claim regarding resentencing counsel's ineffectiveness. This is not a case where a defendant has waited until the eleventh hour to debut a claim which could have been raised and addressed in previous proceedings. In those circumstances, the interests of finality provide a far more compelling reason to enforce the procedural bars which normally exist to preclude further review. While I recognize the salutary principles behind the operation of procedural bars in collateral attacks on criminal convictions, as well as the notions of finality that are at play in such proceedings, I believe that those interests must yield, under the particular facts in this case, to defendant's interest in vindicating his constitutional rights. See
Slaughter
, 39 Ill. 2d at 285 (this court has repeatedly held that the objective of finality must yield when fundamental fairness so requires).
An additional reason supports relaxation of the bar in this case. As the majority notes, the State does not renew before this court its contention that
res judicata
preludes defendant's second petition. The State's decision to abandon the argument on appeal seems to be a concession that defendant's initial post-conviction proceeding was deficient at least with respect to this issue. Certainly the circuit court, by denying the State's motion to dismiss, found that a deficiency had existed in the initial proceedings so as to permit defendant's second petition to stand. Given the State's failure to press the point, there is even less reason for this court to enforce the procedural bar. Defendant's second post-conviction petition presented the circuit court with the opportunity to complete defendant's constitutional challenge, begun in 1987, to the effectiveness of his 1984 sentencing attorneys. Therefore, on a procedural level, I believe the circuit court correctly heard evidence regarding defendant's claim that Bjekich and Doyle provided ineffective assistance of counsel at sentencing by failing to investigate and call the correctional officials named in defendant's post-conviction petition.
I further dissent from the majority's conclusion that defendant did not establish that this failure on the part of Bjekich and Doyle amounted to ineffective assistance of counsel. “In the context of a death sentencing hearing, the defendant must prove that counsel's representation was deficient and that there is a reasonable probability that, but for counsel's deficient conduct, the sentencer would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.”
People v. Hampton
, 149 Ill. 2d 71, 109 (1992), citing
Strickland v. Washington
, 466 U.S. 668, 695, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2069 (1984). It is clear that counsel has a duty to investigate potential sources of mitigation evidence, or to have reason not to make such an investigation.
People v. Griffin
, 178 Ill. 2d 65, 86 (1997);
People v. Ruiz
, 132 Ill. 2d 1, 27 (1989). If mitigation exists, counsel has the duty to introduce it in support of the defendant.
Griffin
, 178 Ill. 2d at 86. As this court recently stated in
People v. Ruiz
, 177 Ill. 2d 368, 385-86 (1997):
“Where an adequate investigation has been conducted, the failure to present mitigating evidence does not itself establish that defense counsel was ineffective.
People v. Coleman
, 168 Ill. 2d 509, 535 (1995);
Perez
, 148 Ill. 2d at 186. `An informed decision not to present certain mitigating evidence may represent a valid strategic choice, particularly where the evidence is potentially damaging. However, where counsel has neglected to conduct a proper investigation into mitigating circumstances, the failure to introduce mitigating evidence cannot be attributed to strategy.'
Coleman
, 168 Ill. 2d at 535; see also
Baxter v. Thomas
, 45 F.3d 1501, 1514 (11th Cir. 1995) (a `strategic' decision cannot be reasonable when counsel has failed to investigate his options and make a reasonable choice between them). In such cases, counsel's performance falls below objective standards of reasonableness. [Citation.]”
In the instant case, defendant had served more than five years in custody for these charges prior to the resentencing hearing, and because his behavior during this period was exemplary, defense counsel had a unique opportunity to present the jury with this mitigation evidence in an attempt to preclude the imposition of the death penalty. Nevertheless, counsel made no attempt to investigate or present evidence of defendant's good conduct from disinterested sources readily available to them. Therefore, applying the above-stated precedent to the record herein, I would find the determination of the circuit court, that defense counsel had no duty to present the mitigating testimony of the five correctional officials, to be manifestly erroneous. See
People v. Perez
, 148 Ill. 2d 168, 194 (1992) (defendant satisfied first prong of
Strickland
by showing counsel's failure to investigate and present to sentencer defendant's mental history and his failure to investigate defendant's background with the information he possessed).
In presenting its findings and announcing its ruling, the circuit court agreed with defendant that the correctional officials were readily available as mitigation witnesses, had counsel investigated to locate them. However, the court held that Bjekich had no duty to produce these witnesses because he had made a reasonable choice to rely on defendant's testimony instead. I believe that the record conclusively establishes that, contrary to Bjekich's testimony, the defense plan was to have defendant testify
only
if the motion
in limine
were granted. The majority refuses to disturb the circuit court's credibility determination on this matter. But regardless of whether the record refutes Bjekich's claim that he believed that defendant would testify at his resentencing hearing, Bjekich had no excuse for failing to investigate and present other independent evidence about defendant's good prison record.
Bjekich testified at the post-conviction hearing that one of the defense goals at resentencing was to show the jury that defendant had a good prison record, and Bjekich recognized the importance of this evidence, stating that at least one juror might be inclined to vote against the death penalty if it were shown that defendant could serve a prison sentence without hurting other people. While acknowledging that it would have been helpful to have correctional officials testify in defendant's behalf and despite possessing a copy of defendant's Department of Corrections records which could have led him to officials willing to corroborate the mitigating information the records contained, Bjekich admitted he did nothing.
Nor did Bjekich even attempt to introduce the Department of Corrections records to establish defendant's good behavior. Rather, Bjekich stated that his plan at resentencing was to rely on defendant's testimony about his conduct while in prison to “humanize” him and show he had not been a “troublemaker.” However, Bjekich acknowledged that defendant's credibility would be severely impeached because he planned to contradict his previous testimony regarding his participation in the murders. Additionally, as noted by the United States Supreme Court in
Skipper v. South Carolina
, 476 U.S. 1, 8, 90 L. Ed. 2d 1, 9, 106 S. Ct. 1669, 1673 (1986), the testimony of a defendant or his family members about his good conduct in jail is “the sort of evidence that a jury naturally would tend to discount as self-serving.” Conversely, “[t]he testimony of more disinterested witnesses–and, in particular, of jailers who would have had no particular reason to be favorably predisposed toward one of their charges–would quite naturally be given much greater weight by the jury.”
Skipper
, 476 U.S. at 8, 90 L. Ed. 2d at 9, 106 S. Ct. at 1673.
In my opinion, defense counsel's decision to forgo an investigation and rely solely on defendant's testimony was objectively unreasonable, as it was “neither the product of an informed judgment nor a strategic decision reached after weighing all available options.”
People v. Madej
, 177 Ill. 2d 116, 136 (1997). Therefore, I would find that defendant satisfied the first prong of the
Strickland
test. See
Ruiz
, 177 Ill. 2d at 386-87 (defense counsel's failure to investigate and present mitigating evidence, which a thorough investigation of defendant's background would have revealed, could not be deemed a strategic decision and was representation which fell below objective standards of reasonableness). Further, I believe the circuit court correctly found that the second prong of the
Strickland
test was met,
i.e.
, that counsel's deficient performance so prejudiced the defense as to deny defendant a fair sentencing hearing.
“Mitigating evidence is extremely important under the Illinois capital sentencing scheme. Once an aggravating factor is found sufficient to impose the death penalty, there must be mitigating evidence sufficient to preclude the imposition of the death penalty.”
Perez
, 148 Ill. 2d at 194. Here, strong mitigating evidence existed which defense counsel failed to investigate and introduce. The resulting prejudice to defendant is clear.
As the majority notes, in
Skipper
, the United States Supreme Court reversed a state court's ruling that correctional officials' testimony as to a defendant's good conduct was irrelevant and inadmissible, holding that a defendant's disposition to make a well-behaved and peaceful adjustment to life in prison is an aspect of his character that is by its nature relevant to the sentencing determination in a capital case. The Court found that the defendant was therefore deprived of his right to place before the sentencer relevant evidence in mitigation of punishment, stating:
“[T]he jury could have drawn favorable inferences from this testimony regarding [the defendant's] character and his probable future conduct if sentenced to life in prison. *** [T]here is no question but that such inferences would be `mitigating' in the sense that they might serve `as a basis for a sentence less than death.' [Citation.]”
Skipper
, 476 U.S. at 4-5, 90 L. Ed. 2d at 6-7, 106 S. Ct. at 1671.
The Court concluded that “under any standard, the exclusion of the evidence was sufficiently prejudicial to constitute reversible error.”
Skipper
, 476 U.S. at 8, 90 L. Ed. 2d at 9, 106 S. Ct. at 1673.
While we are dealing herein with counsel's ineffectiveness rather than a trial court's erroneous ruling as the reason for the absence of the mitigation evidence, I believe the
Skipper
court's holding that the error is prejudicial “under any standard” of review demonstrates that counsel's failure to present this evidence meets the prejudice prong of
Strickland
. See also
Kubat v. Thieret
, 867 F.2d 351, 369 (7th Cir. 1989) (failure to introduce character witnesses constituted ineffective assistance at capital sentencing hearing, particularly where at least one of the 15 available character witnesses was a deputy sheriff). This failure raises a serious doubt as to the reliability of defendant's resentencing. See
Ruiz
, 177 Ill. 2d at 387-88;
Perez
, 148 Ill. 2d at 194-95. Here, as in
Kubat
, 867 F. 2d at 369 “[t]he introduction of testimony by a law enforcement officer that the defendant had a salvageable character might not have gone totally unnoticed by the jury.”
Thus, I concur with the following findings made by the circuit court at defendant's evidentiary hearing:
“The essence of the [post-conviction] allegation is that the defense had an almost unique opportunity to bring a number of disinterested witnesses to testify that [defendant's] conduct in the penitentiary, the Department
of Corrections, was without violence, without threats, and that he would be able to function in that kind of a structured society without the necessity for society killing him.
* * *
The affidavits submitted by [defendant], in fact, showed that those people were out there and they were available, and the testimony of those people, who aren't related to him, usually has a lot more impact with a jury than the testimony of relatives. There is a significant basis to believe in this case that had that testimony been in this record, one juror might have been convinced that while [defendant] may have deserved to die for what he did, he didn't need to die.”
Stated another way, there is a reasonable probability that had the jury known of the evidence defense counsel failed to investigate and present, the jury “would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.”
Strickland
, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2069.
I therefore conclude that defendant was deprived of the effective assistance of counsel at his capital resentencing hearing and I would accordingly reverse the judgment of the circuit court denying post-conviction relief. Defendant's death sentence should be vacated and this cause remanded to the circuit court for resentencing. Because Illinois' death penalty law is unconstitutional (
People v. Bull
, No. 81578 (November 10, 1998) (Harrison, J., dissenting)), the circuit court should be directed to impose a sentence other than death.
JUSTICE McMORROW, also dissenting:
Except as herein noted, I join in the dissenting opinion filed by Justice Harrison. I dissent from Justice Harrison's proffered disposition of this case. In my view, this cause should be remanded to the circuit court for a new unrestricted sentencing hearing.
JUSTICE NICKELS, also dissenting:
I join in that portion of Justice Harrison's dissent which would hold that defendant's death sentence should be vacated. I do not join that part of the dissent which reads: “Because Illinois' death penalty law is unconstitutional [citation], the circuit court should be directed to impose a sentence other than death.” I believe that this cause should be remanded to the circuit court for a new sentencing hearing.
FOOTNOTES
1:
Defendant's contention, however, that Morrissey “had no strategic reason” for not undertaking an investigation of the named guards does have the familiar ring of a
Strickland
claim,
i.e.
, counsel's decision to forgo the investigation was objectively unreasonable, as it was neither the product of an informed judgment nor a strategic decision reached after weighing all available options. As noted above, such a sixth amendment based claim is not cognizable under the Act.
2:
Cause, I note, has been defined as “ ` “some objective factor external to the defense [that] impeded counsel's efforts” to raise the claim' in an earlier proceeding.”
Flores
, 153 Ill. 2d at 279 quoting
McCleskey v. Zant
, 499 U.S. 467, 493, 113 L. Ed. 2d 517, 544, 111 S. Ct. 1454, 1470 (1991), quoting
Murray v. Carrier
, 477 U.S. 478, 488, 9 L. Ed. 2d 397, 408, 106 S. Ct. 2639, 2645 (1986). Moreover, the United States Supreme Court has identified objective factors that constitute cause to include “ ` “interference by officials” ' that makes compliance with the State's procedural rule impracticable, and `a showing that the factual or legal basis for a claim was not reasonably available to counsel.' [Citation.] In addition, constitutionally `[i]neffective assistance of counsel ... is cause.' [Citation.] Attorney error short of ineffective assistance of counsel, however, does not constitute cause ***.”
McClesky
, 499 U.S. at 493-94, 113 L. Ed. 2d at 544, 111 S. Ct. at 1470.
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
____________
No. 02-1577SI
____________
United States of America, *
*
Appellee, *
* On Appeal from the United
v. * States District Court
* for the Southern District
* of Iowa.
Albert A. Wheeldon, *
*
Appellant. *
___________
Submitted: October 8, 2002
Filed: December 27, 2002
___________
Before BOWMAN, RICHARD S. ARNOLD, and LOKEN, Circuit Judges.
___________
RICHARD S. ARNOLD, Circuit Judge.
This appeal involves a 30 month sentence imposed on Albert Wheeldon for
committing bankruptcy fraud. One of the principal factors determining the sentence
under the Guidelines is the amount of loss inflicted by the fraud. See U.S.S.G.
§ 2B1.1(b). Sometimes the computation of loss is complicated. What happens, for
example, if the actual loss differs from the intended loss? In general, under
Application Note 2 to the Guideline just cited, loss means the greater of actual loss
or intended loss. In the present case, there was no actual loss: the discharge that Mr.
Wheeldon was attempting to obtain in bankruptcy by fraud was never granted. So the
issue is the amount of the intended loss. Here, the defendant concealed the value of
certain assets. The total amount of debt for which he sought discharge was a larger
figure. Which of these two numbers is the intended loss for Guidelines purposes?
The District Court held, in accordance with the position taken by the government, that
the larger figure, the total amount of debt for which discharge was sought, was the
relevant one. With respect, we disagree. The sentence will be vacated, and the cause
remanded for further proceedings in accordance with this opinion.
I.
Albert Wheeldon applied for and received social security disability benefits in
late 1990. The benefits were to be terminated if he regained the ability to work. Mr.
Wheeldon began to operate a small lawn-care service around that time. His services
included mowing lawns, removing snow, and so forth. It is not clear exactly how
much revenue his business generated. For each of the years 1997 through 2000, the
defendant deposited between $10,000 and $20,000 into his checking account. He
received disability benefits while running his small business for a decade. Eventually
a neighbor reported Mr. Wheeldon’s fraud to the Inspector General, who began an
investigation.
In November of 2000, Mr. Wheeldon filed a Chapter 7 bankruptcy petition.
He represented that he had no assets or income. Two months later he sold his lawn-
care equipment and customer list for $8,500. He was indicted for theft of government
property (wrongfully received disability benefits), making false statements to the
Social Security Administration, concealing assets from his creditors, and making false
statements in his bankruptcy filings. A jury found him guilty on all counts. He was
sentenced to 30 months in jail to be followed by three years of supervised release.
The Sentencing Guidelines require the trial court to determine the extent of the
loss the defendant intended to inflict. See U.S.S.G. § 2B1.1 & App. Note 2 (2000).
-2-
Mr. Wheeldon sought to have $139,528.71 in debts discharged in his bankruptcy.
The District Court said:
I think, at least under my reading of the law, and as a finding of fact, I’m
going to find that the intention of the defendant was to deprive the
government and [his] creditors . . . of . . . the amount of $139,528.71.
That, I’m going to find that’s the loss of this case that’s attributable to
the defendant, and I think the Seventh Circuit case in Parsons, the
circuit’s two opinions in Edgar and Dolan make it so that I have to make
that finding.
Sentencing Tr. 33. Under Sentencing Guideline § 2F1.1(b)(1)(H) (2000), this finding
of fact resulted in a seven-level increase in Mr. Wheeldon’s base offense level.1 His
final offense level was nineteen. He argues that the most he could have intended his
creditors to lose was $64,600.70, the assets of his lawn-care business and the amount
he received in disability benefits.
II.
The interpretation of the Sentencing Guidelines is a question of law. United
States v. Willis, 997 F.2d 407, 417 (8th Cir. 1993). In this case, where the property
concealed from creditors was worth a great deal less than the total amount of debt
sought to be discharged, what is the measure of intended loss?
We have already referred to Application Note 2. Under this provision and our
opinion in United States v. Dolan, 120 F.3d 856, 870 (8th Cir. 1997), the probable
intended loss should be used if that amount is larger than the actual loss. Here,
however, Mr. Wheeldon’s fraud was discovered, a discharge in bankruptcy was
1
We apply the Sentencing Guidelines in effect on November 1, 2000, in this
case.
-3-
refused, and his bankruptcy petition was dismissed. His creditors therefore never
suffered an actual loss on account of the fraud. The relevant figure for sentencing
purposes is therefore the intended loss.
In Dolan, the value of the concealed asset was greater than the amount of the
debt sought to be discharged. We held that the relevant figure for sentencing
purposes was the amount of the debt. This was an upper limit on what the creditors
could possibly have lost, and therefore an upper limit on both intended loss and actual
loss.2 In Dolan, in a bankruptcy-fraud situation, the intended loss was the lesser of
the value of the assets concealed and the value of the debtor’s liabilities. 120 F.3d
at 870.3
It belies reality to argue that Mr. Wheeldon, or a debtor similarly situated,
intended to defraud his creditors of everything he owed them solely because he failed
to disclose all of his (rather modest) assets. Suppose Mr. Wheeldon owed creditors
a million dollars. He filed a petition in bankruptcy seeking a discharge, which would
2
Under U.S.S.G. § 2B1.1, Application Note 2(A)(ii)(II) (2002), intended loss
is said to include “intended pecuniary harm that would have been impossible or
unlikely to occur (e.g., as in a government sting operation, or an insurance fraud in
which the claim exceeded the insured value).” We think that these instances are
distinguishable from the present situation. When the government is conducting a
sting operation, for example, the defendant presumably does not know about it. His
subjective intention is to produce a certain loss, despite the fact that, because he is
dealing with the government, that loss will never actually occur. Here, however,
defendant knew, as well as anybody did, the value of his lawn-care equipment and
customer list. He could not have intended to deprive his creditors of more than that
value.
3
The government points out that the case cited in Dolan for this proposition,
United States v. Edgar, 971 F.2d 89, 95 (8th Cir. 1992), does not explicitly support
it. This is true, but the fact of the Dolan holding remains, and we are bound by it. In
any event, we believe the rule stated is sound.
-4-
of course have covered the entire million. He represented that he had nothing. In
fact, he did have a few hundred dollars worth of assets, which he concealed from the
court. We cannot agree that the debtor’s intention, in these circumstances, was to
inflict a loss of a million dollars. The government rightly emphasizes that
concealment of the lawn-care business as an asset was not the only count of
bankruptcy fraud on which Mr. Wheeldon was convicted. He was also misleading
about whether he was engaged in any business. But the material misrepresentation
to creditors must be limited to the assets they would have known about if the petition
had been truthful. Only that amount can be the intended loss for Guidelines purposes.
We have noted that, about two months after the filing of the bankruptcy
petition, Mr. Wheeldon sold his lawn-care business for $8,500.00. That is certainly
some evidence of what the business was worth. It is not necessarily conclusive. The
District Court will be free, on remand, to conduct additional proceedings to determine
the value of Mr. Wheeldon’s entire estate, and, in doing so, to consider such further
evidence, if any, as either side wishes to offer.
The judgment is reversed, and the cause remanded to the District Court for
further proceedings consistent with this opinion.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-5-
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Matter of Perez v Venettozzi (2020 NY Slip Op 02333)
Matter of Perez v Venettozzi
2020 NY Slip Op 02333
Decided on April 23, 2020
Appellate Division, Third Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered: April 23, 2020
526390
[*1]In the Matter of Anthony Perez, Petitioner,
vDonald Venettozzi, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Calendar Date: March 20, 2020
Before: Egan Jr., J.P., Lynch, Clark, Mulvey and Pritzker, JJ.
Anthony Perez, Cape Vincent, petitioner pro se.
Letitia James, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review two determinations of the Commissioner of Corrections and Community Supervision finding petitioner guilty of violating a prison disciplinary rule.
After his urine twice tested positive on two separate dates for the presence of THC-50 during random drug tests, petitioner was charged in two misbehavior reports with using a controlled substance. Following separate tier III disciplinary hearings, petitioner was found guilty of drug use in two determinations, dated May 31, 2017 and June 26, 2017. The determinations were affirmed on administrative review, and this CPLR article 78 proceeding ensued.
Initially, the Attorney General has advised this Court that the June 26, 2017 determination has been administratively reversed, all references thereto have been expunged from petitioner's institutional record and the mandatory $5 surcharge has been refunded to petitioner's inmate account. To the extent that petitioner seeks to be restored to the status that he enjoyed prior to the June 2017 disciplinary determination, he is not entitled to such relief (see Matter of Black v Annucci, 179 AD3d 1371, 1372 [2020]; Matter of Ortiz v Venettozzi, 167 AD3d 1200, 1200 [2018]). As petitioner has received all the relief to which he is entitled with regard to this determination, that part of the petition challenging said determination must be dismissed as moot (see Matter of Nelson v Annucci, 165 AD3d 1339, 1340 [2018]; Matter of Taylor v Katz, 6 AD3d 836, 837 [2004]).
With regard to the May 31, 2017 determination, the misbehavior report, positive EMIT test results and related documentation, together with the hearing testimony of the correction officer who tested the sample, provide substantial evidence supporting the determination of guilt (see Matter of Ayuso v Venettozzi, 170 AD3d 1407, 1407 [2019]; Matter of McKanney v Annucci, 170 AD3d 1354, 1354 [2019]). Contrary to petitioner's contention, the Hearing Officer did not improperly deny him copies of the test results of the inmate who most recently tested positive for THC-50 before the testing of petitioner's specimen or the results of all of the inmates tested on that day, as such evidence was irrelevant to the charge against petitioner (see Matter of Williams v Annucci, 140 AD3d 1498, 1499 [2016]; Matter of Pujals v Fischer, 87 AD3d 767, 767 [2011]; Matter of McCorkle v Bennett, 8 AD3d 918, 919 [2004]). Petitioner's remaining contentions are either unpreserved or lacking in merit.
Egan Jr., J.P., Lynch, Clark, Mulvey and Pritzker, JJ., concur.
ADJUDGED that the portion of the petition challenging the determination dated June 26, 2017 is dismissed, as moot, without costs.
ADJUDGED that the determination dated May 31, 2017 is confirmed, without costs, and petition dismissed to that extent.
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642 F.3d 685 (2011)
In re KOREAN AIR LINES CO., LTD., ANTITRUST LITIGATION,
Soon Ja Chun, Individually and on behalf of all others similarly situated; Bernard Jung Kim, Individually and on behalf of all others similarly situated; Elizabeth Bahn, Plaintiffs-Appellants,
v.
Korean Airlines Company, Ltd.; Asiana Airlines Inc., Defendants-Appellees.
No. 08-56385.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted September 2, 2010.
Filed April 18, 2011.
*688 Patrick J. Coughlin, Joseph D. Daley, Frank J. Janecek, Jr., and Mary Lynne Calkins of Coughlin Stoia Geller Rudman & Robbins LLP, and Christopher M. Burke and Kristen M. Anderson of Scott + Scott LLP, Jared H. Beck and Elizabeth Lee Beck, Beck & Lee, Miami, FL, for the plaintiffs-appellants.
Ian Simmons, Sri Srinivasan, Irving L. Gornstein, Alexander Okuliar, Kathryn E. Tarbert, and Anton Metlitsky of O'Melveny & Myers LLP, and Willard K. Tom, Peter E. Halle, J. Clayton Everett, Jr., and Joseph Brooks of Morgan, Lewis & Bockius LLP, for the defendants-appellees.
*689 Before: ALEX KOZINSKI, Chief Judge, DIARMUID F. O'SCANNLAIN and RONALD M. GOULD, Circuit Judges.
OPINION
GOULD, Circuit Judge:
Plaintiffs Soon Ja Chun, Bernard Jung Kim, and Elizabeth Bahn ("Plaintiffs"), acting individually and on behalf of those similarly situated, appeal the dismissal of their putative class action asserting antitrust claims against Defendants Korean Air Lines Co., Ltd. and Asiana Airlines, Inc. ("Defendants" or "Korean Air and Asiana"). Before its dismissal, their case was one of many similar suits pending against Defendants on the same multidistrict litigation docket. Plaintiffs allege that the fares they paid for airline tickets were unlawfully excessive, in violation of both state and federal antitrust and consumer protection laws. The district court dismissed Plaintiffs' state law claims as preempted by federal law and denied Plaintiffs' motion to amend their complaint to add federal claims, effectively extinguishing Plaintiffs' case. Thereafter, Plaintiffs' complaint was dismissed with prejudice.
We have jurisdiction, pursuant to 8 U.S.C. § 1291, to review the district court's dismissal. We hold, as a matter of first impression, that the Airline Deregulation Act of 1978, 49 U.S.C. § 41713, preempts state regulation of foreign air carriers, and we affirm the district court's dismissal of Plaintiffs' state law claims. We conclude that the district court erred in denying Plaintiffs leave to amend to add federal claims. To the extent that Plaintiffs seek review of the interlocutory case management order governing the pretrial coordination of pending cases in the same multidistrict litigation, however, we lack jurisdiction to review such non-final decisions. We affirm in part, vacate in part, and remand for proceedings consistent with this opinion.
I
Plaintiffs allege that Defendants illegally conspired to impose a surcharge on passenger airfares. Plaintiffs are indirect purchasers of airline tickets; that is, they did not purchase tickets directly from Korean Air or Asiana but instead bought them from direct purchasers such as travel agents and consolidators.
Plaintiffs brought their action for violations of federal antitrust and related state laws in the Central District of California. Their initial complaint sought damages and injunctive relief under the Sherman Act, and under state antitrust and unfair competition laws, on behalf of two putative classes. The case was transferred intradistrict to Judge S. James Otero, to whom similar actions, alleging virtually identical conduct, had been sent for pretrial purposes as part of multidistrict litigation ("MDL"). See In re Korean Airlines Co., Ltd. Antitrust Litig., No. 07-ml-01891 (C.D. Cal. filed Dec. 28, 2007) (hereinafter "MDL No. 1891").[1] The district court consolidated the case with other pending cases and ordered that all plaintiffs together file an amended consolidated complaint.
*690 Shortly thereafter, Plaintiffs filed an amended complaint, asserting then that their action was "brought only under state laws and only on behalf of indirect purchasers of Korean Air and Asiana passenger tickets" (emphasis in original). In a status report tendered to the district court, Plaintiffs urged that their case differed from the other consolidated MDL cases, in that it was the only case that involved the indirect purchase of tickets from travel agents or consolidators rather than direct purchase from the airlines, and they recommended that the "direct" and "indirect" cases be placed on coordinated but separate tracks for pretrial purposes. At the next status conference, the district court accepted this division and set out parallel briefing schedules for Plaintiffs' indirect purchaser action and the consolidated direct purchaser actions. Plaintiffs' counsel, as the only firm to have brought a case with indirect purchaser plaintiffs, was appointed as interim counsel to pursue indirect purchaser actions. The district court also appointed different co-lead counsel to pursue claims on behalf of the direct purchaser plaintiffs.
Pursuant to the court's briefing schedule, both the direct and indirect purchaser plaintiffs filed second amended complaints. Plaintiffs' Second Amended Indirect Purchaser Class Action Complaint ("Original Second Amended Complaint") asserted claims predicated not only on state antitrust and unfair competition laws, as their first amended complaint had done, but also on the Sherman Act. The direct purchaser plaintiffs' second amended complaint alleged violations of federal antitrust laws only. As clarified in a subsequent stipulation made to the district court, however, the direct purchaser plaintiffs' second amended complaint included within its proposed class "persons who qualify as direct purchasers under Illinois Brick [Co. v. Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977)] or who would be deemed to be falling within an exception under Illinois Brick so that they have a claim as a direct purchaser under the Sherman Act." Stated another way, the direct purchasers' consolidated complaint sought to pursue federal claims for direct purchasers as well as for indirect purchasers who had standing under an Illinois Brick exception.
Three days after Plaintiffs filed their Original Second Amended Complaint, the direct purchaser plaintiffs submitted a proposed case management order ("CMO") intended to encompass all actions asserting Sherman Act claims. The CMO asserted that it would apply to:
all pending actions and all actions later instituted in, removed to, or transferred to this Court as part of MDL No. 1891 or [that] are otherwise related to these actions (collectively, "the Consolidated Actions") including, but not limited to, actions asserting claims under Section 1 of the Sherman Act, 15 U.S.C. § 1, or foreign law for alleged fixing of prices for passenger air transportation to or from the Republic of Korea, except for actions brought on behalf of indirect purchasers of passenger air transportation under the laws of the several states of the United States, such as Soon Ja Chun, et. al v. Korean Air Lines Co., Ltd., et al., Case No. CV 07-06542 SJO (AGRx). All such indirect purchaser actions shall be coordinated for pretrial purposes with the Consolidated Actions and subject to a separate case management order.
Plaintiffs objected to the CMO on procedural and substantive grounds, contending that they had not been consulted before its filing and that, in light of their Original Second Amended Complaint's reassertion of federal claims, it "potentially usurp[ed] the role of interim class counsel for indirect *691 purchasers." Plaintiffs filed their own proposed case management order ("proposed CMO") to govern actions of indirect purchaser plaintiffs.
Through a minute order, the district court approved the direct purchaser plaintiffs' CMO, rejected Plaintiffs' proposed CMO, and clarified its intentions regarding the appointment of interim lead counsel, explaining that it "intended that the Indirect Purchaser Plaintiffs would only represent those claims arising under state law." The district court struck Plaintiffs' Original Second Amended Complaint and directed Plaintiffs to file an amended complaint consistent with its order.
Plaintiffs thereafter filed a revised complaint ("Second Amended Complaint") asserting only state law claims, based on California unfair competition and unfair business practices laws, as well as on similar laws of nineteen other states and the District of Columbia. Defendants moved to dismiss the complaint, arguing, among other things, that Plaintiffs' claims for relief arising under state law are preempted by the express preemption provision of the Airline Deregulation Act of 1978 ("ADA"), 49 U.S.C. § 41713. Plaintiffs opposed the motion and later requested leave to reinstate their Sherman Act Claims.
The district court denied Plaintiffs' request to add Sherman Act claims, reaffirming its previous order "that the Indirect Purchaser Plaintiffs may only represent those claims arising under state law." The next day, the district court granted Defendants' motion to dismiss on preemption grounds. In a footnote, the court reiterated that it had denied Plaintiffs' request for leave to add claims under the Sherman Act on the basis of its "conclu[sion] that Plaintiffs may only assert state law claims."
Plaintiffs timely appeal the dismissal of their California state law claims, arguing that they are not preempted by federal law.[2] Plaintiffs also argue that denial of leave to amend was error and that they should be allowed to reinstate their federal antitrust claims on behalf of indirect ticket purchasers.
II
We first address Plaintiffs' argument that their California state law claims are not preempted by federal law. The district court held that Plaintiffs' state law claims were preempted by the ADA, which provides that a "[s]tate . . . may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart."[3] 49 U.S.C. § 41713(b)(1). Plaintiffs contend that Congress statutorily defined "air carrier" and "foreign air carrier" as mutually exclusive terms and, therefore, that Congress's use of the term "air carrier" in the preemption provision means that foreign air carriers are excluded from its reach. See id. §§ 40102(a)(2), (21). They also contend that their state law claims are not "related" to the price of an air carrier and *692 therefore are not preempted. We disagree.
A
Defendants argue that, for the purposes of the ADA preemption provision, Congress intended the term "air carrier" to encompass all air carriers, whether domestic or foreign, consistent with the term's ordinary meaning. In arguing that the provision has a more limited scope, Plaintiffs stress that Congress has defined the term "air carrier" as "a citizen of the United States undertaking by any means, directly or indirectly, to provide air transportation," 49 U.S.C. § 40102(a)(2), and the term "foreign air carrier" as "a person, not a citizen of the United States, undertaking by any means, directly or indirectly, to provide foreign air transportation," id. § 40102(a)(21).[4] Plaintiffs contend that Congress intended the terms "air carrier" and "foreign air carrier" to refer to different entities and that it consistently employed those terms for distinct uses. In this regard, they note that, in fifty-one separate provisions of law, Congress used both terms to make clear that a provision applies to both types of carriers. See, e.g., id. § 40101(a)(10) (using the phrase "air carrier or foreign air carrier"); id. § 40109(a) (using the phrase "air carriers and foreign air carriers"). Plaintiffs assert that, because Congress used only the term "air carrier" in the preemption provision, it did not intend to preempt state regulation of "foreign air carrier[s]."
An examination of the FAA shows that Congress's use of the term "air carrier" throughout the Act does not always correspond with that term's statutory definition and that "air carrier" is sometimes used to refer generally to both domestic and foreign airlines. For example, 49 U.S.C. § 44901(i) refers to "an air carrier providing air transportation under a certificate. . . or a permit." Only a domestic "air carrier" provides air transportation under a certificate, and only a "foreign air carrier" provides air transportation under a permit. See id. §§ 41102, 41302. Thus, the term "air carrier" in this context refers to both a domestic "air carrier" and a "foreign air carrier." Also, 49 U.S.C. § 44940(a)(2)(B)(ii) refers to "an air carrier described in subparagraph (A)," which in turn covers both "air carriers and foreign air carriers," see id. § 44940(a)(2)(A). Likewise, many of the FAA's subsections contain only the term "air carrier" in their titles even though their content plainly regulates both domestic and foreign operators. See id. § 40129(f) (subsection entitled "Eligibility of air carriers" refers to "air carrier[s]" and "foreign air carrier[s]" participating in collaborative decisionmaking pilot programs); id. § 44940(a)(2) (subsection entitled "Air carrier fees" authorizes the Secretary of Transportation to impose certain fees on "air carriers and foreign air carriers"); see also Carter v. United States, 530 U.S. 255, 267, 120 S.Ct. 2159, 147 L.Ed.2d 203 (2000) (noting that title of statute may be of use when it sheds light on an ambiguous phrase). Congress's occasional use of the term "air carrier" to include "foreign air carrier" counsels strongly that the meaning of "air carrier" is ambiguous in the ADA's statutory preemption provision.
(i)
"Once it is established that [a statutorily defined term has different *693 meanings in different sections], the term standing alone is necessarily ambiguous and each section must be analyzed to determine whether the context gives the term a further meaning that would resolve the issue in dispute." Robinson v. Shell Oil Co., 519 U.S. 337, 343-44, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997).[5] Here, the context in which the term appears in the preemption provision indicates that Congress intended that it apply to all air carriers and not only to domestic carriers.[6] The preemption provision prohibits state regulation of "an air carrier that may provide air transportation under this subpart." 49 U.S.C. § 41713(b)(1). The use of the modifying phrase "that may provide air transportation under this subpart" indicates that the term "air carrier" is defined in a particular way in this provision. See, e.g., Nw. Forest Res. Council v. Glickman, 82 F.3d 825, 834 (9th Cir.1996) ("We have long followed the principle that [s]tatutes should not be construed to make surplusage of any provision." (internal quotation marks omitted) (alteration in original)). Because the subpart to which the phrase refers, entitled "Economic Regulation," has provisions regulating both domestic and foreign air carriers, a sensible reading of the preemption provision implies that "air carrier" was intended to have its broader and ordinary meaning in this section of the statute. See 49 U.S.C. § 41101 et seq., Subtitle VII, Part A, Subpart II.
Plaintiffs argue, however, that the modifying phrase is consistent with their reading of "air carrier" and that the provision prohibits state regulation of a domestic "air carrier" that has permission to provide air transportation. Under Plaintiffs' interpretation, states could regulate a domestic "air carrier" that does not have permission to provide air transportation that is, a carrier flying illegally without a certificate from the Department of Transportation. Plaintiffs' interpretation is neither reasonable nor convincing. If accepted, it would mean that Congress wanted states to be able to regulate the prices and services of domestic air carriers that were not at all authorized to provide air transportation. It is unlikely that Congress would have created an explicit exception to allow state regulation of the prices and services of domestic air carriers that are not authorized to provide air transportation. See Armstrong Paint & Varnish Works v. Nu-Enamel Corp., 305 U.S. 315, 333, 59 S.Ct. 191, 83 L.Ed. 195 (1938) ("[T]o construe statutes so as to avoid results glaringly absurd, has long been a judicial function.").
(ii)
A review of the ADA preemption provision's purpose and legislative history similarly *694 indicates that Congress intended to prevent states from regulating foreign air carriers. See Cosmetic Ideas, Inc. v. IAC/InteractiveCorp., 606 F.3d 612, 618 (9th Cir.2010) ("When statutory language proves unclear, we work to discern its meaning by looking to the broader context of the statute as a whole and the purpose of the statute." (internal quotation marks omitted)); Merkel v. Comm'r of Internal Revenue, 192 F.3d 844, 848 (9th Cir.1999) ("[I]f the statute is ambiguous, we consult the legislative history, to the extent that it is of value, to aid in our interpretation." (internal quotation mark omitted)).
The purpose of the ADA's preemption provision is "[t]o ensure that the [s]tates would not undo federal deregulation with regulation of their own." Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992). "In addition to protecting consumers, federal regulation insures a uniform system of regulation and preempts regulation by the states" in a field where state-based variations "would be confusing and burdensome to airline passengers, as well as to the airlines." H.R. Rep. 98-793, at 4, 1984 U.S.C.C.A.N. 2857, 2860 (1984). This purpose would be undermined if states could regulate foreign air carriers. Reading the statutory scheme to preempt state regulation of domestic air carriers while permitting such regulation of foreign air carriers would create a confusing patchwork of regulations for airline passengers to navigate, as their decision to purchase tickets for international flights would carry different consequences depending on whether they bought tickets from a U.S.-based carrier or an airline headquartered in a foreign country. Such a result would not be consonant with Congress's express purpose in enacting the statute.
The legislative history behind the ADA also demonstrates that Congress intended to preserve its authority to regulate the airline industry by prohibiting states from regulating all air carriers, both domestic and foreign. As originally enacted in the context of the deregulation of domestic air transportation, see Sanchez v. Aerovias De Mexico, S.A. De C.V., 590 F.3d 1027, 1030 (9th Cir.2010), the ADA's preemption provision prohibited state regulation of carriers with authority "to provide interstate air transportation," 49 U.S.C.App. § 1305(a)(1) (1978).[7] Then, as now, only domestic air carriers could provide "interstate air transportation." Following on the heels of the ADA, Congress extended deregulation to foreign air transportation through the International Air Transportation Competition Act of 1979 ("IATCA"), Pub.L. No. 96-192, 94 Stat. 35 (1980). With almost identical language to that used in the domestic deregulation context, the IATCA sought to promote competition in international air transportation through "[t]he placement of maximum reliance on competitive market forces and on actual and potential competition." Id. § 102(a)(4).
The Civil Aeronautics Board Sunset Act of 1984 ("Sunset Act"), Pub.L. No. 98-443, 98 Stat. 1703 (1984), amended the ADA's preemption provision by deleting the term "interstate," so that preemption extended to "any air carrier having authority . . . to provide air transportation." Id. The Sunset Act was born out of a belief that, as the Congressional deregulatory effort was coming to a close, "legislation [was] needed *695 to clarify the ADA and to ensure that some limited but highly important [Civil Aeronautics Board ("CAB")] functions, such as consumer protection, [would] continue to be carried out by other agencies after CAB sunset." H.R. Rep. 98-793, at 2, 1984 U.S.C.C.A.N. 2857, 2858. It conferred upon the Department of Transportation ("DOT") the CAB's authority "to prevent unfair or deceptive practices or unfair methods of competition in air transportation. . . [and] to ensure that carriers providing interstate or overseas air transportation [were] fit, willing, and able to perform." Id. at 13. "[I]n administering these responsibilities DOT [was to] preserve the competitive direction adopted in the [ADA] and the [IATCA]." Id. at 8. As it is clear that the ramifications of the IATCA were in the minds of the Sunset Act's drafters, the Sunset Act's deletion of the limiting term "interstate" from the ADA preemption provision leads us to conclude that Congress intended to expand the ADA's preemptive scope to cover state regulation of "foreign air carrier[s]."[8]
(iii)
The applicable case law supports our determination that state law claims are preempted. Although few courts have explicitly discussed the issue raised by Plaintiffs, numerous courtsincluding the Supreme Courthave applied the provision to foreign carriers without reservation. See, e.g., Morales, 504 U.S. at 383-85, 112 S.Ct. 2031 (concluding that state law claims were preempted with respect to all respondents, including foreign air carriers); Buck v. Am. Airlines, Inc., 476 F.3d 29, 36 (1st Cir.2007) (concluding that preemption prevented state law claims against six foreign air carriers); Read-Rite Corp. v. Burlington Air Express, Ltd., 186 F.3d 1190, 1197 (9th Cir.1999) (concluding state law claim for cargo damage preempted against foreign air carrier).
The few courts that have squarely considered the issue have determined that the preemption provision applies equally to domestic and foreign air carriers. In addition to the district court's persuasive reasoning in this case,[9] we find instructive the reasoning of the district court in Lawal v. British Airways, PLC, 812 F.Supp. 713 (S.D.Tex.1992). There, the district court analyzed the pre-1994 language of the preemption provision, which provided for preemption of state laws applied to "any air carrier having authority . . . to provide air transportation." Id. at 717 (emphasis omitted). The court concluded that "the prefatory use of the word `any' would be mere surplusage" if the provision were read to apply to only a domestic "air carrier" and that the modifying language extended to "various types of carriers, including foreign air carriers." Id. at 717-18. Because the 1994 revision to the preemption provision was intended to effect no substantive change, see supra note 8, such reasoning strengthens our decision *696 that the preemption provision is not limited to domestic air carriers.
(iv)
Our conclusion that the ADA precludes state regulation of both domestic and foreign air carriers is reinforced by an important pragmatic concern: If the preemption provision only sheltered domestic air carriers, it would be more difficult for foreign carriers to enter the U.S. market for international flights. This added burden would be to the detriment of U.S. consumers, who benefit from price competition between as many carriers as possible. Moreover, discriminating against foreign carriers would be contrary to our country's general preference for free trade. See U.S. Dep't of Commerce, Strategic Plan: FY 2007-FY 2012, 7-8, available at http:// www.osec.doc.gov/bmi/Budget/07strplan/DOC07strplan.pdf ("The [U.S.] Department [of Commerce] is committed to free trade by opening and expanding foreign markets for U.S. goods and services and improving U.S. export performance. . . . Unfair trade negatively affects the ability of U.S. firms to sell overseas and impacts the U.S. jobs that depend on the Nation's international trade."). If state regulation makes it harder for foreign air carriers to compete with domestic carriers, U.S.-based airlines might soon encounter additional, retaliatory barriers when they try to sell tickets abroad.
(v)
Finally, the approach championed by Plaintiffs would discriminate against foreign air carriers in favor of domestic ones, contrary to U.S. treaty obligations mandating nondiscrimination. See, e.g., Convention on International Civil Aviation, art. 11, Dec. 7, 1944, 61 Stat. 1180, 15 U.N.T.S. 295 (providing for application of laws and regulation "without distinction as to nationality" of airlines of signatory states); U.S.-Korea Air Transport Agreement, art. 11, June 9, 1998, State Dept. No. 98-111, 1998 WL 468488 ("Each Party shall allow a fair and equal opportunity for the designated airlines of both Parties to compete in providing the international air transportation governed by this Agreement."); Treaty of Friendship, Commerce and Navigation, U.S.-Korea, art. 1, Nov. 28, 1956, 8 U.S.T. 2217 ("Each Party shall at all times accord equitable treatment to the persons, property, enterprises and other interests of nationals and companies of the other Party."). This result would offend the longstanding principle that statutes should be construed in accordance with international law. See Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118, 2 L.Ed. 208 (1804) ("[A]n act of Congress ought never to be construed to violate the law of nations if any other possible construction remains....").
For these reasons, we hold that the ADA's preemption of state regulation covers regulation of all air carriers, whether domestic or foreign.
B
We further conclude that Plaintiffs' state law claims, alleging that Defendants engaged in price-fixing in violation of the California Business and Professions Code and unfair competition laws, are "related to a price" of an air carrier for purposes of preemption under the ADA. 49 U.S.C. § 41713(b)(1). The words of the ADA preemption provision "express a broad pre-emptive purpose," such that "[s]tate enforcement actions having a connection with, or reference to, airline `rates, routes, or services' are pre-empted." Morales, 504 U.S. at 383-84, 112 S.Ct. 2031. The district court accurately concluded that Plaintiffs seek "to regulate the manner by which Defendants set fares, or components *697 of fares, for air transportation services." Because Plaintiffs allege a price-fixing conspiracy, their claims are plainly related to a price of an air carrier and consequently are preempted.
Contrary to Plaintiffs' assertion, it is immaterial that the state laws do not interfere with the purposes of the federal statute or that they might be consistent with promoting competition and deregulation. The Supreme Court has rejected this argument. Id. at 386-87, 112 S.Ct. 2031 (stating that, for the purpose of the ADA preemption analysis, the consistency of state and federal laws is "beside the point"). Recently, in Rowe v. New Hampshire Motor Transport Ass'n, 552 U.S. 364, 128 S.Ct. 989, 169 L.Ed.2d 933 (2008), the Supreme Court reiterated that a state law "having a connection with, or reference to" rates, routes, or services is preempted and that "it makes no difference whether a state law is consistent or inconsistent with federal regulation." Id. at 370-71, 128 S.Ct. 989 (internal quotation marks omitted).
Plaintiffs unsuccessfully argue that the Supreme Court's decision to limit the scope of the term "relate to" in the ERISA preemption provision, see De Buono v. NYSA-ILA Med. & Clinical Servs. Fund, 520 U.S. 806, 812-13, 117 S.Ct. 1747, 138 L.Ed.2d 21 (1997), shows that it also intended to limit the ADA preemption provision. The Supreme Court's 2008 Rowe decision held that "it makes no difference whether a state law is `consistent' or `inconsistent' with federal regulation." 552 U.S. at 371, 128 S.Ct. 989. Although the Court was interpreting the Federal Aviation Administration Act, it looked to the ADA's "identical" preemption provision for guidance. Id. at 370, 128 S.Ct. 989. If the Supreme Court intended to narrow the scope of these preemption provisions because of its ERISA decisions, it could have done so in Rowe, but it did not. See Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) ("`If a precedent of [the Supreme] Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to [the Supreme] Court the prerogative of overruling its own decisions.'" (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989) (alteration omitted)); Musladin v. Lamarque, 555 F.3d 830, 837 (9th Cir.2009) ("The Supreme Court has made clear that the circuit courts must follow Supreme Court precedent until the Supreme Court itself declares it no longer binding."); United Airlines, Inc. v. Mesa Airlines, Inc., 219 F.3d 605, 608 (7th Cir.2000) ("[I]f developments in pension law have undercut holdings in air-transportation law, it is for the Supreme Court itself to make the adjustment. Our marching orders are clear: follow decisions until the Supreme Court overrules them.")).
We conclude that Plaintiffs' state law claims are preempted, and we affirm the district court's order dismissing them.
III
We next address Plaintiffs' challenge to the district court's denial of leave to amend their complaint to assert previously abandoned federal claims.[10] In arguing that the district court erred in refusing to let them add federal antitrust *698 claims, Plaintiffs challenge two separate decisions of that court: (1) its adoption of the direct purchaser plaintiffs' CMO in its March 14, 2008 order, and (2) its refusal to allow Plaintiffs to add federal antitrust claims via amendment.[11] Plaintiffs contend that the district court erred in assigning responsibility for litigating purported indirect purchaser claims to direct purchaser plaintiffs' counsel because such counsel are incapable of adequately pursuing the interests of both direct and indirect purchasers, given an inherent conflict of interest between the two groups. Plaintiffs argue that they instead should have been allowed to bring federal antitrust claims on behalf of indirect purchaser plaintiffs. Defendants, for their part, portray both of the district court's decisions as unreviewable interlocutory case management orders whose sole effect is to permit different counsel to pursue Plaintiffs' claims. They argue that Plaintiffs' federal claims are still aliveeven though their case has been dismissedand that the district court may revisit and reassess problems associated with potential conflicts of interest, if necessary, as the litigation progresses.
We have jurisdiction to review the district court's denial of leave to amend pursuant to 28 U.S.C. § 1291. Although such orders are usually not immediately appealable, see, e.g., Skoog v. Cnty. of Clackamas, 469 F.3d 1221, 1228-29 (9th Cir.2006), the district court's denial of leave to amend to add federal claims, in conjunction with its dismissal of Plaintiffs' state law claims, effectively extinguished Plaintiffs' entire case, see, e.g., Watson v. Weeks, 436 F.3d 1152, 1155 (9th Cir.2006) (finding jurisdiction to review denial of leave to amend where entire complaint was dismissed). The district court's denial of leave to add Sherman Act claims thus "end[ed] the litigation on the merits and [left] nothing for the court to do but execute judgment," rendering the decision final and reviewable. Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978). We conclude that the district court erred in denying Plaintiffs leave to amend based on its determination that other counsel would pursue the federal antitrust claims. However, we lack jurisdiction at this juncture to assess the wisdom of the district court's decision to place pretrial responsibility for both direct and indirect purchaser claims in the hands of counsel for direct purchaser plaintiffs only.
A
Defendants contend that Plaintiffs' claims survive and are simply being pursued by different counsel. They therefore argue that Plaintiffs' appeal of the district court's denial of leave to amend is premature. But Defendants misapprehend the nature of multidistrict litigation.
The MDL process seeks to "promote the just and efficient conduct" of "civil actions involving one or more common questions of fact [that] are pending in different districts" by permitting their transfer to a single district for "coordinated or consolidated pretrial proceedings." 28 U.S.C. § 1407(a). To promote efficiency in a context involving the juggling of *699 dozens or thousands of independent cases, a "district court needs to have broad discretion to administer the proceeding as a whole." In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1232 (9th Cir.2006) (hereinafter "In re PPA"). A district judge exercising authority over cases transferred for pretrial proceedings "inherits the entire pretrial jurisdiction that the transferor district judge would have exercised if the transfer had not occurred." 15 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 3866 (3d ed. 2010). Such authority is broad and encompasses the power to decide dispositive pretrial motions. In re PPA, 460 F.3d at 1231 (stating that a transferee judge's power "includes authority to decide all pretrial motions such as motions to dismiss, motions for summary judgment, motions for involuntary dismissal under Rule 41(b), motions to strike an affirmative defense, and motions for judgment pursuant to a settlement"); see In re Patenaude, 210 F.3d 135, 144 (3d Cir. 2000).
Transferee courts have handled such procedural matters as dismissal of original complaints, filing of amended omnibus complaints, and resolution of motions. Minisan v. Danek Med., Inc., 79 F.Supp.2d 970, 971 (N.D.Ind.1999). A transferee court may require parties to file consolidated amended complaints superseding original ones. Armstrong v. LaSalle Bank Nat'l Ass'n, 552 F.3d 613, 614 (7th Cir.2009). A transferee court may rule on pretrial motions. In re Eli Lilly & Co., Prozac Prods. Liab. Litig., 789 F.Supp. 1448, 1450 (S.D.Ind.1992). It may enforce venue requirements. In re Tax Refund Litig., 723 F.Supp. 922, 924 (E.D.N.Y.1989). It may require individuals to attend settlement conferences. In re Air Crash Disaster at Stapleton Int'l Airport, Denver, Colo., on Nov. 15, 1987, 720 F.Supp. 1433, 1436 (D.Colo.1988). It may permit amendment or adjustment of pleadings. Sentner v. Amtrak, 540 F.Supp. 557, 558 (D.N.J.1982). It may handle and resolve discovery motions, including those involving scope of discovery, appropriateness of protective orders or sanctions, and regulation of depositions. See generally In re Flat Glass Antitrust Litig., 288 F.3d 83 (3d Cir.2002); In re Burlington N., Inc., 679 F.2d 762 (8th Cir.1982); In re Vioxx Prods. Liab. Litig., 501 F.Supp.2d 789 (E.D.La.2007); In re Air Crash at Charlotte, N.C. on July 2, 1994, 982 F.Supp. 1052 (D.S.C.1995); Meeder v. Superior Tube Co., 72 F.R.D. 633 (W.D.Pa.1976).
We confirm the general rule that, in multidistrict litigation, a transferee judge can handle all types of pretrial matters that otherwise would have been handled by the transferor court. A corollary to this principle is that the MDL transferee court is generally bound by the same substantive legal standards, if not always the same interpretation of them, as would have applied in the transferor court.[12] However, the district court's jurisdiction *700 as an MDL transferee court is generally coextensive with pretrial proceedings. As a result, a district court does not have authority to transfer a case to itself for trial, Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 28, 118 S.Ct. 956, 140 L.Ed.2d 62 (1998), nor may it consolidate actions for all purposes, as might be proper in other circumstances pursuant to Federal Rule of Civil Procedure 42, see Wright et al., Federal Practice & Procedure § 3866. Within the context of MDL proceedings, individual cases that are consolidated or coordinated for pretrial purposes remain fundamentally separate actions, intended to resume their independent status once the pretrial stage of litigation is over.[13]
In addressing motions to amend brought in the context of multidistrict litigation, courts have proceeded in a manner that respects these principles. The substantive rules governing a district court's consideration of a motion to amend are the same as those for ordinary litigation on an ordinary docket. See, e.g., Khulumani v. Barclay Nat'l Bank Ltd., 504 F.3d 254, 260 (2d Cir.2007) (vacating denial of motion to amend where district court's decision was predicated on legal error); In re Ford Motor Co. Ignition Switch Prods. Liab. Litig., 39 F.Supp.2d 458, 467 (D.N.J.1999) (assessing MDL plaintiffs' motion for leave to file an amended complaint under standard discretionary considerations); In re Brand Name Prescription Drugs Anti-trust Litig., 177 F.R.D. 414, 419 (N.D.Ill. 1997) (same). There might be room for some slight variations in approach to applying the standards for amendment, as we have noted in the context of motions to dismiss. See In re PPA, 460 F.3d at 1222 ("[C]onsiderations that inform the exercise of discretion in multidistrict litigation may be somewhat different, and may tip the balance somewhat differently, from ordinary litigation on an ordinary docket."). Still, the basic ground rules for assessing motions for leave to amend, including the instruction of Federal Rule of Civil Procedure 15 ("Rule 15") that amendments should be freely given, may not be tossed out the window in an MDL case.
There is much, of course, that an MDL court can do in its sound discretion in order to manage multidistrict litigation effectively. It can designate a lead counsel. It can hold some cases in abeyance while proceeding with others. In discretionary matters going to the phasing, timing, and coordination of the cases, the power of the MDL court is at its peak. But when it comes to motions that can spell the life or death of a case, such as motions for summary judgment, motions to dismiss claims, or, as here, a motion to amend pleadings, it is important for the district court to articulate and apply the traditional standards governing such motions. A total disregard for the normal standards of assessing these critical motions would improperly *701 subject MDL cases to different and ad hoc substantive rules.
Federal Rule of Civil Procedure 15(a)(2) provides that when a party moves to amend before trial, "[t]he court should freely give leave when justice so requires." District courts generally consider four factors in determining whether to deny a motion to amend: "bad faith, undue delay, prejudice to the opposing party, and the futility of amendment." Kaplan v. Rose, 49 F.3d 1363, 1370 (9th Cir.1994); see also Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) (stating that Rule 15(a)'s "mandate is to be heeded," and that "[i]n the absence of any apparent or declared reason ... the leave sought should, as the rules require, be `freely given.'").
In this case, instead of considering the usual factors, the district court denied Plaintiffs leave to amend solely on the basis of an improper consideration, namely the court's intention "that the Indirect Purchaser Plaintiffs would only represent those claims arising under state law." The court essentially concluded that allowing Plaintiffs to add federal claims would be inconsistent with its prior CMO. But the district court's decision to allow Plaintiffs to bring only state law claims misapprehends the separate and independent nature of Plaintiffs' case. Although a district court overseeing MDL proceedings has the authority to decide which law firm should serve as lead counsel for the purposes of pretrial proceedings, MDL proceedings do not expand the grounds for disposing of individual cases.
By denying leave to amend on the basis of the court's prior CMO, the court applied an incorrect legal standard to Plaintiffs' motion. Such an error constitutes an abuse of discretion. Casey v. Albertson's Inc., 362 F.3d 1254, 1257 (9th Cir.2004) ("A district court abuses its discretion if it does not apply the correct law...."). We therefore vacate the district court's denial of leave to amend and remand for an analysis of Plaintiffs' request for leave to add federal antitrust claims under the proper standard. See Khulumani, 504 F.3d at 260 (vacating denial of leave to amend and remanding, in MDL context).
B
In seeking review of the district court's denial of leave to amend their complaint, Plaintiffs also implicitly request that we review the district court's adoption of the direct purchaser plaintiffs' CMO and its rejection of Plaintiffs' proposed CMO.[14] Because these decisions governing case management do not represent final judgments on the merits, we lack jurisdiction to review them. 28 U.S.C. § 1291.
A district court's case management orders are generally not appealable on an interlocutory basis. See Moglia v. Pac. Emp'rs Ins. Co. of N. Am., 547 F.3d 835, 838 (7th Cir.2008) ("Treating casemanagement orders as injunctions would permit not one appeal per suit, but dozens, and make a mockery of the final-decision requirement."). The CMO at issue here is interlocutory because the district court retains *702 the ability to modify it at any time. See Z-Seven Fund, Inc. v. Motorcar Parts & Accessories, 231 F.3d 1215, 1218-19 (9th Cir.2000) (holding that an order designating a lead plaintiff is unappealable and interlocutory because it is "not a conclusive, immutable determination of the issue" since the district court might later change the lead plaintiff "consistent with[its] continuing duty to see that a class is adequately represented by counsel" (emphasis in original)). If permitted upon remand to reinstate their federal claims, Plaintiffs will be able to reassert their conflict of interest concerns at later stages of litigation, and the district court will be able to reassess its decisions in this regard.
There is another reason for declining to view the CMO as subject to interlocutory consideration. We have held that "only after assessing ... the final judgment could an appellate court decide whether the client's rights had been prejudiced [by the appointment of certain counsel]." In re Westwood Shake & Shingle, Inc., 971 F.2d 387, 390 (9th Cir.1992) (internal quotation marks omitted) (alterations and omission in original)). If Plaintiffs' conflict of interest concerns have merit, an "`opportunity for meaningful review will [not] perish' because [the] circuit court can conclude after trial that continued representation was prejudicial and can vacate judgment." Id. (quoting Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 377-78, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981) (first alteration in original)).
We hold that decisions regarding the CMOs involved in this case are interlocutory. That the district court improperly based its denial of leave to amend on its decision that direct purchaser plaintiffs' counsel would represent indirect purchaser plaintiffs suing under Illinois Brick exceptions does not render the CMOs themselves reviewable. Given our determination that the district court improperly denied leave to amend, no causal nexus remains between the challenged CMO and the dismissal of Plaintiffs' claims. We therefore decline to review the district court's adoption of the direct purchaser plaintiffs' CMO, and the court's rejection of Plaintiffs's proposed CMO, at this time.
IV
For the foregoing reasons, the district court's order is AFFIRMED IN PART, VACATED IN PART, and REMANDED for further proceedings consistent with this opinion.
The parties shall bear their own costs on appeal.
NOTES
[1] We grant Plaintiffs' motion to take judicial notice of documents in MDL No. 1891. See United States v. Wilson, 631 F.2d 118, 119 (9th Cir.1980) ("[A] court may take judicial notice of its own records in other cases, as well as the records of an inferior court in other cases.").
[2] Plaintiffs do not mention on appeal the other nineteen state and District of Columbia laws listed in their Second Amended Complaint and have therefore waived any argument related to state laws other than those of California. See Dream Games of Ariz., Inc. v. PC Onsite, 561 F.3d 983, 994-95 (9th Cir. 2009) (stating that matters not raised in appellant's opening brief are waived).
[3] We review de novo both a district court's dismissal of a case on federal preemption grounds and a district court's interpretation of federal statutes. Peck v. Cingular Wireless, LLC, 535 F.3d 1053, 1055 (9th Cir.2008).
[4] A domestic "air carrier" may also provide foreign air transportation services. For example, American Airlines, a domestic "air carrier," may fly routes both within the United States and between the United States and a foreign country. A "foreign air carrier" is restricted, however, to flying routes between the United States and a foreign destination; it is not allowed to fly routes between U.S. destinations.
[5] Such a section-by-section analysis is appropriate in light of the drafting history of the FAA. Section 101 of the Federal Aviation Act of 1958 defined "air carrier" as being a U.S. citizen "unless the context otherwise requires." Pub.L. No. 85-726, 72 Stat. 731 (1958). The 1994 re-enactment of Title 49 and its slight amendment, which removed this "context" proviso, was not to be construed as making a substantive change in the law, see S.Rep. No. 103-265, at 5 (1994) ("[T]his bill makes no substantive change in the law."), so considering context in construing the meaning of "air carrier" is consistent with Congress's intent in drafting the statute. See Port Auth. of N.Y. & N.J. v. Dep't of Transp., 479 F.3d 21, 32 (D.C.Cir.2007).
[6] We decline to apply a general presumption against preemption here because the ADA preemption provision involves preclusion of state regulation in "an area where there has been a history of significant federal presence," namely navigable airspace. United States v. Locke, 529 U.S. 89, 108, 120 S.Ct. 1135, 146 L.Ed.2d 69 (2000); see Skysign Int'l, Inc. v. City & Cnty. of Honolulu, 276 F.3d 1109, 1115-16 (9th Cir.2002).
[7] As enacted in 1978, the preemption provision of the ADA read: "[N]o State . . . shall enact or enforce any law, rule, regulation, standard, or other provision having the force and effect of law relating to the rates, routes, or services of any air carrier having authority under subchapter IV of this chapter to provide interstate air transportation." 49 U.S.C.App. § 1305(a)(1) (1978).
[8] Subsequent modification of the preemption provision's language does not cast doubt on this conclusion because, when Congress revised the preemption provision in 1994 to its current form, it "intended the revision to make no substantive change." Am. Airlines, Inc. v. Wolens, 513 U.S. 219, 223 n. 1, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995); see also S.Rep. No. 103-265, at 5 (1994).
[9] The district court reasoned that "air carrier," as modified by the phrase "that may provide transportation under this subpart" was "not immune to a construction that would include `foreign air carriers,'" and it noted the uniformity of opinion applying the ADA preemption provision against foreign air carriers. Stating that there were no compelling policy reasons for limiting preemption only to claims against domestic air carriers, the district court held that the provision extended to foreign carriers.
[10] Plaintiffs characterize their claim in this regard as a claim that the district court should have allowed them to "reinstate" their federal claims. However, as there is no indication that Plaintiffs' initial abandonment of their federal claims was not done voluntarily, we consider the issue as a denial of a proposed amendment of Plaintiffs' complaint.
[11] We review a denial of leave to amend for abuse of discretion. Kaplan v. Rose, 49 F.3d 1363, 1370 (9th Cir. 1994). "A district court abuses its discretion if it does not apply the correct law or if it rests its decision on a clearly erroneous finding of a material fact." Casey v. Albertson's Inc., 362 F.3d 1254, 1257 (9th Cir.2004). A review for abuse of discretion requires looking at both whether the trial court applied the correct legal rule, and, if so, whether application of the rule was illogical, implausible, or without support in the record. See United States v. Hinkson, 585 F.3d 1247, 1251 (9th Cir.2009) (en banc).
[12] See, e.g., Toll Bros. v. Dryvit Sys., Inc., 432 F.3d 564, 568 n. 4 (4th Cir.2005) ("When considering questions of state law, . . . the transferee court must apply the state law that would have applied to the individual cases had they not been transferred for consolidation." (internal quotation marks omitted) (omission in original)); Menowitz v. Brown, 991 F.2d 36, 40 (2d Cir. 1993) ("[A] transferee federal court should apply its interpretations of federal law, . . . . [but] applies the substantive state law, including choice-of-law rules, of the jurisdiction in which the action was filed."); In re Korean Air Lines Disaster of Sept. 1, 1983, 829 F.2d 1171, 1176 (D.C.Cir. 1987) ("[T]he law of a transferor forum [on a federal question] . . . merits close consideration, but does not have stare decisis effect in a transferee forum situated in another circuit.").
[13] Where, as here, the particular case at issue is initiated in the transferee court's district, the district court's jurisdiction is not always similarly circumscribed to purely pretrial proceedings. See In re Bridgestone/Firestone, Inc., Tires Prods. Liab. Litig., 333 F.3d 763, 767 (7th Cir.2003) ("Because the decision stemmed from a complaint filed in the Southern District of Indiana, . . . the district court had original jurisdiction and was not acting as a transferee court under 28 U.S.C. § 1407 with respect to this complaint."). In such a case, the district court's jurisdiction beyond pretrial matters is part of its original jurisdiction, not the MDL jurisdiction. But considerations that animate the restrictions placed on a transferee court's exercise of jurisdiction over its MDL docketincluding the principle that individual cases remain separate actions despite being coordinated or consolidated for pretrial purposesdo not dissipate because a particular case was filed in the MDL's home district.
[14] Plaintiffs argue that the district court abused its discretion in denying leave to amend because it did not act to protect indirect purchaser absentee plaintiffs by allowing direct purchaser plaintiffs alone to maintain federal antitrust claims. It is not clear if Plaintiffs independently attack the district court's adoption of the CMO, as they seem to assume that the reinstatement of their federal claims would make them lead counsel for indirect purchaser plaintiffs during the pretrial stage of litigation. But because these decisions are procedurally and analytically distinct, we treat Plaintiffs' objections as posing a challenge to the district court's adoption of the CMO.
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COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00534-CR
Don Anthony Bonner § From the 432nd District Court
§ of Tarrant County (1269186D)
v. § December 27, 2013
§ Opinion by Justice Walker
The State of Texas § (nfp)
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was no error in the trial court’s judgment. It is ordered that the judgment of
the trial court is affirmed.
SECOND DISTRICT COURT OF APPEALS
By _________________________________
Justice Sue Walker
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AFFIRMED; Opinion Filed July 24, 2019.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-00479-CR
RONALD GLENN HORNSBY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 86th Judicial District Court
Kaufman County, Texas
Trial Court Cause No. 15-10808-86-F
MEMORANDUM OPINION
Before Justices Whitehill, Partida-Kipness, and Pedersen, III
Opinion by Justice Partida-Kipness
Appellant Ronald Glenn Hornsby appeals from his conviction and sentence for indecency
with a child by contact. In two issues, appellant asserts that his sentence violated his constitutional
rights under the United States and Texas Constitutions because it was grossly disproportionate to
the offense and inappropriate to the offender. Finding no merit in appellant’s arguments, we affirm
the trial court’s judgment.
BACKGROUND
Appellant does not challenge the sufficiency of the evidence to support his conviction.
Accordingly, we relate only such evidence as is necessary to understand his appellate issue. The
indictment against appellant stated that he “engage[d] in sexual contact with ‘Laine,’ a
pseudonym[,] by touching the genitals of ‘Laine,’ a child younger than 17 years of age.” At trial,
the State called several witnesses including: (1) Laine, the 9-year old complainant; (2) Heather
Hibdon, a friend of Laine’s mother; and (3) A.B., Laine’s sister. Laine testified that appellant had
smacked her bottom, stood in the doorway while she used the restroom, “glided his hand to [her]
private part,” and pushed her legs apart. Laine testified that she asked him to stop but he did not
and only stopped when A.B. came to get Laine. Hibdon testified that Laine told her that appellant
had touched her bottom, watched her use the restroom, talked about his penis, and had “touched
[her] there” while gesturing to her private area. A.B. testified that a person named Ronnie lived
next door to them and that Laine spent time with him. A.B. stated that Laine was at appellant’s
house almost every day after school. A.B. further testified that after approximately two months,
Laine stopped going to appellant’s house, began behaving differently, became less social and did
not like people touching her.
The jury found appellant guilty as alleged in the indictment. At the sentencing portion of
the trial, the State offered numerous exhibits of appellant’s prior offenses, including: (1) an order
for deferred adjudication for burglary of a habitation (2) a certified deferred order for carrying a
concealed weapon and possession of paraphernalia; (3) a certified judgment for forgery by check
and a sentence of three years’ probation; (4) a certified judgment for possession of marijuana for
which appellant received six months’ probation; and (5) a certified judgment for possession of
methamphetamine for which appellant received a sentence of one year of hard labor. The trial
court stated during the punishment hearing: “The jury having found you guilty of the offense of
indecency with a child by sexual contact, the range of punishment on that is from anywhere from
2 to 20 years in the Institutional Division.” The trial court then sentenced appellant to twelve
years’ imprisonment. The trial court then asked: “Does the defense have anything to say?” and
Harbin’s counsel replied “Not – no, Your Honor.” The trial court then took a break while the
parties reviewed the judgment. After going back on the record, the following exchange took place:
–2–
[Trial court]: Has the defense had an opportunity to go over the judgment?
[Appellant’s counsel]: Yes, Your Honor.
[Trial court]: And did you see any problems with it?
[Appellant’s counsel]: I -- I did not. More eyes are always better. So please, you
know, feel free to doublecheck, but I did not.
[Trial court]: Mr. Hornsby, did you go over this document with your attorney?
[Appellant]: Yes, sir.
Appellant did not file any post-conviction motions, but he did file a general notice of appeal.
ANALYSIS
In two issues, appellant contends that the sentence violates his constitutional rights under
the United States and Texas Constitutions because it is grossly disproportionate to the offense and
inappropriate to the offender. The State argues appellant failed to preserve error. Alternatively,
the State argues that the sentence is not excessive or unconstitutionally cruel and/or unusual; nor
are they disproportionate to the offense or the offender. We agree with the State.
For error to be preserved on appeal, the record must show appellant made a timely request,
objection, or motion. See TEX. R. APP. P. 33.1(a)(1). Constitutional rights, including the right to
be free from cruel and unusual punishment, may be waived. See Castaneda v. State, 135 S.W.3d
719, 723 (Tex. App.—Dallas 2003, no pet.). When appellant’s sentence was announced, he did
not object to the sentence as violating his constitutional rights. In addition, appellant did not raise
this issue in a post-conviction motion. Accordingly, appellant has not preserved this issue for
appellate review.
Even if appellant had properly preserved the issue for our review, we conclude that the
sentence is not grossly disproportionate. Using nearly identical language, both the United States
and Texas Constitutions prohibit cruel and/or unusual punishment and the Texas Court of Criminal
Appeals has held that there is no significant difference between the protections afforded in the two
–3–
provisions. See Cantu v. State, 939 S.W.2d 627, 645 (Tex. Crim. App. 1997). Accordingly, these
two claims will be analyzed together.
Texas courts have traditionally held that as long as the punishment is within the range
established by the legislature in a valid statute, the punishment assessed does not violate either the
federal or Texas prohibitions against cruel and/or unusual punishment. See Samuel v. State, 477
S.W.2d 611, 614 (Tex. Crim. App. 1972) (“[T]his court has frequently stated that where the
punishment assessed by the judge or jury was within the limits prescribed by the statute the
punishment is not cruel and unusual within the constitutional prohibition.”); Jackson v. State, 989
S.W.2d 842, 846 (Tex. App.—Texarkana 1999, no pet.). Here, the crime of indecency with a child
by contact is a second degree felony and is punishable by two to twenty years in prison. See TEX.
PENAL CODE § 21.11 (a)(1); (d); Id. § 12.33(a). Accordingly, as appellant’s twelve-year sentence
falls within the statutory range for the charge offense, the punishment cannot be considered cruel
or unusual. Jackson, 989 S.W.2d at 614.
However, a very narrow exception exists that an individual’s sentence may constitute cruel
and unusual punishment, despite falling in the statutory range, if it is grossly disproportionate to
the offense. Alvarez v. State, 525 S.W.3d 890, 892 (Tex. App.—Eastland 2017, pet. ref’d); Kim
v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref’d) (“Subject only to a very
limited, ‘exceedingly rare,’ and somewhat amorphous Eighth Amendment gross-
disproportionality review, a punishment that falls within the legislatively prescribed range, and
that is based upon the sentencer’s informed normative judgment, is unassailable on appeal.”) To
evaluate the proportionality of a sentence, the first step is for the court to make a threshold
comparison of the gravity of the offense against the severity of the sentence. Id. at 893. When we
analyze the gravity of the offense, we examine the harm caused or threatened to the victim, the
culpability of the offender, and the offender’s prior adjudicated and unadjudicated offenses. See
–4–
State v. Simpson, 488 S.W.3d 318, 323 (Tex. Crim. App. 2016). Only if gross disproportionality
is found do we then compare the sentence to sentences received for similar crimes in this and other
jurisdictions. Id.
In this case, appellant was found guilty of indecency with a child by contact, a serious
offense. At the punishment hearing, the State offered evidence of Harbin’s prior criminal history
including burglary of a habitation, forgery of a check, and possession of drugs. The trial court
then reviewed the presentence investigation report, heard testimony from the probation officer,
appellant’s mother and stepfather, as well as arguments from counsel before it made its decision
on punishment. The probation officer testified that (1) appellant told her that “lying became a
normal thing for him” to get out of trouble when he was younger; (2) appellant stated he never
used illegal drugs despite his prior convictions; and (3) the appellant did not appear remorseful for
his actions. The trial court sentenced appellant to twelve years, a mid-range sentence for his
offense. Having reviewed the record, we cannot conclude that appellant’s mid-range sentence of
twelve years qualified as grossly disproportionate to his offense, a second degree felony. We hold
that appellant’s sentence does not constitute cruel and unusual punishment and we overrule
appellant’s two issues.
CONCLUSION
We resolve appellant’s issues against him and affirm the trial court’s judgment.
/Robbie Partida-Kipness/
ROBBIE PARTIDA-KIPNESS
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
180479F.U05
–5–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
RONALD GLENN HORNSBY, Appellant On Appeal from the 86th Judicial District
Court, Kaufman County, Texas
No. 05-18-00479-CR V. Trial Court Cause No. 15-10808-86-F.
Opinion delivered by Justice Partida-
THE STATE OF TEXAS, Appellee Kipness. Justices Whitehill and Pedersen,
III participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 24th day of July, 2019.
–6–
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47 F.3d 1161
Rofi (Edward A., Christopher)v.Connecticut General Life Insurance Company
NO. 93-1722
United States Court of Appeals,Third Circuit.
Jan 19, 1995
Appeal From: E.D.Pa., No. 91-02985
1
AFFIRMED.
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FILE COPY
Court of Appeals
Twelfth Court of Appeals District at Tyler
BILL OF COSTS
Court of Appeals No. 12-15-00070-CV
Trial Court No. CV-02586-13-09-A
In the Interest of J. R., a child
DOCUMENTS FILED AMOUNT FEE PAID BY
Reporter's record $2,055.00 Angelina County
Required Texas.gov efiling fee $20.00 N/A
Filing $100.00 N/A
Indigent $25.00 N/A
Supreme Court chapter 51 fee $50.00 N/A
TOTAL: $2,250.00
I, Pam Estes, Clerk of the Court of Appeals, Twelfth Court of Appeals District at Tyler, Texas,
certify that the above copy of the Bill of Costs is true and correct. GIVEN UNDER MY HAND
AND SEAL OF SAID COURT, at Tyler, this 13th day of November 2015, A.D.
PAM ESTES, CLERK
By:_____________________________
Katrina McClenny, Chief Deputy Clerk
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817 F.2d 78
7 Fed.R.Serv.3d 950
Ira L. HART, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee.
No. 86-6204.
United States Court of Appeals,Ninth Circuit.
Submitted April 9, 1987*.Decided May 13, 1987.
Joseph W. Howington, Claremont, Cal., for plaintiff-appellant.
Roger E. West, Asst. U.S. Atty., Los Angeles, Cal., for defendant-appellee.
Appeal from the United States District Court for the Central District of California.
Before KOELSCH, POOLE and FERGUSON, Circuit Judges.
PER CURIAM:
1
Ira L. Hart appeals the district court's dismissal of his action under the Federal Tort Claims Act. The district court dismissed Hart's action for failure properly to serve the United States within the 120 days of filing his complaint prescribed by Fed.R.Civ.P. 4(j). The district court did not abuse its discretion in finding that Hart did not have good cause for the failure to serve, and we affirm.
2
* Ira L. Hart slipped and fell while he was a patient at the Veterans' Administration Hospital in Loma Linda, California. He filed an administrative claim with the Veteran's Administration District Counsel. The claim was denied on May 31, 1985. Hart and his wife filed a complaint in the district court against the United States on December 2, 1985. The complaint charged the hospital with malpractice and maintenance of dangerous premises causing injury to Hart and loss of consortium to his wife.
3
The Harts failed properly to serve the government as required by Fed.R.Civ.P. 4(d)(4). The district court dismissed the Harts' action, and Mr. Hart timely appeals.1
II
4
This court reviews de novo a district court's subject-matter jurisdiction. See Anderson ex rel. Anderson v. United States, 803 F.2d 1520, 1522 (9th Cir.1986). When a party has failed to comply with the requirements of service within the requisite time period, we review the district court's dismissal for abuse of discretion. See Wei v. State of Hawaii, 763 F.2d 370 (9th Cir.1985) (per curiam).
III
5
We are obliged to raise questions of the district court's subject-matter jurisdiction sua sponte. Continental Ins. Co. v. Cotten, 427 F.2d 48, 51 (9th Cir.1970). Hart's administrative claim was denied on May 31, 1985. His action in the district court was not filed until December 2, 1985, apparently beyond the six-month statute of limitation for such claims. See 28 U.S.C. Sec. 2401(b). Although the issue was not raised by the parties or the district court, we must address it before we may reach the issue of service.
6
The six-month statute of limitations expired on November 30, 1985, which fell on a Saturday. Fed.R.Civ.P. 6(a) provides, however, that in computing the time allowed under "any applicable statute," when the final day falls on a Saturday, Sunday, or legal holiday, the time period extends to the first day following those days. Thus, Hart had until December 2, 1985, to file his case, and the district court properly had jurisdiction. See Frey v. Woodard, 748 F.2d 173, 175 (3d Cir.1984) (holding that Rule 6(a) tolled the two-year statute of limitation for filing a complaint with the administrative agency).2 The complaint was timely filed, and the district court had jurisdiction.
IV
7
The district court dismissed the case because Hart failed to serve the United States within the 120-day time limit imposed by Fed.R.Civ.P. 4(j). Hart concedes that he failed in any manner to serve the Attorney General as required by Fed.R.Civ.P. 4(d)(4), and that he failed properly to serve the United States Attorney for the Central District. Hart contends that failure to serve the government was justified by good cause.
8
Hart's counsel attempted to serve the United States Attorney by sending a copy of the complaint without a copy of the summons. Hart's counsel never complied with Rule 4(d)(4)'s requirement that service also be completed upon the Attorney General. The United States Attorney's office went so far as to inform Hart's counsel that service was inadequate and suggested the proper method to effect service. After the passing of the 120-day period and receiving no response from Hart's counsel, the government moved the district court to dismiss the case, and the district court granted the motion.
9
Hart argues that his failure to serve the government is justified under the standards enunciated in Borzeka v. Heckler, 739 F.2d 444 (9th Cir.1984). In Borzeka, we held that a plaintiff's failure to comply with the technical requirements for personal service under Rule 4(d)(4) does not warrant dismissal where "(a) the party that had to be served personally received actual notice, (b) the defendant would suffer no prejudice from the defect in service, (c) there is a justifiable excuse for a failure to serve properly, and (d) the plaintiff would be severely prejudiced if his complaint were dismissed." Borzeka, 739 F.2d at 447. In Borzeka, a pro se litigant claimed to have received improper advice from the district court regarding service, andthis third-party error served as justifiable excuse.
10
Hart, at a minimum, has no justifiable excuse for his failure to serve, and thus cannot justify failure to serve under Borzeka. Hart's counsel attempts to excuse the failure by blaming a secretary who allegedly was told to mail both the complaint and summons, although only the complaint was mailed. Hart's counsel claims that failure to serve the Attorney General also was due to secretarial misdeeds. Secretarial negligence, if it exists, is chargeable to counsel. See Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir.1983) (en banc). Thus, these claims at best resolve to inadvertent error, which is not good cause. Wei v. State of Hawaii, 763 F.2d 370, 372 (9th Cir.1985) (per curiam). That Hart's claim is now time-barred does not suffice to waive the requirement of service. See id. The district court thus did not abuse its discretion in dismissing the case for failure to serve the government.
11
AFFIRMED.
*
The panel finds this case appropriate for submission without oral argument pursuant to Ninth Circuit Rule 3(f) and Fed.R.App.P. 34(a)
1
Mrs. Hart does not challenge the dismissal of cause of action due to her failure to file an administrative claim
2
Our decision in Hatchell v. United States, 776 F.2d 244 (9th Cir.1985), is not to the contrary. In Hatchell, we found that Fed.R.Civ.P. 6(e) does not extend the time allowed for filing suit against the government under 28 U.S.C. Sec. 2401(b). See 776 F.2d at 246. Rule 6(e) provides for an extension of time for acts conditioned upon service of notice when service is made by mail. Since the statute of limitations under 28 U.S.C. Sec. 2401(b) commences running upon "the date of mailing" and is not conditioned upon the service of notice, we held that Rule 6(e) was inapplicable to 28 U.S.C. Sec. 2401(b). 776 F.2d at 286. Rule 6(a) is not so limited, however, and applies to "any period of time prescribed or allowed ... by any applicable statute." It thus operates to allow additional time when the statute would otherwise run on a weekend or legal holiday
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217 F.Supp. 39 (1963)
SMITH-CORONA MARCHANT, INC., Plaintiff,
v.
AMERICAN PHOTOCOPY EQUIPMENT COMPANY, Defendant.
United States District Court S. D. New York.
March 14, 1963.
Sullivan & Cromwell, New York City, for plaintiff. Marvin Schwartz and Bartlett A. Jackson, New York City, of counsel.
Curtis, Morris & Safford, New York City, for defendant. William C. Conner, New York City, of counsel.
PALMIERI, District Judge.
The defendant moves for summary judgment dismissing Count II of the complaint in which it is charged with having violated Section 7 of the Clayton Act[1] through the acquisition of the assets of a patent holding company, including the "Eisbein" patent relating to photocopy machines using the method known as the diffusion-transfer-reversal process (diffusion process). The defendant's acquisition followed a decision of the Seventh Circuit upholding the validity of the patent and its infringement by defendant. Copease Mfg. Co. v. American Photocopy Equip. Co., 298 F.2d 772 (7th Cir., 1961). The defendant has been engaged in the manufacture and sale of photocopy machines utilizing the diffusion process since 1952. The plaintiff, a manufacturer of typewriting and business machines, entered the photocopy machine field in 1960 and has become an active competitor of defendant. Indeed, the defendant's former Secretary and National Sales Manager has now become plaintiff's Vice President in Charge of Marketing, and fifty or more sales executives *40 and salesmen who had worked for defendant are now employed by plaintiff. Moreover, plaintiff is seeking by Count I of its complaint before this Court, a declaratory judgment that the Eisbein patent is invalid, or, if valid, not infringed by it.
Whether the acquisition of the assets of the patent holding company by defendant constituted a violation of Section 7 of the Clayton Act turns on plaintiff's ability to prove that such acquisition was part of a purpose or plan, the effect of which "may be substantially to lessen competition."[2] One must begin with the basic premise that the grant of patent rights, which are essentially limited monopolies, is authorized by the Constitution and the Patent Code, while monopolization and impairment of competition are condemned by the Sherman and Clayton Acts. Because the economic factors surrounding the accumulation of patents are generally complex, the area of conflict must necessarily be resolved on a case by case basis. Here, as elsewhere in the field, the legality of the situation must be determined on its own peculiar facts. See United States v. Aluminum Co. of America, 148 F.2d 416 (2d Cir., 1945); United States v. Besser Mfg. Co., 96 F.Supp. 304 (E.D.Mich. 1951), aff'd, 343 U.S. 444, 72 S.Ct. 838, 96 L.Ed. 1063 (1952); United States v. L. D. Caulk Co., 126 F.Supp. 693, 705 (D.Del.1954).
This Court has twice postponed its decision on this motion to permit plaintiff to complete the inspection it desired of defendant's files.[3] Plaintiff was afforded an extensive opportunity of inspection of defendant's files and ample time to present proof of its allegations. This inspection has now been completed and it is clear that plaintiff is presently unable to sustain the allegations of its complaint. In effect, this is conceded in its brief.[4]
However, it would be premature and unwise to grant defendant's motion as long as pre-trial discovery remains unfinished. Great caution should be exercised in the granting of motions for summary judgment,[5] as decisions on the merits must abide a full appraisal of all the relevant facts and issues. Until the pre-trial phases of the case, and in particular pre-trial discovery are complete, such an appraisal cannot be made.[6]
Accordingly, the motion for summary judgment as to Count II of the complaint is denied, but without prejudice to its renewal after plaintiff has completed its pre-trial discovery, or has been afforded ample opportunity by defendant to do so.
It is so ordered.
NOTES
[1] 15 U.S.C. § 18. Section 7 provides:
"No corporation engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital and no corporation subject to the jurisdiction of the Federal Trade Commission shall acquire the whole or any part of the assets of another corporation engaged also in commerce, where in any line of commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly."
[2] Brown Shoe Co. v. United States, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962).
[3] See Memoranda of this Court dated January 8 and January 28, 1963.
[4] Brief of Feb. 21, 1963, at p. 2:
However, as we pointed out in our previous papers submitted in opposition to this motion, the files of an acquiring company are only one of the sources of evidence indicating the effect of a merger. Indeed, they are often the least fruitful source of such evidence.
The contention that Section 7 of the Clayton Act has been violated by an acquisition of stock and assets must be supported by a detailed analysis of the market and potential market for the relevant product. To this end it is plaintiff's intention to develop the required analysis by conducting depositions of defendant and others as well as interviewing persons who may have knowledge of the market. Documents from the acquiring company's files are only the starting point for such an analysis.
[5] Doehler Metal Furniture Co. v. United States, 149 F.2d 130, 135-136 (2d Cir., 1945).
[6] Cf. Nagler v. Admiral Corp., 248 F.2d 319 (2d Cir., 1957).
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792 F.Supp. 474 (1991)
Madge H. EDWARDS, Plaintiff,
v.
UNITED STATES, Defendant.
Civ.A. No. 91-0010-D.
United States District Court, W.D. Virginia, Danville Division.
August 20, 1991.
*475 D. French Slaughter, III, J. Brian Jackson, McGuire, Woods, Battle & Boothe, Charlottesville, Va., for plaintiff.
Arenda L.W. Allen, Asst. U.S. Atty., Roanoke, Va., Beverly A. Moses, Trial Atty., Tax Div., U.S. Dept. of Justice, Washington, D.C., for defendant.
MEMORANDUM OPINION
KISER, District Judge.
This is a case arising under the federal income tax laws in which the plaintiff seeks a refund a taxes paid for tax year 1980. The government contends that the plaintiff is barred from a seeking a refund by the doctrine of res judicata. Oral argument on the government's motion for summary judgment was heard on July 29, 1991, and the case is now ripe for disposition. For the reasons set forth below, I agree with the government and therefore must grant the motion for summary judgment and dismiss the case.
DISCUSSION
The facts in this action are uncontested. The plaintiff and her ex-husband, Charles Edwards, filed a joint income tax return for 1980. After an audit, the IRS determined on October 14, 1988 that the return had been deficient in the amount of $80,178.24. The plaintiff joined in her ex-husband's petition before the Tax Court for a redetermination of the deficiency on January 11, 1989. Ultimately, the parties settled their case in the Tax Court and agreed to set the deficiency at $42,965.24. The Tax Court entered an order to that effect on August 28, 1989. Edwards v. Commissioner, Docket No. 1034-89 (T.C. August 28, 1989). In May of 1990, the plaintiff paid the full amount which, with interest and penalties, totalled $124,672.08. The plaintiff filed a timely claim for refund on the ground that she was an innocent spouse, 26 U.S.C. § 6013(e). After waiting six months with no response, this suit was filed.[1]
The government argues that the order entered by the Tax Court was a final judgment as to the plaintiff's 1980 tax liability. Res judicata bars the plaintiff from raising in this court any potential defenses to liability for the 1980 tax year. Turner v. United States, 553 F.Supp. 347 (W.D.Va. 1982). The plaintiff argues that she did not assert the innocent spouse defense in the Tax Court because she was relying on a 1985 letter signed by her ex-husband in which he agreed to accept sole responsibility for any tax deficiencies, including interest and penalties, arising from the 1980 tax year. However, since the Tax Court proceedings, Charles Edwards has apparently filed bankruptcy. Therefore, the plaintiff argues that there has been a material change of circumstances and that she should now be able to present the defense.
Here, as in Turner, the plaintiff is seeking to relitigate tax liabilities that have already been decided by the Tax Court. Res judicata, as the government argues, prevents the plaintiff from doing so:
when a court of competent jurisdiction has entered a final judgment on the merits of a cause of action, the parties to the suit and their privies are thereafter bound "not only as to every matter which was offered and received to sustain or defeat the claim or demand, but *476 as to any other admissible matter which might have been offered for that purpose."
Commissioner v. Sunnen, 333 U.S. 591, 597, 68 S.Ct. 715, 719, 92 L.Ed. 898 (1948) (citing Cromwell v. County of Sac, 94 U.S. 351, 352, 24 L.Ed 195 (1876)). The judgment rendered by the Tax Court is a final adjudication of the plaintiff's tax liabilities for 1980. If there were defenses available to the plaintiff, she should have raised them in that court. I am barred from reconsidering the claim.
The Clerk is directed to send certified copies of this Memorandum Opinion to all counsel of record.
ORDER
On July 29, 1991, came the parties by counsel on the defendant's motion for summary judgment. For the reasons stated in the Memorandum Opinion filed contemporaneously herewith, it is hereby ADJUDGED and ORDERED that the defendant's motion is GRANTED. This action is DISMISSED with prejudice.
The Clerk is directed to STRIKE this case from the Court's active docket and to send certified copies of this Order to all counsel of record.
NOTES
[1] As an alternative ground for relief, the complaint alleges that plaintiff is entitled to a bad debt deduction for the full amount paid since her husband had agreed to accept sole responsibility for tax year 1980, yet due to his 1990 personal bankruptcy, that promised indemnity has become worthless. At oral argument, plaintiff's counsel indicated that she was no longer relying on this ground.
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86 B.R. 232 (1986)
In re SILVER WHEEL FREIGHTLINES, INC., Debtor.
Everette H. WILLIAMS, Trustee for Silver Wheel Freightlines, Inc., Plaintiff,
v.
AT & T TECHNOLOGIES, INC. and Norwest Publishing Co., Defendants.
Bankruptcy No. 382-03538-S7, Adv. No. 85-0743-S.
United States District Court, D. Oregon.
October 23, 1986.
*233 Bradley O. Baker, Portland, Or., for the trustee.
Lawrence V. Smart, Portland, Or., for AT & T Technologies.
LEAVY, District Judge.
Opinion adopted by District Court, Oct. 23, 1986.
FINDINGS OF FACT AND CONCLUSIONS OF LAW GRANTING SUMMARY JUDGMENT TO PLAINTIFF FOR $11,997.89 IN A NON-CORE MATTER
DONAL D. SULLIVAN, Bankruptcy Judge.
Plaintiff filed a complaint under 49 U.S.C. § 10761(a) to recover undercharges in the amount of $11,997.89 resulting from the debtor's failure as a common carrier to charge its published tariffs. Only AT & T Technologies, Inc. ("AT & T") answered. Norwest Publishing Co. is in default. The Court heard plaintiff's motion for summary judgment and defendant AT & T's motion to defer to the Interstate Commerce Commission on September 8, 1986. This is a non-core proceeding which may be determined by the District Court upon recommendation pursuant to 28 U.S.C. § 157(c)(1).
Summary judgment should be granted to plaintiff for the sum sought in the complaint as a matter of law. There are no triable issues of fact.
Fraud and the other defenses alleged by AT & T which include negligence, estoppel, waiver, breach of contract, unreasonable practices and set off of these claims, are not available as defenses to the defendant's statutory liability to pay the published tariffs. Consolidated Freightways Corp. v. Terry Tuck, Inc., 612 F.2d 465 (9th Cir.1980); Pittsburgh v. Fink, 250 U.S. 577, 40 S.Ct. 27, 63 L.Ed. 1151 (1919); 49 U.S.C. § 10761(a). The debtor must charge its customers the filed tariffs unless the Interstate Commerce Commission ("Commission") granted relief under 49 U.S.C. § 10761(b) to the debtor as a contract carrier. Thurston Motor Lines v. Jordan Rand, 460 U.S. 533, 103 S.Ct. 1343, 75 L.Ed.2d 260, (1983); Southern Pacific v. Commercial, 456 U.S. 336, 102 S.Ct. 1815, 72 L.Ed.2d 114 (1982). No affidavit was filed to establish that such relief has been granted by the Commission in this case. This is not a case to which Alamo v. ICC & U.S., 673 F.2d 852 (5th Cir.1982) supplies any precedent.
*234 In addition, defendants have not filed any material to support AT & T's position that there is a triable factual basis for any of the numerous alleged defenses or counter-claims to the statutory liability imposed. The affidavit of J.F. Jonish fails to present facts that, if proved, would establish the defenses and counterclaims asserted.
The motion to stay this case should be denied. This case is a straight collection case involving undercharges. It does not involve physical practices or rules which comprise policies over which the Commission has discretion. There is no showing that the application of 49 U.S.C. § 10761(a) would be based upon ambiguous policy, facts, or indeed that the Commission has any discretion to remit the undercharges based on the tariff in this case. Accordingly, the material supplied by defendant AT & T does not show that this Court should abstain in favor of some action by the Commission. Judgment should be entered against both defendants.
RECOMMENDED for adoption by the United States District Court this 11th day of September, 1986.
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COURT
OF APPEALS
SECOND
DISTRICT OF TEXAS
FORT
WORTH
NO.
2-08-090-CV
CHRISTINE ECKENRODE APPELLANT
V.
ACADEMY, LTD. APPELLEE
----------
FROM
COUNTY COURT AT LAW NO. 1 OF TARRANT COUNTY
------------
MEMORANDUM
OPINION[1]
AND JUDGMENT
------------
On March 12, 2008 and March
27, 2008, we notified appellant, in accordance with rule of appellate procedure
42.3(c), that we would dismiss this appeal unless the $175 filing fee was
paid. See Tex. R. App. P. 42.3(c).
Appellant has not paid the $175 filing fee. See Tex.
R. App. P. 5, 12.1(b).
Because appellant has failed
to comply with a requirement of the rules of appellate procedure and the Texas
Supreme Court=s order of
August 28, 2007,[2]
we dismiss the appeal. See Tex. R. App. P. 42.3(c), 43.2(f).
Appellant shall pay all costs
of this appeal, for which let execution issue.
See Tex. R. App. P.
43.4.
PER CURIAM
PANEL
D: CAYCE, C.J.; LIVINGSTON and
DAUPHINOT, JJ.
DELIVERED: April 17, 2008
[1]See Tex. R. App. P. 47.4.
[2]See
Supreme Court of Tex., Order Regarding Fees Charged in Civil Cases in the
Supreme Court and the Courts of Appeals and Before the Judicial Panel on
Multidistrict Litigation, Misc. Docket No. 07-9138 (Aug. 28, 2007) (listing
fees in court of appeals).
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: August 23, 2019
* * * * * * * * * * * * *
ROBERT RAICHE, *
* No. 16-325v
Petitioner, *
*
v. * Special Master Gowen
*
SECRETARY OF HEALTH * Tetanus-Diphtheria-Acellular
AND HUMAN SERVICES, * Pertussis (“Tdap”); Neuromyelitis
Respondent. * Optica; Transverse Myelitis (“TM”);
* Stipulation Decision
* * * * * * * * * * * * *
Ronald C. Homer, Conway, Homer, P.C. (WA), Boston, MA, for petitioner.
Christine M. Becer, U.S. Department of Justice, Washington, D.C., for respondent.
DECISION FOR STIPULATION1
On March 14, 2016, Robert Raiche (“petitioner”) filed a petition for compensation under
the National Vaccine Injury Compensation Program.2 Petition at Preamble. Petitioner received
a tetanus-diphtheria-acellular-pertussis (“Tdap”) vaccine on October 15, 2013. Id. at 1;
Stipulation at ¶ 2 (ECF No. 97). Petitioner alleged that as a result of receiving the vaccinations
he suffered neuromyelitis optica (“NMO”) and transverse myelitis (“TM”). Petition at ¶ 1;
Stipulation at ¶ 4.
On August 22, 2019, respondent filed a stipulation providing that a decision should be
entered awarding compensation to petitioner. Stipulation at ¶ 7. Respondent denies that
petitioner’s alleged injuries are caused by the vaccines. Id. at ¶ 6. Maintaining their respective
1
Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this opinion contains a
reasoned explanation for the action in this case, I am required to post it on the website of the United States Court of
Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. This means the
opinion will be available to anyone with access to the Internet. Before the opinion is posted on the court’s
website, each party has 14 days to file a motion requesting 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). “An objecting party must provide the court with a proposed redacted version of the
decision.” Id. If neither party files a motion for redaction within 14 days, the opinion will be posted on the
court’s website without any changes. Id.
2
The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine
Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-1 to -34 (2012)
(Vaccine Act or the Act). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. §
300aa.
positions, the parities nevertheless now agree that the issues between them shall be settled and
that a decision should be entered awarding compensation to petitioner according to the terms of
the stipulation attached hereto as Appendix A. Id. at ¶ 7.
The stipulation awards:
1) A lump sum of $379,367.17, which amount represents compensation for first
year life care expenses ($37,367.17) and combined lost earnings, pain and
suffering, and past unreimbursable expenses ($342,000.00), in the form of a
check payable to petitioner; and
2) A lump sum of $65,912.07 which amount represents reimbursement of a
Department of Vermont Health Access (“DVHA”) lien for services rendered on
behalf of Robert Raiche, in the form of a check payable jointly to petitioner and
DVHA, and mailed to
HP Financial Services
P.O. Box 1645
Williston, VT 05495
Unique ID #: 819661
Attn: Medicaid Recovery, DVHA
Petitioner agrees to endorse this payment to DVHA.
3) An amount sufficient to purchase the annuity contract described in paragraph
10.
These amounts represent compensation for all damages that would be available
under 42 U.S.C. §300aa-15(a).
I adopt the parties’ stipulation attached hereto, and award compensation in the amount
and on the terms set forth therein. The Clerk of the Court SHALL ENTER JUDGMENT in
accordance with the terms of the parties’ stipulation.3
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
3
Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule
11(a).
2
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606 N.E.2d 655 (1992)
239 Ill. App.3d 916
179 Ill.Dec. 823
The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
James Paul GLASS, Defendant-Appellant.
No. 4-91-0908.
Appellate Court of Illinois, Fourth District.
December 28, 1992.
*658 Daniel D. Yuhas, Deputy Defender, Office of the State Appellate Defender, Springfield, Jeffrey D. Foust, Asst. Defender, for defendant-appellant.
Charles G. Reynard, State's Atty., McLean County Law & Justice Center, Bloomington, Norbert J. Goetten, Director State's Attorneys Appellate Prosecutor, Springfield, Robert J. Biderman, Deputy Director,
James Majors, Staff Atty., for plaintiff-appellee.
Justice COOK delivered the opinion of the court:
After a jury trial, defendant James Glass was convicted of three counts of aggravated criminal sexual assault (Ill.Rev.Stat. 1989, ch. 38, par. 12-14(b)(1)) and one count of aggravated criminal sexual abuse (Ill. Rev.Stat.1989, ch. 38, par. 12-16(c)(1)). Defendant was sentenced to three consecutive terms of 25 years of imprisonment for the aggravated criminal sexual assault charges and a concurrent term of seven years of imprisonment for aggravated criminal sexual abuse. Defendant appeals his convictions and sentences. We affirm.
On January 30, 1991, defendant was charged with three counts of aggravated criminal sexual assault and two counts of aggravated criminal sexual abuse of his 10-year-old next-door neighbor, E.C. On August 13, 1991, the court held a hearing pursuant to section 115-10 of the Code of Criminal Procedure of 1963 (Code) (Ill.Rev. Stat.1991, ch. 38, par. 115-10) to determine the reliability of statements made by the victim, E.C, to Bloomington police officer Mike Jordan. Jordan testified that on January 24, 1991, he met with E.C. at the Bloomington police department along with Lisa Piper from Department of Children and Family Services (DCFS). Jordan said E.C, who was 10 years old at that time, told him that defendant had performed sexual acts with her. E.C. described in detail a few of the incidents and said they mostly occurred in defendant's car or van out in the country except for one occasion which took place in defendant's bedroom in Bloomington. Jordan compiled a typed statement of E.C.'s remarks and had E.C. read the statement over for clarity and to make corrections. The court admitted the statement into evidence as People's exhibit No. 1.
At trial, Jordan testified to his conversations with E.C. on January 24 and January 31 during which he compiled the typed statements of her comments. E.C. told Jordan the first incident happened during *659 the summer of 1990 when she accompanied defendant to the Furrows store. After defendant finished purchasing hardware at Furrows, he drove out into the country and put his hand down E.C.'s shirt and felt her breasts. He then put his hand down her pants and felt her vagina. The second incident E.C. described to Jordan was when she and her best friend, M.C., went into the country with defendant in his van. Defendant gave each of them money for hugs and kisses. The third incident E.C. described to Jordan occurred the day before Christmas eve in 1990 when defendant asked E.C. to come over to his house next door and see his waterbed. When E.C. complied and sat on his bed, defendant removed her pants, pulled up her shirt and began licking her breasts and vagina. E.C. stated that defendant then had her stimulate his penis and testicles. E.C. described to Jordan in detail how defendant had her perform oral sex on him to the point of ejaculation.
Jordan attested to the fact that E.C.'s signature was on the statement and that she had read it over and circled the misspelled words. Jordan said he proceeded to defendant's residence on January 30, 1991, and arrested him shortly thereafter. Jordan could not swear all of the alleged incidents of sexual abuse happened within the borders of McLean County since E.C. could not pinpoint the locations except for the incident in defendant's bedroom. Jordan stated he believed the incident after the trip to Furrows occurred in McLean County because E.C. stated that when they got back close to town and traffic started to get heavy, defendant would stop fondling her.
E.C. testified she was born March 26, 1980, and moved next door to defendant in Bloomington on March 11, 1990. Defendant began spending a lot of time with E.C.'s family soon after they moved in. E.C. would often go places with defendant by herself and he would buy her toys and clothes. E.C. said that defendant touched her "in the wrong places," including her "potty," which she indicated was the area between her legs. E.C. said she did not remember where it happened. She then said she did not rememoer anything about the first time it happened and did not recall telling Jordan about these incidents in the typed statement. After E.C. was allowed to read her statement to refresh her memory, she said she still did not remember it. E.C. admitted she was scared to tell what happened and did not want to talk about it. She then recalled one time when defendant took her to the State fair. She said defendant had a smile on his face and she "knew he wanted to do sex with me" because he smiled and winked. She said defendant kissed her, did things to her "potty" and her "boobs." She said this occurred in defendant's van during the summer of 1990 in a parking lot across from the State fair.
E.C. also described the incident where defendant asked her to see his waterbed. She said when she went inside his bedroom, defendant shut the door and pulled down her pants and underwear. Defendant took his pants off and proceeded to touch, kiss, and lick E.C.'s vagina and breasts. E.C. described how defendant rubbed his penis on her vagina but said defendant did not put his fingers into her vagina on this occasion. E.C. said she did not remember if she touched him and does not think she had anything in her mouth. She did not remember him doing anything else with his penis. She has tried to forget these things and does not like thinking about it. E.C. said she signed the statement given to Jordan and that it was the truth. She understood what it meant to tell the truth. E.C. said after the incident on the waterbed she went to Havana, Illinois, with defendant to look at houses but defendant did not fondle her on that trip. E.C. also testified defendant drove her and her friend M.C. out in the country and offered them money for hugs and kisses. Defendant gave them both "French and regular kisses" and told them not to tell anyone.
M.C. testified she is 12 years old. She and E.C. would often go places with defendant and he would take them out to eat or buy them clothes. On one occasion he took them to a lake outside of town. Defendant told them he would give each of them $5 for five hugs and kisses. M.C. said while *660 defendant was kissing her he put his hand inside her shirt, rubbed her back, and raised her shirt. Over defense objection, M.C. stated that E.C. told her that on one occasion that defendant "took her (E.C.) into his house and actually did sex to her."
A.C. and R.C., E.C.'s parents, testified that defendant saw E.C. at least once a week and would often take her places alone. R.C. recalled E.C. acting upset on one or two occasions after going someplace with defendant.
Defendant testified he is 46 years old and works as a general contractor. He lived in Bloomington next door to E.C. and would often go places with various members of her family. Defendant took E.C. to fairs or events around central Illinois but denied ever doing "anything of a sexual nature" with her. Defendant said that on one occasion he took M.C. and E.C. to Clinton Lake in Dewitt County. While he was driving, the girls started talking about training bras. Then he said M.C. exposed her breasts which he could not see from the driver's seat. Defendant became upset when the girls began talking about condoms and masturbation and told them to "shut up." When they got to the lake, defendant said E.C. was upset because she had never heard defendant yell. Defendant said he put his arms around them and said he was sorry and kissed them both on the cheek. Defendant did not offer them money but the girls took some change off the dashboard after defendant bought gas. On other occasions defendant took E.C. camping, shopping, or to a movie but he denied ever touching her sexually. Defendant stated that on Saturday, December 22, 1990, he took E.C. with him to Havana, Illinois, to submit a job estimate on a house. Defendant said he frequently goes to Furrows in Bloomington and may have taken E.C. with him but he does not specifically remember taking her there. Defendant stated he considers himself a homosexual and admitted he pleaded guilty in November 1990 to sexual abuse of a young boy.
Pursuant to the prosecution's motion, the court nol-prossed count III. The jury found defendant guilty on all remaining counts. Defendant filed a post-trial motion which the trial court denied. At the sentencing hearing, the State presented L.M., who testified that she had known defendant since 1967 when he was her next-door neighbor. In 1969 when L.M. was nine, defendant fondled her vagina with his finger. He also attempted to perform oral sex on her but she was able to get free and run home. Defendant attempted to molest her on another occasion but stopped when L.M. screamed. Defendant testified he did not remember ever meeting L.M. much less fondling her.
Defendant alleges the trial court committed reversible error by failing to conduct a hearing pursuant to section 115-10 of the Code in regard to M.C.'s statement that E.C. said defendant "took her into his house and actually did sex to her." Section 115-10 of the Code provides:
"(a) In a prosecution for a sexual act perpetrated upon a child under the age of 13, * * * the following evidence shall be admitted as an exception to the hearsay rule:
* * * * * *
(2) testimony of an out of court statement made by such child describing any complaint of such act or matter or detail pertaining to any act which is an element of an offense which is the subject of a prosecution for a sexual act perpetrated upon a child.
(b) Such testimony shall only be admitted if:
(1) The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and
(2) The child either:
(A) Testifies at the proceeding; or
(B) Is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement." (Ill.Rev.Stat.1989, ch. 38, pars. 115-10(a)(2), (b).)
The legislature enacted section 115-10 to expand the previous hearsay exception, to allow into evidence out-of-court statements *661 of children who are victims of sexual abuse. (85th Ill.Gen.Assem., Senate Proceedings, June 26, 1987, at 227; People v. Rushing (1989), 192 Ill.App.3d 444, 451, 139 Ill.Dec. 403, 407, 548 N.E.2d 788, 792.) A statement admitted pursuant to section 115-10 must show a "`particularized guarantee[ ] of trustworthiness.'" People v. Coleman (1990), 205 Ill.App.3d 567, 581, 150 Ill.Dec. 883, 892, 563 N.E.2d 1010, 1019, quoting Idaho v. Wright (1990), 497 U.S. 805, 816, 110 S.Ct. 3139, 3147, 111 L.Ed.2d 638, 653.
We find defendant has waived the issue of the trial court's failure to conduct a section 115-10 hearing before M.C. testified. (People v. Enoch (1988), 122 Ill.2d 176, 186, 119 Ill.Dec. 265, 271, 522 N.E.2d 1124, 1130; People v. Booker (1992), 224 Ill.App.3d 542, 552, 166 Ill.Dec. 252, 259, 585 N.E.2d 1274, 1281.) In order to preserve an argument for appeal, both an objection at trial and a written post-trial motion raising the issue are required. (Enoch, 122 Ill.2d at 186, 119 Ill.Dec. at 271, 522 N.E.2d at 1130; Booker, 224 Ill.App.3d at 552, 166 Ill.Dec. at 259, 585 N.E.2d at 1281.) Although defendant objected to M.C.'s testimony at trial, he did not raise the issue in his post-trial motion. When a defendant has not properly preserved his claim of error, appellate review is limited to the determination of whether the statement was so prejudicial as to amount to plain error under Illinois Supreme Court Rule 615(a) (134 Ill.2d R. 615(a)). Since we do not consider M.C.'s statement to have affected substantial rights of defendant or to have denied him a fair trial, we find defendant has waived this issue on appeal.
On the merits we find the trial court erred in failing to conduct a section 115-10 hearing before M.C. testified, but that such error was harmless. When error is shown to exist, a reviewing court must reverse unless it is clearly shown that the error was not prejudicial to defendant. (People v. Lawler (1991), 142 Ill.2d 548, 562, 154 Ill.Dec. 674, 680, 568 N.E.2d 895, 901.) Although the presence of the declarant in court, or even the fact that the declarant testifies, does not prevent hearsay from Demg hearsay Lawler, 142 Ill.2d at 557, 154 Ill.Dec. at 678, 568 N.E.2d at 899; cf. 2 McCormick on Evidence § 326 (4th ed. 1992)), the admission of hearsay is harmless if such statement is fully corroborated by the declarant's testimony at trial and the defense has the opportunity to cross-examine the declarant. (People v. Morton (1989), 188 Ill.App.3d 95, 102, 135 Ill.Dec. 619, 623-24, 543 N.E.2d 1366,1370-71.) E.C.'s statement to M.C. that defendant "actually did sex to her" was admitted after E.C. had testified that defendant digitally and orally penetrated her vagina. M.C.'s testimony was only cumulative of testimony already given. Considering E.C.'s direct testimony, we conclude the error was harmless.
Defendant's next contention is that the State failed to prove beyond a reasonable doubt that the criminal activity alleged in counts IV and V occurred within McLean County. The State argues defendant waived this issue under section 1-6(a) of the Criminal Code of 1961 (Criminal Code), which states that "[a]ll objections of improper place of trial are waived by a defendant unless made before trial." (Ill.Rev. Stat.1989, ch. 38, par. 1-6(a).) Defendant would have waived this issue if he were alleging a defective indictment rather than a failure of proof. It is true that an objection to improper place of trial is waived unless defendant objects before trial. However, the fact that the State has failed to prove the location of the offense need not and cannot be objected to before trial. (People v. McClain (1978), 60 Ill.App.3d 320, 322-23, 17 Ill.Dec. 628, 630, 376 N.E.2d 774, 776.) In his appellate brief, defendant appears to allege, not a defect in the indictment, but rather a failure of proof as to venue and thus has not waived this issue.
Nonetheless, we find the evidence in the record is sufficient to prove counts IV and V occurred within McLean County. Venue is proper in any county where any element of the offense was committed. (People v. Lambert (1990), 195 Ill.App.3d 314, 318, 141 Ill.Dec. 932, 935, 552 N.E.2d 300, 303.) Venue is a material allegation *662 which must be proved beyond a reasonable doubt along with the other elements of an offense. (People v. Hagan (1991), 145 Ill.2d 287, 300, 164 Ill.Dec. 578, 584, 583 N.E.2d 494, 500.) Venue may be established by direct or circumstantial evidence. (People v. Ramsey (1986), 147, Ill.App.3d 1084, 1088, 99 Ill.Dec. 962, 965, 496 N.E.2d 1054, 1057; Hagan, 145 Ill.2d at 300, 164 Ill.Dec. at 584, 583 N.E.2d at 500.) "The location of the offense is proved by circumstantial evidence where the only rational conclusion to be drawn from the evidence as a whole is that the offense took place in the county alleged." (Ramsey, 147 Ill. App.3d at 1089, 99 Ill.Dec. at 965-66, 496 N.E.2d at 1057-58; see also People v. Toellen (1978), 66 Ill.App.3d 967, 971, 23 Ill. Dec. 686, 689, 384 N.E.2d 480, 483.) A jury's determination as to circumstantial evidence should not be disturbed unless there are circumstances contradicting the reasonable inferences and conclusions drawn by the jury from such evidence. People v. Stone (1977), 46 Ill.App.3d 729, 731, 5 Ill.Dec. 191, 193, 361 N.E.2d 330, 332.
Count IV states that defendant committed an act of aggravated criminal sexual abuse involving the hands of defendant and the vagina of E.C; count V states that defendant committed an act of aggravated criminal sexual assault involving the vagina of E.C. and the finger of defendant. These incidents were alleged to have occurred during the summer of 1990 when E.C. accompanied defendant on a trip to Furrows and a country drive afterward. E.C. testified at trial that defendant touched her "[r]ight between my legs" in the summer of 1990 but she could not remember any other details. Jordan testified at trial that the country area surrounding Furrows is in McLean County but he could not swear the incidents E.C. testified to happened within the borders of McLean County. However, in People's exhibit No. 1, E.C stated the following about the Furrows incident:
"He put his finger inside and made it go up and down or from side to side. He did that until we got to town and started seeing traffic. `He made me straighten out my clothes so they wouldn't be crooked. * * * When we got home he gave me two or three dollars and I went inside my house."
Defendant argues that E.C.'s comment about "coming into town" does not necessarily mean Bloomington. However, given the fact that Bloomington is E.C.'s hometown, this is the only logical conclusion to be drawn in the context of her statement. E.C. did not mention driving to any other cities that day with defendant and the jury could logically conclude her statement about "coming into town" meant Bloomington.
Apart from this evidence, we find section 1-6(f) of the Criminal Code is applicable to the instant case:
"If an offense is committed upon any railroad car, vehicle, watercraft or aircraft passing within this State, and it cannot readily be determined in which county the offense was committed, the offender may be tried in any county through which such railroad car, vehicle, watercraft or aircraft has passed." (Ill. Rev.Stat.1991, ch. 38, par. 1-6(f).)
The offenses charged in counts IV and V of this case took place in defendant's van while the van was traveling within the State. Applying section 1-6(f) of the Criminal Code, venue would still be proper in McLean County even if defendant drove out of McLean County temporarily since defendant's vehicle had to have passed through McLean County to return E.C. to her home in Bloomington. See also Ramsey, 147 Ill.App.3d at 1089, 99 Ill.Dec. at 966, 496 N.E.2d at 1058; People v. Frank (1981), 98 Ill.App.3d 388, 395, 54 Ill.Dec. 49, 54, 424 N.E.2d 799, 804; People v. Barksdale (1974), 24 Ill.App.3d 489, 497, 321 N.E.2d 489, 495.
Defendant next contends he was denied a fair trial where the trial court failed by its own motion to instruct the jury that venue must be proved beyond a reasonable doubt. (See Illinois Pattern Jury Instructions, Criminal, No. 2.07 (3d ed. 1992).) The burden of preparing criminal jury instructions is primarily on the parties, *663 not the trial court. The trial court has no obligation to give instructions not requested by counsel and no party may raise on appeal the failure to give any instruction unless he tendered it to the court. (People v. Fetter (1992), 227 Ill.App.3d 1003, 1007, 169 Ill.Dec. 301, 303, 591 N.E.2d 474, 476.) Failure to object at trial to an error in jury instructions generally waives the issue for appeal (People v. Carney (1992), 229 Ill. App.3d 690, 696, 171 Ill.Dec. 215, 219, 593 N.E.2d 1035, 1039; People v. Waisvisz (1991), 221 Ill.App.3d 667, 676, 164 Ill.Dec. 439, 445-46, 582 N.E.2d 1383, 1389-90) as does the failure to raise the issue in a written post-trial motion. (Enoch, 122 Ill.2d at 186,119 Ill.Dec. at 271, 522 N.E.2d at 1130.) However, under a limited exception for plain error in Supreme Court Rule 451(c), substantial defects in instructions are not waived by failure to make a timely objection thereto if the interests of justice require. (134 Ill.2d R. 451(c).) This plain error exception applies only to correct serious or grave errors, cases that are factually close, or cases in which the error threatens the fundamental fairness of the defendant's trial. (People v. Hood (1991), 210 Ill.App.3d 743, 749, 155 Ill.Dec. 228, 232, 569 N.E.2d 228, 232; see also People v. Shields (1991), 143 Ill.2d 435, 446, 159 Ill. Dec. 40, 45, 575 N.E.2d 538, 543.) Here, we determined that section 1-6(f) of the Criminal Code established venue in McLean County. In addition, defendant did not offer any venue instructions or object to a lack of venue instruction at the trial. Because defendant failed to tender an instruction on venue at trial and failed to raise the issue in his post-trial motion, and since the plain error exception does not apply, we find defendant has waived the issue.
On the merits we find the trial court's failure to sua sponte give the venue instruction was not reversible error. The jury must be instructed that the State is required to prove beyond a reasonable doubt that each element of the charged offense occurred in the county in which the crime was alleged to have been committed if the evidence raises a question of the propriety of venue. (People v. Chaney (1987), 157 Ill.App.3d 552, 563, 109 Ill.Dec. 929, 936, 510 N.E.2d 997, 1004.) Such an instruction must be given only if the evidence raises a factual question as to whether venue had been proved beyond a reasonable doubt. (McClain, 60 Ill.App.3d at 323, 17 Ill.Dec. at 631, 376 N.E.2d at 777.) In McClain, the court refused to tender defendant's instruction on venue. The reviewing court concluded that such instruction should have been given but that the error was harmless because the evidence at trial established venue beyond a reasonable doubt. (McClain, 60 Ill.App.3d at 323, 17 Ill.Dec. at 631 376 N.E.2d at 777.) Here section 1-6(f) removed the issue of venue from the case. Even if venue were an issue, the jury was informed of the issue during defense counsel's closing argument, which included the following:
"But even if it did happen, ladies and gentlemen, you still can't find him guilty of these particular counts, these last two counts, because the incident didn't happen in McLean County. * * * it's a matter of venue. * * * So even if you think something happened between James Glass and [E.C], unless you are convinced beyond a reasonable doubt that it happened in McLean County, and certainly none of the evidence that I heard substantiates that, you cannot and should not find James Glass guilty of these offenses on these two counts."
Generally, in determining the effect of faulty jury instructions on the validity of a defendant's conviction, the instructions should not be judged by themselves but must be considered in light of the record as a whole, including the evidence and arguments presented to the jury. (Shields, 143 Ill.2d at 445-46, 159 Ill.Dec. at 45, 575 N.E.2d at 543.) Given the application of section 1-6(f) of the Criminal Code and the information stated to the jury by defense counsel in his closing argument, we find the court's failure to sua sponte instruct on this issue was harmless error.
Defendant's next contention is that he was not proved guilty beyond a reasonable doubt because E.C.'s testimony was inconsistent, improbable, and contrary to the testimony of other defense witnesses. *664 The reasonable doubt test articulated in People v. Collins (1985), 106 Ill.2d 237, 87 Ill.Dec. 910, 478 N.E.2d 267, governs an appellant's claim of evidentiary insufficiency in sex offense cases. Criminal convictions are not to be overturned on review unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant's guilt. (Collins, 106 Ill.2d at 261, 87 Ill.Dec. at 919, 478 N.E.2d at 276.) The test to be employed on review "`is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" (Emphasis in original.) Collins, 106 Ill.2d at 261, 87 Ill.Dec. at 920, 478 N.E.2d at 277, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573.
Defendant argues that E.C.'s testimony at trial about the incident in his bedroom directly contradicts the allegations in count I and her statement in People's exhibit No. 1 that defendant had her perform fellatio on him to the point of ejaculation. At trial, E.C. said she could not remember defendant doing anything with his penis besides rubbing her vagina and she did not think she had anything in her mouth. As in many sex offense cases, the outcome of this case rested upon the credibility of the victim and the defendant. The jury had the opportunity to view the proceedings and was charged with the responsibility of weighing the credibility of witnesses and resolving any conflicts and inconsistencies in their testimonies. (Carney, 229 Ill.App.3d at 694-95, 171 Ill.Dec. at 218, 593 N.E.2d at 1038; People v. McCarthy (1991), 213 Ill.App.3d 873, 880, 157 Ill.Dec. 755, 760, 572 N.E.2d 1219, 1224; People v. Lemons (1991), 210 Ill. App.3d 33, 41, 154 Ill.Dec. 931, 936, 568 N.E.2d 1380, 1385.) A fact finder's determinations on witness credibility and its resolution of disputed questions of fact are entitled to deference on review. (People v. Jones (1988), 174 Ill.App.3d 737, 745, 124 Ill.Dec. 255, 261, 528 N.E.2d 1363, 1369.) Any shortcomings in a victim's testimony do not destroy credibility but merely affect the weight given to the testimony by the trier of fact. (Booker, 224 Ill.App.3d at 550, 166 Ill.Dec. at 258, 585 N.E.2d at 1280.) At trial, E.C. admitted she was scared and had tried to forget the incidents. E.C. also indicated she understood she had to tell the truth and that the statement she gave to Jordan was true. The jury was fully aware of the deficiencies in E.C.'s testimony, but it chose to believe her version over the story given by defendant and we do not find that choice to be improbable or unsatisfactory.
In addition, the evidence as a whole sufficiently described defendant's conduct during the commission of the offenses. The failure of a victim to testify at trial to specific details regarding a defendant's sexual acts upon her is not conclusive since section 115-10 of the Code does not require every detail recited in a previous statement be corroborated by the child's testimony at trial. (Ill.Rev.Stat.1989, ch. 38, par. 115-10; Rushing, 192 Ill.App.3d at 451, 139 Ill.Dec. at 407, 548 N.E.2d at 792; Morton, 188 Ill.App.3d at 102, 135 Ill.Dec. at 624, 543 N.E.2d at 1371.) We find E.C.'s statement and testimony at trial to be sufficiently reliable and any discrepancies in her statements did not detract from the reasonableness of her story as a whole.
Defendant argues that E.C.'s testimony as to his "touching" did not meet the statutory definition of "penetration." Section 12-12(f) of the Criminal Code defines penetration in pertinent part as follows:
"(f) `Sexual penetration' means any contact, however slight, between the sex organ of one person and the sex organ, mouth or anus of another person, or any intrusion, however slight, of any part of the body of one person or of any animal or object into the sex organ or anus of another person, including but not limited to cunnilingus, fellatio or anal penetration." (Ill.Rev.Stat.1991, ch. 38, par. 12-12(f).)
In People's exhibit No. 1, E.C. described the incident which occurred after she and defendant had gone to Furrows and were driving in the country: "He [defendant] *665 got his hand inside my underwear and started rubbing my private parts. Some people call it [a] potty. He put his finger inside and made it go up and down or from side to side." (Emphasis added.) E.C. also described in detail how defendant had her perform fellatio on him and how he performed cunnilingus on her. The issue whether sexual penetration occurred is a question of fact for the jury (People v. Harris (1989), 187 Ill.App.3d 832, 838, 135 Ill.Dec. 291, 294, 543 N.E.2d 859, 862), and it was appropriate for the jury to conclude that penetration did occur in this case.
We also reject defendant's contention that the absence of medical testimony or evidence to corroborate the victim's claim of sexual assault raises a reasonable doubt as to his guilt. A sex offense victim's testimony, as with any other crime victim, need not be substantially corroborated for a defendant to be found guilty beyond a reasonable doubt. People v. Schott (1991), 145 Ill.2d 188, 206, 164 Ill. Dec. 127, 135, 582 N.E.2d 690, 698.
Defendant next alleges that the court should overrule its holding in People v. Ewald (1991), 210 Ill.App.3d 7, 154 Ill. Dec. 451, 568 N.E.2d 451, in light of People v. Bole (1991), 223 Ill.App.3d 247, 165 Ill. Dec. 739, 585 N.E.2d 135, and modify defendant's sentence so two of his three terms run concurrently. Defendant alleges the court below imposed three consecutive 25-year terms on three counts because it mistakenly believed that consecutive terms were mandatory. The applicable statutory provision, section 5-8-4(a) of the Unified Code of Corrections (Unified Code), provides in pertinent part:
"(a) * * * The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective, unless, one of the offenses for which defendant was convicted was a Class X or Class 1 felony and the defendant inflicted severe bodily injury, or where the defendant was convicted of a violation of Section 12-13 or 12-14 of the Criminal Code of 1961, in which event the court shall enter sentences to run consecutively." (Emphasis added.) (Ill.Rev.Stat.1989, ch. 38, par. 1005-8-4(a).)
Count I and count II were alleged to have occurred on December 23, 1990, and count V was alleged to have occurred between May and September of 1990. Defendant contends the December 23 actions are not within the scope of section 5-8-4(a) of the Unified Code since that section only authorizes mandatory consecutive sentences where the sexual assaults were part of a single course of conduct.
Ewald, a fourth district case, held that section 5-8-4(a) of the Unified Code mandates consecutive sentences where multiple offenses include violations of sections 12-13 or 12-14 of the Criminal Code (Ill.Rev. Stat.1989, ch. 38, pars. 12-13, 12-14), even if the offenses arose from distinctly separate courses of conduct. (Ewald, 210 Ill. App.3d at 9, 154 Ill.Dec. at 452, 568 N.E.2d at 452.) Ewald was followed by the fifth district in People v. Hough (1991), 221 Ill. App.3d 447, 453-55, 164 Ill.Dec. 51, 55-56, 582 N.E.2d 259, 263-64, and People v. Haun (1991), 221 Ill.App.3d 164, 176-77, 163 Ill.Dec. 710, 719, 581 N.E.2d 864, 873, as well as in other fourth district cases (People v. Lipscomb (1991), 215 Ill.App.3d 413, 158 Ill.Dec. 952, 574 N.E.2d 1345; People v. McDade (1991), 219 Ill.App.3d 317, 162 Ill.Dec. 359, 579 N.E.2d 1173). In Ewald, we acknowledged that the language in section 5-8-4(a) is unclear, but stated that "[A]ny other interpretation would be difficult to reconcile since it is unlikely the legislature intended to authorize a mandatory consecutive sentence in cases where a section 12-13 or section 12-14 violation stems from a single course of conduct, and not, as in the instant case, when a defendant sexually assaults two young girls on separate occasions." Ewald, 210 Ill.App.3d at 10, 154 Ill.Dec. 453, 568 N.E.2d at 453.
Bole, a second district case, held that, by its plain meaning, the mandatory consecutive sentencing provision in section 5-8-4(a) of the Unified Code was intended to apply only to situations where the relevant offenses *666 occurred during a single course of conduct. (Bole, 223 Ill.App.3d at 254, 165 Ill.Dec. at 745, 585 N.E.2d at 141.) Bole was followed by one second district and one third district case, Fetter, 227 Ill. App.3d at 1008, 169 Ill.Dec. at 304, 591 N.E.2d at 477, and People v. Dooley (1992), 227 Ill.App.3d 1063, 1066, 170 Ill.Dec. 432, 434, 592 N.E.2d 1112, 1114. The court in Bole found it significant that the legislature placed the provision regarding section 12-13 or 12-14 offenses with the already existing exception to the single course of conduct ban against consecutive sentences. The court reasoned that if the legislature intended consecutive sentences to apply to sections 12-13 and 12-14 offenses irrespective of a single course of conduct, the legislature could have set the provision out separately. Bole, 223 Ill.App.3d at 258, 165 Ill.Dec. at 748, 585 N.E.2d at 144.
Where the language of a statute is ambiguous and admits of alternate constructions, a reviewing court should select the construction which leads to a logical result and reject those which would lead to an absurdity, inconvenience, or injustice. (Hough, 221 Ill.App.3d at 454-55, 164 Ill. Dec. at 56, 582 N.E.2d at 264; People v. Jones (1985), 134 Ill.App.3d 1048, 1051, 89 Ill.Dec. 883, 885, 481 N.E.2d 726, 728.) Under the Bole interpretation, a serial sex abuser convicted of molesting the same child on different days or many children on different occasions would not be exposed to mandatory consecutive terms whereas an offender who violated a child more than once on the same day would be exposed to consecutive terms. This interpretation is illogical and would lead to absurdity and injustice in sentencing decisions. A serial sex abuser who commits several offenses on the same occasion is no more culpable than one who commits several offenses on different occasions. We elect to follow Ewald and its progeny and conclude defendant was properly sentenced to three consecutive sentences in conformity with section 5-8-4(a) of the Unified Code. We further note the supreme court recently rejected an attempt to narrow the scope of section 5-8-4(a). People v. Wittenmyer (1992), 151 Ill.2d 175, 176 Ill.Dec. 37, 601 N.E.2d 735.
We further reject defendant's contention that his sentences were an abuse of discretion. A trial court's sentencing decision is entitled to great deference. (People v. Perruquet (1977), 68 Ill.2d 149, 154, 11 Ill.Dec. 274, 276, 368 N.E.2d 882, 884.) It is not our function to serve as a sentencing court and we will not disturb a sentence on review absent an abuse of discretion by the trial court. (People v. Cox (1980), 82 Ill.2d 268, 280, 45 Ill.Dec. 190,196, 412 N.E.2d 541, 547.) Defendant contends the trial court did not properly consider all the mitigating factors in evidence or give adequate consideration to his rehabilitative potential. Defendant correctly states that the Illinois Constitution demands "[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship." (Ill. Const.1970, art. I, § 11.) However, the trial court is not required to give greater weight to the possibility of rehabilitation than to the seriousness of the offense. (People v. Partin (1987), 156 Ill.App.3d 365, 373, 109 Ill.Dec. 1, 5-6, 509 N.E.2d 662, 666-67.) In imposing the sentence, a court has no obligation to recite and give value to each fact presented at the sentencing hearing. (Partin, 156 Ill.App.3d at 373, 109 Ill.Dec. at 6, 509 N.E.2d at 667.) There is a strong presumption that the court's sentencing decision is based upon proper legal reasoning and that the court has considered any evidence in mitigation before it. Partin, 156 Ill.App.3d at 373, 109 Ill.Dec. at 6, 509 N.E.2d at 667.
The trial court carefully considered the defendant's presentence report in his sentencing decision, particularly noting defendant's prior criminal record, which included convictions for auto theft, contributing to the delinquency of a child, thefts, motor vehicle offenses, and a 1989 aggravated criminal sexual assault. The record indicates that defendant's aggravated criminal sexual assault of E.C. in December 1990 occurred while defendant was out on bond awaiting sentencing in the 1989 aggravated *667 criminal sexual assault case. In addition, the testimony of L.M. presented at the sentencing hearing indicates defendant had sexually molested young victims approximately 20 years ago. The presentence report also contained statements from E.C.'s parents regarding the psychological damage inflicted on E.C. and her family. We find the trial court properly considered all the relevant factors necessary in sentencing defendant. In light of defendant's prior offenses, the trial court could reasonably conclude consecutive 25-year sentences were necessary as a deterrent and as a protective measure for society.
For the foregoing reasons, we affirm defendant's convictions and sentences for aggravated criminal sexual assault and aggravated criminal sexual abuse.
Affirmed.
STEIGMANN, P.J., and LUND, J., concur.
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70 F.3d 1289
NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.Calvin J. HOLLEY, Petitioner,v.UNITED STATES POSTAL SERVICE, Respondent.
No. 95-3794.
United States Court of Appeals, Federal Circuit.
Oct. 17, 1995.
1
68 M.S.P.R. 469.
2
PETITION REINSTATED.
ORDER
3
Petitioner having paid the required filing fee, it is ORDERED that the order of dismissal and the mandate be, and the same hereby are, VACATED and RECALLED, and the petition for review is REINSTATED.
4
Respondent should compute the due date for filing its brief from the date of this order.
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748 F.2d 688
M/V Grand Justice
NO. 83-8371
United States Court of Appeals,Eleventh Circuit.
NOV 15, 1984
1
Appeal From: S.D.Ga.
2
AFFIRMED.
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"pile_set_name": "FreeLaw"
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Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/05/2019 09:07 AM CDT
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
BRINKMAN v. BRINKMAN
Cite as 302 Neb. 315
Nicole Brinkman, appellant, v. Seth Michael Brinkman
and K imberly M illus, Personal R epresentative
of the Estate of M ichael R. Brinkman and
as parent and next best friend of Seth
Michael Brinkman, a minor, appellees.
___ N.W.2d ___
Filed February 22, 2019. No. S-18-476.
1. Judgments: Jurisdiction. A jurisdictional issue that does not involve a
factual dispute presents a question of law.
2. Courts: Jurisdiction. Under the doctrine of jurisdictional priority, when
different state courts have concurrent original jurisdiction over the same
subject matter, basic principles of judicial administration require that
the first court to acquire jurisdiction should retain it to the exclusion of
another court.
3. Jurisdiction. The rule of jurisdictional priority does not apply unless
there are two cases pending at the same time.
4. Jurisdiction: Dismissal and Nonsuit. The doctrine of jurisdictional
priority does not apply if the first action terminates, is resolved, or is
disposed of before the second action commences.
5. Jurisdiction. Two pending cases fall under the doctrine of jurisdictional
priority only when they involve the same “whole issue.” In other words,
the two actions must be materially the same, involving the substantially
same subject matter and the same parties.
6. Constitutional Law: Courts: Jurisdiction. Because a district court’s
general jurisdiction emanates from the Nebraska Constitution, it cannot
be legislatively limited or controlled.
7. Decedents’ Estates: Actions: Equity: Courts: Jurisdiction. The
county courts have concurrent original jurisdiction with the district
courts in common-law and equity actions relating to decedents’ estates.
8. Decedents’ Estates: Wills: Declaratory Judgments: Courts. The
district court has the power in a declaratory judgment action to
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
BRINKMAN v. BRINKMAN
Cite as 302 Neb. 315
construe a will and make a determination of interests of beneficiaries
in the estate.
9. Wills: Courts. The county court has the limited power to construe a will
for the benefit of the executor in carrying out the terms of the will.
10. Courts: Jurisdiction. County courts can acquire jurisdiction only
through legislative enactment.
11. Decedents’ Estates: Wills: Courts: Jurisdiction. A county court has
complete equity powers as to all matters within its probate jurisdiction.
This includes the authority to construe a will when necessary to enable
the settlement of an estate properly.
12. Courts: Jurisdiction. While jurisdictional priority is not a matter of
subject matter or personal jurisdiction, courts should enforce the juris-
dictional priority doctrine to promote judicial comity and avoid the con-
fusion and delay of justice that would result if courts issued conflicting
decisions in the same controversy.
13. Actions: Courts: Jurisdiction: Public Policy. The rule of jurisdictional
priority is based on the public policies of avoiding conflicts between
courts and preventing vexatious litigation and a multiplicity of suits.
14. Courts: Jurisdiction. When a subsequent court decides a case already
pending in another court with concurrent subject matter jurisdiction, it
errs in the exercise of its jurisdiction.
Appeal from the District Court for Douglas County:
Leigh A nn R etelsdorf, Judge. Reversed and remanded with
directions.
Ryan P. Watson and Jeffrey A. Wagner, of Schirber &
Wagner, L.L.P., for appellant.
Joseph D. Thornton, of Smith Peterson Law Firm, L.L.P.,
for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
NATURE OF CASE
The daughter of a testator sought a declaration of her
rights under her father’s will as an alleged devisee, claiming
to be entitled to one-half of the residual share of her father’s
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302 Nebraska R eports
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Cite as 302 Neb. 315
testamentary estate under a residuary clause in the decedent’s
will. The estate asserted that the decedent unambiguously
disinherited the daughter by excluding her name in the defini-
tion of “‘children’” or “‘issue,’” while expressly including
the decedent’s younger son’s name and “all children of mine
born or adopted after the execution hereof.” After both parties
moved for summary judgment, the district court found that
the terms of the will were clear and unambiguous and that the
daughter was expressly disinherited by the will’s provisions.
Based on these findings, the court granted the estate’s motion
for summary judgment. The daughter appeals.
BACKGROUND
The testator, Michael R. Brinkman, died on December
23, 2016, leaving two known children, Nicole Brinkman and
Seth Michael Brinkman. The testator’s will was admitted for
probate, naming Kimberly Millus as personal representative.
Millus is Seth’s mother, but not Nicole’s mother. Nicole is the
older of the two children.
The relevant portions of the will are as follows:
ARTICLE I.
The references in this Will to my “son” refer to my son,
SETH MICHAEL BRINKMAN. The references in this
Will to my “children” and/or my “issue” shall include my
son, SETH MICHAEL BRINKMAN, and all children of
mine born or adopted after the execution hereof.”
....
ARTICLE IV.
I give and bequeath all right, title and interest I may
own at the time of my death, if any, in any automobile,
furniture and furnishings, including pictures and works of
art, articles of domestic use or adornment of every kind
and character, recreational equipment, personal effects
used by me about my person or home, and any collec-
tions or memorabilia, wheresoever located as provided in
the last dated writing in existence at the time of my death
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signed by me which describes such item and distributee
with reasonable certainty. To the extent any of said items
are not so disposed of, I give said property to my son.
To the extent any of such items are not so distributed,
I direct my personal representative to sell or dispose of
such items by such method and manner as my personal
representative deems to be in the best interests of my
estate, and any proceeds realized therefrom shall become
a part of the residue of my estate.
ARTICLE V.
I give the residue of my estate to my issue, per stirpes.”
(Emphasis supplied.)
Nicole is not mentioned by name within the will.
Nicole filed the present action seeking a declaration that she
was entitled to an undivided one-half interest in the estate, less
personal effects. She argued that though article I provided the
term “‘issue’” to “include” Seth, it did not expressly exclude
Nicole as “‘issue.’” (Emphasis supplied.) She later moved for
summary judgment, asserting that she was not expressly disin-
herited or disinherited by implication.
Seth and Millus, on behalf of the estate, filed a resistance
and counter-motion for summary judgment, arguing that the
will was not subject to interpretation because it was not ambig-
uous. Alternatively, Seth and Millus argued that if the will was
ambiguous, Nicole was nonetheless expressly disinherited from
taking under the testator’s will.
The district court granted the estate’s motion for summary
judgment. The court found that the language of the will was
clear and unambiguous. The district court further found that
it was clear that “issue” as used in article V was to be given
the meaning set forth in article I and that article I defined
“‘issue’” to mean Seth and any children born or adopted after
the execution of the will. Because no children were born or
adopted after the execution of the will, the court read “issue”
in article V to mean only Seth. The court further found that
Nicole was expressly disinherited by these provisions of the
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Cite as 302 Neb. 315
will. The court concluded that based on the clear terms of the
will, the entire residue of the estate passed to only Seth and
that Nicole was not entitled to a one-half interest in the residue
of the estate.
ASSIGNMENTS OF ERROR
Nicole assigns that the district court erred in finding that (1)
the will was not ambiguous and (2) she was expressly disinher-
ited from her father’s will.
STANDARD OF REVIEW
[1] A jurisdictional issue that does not involve a factual dis-
pute presents a question of law.1
ANALYSIS
[2] Though not originally raised by the parties, follow-
ing their submission of supplemental briefing at our request,
an issue of jurisdictional priority was identified. We do not
reach the merits of Nicole’s assignments of error, because we
conclude that the county court had jurisdictional priority over
the district court in this matter. It is undisputed that a probate
action pertaining to the will at issue was brought in county
court before Nicole brought her declaratory judgment action in
district court seeking interpretation of the same will, and that
probate action is still pending in county court. Under the doc-
trine of jurisdictional priority, when different state courts have
concurrent original jurisdiction over the same subject matter,
basic principles of judicial administration require that the first
court to acquire jurisdiction should retain it to the exclusion of
another court.2
[3-5] This rule of jurisdictional priority does not apply
unless there are two cases pending at the same time.3 The
1
Jesse B. v. Tylee H., 293 Neb. 973, 883 N.W.2d 1 (2016).
2
Charleen J. v. Blake O., 289 Neb. 454, 855 N.W.2d 587 (2014).
3
Id.
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Cite as 302 Neb. 315
doctrine further does not apply if the first action terminates,
is resolved, or is disposed of before the second action com-
mences.4 Additionally, two pending cases fall under this doc-
trine only when they involve the same “‘“whole issue.”’”5
In other words, the two actions must be materially the same,
involving the substantially same subject matter and the
same parties.6
Nicole conceded during oral argument that the probate of
the will began in the county court and remained pending when
Nicole brought her declaratory judgment action regarding the
construction of the will in district court. Both the probate and
the declaratory judgment actions involve the construction of
the same will and a determination of the rights of the parties
based on the will’s meaning. The cases involve substantially
the same parties.
Thus, there were two pending cases involving substantially
the same subject matter and parties in two different courts. The
only dispute presented by the parties concerning the elements
of jurisdictional priority is whether the county and the district
courts have concurrent original jurisdiction.
The estate argues that the county court has exclusive origi-
nal jurisdiction over the construction of the will and that the
district court lacks subject matter jurisdiction over such mat-
ters. We disagree.
The estate relies on Neb. Rev. Stat. §§ 24-517(1) and
30-2211 (Reissue 2016). Section 24-517 provides in pertinent
part: “Each county court shall have the following jurisdiction:
(1) Exclusive original jurisdiction of all matters relating to
decedents’ estates, including the probate of wills and the con-
struction thereof . . . .” Section 30-2211(a) provides in part:
“To the full extent permitted by the Constitution of Nebraska,
the [county] court has jurisdiction over all subject matter
4
Id.
5
Id. at 464, 855 N.W.2d at 596.
6
Id.
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Cite as 302 Neb. 315
relating to (1) estates of decedents, including construction of
wills and determination of heirs and successors of decedents,
and estates of protected persons . . . .”
We have held, however, that the Legislature’s purported
grant of exclusive original jurisdiction to the county court in
matters relating to decedents’ estates “‘is of suspect consti-
tutionality insofar as it relates to matters that would involve
either the chancery or common-law jurisdiction of the district
courts.’”7 This is because the district court’s jurisdiction over
such matters emanates from the Nebraska Constitution.
[6,7] Neb. Const. art. V, § 9, states: “The district courts shall
have both chancery and common law jurisdiction, and such
other jurisdiction as the Legislature may provide . . . .” We
have held that because a district court’s general jurisdiction
emanates from the Nebraska Constitution, it cannot be legisla-
tively limited or controlled.8 Thus, in a long line of cases, we
found that the county courts have concurrent original jurisdic-
tion with the district courts in common-law and equity actions
relating to decedents’ estates.9
[8] In this case, Nicole filed her complaint in district court
seeking declaratory relief. Specifically, she sought a declara-
tion of her rights under the decedent’s will. Neb. Rev. Stat.
§ 25-21,150 (Reissue 2016) specifically allows such an action,
providing in pertinent part: “Any person . . . under a . . . will
. . . may have determined any question of construction or valid-
ity arising under the instrument . . . and obtain a declaration
of rights, status or other legal relations thereunder.” And we
have held that the district court has the power in a declaratory
7
Ptak v. Swanson, 271 Neb. 57, 63, 709 N.W.2d 337, 341 (2006) (quoting
In re Estate of Steppuhn, 221 Neb. 329, 377 N.W.2d 83 (1985)).
8
Id. (citing Schweitzer v. American Nat. Red Cross, 256 Neb. 350, 591
N.W.2d 524 (1999), and In re Estate of Steppuhn, supra note 7).
9
See id. (citing Holste v. Burlington Northern RR. Co., 256 Neb. 713, 592
N.W.2d 894 (1999), and Iodence v. Potmesil, 239 Neb. 387, 476 N.W.2d
554 (1991)). See, also, In re Estate of Steppuhn, supra note 7.
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judgment action to construe a will and make a determination of
interests of beneficiaries in the estate.10
Nicole argues that the district court had exclusive original
jurisdiction over her declaratory judgment action and that the
county court lacks subject matter jurisdiction over the inter-
pretation of the decedent’s will. We likewise find no merit to
this contention.
[9] Nicole relies on cases wherein we have said that district
courts have exclusive jurisdiction to construe wills. While this
court has held the district courts of this state have the exclu-
sive power to construe wills, we have also held that the county
court has the limited power to construe a will for the benefit of
the executor in carrying out the terms of the will.11
[10,11] There is nothing in the Nebraska Constitution that
limits the Legislature’s ability to grant to the county courts
jurisdiction over the construction of wills. Article V, § 1, of the
Nebraska Constitution provides in part:
The judicial power of the state shall be vested in a
Supreme Court, an appellate court, district courts, county
courts, in and for each county, with one or more judges
for each county or with one judge for two or more coun-
ties, as the Legislature shall provide, and such other
courts inferior to the Supreme Court as may be created
by law.
County courts can acquire jurisdiction only through legislative
enactment.12 As already set forth, the Legislature has provided
through §§ 24-517(1) and 30-2211 that county courts have the
power to construe wills. And it is well settled that the county
court has been given complete equity powers as to all mat-
ters within its probate jurisdiction.13 This has long included
10
See Father Flanagan’s Boys’ Home v. Graybill, 178 Neb. 79, 132 N.W.2d
304 (1964).
11
See id.
12
Iodence v. Potmesil, supra note 9; In re Estate of Steppuhn, supra note 7.
13
See Youngson v. Bond, 69 Neb. 356, 95 N.W. 700 (1903).
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the authority to construe a will when necessary to enable the
settlement of an estate properly.14
We find that the county court and the district court had exer-
cisable concurrent jurisdiction over the construction of this will.
All of the elements of jurisdictional priority are present in this
case. Thus, the county court, as the first court to acquire juris-
diction, retained it to the exclusion of the district court unless
it deferred to the district court.15 Neb. Rev. Stat. § 30-2429.01
(Reissue 2016) provides that the district court may determine
whether a decedent left a valid will if there is an objection to
the probate of the will in county court and certain transfer pro-
cedures are followed. But this case was not transferred to the
district court pursuant to this section, nor does it involve the
validity of a will, but, rather, its construction.16
[12-14] While jurisdictional priority is not a matter of sub-
ject matter or personal jurisdiction, courts should enforce the
jurisdictional priority doctrine to promote judicial comity and
avoid the confusion and delay of justice that would result if
courts issued conflicting decisions in the same controversy.17
The rule of jurisdictional priority is based on the public poli-
cies of avoiding conflicts between courts and preventing vexa-
tious litigation and a multiplicity of suits.18 A pragmatic jus-
tification for the rule is efficiency in that proceedings earlier
begun may be expected to be earlier concluded.19 When a
subsequent court decides a case already pending in another
court with concurrent subject matter jurisdiction, it errs in the
exercise of its jurisdiction.20
14
See id.
15
See Charleen J. v. Blake O., supra note 2.
16
See § 30-2429.01.
17
See Charleen J. v. Blake O., supra note 2.
18
Id.
19
Id.
20
See id.
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Cite as 302 Neb. 315
Because the county court did not transfer the case or oth-
erwise relinquish its jurisdictional priority, the district court
improperly impinged on the county court’s jurisdictional pri-
ority in construing the will in this matter. The district court
erred in its exercise of jurisdiction, and we reverse the order
and remand this matter to the district court with directions to
dismiss the complaint without prejudice.
CONCLUSION
We reverse, because we conclude that the county court has
jurisdictional priority over the district court in construing the
will in this matter.
R eversed and remanded with directions.
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943 F.2d 1314
Brownv.INS*
NO. 91-4146
United States Court of Appeals,Fifth Circuit.
SEP 04, 1991
1
Appeal From: I.N.S.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
| {
"pile_set_name": "FreeLaw"
} |
56 Cal.App.4th 892 (1997)
ZAROUG SONDRA DERDERIAN et al., Plaintiffs and Appellants,
v.
WILLIAM DIETRICK, Defendant and Respondent.
Docket No. B096230.
Court of Appeals of California, Second District, Division Four.
July 24, 1997.
*893 COUNSEL
George McDonald and Keith N. Crouch for Plaintiffs and Appellants.
*894 Bonne, Bridges, Mueller, O'Keefe & Nichols, Raymond J. McMahon, Carmen Vigil and Peter R. Osinoff for Defendant and Respondent.
OPINION
VOGEL (C.S.), P.J.
INTRODUCTION
Plaintiffs and appellants Zaroug Sondra Derderian, Marilyn Mayda Derderian, Sophia Derderian-Assadourian, and Asdghhig S. Derderian appeal from summary judgment granted in favor of defendant and respondent, William Dietrick, M.D., in their action for the alleged wrongful death of their mother, Mary Derderian. The trial court concluded that summary judgment was proper because the statute of limitations for appellants to bring their professional negligence claim (Code Civ. Proc., § 340.5) was not tolled since appellants failed to provide respondent with actual notice of their claim as required by Code of Civil Procedure section 364,[1] and therefore the statute of limitations for filing the action expired three months before the complaint was served and filed. We find based on the undisputed facts that appellants failed to comply with the requirements of section 364 and thus, the applicable one-year statute of limitations was not tolled and expired before their action was filed. Summary judgment was properly granted in favor of respondent.
FACTUAL AND PROCEDURAL BACKGROUND
On October 5, 1992, appellants' mother, Mary Derderian, was brought into the emergency department of St. Luke Medical Center in Pasadena. Respondent was the physician who initially treated her. Appellant Zaroug Derderian met respondent that day and was aware of his name and the fact he treated her mother. Appellant's mother was admitted to the hospital for observation later that day, and her care was turned over to another physician at that time.
On October 10, 1992, appellants' mother died while still at St. Luke Medical Center. As of that date, appellant Zaroug Derderian believed that respondent's treatment of her mother had been negligent and contributed to her death.
On October 5, 1993, appellants sent letters to various health care providers for the purpose of notifying them of appellants' intent to file suit for the *895 wrongful death of their mother. One letter was sent to St. Luke Medical Center on East Washington Boulevard in Pasadena; the address was obtained from the patient's medical records. Appellants had received from the decedent's cardiologist, Dr. Matthew Baggett, notice that he had relocated his office. Appellants sent a letter to both his new address and his former address.
Appellants sent respondent's letter addressed to "Dr. William Dietrick, M.D.[,] c/o St. Luke Emergency Associates[,] P.O. Box 2267[,] Chatsworth, CA 91313-2267." They obtained this address from a bill sent to their mother's address. The bill indicated it was from "St. Luke Emergency Associates," at the Chatsworth address listed above, and instructed "Make check payable to: St. Luke Emergency Associates." At the lower right hand corner of the bill, respondent's name appeared in a box indicating "physician performing service." The place of service was listed as "St. Luke Medical Center Emergency Department Pasadena." The bill indicated that partial payment had been received from an insurance carrier. Appellants' attorney had looked at Marquis' Directory for emergency room physicians and the "Yellow Pages of the Pacific telephone book," and did not find a listing for respondent.
On January 3, 1994, appellants filed a complaint for wrongful death by professional negligence. Named as defendants were respondent, St. Luke Emergency Associates, St. Luke Medical Center, and Matthew A. Baggett, M.D.[2] Respondent was served with a summons and complaint at his home address in San Marino. Attached was a copy of the letter dated October 5, 1993, regarding appellants' intent to sue respondent and others. Respondent had never received this letter until he received the summons and complaint.
The address to which the letter had been sent was for a billing service, Synergistic Systems, Inc., used by J.C. Bufalino, M.D., Inc., doing business as St. Luke Emergency Associates, for whom respondent had been working as an independent contractor at the time he treated appellants' mother.[3] The supervisor of the St. Luke Emergency Associates account employed by the billing service stated in a declaration that the billing service never received the letter regarding respondent. If the service had received it, a notation would have been made in the account regarding receipt of the letter and Dr. Bufalino would have been informed. She found no notation to that effect in the St. Luke Emergency Associates account.
Respondent filed an answer to appellants' complaint on March 22, 1994, pleading as an affirmative defense that the action was barred by the statute *896 of limitations. Appellants filed a first amended complaint on February 8, 1995, adding J.C. Bufalino, M.D., Inc., doing business as St. Luke Emergency Associates, as a defendant. Respondent filed an answer to the first amended complaint on March 10, 1995, again pleading as an affirmative defense that the action was barred by the statute of limitations.
Respondent filed a motion for summary judgment on April 19, 1995, arguing that appellants failed to serve him with notice of their intent to sue pursuant to section 364, that the one-year statute of limitations was not tolled, and the complaint was filed after the limitations period had expired. Specifically, respondent set forth as undisputed facts that the decedent was treated at St. Luke Medical Center between October 5 and October 10, 1992, at which time she passed away. Appellants were aware of respondent's identity as of October 5, 1992, and by October 10, 1992, they believed respondent negligently caused decedent's death. Appellants claim they mailed the section 364 notice letter to respondent in care of St. Luke Emergency Associates, P.O. Box 2267, Chatsworth, CA 91313. That address was never used by respondent as a business address, nor was it ever listed as his professional address with the California Medical Board.[4] The address is maintained by Synergistic Systems, Inc., the accounts receivable management agency for J.C. Bufalino, M.D., Inc., doing business as St. Luke Emergency Associates. Respondent did not receive a copy of the section 364 notice until he received a copy of the summons and complaint on January 3, 1994, three months after the one-year statute of limitations had expired. Respondent did not learn of decedent's death until he received a copy of the summons and complaint. Appellants filed their complaint on January 3, 1995, one year and three months after the one-year statute of limitations had commenced.
Appellants filed opposition to the motion for summary judgment, maintaining that they had complied with the requirements of section 364. They also filed a separate statement of disputed and undisputed material facts, in which they asserted that they undertook a search for respondent's address before concluding that the address ultimately used would provide direct access to respondent for service of the section 364 letter.
Respondent thereafter filed a reply to the opposition. He also filed a declaration attesting that the bill sent to decedent's address was not sent by him, he did not participate in its creation in any way, he did not receive any *897 money from payment of the bill, and it was not his professional statement. He was paid strictly on an hourly basis, regardless of what services he performed. He further stated that his home address was easily obtainable from both the California Medical Board and the Los Angeles County Medical Directory.
Hearing on the motion for summary judgment was held on May 19, 1995, at which time the trial court granted summary judgment in favor of respondent. Summary judgment was entered on June 15, 1995, followed by notice of entry of judgment filed July 3, 1995. Appellants timely filed their notice of appeal from the judgment on August 24, 1995.
DISCUSSION
(1) "[S]ummary judgment is granted if all the submitted papers show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (§ 437c, subd. (c).) A defendant seeking summary judgment has met the burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action cannot be established. (§ 437c, subd. (n)(2); [citation].) Once the defendant's burden is met, the burden shifts to the plaintiff to show that a triable issue of fact exists as to that cause of action. [Citation.] In reviewing the propriety of a summary judgment, the appellate court independently reviews the record that was before the trial court. [Citation.] We must determine whether the facts as shown by the parties give rise to a triable issue of material fact. [Citation.] In making this determination, the moving party's affidavits are strictly construed while those of the opposing party are liberally construed. [Citation.]" (Hanooka v. Pivko (1994) 22 Cal. App.4th 1553, 1558 [28 Cal. Rptr.2d 70].)
Section 364, subdivision (a), provides that "No action based upon the health care provider's professional negligence may be commenced unless the defendant has been given at least 90 days' prior notice of the intention to commence the action." Subdivision (b) provides that "No particular form of notice is required, but it shall notify the defendant of the legal basis of the claim and the type of loss sustained, including with specificity the nature of the injuries suffered."[5] Subdivision (d) states that "If the notice is served within 90 days of the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended 90 days from the service of the notice."
(2) In Woods v. Young (1991) 53 Cal.3d 315, 328 [279 Cal. Rptr. 613, 807 P.2d 455], the Supreme Court determined that when the 90-day notice of *898 intent to sue is served in the last 90 days of the one-year statute of limitations, section 340.5 is tolled for 90 days.[6] Further, the court declared that the purpose of the 90-day notice requirement is to encourage negotiation and settlement outside the formal litigation process. (53 Cal.3d at p. 320.)
(3) Respondent cites the case of Hanooka v. Pivko, supra, 22 Cal. App.4th 1553, in support of his argument that appellants failed to comply with the requirements of section 364. In Hanooka, plaintiffs brought an action against two physicians for the wrongful death of plaintiffs' child. Defendant Dr. Menkes had examined the child at the University of California at Los Angeles Medical Center. Defendant Dr. Pivko examined the child at his private office, in the company of the plaintiff mother. The child was hospitalized at Cedars-Sinai Medical Center where both Pivko and Menkes had staff privileges. Thereafter, he was seen on five occasions at Pivko's office before being readmitted to Cedars-Sinai. He died three weeks later, on September 27, 1990. On July 31, 1991, plaintiffs mailed a notice of intent to sue addressed to the Cedars-Sinai medical records department, indicating their intent to commence an action against Pivko and Menkes, among others. Plaintiffs filed their complaint on October 17, 1991.
Defendants filed a motion for summary judgment, arguing that the doctors had not received actual notice of intent to sue when the notice letters were sent to the hospital at which they maintained staff privileges, that the statute of limitations had not been tolled, and that the complaint was untimely. Plaintiffs contended that service of notice on the hospital was sufficient to comply with section 364. However, the appellate court upheld the trial court's entry of summary judgment, noting that "[a]dopting appellants' position would run counter to the purposes of giving a health care provider notice of the imminence of suit and promoting prelitigation settlement, which can only be effectuated if the health care provider has actual notice." (22 Cal. App.4th at p. 1559, citing Godwin v. City of Bellflower (1992) 5 Cal. App.4th 1625, 1631 [7 Cal. Rptr.2d 524].) The court continued: "We conclude that where respondent doctors did not receive actual notice pursuant to section 364, subdivision (a), appellants cannot take advantage of the 90-day extension period provided by section 364, subdivision (d). Furthermore, we hold that a plaintiff cannot rely on a hospital to forward section 364, subdivision (a) notices to individual physicians where, as here, the plaintiff has knowledge of the identity and location of the physicians." (Hanooka v. Pivko, supra, 22 Cal. App.4th at p. 1560.)
*899 Appellants argue in the present appeal that Hanooka is distinguishable because here, they did not send the letter designed to notify respondent of their intent to sue to a hospital, hoping that the letter would be forwarded. Instead, they sent the letter to an address which, based on the information at hand, to wit, the bill from St. Luke Emergency Associates, they intended would reach respondent directly. While we agree that appellants' intent was apparently different from the intent of the plaintiffs in Hanooka to rely on a third party to forward the notice letter to the physicians, we hold that appellants nonetheless failed to comply with the requirements of section 364, as that section has been interpreted in cases such as Hanooka.
The notice of intent to commence a medical malpractice action is not a mere formality. Rather, the Legislature intended that it serve as a means of ensuring that health care providers and potential plaintiffs have the opportunity to engage in prelitigation settlement discussions. Obviously this can occur only when the health care provider receives actual notice from the potential plaintiff. Clearly the burden of taking adequate steps likely to accomplish actual notice must fall on the potential plaintiff.[7]
Under the circumstances present here, it was not sufficient for appellants to send the section 364 notice letter to the address listed on the bill they possessed. From the face of the bill, appellants could not have gleaned adequate assurance that the Chatsworth post office box address of St. Luke Emergency Associates, from whom the bill was received, had any direct connection with respondent. Appellants' counsel stated that, "In looking at Dr. Dietrick's bill it appeared that he was associated with the St. Luke Emergency Associates. It was to that address, apparently, that Dr. Dietrick expected moneys owing to him for his services in [sic] October 5, 1992 to be sent." However, appellants' counsel was not justified in assuming that the bill was "Dr. Dietrick's bill" and that "Dr. Dietrick expected moneys owing to him" to be sent to him at that address. The bill clearly stated it was from St. Luke Emergency Associates, not from respondent, and requested that checks be made payable to St. Luke Emergency Associates, not to respondent.[8] There is no significant difference between appellants' sending the billing statement to St. Luke Emergency Associates and the Hanookas' *900 directing notice to the hospital where the defendant doctors enjoyed staff privileges.
In a medical malpractice action against a physician, there is a relatively simple and direct way to comply with the prefiling notice. Civil Code section 1798.61, subdivision (a) of the Information Practices Act provides: "Nothing in this chapter shall prohibit the release of only names and addresses of persons possessing licenses to engage in professional occupations...." California Code of Regulations, title 16, section 1303 provides: "Each person holding a certificate, license, permit or any other authority issued under the Medical Practice Act shall file his or her proper and current mailing address with the division in its principal office, and shall immediately notify the division at its office of any and all changes of mailing address, giving both the old and new address." There is no reasonable explanation as to why the appellants did not avail themselves of the public records which assured notice of their malpractice claim would actually be sent to and received by respondent. If appellants had given notice to respondent at the address he is required to file with the Medical Board of California, he could hardly claim he did not receive actual notice. (See Baughman v. Medical Board (1995) 40 Cal. App.4th 398, 402 [46 Cal. Rptr.2d 498].)
Although we have concluded that appellants' efforts to comply with section 364 were deficient, we have not concluded that resorting to public records is essential to fulfill the requirement for prefiling notice. For example, a relatively current written communication from a physician to a patient bearing a letterhead showing an address should suffice as an accurate indication of where notice may be directed. Also, a patient's firsthand knowledge based on visits to the physician's office, current listings and advertisement in professional and telephone directories and available on-line legal and medical research providers are all generally reliable sources for determining where section 364 notice may be directed. Any doubt about those or other sources may be resolved by resorting to the public record of the Medical Board of California, Division of Medical Quality where physicians' current addresses are maintained in accordance with the law regulating medical doctors.
As a consequence of appellants' failure to effectively comply with section 364, the statute of limitations for bringing their action was not tolled and the action is time-barred. Respondent was thus entitled to summary judgment in his favor.
*901 DISPOSITION
The judgment is affirmed.
Hastings, J., and Aranda, J.,[*] concurred.
A petition for a rehearing was denied August 20, 1997, and appellants' petition for review by the Supreme Court was denied October 15, 1997. Mosk, J., was of the opinion that the petition should be granted.
NOTES
[1] All further statutory references are to the Code of Civil Procedure.
[2] None of the other defendants are parties to this appeal.
[3] Respondent was paid an hourly rate by J.C. Bufalino, M.D., Inc., for his time working in the St. Luke Emergency Department.
[4] In his declaration in support of the motion for summary judgment, respondent declared that he never used the Chatsworth post office box address as a business or mailing address, and had never authorized St. Luke Emergency Associates or J.C. Bufalino, M.D., Inc., to accept service on his behalf.
[5] Section 364, subdivision (c) states that "The notice may be served in the manner prescribed in Chapter 5 (commencing with Section 1010) of Title 14 of Part 2."
[6] There is no dispute that the applicable statute of limitations in this case is the one-year period, which commenced once the appellants discovered the injury. (§ 340.5.)
[7] We do not hold, and need not address, the issue of whether section 364 requires that the health care provider receive actual notice in every case. Instead, under the circumstances present here, we hold that appellants did not take adequate steps which would be likely to result in actual notice to respondent.
[8] Appellants' counsel stated that, in his experience, "often emergency rooms are run by independent contractors of the hospitals in which they exist." This knowledge also should have caused him to question respondent's actual relationship with St. Luke Emergency Associates and whether respondent could be reached directly at that address.
[*] Judge of the Municipal Court for the South Bay Judicial District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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192 Cal.App.3d 874 (1987)
238 Cal. Rptr. 87
J.R. NORTON COMPANY, Petitioner,
v.
AGRICULTURAL LABOR RELATIONS BOARD, Respondent; UNITED FARM WORKERS OF AMERICA, AFL-CIO, Real Party in Interest.
Docket Nos. E000392, E000461.
Court of Appeals of California, Fourth District, Division Two.
June 15, 1987.
*881 COUNSEL
Dressler, Quesenbery, Laws & Barsamian, Marion I. Quesenbery, Lewis Janowsky and Patricia J. Rynn for Petitioner.
Manuel M. Medeiros, Daniel G. Stone, Kevin Robinson and Richard Michael Fischl for Respondent.
Dianna Lyons, Federico G. Chavez, Daniel A. Garcia and Wendy Sones for Real Party in Interest.
*882 OPINION
RICKLES, J.
Petitioner J.R. Norton Company (Norton or employer) seeks a review of a final decision and order of the Agricultural Labor Relations Board (Board or ALRB) in the Matter of J.R. Norton Company (1982) 8 ALRB No. 76 and in the Matter of J.R. Norton Company (1983) 9 ALRB No. 18.
Norton contests the Board's findings it violated the Agricultural Labor Relations Act (ALRA or act) in 8 ALRB No. 76 by: (1) failing and refusing to rehire members of Crew W because of their union support (§ 1153, subds. (a), (c));[1] (2) threatening an employee with discharge because of his union activities (§ 1153, subd. (a)); (3) instituting a wage increase without bargaining in good faith with the union (§ 1153, subds. (a), (e)); (4) failing to bargain before changing labor camp accommodations (§ 1153, subds. (a), (e)); and (5) refusing to rehire employees who participated in work stoppage during the Salinas harvest (§ 1153, subds. (a), (c)).
Norton contends the Board abused its remedial discretion by (1) issuing an overbroad cease and desist order; (2) ordering Norton to "make whole" employees for damages suffered as a result of Norton's unilateral wage increase; (3) failing to cut off backpay after the 1979 season; (4) computing backpay by use of the J & L Farms formula; and (5) using the Lu-Ette Farms formula for computing interest on backpay awards.
Norton contests the Board's finding it violated the ALRA in 9 ALRB No. 18 by: (1) failing and refusing to rehire Elodio Aguirre (Aguirre) and Alberto Sanchez (Sanchez) because of their union support (§ 1153, subds. (a), (c)); (2) failing to rehire Jose Espinoza (Espinoza) because of union support (§ 1153, subds. (a), (c)); (3) unlawfully interrogating and threatening Atilano Jiminez Martinez (Jiminez) regarding his union activities and the filing of an ALRB charge (§ 1153, subds. (a), (c), (d)); and (4) interferring with and surveilling union activities by Antonio Roman (Roman) (§ 1153, subd. (a)).
*883 In 9 ALRB No. 18, Norton claims the remedial order issued by the Board was punitive because it required an excessive number of mailings and applied the Lu-Ette Farms (1980) 8 ALRB No. 55 interest rates to the backpay awards.
INTRODUCTION
Norton is a large lettuce producer with its corporate headquarters located in Phoenix, Arizona. Norton's administration and management are centralized in Phoenix, Arizona. Its payroll operations and all other company records are also maintained in Phoenix. It carries on an extensive year-round farming and harvesting operation in California, New Mexico and Arizona. Norton's harvesting sequence is as follows: January to March in the Imperial Valley, California; early March to early April in Blythe, California; April in Arizona; late April or early May to early October in Salinas, California; October in New Mexico; late October to early November in Central Arizona; late November to late December in Blythe, California. There may be an overlap of a week or more between harvesting that is winding down in one location and one that is starting up at the next location. Norton maintains offices in Salinas, Brawley (Imperial Valley), Palo Verde (Blythe), and Chandler, Arizona, to assist in coordinating the farming operations in those areas.
United Farm Workers (UFW or union) was certified as the exclusive bargaining agent for Norton's Salinas area agricultural employees in November 1975. The UFW was certified as the exclusive bargaining agent for Norton's Imperial Valley and Palo Verde areas in August 1977. Norton has never signed a contract with the union. The claimed unfair labor practices arose primarily out of the Salinas operation.
I
8 ALRB No. 76
RES JUDICATA
As indicated Norton operates a number of fields in California, Arizona and New Mexico. The UFW has been elected the sole bargaining agent for some of these operations. Many people stay with Norton as the harvesting season moves from one field to another.
The UFW filed separate charges against Norton for alleged ALRA violations in different fields. Two separate administrative law judge (ALJ) decisions were rendered, and two separate ALRB decisions resulted. (8 ALRB *884 No. 76 and 8 ALRB No. 89.) In reviewing the 8 ALRB No. 76 opinion, this court consolidated it with 9 ALRB No. 18 which required "dead-time" while the record was prepared in the latter case. During this dead time, both the First District Court of Appeal and the State Supreme Court summarily denied petitions for review of 8 ALRB No. 89.
Because of Norton's circuit-harvesting process, similar issues can be found in 8 ALRB No. 76 and 8 ALRB No. 89. Interestingly enough, the Board concluded these cases were not proper for consolidation. Now we are requested to give res judicata effect to 8 ALRB No. 89 in our present review of 8 ALRB No. 76.
(1a) Briefly, res judicata will preclude parties or their privies from relitigating issues that were or could have been raised in a prior action that has resulted in a final judgment. The related concept of collateral estoppel will preclude relitigation of an issue of fact or law necessarily decided in a prior judgment in a subsequent suit involving a party to the first case. (Allen v. McCurry (1980) 449 U.S. 90, 94 [66 L.Ed.2d 308, 313, 101 S.Ct. 441].)
Although the final order in 8 ALRB No. 89 came from an administrative body, this will not preclude the res judicata and collateral estoppel doctrines from operating. (People v. Sims (1982) 32 Cal.3d 468 [186 Cal. Rptr. 77, 651 P2d 321].) (2a) The final judgment rule is in effect as a result of the Supreme Court's denial of the petition. Although the ALJ and ALRB decisions in both cases were handed down at relatively the same time, we as an appellate court will give res judicata effect to the 8 ALRB No. 89 opinion insofar as it is applicable. (Domestic & Foreign Pet Co., Ltd. v. Long (1935) 4 Cal.2d 547, 562 [51 P2d 73].)
(1b) Res judicata effect will be given only to those matters which were directly in issue and in fact decided. (Code Civ. Proc., § 1911; County of L.A. v. Continental Corp. (1952) 113 Cal. App.2d 207, 219 [248 P.2d 157].) (2b) The UFW raises four issues which it contends deserve res judicata effect. First, whether certain discriminatees were engaged in protected activities during Norton's 1979 Salinas harvest. Second, whether certain discriminatees' participation in a series of work stoppages in the 1979 Salinas harvest was condoned by Norton. Third, whether Norton's failure to rehire those workers at subsequent harvests was contrary to its past hiring practices. Fourth, whether Norton was illegally motivated in refusing to rehire the discriminatees in its subsequent harvests.
In 8 ALRB No. 89 at page 15, one of the issues was whether Norton discriminatorily failed to rehire certain 1979 employees in its Salinas harvest of 1980. Sometime in August 1979, a number of workers at the Salinas *885 location engaged in work stoppages designed to coerce Norton into collective bargaining. In September Norton began replacing these workers, but ultimately allowed some of them to return after signing a document indicating they would not leave work unless instructed to do so. Some of these employees found it difficult to obtain work with Norton in future harvests. Hence, the issue as stated above was presented for resolution.
The Board concluded Norton abandoned an informal seniority system of hiring, that Norton condoned the work stoppages, which entitled those who signed the document to protection of the "condonation doctrine" and therefore "Norton discriminatorily failed and refused to rehire the 1979 work stoppage participants for the 1980 Salinas harvest."
In making this finding the Board relied on evidence from 26 of the work stoppage participants to conclude the entire group had been subject to unlawful labor practices. The Board acknowledged that generally each discriminatee must prove he or she made application when work was available, that an established policy existed to rehire former employees, and the applicants' failure to be hired was based on a protected activity. The Board, in relying on Kawano, Inc. v. Agricultural Labor Relations Bd. (1980) 106 Cal. App.3d 937 [165 Cal. Rptr. 492], did not require individual proof. The Kawano "class discrimination theory" provides "if an employer unequivocally and publicly promulgates his unconditional refusal to rehire a certain category of employees, proof of such promulgation excuses the need to prove individuals in the category made application for rehire which would under the circumstances have been futile." (Id., at p. 952.) In its make-whole order, the Board specified 31 persons only had been the subject of unfair labor practices.
We now answer the UFW's specific requests for res judicata effect. The UFW cites to pages 34-35 of 8 ALRB No. 89, arguing the Board concluded the discriminatees were engaging in protected activities during Norton's 1979 Salinas harvest. Neither these specific pages nor any others in this opinion explicitly or implicitly state such a conclusion.
Next, res judicata effect is requested for the Board's conclusion that 1979 Salinas work stoppages were condoned by Norton. The Board indeed made such a conclusion. In the present case the precise facts of the 1979 Salinas work stoppages have been presented striving for the conclusion that unfair labor practices resulted in other fields. The UFW would seek an ipso facto conclusion that because Norton condoned the work stoppages in Salinas, all workers who signed the condonation document were the subject of unfair labor practices.
*886 Despite the "class determination theory," we cannot conclude all the workers were the subject of unfair labor practices. In 8 ALRB No. 89, hiring practices were established only for the Salinas operation. Norton operated a number of fields, each obviously unique in size, and each requiring different amounts of manpower to effect harvest. In order to establish an unlawful labor practice in this instance, it must be established (1) that each individual worker presented him or herself for hire in a timely manner and in a situation wherein Norton was hiring; (2) Norton's policy was to rehire former workers; (3) that the individual was refused rehire because he or she participated in the 1979 Salinas work stoppages; and (4) the 1979 Salinas work stoppages were condoned by Norton. Under res judicata notions, we shall accord the fourth issue above only as having been conclusively established in 8 ALRB No. 89.
The fact that a particular employee can establish all four elements above regarding the Salinas operation cannot, except for the fourth element, be used to establish unfair labor practices in any of Norton's other fields. Individual competent evidence concerning each of these fields as is relevant to the elements above must be presented to the trier of fact.
Next the UFW cites us to page 33 of 8 ALRB No. 89, stating the Board concluded Norton's failure to rehire 1979 Salinas stoppage workers at subsequent harvests was contrary to its past hiring practices. As indicated above, this is true only with respect to the Salinas operation. The Board limited its decision to Salinas. Because of the unique nature of each field this particular fact is irrelevant to any issues presently before this court. In any event, page 33 does not substantiate the UFW's contention.
Finally the UFW wants res judicata effect that Norton was illegally motivated in refusing to hire the discriminatees in its subsequent harvests. Again, the case was limited to the failure to rehire in Salinas. The failure to rehire in Salinas would be irrelevant to the question of whether unlawful discrimination occurred in the other fields.
Therefore, only the fact that Norton condoned the 1979 work stoppages is relevant to 8 ALRB No. 76, and it is accorded res judicata effect.
REFUSAL TO REHIRE CREW W
The ALRB general counsel (General Counsel) charged Norton with a violation of section 1153, subdivisions (a) and (c), of the act by laying off *887 wrapping Crew W on May 23 without just cause. A hearing before an ALJ[2] was held concerning this alleged violation. The ALJ found: Norton violated the act by the unlawful layoff of Crew W because of its support for the UFW and recommended each member of Crew W be granted full reinstatement to his former or substantially equivalent jobs effective immediately. The ALJ's finding and orders specifically excluded the five or six persons on Crew W who were transferred to other crews on the date the layoffs occurred.
Upon review, the ALRB rejected the ALJ's conclusion that the layoff of Crew W constituted a violation of the act. The Board concluded the layoffs resulted from a mechanical breakdown of the wrap machine and not because of any discriminatory action on the part of Norton. The Board then went on to find Norton violated section 1153, subdivisions (a) and (c), by failing and refusing to rehire the members of Crew W later in the season when the new wrap machines were put into operation.
(3a) General Counsel did not at any time seek to amend the violation from improper layoff of Crew W to refusal to rehire Crew W before the Board's decision. The Board's broad finding applying the refusal to rehire all of Crew W was made without notice to Norton of the substituted charge and the opportunity to defend against it. The ALJ heard testimony of Maria Raquel Ramirez, Romona Lujan, and Maria Soila Lerma concerning the circumstances of their layoff and Norton's failure to rehire them. This testimony was considered for the purpose of establishing union animus as a reason for the initial layoff on May 23. It is difficult, if not impossible, to conclude a failure or refusal to rehire the entire Crew W was "fully litigated."
Ramirez's, Lujan's and Lerma's testimony could conceivably be sufficient to put Norton on notice that they were contending they were discriminatorily refused rehire. Therefore, we conclude Norton's failure and refusal to rehire Ramirez, Lujan and Lerma was fully litigated and forms the basis for a violation of section 1153, subdivisions (a) and (c), of the act.
The Board finds Norton's knowledge of Crew W's union activities, coupled with strong evidence of its anti-union animus, and the fact that crew members were not recalled, even after new wrap machines were put into operation, established General Counsel's prima facie case of a section 1153, subdivision (c), violation, i.e., illegal failure to rehire. The Board then goes on to find upon the establishment of a prima facie case by the General Counsel, the burden shifts to Norton to establish that it would have taken *888 the same action absent the employees' protected activities. The province of the Board is to resolve, not to find, issues. (4) Where evidence is introduced on one issue set by the pleadings, its introduction cannot be regarded as authorizing the determination of some other issue not presented by the pleadings. (See Crescent Lumber Co. v. Larson (1913) 166 Cal. 168, 171 [135 P. 502]; Marvin v. Marvin (1981) 122 Cal. App.3d 871, 875 [176 Cal. Rptr. 555].) (3b) Because Norton was not advised that failure to rehire was the activity it needed to defend against, it is not surprising the Board found Norton failed to present evidence justifying a failure to rehire. Consequently Norton had no opportunity to gather evidence or prepare legal arguments refuting the occurrence of such violations. Fundamental fairness includes both the right to adequate notice and the right to defend against charged violations. The lack of notice runs contrary to elementary constitutional principles of procedural due process which requires the Board's findings be set aside. (See Sunnyside Nurseries, Inc. v. Agricultural Labor Relations Bd. (1979) 93 Cal. App.3d 922, 933 [156 Cal. Rptr. 152].)
(5) As an independent ground for supporting this conclusion, we find that, despite the due process violations, there is no substantial evidence to support the Board's finding. "Findings of the board with respect to questions of fact are conclusive if supported by substantial evidence on the record considered as a whole. [Citations.] While the administrative agency under this test is empowered to resolve conflicts in the evidence and to make its own credibility determination, `the test of substantiality must be measured on the basis of the entire record, rather than by simply isolating evidence which supports the board and ignoring other relevant facts of record which rebut or explain that evidence.' [Citations.]" (Martori Brothers Distributors v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721, 727-728 [175 Cal. Rptr. 626, 631 P.2d 60].)
Both the Board and ALJ found the entire 30-person crew was not recalled. The ALJ concluded on page 18 of his decision: "As indicated previously, no one laid off from Jose's wrap machine was recalled for work again." This sentence is followed by footnote 48, citing to the record volume 3 of the reporter's transcript, pages 126 and 144; volume 4, reporter's transcript, pages 8 and 9; and volume 13, reporter's transcript, page 82. These citations to the record refer to Ramirez's, Lerma's and Lujan's testimony, respectively; however, they do not support the finding by the ALJ. The testimony referred to is attached as Appendix A. It only supports Ramirez's, Lerma's and Lujan's efforts to be reemployed by Norton. Ramirez testified after the layoff she went home but later discovered two members from Crew W had been rehired by Norton. The Board ignored evidence concerning rehire by Norton produced by the General Counsel in the form of the testimony of Maria Estela Mendoza. Mendoza testified she was *889 elected a union crew representative for Crew W before the May layoff. She testified she engaged in union activities prior to the layoff. Mendoza testified she was reemployed in July on another machine. The status of the record at this point shows Crew W consisted of 30 workers, five or six were immediately assigned to other work, three requested to be rehired and were refused, one requested rehire and was rehired. Two were rehired under circumstances not shown by the evidence.
No evidence was introduced to show any other member of Crew W sought rehire or was refused rehire. Crew W's foreman took all Crew W's members' phone numbers and addresses and told them he would call them when the machine was fixed. No evidence was introduced to show the machine was fixed during the Salinas season.
Crew W's foreman was not reassigned to another wrap machine but was transferred to the ground crew for the remainder of the Salinas season.
There were four machines in operation at the time of the layoff. The other machines were transferred in and out, and at times there were four machines in operation, a number equal to the machines in operation at the time of the layoff.
On this record and without any further evidence having been produced by the General Counsel concerning whether the remainder of Crew W was rehired, the Board concluded the members of Crew W were not required to present themselves for rehire as the responsibility for locating and rehiring rested with Norton; Norton had failed to show Crew W would have been rehired had they presented themselves. Therefore, the remainder of Crew W was discriminatorily not rehired.
We are not dealing here with the credibility of witnesses which is within the exclusive province of the Board but are examining the record to determine whether the contradictory evidence and the evidence from which conflicting inferences can be drawn override the conclusion of substantiality made by the Board. The substantiality of the evidence must take into account whatever in the record fairly detracts from its weight a Board's findings are entitled to respect but they must nevertheless be set aside when the record before a Court of Appeal clearly precludes the Board's decision from being justified by a fair estimate of the worth of the testimony of the witnesses or its informed judgment on matters within its special competence or both. (Universal Camera Corp. v. Labor Bd. (1951) 340 U.S. 474 [95 L.Ed. 456, 468-469, 71 S.Ct. 456]; Merrill Farms v. Agricultural Labor Relations Bd. (1980) 113 Cal. App.3d 176, 182 [169 Cal. Rptr. 774].) Considering the record as a whole, we must conclude the testimony of Ramirez, *890 Lerma and Lujan provides an insufficient basis to conclude all of the members of Crew W were discriminatorily refused rehire. The Board's finding that Norton discriminatorily refused to rehire Crew W, except as it relates to Ramirez, Lerma and Lujan, is not supported by substantial evidence and is annulled.
THREAT TO DIEGO DE LA FUENTE
De La Fuente was a cut-and-pack worker on a ground crew employed by Norton in Salinas in 1979. He was active in union activities and attended a number of union meetings. The testimony is contradictory as to the number of meetings De La Fuente attended; the number of times he was absent from work; and from whom he obtained permission to be absent. (6a) These are all matters of credibility of witnesses and the finder of fact will only be reversed in exceptional circumstances. (See N.L.R.B. v. Massachusetts Mach. & Stamping, Inc. (1st Cir.1978) 578 F.2d 15, 20.)
The ALJ found: "During the week of August 31 Diego missed some work with permission three times. On August 28 he attended the negotiating session between the company and the UFW as President of the workers negotiating committee. On two other occasions he attended meetings as a member of the workers industry negotiating committee. Permission to attend on two of the occasions was given by Santamarie before he left on vacation for two weeks while Abel Luna, one of the seconds, gave him permission to leave work the third time." (Fn. omitted.)
The Board found: "De La Fuente had missed work three times during the week, twice for meetings of a worker's industry negotiating committee and once for the August 28, negotiations meeting between Respondent and the UFW. He had received prior permission for each absence from either foreman Roberto Santamaria or crew pusher Abel Luna. When De La Fuente returned from the third meeting, Ramirez, who had just replaced foreman Santamaria while he was on vacation, angrily told De La Fuente in the presence of the crew that the next time De La Fuente went to a meeting, he would have to ask Ramirez for permission personally, and that Ramirez would fire him the next time he was late."
De La Fuente testified he did not ask for permission from Ramirez because he did not know Ramirez was his foreman as he had not seen him as a foreman before this day, i.e., August 31. Both the Board and the ALJ found the testimony of De La Fuente to be credible concerning these times and the permission given.
These findings cannot be reconciled with the undisputed testimony. Santamaria went on vacation on the 15th or 16th of August and did not return *891 until the 4th of September; Ramirez replaced Santamaria as foreman from August 15 or 16 to September 4 while Santamaria was on vacation. These irreconcilable differences provide exceptional circumstances for placing the findings of the ALJ and the Board based on De La Fuente's testimony in serious doubt.
Even if foreman Santamaria was available on two occasions and foreman Ramirez available when the incident in question occurred, De La Fuente on that one occasion (Aug. 31) deviated from his own practice of clearing his absence with the foreman.
Having pointed out some major flaws in the ALJ's and the Board's reasoning, we turn to another reason why this finding of a violation of section 1153, subdivision (e), cannot stand.
(7) We agree a threat to discharge an employee for engaging in protected union activities violates section 1153, subdivision (a), of the act and that De La Fuente's attendance at a union meeting on the day in question would be protected activity. Neither the employer's motive nor the success of the coercion is an element of a section 1153, subdivision (a), violation. The test is whether the employer engages in conduct which it may reasonably be said tends to interfere with the freedom of the exercise of the employee's rights under the act. (Merrill Farms v. Agricultural Labor Relations Bd., supra, 113 Cal. App.3d 176, 183-184.) It is true no evidence is required to show actual interference, restraint or coercion, in evaluating whether the conduct tended to interfere with the free exercise of the employee's right. (Pandol & Sons v. Agricultural Labor Relations Bd. (1979) 98 Cal. App.3d 580, 587 [159 Cal. Rptr. 584].) (6b) However, the complete lack of evidence that any employee was actually intimidated or coerced, coupled with the affirmative evidence that De La Fuente continued his union activities to the maximum should persuasively indicate the threat accomplished nothing.
(8a) This evidence of lack of effect can be considered when measuring Ramirez's conduct in furthering the business interests of Norton. Ramirez had the responsibility to control time-off requests by his crew in order to appropriately schedule the daily work. Daily work schedules could not be properly maintained unless hit-and-miss work habits by members of his crew were discouraged. (6c) Ramirez's conduct in attempting to discipline De La Fuente's failure to request permission to be late for work from his direct supervisor furthered the business interests of Norton.
(8b) "In the absence of union discrimination, the administrative board lacks any control over an employer's business policies. [Citation.] The mere fact that an employee is or was participating in union activities does not *892 insulate him from discharge for misconduct or give him immunity from routine employment decisions. [Citations.]" (Martori Brothers Distributors v. Agricultural Labor Relations Bd., supra, 29 Cal.3d 721, 728-729.)
(6d) We conclude under these circumstances there is no substantial evidence to support a finding that De La Fuente was threatened with discharge because of union activities. Norton's actions in this instance were reasonable and did not constitute a threat which interfered with, restrained, or coerced De La Fuente from engaging in protected activities under the act.
The Board's finding Norton violated section 1153, subdivision (a), of the act is annulled.
WAGE INCREASE
The UFW is the certified exclusive bargaining agent of Norton's agricultural employees. Negotiations have been carried on between Norton and the UFW for several years without successfully reaching an agreement on a contract. From 1976 until approximately June 1979, Norton and the UFW were operating under basic terms of the UFW's contract with Inter Harvest (master agreement) while continuing to bargain with the UFW over local issues. In July 1977 and July 1978, Norton, with the consent of the UFW instituted wage increases for its workers consistent with the industry-wide wage adjustment specified in the master agreement.
In June of 1979, the UFW began bargaining for new contracts with the industry growers. Norton advised the UFW it was not participating in the industry-wide bargaining. On August 20 and 21, Norton's employees engaged in work stoppages resulting in Norton's agreement to meet in a bargaining session with the UFW. This meeting was held on August 28. At this meeting Norton presented the UFW a proposal similar to the initial proposal made by growers at the industry-wide session in June. Norton's proposal contained a wage adjustment. Norton indicated a desire to implement this wage adjustment immediately. UFW opposed the immediate implementation and indicated the wage proposal was too low and they desired to bargain over all the aspects of the contract. The UFW indicated they needed time to study Norton's proposal and another meeting was scheduled for September 12.
On September 5, Norton sent the UFW a telegram increasing its prior wage proposal and indicating the increase would be effective September 10 unless the union objected. On September 6, the UFW wired Norton rejecting the proposal and reaffirmed that the economic and noneconomic issues *893 were still subject to negotiations. On September 7 Norton wired the UFW requesting reconsideration of its position and indicated the company stood ready to meet with the union to resolve the differences. The parties met on September 12. The UFW indicated the following: Objected to the implementation of the September 5 wage proposal, it desired a contract on all issues, offered to begin a full-fledged bargaining session with Norton starting with the UFW's industry-wide proposal and offered Norton a settlement based on the terms of the contract recently consummated between the UFW and Sun Harvest with modifications to accommodate local concerns. Norton indicated a need for time to review the proposals and indicated it would get back to the UFW at a later date. Norton instituted the wage adjustments proposed in its September 5 telegram on September 12 effective with the paychecks covering the payroll period from September 4 through 10.
(9) Norton contends the unilateral wage increase did not violate its duty to bargain in good faith because the wage increase was a continuation of Norton's past practice and notice to the UFW had preceded the implementation.
Norton's contention this wage increase is consistent with past practice is without merit. The wage increases instituted in 1977 and 1978 were made pursuant to the Inter Harvest (master agreement) and with the consent of the UFW. Norton and the UFW ceased operating the Inter Harvest Agreement approximately four months before Norton unilaterally increased wages. This hardly allows sufficient time to establish a longstanding practice. This short period of time, coupled with the recent face-to-face negotiations between the parties, the employee unrest over Norton's bargaining posture, Norton's hiring additional replacement workers making a revision of its pay scale necessary, and the fact that work stoppages were ongoing, constitute substantial evidence to support the Board's determination the wage increase did not result from Norton's past practice.
We turn now to Norton's contention it was authorized to unilaterally institute wage increases because the increase occurred after notice and consultation with the UFW. Cases cited by Norton, the UFW and the Board all provide that before a unilateral wage increase may be implemented, an attempt by good faith bargaining must be undertaken to resolve the parties' differences. Here, Norton made its original wage proposal to the UFW on August 28, on September 5 passed an increase in wages, and indicated its intention to implement this proposal September 10; the union rejected the proposal on September 6, Norton requested reconsideration on September 7, the parties met in a negotiating session on September 12, Norton indicated it would get back with the UFW after this session. Norton unilaterally increased its wages on September 12. This scenerio hardly indicates good *894 faith bargaining on behalf of Norton. The unilateral wage increase instituted by Norton and found by the Board to be a violation of section 1153, subdivisions (a) and (e), of the act is affirmed.
CHANGE IN LABOR CAMP ACCOMMODATIONS
It is undisputed Norton has historically in the past provided a labor camp in most of its harvesting locations where male workers who desired could live and take meals. Norton provided a leased labor camp for its Salinas male workers without charge.
Before September 13, 1979, Norton provided employees residing in the Salinas labor camp with a kitchen and various cooking utensils, including pots, pans, spoons, knives, forks, glasses, and a coffee maker. The employees purchased food on a line of credit maintained by Norton with a local merchant. The cost of the food was deducted from their pay.
On September 13, Norton's employees were engaged in work stoppages and were being replaced. That same date three Norton supervisors accompanied by two policemen arrived at the camp. The supervisors confiscated the cooking utensils, throwing out the food contained in some of them and leaving the workers only two small bowls and a lid to one of the confiscated pans. Norton terminated the employees' access to its line of credit at the local store. The evidence does not reveal whether any of Norton's employees were required to move out of the labor camp. The employees returned to work the following week. They worked without incident for the rest of the Salinas harvest. Norton did not return the utensils or restore the line of credit with the local merchant. The employees were required to purchase replacement utensils and to establish their own line of credit with the local merchant.
The kitchen utensils and equipment were allegedly removed because the camp residents no longer worked for Norton. The utensils were to be transported and set up in the New Mexico labor camp. The utensils were loaded on a Norton bus and driven to the company's shop in Salinas where they remained.
(10) Norton contends it owned the kitchen utensils and had no duty to provide the replaced workers with a labor camp or utensils. A new cook and food were provided by Norton when the employees returned to work on September 17, and the utensils were taken to New Mexico to be used in the next harvest.
These contentions do not provide a defense to the allegation that Norton violated the act by unilaterally changing the wage and working conditions *895 of its employees. The replaced employees who lived in the labor camp were not discharged. Norton allowed them to remain in the labor camp during the period of work stoppages and the periods when they were replaced. The cooking utensils were never restored nor were the same arrangements made for the purchase of food during the remaining Salinas harvest.
It is true Norton may not have had a duty to provide employees free lodging, kitchen utensils and a line of credit before the union was certified as their exclusive bargaining representative. It was Norton, not the UFW, who provided as a condition of employment the fringe benefits heretofore indicated. Norton having established the conditions of employment could not lawfully change them without giving the UFW notice and an opportunity to bargain about such a change.
The Board's conclusion that Norton violated section 1153, subdivisions (a) and (e), of the act by removing the kitchen utensils from its Salinas labor camp and changing the manner in which the labor camp residents paid for their food without giving the union notice or opportunity to bargain about these changes in working conditions is affirmed.
REFUSAL TO REHIRE ARIZONA AND NEW MEXICO WORKERS
We are next asked to determine whether a finding of unfair labor practices against Norton can result in a remedial order directly affecting the Arizona and New Mexico fields. Preliminarily, we note that Norton's headquarters is in Arizona. Permanent records and checks are issued from the Arizona office despite the existence of branch offices in California. As indicated, Norton's operations involve agricultural fields in California, Arizona and New Mexico. The different crops and different seasons allow Norton to operate a circuit harvesting system. Generally, while the harvesting season in one field is running down, it is just beginning in another. This allows employees to follow the circuit. In fact, it appears Norton encourages such activity. Despite the existence of fields in Arizona and New Mexico, approximately 10 months of the year Norton's harvesting operations occur in California.
Clearly, were this a question of minimum contacts, Norton would be found to have established sufficient contacts rendering it susceptible to an in personam judgment in California. However, we do not view the issue as whether there were sufficient minimum contacts in California.
The nature of the circuit harvesting and the existence of fields outside of California present somewhat of a unique question of how far a state may go to reach extraterritorial activities. The suggested scenerio is as follows: The *896 1979 Salinas activities are the basis upon which subsequent rehire of certain employees was denied. Assuming the activities in Salinas were condoned by Norton, there would be no justification to refuse rehire if the sole reason for such refusal is based on the condoned activity. The UFW would have the burden of proving Norton engaged in a policy of rehiring former employees. Next, it would have to establish that these employees had presented themselves for rehire in these other states or an exception existed eliminating this requirement. Next, the UFW would have to establish the refusal to rehire was as a result of the 1979 Salinas activities. Assuming all of the above has been established, the issue becomes whether the ALRA can reach Norton's failure to rehire these employees in Arizona and New Mexico.
There is obviously no problem in finding an unfair labor practice, assuming the above prerequisites have been established, with respect to the California fields. It is quite another question, however, as to whether unfair labor practices can properly be found in Arizona and New Mexico in this instance. The UFW contends "if Norton were permitted to get away with its discriminatory refusals of work in this case, there would be nothing to keep it from completely purging the ranks of its agricultural workers of anyone who dares to engage in union activity, each time the company's operations temporarily cross state lines." Initially, we question the validity of such a statement. If in fact Norton's operations involve harvesting in California 10 out of the 12 months, it would be practically impossible for Norton to purge its ranks merely by refusing to hire those employees the remaining 2 months.
While there is no direct authority upon which to base a conclusion, both sides cite to us Alaska Packers Assn. v. Industrial Accident Com. (1935) 294 U.S. 532 [79 L.Ed. 1044, 55 S.Ct. 518] and United Farm Workers v. Arizona Agr. Employment (9th Cir.1982) 669 F.2d 1249. In the Alaska Packers case, a nonresident alien was hired by a company doing business in California to work in Alaska during the salmon canning season. The contract was entered into in San Francisco. While in Alaska the employee suffered injuries which resulted in an award under the California Workers' Compensation Law. The court first concluded that because the contract was entered into in California, the fact that the injury occurred outside of the state does not preclude California state control. (294 U.S. at pp. 540-541 [79 L.Ed. at p. 1048].) The court then stated that "while similar power to control the legal consequences of a tortious act committed elsewhere has been denied ... the liability under Workmen's Compensation Acts is not for a tort. It is imposed as an incident of the employment relationship, as a cost to be borne by the business enterprise, rather than as an attempt to extend redress for the wrongful act of the employer." (Id., at p. 541 [79 L.Ed. at pp. 1048-1049].) The court continued: "Obviously the power of the state to affect *897 legal consequences is not limited to occurrences within the state if it has control over the status which gives rise to those consequences. [The state] has power, through its own tribunals, to grant compensation to local employees, locally employed, for injuries received outside its borders, and likewise has power to forbid its own courts to give any other form of relief for such injury...." (Ibid. [79 L.Ed. at p. 1049].) We find a large distinction between a Workers' Compensation award, which is imposed as an incident of employment and not for the wrongful act by the employer, and the type of award which is requested in this case. (11) A ruling that Norton must continue hiring workers engaged in the 1979 Salinas activities would control the hiring practices of an out-of-state employer, employing out-of-state workers, working in out-of-state employment and oversteps state authority.
United Farm Workers also supports the conclusion that the award of this court must be limited only to the California field. The employer in that case operated fields in both California and Arizona. Approximately 90 percent of all its employees worked in both states' fields. In 1976 the UFW was elected the sole bargaining agent for all employees "excluding those who worked exclusively outside the State of California." Some four years later a bargaining representative in Arizona attempted to organize the Arizona employees. The UFW objected, contending that they represented all of the employees. The purpose of this objection was to preclude any sort of election from occurring in Arizona. The argument was based on the notion that Arizona would have to give full faith and credit to the California proceeding which elected the UFW as the sole bargaining agent. Were that the case, then another election would obviously not be possible. The court concluded that "a union representation election in Arizona would not offend the dictates of full faith and credit." (669 F.2d at 1255.) Hence, the Arizona employees are entitled to elect their own representative to represent them with respect to the activities occurring in the Arizona fields. The clear import of this decision is that the UFW, elected as the bargaining agent in California, could not represent those employees concerning actions which occurred in the Arizona fields. Were it otherwise, the mere fact of having minimum contacts in one state would allow the ALRA extraterritorial power. Mass confusion would result, especially where the other state involved has an Agricultural Labor Relations Act of its own.
Turning to the situation at hand, we conclude that Norton's failure to rehire those 1979 Salinas employees in Arizona and New Mexico cannot be remedied by the ALRB. Those aggrieved employees have a forum in Arizona and/or New Mexico in which to present their claims. In order to avoid a conflict, we find the better approach is to allow those other states to make independent determinations as to whether these aggrieved employees would *898 be subject to some sort of remedy as a result of Norton's failing to rehire in those individual states.
The Board's order finding Norton violated the ALRA by failing to rehire Salinas workers in Arizona and New Mexico is annulled.
THE BOARD'S ORDER 8 ALRB No. 76
J & L FORMULA
(12) The Board issued a back-pay order based on the formula established in J & L Farms (1980) 6 ALRB No. 43. Our Supreme Court in Nish Norian Farms v. Agricultural Labor Relations Bd. (1984) 35 Cal.3d 726, 744 [201 Cal. Rptr. 1, 677 P.2d 1170], approved the J & L Farms formula, allowing computation of back-pay awards on a daily basis, as a general principle. We are bound by this determination. We adopt and support the Supreme Court's ground rules for fair application of the daily formula.
"That a `daily' formula is a proper rule of thumb, however, does not mean it may fairly be applied in an identical manner to all situations. It would be unfair not to offset wages from true substitute employment, even if the new work is performed on different weekdays, or even in different seasons, than was the unlawfully terminated job. For example, if an agricultural employee replaced a steady full-time Wednesday-Sunday job with similar full-time Thursday-Tuesday work under circumstances indicating the latter position was a true substitute for the former, his Monday and Tuesday wages in the new position should not be exempt from offset.
"The Board concedes that, in the supplementary backpay proceedings, the employer may introduce evidence of the discharged employee's work history. The Sunnyside-J & L Farms formula will then be applied equitably to the facts adduced.
"Mario Saikhon, Inc. (1983) 9 ALRB No. 50 illustrates the Board's policy. There the Board calculated backpay for an unlawfully discharged Imperial Valley lettuce worker. The prior remedial order had called for back wages computed under the Sunnyside formula. (Mario Saikhon, Inc. (1979) 5 ALRB No. 4, p. 6, fn. 5.)
"However, the Board reviewed the employee's particular work history to determine how the formula should be applied to his case. He had established a pattern of working steadily and full-time during the Imperial Valley lettuce season but taking the rest of the year off. After his discharge, he moved permanently to Salinas, where lettuce is harvested at a different time *899 of year. There he resumed his pattern of full-time single-season employment in lettuce. The Board concluded that the subsequent employment, though it occurred only during days and seasons when the employee would not have worked for his former employer, was a substitute for the prior. It therefore ordered an offset against back pay. (9 ALRB No. 50, pp. 5-6.)" (35 Cal.3d at p. 746.)
After the Board has reviewed the discharged employee's work history to determine how the formula should be applied, Norton could introduce evidence of the employee's employment history. The Board could then determine whether any interim wages earned during days of the week other than those on which the employee would work for Norton are true substitutes for the back-pay loss. The Board by equitably tailoring the formula to the particular facts of the case at hand can easily avoid any unfair award.
LU-ETTE FORMULA
Having disposed of Norton's claim concerning the computation of backpay on a daily basis, we now turn to the propriety of the Board's order fixing interest on back-pay awards utilizing the Lu-Ette formula. The Board here as in Lu-Ette found the National Labor Relations Board (NLRB) decision in Florida Steel Corp. (1977) 231 NLRB 651, to be applicable precedent for fixing interest rates on back-pay obligations.
The NLRB had previously established a flat six percent rate of interest in 1962, in Isis Plumbing & Heating Co. (1962) 138 NLRB 716. In Florida Steel, supra, the Board noted that the flat six percent interest rate no longer effectuated the policies of the act because of the effects of inflation, and concluded that a rate of interest more accurately keyed to the private sector money market would encourage timely compliance with NLRB orders, discourage the commission of unfair labor practices, and more fully compensate discriminatees for economic losses. It therefore adopted the sliding interest scale charged or paid by the Internal Revenue Service on the underpayment or overpayment of federal taxes as the appropriate rate of interest on its orders.[3]
*900 (13) The Board cites as additional reasons for adopting Florida Steel that back-pay awards should further a two-fold objective: (1) The backpay remedies are to reimburse the innocent employee for the actual loss which he has suffered as a result of the employer's improper conduct and (2) the order should further the public interest advanced by the deterrence of such illegal acts.
Turning to the last contention first, the Board contends that because the Florida Steel rate is keyed to the private money market, it would more closely reflect the actual cost of money to the employer. The employer in effect would be paying an interest rate conditioned on the current money market rather than a low, unrealistic fixed rate. A realistic rate of interest on back-pay awards would tend to encourage voluntary settlement of disputes and discourage dilatory tactics by employers. There is little doubt a realistic interest rate keyed to periodically reflect adjusted changes in the private money market would more adequately compensate the innocent employee for losses suffered as a result of the employer's improper conduct.
Norton contends the Board's adoption of a sliding interest rate conflicts with California's constitutional limitation on interest rates. Not so.
Article XV, section 1, of the California Constitution provides in pertinent part as follows:
"The rate of interest upon the loan or forbearance of any money, goods, or things in action, or on accounts after demand, shall be 7 percent per annum....
".... .... .... .... ....
"The rate of interest upon a judgment rendered in any court of this state shall be set by the Legislature at not more than 10 percent per annum. Such rate may be variable and based upon interest rates charged by federal agencies or economic indicators, or both.
*901 "In the absence of the setting of such rate by the Legislature, the rate of interest on any judgment rendered in any court of the state shall be 7 percent per annum."
A back-pay award is not a "loan or forbearance," "account on demand" or "judgment rendered in any court of this state" within the meaning of the constitutional prohibition.
Norton does not contend that a back-pay award is a loan or forbearance or account on demand but does argue that the constitutional limitation of interest rates on judgments applies to the Board order.
The constitutional provision is limited on its face to judgments rendered by courts of this state.
Article VI of the Constitution which establishes the courts of the state provides that the judicial power of the state is vested in the Supreme Court, Courts of Appeal, superior courts, municipal courts and justice courts. The fact that an administrative board exercises some quasi-judicial functions does not convert the board into a court of the state and does not convert its orders into judgments.
A judgment is defined in section 577 of the Code of Civil Procedure as "the final determination of the rights of the parties in an action or proceeding" and action is defined as "an ordinary proceeding in a court of justice. ..."
The analogy the petitioner seeks to draw between a back-pay award and a money judgment has been rejected by at least one case in the California Court of Appeal.
In Perry Farms, Inc. v. Agricultural Labor Relations Bd. (1978) 86 Cal. App.3d 448, 464 [150 Cal. Rptr. 495], petitioners claimed that they were entitled to a jury trial because the proceedings before the ALRB resulted in a recovery in a form analogous to a money judgment. The court rejected this argument on two grounds, namely, that (1) the constitutional grant of authority to the Board (Cal. Const. Art. XIV, § 1) worked as a pro tanto repeal of any conflicting constitutional provisions, and (2) the ALRB proceedings "are neither civil actions nor proceedings known to the common law and absent a statute providing for a jury trial in such proceedings, no such right exists." (Italics added.) (See also Labor Board v. Jones & Laughlin Steel Corp. (1937) 301 U.S. 1, 48 [81 L.Ed. 893, 917-918, 57 S.Ct. 615, 629].)
*902 Absent some constitutional or statutory limitation on the interest rate to be allowed on ALRB back-pay awards, this court should not disturb the ALRB remedial order unless it is shown that the order is an attempt to achieve ends other than those reasonably calculated to effectuate the policies of the act. (See Butte View Farms v. Agricultural Labor Relations Bd. (1979) 95 Cal. App.3d 961, 967 [157 Cal. Rptr. 476].) There has been no such showing made in this case.
As previously noted, an interest rate derived from current business practices more adequately compensates the victims of unfair labor practices and tends to encourage voluntary settlement of disputes and discourages dilatory tactics.
The Lu-Ette interest formula satisfies the purposes of the act. Therefore, its adoption by the Board was proper.
We have considered all other claims of error asserted by Norton and find them without merit.
II
9 ALRB No. 18
REFUSAL TO REHIRE AGUIRRE AND SANCHEZ
The ALJ found the General Counsel did not prove by a preponderance of the evidence the refusal to hire or rehire Aguirre and Sanchez was causally connected with their union activities and in violation of section 1153, subdivisions (a) and (c), of the act. The Board reversed the ALJ's finding based largely on the evidence received in J.R. Norton Company (1982) 8 ALRB No. 76, and concluded Norton's refusal to rehire Aguirre and Sanchez resulted from their union activities and was in violation of section 1153, subdivisions (a) and (c), of the act.
(14a) It is highly doubtful that the Board was at liberty to consider the evidence adduced in J.R. Norton Company (1982) 8 ALRB No. 76, in view of the Board's failure to comply with the restrictions contained in section 1160.3. Section 1160.3 provides in relevant part: "Testimony taken by such a member, agent, or agency, or the Board in such hearing shall be reduced to writing and filed with the Board. Thereafter, in its discretion, the Board, upon notice, may take further testimony or hear argument." The Board did not at any time give notice of its intention to take or consider additional evidence. Even if the Board's consideration of the testimony in J.R. Norton Company (1982) 8 ALRB No. 76, was proper, the finding that Aguirre and *903 Sanchez were refused rehire due to union activities is not supported by substantial evidence. The Board's decision can be supported, if at all, by relating the work stoppages occurring during Norton's Salinas' lettuce harvest in 1979 to Aguirre and Sanchez. Aguirre and Sanchez did not work in Salinas and were not engaged in any work stoppage. They had worked only in the Blythe and Imperial Valley harvest in prior years. Aguirre had been a union organizer at Norton in 1975 and had passed out union literature in 1977-1978. He had not engaged in recent union activities. The ALJ found Aguirre was not very convincing when he testified on the amount of his union activities and the record did not reflect much activity beyond December 1978. Sanchez did not participate in any direct support for the UFW but did talk to coworkers during lunch hours about UFW benefits. When Aguirre applied for work in the October 1979 Blythe harvest, he was with a group of former Salinas workers who had been denied rehire in New Mexico. When Sanchez applied for work in the Blythe harvest, he was not with former Salinas workers. Sanchez applied on the same day Aguirre was denied employment. The Board found because Aguirre was identified with former Salinas workers he was denied rehire. Sanchez was denied rehire because of Norton's previous antiunion animus.
(15) General Counsel carries the burden of proving the elements of an unfair labor practice. (NLRB v. Transportation Management Corp. (1983) 462 U.S. 393, 400-401 [76 L.Ed.2d 667, 674, 103 S.Ct. 2469, 2474].) The General Counsel's burden in a refusal-to-rehire case is set forth in Ukegawa Brothers, Inc. (1982) 9 ALRB No. 26: "To establish a prima facie case of discriminatory refusal to rehire, General Counsel must show by a preponderance of the evidence that the individual engaged in protected activity, that Respondent had knowledge of such activity and that there was some causal relationship between the protected activity and the failure to rehire. If a violation of Section 1153(c) is alleged, General Counsel is additionally charged with showing by a preponderance of the evidence that Respondent's conduct had an object of discouraging membership in a labor organization. In proving his prima facie case, General Counsel must customarily show that work was available at the time the discriminatee applied and that Respondent's policy was to rehire former employees." (Fns. omitted.)
(14b) The record, considered as a whole, fails to demonstrate any causal relationship between the protected activity and the failure to rehire either Aguirre or Sanchez. "[The] finding of discrimination by the Board must be supported by substantial evidence; it may not rest upon flimsy evidence, mere inference or guesswork." (Independent Gravel Co. v. N.L.R.B. (8th Cir.1977) 566 F.2d 1091, 1094.) The Board's finding of a causal connection between the protected activity and the failure to rehire Aguirre and Sanchez *904 rests entirely on inference and guesswork and is not supported by substantial evidence and must be annulled.
REFUSAL TO REHIRE JOSE ESPINOZA
Espinoza was first employed by Norton in August 1979 and laid off in March 1980. During that time, he worked under foreman Cardenas as a sprinkler, shoveler and irrigator and under foreman Silva as a tractor driver. After Espinoza was laid off as a tractor driver by Silva, he went back to work for Cardenas as a shoveler but was laid off one week later with the other shovelers. Espinoza was considered a good and versatile worker. Espinoza's union activities consisted of signing a petition asking Norton to negotiate with the UFW, wearing a union button during January 1980, and attending union meetings at a union hall in Calexico. Norton was aware of Espinoza's union activities. When Espinoza reapplied for work through foreman Cardenas, he was advised they could not employ him any longer because of his union activities and he could have remained full time because he knew how to do everything but the general foreman did not want him there. After this conversation with Cardenas in April, Norton hired new tractor drivers in June and in August. The record does not establish that Espinoza made application when work was available. The above facts provide substantial evidence to support a finding Espinoza was discriminatorily refused rehire. Norton's foreman's statement Espinoza would be refused rehire because of his union activities establishes that is the reason for not rehiring Espinoza. Even though the evidence does not show a continued effort on Espinoza's part to become reemployed by Norton when work was available, Cardenas' statement to Espinoza that he could not employ him any longer because he was involved with the union demonstrated any application by Espinoza for rehire would be an exercise in futility. The Board's finding of an unfair labor practice for refusal to rehire Espinoza is affirmed.
INTERROGATION AND THREATS REGARDING JIMINEZ'S UNION ACTIVITIES AND DISCRIMINATION FOR FILING AN ALRB CHARGE
Jiminez, an irrigator for Norton, was a member of the UFW negotiating committee. On March 4, Zermeno, another irrigator, was discharged by Norton. Zermeno filed an unfair labor practice against Norton as a result of this discharge. On March 5, Jiminez took Zermeno's unfair practice labor charge to Norton's foreman Cardenas. Cardenas stated at that time he did not know that Jiminez belonged to the union. On March 6, Jiminez was assigned harder work and Cardenas sent him to irrigate field No. 26 consisting of 90 acres easily requiring two persons to irrigate. As a result of this assignment, Jiminez filed an unfair labor charge against Cardenas and handed it to him. Cardenas angrily approached Jiminez and asked him if he *905 were planning to file charges every day and pointed out Jiminez neglected to ask for any help. Jiminez replied it would not have done any good because Cardenas would still mistreat the employees. Cardenas responded, "From now on we shall see. It's going to be different with you." The ALJ found Cardenas made the three statements attributed to him and discriminated against Jiminez as a result of filing the unfair labor practice charge on behalf of Zermeno. The ALJ evaluated Cardenas's remarks as follows: Cardenas's statement, "I didn't know you belonged to the union" illustrated knowledge on behalf of Cardenas that Jiminez was an active union supporter. Cardenas's statement whether Jiminez intended to file charges daily was made in anger and sarcastically criticizing the filing of these charges is no different than threatening or questioning an employee about them. The intended effect is the same, restraining the employee from filing charges in the future. Cardenas's remark, "It's going to be different with you in the future," was found to be clearly a threat of discriminatory treatment directed at Jiminez as a result of Cardenas's anger over Jiminez's filing an unfair labor practice charge. Threatening an employee with dire consequences for his exercise of protected rights is a violation of the act. The ALJ then found that when Jiminez filed with Cardenas a copy of an unfair labor practice charge on behalf of Zermeno, Cardenas gained knowledge of Jiminez's union support and activity and that as a result of that knowledge Cardenas assigned Jiminez extra work in field No. 26. The ALJ concluded the threats and discriminatory assignment of extra work constituted violations of section 1153, subdivisions (a), (c) and (d), of the act, and the Board affirmed the ALJ's conclusion.
(16) Norton argues the ALJ and the Board improperly credited Jiminez's testimony. We are required to accept the Board's credibility resolutions and any derivative finding unless it has chosen to credit testimony which is incredible or inherently improbable. (See Montebello Rose Co. v. Agricultural Labor Relations Bd. (1981) 119 Cal. App.3d 1, 20 [173 Cal. Rptr. 856].) The Board's credibility resolutions and derivative findings provide substantial evidence to support the violations of sections 1153, subdivisions (a), (c) and (d), of the act in this instance.
SURVEILLANCE OF UNION ACTIVITIES BY ROMAN
Between 6:30 and 7 a.m., David Valles (Valles) went to the Shell Station in Calexico where Norton's buses picked up workers. This occurred either in January or February of 1980. Valles proposed to speak to lettuce workers about forming a negotiating committee to receive their ideas regarding contract proposals. Valles had previously had a conversation with supervisor Al Pena at the Calexico pick-up point. This occurred in early January *906 1980, the day the harvest started. Valles told Pena he would be coming out to talk to workers about negotiations. Pena made no response.
On the day Valles came out to speak to the workers, he was accompanied by Jesus Silva (Silva) and a number of other employees.[4] Valles testified these people accompanied him to the buses that morning to organize.
Valles testified he was wearing a UFW identification badge. He stated he had boarded several of Norton's buses and asked the foremen to disembark which they did. Valles then spoke to the workers inside each bus. When Valles reached the bus driven by Roman, he encountered a problem. Valles requested Roman get out of the bus so he could speak with the workers. Valles explained to Roman that he was with the UFW and that the union was informing workers of the start of negotiations and he wanted to elicit ideas from them. Valles testified that Roman's reply to this was, "Well, I'm not going to get off the bus. I'm not going to get off the bus until the company tells me to get off the bus." Valles testified he told Roman he had the right to talk to the workers without surveillance of the foreman because the workers would not feel free to ask questions if the foreman were around. Roman refused to exit the bus. Valles decided to go ahead and talk to the workers anyway. There were approximately 15 to 20 persons on the bus at this time. Roman remained seated in the driver's seat the whole time and according to Valles made remarks to the effect that there ought to be another election. No workers volunteered to respond following Valles' speech. The buses departed around 7 a.m.
(17) The Board affirmed the ALJ's finding Valles had efficiently complied with the postcertification access guidelines to validate his attempt to communicate with Norton's workers on board Roman's bus. This finding is not supported by substantial evidence. The Board in O.P. Murphy Produce Co., Inc. (1978) 4 ALRB No. 106, commented on and set forth the guidelines for taking postcertification access: "We have noted that the right of post-certification access is based upon quite different justifications than preelection access, and that allegations of denials of reasonable access during contract negotiations will be evaluated on a case-by-case approach. We also believe the following guidelines to be appropriate. The purpose for taking access must be related to the collective bargaining process. Absent unusual circumstances, the labor organization must give notice to the employer and seek his or her agreement before entering the employer's premises. The labor organization must give such information as the number and names of the representatives who wish to take access, and the times and locations of *907 such desired access. The parties must act in good faith to reach agreement about post-certification access.[2a]" The right of access does not include conduct disruptive of the employer's property or agricultural operations.
Valles's testimony that he told supervisor Pena he would be coming out to talk to the workers about negotiations coupled with Pena's failure to respond falls far short of complying with the guidelines heretofore set forth. The testimony of Valles does not point to any exceptional or extraordinary circumstances indicating that deviation from the guidelines was warranted. The guidelines imposed no hardship on Valles's effort to speak to the workers. Valles could have easily contacted Norton before his arrival on this morning indicating his time of arrival and the number and names of the persons who would take access and obtain Norton's agreement.
Valles's arrival without the appropriate contact could have promoted violence. The obvious purpose of the guidelines is to give notice to prevent violence. Valles and Roman handled this confrontation without violence. However, other parties could well have reacted differently. The fact that physical confrontation did not occur is fortuitous. Compliance with the guidelines to obtain postcertification access comports with the policies of the act to promote peace in the fields. Valles's unannounced arrival demanding to be allowed to board Norton's buses runs contra to this policy. Failure of Valles to comply with the regulations to take postcertification access places him in no better position than an officious intermeddler. Roman's refusal to leave the bus was justified. The Board's finding Roman's refusal to leave the bus constituted an interference and surveillance is annulled.
THE BOARD'S ORDER 9 ALRB No. 18
(19a) Norton contends the remedial order issued by the Board was punitive because it required an excessive number of mailings and applied the Lu-Ette Farms (1980) 8 ALRB No. 55 interest rates to back-pay awards.
Above, we concluded the Board's determination that Norton committed unfair labor practices by failing and refusing to rehire Aguirre and Sanchez and by engaging in surveillance of union activities by Norton's foreman Roman is contrary to law and not supported by substantial evidence. It is, therefore, appropriate to remand the matter to the Board for redetermination of its mailing order.
*908 On remand the Board will have the opportunity to reconsider the appropriateness of its order requiring Norton to mail notices to all its agricultural employees covering a time span in excess of four years.
(18) The Board's power to make remedial orders in unfair labor practice cases derives from section 1160.3 which provides in part: "If, upon the preponderance of the testimony taken, the board shall be of the opinion that any person named in the complaint has engaged in or is engaging in any such unfair labor practice, the board shall state its findings of fact and shall issue and cause to be served on such person an order requiring such person to cease and desist from such unfair labor practice, [and] to take affirmative action ... when the board deems such relief appropriate...." The parallel provision of the National Labor Relations Act (NLRA) (§ 10(c), 29 U.S.C. § 160(c)) is similarly worded, and California courts have treated federal decisions under that provision of the NLRA as persuasive precedent with respect to the propriety of remedial orders of the Board under ALRA. (See, e.g., J.R. Norton Co. v. Agricultural Labor Relations Bd. (1979) 26 Cal.3d 1, 39 [160 Cal. Rptr. 710, 603 P.2d 1306]; Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd. (1979) 24 Cal.3d 335, 355 [156 Cal. Rptr. 1, 595 P.2d 579]; Pandol & Sons v. Agricultural Labor Relations Bd., supra, 98 Cal. App.3d at pp. 587-589; Sunnyside Nurseries, Inc. v. Agricultural Labor Relations Bd., supra, 93 Cal. App.3d at p. 940.)
The federal decisions as well as recent decisions of the California Courts of Appeal establish that because the relation of remedy to policy is peculiarly a matter of administrative competence, the Board must be given relatively free reign in determining which remedy would effectuate policies of the Act. (E.g., Phelps Dodge Corp. v. Labor Board (1941) 313 U.S. 177, 194 [85 L.Ed. 1271, 1283, 61 S.Ct. 845]; Pandol & Sons v. Agricultural Labor Relations Bd., supra, 98 Cal. App.3d at pp. 588-589; see Fibreboard Corp. v. Labor Board (1964) 379 U.S. 203, 216 [13 L.Ed.2d 233, 241-242, 85 S.Ct. 398, 6 A.L.R.3d 1130].) Nevertheless, the Board's discretion in ordering affirmative action to remedy unfair labor practices "is not unbounded. It must be exercised reasonably by the Board whose `power to command affirmative action is remedial, not punitive,...'" (Sunnyside Nurseries, Inc. v. Agricultural Labor Relations Bd., supra, 93 Cal. App.3d at p. 940, quoting in part from Edison Co. v. Labor Board (1938) 305 U.S. 197, 236 [83 L.Ed. 126, 143, 59 S.Ct. 206], italics in original.) When the order of the Board is so severe in comparison to the conduct involved in the unfair labor practice that it is clearly punitive in character, the order will be annulled. (Sunnyside Nurseries, Inc. v. Agricultural Labor Relations Bd., supra, 93 Cal. App.3d at p. 940.)
(19b) The Board's mailing order is annulled and remanded to the Board for reconsideration.
*909 The propriety of using the Lu-Ette interest formula to compute interest on back-pay awards has already been disposed of and requires no additional discussion.
DISPOSITION
8 ALRB No. 76
The Board's order the refusal to rehire Crew W constitutes an unfair labor practice is affirmed as to crew members Ramirez, Lujan and Lerma and annulled as to all other Crew W members.
The Board's order finding Norton violated the ALRA by threatening De La Fuente is annulled.
The Board's order finding Norton violated the ALRA by refusal to rehire the Arizona and New Mexico workers is annulled.
In all other respects, the Board's orders are affirmed.
9 ALRB No. 18
The Board's order finding Norton violated the ALRA by refusing to rehire Aguirre and Sanchez is annulled.
The Board's order finding Norton violated the ALRA by surveilling union activities during postelection access is annulled.
The Board's mailing order is annulled and remanded to the Board for reconsideration.
The Board's orders in all other respects are affirmed.
Morris, J., concurred.
KAUFMAN, J., Concurring and Dissenting.
I concur in the judgment and in all portions of the opinion except those portions of part I dealing with the res judicata effect to be given the finding of condonation in the decision in 8 ALRB No. 89 and dealing with the Lu-Ette formula. As to those portions of part I, I dissent.
Res Judicata
I do not agree either (1) that it is necessary to decide whether a res judicata effect is to be given to the condonation finding in 8 ALRB No. 89 *910 or (2) that if that question were reached, any res judicata effect should be given that decision in this review.
First, as I understand it, the majority purports to treat as res judicata only the employer's asserted condonation of the 1979 Salinas work stoppage. Otherwise, the majority concludes there is no substantial evidence of several other elements necessary to a determination of an unfair labor practice on the basis of the employer's failure to rehire the 1979 work stoppage participants. Since substantial evidence is lacking as to several of the other necessary elements, there is no need to decide that the condonation finding in 8 ALRB No. 89 is to be treated as res judicata. It need only be said that "assuming arguendo condonation of the 1979 Salinas work stoppage is established by res judicata, there is no substantial evidence of several other elements necessary to a determination of an unfair labor practice."
Secondly, were the res judicata question properly reached, in the unique circumstances presented here I do not believe it proper to give any res judicata effect to the decision in 8 ALRB No. 89. Although it makes no difference to the outcome of this particular case, giving res judicata effect to the decision in 8 ALRB No. 89 produces the anomalous and unacceptable result that as to one significant issue, a decision by the Board ousts this court of its statutory duty and authority to review another decision of the board in a case in which this court had already assumed jurisdiction and undertaken to review the matter before the other Board decision became final and in which finality resulted not from review on the merits but by virtue of the discretionary denial by another Court of Appeal of a writ of review. Such a possibility is but an invitation to mischief.
The doctrine of res judicata, including the principle of collateral estoppel, is a judicially created mechanism to avoid burdening the administration of justice with multiple litigation of the same dispute or of the same issue between disputants. When in a rare circumstance the doctrine comes into irreconcilable conflict with more important public policies, it must give way. (Greenfield v. Mather (1948) 32 Cal.2d 23, 35 [194 P.2d 1] [questioned but not overruled in Slater v. Blackwood (1975) 15 Cal.3d 791, 796 (126 Cal. Rptr. 225, 543 P.2d 593)]; Hight v. Hight (1977) 67 Cal. App.3d 498, 503-504 [136 Cal. Rptr. 685].)
Original and final jurisdiction, except for the possibility of the grant of a hearing in the California Supreme Court, over review of final decisions of the ALRB is vested in the California Courts of Appeal. (Lab. Code, § 1160.8.) Such original and exclusive jurisdiction to judicially review the decisions of an administrative agency import a measure of responsibility to guard against arbitrary administrative action and insure fair and reasonable *911 administrative decisions. (See Universal Camera Corp. v. Labor Bd. (1951) 340 U.S. 474, 489-490 [95 L.Ed. 456, 468, 71 S.Ct. 456]; George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd. (1980) 111 Cal. App.3d 258, 266 [168 Cal. Rptr. 537]; Sunnyside Nurseries, Inc. v. Agricultural Labor Relations Bd. (1979) 93 Cal. App.3d 922, 930-931 [156 Cal. Rptr. 152]; see also J.R. Norton Co. v. Agricultural Labor Relations Bd. (1979) 26 Cal.3d 1, 32-33 [160 Cal. Rptr. 710, 603 P.2d 1306].) This judicial check on the possibility of arbitrary administrative action is far more significant to the administration of justice than invariable adherence to the judicially created doctrine of res judicata.
The Lu-Ette Formula
The majority concludes that a provision for interest on back wages ordered in a make-whole order is not a judgment, notes that the employer does not contend "that a back-pay award is a loan or forbearance or account on demand [sic]," and holds that therefore the constitutional limitation on interest rates applicable to all other persons and agencies in this state unless expressly exempted (Cal. Const., art. XV, § 1, subd. (2)) does not apply to the rate of interest an employer may be ordered to pay on a back-pay award. I agree that the interest here involved is not interest on a judgment. However, whether contended or not, I am not at all certain that interest on an award of back wages is not a "forbearance of any money, goods, or things in action" as those words have been expansively interpreted by the decisions. In any event, however, I am thoroughly persuaded that the allowable rate of interest an employer may be ordered to pay in connection with a back-pay award made as part of a make-whole order is the legal rate binding on all other persons and agencies in the state not expressly exempted.
This is so for two reasons: (1) because the interest on a back-pay award is nothing more or less than prejudgment interest which is limited in this state to the legal rate; and (2) because a make-whole order must be designed to make the employee whole, not to give to the employee more than he or she would have received in the absence of the unfair labor practice and not to punish the employer.
The interest ordered on a back-pay award from the time of the unfair labor practice to the time of the make-whole order is clearly prejudgment interest. (See Mass v. Board of Education (1964) 61 Cal.2d 612, 624-625 [39 Cal. Rptr. 739, 394 P.2d 579]; Civ. Code, § 3287, subd. (a).) The allowable rate of interest on prejudgment interest is the legal rate. (Cal. Const., art. XV, § 1, subd. (2); McConnell v. Pacific Mutual Life Ins. Co. (1962) 205 Cal. App.2d 469, 481 [24 Cal. Rptr. 5]; In re Consol. Pretrial Proceedings in *912 Air West (N.D. Cal. 1977) 436 F. Supp. 1281, 1286; Cutten v. Allied Van Lines, Inc. (C.D. Cal. 1972) 349 F. Supp. 907, 912-913, affd. 514 F.2d 1196.)
The Board's authority to make a back-pay order and, in turn, to order the payment of interest on back pay derives exclusively from Labor Code section 1160.3 which reads in relevant part: "If, upon the preponderance of the testimony taken, the board shall be of the opinion that any person named in the complaint has engaged in or is engaging in any such unfair labor practice, the board shall state its findings of fact and shall issue and cause to be served on such person an order requiring such person to cease and desist from such unfair labor practice, to take affirmative action, including reinstatement of employees with or without backpay, and making employees whole, when the board deems such relief appropriate, for the loss of pay resulting from the employer's refusal to bargain, and to provide such other relief as will effectuate the policies of this part." The Board's exercise of power to command affirmative action and to "provide such other relief as will effectuate the policies of" the ALRA must be remedial, not punitive. (Sunnyside Nurseries, Inc. v. Agricultural Labor Relations Bd., supra, 93 Cal. App.3d at p. 940, quoting in part from Edison Co. v. Labor Board (1938) 305 U.S. 197, 236 [83 L.Ed. 126, 143, 59 S.Ct. 206].) "[I]t is not enough to justify the Board's requirements to say that they would have the effect of deterring a person from violating the Act. That argument proves too much, for if such a deterrent effect is sufficient to sustain an order of the Board, it would be free to set up any system of penalties which it would deem adequate to that end. [¶] ... [A]ffirmative action to `effectuate the policies of this Act' is action to achieve the remedial objectives which the Act sets forth." (Republic Steel Corp. v. Labor Board (1940) 311 U.S. 7, 12 [85 L.Ed. 6, 10, 61 S.Ct. 77].)
There is no evidence of any kind that the value to the employees who are to be made whole of the loss of use of the wages of which they were deprived would amount to the rate of interest assessed against the employer under the Lu-Ette formula. Thus, the assessment of interest in accordance with that formula cannot be justified under the Board's make-whole power; the order is clearly punitive and, therefore, invalid. One must sympathize with the proposition that unfair labor practices are to be discouraged, but as the United States Supreme Court pointed out in Republic Steel, the Board is not authorized to impose penalties to deter unfair labor practices.
*913 APPENDIX A
Maria Ramirez's testimony:
"Q. How long did you work for J.R. Norton Company in 1979?
"A. From the first day that the machine started until we were told that the machine had broken down.
"Q. Can you give us an approximate time how much time was that?
"A. About three weeks.
"Q. Now, was the if I understand correctly, were you laid off when the machine broke?
"A. They told us that they would call us back when the machine was fixed.
"Q. When you say `they', who do you mean?
"A. The foreman. And in the office we went several times to ask when we would be called back.
"Q. Specifically, who was the foreman or foremen who told you that you were laid off?
"A. Jose, but I do not know his last name.
"A. Was this Jose a foreman?
"A. Yes.
"MR. SATO: Can we get a stipulation that the Jose named was a foreman in the wrapping crew in May of 1979?
"MR. HERSH: No. I don't know.
"MR. SATO: No?
"ADMINISTRATIVE LAW OFFICER WEISS: Could you describe Jose?
"THE WITNESS: (through Interpreter) Yes. He is a man that is not very tall or very short, and he is quite older."
"Q. Looking at the second page, is this your signature?
"A. Yes.
"Q. When you made this declaration, were you familiar with I mean, was it near the time the events described happened?
"A. Yes.
"Q. Okay. Did Pena ever tell you that he was going to kill you?
"A. No.
"Q. How about Maria Perez? Did she ever tell you she was going to kill you?
"A. No.
"Q. And Jose Ramirez?
"A. No.
"Q. Did you did you ever talk to Jose Ramirez after you stopped working for Norton?
"A. Yes.
"Q. And where was that?
"A. On Main.
"Q. Okay. Do you know if he was still working for the company?
"A. He told me that he was working in the ground crews.
"ADMINISTRATIVE LAW OFFICER WEISS: Who was that that she [sic] was working for?
"MR. HERSH: Jose Ramirez.
"Q. Did you ever ask Jose Ramirez if you could cut?
"A. Yes.
"Q. Okay. Did you ask him more than once?"
Lerma's testimony:
"Q. Now, at that time when Don Jose, your foreman, said this, do you remember if this was before or after the election for the crew representatives?
*914 "A. It was before.
"Q. How long did you work for J.R. Norton Company in 1979?
"A. About three weeks.
"Q. What happened after those three weeks?
"A. They said that the machine had broken down. So then they said when the machine is fixed we will call you, and they took all our telephone numbers.
"Q. When you say
"A. Of all of us.
"Q. Excuse me. When you say `he', are you referring to the foreman, Don Jose?
"A. Yes, Mr. Jose.
"Q. Were you ever called back?
"A. No.
"Q. Did you ever go back and ask for your job?
"A. Yes.
"Q. When?
"A. At the time that they gave us our last check after the machine was broken down, I went to the office and I said to the secretary I don't know English, but I took my daughter to interpret for me, and I was told, `There is no work now. The machine has not been fixed. You will be called.' I went about three times.
"Q. To the office?
"A. Yes.
"Q. At that time when the machine broke down, was the entire crew laid off?
"A. No.
"Q. How many approximately how many of the crew were laid off?
"A. Only five or six persons were changed to another machine.
"Q. Did you ask your foreman why those people were changed to another machine?
"A. Yes.
"Q. And was this Don Jose?
"A. Yes.
"Q. And what did Don Jose say?
"A. That because they had more seniority
"Q. Was there anything else he said at that time?
"A. No. He only said, `I will call you when the machine is fixed.'
"Q. During the time that you were working for J.R. Norton in 1979, had you heard were there other times that you heard your foreman mention the union, U.F.W.?
"A. Yes.
"Q. How many times was it were there?
"A. One time when the representative had not gone, he got close to the conveyor belt to throw in the lettuce and he said, `Don't you believe the union; we don't want union here. There's no union here. The company is not negotiating with anyone. You work in peace, and those of you that don't want to '"
Lujan's testimony:
"Q. Now, when the machine broke, I think you testified you weren't on the machine when it broke, is that right?
"A. I don't recall.
"Q. When the machine broke, what happened? Were you sent home for the day or what?
"A. Yes. And Don Jose took our names and addresses and telephone numbers, and told us when the machine was fixed, he would call us.
"Q. Did he give you any idea as to when the machine might be fixed?
"A. He told us that in a week.
"Q. Did you talk to him again about it later?
"A. Yes.
"Q. When, how much later?
*915 "A. On that Friday when they were coming so I could get my check, I asked him when the machine was going to start. And if it wasn't going to start up real quick, for him to give me that paper for unemployment.
"Q. This is what you said to him, now?
"A. Because I needed money to support my family, or my work. I needed one or the other.
"Q. What was your intention then, to apply for unemployment if the machine wasn't going to be fixed and you weren't going to be recalled?
"A. Yes.
"Q. So you asked for what, a layoff slip or termination slip of some kind?
"A. I never asked for unemployment, and I was not given the ..."
NOTES
[1] Unless otherwise specified, all statutory references are to the California Labor Code.
Section 1153, subdivisions (a), (c), (d), and (e), provide: "It shall be an unfair labor practice for an agricultural employer to do any of the following:
"(a) To interfere with, restrain, or coerce agricultural employees in the exercise of the rights guaranteed in Section 1152.
".... .... .... .... .... . .
"(c) By discrimination in regard to the hiring or tenure of employment, or any term or condition of employment, to encourage or discourage membership in any labor organization.
"(d) To discharge or otherwise discriminate against an agricultural employee because he has filed charges or given testimony under this part.
"(e) To refuse to bargain collectively in good faith with labor organizations certified pursuant to the provisions of Chapter 5 (commencing with Section 1156) of this part."
[2] At the time of the issuance of the ALJ's decision in 8 ALRB No. 76, all ALJ's were referred to as administrative law Officers. (See Cal. Admin. Code, tit. 8, § 20125, amended eff. Jan. 30, 1983.)
[3] 26 United States Code section 6621 provides:
"(a) In General. The annual rate established under this section shall be such adjusted rate as is established by the Secretary under subsection (b).
"(b) Adjustment of Interest Rate.
"(1) Establishment of adjusted rate. If the adjusted prime rate charged by banks (rounded to the nearest full percent)
"(A) during the 6-month period ending on September 30 of any calendar year, or
"(B) during the 6-month period ending on March 31 of any calendar year, differs from the interest rate in effect under this section on either such date, respectively, then the Secretary shall establish, within 15 days after the close of the applicable 6-month period, an adjusted rate of interest equal to such adjusted prime rate.
"(2) Effective date of adjustment. Any adjusted rate of interest established under paragraph (1) shall become effective
"(A) on January 1 of the succeeding year in the case of an adjustment attributable to paragraph (1)(A), and
"(B) on July 1 of the same year in the case of an adjustment attributable to paragraph (1)(B).
"(c) Definition of Prime Rate. For purposes of subsection (b), the term `adjusted prime rate charged by banks' means the average predominant prime rate quoted by commercial banks to large businesses, as determined by the Board of Governors of the Federal Reserve System."
[4] Valles indicated these were former Norton employees and members of the negotiating committee. Some of them may have been refused rehire after the Salinas work stoppage.
[2a] "It is preferable that in fulfilling their duty to bargain in good faith the parties reach agreement among themselves concerning access. However, in order to negotiate access agreements, the parties may request the aid of the Regional Director and Board Agents."
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FILED
Mar 01 2019, 8:22 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEES
Dale W. Eikenberry Cary J. Solida
Elizabeth S. Schmitt State Farm Litigation Counsel
Wooden McLaughlin LLP Indianapolis, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Indiana Farmers Mutual March 1, 2019
Insurance Company, Court of Appeals Case No.
Appellant-Plaintiff, 18A-CT-2043
Appeal from the Tippecanoe
v. Superior Court
The Honorable Randy J. Williams,
John Weaver, Sunday Vanzile, Judge
Bryan Vanzile, and State Farm Trial Court Cause No.
Mutual Automobile Insurance 79D01-1708-CT-127
Company,
Appellees-Defendants.
Bradford, Judge.
Court of Appeals of Indiana | Opinion 18A-CT-2043 | March 1, 2019 Page 1 of 8
Case Summary
[1] In August of 2015, John Weaver was driving a vehicle which he owned and
which was insured by Indiana Farmers Mutual Insurance Company (“Indiana
Farmers”) when he lost control and drove it into the home of Bryan and
Sunday Vanzile (“the Vanziles”). Indiana Farmers sought a declaratory
judgment that it had no duty to provide coverage to Weaver, who was driving
with a suspended driver’s license, pursuant to the terms of the insurance
contract (“ the Policy”), specifically under the exclusions provision
(“Entitlement Exclusion”). In 2018, State Farm Mutual Automobile Insurance
Company (“State Farm”), joined by the Vanziles (collectively “Appellees”),
moved for summary judgment, and Indiana Farmers moved for summary
judgment as well. The trial court entered summary judgment in favor of the
Appellees and denied Indiana Farmers’s motion. Indiana Farmers contends
that the trial court erred in denying its cross-motion for summary judgment
because the Entitlement Exclusion excluded Weaver from coverage while
driving with a suspended driver’s license. Because we disagree, we affirm.
Facts and Procedural History
[2] On August 29, 2015, Weaver lost control of his vehicle and drove into the
residence of the Vanziles, causing bodily injury and property damage. Weaver’s
driver’s license was suspended at the time. Weaver’s vehicle had been insured
since March 11, 2015, by Indiana Farmers under the Policy, which provided, in
relevant part:
Court of Appeals of Indiana | Opinion 18A-CT-2043 | March 1, 2019 Page 2 of 8
Part A – Liability Coverage
Insuring Agreement
A. We will pay damages for “bodily injury” or “property
damage” for which any “insured” becomes legally responsible
because of an auto accident[…]We will settle or defend, as we
consider appropriate, any claim or suit asking for these
damages[…]We have no duty to defend any suit or settle any
claim for “bodily injury” or “property damage” not covered
under this policy.
B. “Insured” as used in this Part means:
1. You or any “family member” for the ownership,
maintenance or use of any auto or “trailer”.
2. Any person using “your covered auto”.
[….]
Exclusions
A. We do not provide Liability Coverage for any “insured”:
[….]
8. Using a vehicle without a reasonable belief that that
“insured” is entitled to do so. This Exclusion […] does not
apply to a “family member” using “your covered auto”
which is owned by you.
Appellant’s App. Vol. II p. 103–04.
[3] On June 21, 2017, the Vanziles sued Weaver for the recovery of damages. On
August 3, 2017, Indiana Farmers filed for declaratory judgment seeking a
determination that the Policy did not provide Weaver with coverage on the day
of the accident because he was excluded under the Entitlement Exclusion due
to his suspended driver’s license. State Farm moved to intervene, a motion
which was granted by the trial court, and both State Farm and the Vanziles filed
Court of Appeals of Indiana | Opinion 18A-CT-2043 | March 1, 2019 Page 3 of 8
answers denying Indiana Farmers’ allegation of no coverage. On January 22,
2018, State Farm moved for summary judgment, a motion which was joined by
the Vanziles. On February 20, 2018, Indiana Farmers cross-moved for
summary judgment. The trial court held a hearing on the summary judgment
motions and ordered summary judgment in favor of State Farm and the
Vanziles on July 26, 2018.1
Discussion and Decision
[4] Indiana Farmers contends that the trial court erred by granting summary
judgment in favor of the Appellees and denying its cross-motion for summary
judgment. Specifically, Indiana Farmers contends that without a valid driver’s
license, Weaver was using his vehicle without a reasonable belief that he was
entitled to do so, which resulted in him being excluded from coverage pursuant
to the Entitlement Exclusion of the Policy. We review an order granting
summary judgment de novo, applying the same standard as the trial court. Miller
v. Rosehill Hotels, LLC, 45 N.E.3d 15, 18 (Ind. Ct. App. 2015). Summary
judgment is appropriate where the designated evidence demonstrates that there
is no genuine issue of material fact and the moving party is entitled to judgment
as a matter of law. Ind. Trial Rule 56(C). The moving party bears the initial
burden of making a prima facie case that there is no genuine issue of material
1
Although Weaver did not appear or join the summary judgment motion, the trial court included Weaver in
the order, granting summary judgment in favor of him as well.
Court of Appeals of Indiana | Opinion 18A-CT-2043 | March 1, 2019 Page 4 of 8
fact and that it is entitled to judgment as a matter of law. Manley v. Sherer, 992
N.E.2d 670, 673 (Ind. 2013) (internal quotations omitted). If the moving party
fails to make a prima facie case, summary judgment is improper; however, if it
succeeds, then the nonmoving party must present evidence establishing a
genuine issue of material fact. Miller, 45 N.E.3d at 18–19. Our review is limited
to the designated evidence that was before the trial court but is neither
constrained by the claims and arguments made to the trial court nor the
rationale of the trial court’s ruling. Manley, 992 N.E.2d at 673. The
interpretation of an insurance policy presents a question of law which is
appropriate for summary judgment. Am. Family Ins. Co. v. Globe Am. Cas. Co.,
774 N.E.2d 932, 935 (Ind. Ct. App. 2002), trans. denied.
[5] While there is case law that has addressed entitlement exclusions in relation to
a driver given permissive use of a vehicle from the policy holder, we have not
yet had the opportunity to address entitlement exclusions in relation to the
policy holder’s own use of a vehicle. We direct our focus to the basic principles
of contract law to address this issue.
An insurance policy is a contract, and in reviewing the policy, we
construe it as we would any other contract—to give effect to the
parties’ intentions at the time the contract was made. The
freedom to contract is a bedrock principle of Indiana law, and the
freedom of the parties to exclude risks from an insurance contract
is well established[.] Generally, insurers are free to limit liability
in any manner not inconsistent with public policy, and an
unambiguous exclusionary clause is ordinarily entitled to
enforcement.
Court of Appeals of Indiana | Opinion 18A-CT-2043 | March 1, 2019 Page 5 of 8
Founders Ins. Co. v. May, 44 N.E.3d 56, 61–62 (Ind. Ct. App. 2015) (internal
quotations and citations omitted, brackets added), trans. denied. When the
language of an insurance policy is clear and unambiguous, we give the words
their plain and ordinary meaning. Buckeye State Mut. Ins. Co. v. Carfield, 914
N.E.2d 315, 318 (Ind. Ct. App. 2009), trans. denied. Where an ambiguity exists,
however, we construe a policy provision strictly against the insurer. Bradshaw v.
Chandler, 916 N.E.2d 163, 166 (Ind. 2009). A provision is ambiguous if it is
susceptible to more than one interpretation and reasonable persons would differ
as to its meaning. Buckeye State, 914 N.E.2d at 218. “Strict construction against
the insurer derives from the disparity in bargaining power characteristics of
parties to insurance contracts.” Bradshaw, 916 N.E.2d at 166. We interpret
policy terms from the perspective of the ordinary policyholder of average
intelligence. Burkett v. Am. Family Ins. Group, 737 N.E.2d 447, 452 (Ind. Ct.
App. 2000).
[6] Turning to the Policy, we conclude that the term “using” is ambiguous because
its meaning is susceptible to differing interpretations by reasonable persons.
Indiana Farmers contends that “using” should be interpreted as synonymous
with “operating”; however, we conclude that the terms are not synonymous.
While “operating” is one way of “using” a vehicle, it is not the only way. A
person could use a vehicle for storage, to salvage spare parts from, or to display
at a classic car show, none of which would require the person to operate the
vehicle. Indiana Farmers could have drafted the Policy in a way that clearly
defined “using” or included “operating”, just as insurance companies and the
Court of Appeals of Indiana | Opinion 18A-CT-2043 | March 1, 2019 Page 6 of 8
General Assembly have done. See Founders Ins. Co. v. Munoz, 930 N.E.2d 999,
1002 (Ill. 2010) (finding that the insurance policy excluded any person
“operating an automobile without a reasonable belief that he or she is entitled to
do so”) (emphasis added); see also Ind. Code § 27-1-13-7(b)(3) (statutorily
mandating that insurance companies “insur[e] the owner against liability for
damages…resulting from negligence in the operation of the motor vehicle…by
any person legally using or operating the motor vehicle with permission,
expressed or implied of the owner) (emphasis added). Moreover, reasonable
minds may differ as to whether “using” one’s own vehicle under this exclusion
is dictated upon one’s driver’s license status. Indiana Farmers could have
drafted a provision that specifically excluded drivers from coverage who used
the vehicle without a valid driver’s license. See Founders Ins. Co., 44 N.E.3d at 58
(noting that a policy provision specifically excluded a driver from coverage if he
is “not a licensed driver, or is without a valid driver’s license, [or his] driver’s
license is revoked or suspended”). Indiana Farmers’s failure to add further
clarification leaves the term “using” ambiguous, and we must construe such
ambiguities against the insurer. Therefore, Weaver had a reasonable belief that
he was entitled to use his vehicle pursuant to the language of the Policy.
[7] The judgment of the trial court is affirmed.
Bailey, J., concurs.
Brown, J., concurs with opinion.
Court of Appeals of Indiana | Opinion 18A-CT-2043 | March 1, 2019 Page 7 of 8
Indiana Farmers Mutual Court of Appeals Case No.
Insurance Company, 18A-CT-2043
Appellant-Plaintiff,
v.
John Weaver, Sunday Vanzile,
Bryan Vanzile, and State Farm
Mutual Automobile Insurance
Company,
Appellees-Defendants.
Brown, Judge, concurring.
[8] I concur with the majority opinion that the term “using” is not synonymous
with “operating” and would note that had Indiana Farmers wanted to dispel
any uncertainty regarding the impact of an individual’s driver’s license status on
coverage, it could have referred in certain provisions to “legally” using a
vehicle; that is, Indiana Farmers could have drafted the Policy in a way that
clearly defined and used “legally using.” Further, in light of the fact that the
Policy leaves “entitled” undefined and uses elsewhere the phrase “legally
entitled,” see, e.g., Appellant’s Appendix Volume II at 106 (“We will pay
compensatory damages which an ‘insured’ is legally entitled to recover . . . .”), I
find that reasonable persons could interpret subsection A(8) to refer to
permission. For these reasons I concur with the majority opinion.
Court of Appeals of Indiana | Opinion 18A-CT-2043 | March 1, 2019 Page 8 of 8
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672 F.2d 909
Harrisonv.Styles
81-8191
UNITED STATES COURT OF APPEALS Fourth Circuit
10/8/81
1
W.D.N.C.
CPC DENIED--DISMISSED
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811 P.2d 609 (1991)
Doy Dale PENINGER, Appellant,
v.
STATE of Oklahoma, Appellee.
No. F-89-870.
Court of Criminal Appeals of Oklahoma.
May 14, 1991.
Keith Ward, Tulsa, for appellant.
Robert H. Henry, Atty. Gen., Diane L. Slayton, Asst. Atty. Gen., Oklahoma City, for appellee.
*610 OPINION
LUMPKIN, Vice Presiding Judge:
Appellant Doy Dale Peninger was tried by jury and convicted of two (2) counts of Indecent Proposal to a Minor in violation of 21 O.S.Supp. 1985, § 1123, in the District Court of Tulsa County, Case No. CRF-88-2585. The jury recommended as punishment three (3) years imprisonment on each count. The trial court sentenced accordingly. Appellant now claims that errors occurred during his trial which require reversal of his conviction by this Court. We agree and reverse for a new trial, stating only those facts pertinent to the resolution of the case.
In his second assignment of error, Appellant alleges that the trial court erred in failing to sustain his motion to quash the search warrant and suppress the fruits of that search, namely photographs of young boys in Appellant's foster care clad only in their underwear. The record reflects that Appellant was charged on June 28, 1988, with one count of lewd molestation and one count of indecent proposal to a child, committed against M.N. That same day an affidavit for a search warrant was prepared which stated in part:
photos of juvenile males clad in white underware [sic] and others of bright colored bikini underwear. Camera and camera equipment suitable for taking these photos... . Was used as the means of committing the felony, to-wit: Soliciting a Minor Child for Indecent Photos (21 OS 1021 B 2) (O.R. 10)
Issued and executed that day, the warrant yielded approximately one hundred photographs, sixteen (16) of which were admitted into evidence at trial. The photos admitted into evidence were discovered on the coffee table in Appellant's living room, among a stack of photographs. These sixteen (16) photographs were introduced during the testimony of Detective Roberts, the affiant on the affidavit to the search warrant and the officer who executed the warrant.
On August 12, 1988, Appellant filed a Motion to Quash the arrest for the reason that there was no probable cause for the issuance of the search warrant or the arrest. Appellant renewed this motion at a pre-trial hearing but did not stand on it once it was overruled. Appellant again *611 entered his objection when the photographs were introduced and admitted into evidence.
The issuance of a search warrant is dependant upon a neutral and detached magistrate's examination of the totality of the circumstances to determine if probable cause exists for the issuance of the warrant. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Langham v. State, 787 P.2d 1279, 1280 (Okl.Cr. 1990). The scope of items that can be validly listed in a search warrant as the subject of a search are instrumentalities of a crime, fruits of a crime, contraband and/or evidence of a crime. Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). In order for there to be a valid finding of probable cause "enough underlying facts and circumstances must be set forth in the affidavit to enable the magistrate to independently judge the affiant's conclusion that [evidence of the crime] is located where the affiant says it is." Asher v. State, 546 P.2d 1343, 1347 (Okl.Cr. 1976).
In the present case, the affidavit to the search warrant provided that Appellant possessed in his home photographs of young boys clad only in their underwear which were used to commit the crime of soliciting a minor for indecent photos pursuant to 21 O.S. 1981, § 1021(B). This information was insufficient for the reviewing magistrate to determine that a crime had been committed or that there was probable cause to believe that evidence of a crime was contained in the Appellant's home as it failed to state the existence of a crime. The photographs were not evidence of a crime as they did not meet the definition of obscene material set forth in 21 O.S. 1981, § 1024.1. Therefore, we find that the magistrate erred in issuing the search warrant based upon the foregoing information and that the evidence seized pursuant to that warrant (the photographs) should have been suppressed.
Further error occurred in the admission of the photos into evidence. For photographs to be admissible, their content must be relevant and their probative value must substantially outweigh their prejudicial effect. Nguyen v. State, 769 P.2d 167 (Okl.Cr. 1988), cert denied, 492 U.S. 925, 109 S.Ct. 3264, 106 L.Ed.2d 609 reh. denied, 492 U.S. 938, 110 S.Ct. 27, 106 L.Ed.2d 639; Smith v. State, 737 P.2d 1206, 1210 (Okl.Cr. 1987), cert denied, 484 U.S. 959, 108 S.Ct. 358, 98 L.Ed.2d 383 (1987); Oxendine v. State, 335 P.2d 940, 942 (Okl.Cr. 1958). When the probative value of photographs is outweighed by their prejudicial impact on the jury that is the evidence tends to elicit an emotional, rather than rational, judgment by the jury then they should not be admitted into evidence. President v. State, 602 P.2d 222, 225 (Okl. Cr. 1979); Oxendine, 335 P.2d at 942.
In the instant case, we find that the photographs were not relevant and should not have been admitted into evidence. The subjects of the photographs are young boys who have been in Appellant's foster care. The victim is not represented in this collection of photographs. Testimony at trial revealed that the photographs were taken prior to the time M.N. was placed in Appellant's home. No allegations were ever made that Appellant took any photographs of M.N. or that the offenses Appellant committed involved soliciting minors for photographs. The photos do not prove or tend to prove an issue in the case. They do not have a tendency to make more or less probable a material fact in issue.
We recognize the well established rule that the admissibility of photographs is a matter within the trial court's discretion and that absent an abuse of that discretion, this Court will not reverse the trial court's ruling. Nuckols v. State, 690 P.2d 463, 470 (Okl.Cr. 1984), cert denied, 471 U.S. 1030, 105 S.Ct. 2050, 85 L.Ed.2d 323 (1985). However we fail to see the relevancy of these photographs.
Accordingly, we find the failure to suppress the photos and their ultimate admission into evidence to be fatal errors which require reversal of the case and remand for a new trial.
Appellant's fourth and fifth allegations of error concern the testimony of *612 defense witness, Richard Demorest. Demorest, a licensed social worker for Children's Medical Center who treated the eleven year old victim, informed the court that M.N. had instructed him not to divulge any confidential communications. The defense objected and requested the court direct the witness to answer. The trial court ruled that it would permit the witness to testify to "anything that doesn't violate the privilege of the alleged victim in this case." The court further clarified its ruling by stating that "it appears that a legal privilege exists, and if the patient has indicated to you he doesn't want you to violate that, then I'm not going to order you to do so." Once he took the stand, Mr. Demorest stated that M.N. had requested that he not testify and that he would refuse to testify unless ordered to testify by the court.
Appellant alleges that the trial court erred in failing to rule as a matter of law on the existence of a psychotherapist/patient privilege between the victim and his therapist. Appellant argues that, instead of ruling as a matter of law whether the privilege existed, the trial court deferred the decision to the witness. Should this Court find that the trial court did not improperly defer the determination of the privilege to the witness, Appellant argues that it was error to exclude the testimony as it did not properly fall under the privilege.
Privileged communications are created by statute and can be found in the Evidence Code. See 12 O.S. 1981, § 2101, et seq. Section 2501 provides that:
except as otherwise provided by the constitution, statute or rules promulgated by the Supreme Court, no person has a privilege to: 1) Refuse to be a witness; 2) Refuse to disclose any matter; 3) Refuse to provide any object or writing, or 4) Prevent another from being a witness or disclosing any matter or producing any object or writing.
The existence of a legal privilege is a matter of law which is to be decided by the trial judge prior to the witness' testifying. In the present case, the trial judge improperly deferred the decision of whether a privilege existed to the witness.
The physician/psychotherapist-patient privilege is set forth in 12 O.S. 1981, § 2503. Subsection A provides in pertinent part:
3. A "psychotherapist" is:
a. a person authorized to practice medicine in any state or nation, or reasonably believed by the patient to be so authorized, while engaged in the diagnosis or treatment of a mental or emotional condition, ... .
b. a person licensed or certified as a psychologist under the laws of this state, ... . or reasonably believed by the patient to be so licensed or certified, while similarly engaged; and
Here, Mr. Demorest testified that he was not a licensed physician, but was a clinical social worker. This Court has never interpreted the above statute to include communications made to a social worker.
Communications between a social worker and his or her client are covered in 59 O.S. 1981 § 1272.1. This section recognizes that such communications are confidential, but "there shall be no privilege created by this act (Section 1250 et seq.) as to any information acquired by a person licensed under these provisions." This section further provides in pertinent part:
Nothing in this act shall be construed to prohibit any licensed person from testifying in court hearings concerning matters of adoption, child abuse, child neglect, or matter pertaining to the welfare of children... .
Subsection 3 specifically addresses information acquired by a social worker from a person under eighteen (18) years old:
When the person is a child under the age of eighteen (18) years and the information acquired by the licensed person indicates that the child was the victim or subject of a crime the licensed person may be required to testify fully in relation thereto upon any examination, trial or other proceeding in which the commission of such a crime is a subject of inquiry;
*613 Therefore, Section 1272.1, by its very wording, sets forth no legal privilege in the communications between a social worker and client. This conclusion is further supported when Section 1272.1 is read in conjunction with the Evidence Code. Section 1272.1 was passed by the Legislature after the enactment of the Evidence Code. Section 1272.1 does not reference or mention in any way the legal privileges established by the Code. Therefore, we must conclude that it was not the intent of the Legislature to modify the Evidence Code in any way to create a privilege from testifying in court as it relates to the confidential communications acquired by a social worker from his or her client.
Accordingly, the communications between M.N. and Mr. Demorest in the present case were not privileged and the trial court erred in excluding Mr. Demorest's testimony. This error deprived Appellant of a fair trial and now necessitates reversal of the conviction.
In his final assignment of error, Appellant contends that the trial court violated the "best evidence" rule in allowing Officer Roberts to testify to his observations of newspaper articles in Appellant's home concerning molestations.
The "best evidence" rule usually applies to situations where a question relates to the contents of written documents. Hayes v. State, 397 P.2d 524, 527 (Okl.Cr. 1964). See also 12 O.S. 1981, § 3002. In Hayes we gave the following definition of the rule:
For the purpose of proving the content of a writing, the original writing itself is regarded as the primary evidence, and secondary evidence is inadmissible unless failure to offer the original is satisfactorily explained.
In Henson v. State, 97 Okl.Cr. 240, 261 P.2d 916, 923 (1953), we quoted Corpus Juris and stated that the best evidence rule requires the production of the best evidence of which the nature of the case is susceptible. "It has no application to proof of a collateral, incidental or preliminary fact".
The rule as stated above, is not applicable to the instant case. Officer Roberts testified that when he executed the search warrant he observed approximately forty (40) to fifty (50) newspaper clippings that dealt with "rapes and molestations." (Tr. 137) Roberts stated that he did not seize the clippings as they were not included on the search warrant. The newspaper clippings were not introduced into evidence.
Appellant does not challenge the contents of the clippings, but argues that the witness' testimony left the jury with the impression that Appellant "had a morbid curiosity about molestation and punishment." We agree that the testimony about the newspaper clippings left an impression with the jury which was prejudicial to the Appellant. It was improper to question the officer about the newspaper clippings as they were neither evidence of a crime nor subject to seizure under the search warrant. Such testimony introduced evidence which was not relevant to any issue in the case and which could only serve to inflame the jury against the Appellant.
Based upon the foregoing accumulation of errors, we find that the Appellant's judgment and sentence must be and is hereby REVERSED and REMANDED FOR A NEW TRIAL.[1]
LANE, P.J., and BRETT and JOHNSON, JJ., concur.
PARKS, J., specially concur.
PARKS, Judge, specially concurring:
I agree that appellant's convictions should be reversed based upon the errors discussed above. However, independent of those errors, I also find that the overzealous actions of Assistant District Attorney *614 Sharon Ashe denied appellant of a fair trial. Without extensive elaboration, the following is indicative of the prosecutor's misconduct in this case.
First, Ms. Ashe either inexcusably failed or deliberately refused to produce exculpatory/impeachment evidence specifically requested by the defense. Defense counsel independently secured this information on the day before trial. Such evidence, which indicated that M.N. was a habitual liar, a thief and a violent, aggressive and vengeful boy with significant psychological disorders, was certainly relevant for purposes of impeaching the State's complaining witness. A prosecutor has an ethical duty to "make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense... ." Oklahoma Rules of Professional Conduct, Rule 3.8(d). Moreover, "[S]uppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment... ." Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963). See also Coleman v. State, 747 P.2d 322, 323 (Okl.Cr. 1987). Impeachment evidence falls within the Brady rule. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985).
I also wish to address improper comments and questions of the prosecutor during trial. Ms. Ashe asked numerous questions designed to elicit inadmissible testimony. See Chase v. State, 541 P.2d 867, 870 (Okl.Cr. 1975). After a thorough review of the record, it is apparent that Ms. Ashe intentionally elicited an evidentiary harpoon. Finally, the prosecutor repeatedly asked argumentative questions of virtually every defense witness.
This case does not represent the first time Ms. Ashe's misconduct has been addressed by this Court. See Marsh v. State, 761 P.2d 915 (Okl.Cr. 1988), and McCrady v. State, Unpublished Opinion, Case No. F-87-490 (Okl.Cr. Oct. 14, 1988). As this writer stated in a separate opinion in McCrady, "Ms. Ashe would do well to heed the warning issued by the Tenth Circuit Court of Appeals in Bowen v. Maynard, 799 F.2d 593 (10th Cir.1986), as her actions indicate she does not comprehend the unique role of a prosecutor in the orderly administration of justice." "A prosecutor has the responsibility of a minister of justice and not simply that of an advocate." Oklahoma Rules of Professional Conduct, Rule 3.8, Comment. His or her primary duty is not to convict, but to see that justice is done. Trobler v. State, 688 P.2d 350, 354 (Okl.Cr. 1984). On the basis of the foregoing, I find that reversal in this case is also warranted by the misconduct of the prosecutor.
Finally, I wish to reiterate my disagreement with the majority of this Court's abandonment of the Aguilar-Spinelli standard as it applied to state constitutional attacks upon search warrants. See Langham v. State, 787 P.2d 1279, 1281 (Okl.Cr. 1990) (Parks, P.J., concurring in result). As matter of state decisis, however, I am obligated to apply the Illinois v. Gates standard to the facts of this case. Having done so, I concur that the issuance of the search warrant was erroneous.
NOTES
[1] In his specially concurring opinion, Judge Parks addresses the issue of prosecutorial misconduct. This writer respectfully disagrees with the practice of naming trial counsel as a part of critical review of their conduct. This practice is tantamount to a public censure wherein trial counsel is denied the basic rights of due process. Further, such a public censure is outside the scope of our appellate review, as the plenary power of attorney discipline is vested in the Oklahoma Supreme Court pursuant to 5 O.S. 1981, CH. 1, App. 1-A, Rule 1.1.
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59 F.3d 175NOTICE: 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.
In re MIKE GLICKMAN REALTY, INC., Debtor.Donald W. HENRY, Chapter 7 Trustee for Mike Glickman Realty,Inc., Appellant,v.ANDOCS I; Orange County Emergency Clinic, Inc.; Melvin L.Gerstner; Deena M. Gerstner; Andocs III; David I.Tannenbaum; Richard S. Glassberg; Lyle D. Price; RosalindaE. Fernandez; United States Trustee, Appellees.
No. 92-55331.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Sept. 2, 1993.Decided June 29, 1995.
Before: BRUNETTI, KOZINSKI, and BOGGS*, Circuit Judges.
1
MEMORANDUM**
2
The bankruptcy appellate panel affirmed a grant of summary judgment to ANDOCS I ("ANDOCS"). We have jurisdiction of this appeal under 28 U.S.C. Sec. 158(d) and affirm.
3
Because Glickman failed to produce a buyer willing to offer $1.5 million for the property in question, he failed to perform according to the terms of the original listing agreement. ANDOCS' representative Les Malo then told James A. Gary & Co.'s representative Gail Marcus that ANDOCS would accept a $1.2 million offer for the property in question only if the brokerage commission were reduced to 4%, "payable only if escrow closed." The property was not sold to Glickman's buyer at this price or any other. We agree with the bankruptcy panel that, whether this oral condition constituted a modification of the listing agreement or a new promise, supported by new consideration, Glickman failed to perform according to the terms of this condition. See Steve Schmidt & Co. v. Berry, 228 Cal. Rptr. 689, 692-93 (Ct. App. 1986).
4
AFFIRMED.
*
Danny J. Boggs, United States Circuit Judge for the Sixth Circuit Court of Appeals, sitting by designation
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3
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FILED
United States Court of Appeals
Tenth Circuit
June 9, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
KRISTEN JENSEN;
RICHARD M. JENSEN,
Plaintiffs-Appellants,
v. No. 10-4147
(D.C. No. 1:09-CV-00169-TS)
AMERICA’S WHOLESALE (D. Utah)
LENDER; COUNTRYWIDE HOME
LOANS, INC.; BAC HOME LOANS
SERVICING, L.P.; BANK OF
AMERICA, N.A.; SCOTT
LUNDBERG; MORTGAGE
ELECTRONIC REGISTRATION
SYSTEM, INC.; RECON TRUST
COMPANY, N.A.; WENDY
MCKNIGHT; JOHN AND JANE
DOES 1-100; TRUSTEES 1-100,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before MATHESON, McKAY, and EBEL, Circuit Judges.
*
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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Richard and Kristen Jensen, proceeding pro se, brought this action, alleging
that defendants conspired to foreclose on their home. 1 In their amended pro se
complaint, the Jensens claimed (1) extortion; (2) fraud; (3) violations of the
Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962; (4) civil
conspiracy; (5) violations of the Fair Credit Reporting Act, 15 U.S.C. § 1681,
et seq.; (6) breach of the implied covenant of good faith and fair dealing; and
(7) unjust enrichment. They sought money damages, as well as declaratory and
injunctive relief, and eventually moved to amend their complaint a second time.
The district court denied leave to amend on grounds of futility and dismissed the
action with prejudice for failure to state a claim, see Fed. R. Civ. P. 12(b)(6).
The Jensens now appeal, arguing that they could establish their fraud claim if
allowed to engage in discovery. 2
“We review de novo a district court’s dismissal under Federal Rule of Civil
Procedure 12(b)(6).” Leverington v. City of Colo. Springs, ___ F.3d ___, 2011
WL 1678070, at *2 (10th Cir. May 5, 2011). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, ‘to state a
1
We afford the Jensens’ pro se pleadings and materials a liberal
construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
2
The Jensens’ failure to advance any argument to support their other claims
forfeits appellate review of those claims. See United States v. Yelloweagle,
___ F.3d ___, 2011 WL 1632095, *at 5 (10th Cir. May 2, 2011); see also Garrett
v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (“This
court has repeatedly insisted that pro se parties follow the same rules of procedure
that govern other litigants.” (brackets and quotation omitted)).
-2-
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937,
1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A
claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. at 1949. Although the complaint need not recite
“detailed factual allegations, . . . the factual allegations must be enough to raise a
right to relief above the speculative level.” Christy Sports, LLC v. Deer Valley
Resort Co., 555 F.3d 1188, 1191 (10th Cir. 2009) (quotation omitted).
The district court determined that the Jensens’ fraud claim was implausible
and failed to satisfy the heightened pleading standard of Federal Rule of Civil
Procedure 9(b). See Fed. R. Civ. P. 9(b) (“In alleging fraud or mistake, a party
must state with particularity the circumstances constituting fraud or mistake.”);
see also United States ex rel. Sikkenga v. Regence Bluecross Blueshield of Utah,
472 F.3d 702, 726–27 (10th Cir. 2006) (stating that Rule 9(b) requires a plaintiff
to “set forth the time, place, and contents of the false representation, the identity
of the party making the false statements and the consequences thereof” (internal
quotation marks omitted)). The court reasoned that the Jensens offered only
“labels and conclusions . . . devoid of factual enhancement,” and “broad, vague,
and conclusory allegations [that failed to] meet the stricter requirements of Rule
9(b).” R., Vol. 1 at 273. We agree with this assessment.
-3-
The amended complaint generally alleged that “Defendants established a
pattern and practice of harming [the Jensens].” Id. at 44. Among other things,
the Jensens accused defendants of failing to properly credit their mortgage
payments or correctly calculate their interest charges. They also charged
defendants with manipulating their payment history to simulate a default and
denying them an adjustment on their interest rate. Once the Jensens were in
default, the amended complaint says defendants refused to stop foreclosure
proceedings, even after the Jensens paid the amount due. To support their fraud
claim, the Jensens averred that “Defendants individually and/or through [their]
authorized agents” made “false and misleading” statements “prior to and after the
Notice of Default and Election to Sell.” Id. at 48. The alleged misrepresentations
pertained to the extent of the Jensens’ delinquency, their likelihood of completing
a loan modification process, and the time it would take to complete that process.
As the district court correctly observed, these are “the type of ‘unadorned,
the-defendant-unlawfully-harmed-me accusation[s]’ . . . rejected by the Supreme
Court.” Id. at 272 (quoting Iqbal, 129 S. Ct. at 1949). There are no allegations
identifying the culpable defendants or their incriminating misconduct; nor are
there any facts setting forth “the who, what, when, where and how of the alleged
fraud,” Sikkenga, 472 F.3d at 727. Rather, the Jensens simply speculate that
defendants and/or their agents collectively engaged in various instances of
wrongdoing that eventually culminated in the foreclosure of their home. While
-4-
this might suggest “that some plaintiff could prove some set of facts in support of
the pleaded claims, . . . the complaint must give the court reason to believe that
this plaintiff has a reasonable likelihood of mustering factual support for these
claims.” Robbins v. Okla., 519 F.3d 1242, 1247 (10th Cir. 2008) (quotation
omitted). As pleaded, the amended complaint “has alleged—but it has not
shown—that the [Jensens are] entitled to relief.” Iqbal, 129 S. Ct. at 1950
(quotations omitted). It follows, then, that the Jensens fail to meet the heightened
pleading standard of Rule 9(b).
The Jensens do not attempt to bolster the sufficiency of their complaint on
appeal. They refer to no facts to substantiate their allegations of harm and cite no
specifics underlying their claim of fraud. Instead, they maintain their broad
accusations against defendants collectively, and summarily conclude that the
district court erred because it misunderstood the foreclosure process. Though
they insist they could establish their fraud claim with discovery, our pleading
standard “does not unlock the doors of discovery for a plaintiff armed with
nothing more than conclusions.” Iqbal, 129 S. Ct. at 1949. And while we do not
doubt the veracity of the Jensens’ allegations, the broad and conclusory nature of
those allegations preclude us from evaluating the merit of their claim. Simply
put, the Jensens failed to plead their fraud claim with the particularity required to
satisfy our pleading standard, and their appellate brief does not address that
deficiency. Accordingly, having reviewed the record, the parties’ appellate
-5-
materials, and the district court’s well-reasoned order, we AFFIRM the district
court for substantially the same reasons articulated in the court’s order dated
July 8, 2010. 3
Entered for the Court
David M. Ebel
Circuit Judge
3
To the extent the Jensens appeal the denial of their request to amend on
futility grounds, we perceive no abuse of discretion. See United States ex rel.
Ritchie v. Lockheed Martin Corp., 558 F.3d 1161, 1166 (10th Cir. 2009).
-6-
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180 Ariz. 187 (1993)
883 P.2d 424
Robert PEREZ, as Personal Representative of Anne M. Perez, Deceased, Plaintiff/Appellee/Cross-Appellant,
v.
SOUTHERN PACIFIC TRANSPORTATION COMPANY, a Delaware corporation, Defendant/Appellant/Cross-Appellee.
No. 2 CA-CV 93-0008.
Court of Appeals of Arizona, Division 2, Department A.
December 21, 1993.
Review Denied November 1, 1994.
Miller, Pitt & McAnally, P.C. by Philip Hall and Jonathan Reich, Tucson, for plaintiff/appellee/cross-appellant.
Byrne, Beaugureau, Shaw, Zukowski & Hancock, P.C. by Anthony J. Hancock and Amy Schwartz, Phoenix, for defendant/Appellant/cross-appellee.
*188 OPINION
FERNANDEZ, Judge.
This appeal and cross-appeal arise from a judgment entered, following a trial to the court, in favor of appellee/cross-appellant Robert M. Perez, as personal representative of Anne M. Perez, on his claim for strict liability for an abnormally dangerous activity against appellant/cross-appellee Southern Pacific Transportation Company and denying his claims for negligence and products liability.
Southern Pacific filed a third-party complaint to allocate the liability among various suppliers and manufacturers of asbestos and asbestos-containing products. The complaint was served on the third-party defendants, but dismissed prior to trial and is not part of this appeal.
Southern Pacific argues that the court's finding of strict liability for abnormally dangerous activity was error as a matter of law. On cross-appeal, Perez argues the court erred in finding that the claim for products liability was barred by the statute of repose, A.R.S. § 12-551. We reverse and remand.
FACTS
The undisputed facts are that Anne Perez's death at age 59 in 1991 resulted from mesothelioma, a form of cancer caused by exposure to asbestos. Mesothelioma has a latency period prior to clinically manifested symptoms of 25 to 40 years. Perez resided in the family home until her marriage in 1951; the disease was diagnosed in May 1989. Perez's father, Rafael Montenegro, worked for Southern Pacific Railroad in Tucson from 1923 to 1954. From 1931 to 1951, while working as a boilermaker, Montenegro was exposed to asbestos-containing insulation materials used in the repair and maintenance of steam locomotives.
During repair and maintenance, asbestos-containing insulation was removed and reinstalled in the back shop of Southern Pacific's Tucson rail yard. That process created a substantial amount of visible dust in the shop. Montenegro wore his work clothes home and hung them in the family's only bathroom prior to laundering. On occasion, Perez entered Southern Pacific's yard to deliver her father's lunch.
APPEAL
Strict Liability: Abnormally Dangerous Activity
Southern Pacific argues that, as a matter of law, the trial court erred in eliminating a foreseeability requirement before imposing strict liability for abnormally dangerous activity.
We look to the Restatement (Second) of Torts §§ 519 and 520 (1965), as authority in imposing strict liability for abnormally dangerous activity. Correa v. Curbey, 124 Ariz. 480, 605 P.2d 458 (App. 1979). Whether an activity is abnormally dangerous is not a fact question; such determinations are for the court. Cordova v. Parrett, 146 Ariz. 79, 82, 703 P.2d 1228, 1231 (App. 1985); Restatement (Second) of Torts § 520 cmt. l.
The predicate finding appellant urges on this court is not articulated directly in the Restatement. Nor do we agree that such a finding is necessary. At issue is whether the activity of asbestos-containing insulation removal and reinstallation is abnormally dangerous as a matter of law. Questions of law are reviewed de novo. Tovrea Land & Cattle Co. v. Linsenmeyer, 100 Ariz. 107, 412 P.2d 47 (1966).
Strict liability for abnormally dangerous activities is a distinct legal theory. It is not a claim for strict products liability alleging that a product was in a defective condition and unreasonably dangerous. It is not a claim alleging that the defendant was engaged in inherently dangerous activities; such activities are not within a strict liability concept. Rather, they involve a negligence theory which defines such activities as inherently dangerous if they present foreseeable and significant risks of harm. Good Fund Ltd.-1972 v. Church, 540 F. Supp. 519 (D.Colo. 1982), rev'd on other grounds, 703 F.2d 464 (10th Cir.1983).
The Restatement requires the court to conduct a case-by-case analysis before imposing strict liability. State Dept. of Environ. *189 Protect. v. Ventron, 94 N.J. 473, 468 A.2d 150 (1983). In such an analysis properties of the particular substance involved are not determinative, rather the defendant's activity as a whole is analyzed. Richmond, F. & P.R.R. Co. v. Davis Industries, 787 F. Supp. 572 (E.D.Va. 1992). Strict liability, then, attaches only to abnormally dangerous activities, not substances. See Indiana Harbor Belt R.R. Co. v. American Cyanamid Co., 916 F.2d 1174, 1181 (7th Cir.1990) ("ultra-hazardousness or abnormal dangerousness is, in the contemplation of the law at least, a property not of substances, but of activities").
In analyzing whether an activity is abnormally dangerous, the court must engage in a balancing test using the six factors set forth in Restatement (Second) of Torts § 520.[1]Arlington Forest Associates v. Exxon Corp., 774 F. Supp. 387, 390 (E.D.Va. 1991). The factors are interrelated and the court "should consider them as a whole, apportioning weight to each in accordance with the facts in evidence." Id.
Southern Pacific contends that liability under this theory is "strict" because it is imposed even when due care has been exercised, but it is not unlimited. We agree.
The essence of the rule of liability without fault is that if a person in the conduct or maintenance of an enterprise which is lawful and proper in itself deliberately does an act under known conditions and with knowledge that injury will in all probability result to another and injury is sustained by the other as the direct and proximate consequence of the act, the person doing the act and causing the injury is liable in damages even though he acted without negligence. Under the doctrine, liability rests not upon negligence but upon the intentional doing of that which the person knows or should in the exercise of ordinary care know may in the normal course of events reasonably cause loss to another. Liability is automatically imposed upon the tort feasor when damages are sustained by another under such circumstances, even though there was no negligence.
Zampos v. United States Smelting, Refining & Mining Co., 206 F.2d 171, 176 (10th Cir.1953). In discussing the extent of liability to be imposed under a claim of strict liability for abnormally dangerous activity, W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 79, at 559 (5th ed. 1984), states:
It is clear, first of all, that unless a statute requires it, strict liability will never be found unless the defendant is aware of the abnormally dangerous condition or activity, and has voluntarily engaged in or permitted it. Mere negligent failure to discover or prevent it is not enough....
In the present case, the court made extensive findings of fact and law. It imposed strict liability for abnormally dangerous activity, applying the "hindsight" test of Dart v. Wiebe Manufacturing, Inc., 147 Ariz. 242, 709 P.2d 876 (1985). The court's minute entry acknowledged that Dart was a products liability case, but applied its "hindsight" test of imputed knowledge for public policy reasons. Although it is attractive to analogize to the risk/benefit factors analysis used in Dart, upon which the "hindsight" test is based, we believe it is no more than an attempt to bootstrap that argument onto a totally unrelated legal theory. Without authority to support such an argument, we decline to rule that the "hindsight" test is applicable to a claim for strict liability for abnormally dangerous activity.
In the present case, then, the determination of whether an activity is abnormally dangerous under Restatement § 520 must be related to the time at which Southern Pacific engaged in the activity being analyzed.
*190 The liability arises out of the abnormal danger of the activity itself, and the risk that it creates, of harm to those in the vicinity. It is founded upon a policy of law that imposes upon anyone who for his own purposes creates an abnormal risk of harm to his neighbors, the responsibility of relieving against that harm when it does in fact occur. The defendant's enterprise, in other words, is required to pay its way by compensating for the harm it causes, because of its special, abnormal and dangerous character.
Restatement (Second) of Torts § 519 cmt. d.
We believe the court erred as a matter of law in applying the Dart hindsight test and therefore reverse and remand. Further proceedings must be based upon the Restatement test.
CROSS-APPEAL
Products Liability, Statute of Repose
Perez argues that the court erred in applying A.R.S. § 12-551, the statute of repose, to bar the wrongful death claim for products liability when there was no evidence that the product was older than 12 years and that, in any case, A.R.S. § 12-551 is unconstitutional.
Our supreme court has very recently held that § 12-551 is unconstitutional. Hazine v. Montgomery Elevator Co., 861 P.2d 625 (1993). Thus, Perez's right to sue on a products liability theory is no longer barred by the statute of repose.
Southern Pacific argues that even if the statute is unconstitutional and the action is not barred, there is no evidence that it was ever a manufacturer or a seller of a defective product that caused injury after being placed in the stream of commerce. We disagree.
A review of the record reveals that although there was some conflicting testimony regarding Southern Pacific's involvement in the design and manufacture of its steam locomotives, the court entered no factual findings on the issue. We will not weigh conflicting evidence on review; that is for the trier of fact. Imperial Litho-Graphics v. M J Enterprises, 152 Ariz. 68, 730 P.2d 245 (App. 1986). We therefore reverse and remand on that issue as well.
LIVERMORE, P.J., and LACAGNINA, J., concur.
NOTES
[1] § 520. Abnormally Dangerous Activities.
In determining whether an activity is abnormally dangerous, the following factors are to be considered:
(a) existence of a high degree of risk of some harm to the person, land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried on; and
(f) extent to which its value to the community is outweighed by its dangerous attributes.
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IN THE SUPREME COURT OF IOWA
No. 21 / 04-1323
Filed March 24, 2006
LARRY STEWART d/b/a
LARRY STEWART REALTY,
Appellant,
vs.
JEFFREY P. SISSON,
Appellee.
________________________________________________________________________
Appeal from the Iowa District Court for Floyd County, James M. Drew,
Judge.
A real estate broker appeals from a summary judgment dismissing all
claims for recovery of a commission from the sale of a business based upon
an oral agreement. REVERSED AND REMANDED.
Judith M. O’Donohoe of Elwood, O’Donohoe, Stochl, Braun & Churbuck,
Charles City, attorney for appellant.
Joel J. Yunek of Yunek Isaacson, P.L.C., Mason City, attorney for
appellee.
CADY, Justice.
In this appeal, we must decide whether an oral agreement between a
property owner and a real estate broker for the broker to procure a buyer
for the property without listing it constitutes a “listing agreement”
within the meaning of a real estate commission rule requiring such
agreements to be in writing. We conclude such an agreement is not a
“listing agreement” and, therefore, reverse the judgment of the district
court and remand for further proceedings.
I. Background Facts and Proceedings
Jeffrey Sisson owned a sports bar and restaurant in Charles City. In
early 1999, he contacted Larry Stewart about selling the restaurant.
Stewart is a licensed real estate broker in Charles City. According to the
facts accepted for the purpose of summary adjudication, Sisson told Stewart
he wanted a sales price around $615,000, and he would pay him ten percent
of the sales price if he found a buyer. However, Sisson did not want
Stewart to list the property because he thought he would lose sales and
value from the business if the public were aware it was for sale. Stewart
agreed to find a buyer, but the parties never reduced the agreement to
writing.
Stewart began looking for a buyer for the property. One person he
contacted was Michael Walter, who Stewart thought would be interested in
the business. Stewart obtained financial information about the business
from Sisson and told Sisson he intended to disclose it to Walter. Stewart
required Walter to sign an agreement to keep the information confidential
and to prevent him from negotiating directly with Sisson.
On November 13, 2001, Sisson sold the business to Walter without
notifying or involving Stewart. Stewart subsequently learned about the
sale and wrote Sisson to inquire about his commission. Sisson replied and
asked Stewart for written documentation to verify the agreement. Stewart
could not provide a writing, and further efforts to resolve the dispute
failed.
Stewart filed an action against Sisson for breach of contract in March
2002. Sisson responded by filing a motion to dismiss. He claimed Iowa
Administrative Code rule 193E—1.23 [now rule 193E—11.1] barred Stewart’s
claim. See Iowa Admin. Code r. 193E—1.23 (1997) (“All listing agreements
shall be in writing, properly identifying the property and containing all
of the terms and conditions under which the property is to be sold,
including the price, the commission to be paid, the signatures of all
parties concerned and a definite expiration date.”). Stewart resisted the
motion and filed an amended petition, adding claims of fraudulent
misrepresentation, reckless misrepresentation, breach of implied contract,
and unjust enrichment. The district court dismissed the breach-of-contract
claim in the original petition, as well as the additional claims in the
amended petition.
Stewart appealed. We transferred the case to the court of appeals.
The court of appeals reversed the district court and remanded the case for
further proceedings. Without explanation, the court of appeals concluded
“the district court was in error to grant defendant’s motion to dismiss
plaintiff’s claims.”
After remand, Sisson filed an answer to Stewart’s amended petition
and denied most of the allegations. Sisson then filed a motion for summary
judgment. He again claimed rule 193E—1.23 barred Stewart’s claims.[1]
Stewart resisted the motion. He claimed his agreement with Sisson was not
subject to the writing requirement of the rule because it was not a
“listing agreement,” and in any event, the rule was invalid and
unconstitutional.
The district court granted summary judgment in favor of Sisson. It
held that the oral agreement between Stewart and Sisson was subject to the
writing requirement of the rule. In addition, the court held the rule was
not unconstitutional. Finally, the court concluded Stewart was not
permitted to recover under any theory because the purpose of the rule would
be defeated. Stewart appealed.
II. Standard of Review
We review rulings granting summary judgment for correction of errors
at law. Otterberg v. Farm Bureau Mut. Ins. Co., 696 N.W.2d 24, 27 (Iowa
2005) (citing In re Estate of Graham, 690 N.W.2d 66, 69-70 (Iowa 2004)).
A motion for summary judgment should only be granted if, viewing the
evidence in the light most favorable to the nonmoving party, “the
pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.”
Id. (quoting Iowa R. Civ. P. 1.981(3); citing Wernimont v. Wernimont, 686
N.W.2d 186, 189 (Iowa 2004)).
III. Discussion
The premise for the district court’s decision was that the agreement
between Stewart and Sisson was a “listing agreement” under rule 193E—1.23.
We have previously held that this administrative rule makes oral listing
agreements unenforceable upon proper objection. Hubbell Commercial
Brokers, L.C. v. Fountain Three, 652 N.W.2d 151, 156 (Iowa 2002) (citing
Milholin v. Vorhies, 320 N.W.2d 552, 554 (Iowa 1982)). The district court
considered the motion for summary judgment as an objection and relied upon
this authority to dismiss the contract claim, as well as all other
companion claims. See Maynes Real Estate v. McPherron, 353 N.W.2d 425, 426-
27 (Iowa 1984) (holding brokers cannot recover for quantum meruit under
properly-objected-to oral listing agreement; reasoning “the legislative
intent underlying section 1.23 was to forbid any recovery by a broker or
sales agent under an oral agreement” (emphasis added)). But see
Restatement (Second) of Torts § 530 cmt. c, at 64-65 (1977) (stating
misrepresentation claims are still viable when contract and quasi-contract
claims fail due to the lack of a writing); W. Page Keeton et al., Prosser
and Keeton on the Law of Torts § 109, 764 & n.7 (5th ed. 1984) (opining
that rules barring recovery on oral contracts should not also bar tort
claim of misrepresentation because “the policy which invalidates the
promise is not directed at cases of dishonesty in making it”). Thus, we
must decide if the district court properly applied the law. See Westfield
Ins. Cos. v. Econ. Fire & Cas. Co., 623 N.W.2d 871, 876 (Iowa 2001)
(stating when we review for correction of errors at law, “we determine
whether the district court correctly applied the law” to the undisputed
facts).
Rule 193E—1.23, entitled “Listings,” is an administrative rule
promulgated by the Iowa Real Estate Commission pursuant to its rulemaking
authority under Iowa Code section 543B.9 (1999). “[R]ules properly adopted
by the commission have the force of a statute.” Hubbell Commercial
Brokers, L.C., 652 N.W.2d at 155 (citing Milholin, 320 N.W.2d at 553). In
construing an administrative rule, “[a]s with a statute, we seek to
ascertain and give effect to the intent of the drafters” and “construe it
liberally ‘to promote its objects and assist the parties in obtaining
justice.’ ” Rodgers v. Baughman, 342 N.W.2d 801, 805 (Iowa 1983) (quoting
Iowa Code § 4.2 (1983)).
Rule 193E—1.23 provides:
All listing agreements shall be in writing, properly identifying the
property and containing all of the terms and conditions under which
the property is to be sold, including the price, the commission to be
paid, the signatures of all parties concerned and a definite
expiration date. It shall contain no provision requiring a party
signing the listing to notify the broker of the listing party’s
intention to cancel the listing after such definite expiration date.
An exclusive agency or exclusive right to sell listing shall clearly
indicate that it is such an agreement. A legible copy of every
written listing agreement or other written authorization shall be
given to the owner of the property by a licensee as soon as reasonably
practical after the signature of the owner is obtained.
Iowa Admin. Code r. 193E—1.23. Thus, at least with respect to “listing
agreements,” the rule changes the common law, which recognized the
enforceability of oral brokerage agreements. Maynes Real Estate, Inc., 353
N.W.2d at 426 (citing McHugh v. Johnson, 268 N.W.2d 225, 227 (Iowa 1978)).
We have said that rule 193E—1.23 “is analogous to the statute of frauds
applicable to contracts.” Hubbell Commercial Brokers, L.C., 652 N.W.2d at
156 (citing Milholin, 320 N.W.2d at 554); see also Rodgers, 342 N.W.2d at
805 (“[L]ike a statute of frauds the rule is intended to be available as a
shield and not a sword.” (citing Warder & Lee Elevator, Inc. v. Britten,
274 N.W.2d 339, 342 (Iowa 1979))). “The rule essentially means that a
broker must normally comply with the requirements of the rule to recover a
commission. The rule both protects the public and provides guidance for
brokers in their business dealings with the public.” Hubbell Commercial
Brokers, L.C., 652 N.W.2d at 156 (citing Milholin, 320 N.W.2d at 554).
In Hubbell, we observed that “[t]he term ‘listing agreement’ is not a
defined phrase under chapter 543B or the commission rules.” Id. We did
not define the term, but concluded that it did not encompass agreements
between brokers. Id. at 157. We also noted:
The language of the rule as a whole is consistent with the common
definition of a listing agreement as “[a]n agreement between a
property owner and an agent, whereby the agent agrees to try to secure
a buyer or tenant for a specific property at a certain price and terms
in return for a fee or commission.”
Id. (quoting Black’s Law Dictionary 943 (7th ed. 1999)).
The primary, and dispositive, issue presented on appeal is whether an
agreement to procure a buyer without listing the property is a listing
agreement under rule 193E—1.23. The structure of the rule itself reveals
that it is not. The definitional provision of the real estate commission’s
rules provides different definitions for “listing broker” and “selling
broker.” Compare Iowa Admin. Code r. 193E—1.1 (“‘Listing broker’ means the
real estate broker who obtains a listing of real estate or of an interest
in a residential cooperative housing corporation.”), with id. (“‘Selling
broker’ means a real estate broker who finds and obtains a buyer in a
transaction.”). In addition, while rule 193E—1.23 applies to “listing
agreements,” a different rule—rule 193E—1.42—applies to “brokerage
agreements.” Rule 193E—1.42 similarly provides that “[a]ll brokerage
agreements shall be written.” Id. r. 193E—1.42 (1997). Rule 193E—1.1
defines “brokerage agreement” as “a contract between a broker and a client
which establishes the relationship between the parties as to the brokerage
services to be performed.” Id. r. 193E—1.1; accord Iowa Code § 543B.5(8).
The Code defines “brokerage services” as:
1. Sell[ing], exchang[ing], purchas[ing], rent[ing], or
leas[ing] real estate.
2. List[ing], offer[ing], attempt[ing], or agree[ing] to list
real estate for sale, exchange, purchase, rent, or lease.
3. Advertis[ing] or hold[ing] oneself out as being engaged in
the business of selling, exchanging, purchasing, renting, leasing, or
managing real estate.
4. Negotiat[ing], or offer[ing], attempt[ing], or agree[ing] to
negotiate, the sale, exchange, purchase, rental, or lease of real
estate.
5. Buy[ing], sell[ing], offer[ing] to buy or sell, or otherwise
deal[ing] in options on real estate or improvements on real estate.
6. Collect[ing], or offer[ing], attempt[ing], or agree[ing] to
collect, rent for the use of real estate.
7. Assist[ing] or direct[ing] in the procuring of prospects,
intended to result in the sale, exchange, purchase, rental, or leasing
of real estate.
8. Assist[ing] or direct[ing] in the negotiation of any
transaction intended to result in the sale, exchange, purchase,
rental, or leasing of real estate.
9. Prepar[ing] offers to purchase or purchase agreements,
listing contracts, agency disclosures, real property residential and
agricultural rental agreements, real property commercial rental
agreements of one year or less, and groundwater hazard statements,
including any modifications, amendments, or addendums to these
specific documents.
Iowa Code § 543B.3; see id. § 543B.5 (defining “brokerage services” as
“those activities listed in sections 543B.3 and 543B.6”); see also id.
§ 543B.6 (incorporating acts set out in section 543B.3).
This scheme is instructive. The distinction made between selling and
listing brokers and the broad definition of brokerage services shows that
listing property for sale is just one of many brokerage services that a
broker can provide to a client. See id. § 543B.3(1)-(8). This indicates
that a listing agreement is just one type of brokerage agreement between a
broker and a client. Clearly, the rules and statutes distinguish between
“listing” property and other brokerage services, and we must give this
distinction meaning in defining agreements relating to the services. Thus,
the statutory and regulatory framework reveals that the term “listing
agreements” under rule 193E—1.23 would not encompass agreements between a
broker and a client in which the parties agree not to “list” the property.
To conclude otherwise would render the listing-agreement rule a virtual
nullity because listing agreements would necessarily be covered by the
brokerage-agreement rule. See In re Interest of G.J.A., 547 N.W.2d 3,
6 (Iowa 1996) (“The ‘statute should not be construed so as to make any part
of it superfluous unless no other construction is reasonably possible.’ We
will presume the legislature enacted each part of the statute for a purpose
and intended that each part be given effect. [Furthermore, w]e will not
presume that the legislature intended words in the statute be given a
redundant meaning.” (Citations omitted.)); Messina v. Iowa Dep’t of Job
Serv., 341 N.W.2d 52, 56 (Iowa 1983) (“Generally, the rules of statutory
construction and interpretation also govern the construction and
interpretation of rules and regulations of administrative agencies.”
(Citation omitted.)). Agreements to perform brokerage services other than
“listing” the property are “brokerage agreements” under rule 193E—1.42, but
are not “listing agreements” under rule 193E—1.23.
The remaining question is what it means to “list” a property. The
Minnesota Supreme Court has held that “listing,” in the context of
Minnesota’s real-estate-license statute, means using a compiled and
published list of properties and their descriptions “for the purpose of
attempting to meet the individual needs of some specifically identified
seller, buyer, landlord, or tenant.” State v. Beslanowitch, 248 N.W.2d
286, 288 (Minn. 1976). Other authorities are in agreement. See Leo
Eisenberg & Co. v. Payson, 732 P.2d 1128, 1130 (Ariz. Ct. App. 1987) (“A
listing agreement is a form of agency agreement and employment in which the
agent agrees to expose a property to the market in consideration of payment
of his commission if a sale or lease is made.” (Citation omitted.)); Jae
K. Shim et al., Dictionary of Real Estate 168 (1996) (defining “list” as:
“To secure a listing by a real estate agent for a certain parcel of
property”; defining “listing” as: “Legal contract with a property owner
empowering a real estate agent in selling, leasing, or mortgaging the
principal’s property. A listing has a legal description of the property,
is valid for a specified time and gives the details of the sale.”). See
generally Grempler v. Multiple Listing Bureau of Harford County, Inc., 266
A.2d 1, 3 (Md. 1970) (“Multiple listing is a device used by the real estate
broker to give wide exposure to properties listed for sale. Each
cooperating broker informs all other participating brokers of the
properties listed with him, thus an individual home for sale is available
to purchasers at several different brokers’ offices.”). These authorities
reveal that real estate would not be “listed” when a broker is not
permitted to disclose the sale of the property to the general public, but
is only permitted to privately disclose the sale to those persons the
broker considers to be potential buyers.
Applying this principle to this case, we conclude rule 193E—1.23 did
not apply to the agreement between Stewart and Sisson. An agreement that
provides the property is not to be “listed” is not a “listing agreement.”
A listing “agreement is called a ‘listing’ agreement because the broker
obtains the right to place the seller’s property on the broker’s list of
properties for sale.” George Lefcoe, Real Estate Transactions 63 (2d ed.
1997).
Stewart stated in his affidavit resisting the motion for summary
judgment that Sisson did not want to “list” his restaurant because he did
not want to detract from his daily business. We must accept this as true
for purposes of summary judgment. INNK Land & Cattle Co. v. Kenkel, 493
N.W.2d 818, 819 (Iowa 1992). Viewing the facts in the light most favorable
to Stewart, we conclude the district court erred in concluding Stewart and
Sisson had a listing agreement. Consequently, rule 193E—1.23 was
inapplicable to the case, and the district court erred in concluding that
it barred Stewart from recovery. Likewise, this same error reveals the
district court erred in dismissing the companion claims.
As previously observed, rule 193E—1.42 also requires “brokerage
agreements” to be in writing. Thus, it is possible to proceed to determine
if the oral agreement in this case is a “brokerage agreement”[2] and, if
so, to then decide if the failure to reduce the agreement to writing
precludes enforcement of the agreement, as with listing agreements.
However, in his motion for summary judgment, Sisson did not raise rule
193E—1.42 as a ground to deny enforcement of the agreement, or argue that
the oral agreement, if not a listing agreement, should be denied
enforcement as a brokerage agreement. In addition, Sisson did not make any
argument in his statement of undisputed facts or memorandum of law that
rule 193E—1.42 barred Stewart’s claims. Sisson’s claim for summary
judgment was based solely on rule 193E—1.23. The district court did not
rule on the issue, but rather, based it decision to dismiss all of
Stewart’s claims on the applicability of rule 193E—1.23.
Our limited role as an appellate court acts to constrain our ability
to decide issues not presented to the district court. See Estate of Harris
v. Papa John’s Pizza, 679 N.W.2d 673, 679 (Iowa 2004) (reversing summary
judgment because the sole ground raised in the motion was erroneous,
declining to consider issue not raised in motion, and remanding for further
proceedings); DeVoss v. State, 648 N.W.2d 56, 61 (Iowa 2002) (holding we
can affirm on a ground not relied on by the district court, but only if the
ground was raised in district court); Conkling v. Standard Oil Co., 138
Iowa 596, 600, 116 N.W. 822, 824 (1908) (“[T]he case must be considered in
this court following the line of the theory on which it was tried in the
court below; and this we feel constrained to say, although the point is not
made by counsel for appellee. In justice to the trial court, if on no
other ground, we will not permit a party to mend his hold after coming into
this court, and seek to advantage himself on grounds not suggested on the
trial below.”); cf. In re Detention of Hodges, 689 N.W.2d 467, 469 (Iowa
2004) (“The general rule is ‘that an appellate court will not consider
grounds for a motion for directed verdict which the movant did not place
before the trial court.’ ” (quoting Podraza v. City of Carter Lake, 524
N.W.2d 198, 202 (Iowa 1994))). This constraint is based on fairness and
provides the essential symmetry and balance to our judicial process.[3] It
is not for us to decide substantive issues not raised by the parties, but
to decide issues first presented to the district court. See Pond v.
Anderson, 241 Iowa 1038, 1049, 44 N.W.2d 372, 379 (1950) (“[O]ur duty is
merely to pass upon the errors assigned and not to review the evidence de
novo nor decide the case as we might think it should be decided.”).
IV. Conclusion
The agreement between Stewart and Sisson was not a “listing
agreement.” Rule 193E—1.23 did not apply, and the district court erred in
dismissing the claims by Stewart on that basis. We reverse the judgment of
the district court and remand for further proceedings.
REVERSED AND REMANDED.
-----------------------
[1]Sisson acknowledged in his motion for summary judgment that he had
contacts with Stewart concerning the sale of the business and presumed for
purposes of summary judgment that he and Stewart had an agreement as
alleged by Stewart. However, Stewart does not argue on appeal that the
agreement is removed from the coverage of rule 193E—1.23, as a judicial
admission of the existence of an oral contract, which can by analogy remove
a contract from the statute of frauds. See Catamount Slate Prods., Inc. v.
Sheldon, 845 A.2d 324, 328 (Vt. 2003) (“Under the judicial admission
exception, a court can enforce an otherwise unenforceable oral agreement
when the party against whom enforcement is sought admits the existence of
the agreement.” (citing 10 Richard A. Lord, Williston on Contracts § 27:10,
at 69-70 (4th ed. 1999))); accord E. Allan Farnsworth, Contracts § 6.7, at
396-97 (3d ed. 1999) (discussing exception); 73 Am. Jur. 2d Statute of
Frauds § 478, at 166 (2001) (“[A] defendant waives the right to assert the
statute of frauds if the defendant’s counsel stipulates the facts showing
that an agreement has, in fact, been reached.”); cf. Gardner v. Gardner,
454 N.W.2d 361, 363 (Iowa 1990) (applying exception). Accordingly, we do
not need to decide whether there is such an exception to the rule. See
Aluminum Co. v. Musal, 622 N.W.2d 476, 479 (Iowa 2001) (“It is a well-
established rule of appellate procedure that ‘[t]he scope of appellate
review is defined by the issues raised by the parties’ briefs.’ ”
(Citations omitted.)).
[2]In arguing that the oral agreement was not a listing agreement,
Stewart acknowledged it was a brokerage agreement. Notwithstanding, he
claimed it was not required to be in writing because the current rule
covering brokerage agreements, rule 193E-11.3, did not go into effect until
September 4, 2002. Stewart is correct that the effective date of the rule
was after the date of the oral agreement, but rule 193E-11.3 was not a new
rule in 2002; it was just renumbered. Its predecessor, rule 193E-1.42, was
in effect in 1999 when Stewart and Sisson made their agreement. See Iowa
Admin. Code r. 193E—1.42 (1997).
[3]The fairness rationale is readily apparent in this case. Stewart
alternatively argued that rule 193E—1.23 was unconstitutional. If we
proceeded to apply rule 193E—1.42 to resolve the appeal, Stewart would not
only be deprived of the opportunity to make arguments specifically directed
at rule 193E—1.42 but would be deprived of the opportunity to challenge the
application of the rule as unconstitutional. Appellate courts will not
address a claim that a statute is unconstitutional when it was not first
raised at trial. Fairness dictates that both parties be given an
opportunity to reframe their arguments in light of our determination that a
listing agreement was not involved in this case.
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In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2044
B RIAN N ELSON,
Plaintiff-Appellant,
v.
C ARL M ILLER,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 03-C-254—Clifford J. Proud, Magistrate Judge.
A RGUED F EBRUARY 25, 2009—D ECIDED JULY 1, 2009
Before F LAUM, W ILLIAMS, and T INDER, Circuit Judges.
F LAUM, Circuit Judge. Illinois prisoner Brian Nelson
sued Chaplain Carl Miller in his official and individual
capacities for alleged violations of his rights under the
free exercise and establishment clauses of the First Amend-
ment, the Religious Land Use and Institutionalized
Persons Act (“RLUIPA”), and the Illinois Religious Free-
dom Restoration Act (“IRFRA”). Nelson requested declara-
tory and injunctive relief as well as monetary damages.
2 No. 08-2044
Magistrate Judge Clifford Proud entered partial summary
judgment in favor of defendant, and, after a bench trial
on the remaining issues, found against Nelson on all
counts. Nelson appeals. For the reasons explained below,
we affirm in part, reverse in part, and remand for
further proceedings.
I. Background
A. Factual History
The relevant facts are undisputed by the parties.
Brian Nelson is a prisoner at Tamms Correctional Center,
a “super max” prison located in Tamms, Illinois. Tamms
Institutional Directive 04-25-101, § II(I)(1) provides that
“[c]ommitted persons shall be permitted to abstain from
any foods the consumption of which violates their
required religious tenets.” Requests for a religious diet
must be in writing, give specific details as to the
applicable religious tenets involved, and be confirmed
by a faith representative. The Directive states that
“[s]hould further review [of the dietary request] be
needed, the facility chaplain and the religious faith repre-
sentative may interview the committed person.”
When Nelson was incarcerated in 1983, he formally
designated himself a Catholic. In the late 1990s, plaintiff
took a greater interest in his faith. In accordance with
Nelson’s understanding of Catholicism, there are three
methods of penance: giving alms, works of charity, and
acts of abstinence. Given his incarceration, plaintiff rea-
soned that the only ways he could engage in penance
No. 08-2044 3
were prayer and abstaining from eating meat. Thus, upon
arriving at Tamms in 1998, plaintiff requested a meatless
diet on Fridays throughout the year as an act of penance.
Nelson subsequently began studying the teachings of
Cistercian monks 1 and other religious orders who
followed the teachings and example of St. Benedict. (St.
Benedict was the patron saint of plaintiff’s childhood
parish and school.) Plaintiff’s study of St. Benedict caused
him to write to Tamms Chaplain Carl Miller on April 23,
2001, requesting that, in accordance with his Roman
Catholic upbringing and beliefs, he be given a diet free
of “flesh meat on Fridays” as an act of penance. Plaintiff’s
letter indicated that Father Fortenberry, the Catholic
chaplain at Tamms, supported and encouraged such acts
of penance. In apparent recognition of prison dietary
policies, plaintiff stated that he would accept a “vegetar-
ian/religious no meat diet for all meals.”
Tamms offers only the “regular” diet (which may or
may not contain meat at any given meal), a vegan diet
(containing no animal or animal by-products), and some
medical diets. Due to security concerns at Tamms,
special diets are kept to a minimum to prevent the intro-
duction of contraband, and to prevent an inmate’s cell
1
Cistercian Monks, or the Religious of the Order of Cîteaux, are
a Benedictine reform religious order. The order was established
in 1098 for the purpose of restoring as far as possible the
literal observance of the Rule of St. Benedict. See The
Catholic Encyclopedia, Cistercians, available at http://
www.newadvent.org/cathen/03780c.htm.
4 No. 08-2044
location from being identified by tracing the delivery of a
special food tray. Bonnie Sullivan, the registered dietician
responsible for dietary services at Tamms, explained
that in 2002, the regular diet included chicken, turkey,
fish and a limited amount of beef, as well as animal
by-products such as eggs and cheese. Pork and pork
by-products have not been included in the regular diet
at Tamms since January 1999, per the warden, “in an
effort to eliminate confusion related to the use of pork.”
Starting in 2004, beef was eliminated from the regular
diet, except for beef-soy patties and beef-soy meatballs.
The vegan diet contains no animal or animal by-products,
and there is the option to receive either dairy or soy milk.
Defendant Miller is an ordained Lutheran minister
and has been head chaplain at Tamms since January 2000.
In an effort to conform with the Tamms Institutional
Directives, Chaplain Miller reviewed requests for
religious diets, cross-checking the inmate’s declared
religious affiliation to determine if a religious diet was
required. Miller looked for confirmation of the religious
dietary tenet “on paper”—that is, he looked for confirma-
tion of the requirement in some “church document”—as
opposed to inquiring regarding the spiritual goals of
the inmate.
In a memo dated May 2, 2002, Miller denied plaintiff’s
request for a meatless diet all the time or on all Fridays.
Miller explained, “there are many ways to do penance,”
and plaintiff was free to “choose to not eat meat . . . on
Fridays.” Miller further explained that “a religious diet
without meat all the time or every Friday . . . is not re-
No. 08-2044 5
quired by the Roman Catholic faith nor does Jesus of God’s
Word command abstention from meat on Fridays for
penance.” Miller went on to suggest that plaintiff read
“I Timothy 4:1-5,” 2 and cited other biblical passages
purportedly illustrating “examples of true penance.”
According to Miller, abstaining from meat on Fridays
did not appear in Christian scripture as an act of penance.
Miller testified that if a Christian inmate of no specific
denomination (as opposed to a Catholic) requested a
special diet and cited scriptural passages that supported
the dietary requirement, such a diet would likely be
approved, because that person would not be bound by
the tenets of a particular denomination. But if a prisoner’s
beliefs conflicted with the traditional tenets of his
declared religion, Chaplain Miller would look for
written substantiation of the variation within that faith
group.
Plaintiff filed an administrative grievance on May 8,
2002. Nelson complained that, as a Roman Catholic, he
2
1 Timothy 4:1-5 states:
Now the Spirit explicitly says that in the last times some
will turn away from the faith by paying attention to deceit-
ful spirits and demonic instructions through the hypocrisy
of liars with branded consciences. They forbid marriage and
require abstinence from foods that God created to be
received with thanksgiving by those who believe and
know the truth. For everything created by God is good,
and nothing is to be rejected when received with
thanksgiving, for it is made holy by the invocation of God
in prayer.
6 No. 08-2044
was forbidden to eat “flesh meat” on Fridays and during
Lent, and that non-Catholic chaplains were imposing their
beliefs upon him. Plaintiff wanted a non-meat diet on
Fridays and during Lent, but he again indicated his
willingness to accept a vegan diet on a daily basis for the
sake of Tamms’s convenience. In support of his request
for a religious diet, plaintiff cited a religious reference
document and Father Fortenberry, the Catholic priest
serving Tamms. Nelson also noted that Muslims and
Buddhists at Tamms were permitted vegan diets and did
not have to “eat around meat” as Nelson felt he was
required to do. Plaintiff offered an alternate remedy: “ ’OR’
stop making special allowances for certain religions
that affect all prisoners such as no pork because of Mus-
lims!!!” Nelson’s grievance was denied at the institutional
level, and ultimately by the Illinois Department of Cor-
rections Administrative Review Board.
Nelson continued his religious studies and learned that
there are two different penitential dietary requirements
under the Rule of St. Benedict: (1) abstention from eating
the flesh of four-legged animals, which most Benedictines
follow; and (2) abstention from all meat, which the
Cistercian monks follow. On July 20, 2002, Nelson again
wrote to Chaplain Miller, directing Miller’s attention to
the Rule of St. Benedict No. 39, which states that “every-
one, except the sick who are very weak, [should] abstain
entirely from eating the meat of four-footed animals.”
Plaintiff accused Miller of forcing Miller’s beliefs on him,
and asked that his request be presented to the Religious
Advisory Board, an administrative body that advises
the Illinois Department of Corrections on religious matters.
No. 08-2044 7
According to the testimony of both Nelson and Miller,
some requests for a religious diet at Tamms are auto-
matically granted, without providing any substantiation.
For example, upon request, declared Muslims and Black
Hebrew Israelites are automatically given the vegan diet.
According to Miller, the practice of automatically ap-
proving such requests existed before he became Senior
Chaplain. He testified that he continued the practice as
a courtesy, and because of his understanding of the
impracticality of preparing food in accordance with the
procedures mandated by those religions. However, Miller
acknowledged that not all Muslims adhere to the Muslim
dietary requirement of “halal,” and he stated that he
considers that their choice. Miller also acknowledged
that in the past he has approved vegan diets for some
Buddhist inmates without a precise statement that the
vegan diet was a religious requirement. Miller stated
that he seeks verification when he does not know the
tenets of a particular religion.
Plaintiff’s July 2002 request to Chaplain Miller was
unsuccessful. Plaintiff continued to appeal to Chaplain
Miller, writing in August 2002 that it is his belief that
eating meat on Fridays is a mortal sin. In support of his
August letter, plaintiff offered Chaplain Miller a letter
from Father Fortenberry indicating Fortenberry’s belief
that it is “permissible & highly recommended that [any
Catholic] follow the diet [prescribed by the Rule of St.
Benedict].” Father Dominic J. Roscioli, a personal friend of
plaintiff and his family, wrote to Chaplain Miller in
support of permitting plaintiff to eat a vegetarian diet
based on plaintiff’s Catholic faith and the Rule of St.
8 No. 08-2044
Benedict. Father Roscioli explained that the original
Benedictines and modern Cistercians and Trappists are
vegetarians, and equated plaintiff’s life in prison to the life
of a monk “outside the walls” of a monastery. Father
Roscioli stated: “If a person truly believes that a certain
diet (which is really a discipline) will lead to becoming
a disciple of our Lord Jesus Christ, I pray that neither
you or I would stand in the way of God’s Spirit at work
in that person’s life.” Chaplain Miller did not give the
letters from Father Fortenberry and Father Roscioli any
weight, choosing instead to rely on the religious docu-
mentation plaintiff submitted, which required a special
diet only when living in a monastery.
Plaintiff lodged a second grievance on September 15,
2002. Plaintiff essentially complained that Chaplain Miller
had denied his request for a religious diet out of ignorance,
having failed to consult Father Fortenberry or the Rule
of St. Benedict. Plaintiff explained that his religious
beliefs—as a Catholic following the Rule of St. Benedict—
forbade eating “the flesh meat of four[-]legged animals.” In
denying the grievance at the institutional level, prison
officials noted that plaintiff had declared himself a “Catho-
lic,” and, per Chaplain Miller, until plaintiff could
establish that he was a monk, he would not receive the
requested vegan diet. The grievance was subsequently
denied by the Illinois Department of Corrections Ad-
ministrative Review Board.
In October 2002, Chaplain Miller, citing Institutional
Directive 04-25-101, emphasized to plaintiff that requested
dietary accommodations must be “requirement[s] of the
No. 08-2044 9
religion.” In a memo dated April 1, 2003, from Chaplain
Miller to Administrative Assistant Randy George regard-
ing plaintiff’s request for a “religious vegan diet” on
Fridays and during Lent, Miller continued to assert that
the Roman Catholic faith does not require abstaining
from meat on Fridays, except on Fridays during Lent
(which Miller approved). Chaplain Miller further rea-
soned that because plaintiff was not a monk, he was not
required to adhere to the Rule of St. Benedict.
However, on April 12, 2006, at the explicit direction of
the warden, Miller approved a vegan diet for Nelson. But
Miller testified at the bench trial that he still does not
believe that plaintiff should receive a vegan diet and,
therefore, except for the warden’s directive, he would
continue to deny a vegan diet.
Nelson testified that he weighed 161 pounds when he
entered Tamms. But during the time period he was
denied a vegan diet, Nelson abstained from eating all
meat and his weight dropped to as low as 119 pounds.
According to plaintiff, he was hospitalized three times
due to his weight loss; the first time during Lent in the
Spring of 2002, when he abstained from all meat, and a
second time about a month and a half later. However,
Nelson offered no documentation or medical evidence
of causation at summary judgment. In any event, Nelson
testified that he felt hungry during this time period, his
bones began to protrude, he was cold, and he was de-
pressed and anxious. After Nelson began receiving
the religious diet in April 2006, he was able to eat full
meals again and quickly regained the weight he had lost.
10 No. 08-2044
Plaintiff acknowledged that he could eat chicken, turkey,
fish, eggs and dairy foods and remain in compliance
with the admonition in the Rule of St. Benedict against
eating the meat of four-legged animals. However, plaintiff
noted that often skipping the meat on his meal tray also
required skipping a substantial portion of the meal, for
example when spaghetti with meat sauce was served.
Dietician Bonnie Sullivan testified that if a prisoner
abstained from all meat of four-legged animals, the
regular diet would be nutritionally adequate. But Sullivan
opined that there probably was insufficient nutrition in
the regular diet plan if all meat were skipped. A menu
for the spring cycle in 2004 was submitted by the defen-
dant. Although the menu is “subject to change” and
substitutions of “like items” occur, on nine days during
the 91-day cycle two of the three daily meals appear to
contain the meat of four-legged animals; on three of those
days all three meals contain the meat of four-legged
animals. There was no testimony regarding the nutritional
impact of having to skip items such as spaghetti with
meat sauce.
In November 2005, Nelson filed a grievance com-
plaining that Muslims were allowed to receive the
special Christmas day food but Christians were not
allowed to receive special food that marked Muslim
holidays. The warden and Administrative Review Board
denied this grievance. According to dietician Bonnie
Sullivan, the Muslim feasts amount to little more than
receiving extra fruit or an extra dessert in celebration of
the end of their month-long abstention from eating
lunch. With respect to the Christmas meal, Sullivan
No. 08-2044 11
indicated it was her decision that everyone could have
whatever meal was served for Christmas.
B. Procedural History
On February 20, 2003, Nelson filed a pro se complaint
in the Circuit Court of Alexander County, Illinois. Defen-
dants removed to federal court and the parties consented
to final disposition by a magistrate judge.
Defendant moved for partial summary judgment on
several grounds. Miller alleged that with regard to Nel-
son’s Section 1983 and RLUIPA claims, Nelson had failed
to exhaust his administrative remedies as required by
the Prison Litigation Reform Act (“PLRA”). Although
defendant conceded that Nelson had filed at least two
grievances regarding his diet that had been properly
appealed to the Director, he contended that plaintiff had
not properly “connected the dots” by filing a final griev-
ance which detailed his belief that he wished to abstain
from all meat. (Miller did not request summary judgment
for failure to exhaust as to Nelson’s IRFRA claim, which
was not subject to PLRA exhaustion requirements.)
Regarding remedies, Miller argued that injunctive
relief was moot, that damages against him in his official
capacity were barred under Section 1983, RLUIPA, and
IRFRA, and finally, that he was protected by qualified
immunity.
In its summary judgment ruling, the district court
agreed that Nelson had not exhausted portions of his
Section 1983 and RLUIPA claims. The district court held
that Nelson’s grievances only described his religious
12 No. 08-2044
beliefs as requiring that he abstain from meat on Fridays
and during Lent and from the flesh of four-legged animals
at all times, and concluded that it would consider his free
exercise claim only to that extent. As to remedies, the
district court found that the Eleventh Amendment
barred an award of damages against Miller in his official
capacity under Section 1983 and RLUIPA but held that
IRFRA allowed for damages against a state official. The
district court found that it was too early to conclude
whether Miller was entitled to qualified immunity.
The case was tried before the Magistrate Judge. On
March 31, 2008, the Magistrate Judge issued an order
finding against Nelson on all claims.
II. Discussion
We review the district court’s grant of partial summary
judgment to Nelson de novo. See Patton v. MFS/Sun Life
Fin. Distribs., 480 F.3d 478, 485 (7th Cir. 2007). Summary
judgment is appropriate only if the evidence presents no
issue of material fact, so that the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(c). The
moving party is entitled to summary judgment if no
reasonable fact-finder could return a verdict for the
nonmoving party. See Patton, 480 F.3d at 485 (citing Ander-
son v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986) and
Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1139 (7th
Cir. 1997)).
In an appeal from the district court’s judgment
following a bench trial, “we review the district court’s
conclusions of law de novo, and we review its findings
No. 08-2044 13
of fact, as well as applications of law to those findings of
fact, for clear error.” Trustees of the Chi. Painters & Decora-
tors Pension v. Royal Int’l Drywall & Decorating, 493 F.3d
782, 785 (7th Cir. 2007) (internal brackets, quotation
marks, and citation omitted).
A. Exhaustion
In its summary judgment opinion, the district court
found that Nelson had exhausted his grievances
regarding (1) his belief that he must abstain from all meat
on Fridays and during Lent (the May 2002 grievance),
(2) his belief that he must abstain from the meat of four-
legged animals at all times (the September 2002 grievance),
and (3) his complaint that he suffered discrimination
because non-Christians were allowed to receive the
special Christmas day food but Christians were not
allowed to receive special food that marked Muslim
holidays (the November 2005 grievance). The district court
found that Nelson had not exhausted his request for a
vegan diet based on his later-evolved belief that he
must not eat any meat.3
Nelson does not contest the district court’s ruling on
exhaustion with respect to Section 1983 and RLUIPA
(which are subject to the PLRA exhaustion requirements),
3
Nelson’s beliefs evolved to this point apparently at some time
after he filed his initial complaint in this case and he did not
state this new belief until he filed objections to the magistrate
judge’s report recommending denial of his motion for a pre-
liminary injunction.
14 No. 08-2044
but argues that his IRFRA claim is not subject to those
same requirements and that his IRFRA claim should
thus be understood as based on his broader belief that he
should abstain from all meat. Defendant defends the
district court’s ruling on exhaustion, even with regard
to the IRFRA claim, arguing that Nelson did not
describe his current belief (barring any consumption of
meat) in any prison grievance.
Ultimately, this rather narrow dispute is immaterial to
our analysis. The only difference it could make to this
appeal is if we found that the denial of a request for a
vegan diet based on Nelson’s desire to abstain from all
meat was a substantial burden under IRFRA while the
denial of a request for a vegan diet based on Nelson’s
desire to abstain from the meat of four-legged animals
and to avoid all meat on Fridays and during Lent was not
a substantial burden under IRFRA. Because we find, as
explained below, that Nelson’s free exercise (including
IRFRA) rights were substantially burdened by the denial
of his request even on the narrower, clearly exhausted
basis, we need not explore whether he exhausted the
broader basis of his request at this time.4
4
Although, as explained, it is not necessary to our analysis on
the merits, if we did analyze the IRFRA exhaustion issue, it
appears that Nelson sufficiently apprised defendant of his
desire to receive a meatless diet to satisfy exhaustion under
IRFRA. The parties agree that the governing case here is Strong
v. David, 297 F.3d 646 (7th Cir. 2002). In that case, we observed
that at the time during which Nelson filed his grievances, Illinois
had not “established any rule or regulation prescribing the
(continued...)
No. 08-2044 15
4
(...continued)
contents of a grievance or the necessary degree of factual
particularity.” Id. at 650. (Defendants do not assert that Tamms
had implemented such a standard at the time either.) Strong held
that in Illinois, “[w]hen the administrative rulebook is silent, a
grievance suffices if it alerts the prison to the nature of the
wrong for which redress is sought.” Id. We stated that a grievant
need not “lay out the facts, articulate legal theories, or demand
particular relief. All the grievance need do is object intelligibly
to some asserted shortcoming.” Id. Here, Nelson’s grievances
explained his religious beliefs and outlined his desire to abstain
from meat on Fridays and later to abstain from the meat of “four
footed animals.” But Nelson also repeatedly stated that he
would accept a vegetarian diet every day “to ease any burden on
Tamms/IDOC” and to “ease security concerns.” These state-
ments would certainly appear to put defendant on notice that
Nelson was requesting a meatless diet under Strong’s generous
notice pleading standard. See, e.g., Riccardo v. Rausch, 375 F.3d
521, 524 (7th Cir. 2004) (en banc) (finding that prisoner’s
grievance—which stated that “[t]he administration don’t [sic] do
there [sic] job. [A sexual assault] should’ve never [sic] happen
again.”—although “at the border of intelligibility,” sufficed to
put defendants on notice of prisoner’s claim that defendants
failed to protect plaintiff from sexual assault) (citing Strong, 297
F.3d at 650). Moreover, Miller stated in response to Nelson’s first
dietary request that “a religious diet without meat all the time or
every Friday . . . is not required by the Roman Catholic
faith . . . .” (emphasis added), which shows that Miller under-
stood Nelson to be requesting a meatless diet. Thus, it appears
that Nelson’s grievances were sufficient to put Miller on notice
of Nelson’s claim, under IRFRA, that he was wrongly denied a
meatless diet based on his religious beliefs.
16 No. 08-2044
B. Substantial Burden: First Amendment, RLUIPA and
IRFRA Claims
Section 1983 First Amendment, RLUIPA and IRFRA
claims all use the substantial burden test to determine
whether a violation of a plaintiff’s religious free exercise
rights has occurred. Although RLUIPA and IRFRA do not
define “substantial burden,” both statutes have been
interpreted with reference to Supreme Court free exercise
jurisprudence. See, e.g., 146 Cong. Rec. S7776 (daily ed.
July 27, 2000) (joint statement of Senators Hatch and
Kennedy indicating that Supreme Court free exercise
jurisprudence was a proper interpretational guide for
RLUIPA); Diggs v. Snyder, 775 N.E.2d 40, 44-45 (Ill. App. Ct.
2002) (using United States Supreme Court free exercise
jurisprudence to determine the meaning of “substantial
burden” under IRFRA).
In its order following the bench trial, the district court
held that Nelson was not substantially burdened by the
denial of his request for a meatless diet. Specifically,
the district court found that Nelson would receive a
nutritionally adequate diet if he avoided all meat of four-
legged animals served in the regular diet at Tamms.
Section 3 of RLUIPA provides that:
No government shall impose a substantial burden on
the religious exercise of a person residing in or con-
fined to an institution, . . . even if the burden results
from a rule of general applicability, unless the govern-
ment demonstrates that imposition of the burden on
that person (1) is in furtherance of a compelling gov-
ernmental interest; and (2) is the least restrictive
No. 08-2044 17
means of furthering that compelling governmental
interest.
42 U.S.C. § 2000cc-1(a). The essentially identical IRFRA
states that:
Government may not substantially burden a person’s
exercise of religion, even if the burden results from a
rule of general applicability, unless it demonstrates
that application of the burden to the person (i) is in
furtherance of a compelling governmental interest
and (ii) is the least restrictive means of furthering
that compelling governmental interest.
775 Ill. Comp. Stat. 35 § 15.
Nelson argues that his exercise of religion was sub-
stantially burdened in two ways. First, he argues that he
was substantially burdened by the requirement that he
provide documentation of a religious requirement in
order to receive a dietary accommodation. The district
court did not analyze this argument, though Nelson
appears to have raised it below. Second, Nelson argues
that he was substantially burdened by the denial of his
requested meatless diet. Defendant argues that Nelson
was not substantially burdened on either basis because
his religious exercise was not rendered “effectively imprac-
ticable” by defendant’s policies and conduct.
1. Substantial Burden: Dietary Request Procedural
Requirements
Nelson contends that he was substantially burdened by
the procedures for obtaining a religious accommodation;
18 No. 08-2044
specifically, defendant’s requirement that he produce
documentation of a religious requirement.
In Civil Liberties for Urban Believers v. City of Chicago, 342
F.3d 752, 760-61 (7th Cir. 2003), we stated that “in the
context of RLUIPA’s broad definition of religious exercise,
a . . . regulation that imposes a substantial burden on
religious exercise is one that necessarily bears direct,
primary, and fundamental responsibility for rendering
religious exercise . . . effectively impracticable.” In Koger v.
Bryan, 523 F.3d 789 (7th Cir. 2008), we quoted language
from the Supreme Court’s decision in Thomas v. Review Bd.,
450 U.S. 707 (1981) to explain the substantial burden test,
noting that Thomas teaches that government conduct is
substantially burdensome “when it ‘put[s] substantial
pressure on an adherent to modify his behavior and
violate his beliefs.’ ” Koger, 523 F.3d at 799 (quoting Thomas,
450 U.S. at 718)).5
Koger is similar to the instant case. In Koger, we held
that it was a violation of the First Amendment and
RLUIPA for prison officials to deny an inmate’s request
for a non-meat diet on the ground that his religion
does not require such a dietary restriction.6 Id. at 797-800.
In that case, the plaintiff prisoner, Koger, belonged to a
5
Other courts of appeals have likewise applied the Thomas
standard in the context of RLUIPA. See e.g., Shakur v. Schriro, 514
F.3d 878, 888 (9th Cir. 2008); Washington v. Klem, 497 F.3d 272,
277-281 (3d Cir. 2007) (combining Sherbert and Thomas tests);
Lovelace v. Lee, 472 F.3d 174, 187 (4th Cir. 2006) (same).
6
The plaintiff in Koger apparently did not bring a state claim
under IRFRA. See Koger, 523 F.3d at 793.
No. 08-2044 19
religion known as Ordo Templi Orientis (“OTO”), which
had as its central tenet only “Do what though wilt.” Id. at
789. But Koger nonetheless believed that his practice
of OTO required him to observe a vegetarian diet. Id. at
797. In support of his request for the non-meat prison
diet, Koger submitted paperwork from OTO stating that
OTO “had no general dietary restrictions” but that “each
individual [follower] may from time to time, include
dietary restrictions as part of his or her personal regimen
of spiritual discipline.” Id. The prison nonetheless
denied Koger’s request. Id. at 794.
We held, first, that requiring a prisoner to show that his
preferred diet is compelled by his religion was unlawful, as
such a requirement was contrary to RLUIPA, which
specifically stated that “[t]he term ‘religious exercise’
includes any exercise of religion, whether or not compelled
by, or central to, a system of religious belief.” 7 Koger held,
second, that requiring a religious belief be verified by
clergy was a substantial burden because Koger’s religion
lacked traditional clergy members. Id. at 799. Importantly,
we opined that even if Koger had belonged to a religion
with more traditional clergy, “a clergy verification require-
ment forms an attenuated facet of any religious accom-
modation regime because clergy opinion has generally
7
As a side note, “[a]lthough RLUIPA bars inquiry into whether
a particular belief or practice is central to a prisoner’s
religion, . . . [it] does not preclude inquiry into the sincerity of a
prisoner’s professed religiosity.” Koger, 523 F.3d at 797 (citing
Cutter v. Wilkinson, 544 U.S. 709, 725 n.13 (2005)). Here, however,
Miller does not challenge the sincerity of Nelson’s beliefs.
20 No. 08-2044
been deemed insufficient to override a prisoner’s
sincerely held religious beliefs.” Id. at 799-800 (citing
Ford v. McGinnis, 352 F.3d 582, 593-94 (2d Cir. 2003)
(holding that the role the Eid ul Fitr feast played in a
prisoner’s practice of Islam was determinative of
whether there had been a substantial burden, and not the
testimony of Muslim clerics as to the proper celebration
of the feast); Jackson v. Mann, 196 F.3d 316, 320-21 (2d Cir.
1999) (holding that it was the sincerity of a prisoner’s
beliefs, and not the decision of Jewish religious
authorities, that determined whether the prisoner was an
adherent of Judaism entitled to a kosher meal); see also
Frazee v. Ill. Dep’t of Employment Sec., 489 U.S. 829, 834
(1989) (holding that in the context of a denial of unemploy-
ment benefits, the plaintiff’s refusal, based on his Chris-
tianity, to work on Sundays was entitled to protection
even though “there are assorted Christian denomina-
tions that do not profess to be compelled by their
religion to refuse Sunday work”)).
Koger is essentially dispositive in this case.8 Like the
prison officials in Koger, Miller required Nelson to show
that his religion compelled the practice in question and
to verify that compelled practice with documentation. As
in Koger, the first of these requirements was unlawful
under RLUIPA and the second imposed a substantial
8
We note that district court did not have the benefit of the Koger
decision when it disposed of Nelson’s claims. Koger was
decided a few weeks after the district court entered its final
judgment order.
No. 08-2044 21
burden on Nelson’s desired religious practice because it
was impossible for him to show that his religion, Catholi-
cism, required him to abstain from meat on all Fridays
or avoid the meat of four-legged animals. The Catholic
clergy who opined on the matter, Father Fortenberry
and Father Roscioli, both opined that although not re-
quired, dietary discipline was a permissible and
laudatory way for Nelson to engage in penance. Miller’s
demands that Nelson show a religious requirement and
submit documentation to that effect thus made Nelson’s
desired religious exercise “effectively impracticable.” See
Koger, 523 F.3d at 799; see also Hunafa v. Murphy, 907
F.2d 46, 47 (7th Cir. 1990) (recognizing that a prisoner
can bring a free exercise claim where he is “put to an
improper choice between adequate nutrition and obser-
vance of the tenets of his faith”).
Because we find that Nelson’s practice of his religion
was substantially burdened by Tamms’s procedural
requirements for obtaining a religious diet, we reverse
the district court in this regard.
2. Substantial Burden: Denial of Non-Meat Diet
Nelson also argues that he was substantially burdened
by the prison’s actual denial of the meatless diet. We
have held that a prisoner’s religious dietary practice is
substantially burdened when the prison forces him to
choose between his religious practice and adequate
nutrition. For example, in Hunafa v. Murphy, we held that
IDOC’s failure to ensure that the preparation of meals
kept pork separate from other food substantially
22 No. 08-2044
burdened a Muslim prisoner’s religious practice because
it forced him to “an improper choice between adequate
nutrition and the tenets of his faith.” 907 F.2d at 47. Other
circuit courts have likewise found such a choice to be
substantially burdensome. See Love v. Reed, 216 F.3d
682, 689-690 (8th Cir. 2000) (finding prison’s failure to
accommodate prisoner’s religious diet substantially
burdensome and rejecting prison’s suggestion that the
prisoner could fast as an alternative to the prison’s accom-
modation of the desired diet); McElyea v. Babbitt, 833 F.2d
196, 198 (9th Cir. 1987) (“Inmates . . . have the right to
be provided with food sufficient to sustain them in good
health that satisfies the dietary laws of their religion.”).
Here, the district court ruled that the “only relevant
religious tenet at issue [in Nelson’s free exercise claim]
is abstention [from] eating the flesh of four-legged
animals on Friday and during Lent (because of plaintiff’s
failure to exhaust administrative remedies regarding
abstention from all meat).” However, as discussed in the
exhaustion analysis above, and indeed, as the district
court itself found in both its summary judgment and
final judgment order, Nelson exhausted his grievances
with regard to his request to avoid the meat of four-
legged animals at all times and his request to avoid all
meat on Fridays and during Lent.
The district court thoroughly analyzed whether
Nelson’s avoidance of the meat of four-legged animals
imposed a substantial burden, and we do not find that
analysis to be clearly erroneous. See Trustees of the Chi.
Painters & Decorators Pension, 493 F.3d at 785 (in an
No. 08-2044 23
appeal from the district court’s judgment following a
bench trial, appellate courts review the district court’s
applications of law to its findings of fact for clear error).
Bonnie Sullivan, the Tamms dietician, testified that the
regular diet would still be nutritionally adequate if all
meat of four-legged animals were skipped, so Nelson was
not put to a choice between his religious beliefs and
adequate nutrition. See Hunafa, 907 F.2d at 47.
But looking to the other exhausted grievance, we find
that Miller’s denial of a non-meat diet on Fridays and
during Lent substantially burdened Nelson’s practice
of religion. With regard to skipping all meat, Sullivan
testified that “there probably was insufficient nutrition
in the regular diet if all meat were skipped.” Moreover,
Nelson provided undisputed testimony that during Lent
in 2002, when he abstained from all meat, he lost so
much weight that he had to be hospitalized. Nelson also
testified that during Lent he “felt hungry,” his bones
began to protrude, he was cold, and he was depressed
and anxious. Because the undisputed evidence shows, at
the very least, that Nelson would be required to forego
adequate nutrition on Fridays and for the forty days
of Lent in order to comply with his sincerely held
religious beliefs, we hold that Miller’s refusal to grant
Nelson a non-meat diet for those periods imposed a
substantial burden on his religious exercise. See, e.g., Love,
216 F.3d at 689-90 (refusing to accommodate prisoner’s
desired religious diet and consequently forcing prisoner
to fast one day each week was a substantial burden on
prisoner’s free exercise of religion).
24 No. 08-2044
3. Least Restrictive Means and Compelling Govern-
ment Interest
Because the district court found no substantial burden
on Nelson’s religious exercise, it did not analyze whether
defendant’s procedures and conduct were “in furtherance
of a compelling government interest” and “the least
restrictive means of furthering that compelling govern-
ment interest” under Section 1983, RLUIPA and IRFRA.
See Thomas, 450 U.S. at 718; 42 U.S.C. 2000cc-1(a)(1) & (2);
see also Koger, 523 F.3d at 800 (first considering
whether prisoner had established a substantial burden
and then analyzing whether prison officials had shown
that their requirements were the least restrictive means
of furthering a compelling governmental interest); 775
ILCS 35/15. Neither party has briefed this matter on
appeal. Thus, we remand this issue to the district court
for further consideration in light of this opinion.
C. Establishment of Religion
Nelson argues that Miller impermissibly favored Muslim
and African Hebrew Israelite prisoners by approving
vegan diets for those prisoners without obtaining written
verification that such diets were required by their religions.
In support of his argument of favoritism, Nelson also
notes that Muslims received special food on Islamic feast
days but Catholic holidays (aside from Christmas) went
unobserved. The district court found that Nelson had not
proven a violation of the establishment clause because
there were valid neutral reasons for Miller’s actions in
this regard.
No. 08-2044 25
The First Amendment states that “Congress shall make
no law respecting an establishment of religion . . . .” Lemon
v. Kurtzman, 403 U.S. 602, 612-13 (1971) teaches that a
government policy or practice violates the Establish-
ment Clause if (1) it has no secular purpose, (2) its primary
effect advances or inhibits religion, or (3) it fosters an
excessive entanglement with religion. The Establishment
Clause also prohibits the government from favoring
one religion over another without a legitimate secular
reason. See Linnemeir v. Bd. of Trustees of Purdue Univ., 260
F.3d 757, 759 (7th Cir. 2001); Metzl v. Leininger, 57 F.3d 618,
621 (7th Cir. 1995) (“The First Amendment does not
allow a state to make it easier for adherents of one faith
to practice their religion than for adherents of another
faith to practice their religion, unless there is a secular
justification for the difference in treatment.”).
Here, the district court found that Miller had a neutral
reason for requiring Nelson to explain and document
why he wanted a religious/vegan diet while not
requiring this of others. Tamms regulations provided
that prisoners could abstain from “any foods the con-
sumption of which violates their required religious
tenets” and the district court concluded that Miller had
required documentation because he was unfamiliar with
any Catholic “required religious tenet” which necessitated
a non-meat diet. Under the district court’s reasoning,
Miller did not ask Muslim and African Hebrew Israelite
prisoners to submit verification because he understood
from his experience that a limited diet was part of many
of these prisoners’ religious practice.
26 No. 08-2044
We find the district court’s reasoning persuasive. While,
as discussed above, Miller’s demand that Nelson submit
documentation of a religious requirement was an inap-
propriate imposition on Nelson’s free exercise, Miller’s
intent to ensure that any putative dietary accommodation
adhered to Tamms’s regulations regarding religious
diets was a secular purpose. There was no evidence
connecting Miller’s supposed favoritism to Muslims
and Black Israelites with a desire to advance those
religions or inhibit Catholicism, nor was there evidence
that Miller’s alleged favoritism actually had that effect.
However, we do note that Miller’s May 2, 2002 letter, in
which Miller cited several Bible passages purportedly
contradicting Nelson’s beliefs regarding penance, improp-
erly entangled him in matters of religious interpretation.
It simply is not appropriate for a prison official to
argue with a prisoner regarding the objective truth of a
prisoner’s religious belief. But while Miller’s correspon-
dence was inappropriate, the Supreme Court has recog-
nized that “[e]ntanglement is a question of kind and
degree.” Lynch v. Donnelly, 465 U.S. 668, 684 (1984); Agostini
v. Felton, 521 U.S. 203, 233 (1997) (noting that “[n]ot all
entanglements . . . have the effect of advancing or inhibit-
ing religion” and stating that the Court “[has] always
tolerated some level of involvement between” the state and
religion). Rather, “[e]ntanglement must be ‘excessive’
before it runs afoul of the Establishment Clause.” Id.
Miller’s one-time correspondence appears to have had
little effect on Nelson, and did not advance or inhibit
Catholicism generally. It cannot be said to have fostered
“excessive entanglement.” We therefore affirm the judg-
No. 08-2044 27
ment of the district court with regard to Nelson’s estab-
lishment claim.
D. Remedies
Since Nelson has shown that Miller substantially bur-
dened his free exercise of religion, we move to the
question of remedies. Nelson seeks declaratory and
injunctive relief as well as damages against Miller in his
official and individual capacities under Section 1983,
RLUIPA, and IRFRA. As the analysis below explains,
the only remedies available to him are declaratory relief
and damages against Miller in his individual capacity
under Section 1983 and, possibly, IRFRA.
1. Injunctive Relief
The district court found that Nelson’s request for injunc-
tive relief was moot because he was receiving a non-meat
diet, but that Nelson’s request for declaratory judgment
would survive as a predicate for an award of damages.
Plaintiff contends that his request for injunctive relief
is not moot because his religious diet could be revoked
at any time.
It is well established that a defendant’s voluntary
cessation of a challenged practice does not necessarily
moot a case. See Friends of the Earth, Inc. v. Laidlaw Environ-
mental Services, Inc., 528 U.S. 167, 189 (2000); Vincent v. City
Colleges of Chicago, 485 F.3d 919, 925 (7th Cir. 2007) (“Vol-
untary cessation of unlawful activity does not moot
28 No. 08-2044
every request for prospective relief . . . .”) (citing United
States v. W.T. Grant Co., 345 U.S. 629 (1953) and United
States v. Raymond, 228 F.3d 804, 813-15 (7th Cir. 2000)).
Rather, “the court must decide whether the complained-of
conduct may be resumed.” Id., 485 F.3d at 925.
Here, Miller approved a non-meat diet “[b]ased on the
seriousness of [plaintiff’s] religion” but testified that he
did so only because the Tamms warden had directed
him to do so. Miller stated that if he were allowed to
make the decision, he would still deny Nelson’s request
because he does not believe a special diet to be a “require-
ment” of Nelson’s religion. Nonetheless, it is undisputed
that Nelson currently receives a non-meat diet and there
is no evidence in the record that the diet will be revoked.
A court’s power to grant injunctive relief only survives
if such relief is actually needed. “The necessary determina-
tion is that there exists some cognizable danger of recur-
rent violation, something more than the mere possibility.”
W.T. Grant Co., 345 U.S. at 633; Milwaukee Police Ass’n v.
Jones, 192 F.3d 742, 748 (7th Cir. 1999). As stated, Nelson
currently receives a non-meat diet and there is no
evidence that Tamms intends to revoke Nelson’s
religious diet. Indeed, the cost of further litigation of this
matter to the state would seem to be a significant deter-
rent to such action. Moreover, as this opinion makes
clear, Miller’s belief that a religious diet must be based
on a religious “requirement” is erroneous. Going forward,
Miller is on notice that he cannot lawfully base a denial
on the lack of such a requirement, so revocation of the
diet, again, appears particularly unlikely.
No. 08-2044 29
While it is of course theoretically possible that the
warden will reverse his decision and Miller will revoke
Nelson’s non-meat diet on some other basis, that possibil-
ity is supported only by speculation and not evidence.
See In re Associated Press, 162 F.3d 503, 511 (7th Cir. 1998)
(requiring a “reasonable expectation that the same com-
plaining party would be subjected to the same action
again”) (quoting Weinstein v. Bradford, 423 U.S. 147, 149
(1975)); Sossamon Lone Star State of Texas, 560 F.3d 316,
325 (5th Cir. 2009) (stating, in an inquiry regarding
mootness of injunctive relief in an RLUIPA case, that the
court “will not require some physical or logical impos-
sibility that the challenged policy will be reenacted
absent some evidence that the voluntary cessation is a
sham for continuing possibly unlawful conduct”). We
therefore affirm the district court’s finding that Nelson’s
claim for injunctive relief is moot.
Declaratory relief survives as a predicate for damages,
and we therefore proceed to the other remedies issues.
See Crue v. Aiken, 370 F.3d 668, 677 (7th Cir. 2004) (“When
a claim for injunctive relief is barred but a claim for
damages remains, a declaratory judgment as a predicate
to a damages award can survive”).
2. Official Capacity Claims: Sovereign Immunity
Under Section 1983, RLUIPA, and IRFRA
Defendant argues that Nelson’s claim for damages
against him in his official capacity are barred under Section
1983 (a point conceded by Nelson), RLUIPA and IRFRA.
In its summary judgment order, the district court held
30 No. 08-2044
that the Eleventh Amendment barred claims for damages
against Miller in his official capacity under RLUIPA
but held that IRFRA allows damages against the State.
Plaintiff argues that he should be able to obtain
official capacity damages against Nelson under both
RLUIPA and IRFRA.
a. RLUIPA
For purposes of sovereign immunity, “a suit against a
state official in his or her official capacity is . . . no different
than a suit against the State itself.” Will v. Mich. Dep’t of
State Police, 491 U.S. 58, 71 (1989). A suit against a state
may be brought in federal court only when (1) a state
official is sued for prospective equitable relief under
Ex Parte Young, 209 U.S. 123, 159-60 (1908); (2) Congress
abrogates the State’s immunity pursuant to its powers
under section 5 of the Fourteenth Amendment; or (3) the
State consents and waives its immunity. See, e.g., Gary A v.
New Trier High School, 796 F.2d 940 (7th Cir. 1986). The
first two avenues are inapplicable here, because Ex parte
Young does not apply to claims for damages, see Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101-03 (1984),
and because Congress enacted RLUIPA under its Article I
powers, not the Fourteenth Amendment, see Bd. of Trustees
of the Univ. of Alabama v. Garrett, 531 U.S. 356, 364 (2001);
Cherry v. Univ. of Wis. Sys. Bd. of Regents, 265 F.3d 541, 554
(7th Cir. 2001) (“Congress cannot override the States’
immunity using an Article I power . . . .”). However,
Plaintiff claims that the third avenue applies because
the State has waived its immunity and consented to suit.
No. 08-2044 31
Section 3 of RLUIPA states that no government may
impose a substantial burden on prisoners’ religious
exercise “in a program or activity that receives Federal
financial assistance,” 42 U.S.C. § 2000cc-1(b)(1), or in a way
that affects interstate commerce, id. § 2000cc-1(b)(2).
Regarding remedies, the statute provides that prisoners
“may assert a violation of [RLUIPA] . . . and obtain appro-
priate relief against a government.” Id. § 2000cc-2(a) (empha-
sis added). The question here is whether the term “appro-
priate relief” is sufficiently specific to waive a state’s
sovereign immunity to a suit for damages.
In analyzing whether a sovereign has waived its im-
munity, we strictly construe the scope of any alleged
waiver in favor of the sovereign. Lane v. Pena, 518 U.S. 187,
192 (1996). We may “not enlarge the waiver beyond what
the language [of the statute] requires.” Library of Congress
v. Shaw, 478 U.S. 310, 318 (1986) (internal citations and
quotation marks omitted). Consent to suit cannot be
implied, see id., and ambiguities are construed in favor
of immunity, see United States v. Nordic Village, 503 U.S.
30, 34 (1992).
There is a division of authority regarding whether
states have waived their sovereign immunity to a suit for
damages under RLUIPA. In Benning v. Georgia, the Elev-
enth Circuit held that RLUIPA’s reference to “appropriate
relief” was specific enough to constitute a waiver. 391
F.3d 1299, 1305-06 (11th Cir. 2004). Benning held that
RLUIPA’s reference to “appropriate relief against gov-
ernment” “unambiguously required states to waive their
sovereign immunity from suits filed by prisoners” under
32 No. 08-2044
the statute. Id. at 1305. A few years later, in Smith v. Allen,
502 F.3d 1255 (11th Cir. 2007), the Eleventh Circuit re-
treated a bit from Benning’s analysis, this time reasoning
that because Congress had not clearly stated what reme-
dies were included in “appropriate relief,” the court
should presume that such relief included money dam-
ages. Id. at 1270-71.
The Fourth and Fifth Circuits have taken a contrary
view. In Madison v. Virginia, 474 F.3d 118, 130-33 (4th Cir.
2006), the Fourth Circuit reasoned that the phrase “appro-
priate relief” is subject to multiple interpretations, and
while it was willing to infer that states understood this
phrase to include injunctive relief, the phrase fell short of
“the unequivocal textual expression necessary to waive
State immunity from suits for damages.” Id. at 132. The
court noted that the statute makes no reference to mone-
tary relief or sovereign immunity, and that if Congress
had wished to obtain a waiver for damages from states
as a consequence of accepting funds, it easily could
have expressed that intention. Id. (citing the Civil Rights
Act of 1991, 42 U.S.C. § 1981a(a)(2) (2000)). By using the
“open-ended” term “appropriate relief,” RLUIPA
“foreclose[d] any argument that the statute waive[d]
immunity for monetary relief.” Id. (citation omitted);
see also Webman v. Federal Bureau of Prisons, 441 F.3d 1022,
1026 (D.C. Cir. 2006) (holding that the federal Religious
Freedom Restoration Act’s identical “appropriate relief”
provision insufficient to waive federal sovereign
immunity for damages suits). In Sossamon v. The Lone
Star State of Texas, the Fifth Circuit likewise found sover-
eign immunity to bar a suit against state officials in
No. 08-2044 33
their official capacities under RLUIPA. 560 F.3d at 331. The
court noted that the ordinary rule when interpreting
a statute—that a court presumes a statute affords all
ordinary remedies not expressly disclaimed—does not
apply when inquiring whether a state waived its immu-
nity. Id. Rather, damages must be “expressly provided” in
the statute in order for a court to find that a state has
waived immunity to such suits. Id.; see also Scott v. Beard,
252 Fed. Appx. 491, 492-93 (3d Cir. 2007) (holding
without discussion that the Eleventh Amendment
barred official capacity damages under RLUIPA).
We find the Fourth and Fifth Circuits’ analysis convinc-
ing. The term “appropriate relief” is open to several
interpretations and does not provide the “unequivocal
textual expression” necessary to effect a sovereign’s waiver
to suits for damages. Nelson tries to distinguish Madison by
noting that it relied on the Supreme Court’s decision in
Lane, which dealt with federal, not state, immunity from
suit. But plaintiff does not explain why this distinction
matters to the underlying analysis. Indeed, the Supreme
Court has explicitly stated that “[i]n considering whether
the Eleventh Amendment applies . . . cases involving the
sovereign immunity of the Federal Government . . . pro-
vide guidance.” California v. Deep Sea Research, Inc., 523
U.S. 491, 506 (1998).
Because a statutory reference to “appropriate relief” does
not provide the “unequivocal textual expression” neces-
sary to effect a waiver of sovereign immunity to suits for
damages, we affirm the district court’s judgment that
Miller is shielded from a monetary judgment in his
official capacity under RLUIPA.
34 No. 08-2044
b. IRFRA
Miller concedes that IRFRA allows for monetary dam-
ages against him in his official capacity, but contends that
the federal courts do not have jurisdiction over such a
suit because the Illinois Court of Claims possesses exclu-
sive jurisdiction of all claims against the state itself
that are founded on state law. The district court did not
address this argument at length, finding only that “IRFRA
leaves open the possibility of monetary damages.”
Our case law acknowledges that the Illinois Court of
Claims “possesses exclusive jurisdiction of all claims
against the state itself.” Nelson v. Murphy, 44 F.3d 497, 505
(7th Cir. 1995) (citing 705 ILCS 505/8). We have also
recognized that Illinois courts treat suits against a public
employee in his official capacity as suits against the state.
Id. (Suits against employees in their personal capacity, by
contrast, are not considered suits against the state. Id.)
Thus, it appears that the Illinois Court of Claims has
exclusive jurisdiction over the suit against Miller for
damages in his official capacity.
Plaintiff’s only response to this conclusion is his argu-
ment that the Court of Claims cannot provide the “judicial
relief”contemplated by IRFRA 9 because it is not part of
9
IRFRA states the following with regard to judicial remedies
under the statute:
Judicial relief. If a person’s exercise of religion has been
burdened in violation of this Act, that person may assert
(continued...)
No. 08-2044 35
the Illinois judiciary but rather is an agency created by
the legislature. To support his argument, Nelson quotes
the Illinois Court of Claims Act, which states that “any
person who files a claim in the court shall, before
seeking final determination of his or her claim exhaust
all other remedies and sources of recovery whether ad-
ministrative or judicial; . . .” 705 ILCS 505/25. Plaintiff
claims that this portion of the Act distinguishes the
Court of Claims from the “judiciary” because it requires
a claimant to exhaust all “judicial” remedies before filing
in the Court of Claims. But this argument is a non-starter:
requiring exhaustion of other judicial remedies does not
mean Court of Claims proceedings are “non-judicial” any
more than requiring exhaustion of other administrative
remedies means that such proceedings are “non-adminis-
trative.” Because it appears that the Court of Claims
possesses exclusive jurisdiction over a suit against
Miller in his official capacity, and because Nelson has
offered no compelling counter-arguments, we remand
this portion of Nelson’s suit to the district court for dis-
missal.
9
(...continued)
that violation as a claim or defense in a judicial proceeding
and may obtain appropriate relief against a government.
775 ILCS 35/20.
36 No. 08-2044
3. Individual Capacity Claims: RLUIPA 1 0
Miller argues that Nelson may not pursue his RLUIPA
claim against Miller in his individual capacity because
RLUIPA was passed pursuant to Congress’s Spending
Clause power and cannot subject a state official to liability
in his personal capacity. Nelson argues that the terms of
RLUIPA clearly evidence Congress’s intent to create a
cause of action against individuals and that the Spending
Clause allows for such suits.
As an initial matter, we find analysis of RLUIPA under
the Spending Clause to be appropriate in this case. All
circuits to consider whether RLUIPA is a valid Spending
Clause enactment have concluded that it is constitu-
tional under at least that power. See Smith, 502 F.3d at 1274
n.9 (analyzing RLUIPA under the Spending Clause and
finding analysis under the Commerce Clause inappropriate
in that case); Sossamon, 560 F.3d at 328 n.34 (same); Madi-
son, 474 F.3d at 124 (approving of enactment under the
Spending Clause, but not passing on a Commerce Clause
authority); Cutter v. Wilkinson, 423 F.3d 579, 584-90 (6th
Cir. 2005) (same); Benning, 391 F.3d at 1313 (same); Charles
v. Verhagen, 348 F.3d 601, 606-11 (7th Cir. 2003) (same);
Mayweathers v. Newland, 314 F.3d 1062, 1066-70 (9th Cir.
10
Defendant does not contest that Plaintiff may be entitled to
damages against him in his personal capacity under Section
1983. The parties have not addressed whether Nelson may
pursue a claim against Nelson in his individual capacity under
IRFRA in federal court. This will be an appropriate issue for
the district court to resolve upon remand.
No. 08-2044 37
2002) (same)). Like the Eleventh and Fifth Circuits, we
find analysis of RLUIPA under the Spending Clause to be
appropriate in this case. Although RLUIPA ostensibly
includes Commerce Clause underpinnings as well, see 42
U.S.C. § 2000cc-1(b), there is no evidence in this case
that Miller’s denial of a religious diet “affect[ed] . . .
commerce with foreign nations, among the several States,
or with Indian tribes.” Id. Thus, it strikes us as appropriate,
at least in this case, to interpret RLUIPA as an exercise of
Congress’s power under the Spending Clause. See Smith,
502 F.3d at 1274 n.9 (reasoning that RLUIPA should be
analyzed as an exercise of Congress’s Spending Clause
authority when there is no evidence of an effect on inter-
state or international commerce); Sossamon, 560 F.3d at
328 n.34 (same).
We now turn to the more specific issue: whether
RLUIPA could properly subject state officials to suit in
their individual capacities. RLUIPA authorizes relief
against “governments.” RLUIPA defines “government” as:
(i) a State, country, municipality, [etc.] . . .
(ii) any branch, department, agency, instrumentality, or
official of an entity listed in clause (i); and
(iii) any other person acting under color of State law.
42 U.S.C. § 2000cc-5(4)(a). As Miller concedes, this lan-
guage appears to authorize suit against him in his in-
dividual capacity because the third prong allows for
suits against “person[s] acting under color of State law”
even apart from those persons as “official[s]” as described
in the second prong. Indeed, this court found in Mack v.
38 No. 08-2044
O’Leary that identical language in the federal RFRA
entitled a prisoner to sue prison officials in their
individual capacities. 80 F.3d 1175, 1177 (7th Cir. 1996),
vacated on other grounds by O’Leary v. Mack, 522 U.S.
801 (1997). But even if the language of the statute contem-
plates individual capacity liability, we still must address
the question of whether a statute enacted pursuant to
the Spending Clause should be interpreted as imposing
individual liability on persons who do not, themselves,
receive federal funds.
The Spending Clause of the Constitution provides, in
pertinent part, that “Congress shall have the Power To
lay and collect Taxes, Duties, Imposts and Excises, to pay
the Debts and provide for the common Defence and
general Welfare of the United States.” U.S. CONST. art I.,
§ 8, cl. 1. Pursuant to this authority, the Supreme Court
has held that “Congress may attach conditions on the
receipt of federal funds” and may “further its broad policy
objectives by conditioning receipt of federal moneys
upon compliance by the recipient with federal statutory
and administrative directives.” South Dakota v. Dole, 483
U.S. 203, 206 (1987) (citation and quotations omitted).
Congress’s Spending legislation typically grants federal
funds to state institutions in exchange for the state’s
compliance with certain conditions. Such legislation
has been described as creating a “contract” between the
federal government and the state that receives the federal
funds. See, e.g., Pennhurst, 451 U.S. at 17; Floyd v. Waiters,
133 F.3d 786, 789 (11th Cir. 1998) (citation omitted), vacated
on other grounds, 525 U.S. 802, reinstated at 171 F.3d 1264
No. 08-2044 39
(11th Cir. 1999). As a result, “[t]he legitimacy of Congress’
power to legislate under the spending power [] rests on
whether the State voluntarily and knowingly accept[ed]
the terms of the ‘contract.’” Pennhurst, 451 U.S. at 17.
The two circuit court decisions that have addressed this
constitutional issue with regard to RLUIPA, Smith and
Sossamon, both found that state officials could not be held
liable in their individual capacities under the statute.1 1 In
Smith, the Eleventh Circuit began by analogizing cases
in which plaintiffs sought damages under Title IX, which
was also enacted pursuant to Congress’s Spending Clause
power. The Eleventh Circuit had previously held that
Title IX did not allow a private cause of action against a
defendant in his individual capacity because individual
defendants were not the “recipients” of the federal funds
and thus were not parties to the “contract” created by state
acceptance of the funds. Id. at 1273-74 (citing Floyd, 133
F.3d at 789 (“Because the contracting party is the grant-
receiving local school district, a Title IX claim can only
11
The Ninth Circuit appears to have assumed that RLUIPA
allows for individual capacity suits because it affirmed a
district court’s grant of qualified immunity to a defendant
official under the statute. Campbell v. Alameida, 295 F. App’x 130,
131 (9th Cir. 2008). The great number of district courts that
have considered this question have been split, but few have
considered the constitutional issue, instead focusing merely on
the language of the statute. See, e.g., Agrawal v. Briley, No. 02-C-
6807, 2006 WL 3523750 (N.D. Ill. Dec. 6, 2006) (summarizing
split of authority but not discussing constitutional issue).
40 No. 08-2044
be brought against the grant-recipient . . . and not an
individual”)). Based on this analogy, the Eleventh Circuit
concluded that “a construction of RLUIPA providing for
individual liability raises substantial constitutional con-
cerns” and consequently held that “a provision that
derives from Congress’ Spending Power cannot be con-
strued as creating a private action against individual
defendants for monetary damages.” Id. at 1275 (citing
Floyd, 133 F.3d at 789).1 2
The Sossamon court agreed with Smith. It first noted that
the Fifth Circuit had already adopted the rule that Spend-
ing Clause legislation can only generate liability for
funding grant recipients. Sossamon, 560 F.3d at 328, 328
n.35 (citing Pederson v. LSU, 213 F.3d 858, 876 (5th Cir.
2000) and Rosa H. v. San Elizario Indep. Sch. Dist., 106 F.3d
648, 654 (5th Cir. 1997)). It also believed that an inter-
pretation of RLUIPA that disallowed individual capacity
suits avoided the federalism and accountability
12
Our own circuit has also held in the Title IX context that “only
a grant recipient” can violate the statute. See Smith v. Metropoli-
tan Sch. Dist. Perry Township, 128 F.3d 1014 (7th Cir. 1997). But
we came to this conclusion not based on limitations of Con-
gress’s Spending Clause power but rather because the terms of
Title IX prohibited discrimination “only by a ‘program or
activity’ receiving federal funding.” Id. at 1018; see also Jennings
v. Univ. of North Carolina, 444 F.3d 255, 268 n.9 (4th Cir. 2006)
(“Title IX was enacted pursuant to Congress’ spending power
and prohibits discriminatory acts by funding recipients. Because
school officials are not funding recipients under Title IX,
school officials may not be sued in their individual capacities
under Title IX.”) (emphasis added).
No. 08-2044 41
concerns implicated by an alternative interpretation. Id.
at 328-29. As the court explained:
[I]f a congressional enactment could provide the basis
for an individual’s liability based only on the agree-
ment of (but not corresponding enactment of legisla-
tion by) a state, then important representation
interests protected by federalism would be under-
mined. After passively acquiescing in the regulation
of its citizens under a federal standard to receive
needed funding from Congress, a state legislature
could point its finger at the federal government for
tying needed funds to an undesired liability—the
regulation or law responsible for such liability not
having been enacted by the state. Congress could
reciprocate by pointing its finger at the state
legislature for accepting the funds and visiting
liability on its citizens by the state’s own choice, even
though the state itself did not enact the law or regula-
tion in question. Such an approach blurs the lines
of decisional responsibility; that, in turn, undermines
the popular check on both state and federal legisla-
tures.
Id. at 329 (footnotes omitted). The Fifth Circuit thus
held that “Congressional enactments pursuant to the
Spending Clause do not themselves impose direct
liability on a non-party to the contract between the
state and the federal government.” Id. (emphasis in origi-
nal); see also, e.g., Moxley v. Town of Walkersville, 601 F.
Supp. 2d 648, 660 (D. Md. 2009) (agreeing with the ratio-
nale in Smith, and holding that a personal capacity suit
42 No. 08-2044
may is not available against an individual defendant under
RLUIPA); Pugh v. Goord, 571 F. Supp. 2d 477, 507 (S.D.N.Y
2008) (finding the reasoning in Smith to be convincing, and
concluding that RLUIPA does not provide for money
damages against defendants in their individual capacities);
Boles v. Neet, 402 F. Supp. 2d 1237, 1240 (D. Colo. 2005)
(“The Court understands [RLUIPA] to permit cases against
a governmental entity, but not against an individual
officer, except perhaps in his or her official capacity.”).
Despite this weight of authority, Nelson argues that
we should nonetheless allow Miller to be held
individually liable because, as an employee of the state,
Miller was a “third party beneficiary” of the “contract”
created between the federal government and Illinois
when Illinois accepted RLUIPA funds. Plaintiff contends
that “[j]ust as third party beneficiaries to a contract have
a right to sue for damages caused by a breach of a
contract to which they are not a party, so do citizens
have a right to damages when state officials violate the
‘contract’ implied in spending clause legislation.” But we
have rejected this argument before. In Smith v. Metropolitan
Sch. Dist. Perry Twp., we stated that the fact that a
statute “ ‘was enacted pursuant to Congress’s spending
power is evidence that it prohibits discriminatory acts only
by grant recipients.’ ” 128 F.3d 1014, 1019 (7th Cir. 1997)
(holding that Title IX did not allow for damages against
school officials in their individual capacities) (quoting
Rowinsky v. Bryan Indep. Sch. Dist., 80 F.3d 1006, 1012 (5th
Cir. 1996)). Significantly, in Metropolitan Sch. Dist., we
quoted approvingly the Fifth Circuit’s Rowinsky decision,
No. 08-2044 43
which stated that “ ‘[w]hile it is plausible that the [federal
government’s Title IX funding conditions] could encom-
pass ending discriminatory behavior by third parties, the
more probable inference is that the condition prohibits
certain behavior by the grant recipients themselves.’ ” Id.
(emphasis added) (quoting Rowinsky, 80 F.3d at 1012-13).
Moreover, we remain concerned that interpreting
RLUIPA to allow for suits against officials in their personal
capacities could implicate significant federalism and
accountability concerns, as voiced by our colleagues in
Smith and Sossamon. See Smith, 502 F.3d at 1275 n.10 (citing
Daker v. Ferrero, 475 F. Supp. 2d 1325, 1341-42 (N.D. Ga.
2007) (“By imposing liability on non-recipients of federal
funding-individuals who are in essence involuntary and
unknowing third parties to the funding contract-RLUIPA
would become an example of an unprecedented and
untested exercise of Congress’ [S]pending power.”));
Sossamon, 560 F.3d at 328-29.
Construing RLUIPA to provide for damages actions
against officials in their individual capacities would
raise serious questions regarding whether Congress
had exceeded its authority under the Spending Clause.
Thus, as a matter of statutory interpretation, and to
avoid the constitutional concerns that an alternative
reading would entail,1 3 we decline to read RLUIPA as
13
The “canon of constitutional avoidance is an interpretive tool,
counseling that ambiguous statutory language be construed
to avoid serious constitutional doubts.” FCC v. Fox TV Stations,
(continued...)
44 No. 08-2044
allowing damages against defendants in their individual
capacities.
III. Conclusion
We R EVERSE the district court’s judgment that Nelson’s
free exercise of religion was not substantially burdened
by Tamms procedures and its denial of a non-meat diet
on Fridays and during Lent. But as our remedies analysis
makes clear, Nelson’s free exercise claim is still viable
against Miller only in his individual capacity under
Section 1983 and, possibly, IRFRA. However, before the
district court can enter a declaratory judgment or assess
damages for Nelson on either of these claims, the
district court must determine (1) whether defendant’s
procedures and conduct were “in furtherance of a com-
pelling government interest” and “the least restrictive
means of furthering that compelling government inter-
est”; and (2) whether Miller is entitled to qualified immu-
nity. These issues were not briefed on appeal, so we
R EMAND them to the district court for further consider-
ation. We A FFIRM the judgment of the district court with
regard to Nelson’s claim under the Establishment Clause.
With regard to remedies, we A FFIRM the district court’s
judgment that Nelson’s claim for injunctive relief is moot.
13
(...continued)
Inc., ___ U.S. ___, 129 S. Ct. 1800, 1812 (2009) (citing Edward J.
DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades
Council, 485 U.S. 568, 575 (1988)).
No. 08-2044 45
As to the official capacity claims, we A FFIRM the district
court’s judgment that sovereign immunity bars any suit
against Miller in his official capacity under Section 1983
and RLUIPA. However, we R EVERSE the district court’s
determination that IRFRA allows Illinois prison officials
to be sued in their official capacities in federal court.
Finally, as to the individual capacity claims, we hold that
RLUIPA does not allow for such suits and, as stated,
we remand Nelson’s individual capacity claims under
Section 1983 and IRFRA for further proceedings.
7-1-09
| {
"pile_set_name": "FreeLaw"
} |
140 F.Supp.2d 495 (2001)
John BOOTH-EL, Petitioner
v.
Eugene M. NUTH, et al., Respondents
No. CIV.A. CCB-97-1252.
United States District Court, D. Maryland.
April 20, 2001.
*496 *497 *498 *499 Nevett Steele, Jr., Glyndon, MD, Michael A. Millermann, Baltimore, MD, David Walsh-Little, Law Office, Baltimore, MD, for Petitioner.
Annabelle L. Lisic, Office of the Attorney General, Baltimore, MD, for Respondents.
*500 MEMORANDUM
BLAKE, District Judge.
On August 17, 1990, petitioner John Booth-El was sentenced to death for his role in the murders of Irvin and Rose Bronstein. Currently before the court is Booth-El's Petition for Writ of Habeas Corpus. After considering the parties' briefs and arguments, the court concludes that the removal of diminished capacity as a result of intoxication as a statutory mitigating factor at Booth-El's 1990 re-sentencing violated the Ex Post Facto Clause. Accordingly, it will grant relief as to that claim.[1] Booth-El's remaining claims either were procedurally defaulted or do not provide a basis for relief. For the reasons that follow, therefore, the court will grant in part the Petition for Writ of Habeas Corpus.
BACKGROUND
On May 20, 1983, the bodies of Irvin and Rose Bronstein were found in the living room of their West Baltimore home. Both were bound and gagged. Each had been stabbed twelve times. Their home had been ransacked. Property, including televisions, jewelry, and a 1972 Chevrolet Impala, was missing. Petitioner, John Booth-El, ("Booth-El"), and William "Sweetsie" Reid, ("Reid"), were charged with the murders.
Booth-El's first trial in 1984 ended in a mistrial because the prosecution had failed to turn over certain information prior to trial. Booth v. State, 301 Md. 1, 481 A.2d 505 (1984) ("Booth I").
In a second trial[2] held in the fall of 1984, Booth-El was convicted of first degree murder of Mr. and Mrs. Bronstein as well as two counts of robbery and one count of conspiracy. He was sentenced to death for the murder of Mr. Bronstein.
Appellate Proceedings
On direct appeal Booth-El argued that:
1. The trial judge erred in refusing to strike for cause a juror who had heard that a prior guilty verdict had been reversed and who stated that he would give greater weight to the testimony of a police officer.
2. The trial judge erred by refusing to order a psychiatric evaluation of Veronda Mazyck, a state's witness.
3. The trial judge erred in admitting testimony by Eddie Smith that Reid admitted to killing some white people.
4. The trial judge gave an incorrect jury instruction on premeditation.
5. There was insufficient evidence to support the conspiracy to commit robbery conviction.
6. The trial judge improperly excluded potential jurors who opposed the death penalty.
7. The trial judge gave an erroneous instruction regarding the inferences that could be drawn from the possession of stolen property.[3]
His conviction and sentence were affirmed by the Maryland Court of Appeals. Booth v. State, 306 Md. 172, 507 A.2d 1098, 1103 (1986) ("Booth II"). The United States Supreme Court reversed the death sentence, finding the requirement of victim impact statements at sentencing violated the Eighth Amendment. Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 *501 L.Ed.2d 440 (1987), overruled by Payne v. Tennessee, 501 U.S. 808, 828-830, 111 S.Ct. 2597, 2610-11, 115 L.Ed.2d 720 (1991).
A new sentencing proceeding was held in 1988, and Booth-El again was sentenced to death. The sentence was vacated by the Maryland Court of Appeals because the trial judge had refused to admit evidence relating to parole eligibility. Booth v. State, 316 Md. 363, 558 A.2d 1205 (1989) ("Booth III").
A third sentencing proceeding was conducted in the summer of 1990. Again, a death sentence was imposed.
On direct appeal, Booth-El argued that:
1. The trial judge erred in giving an Allen-type[4] instruction.
2. The trial judge erred by not bifurcating the sentencing proceeding.
3. His right to present mitigating evidence was violated by the trial judge's refusal to list non-statutory mitigating factors on the sentencing form and by the judge's refusal to allow him to testify under oath as to mitigating factors only.
4. The trial judge erred by not allowing the jury to consider imposition of a sentence of life without parole.
5. The trial judge erred in refusing to list on the sentencing sheet as a mitigating factor that the murder was committed while his capacity was substantially impaired by intoxication.
6. His right to allocution was unfairly denigrated by the trial judge's instruction and the prosecutor's closing argument.
7. The trial judge erred by allowing the prosecution to reveal remarks Booth-El made during allocution in the 1984 sentencing proceedings.
8. There was insufficient evidence to support the finding that he was a principal in the first degree.
9. There was plain error in the jury instruction on joint principals in the first degree.
10. The trial judge erred by refusing to allow three defense witnesses to testify as experts.
11. The trial judge erred by striking testimony that Booth-El has been raped while at Boys' Village.
12. The trial judge erred by not allowing Veronda Mazyck's probation officer to offer an opinion as to Ms. Mazyck's credibility.
13. Remarks by the prosecutor during rebuttal deprived him of a fair sentencing hearing.
14. The trial judge erred by refusing to recuse himself.[5]
The sentence was affirmed by the Maryland Court of Appeals. Booth v. State, 327 Md. 142, 608 A.2d 162 (1992) ("Booth IV"). Certiorari was denied by the United States Supreme Court in the fall of 1992. Booth v. Maryland, 506 U.S. 988, 113 S.Ct. 500, 121 L.Ed.2d 437 (1992).
On July 12, 1993, Booth-El, through counsel, filed a petition for post-conviction relief in the Circuit Court for Baltimore City. In it he asserted:
1. Ineffective assistance of counsel during the guilt/innocence trial for:
a. Failing to present forensic evidence to rebut the State's theory of premeditation.
b. Failing to impeach the testimony of Eddie Smith, Veronda Mazyck, and Jewell Edwards Booth.
*502 c. Failing to investigate and develop the alternative theory of the case that the Bronsteins were killed by three men observed jumping a fence on the evening of the murders.
d. Failing to object to a jury pool which contained a biased and prejudiced panel.
e. Failing to ensure he received the maximum number of peremptory challenges then permitted by Maryland law.
f. Failing to request the removal of a juror Gail Graves who during the trial indicated she was afraid of being on the jury.
g. Failing to preserve any objections to the voir dire other than Witherspoon[6] issues and bifurcation.
h. Committing errors which, collectively, deprived him of a fair trial and amounted to ineffective assistance.
2. Ineffective assistance of guilt/innocence appellate counsel for:
a. Failing to order a complete transcript of the 1984 voir dire proceedings.
b. Failing to raise on appeal the issue of bias by the second jury panel.
c. Failing to raise on appeal the issue of the number of peremptory strikes.
d. Failing to raise on appeal the fact that, while two members of the second jury panel stated they had heard other panel members speaking about the case, no one on the panel admitted to having the conversations.
e. Committing errors which, collectively, prejudiced the outcome of the appeal and amounted to ineffective assistance.
3. Ineffective assistance of sentencing counsel for:
a. Failing to use the proper death qualification standard during voir dire.
b. Failing to preserve voir dire objections by using all peremptory strikes and objecting to the jury panel.
c. Failing to object to the prosecutor's reference to Booth-El as a "serial killer."
d. Committing errors which, collectively, deprived him of a fair hearing and amounted to ineffective assistance.
4. Ineffective assistance of sentencing appellate counsel for:
a. Failing to raise as an issue the striking of a juror, Laurel Gilbert, who indicated she had changed her mind about the death penalty.
b. Failing to raise the issue of the availability of Veronda Mazyck.
c. Failing to fully argue Judge Angeletti's refusal to recuse himself.
d. Failing to raise as an issue the prosecutor's use of the term "serial killer."
e. Failing to raise as an issue Judge Angeletti's ex parte communication with Ms. Gilbert.
f. Committing errors which, collectively, prejudiced the outcome of the appeal and amounted to ineffective assistance.
5. The prosecution withheld evidence, i.e., statements and an affidavit by Darryl Brooks and information concerning possible involvement by Charles Westry, in violation of the Brady rule.[7]
6. Violation of his due process right to a fair trial because:
a. The second jury panel was contaminated with extrinsic information by their discussions of the case.
b. Ms. Graves was allowed to remain on the jury after she indicated a predisposition *503 to find Booth-El guilty by voicing fear.
c. The failure of appellate counsel to raise issues concerning jury selection amounted to a constructive denial of the right to counsel.
d. The prosecution committed misconduct by: i) coaching Veronda Mazyck's 1984 trial testimony and failing to make a good faith effort to find her in 1990 for the re-sentencing, ii) manipulating the testimony of Eddie Smith, a witness at the 1990 re-sentencing, to incriminate Booth-El, iii) coaching and threatening Jewell Edwards Booth in order to obtain inaccurate testimony at both the 1984 trial and 1990 resentencing, iv) engaging in conduct which, cumulatively, biased the outcomes of the 1984 trial and 1990 re-sentencing.
7. Violation of his Miranda rights in connection with a statement given to police on May 18, 1983.
8. Judge Angeletti's phone conversation with a juror, Laurel Gilbert, and subsequent striking of her without allowing counsel an opportunity to rehabilitate her, violated Booth-El's right of confrontation.[8]
Booth-El filed a pro se amendment to his post-conviction petition on March 18, 1994.[9] In it he asserted:
1. The trial court gave an erroneous reasonable doubt instruction in the 1984 guilt/innocence trial.
2. During the guilt/innocence trial the prosecution knowingly used false, perjured or misleading testimony by Jewell Booth and Veronda Mazyck; withheld evidence relating to the credibility of Ms. Mazyck; and withheld evidence relating to a pair of gloves found at the crime scene.
3. He was denied the right to be tried by a jury of his peers as defined in the Dred Scott decision.
4. He was denied the right to confront and cross examine witnesses when a statement by Willie Reid was introduced without a showing that Mr. Reid was unavailable.
5. Unspecified ineffective assistance of counsel.
6. Maryland sentencing procedures in capital cases are constitutionally deficient because they do not provide for a "mercy option."
7. The death penalty was sought in this case for racially biased reasons and is constitutionally disproportionate to other sentences for first degree murder in Baltimore City.
A hearing was held over several days in March 1994 in front of the Honorable Kathleen O'Ferrall Friedman. On December 22, 1994, Judge Friedman denied relief. (State's Answer, Ex. 52.) A timely application for leave to appeal was denied by the Maryland Court of Special Appeals on March 7, 1995.[10] (Id., Ex. 53.) A *504 motion for reconsideration was denied on May 12, 1995. Certiorari was denied by the United States Supreme Court on October 2, 1995. Booth v. Maryland, 516 U.S. 897, 116 S.Ct. 251, 133 L.Ed.2d 176 (1995).
On April 3, 1996, Booth-El, through counsel, filed a motion to reopen the post-conviction proceedings. In it he requested the proceedings be reopened to address issues raised in his original petition but not addressed by the court; and to address 1) a Brady violation; 2) the improper use of Ms. Mazyck's trial testimony in the 1990 sentencing proceedings; 3) the trial judge's refusal to recuse himself; 4) the trial judge's conduct during the sentencing proceedings, which violated his right to a fair trial; and 5) his contention that it would be unconstitutional to execute him twelve years after he was first sentenced to death.[11] (State's Answer, Ex. 61.) Booth-El filed a pro se Amendment to the motion to reopen which presented legal argument but no new claims. (Id., Ex. 66.)
Judge Friedman denied the motion to reopen on April 22, 1997. (Id., Ex. 69.) Booth-El filed a timely application for leave to appeal to the Maryland Court of Appeals. On June 30, 1997, the Maryland Court of Appeals granted the application for leave to appeal and affirmed Judge Friedman's decision on all claims except for the one involving Brady material. On that claim it vacated her decision and remanded for consideration of the merits of the claim. Booth v. State, 346 Md. 246, 696 A.2d 440 (1997).
An evidentiary hearing was held on the Brady issue on October 16, 1997. On January 20, 1998, Judge Friedman issued a memorandum opinion denying relief on the Brady issue. Booth-El again sought leave to appeal. His application was denied on April 7, 1998. Booth v. State, 349 Md. 421, 708 A.2d 681 (1998) ("Booth V").
Booth-El's Habeas Claims
In this, his first federal habeas corpus petition, Booth-El raises the following claims:
1. He was denied due process when the trial judge refused to bifurcate the 1990 sentencing proceedings so that the jury would determine whether he was a first degree principal before any evidence regarding aggravating and mitigating factors was presented.
2. He was denied the right to have the sentencing jury consider all relevant mitigating evidence because the trial judge: a) refused to list certain non-statutory mitigating factors on the sentencing form; and b) the trial judge refused to allow him to testify under oath as to mitigating factors only.
3. The 1983 change to the Maryland death penalty statute that removed intoxication from the list of statutory mitigating factors violated the Ex Post Facto Clause.
4. The trial judge erred by giving an instruction on joint principals in the first degree, because there was no evidence of joint first-degree principalship.
5. There was insufficient evidence to support the finding that Booth-El was a first degree principal in the murder of Mr. Bronstein.
6. Not allowing the sentencing jury to consider the option of a sentence of life without parole deprived him of due process and rendered the sentencing proceedings unreliable in violation of the Eighth and Fourteenth Amendments.
7. The trial judge erred in giving an Allen-type charge to the sentencing jury *505 after it indicated that it was split on whether Booth-El was a first degree principal.
8. His constitutional right to confront witnesses was denied when the trial testimony of Veronda Mazyck was read to the sentencing jury; appellate sentencing counsel was ineffective for not raising this issue on direct appeal.
9. He was denied due process when the trial judge refused to recuse himself despite having personal knowledge concerning the availability of Ms. Mazyck.
10. Using his participation in a robbery both to sustain the felony murder conviction and as the sole aggravating factor warranting the death penalty renders his sentence unconstitutional.
11. The conduct of the trial judge during the sentencing proceedings violated Booth-El's right to a fair trial.
12. Maryland's failure to provide for automatic appellate review for ineffective assistance of counsel claims violates the Sixth, Eighth, and Fourteenth Amendments.
13. Execution of a prisoner who has spent nearly seventeen years on death row constitutes cruel and unusual punishment.
14. Ineffective assistance of counsel during his 1984 guilt/innocence trial for:
a. Not investigating or presenting forensic evidence regarding the prosecution's theory that two knives were involved and that Booth-El and Reid each killed one of the Bronsteins;
b. Failing to properly object to, and thus preserve for appeal, issues relating to bias or prejudice of the second jury panel;
c. Failing to request removal for cause of a juror, Gail Graves, who expressed fear for her family because she worked near the location of the crime;
d. Preserving for appeal only voir dire objections relating to bifurcation and Witherspoon violations and, thus, waiving all other objections;
e. Engaging in conduct that, taken cumulatively, amounted to ineffective assistance and deprived him of a fair trial.
15. Ineffective assistance of guilt/innocence appellate counsel for:
a. Failing to order a complete transcript of the 1984 voir dire proceedings;
b. Failing to raise the issue of bias in the second jury panel;
c. Failing to discover false answers given by two members of the second jury panel and failing to raise the issue on appeal.
16. Ineffective assistance of sentencing counsel for:
a. Failing to preserve voir dire objections by exhausting peremptory challenges or by objecting to the composition of the panel before the jury was sworn;
b. Failing to use proper death qualification standards during voir dire;
c. Failing to object to the prosecution's use of the term "serial killer" during its closing rebuttal;
d. Failing to adequately question Cessie Alphonso, a social worker called by the defense, about Booth-El's background.
17. Ineffective assistance of sentencing appellate counsel for:
a. Failing to raise on appeal the trial judge's ex parte communication with, and refusal to conduct additional voir dire of, a juror, Laurel Gilbert, after she indicated that she changed her mind about being able to impose the death penalty;
b. Failing to raise on appeal the prosecutor's use of the term "serial killer."
18. Booth-El's fundamental rights were violated when:
a. Extrinsic information was introduced to the sentencing jury panel;
*506 b. A clearly biased juror, Ms. Graves, was included on the final panel;
c. The trial judge refused to permit the sentencing trial counsel to ask certain questions on voir dire;
d. He was constructively denied his right to counsel by his sentencing appellate attorney's failure to raise issues relating to the jury and jury panel on appeal;
e. His right to confront Ms. Gilbert concerning her change of mind on the death penalty was violated when the trial judge questioned her outside of Booth-El's presence and did not allow counsel an opportunity to rehabilitate her.
19. The prosecutor's remarks during closing rebuttal at the sentencing proceedings deprived Booth-El of a fair hearing in violation of the Due Process Clause.
20. At the guilt/innocence trial, the judge issued an erroneous instruction on reasonable doubt.
21. In violation of Brady v. Maryland, the prosecution failed to turn over certain evidence, i.e., a forensic report on a pair of gloves and a statement by Darryl Brooks, prior to the guilt/innocence trial.
22. In Maryland, the death penalty is imposed in an arbitrary, wanton, and freakish manner.
23. In Maryland, the death penalty is imposed in a racially discriminatory manner.
24. The combination of the unanimity requirement, Judge Angeletti's supplemental instruction on principalship, and the Allen charge violated Booth-El's constitutional rights.
ANALYSIS
Procedural Default
Before a petitioner may seek habeas relief in federal court, he must exhaust the remedies available in state court for each claim presented.[12]See Rose v. Lundy, 455 U.S. 509, 521-22, 102 S.Ct. 1198, 1205, 71 L.Ed.2d 379 (1982). This exhaustion requirement is satisfied by seeking review of the claim in the highest state court with jurisdiction to consider it. See O'Sullivan v. Boerckel, 526 U.S. 838, 848, 119 S.Ct. 1728, 1734, 144 L.Ed.2d 1 (1999); 28 U.S.C. § 2254(b)-(c). In Maryland, depending on the nature of the claim, such review may be accomplished either by direct appeal or through post-conviction proceedings. Exhaustion is not required if the petitioner has no available state remedy at the time a federal petition is filed. Teague v. Lane, 489 U.S. 288, 297-98, 109 S.Ct. 1060, 1068, 103 L.Ed.2d 334 (1989); Bassette v. Thompson, 915 F.2d 932, 937 (4th Cir.1990).
Where a petitioner has failed to present a claim to the highest state court with jurisdiction to hear it, whether by failing to raise it on direct appeal or at post-conviction proceedings, or by failing to note a timely appeal, the claim may be procedurally defaulted.[13]Coleman v. Thompson, 501 U.S. 722, 749-50, 111 S.Ct. 2546, 2564-65, 115 L.Ed.2d 640 (1991) (failure *507 to note timely appeal); Murray v. Carrier, 477 U.S. 478, 491, 106 S.Ct. 2639, 2647, 91 L.Ed.2d 397 (1986) (failure to raise claim on direct appeal); Murch v. Mottram, 409 U.S. 41, 46-47, 93 S.Ct. 71, 74, 34 L.Ed.2d 194 (1972) (failure to raise claim during post conviction); Bradley v. Davis, 551 F.Supp. 479, 481 (D.Md.1982) (failure to seek leave to appeal denial of post-conviction relief). Claims may also be procedurally defaulted where a state court declines "to consider their merits on the basis of an adequate and independent state procedural rule." Yeatts v. Angelone, 166 F.3d 255, 260 (4th Cir.), cert. denied, 526 U.S. 1095, 119 S.Ct. 1517, 143 L.Ed.2d 668 (1999). The requirement in Maryland that certain claims be presented on direct appeal, see Md. Ann.Code Art. 27, § 645A, is such an adequate and independent state procedural rule. See Johnson v. Smith, 981 F.Supp. 944, 947-48 (D.Md.1997).
When invoked, the procedural default doctrine bars consideration of a claim in a federal petition for habeas corpus absent a showing of cause and prejudice or actual innocence. Murray, 477 U.S. at 494-95, 106 S.Ct. at 2649; Wainwright v. Sykes, 433 U.S. 72, 86, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977). To avoid a procedural default, however, the cause shown must be more than ignorance or a mistake. In some circumstances, ineffective assistance of counsel as determined under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), may be sufficient cause.[14]See Edwards v. Carpenter, 529 U.S. 446, 450-51, 120 S.Ct. 1587, 1591, 146 L.Ed.2d 518 (2000). Otherwise, "[i]n order to demonstrate `cause' for the default, [petitioner] must establish `that some objective factor external to the defense impeded counsel's [or petitioner's] efforts' to raise the claim in state court at the appropriate time." Breard v. Pruett, 134 F.3d 615, 620 (4th Cir.) (quoting Murray, 477 U.S. at 488, 106 S.Ct. at 2645), cert. denied, Breard v. Greene, 523 U.S. 371, 118 S.Ct. 1352, 140 L.Ed.2d 529 (1998). Ignorance of the availability of an appeal in a collateral proceeding, even when based on erroneous legal advice, is not cause for failing to file a timely appeal. See Tower v. Phillips, 7 F.3d 206, 211 (11th Cir.1993).
Even where a petitioner fails to show cause and prejudice for a procedural default, a court may still reach the merits of the petitioner's claims in order to prevent a fundamental miscarriage of justice. See Schlup v. Delo, 513 U.S. 298, 314-15, 115 S.Ct. 851, 861, 130 L.Ed.2d 808 (1995). The miscarriage of justice exception applies where a petitioner shows that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray, 477 U.S. at 496, 106 S.Ct. at 2649.[15] Thus, the miscarriage *508 of justice standard is directly linked to innocence. Schlup, 513 U.S. at 321, 115 S.Ct. at 864. Innocence, however, is not an independent claim; rather, it is the "gateway" through which a petitioner must pass before a court may consider constitutional claims which are defaulted. Herrera v. Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 862, 122 L.Ed.2d 203 (1993). "`To be credible,' a claim of actual innocence must be based on reliable evidence not presented at trial." Calderon v. Thompson, 523 U.S. 538, 559, 118 S.Ct. 1489, 1503, 140 L.Ed.2d 728 (1998) (quoting Schlup, 513 U.S. at 324, 115 S.Ct. at 865).
Standard of Review
Effective April 24, 1996, the Anti-Terrorism and Effective Death Penalty Act of 1996 amended 28 U.S.C. § 2254(d) to provide that:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
A decision is contrary to clearly established federal law if a state court applies a rule that contradicts Supreme Court precedent or "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a [different] result ...." Williams v. Taylor, 529 U.S. 362, 406, 120 S.Ct. 1495, 1519-20, 146 L.Ed.2d 389 (2000). Further "[a] state court decision that correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case certainly would qualify as a decision involv[ing] an unreasonable application of ... clearly established Federal law." Id. at 407-08, 120 S.Ct. at 1520. See also Bell v. Jarvis, 236 F.3d 149, 157 (4th Cir.2000); Vick v. Williams, 233 F.3d 213, 216 (4th Cir.2000); Fisher v. Lee, 215 F.3d 438, 447 (4th Cir.2000). Thus, habeas corpus relief may not be granted simply because a federal court determines that a state court erroneously or incorrectly applied clearly established federal law. Williams, 529 U.S. at 411, 120 S.Ct. at 1522 (O'Connor, J. for the Court). However, "a state determination may be set aside under this standard if, under clearly established federal law, the state court was unreasonable in refusing to extend the governing legal principle to a context in which the principle should have controlled." Ramdass v. Angelone, 530 U.S. 156, 166, 120 S.Ct. 2113, 2120, 147 L.Ed.2d 125 (2000).
Bifurcation of Sentencing Proceedings: Claim I
To be eligible for the death penalty under Maryland law, a defendant must be a principal in the first degree except in cases of murder for hire. Md.Code. Ann. Art. 27, § 413(e)(1). The sentencing judge or jury decides whether the defendant was a principal in the first degree. If the sentencing judge or jury determines that the defendant is not a principal in the first degree, a sentence of life imprisonment is imposed. If it is determined that the defendant is a principal in the first degree, the sentencing judge or jury then determines *509 and weighs aggravating and mitigating circumstances. See Md. Rule 4-343.
Evidence concerning principalship and aggravating/mitigating circumstances generally is presented during a single proceeding after completion of the trial. Prior to his 1990 sentencing, Booth-El requested that the proceeding be bifurcated so that the jury would determine whether he was a principal in the first degree prior to hearing any evidence relating only to aggravating or mitigating factors. (State's Answer, Ex. 13 at 80-93.) His request was denied. (Id. at 104-05.)
Booth-El argues that the failure to bifurcate the sentencing proceedings violated his constitutional right to due process. First, he asserts that the proceedings were so infected with unfairness as to violate his right to due process because the sentencing jury heard evidence concerning his criminal record, drug addiction, and psychological characteristics before determining whether he was a principal in the first degree. In making this argument, Booth-El relies upon Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974).[16] Second, relying on Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), Booth-El asserts the unitary sentencing proceeding itself violates due process because: 1) he has a significant private interest in the outcome of the proceeding; 2) there is a significant risk that the jury will improperly consider prejudicial information relevant only to aggravating/mitigating factors when deciding principalship; and 3) while there might be additional fiscal and administrative burdens on the government in using bifurcated sentencing proceedings, the potential risk to the defendant outweighs the additional burden on the government.
Booth-El raised the failure to bifurcate claim on direct appeal. At that time, the focus of his claim was that the trial judge had erred in deciding he did not have the authority to bifurcate the proceeding. (State's Answer, Ex. 38 at 41-53.) To the extent he made a constitutional argument, Booth-El relied upon Gregg v. Georgia, in which the Court discusses the advantages of bifurcating the guilt and sentencing phases of capital trials. 428 U.S. 153, 190-92, 96 S.Ct. 2909, 2933-34, 49 L.Ed.2d 859 (1976). Although Booth-El's constitutional argument was not well defined on direct appeal, his claim that he was prejudiced by the decision to allow the jury to consider information from his presentence report before determining principalship, (State's Answer, Ex. 38 at 42-44), is essentially the same as the Donnelly argument raised in the present petition. Although it is a closer call, his challenge to the constitutionality of the prohibition on bifurcated sentencing proceedings, (id., Ex. 38 at 51 n. 10), adequately raised the claim based upon Mathews presented in this petition.
The Maryland Court of Appeals concluded that Judge Angeletti was correct in finding that he did not have the authority to bifurcate the sentencing proceeding. In rejecting the constitutional claim, the Court held:
Booth suggests that refusal further to bifurcate would violate the eighth amendment because principalship is an issue of guilt, rather than an issue of penalty, and Gregg v. Georgia ... suggested that issues of guilt should be decided separately in a bifurcated proceeding. But Booth had been found guilty of murder in the first degree before the sentencing proceeding began.
Booth IV, 608 A.2d at 171. This decision is not an unreasonable application of clearly *510 established federal law. See Grandison v. Corcoran, 225 F.3d 654, 2000 WL 1012953 *14 (4th Cir. July 24, 2000) (unpublished), pet. for cert. filed ___ U.S. ___, 121 S.Ct. 1658, ___ L.Ed.2d ___ (2001).
Consideration of Mitigating Evidence: Claim II
A. Verdict Sheet
Maryland law specifies a number of mitigating factors and explicitly permits consideration of "any other facts which the jury or the court specifically sets forth in writing that it finds as a mitigating circumstance in the case." Md. Ann.Code Art. 27, § 413(g)(8). At sentencing, Booth-El requested that the non-statutory mitigating factors he presented be listed on the verdict sheet. That request was denied. (State's Answer, Ex. 23 at 209.)
Booth-El argues that Judge Angeletti's refusal to list the non-statutory mitigating factors impeded his right to have the jury consider evidence in mitigation of punishment. On direct appeal, the Maryland Court of Appeals concluded the Constitution does not require that non-statutory mitigating factors be listed on the verdict sheet. Booth IV, 608 A.2d at 171-72.
The Supreme Court has held that the sentencer in a capital case cannot be "precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Mills v. Maryland, 486 U.S. 367, 374, 108 S.Ct. 1860, 1865, 100 L.Ed.2d 384 (1988) (emphasis omitted) (quoting Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 874, 71 L.Ed.2d 1 (1982)). See also McKoy v. North Carolina, 494 U.S. 433, 442, 110 S.Ct. 1227, 1233, 108 L.Ed.2d 369 (1990) ("Any barrier to [consideration of mitigating evidence] must therefore fall."). Similarly, "the sentencer may not refuse to consider or be precluded from considering any relevant mitigating evidence ...." Mills, 486 U.S. at 374-75, 108 S.Ct. at 1865 (emphasis, internal citations, and quotations omitted). Booth-El contends that the sentencing court's failure to list non-statutory mitigating factors on the sentencing form violated Mills, McKoy, and similar holdings by forcing the jury: "(1) to decide whether [the potentially mitigating] evidence met each juror's personal test for what evidence should be weighed as a mitigating circumstance and (2) to then articulate that evidence as a mitigating circumstance that could be considered in weighing [the] sentence." (Petition at 28-29.)
The Supreme Court's "consistent concern has been that restrictions on the jury's sentencing determination not preclude the jury from being able to give effect to mitigating evidence." Buchanan v. Angelone, 522 U.S. 269, 276, 118 S.Ct. 757, 761, 139 L.Ed.2d 702 (1998). To determine whether jury instructions satisfy this principle, the reviewing court must determine "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." Id. (quoting Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990)).
In this case, there is no reasonable likelihood that the jury applied the instruction in a manner that precluded the consideration of mitigating factors or any other constitutionally relevant evidence. Admittedly, a juror first had to find that each non-statutory mitigating factor argued by the defense was mitigating before giving it consideration. The Supreme Court, however, has "never ... held that the state must affirmatively structure in a particular way the manner in which juries consider mitigating evidence." Id. See also Weeks *511 v. Angelone, 528 U.S. 225, 233, 120 S.Ct. 727, 732, 145 L.Ed.2d 727 (2000). In fact, the Supreme Court has upheld the use of a "catch-all" category in which the jury can consider any mitigating factor not expressly listed on the verdict form. See Weeks, 528 U.S. at 232 & n. 2, 120 S.Ct. at 732; Boyde, 494 U.S. at 380-82, 110 S.Ct. at 1198-99.
Maryland's system for presenting mitigating evidence does not preclude consideration of any factor that the jury, or any particular juror, may consider mitigating. If an individual juror is convinced that a particular factor is mitigating and that the defense has proven it, she is free to credit that mitigating factor and weigh it against the aggravating factors in determining the sentence. Thus, unlike Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), and Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), two cases cited by Booth-El, the jurors in Booth-El's case were allowed to consider all potentially mitigating evidence and to give it whatever weight they chose.
The last sentence of paragraph 8(b) of Section IV of the verdict sheet states: "If the jury or any juror determines that one or more mitigating circumstances exist, complete Section V." (State's Answer, Ex. 39 at 179.) After the jury returned with its verdict, Judge Angeletti required them to go back and complete Section V. (Id., Ex. 26 at 4-5.) In his supplemental memorandum, Booth-El argues that, because Section V was completed, the jury must have found a mitigating factor, and the fact that no such factor was listed in Part IV indicates the jury was confused. (See Pet'r Suppl. Mem. at 9-10.)
This argument is without merit. The Court of Appeals explained the jury form used in Booth-El's sentencing:
Section IV, Question 8(a) of the sentencing form submitted to Booth's jury stated: "We unanimously find by a preponderance of the evidence that the following additional mitigating circumstances exist." Question 8(b) read: "One or more of us, but fewer than all 12, find by a preponderance of the evidence that the following additional mitigating circumstances exist." Section V of the sentencing form provided:
"Each individual juror shall weigh the aggravating circumstances found unanimously to exist against any mitigating circumstances found unanimously to exist, as well as against any mitigating circumstances found by that individual juror to exist."
"We unanimously find that the State has proven by A PREPONDERANCE OF THE EVIDENCE that the aggravating circumstances marked `proven' in Section III outweigh the mitigating circumstances in Section IV. [Yes or No]"
Booth IV, 608 A.2d at 172. Question 8(b) of Section IV explicitly states that the finding of a particular mitigating circumstance need not be unanimous. Rather, "[o]ne or more" of the jurors, "but fewer than all 12," can find that a mitigating circumstance exists. Section V reinforces this point by telling each individual juror to weigh the aggravating circumstances "against any mitigating circumstances found by that individual juror to exist."
The likely result is that no juror found any circumstances proven which should be considered mitigating and, therefore, did not list a mitigating circumstance in Section IV. The jury then correctly followed the instructions in paragraph 8(b) and did not complete Section V. Judge Angeletti, in an attempt to guarantee that the jury completed the entire form, however, asked the jury to complete Section V. While that final instruction may have been in error, it *512 does not indicate that the jury was confused by the form.
Booth-El is correct in stating that "we do not know if the Judge instructed the jury to fill out Section V because of information submitted on individual forms as to statutory or non-statutory mitigating factors or because he just thought it should be filled out." (Pet'r Suppl. Mem. at 10.) The Supreme Court, however, does not require a reviewing court to be certain that the jury correctly applied the instructions. Rather, the court need only determine "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." Buchanan, 522 U.S. at 276, 118 S.Ct. at 761 (quoting Boyde, 494 U.S. at 380, 110 S.Ct. at 1198). Here, no such reasonable likelihood exists. Thus, the Maryland Court of Appeals' conclusion is not an unreasonable application of clearly established federal law.
B. Mitigation Testimony
During his sentencing, Booth-El requested permission to testify as to mitigation without being cross-examined about the events of May 1983. (State's Answer, Ex. 22 at 218.) His request was denied. (Id. at 219-21.) Booth-El did not testify, though he briefly addressed the jury during closing arguments. (Id., Ex. 24 at 92-95.) Judge Angeletti instructed the jury that Booth-El's statement was not testimony or evidence. (Id. at 61-62.) That instruction was repeated by the prosecution during its closing argument. (Id. at 125.)
Booth-El argues he should have been permitted to testify regarding mitigating evidence without subjecting himself to cross-examination on the circumstances surrounding the crime. On direct appeal, the Court of Appeals concluded he had no constitutional right to testify without being cross-examined. Booth IV, 608 A.2d at 172-73.
Although the Supreme Court apparently has never addressed the issue, the Fourth Circuit has held that a criminal defendant does not have a constitutional right to allocute before a sentencing jury. See United States v. Barnette, 211 F.3d 803, 820 (4th Cir.2000) (citing United States v. Hall, 152 F.3d 381 (5th Cir.1998)). Given that a criminal defendant does not have a constitutional right to give an unsworn statement to the sentencing jury without subjecting himself to cross-examination, the Maryland Court of Appeals' holding that Booth-El did not have a constitutional right to give a sworn statement is not contrary to Supreme Court precedent.
Deletion of Intoxication as a Statutory Mitigating Factor: Claim III
At the time of the Bronsteins' murders, Maryland's death penalty statute listed seven mitigating circumstances, including:
The murder was committed while the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired as a result of mental incapacity, mental disorder, emotional disturbance, or intoxication.
Md. Ann.Code Art. 27, § 413(g)(4) (1957). Effective July 1, 1983, the words "or intoxication" were removed from this section. 1983 Md. Laws ch. 296. Both before and after the 1983 change, the statute contained a catch-all provision which allowed the jury to consider "[a]ny other facts which the jury or the court specifically sets forth in writing that it finds as mitigating circumstances in the case." Md. Ann.Code Art. 27, § 413(g)(8) (1957, 2000). The Maryland Court of Appeals described the effect of the 1983 change as follows:
*513 Prior to the 1983 enactment the burden was on the murderer to prove by a preponderance of the evidence diminished capacity as a result of intoxication. If the jury found that fact, then the statute determined that that circumstance was mitigating and that it was to be considered in weighing whether the aggravating circumstance outweighed intoxication and any other mitigating circumstances. After the change, the murderer has the burden of proving by a preponderance of the evidence both the fact of diminished capacity due to intoxication and that that fact is a mitigating circumstance.
Booth IV, 608 A.2d at 175 (citations omitted).
During the 1990 sentencing proceedings, Booth-El requested that the verdict form contain the pre-July 1, 1983 language.[17] (State's Answer, Ex. 39 at 48-51.) That request was denied.
On direct appeal, Booth-El argued that the refusal to include the pre-July 1, 1983 language on the verdict sheet violated the Ex Post Facto Clause because it required him to prove by a preponderance of the evidence that intoxication was a mitigating circumstance. (Id., Ex. 38 at 75-81.) The Court of Appeals found that the change did not fit within any of the "three" categories of ex post facto laws defined in Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990). Booth IV, 608 A.2d at 175. It also concluded that the change was procedural and that "[n]one of the purposes of the prohibition against ex post facto laws would be served by applying the prohibition" in this case. Id. at 175, 177.
Article I, § 10 of the U.S. Constitution provides that "[n]o State shall ... pass any ... ex post facto Law." In 1798, Justice Chase described four categories of laws that he believed ran afoul of this provision:
1st. Every law that makes an action, done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2nd. Every law that aggravates a crime, or makes it greater than it was, when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.
Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798). The continuing vitality of these four categories recently was affirmed by the Supreme Court in Carmell v. Texas, 529 U.S. 513, 120 S.Ct. 1620, 146 L.Ed.2d 577 (2000). In Carmell, the Court held that an amendment to a Texas statute deleting the requirement that a victim's testimony be corroborated in certain sexual assault cases violated the Ex Post Facto Clause. Explaining the importance of the fourth Calder category, the Court stated:
A law reducing the quantum of evidence required to convict an offender is as grossly unfair as, say, retrospectively eliminating an element of the offense, increasing the punishment for an existing offense, or lowering the burden of proof. In each of these instances, the government subverts the presumption of innocence by reducing the number of elements it must prove to overcome that presumption; by threatening such severe punishment so as to induce a plea to a lesser offense or a lower sentence; or by making it easier to meet the threshold for overcoming the presumption. *514 Reducing the quantum of evidence necessary to meet the burden of proof is simply another way of achieving the same end.
Id. at 532-33, 120 S.Ct. at 1632-33. The change in the statute that was applied to Booth-El, which effectively lowered the prosecution's burden of proof by increasing the burden placed on the defendant, falls within the fourth ex post facto category.
The Maryland Court of Appeals' failure in Booth IV to recognize the fourth Calder category no doubt was the result of what the Court in Carmell described as "rather cryptic" language in Collins, a decision issued shortly before Booth-El's 1990 resentencing. Carmell, 529 U.S. at 538, 120 S.Ct. at 1635. In Collins, the Court found that a Texas statute allowing an appellate court to reform an improper sentence rather than order a new trial did not violate the Ex Post Facto Clause. 497 U.S. at 52, 110 S.Ct. at 2724. Collins began by quoting the four Calder categories, but also described the three-category formulation in Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (1925), as a "faithful" rendition of the "original understanding" of the Clause, even though it omitted the fourth Calder category. See Carmell, 529 U.S. at 538, 120 S.Ct. at 1635 (quoting Collins, 497 U.S. at 43, 110 S.Ct. at 2719). Collins continued by specifically overruling the Court's decisions in Kring v. Missouri, 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506 (1883), and Thompson v. Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061 (1898), which had expanded the four Calder categories to cover laws which "in relation to the offense or its consequences, alter[ ]the situation of a party to his disadvantage." Kring, 107 U.S. at 228-29, 2 S.Ct. at 449 (citation omitted).[18]Collins did not, however, overrule Calder. In response to the argument made by Texas and the United States in Carmell that the fourth category had been "effectively cast out," the Court emphatically replied that "Collins held no such thing." Carmell, 529 U.S. at 537, 120 S.Ct. at 1635. Indeed, even in Collins, the Court explained that "the prohibition which may not be evaded is the one defined by the Calder categories." 497 U.S. at 46, 110 S.Ct. at 2721. Accordingly, the Maryland Court of Appeals' conclusion that the statutory amendment in Booth-El's case did not fit into any of the ex post facto categories violates Supreme Court precedent and therefore is contrary to clearly established federal law. See Williams, 529 U.S. at 406, 120 S.Ct. at 1519-20.
A further step in the analysis, however, is required. "Procedural" changes, even those which disadvantage a defendant, do not fall into any of the four Calder categories and therefore do not violate the Ex Post Facto Clause. See Dobbert v. Florida 432 U.S. 282, 293, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977). The court in Booth IV concluded that the change in the statute was merely procedural. 608 A.2d at 177. It did so, however, without the benefit of recognizing the existence and significance of the fourth Calder category.
Procedural changes are "changes in the procedures by which a criminal case is adjudicated, as opposed to *515 changes in the substantive law of crimes." Collins, 497 U.S. at 45, 110 S.Ct. at 2720. Procedural changes include those relating to the admissibility of evidence, see Hopt v. Utah, 110 U.S. 574, 590, 4 S.Ct. 202, 210, 28 L.Ed. 262 (1884) (witness competency); Thompson v. Missouri, 171 U.S. 380, 386-87, 18 S.Ct. 922, 924-25, 43 L.Ed. 204 (1898) (handwriting comparisons), as well as those affecting the way in which a case is adjudicated, see Dobbert, 432 U.S. at 292, 97 S.Ct. at 2297 (change in jury's function in death penalty cases); Beazell, 269 U.S. at 170, 46 S.Ct. at 68-69 (requirement of joint trials for persons jointly indicted); Mallett v. North Carolina, 181 U.S. 589, 597, 21 S.Ct. 730, 733, 45 L.Ed. 1015 (1901) (change permitting the state to appeal the grant of a new trial); Gibson v. Mississippi, 162 U.S. 565, 590, 16 S.Ct. 904, 910, 40 L.Ed. 1075 (1896) (juror qualification). The change in § 413(g)(4) of the Maryland law is not procedural. It does not alter the type of evidence that is admissible during the sentencing proceeding, nor does it merely change the procedure for determining mitigating circumstances. Rather, it imposes on the defendant an additional burden, i.e., he must now show not only that intoxication substantially impaired his ability to appreciate the criminality of his conduct or conform his conduct to the requirements of law, but also that this constitutes a mitigating circumstance.[19] The amendment thus imposes an impermissible change in the amount or degree of proof. See Carmell, 529 U.S. at 540-41, 120 S.Ct. at 1636-37; Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 328, 18 L.Ed. 356 (1866) (striking down loyalty oath requirement of state constitution); see also Gall v. Parker, 231 F.3d 265, 305-06 (6th Cir.2000) (finding that state court decisions removing the state's burden to prove the absence of extreme emotional distress as an element of murder were equivalent to an ex post facto violation).[20]
While the court in Booth IV reviewed many of the Supreme Court's decisions involving changes that were found to be procedural, it did so without analyzing the change in the burden of proof effected by the amendment in this case. This is illustrated by its analysis of U.S. v. Mest, 789 F.2d 1069 (4th Cir.1986), a case involving an insanity defense to a murder prosecution where the offense was committed prior to enactment of the Insanity Defense Reform Act ("IDRA"), but the trial was conducted thereafter. The Booth IV court reviewed the IDRA's change in the Federal Rules of Evidence, which was found not to violate the Ex Post Facto Clause, but did not distinguish the change in the burden of proof and the definition of insanity brought about by the IDRA, which the parties agreed were "substantive," and the court did not apply retroactively. Id. at 1073 n. 3. See also United States v. Lakey, 610 F.Supp. 210, 213-14 (S.D.Tex.1985) *516 (holding retroactive application of IDRA would violate the ex post facto clause); United States v. Kowal, 596 F.Supp. 375 (D.Conn.1984) (same).
The Maryland Court of Appeals made several other arguments to bolster its conclusion that the change in the Maryland statute did not constitute an ex post facto law. First, the court stated that the purposes for the prohibition of ex post facto laws would not be served by applying the prohibition in Booth-El's case. The court stated that "[Booth's] reliance interest [on the benefits of being intoxicated while he murdered] hardly deserves mention, let alone respect." Booth IV, 608 A.2d at 177 (quoting L. Tribe, American Constitutional Law § 10-3, at 640 (2d ed.1988)). The Supreme Court, however, has explicitly rejected this justification. In Carmell, the Court stated that "the absence of a reliance interest is not an argument in favor of abandoning the [fourth] category itself." 529 U.S. at 531 n. 21, 120 S.Ct. at 1632 n. 21.
If [the absence of a reliance interest were enough to abandon the fourth ex post facto category], the same conclusion would follow for Calder's third category (increases in punishment), as there are few, if any, reliance interests in planning future criminal activities based on the expectation of less severe repercussions.
Id.
The Maryland Court of Appeals also stated that there was no risk of legislative abuse in Booth-El's case because, based on the timing of the bill's introduction, "the Legislature could not have, and did not, contemplate John Booth when it deleted intoxication as an express mitigating circumstance on the sentencing form." Booth IV, 608 A.2d at 178. Though this statement is true, the law may still be ex post facto.[21] The Supreme Court has shown concern with alterations that only benefit the government. See Carmell, 529 U.S. at 532-33 & n. 23, 120 S.Ct. at 1632-33 & n. 23. Here, by eliminating diminished capacity resulting from intoxication as an automatic mitigating factor upon proof of that diminished capacity, the legislature has benefitted only the state. Therefore, this law is not one that is "ordinarily evenhanded, in the sense that [it] may benefit either the State or the defendant in any given case." Id. at 533 n. 23, 120 S.Ct. at 1633 n. 23.
This fact distinguishes Booth-El's case from Dobbert, which is relied upon by the State. In Dobbert, a jury in a death penalty case recommended life imprisonment. 432 U.S. at 287, 97 S.Ct. at 2295. At the time the murder was committed, this recommendation would have been binding. Id. at 294, 97 S.Ct. at 2299. By the time that Dobbert stood trial, however, the law was changed, such that a jury's recommendation of a sentence in a death penalty case was advisory only. Id. at 290-92, 97 S.Ct. at 2297. The judge overruled the jury and imposed the death sentence. Id. at 287, 97 S.Ct. at 2295.
In Dobbert, the change in the law could just as easily have benefitted the defendant as the government. The jury could have imposed death and been overruled by a judge who felt that life imprisonment was more appropriate. The Dobbert Court emphasized this fact in upholding the law as applied to the defendant. According to the Court:
[T]he new statute affords significantly more safeguards to the defendant than did the old. Death is not automatic, absent a jury recommendation of mercy, as it was under the old procedure .... Perhaps the ultimate proof of this fact is *517 that this old statute was held to be violative of the United States Constitution ... while the new law was upheld by this Court ....
Id. at 2299-2300. The ameliorative quality of the law in Dobbert is absent from the change in Maryland's law.[22]
Finally, Carmell emphasizes "fundamental justice" as a principal interest to be served by the Ex Post Facto Clause:
There is plainly a fundamental fairness interest, even apart from any claim of reliance or notice, in having the government abide by the rules of law it establishes to govern the circumstances under which it can deprive a person of his or her liberty or life.
529 U.S. at 533, 120 S.Ct. at 1633. This interest was not discussed by the court in Booth IV.
I have considered carefully whether the Booth IV court's decision can be termed an unreasonable application of clearly established federal law, see Williams, 529 U.S. at 406, 120 S.Ct. at 1519-20, particularly in light of the strong dissent in Carmell and the "cryptic" language in Collins. It is critical to my conclusion that the dissent in Carmell, while it disagreed with the majority's interpretation of the Texas statute, and indeed questioned the applicability of the Ex Post Facto Clause to changes in evidentiary rules, nonetheless advanced an understanding of the fourth Calder category that applies to the change at issue in Booth IV:
Laws that reduce the burden of persuasion the prosecution must satisfy to win a conviction may not be applied to offenses committed before their enactment.
529 U.S. at 572, 120 S.Ct. at 1653 (Ginsburg, J. dissenting). This description includes "a statute retroactively increasing the defendant's burden of persuasion as to an affirmative defense." Id. at 572, 120 S.Ct. at 1653-54. Accordingly, the Booth IV court's acknowledgment that the change placed an additional burden on the defendant, 608 A.2d at 175, combined with its failure to recognize that the change thereby violated the Ex Post Facto Clause, constitutes an unreasonable application of clearly established federal law. On this issue, the petitioner is entitled to relief.[23]
*518 Jury Instruction on Joint First-Degree Principals: Claim IV
At sentencing, Judge Angeletti instructed the jury:
A principal in the first degree, again, is the immediate perpetrator of the crime while a principal in the second degree is one who did not commit the crime with his own hands, but was present aiding and abetting the perpetrator.
Under Maryland law, only a principal in the first degree may be sentenced to death.
You are further instructed that if you find from the evidence that two people inflicted the fatal wound, you may find that they are joint principals in the first degree.
(State's Answer, Ex. 24 at 27-28.) No exception was taken to this instruction. Booth-El argues, however, that the instruction was plain error because there was no evidence to support a finding that more than one person inflicted the injuries that resulted in Mr. Bronstein's death.
On direct appeal, the Maryland Court of Appeals concluded that the evidence that more than one person murdered Mr. Bronstein was sufficient to justify an instruction on joint principals in the first degree. According to the Court:
The instruction was generated by evidence, most of which was elicited through the defendant's witness, Dr. William Brownlee .... Dr. Brownlee testified that the wounds inflicted on Mrs. Bronstein were consistent with their having been made by a certain bent knife found under or next to her body. There was a nick on the blade of that knife. The witness also testified that the wounds to Mr. Bronstein were consistent with having been made by the same bent knife .... Dr. Brownlee said that the nick on that knife was caused by something metallic, possibly a knife.... He acknowledged that "[i]t would be a hypothesis" that the nick was caused by striking another knife "at the same time of the perpetration."
Booth IV, 608 A.2d at 183-84.
To the extent that Booth-El relies on violations of state law, his claim is not cognizable in this court. See Roach v. Angelone, 176 F.3d 210, 215-17 (4th Cir. 1999). To the extent that his claim is based on a violation of federal constitutional rights, the assertion is without merit. Indeed, to constitute grounds for federal habeas corpus relief, a jury instruction must not merely be incorrect; rather, it must "violate[] some right which was guaranteed to the defendant by the Fourteenth Amendment." Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). Booth-El has identified no such right. The fact that the State did not pursue a joint principal theory did not preclude the trial judge from giving an instruction on that theory if he deemed it appropriate and supported by the evidence introduced at trial. See United States v. Gray, 47 F.3d 1359, 1369 (4th Cir.1995); United States v. Horton, 921 F.2d 540, 543-44 (4th Cir.1990).
*519 Sufficiency of the Evidence First-Degree Principal: Claim V
Booth-El argues that the evidence presented during the 1990 re-sentencing was insufficient to support the jury's finding that he was a principal in the first degree.[24] In that proceeding, Jewell Booth testified: "I am not too sure, but I think [Booth-El] said Sweetsie killed the woman and he killed the man and then he went into this ridiculous statement about his grandmother." (State's Answer, Ex. 20 at 137.) She stated further that, when she asked Booth-El whether he killed the Bronsteins, he responded: "I am surprised you would ask me something like that. Of course not. Go to bed." (Id. at 138.) Booth-El contends that this testimony was too equivocal and uncertain to be believed beyond a reasonable doubt and cannot support a finding that he was a principal in the first degree.
The Court of Appeals disagreed. It noted Eddie Smith's testimony that, shortly after the murder, Reid said in the presence of Booth-El, "we [referring to Reid and Booth-El] or he [referring to Booth-El] just killed a couple mother fuckers" and Veronda Mazyck's statement that, after the murder, she asked why Petitioner and Reid had killed the Bronsteins and he responded "because they knew me and my nephew." Booth IV, 608 A.2d at 182. Circumstantial evidence further supports such a finding. As explained by the Court of Appeals:
There was evidence that the wound patterns on the two bodies were substantially different, which tended to show that two separate people did the killings. There was evidence showing that the Bronsteins knew and could identify Booth but not Reid, which suggested that Booth had the greater motivation for murdering the couple.
Id.
Courts review the sufficiency of the evidence necessary to prove the existence of an aggravating factor under the standard established by Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). "Under the Jackson standard, a court must determine `whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements ... beyond a reasonable doubt.'" See Roach, 176 F.3d at 218 (quoting Jackson, 443 U.S. at 319, 99 S.Ct. at 2789). Considering both the testimonial and circumstantial evidence in this case in the light most favorable to the prosecution, a rational trier of fact could have so concluded. Accordingly, the court concludes there was sufficient evidence to find that Booth-El was a principal in the first degree.
Denial of Life Without Parole Option: Claim VI
Under Maryland law at the time the Bronsteins were killed, first-degree murder was punishable either by death or life imprisonment with the possibility of parole. Md. Ann.Code Art. 27, § 412(b) *520 (1957, 1978). Effective July 1, 1987, the statute was amended to provide for a third option life imprisonment without the possibility of parole. See 1987 Md. Laws ch. 237; Collins v. State, 318 Md. 269, 568 A.2d 1, 15 (1990).
During the 1990 sentencing proceedings, Booth-El requested that the jury be allowed to consider a sentence of life without parole. (State's Answer, Ex. 39 at 38-44.) The motion was denied on the basis that such a sentence could not be imposed for an offense committed prior to July 1, 1987. (Id., Ex. 13 at 125-26). Booth-El argues that depriving him of this option violates the Eighth and Fourteenth Amendments and the rule explained in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980).
In Beck the defendant was charged with robbery-intentional killing, a capital crime. He testified that he and an accomplice had entered the victim's home to rob him and that he grabbed the victim intending to tie him up. His accomplice, however, unexpectedly struck and killed the victim. Under Alabama law, this version of the events constituted felony murder, not a capital offense. Due to a prohibition on instructing a jury on lesser included offenses in capital cases, the jury was not instructed on felony murder. Instead, the jury was instructed that if the defendant was found not guilty of the capital offense of robbery-intentional killing, he would be released. The Supreme Court found a due process violation, holding:
[O]n the one hand, the unavailability of the third option of convicting on a lesser included offense may encourage the jury to convict for an impermissible reason its belief that the defendant is guilty of some serious crime and should be punished. On the other hand, the apparently mandatory nature of the death penalty may encourage it to acquit for an equally impermissible reason that, whatever his crime, the defendant does not deserve death. In any particular case these two extraneous factors may favor the defendant or the prosecution or they may cancel each other out. But in every case they introduce a level of uncertainty and unreliability into the factfinding process that cannot be tolerated in a capital case.
Beck, 447 U.S. at 642-43, 100 S.Ct. at 2392.
In California v. Ramos, the Supreme Court declined to extend its holding in Beck to sentencing proceedings. 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983). The defendant in Ramos was convicted of first-degree murder, which was punishable by either death or life imprisonment without the possibility of parole. By statute, the judge was required to instruct the jury that the Governor had the authority to commute the sentence to one with the possibility of parole. Id. at 995, 103 S.Ct. at 3450.
The Court declined to extend its holding in Beck to invalidate this requirement for two reasons. First, it concluded that the instruction did not limit the jury to two sentencing choices, neither of which might be appropriate in a particular case. Id. at 1007, 103 S.Ct. at 3456-57. Second, it distinguished between guilt and sentencing proceedings.
In returning a conviction, the jury must satisfy itself that the necessary elements of the particular crime have been proved beyond a reasonable doubt. In fixing a penalty, however, there is no similar "central issue" from which the jury's attention may be diverted. Once the jury finds that the defendant falls within the legislatively defined category of persons eligible for the death penalty, as did respondent's jury in determining the truth of the alleged special circumstance, the jury then is free to consider a myriad of factors to determine whether death is the appropriate punishment. *521 In this sense, the jury's choice between life and death must be individualized. "But the Constitution does not require the jury to ignore other possible ... factors in the process of selecting ... those defendants who will actually be sentenced to death." Zant v. Stephens, 462 U.S. [862, 878], 103 S.Ct. [2733,] 2743 [(1983)] (footnote omitted). As we have noted, the essential effect of the Briggs Instruction is to inject into the sentencing calculus a consideration akin to the aggravating factor of future dangerousness in the Texas scheme. See p. 3454 supra. This element "is simply one of the countless considerations weighed by the jury in seeking to judge the punishment appropriate to the individual defendant." [462 U.S. at 900], 103 S.Ct. at 2755 (Rehnquist, J. concurring in judgment).
Id. at 1008, 103 S.Ct. at 3457.
Booth-El argues that, although his claim arises out of a sentencing proceeding, it is governed by Beck because an issue of death eligibility, i.e., principalship, was decided during the sentencing proceedings. This argument was raised on direct appeal. The Maryland Court of Appeals found that, because principalship is an issue of sentencing and not guilt, Booth-El was not entitled to have the jury instructed on a life without parole option. Booth IV, 608 A.2d at 173-74.
Even if principalship is an element of the crime, see, e.g., Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2364-65, 147 L.Ed.2d 435 (2000), none of the concerns voiced by the Supreme Court in Beck are present in the instant case. At the time the Bronsteins were murdered, life without parole was not a sentence available under Maryland law in any type of case. Thus, Booth-El cannot argue plausibly that he presented evidence which could have supported such a sentence, nor can he assert that its absence forced the jury to choose between two alternatives which might both be inappropriate. He was convicted of first-degree murder. The possible sentences at the time of the offense for that crime were death and life imprisonment with the possibility of parole.[25] Md.Code Ann. Art. 27, § 412(b) (1957). Those possibilities were presented to the jury.
Allen Charge: Claim VII
At the time of the Bronsteins' murder, Md. Ann.Code Art. 27, § 413(k)(2) provided that "[i]f the jury, within a reasonable time, is not able to agree as to sentence, the court shall dismiss the jury and impose a sentence of imprisonment for life."[26] The sentencing jury began deliberations at 3:00 p.m. on August 15, 1990. (State's Answer, Ex. 24 at 145.) At 7:10 p.m., Judge Angeletti sent the jury home for the night. (Id. at 146.)
The jury resumed deliberations at 9:17 a.m. the next morning. (Id., Ex. 25 at 14.) At approximately 2:25 p.m., they sent a note to Judge Angeletti which said, "We are split on Question 1, Section 1. We are unable to come to an agreement on that statement." (Id. at 15.) The part of the verdict form referred to in the note provided:
Based upon the evidence, we unanimously find that each of the following statements *522 marked "proven" has been proven BEYOND A REASONABLE DOUBT and that each of those statements marked "not proven" has not been proven BEYOND A REASONABLE DOUBT.
1. The defendant was a principal in
the first degree to the murder.
_______ ______
proven not
proven
(Id., Ex. 39 at 173.) Booth-El promptly requested that the jury be dismissed and a life sentence imposed pursuant to § 413(k)(2). His request was denied. (Id., Ex. 25 at 15-17.)
Judge Angeletti then instructed the jury:
I am going to reread to you the charge on the law so that you are clear as to what your responsibilities are in that area.
The law requires that in order for you to conclude beyond a reasonable doubt that the State has proven that Mr. Booth was a first degree principal in the murder of Mr. Bronstein, all of you must agree within a reasonable time, and your verdict must be unanimous.
If any of you cannot conclude that the State had proven beyond a reasonable doubt that Mr. Booth is a principal in the murder of Mr. Bronstein, then you must mark "not proven" in the form and enter the words "life imprisonment" in Section 6.
In arriving at your decision, you must consult with one another and deliberate with a view to reaching an agreement, if you can do so without violence to your individual judgment.
Each of you must decide the case for yourself, but you must do so only after an impartial consideration of the evidence with your fellow jurors. During your deliberations, do not hesitate to reexamine your own views. You should change your opinion if convinced you are wrong, but do not surrender your honest belief as the weight or effect of the evidence only because of opinions of your fellow jurors, or for the mere purpose of reaching a verdict.
(Id. at 17-18.)
The jury resumed deliberations at 2:45 p.m. At approximately 5:50 p.m., they asked to be excused for the day because two members were not feeling well. Booth-El again requested that the jury be discharged and a life sentence imposed. Judge Angeletti denied this request and sent the jury home for the night. (Id. at 19-20.)
The next morning Booth-El renewed his motion to have the jury discharged and a life sentence imposed and, again, it was denied. Jury deliberations resumed at 9:00 a.m. At 2:25 p.m., the jury announced that it had reached a verdict. (Id., Ex. 26 at 3-4.)
Booth-El argues that Judge Angeletti's instruction was coercive and deprived him of a fair trial. On direct appeal, Booth-El argued that Judge Angeletti erred in giving an Allen charge when the jury reported that it was unable to agree on the principalship issue and that, instead, the judge should have imposed a life sentence under § 413(k)(2).[27] (Id., Ex. 38 at 31-41.)
*523 In Allen v. United States, the Supreme Court approved the use of a supplemental jury instruction directing the jury to return to deliberations and attempt to reach a verdict. 164 U.S. 492, 501-02, 17 S.Ct. 154, 157, 41 L.Ed. 528 (1896). In so doing, the Court stated:
The very object of the jury system is to secure unanimity by a comparison of views, and by arguments among the jurors themselves. It certainly cannot be the law that each juror should not listen with deference to the arguments, and with a distrust of his own judgment, if he finds a large majority of the jury taking a different view of the case from what he does himself. It cannot be that each juror should go to the jury room with a blind determination that the verdict shall represent his opinion of the case at that moment, or that he should close his ears to the arguments of men who are equally honest and intelligent as himself.
164 U.S. at 501-502, 17 S.Ct. 154. In Jenkins v. United States, the Supreme Court reversed a conviction where the jury was instructed, after reporting that they were unable to reach a verdict, "You have got to reach a decision in this case." 380 U.S. 445, 446, 85 S.Ct. 1059, 1060, 13 L.Ed.2d 957 (1965). The Court found this instruction coercive. Id. It also reversed a conviction reached when, after a jury had deliberated for seven days and twice been given Allen charges, the judge had an ex parte meeting with the foreman and may have given him the impression that a verdict "one way or the other" was required. United States v. United States Gypsum Co., 438 U.S. 422, 461-62, 98 S.Ct. 2864, 2885-86, 57 L.Ed.2d 854 (1978).
All of those cases involved federal criminal charges and were decided without reliance upon constitutional grounds. In Lowenfield v. Phelps, however, the Court examined an Allen charge given to a state jury during sentencing proceedings in a capital case on constitutional grounds and concluded that it was not coercive. 484 U.S. 231, 241, 108 S.Ct. 546, 552, 98 L.Ed.2d 568 (1988). While the Court noted that the cost of a retrial was not a concern because state law called for the imposition of a life sentence if the jury was unable to agree, it also explained that "[t]he State has in a capital sentencing proceeding a strong interest in having the jury `express the conscience of the community on the ultimate question of life or death.'" Id. at 238, 108 S.Ct. at 551 (quoting Witherspoon, 391 U.S. at 519, 88 S.Ct. at 1775). In concluding that the charge was not coercive, the Court looked at the language of the charge, the fact that the judge did not know the numerical division of the jury, and the fact that counsel did not object. Id. at 237-40, 108 S.Ct. at 550-52.
In rejecting Booth-El's claim that the Allen charge given to the sentencing jury in his case was unconstitutional, the Court of Appeals examined the instruction in Lowenfield and found that Judge Angeletti's instruction was substantially similar.[28]*524 Booth IV, 608 A.2d at 169-70. It noted that an Allen charge is not coercive merely because it is given in a capital sentencing proceeding. Id. at 170, 99 S.Ct. 2213.
Most of the traditional indicia of coercion are not present in this case.[29] Judge Angeletti did not know the numerical division of the jury. See Brasfield v. United States, 272 U.S. 448, 449-50, 47 S.Ct. 135, 135-36, 71 L.Ed. 345 (1926) (finding that questioning by judge as to numerical division of jury was improper). The charge was not specifically directed at the jurors in the minority.[30] Nor did the jury return within a short time after being given the Allen charge. See Gypsum Co., 438 U.S. at 462, 98 S.Ct. at 2886 (verdict reached on the morning after the judge's ex parte conversation with foreman gives rise to "serious questions"); United States v. Cropp, 127 F.3d 354, 360 (4th Cir.1997) (finding fact that jury deliberated seven hours after Allen charge showed lack of coercion), cert. denied, 522 U.S. 1098, 118 S.Ct. 898, 139 L.Ed.2d 883 (1998). The total amount of time spent deliberating in this case, slightly less than eighteen hours over three days after seven days of evidence, does not indicate coercion. See United States v. Glauning, 211 F.3d 1085, 1087 (8th Cir.2000) (sixteen to eighteen hours deliberation after two day trial, standing alone, did not show coercion); United States v. Frost, 125 F.3d 346, 376 (6th Cir.1997) (three days of deliberation after month long trial not significant), cert. denied 525 U.S. 810, 119 S.Ct. 40, 142 L.Ed.2d 32 (1998). More importantly, Judge Angeletti did not, as Booth-El argues, advise the jury that a unanimous verdict was required. Rather, he instructed them that, while a finding that Booth-El was a first-degree principal must be unanimous, if "any" member of the jury did not agree with this conclusion the jury "must mark `not proven' on the form and enter the words `life imprisonment'" in the section for the sentence.[31] (State's Answer, Ex. 25 at 18.)
The Court of Appeals applied the proper legal standard to Booth-El's claim. See Booth IV, 608 A.2d at 169-70 (applying the Lowenfield standard). Its conclusion that the Allen charge was not coercive is not an unreasonable application of clearly established federal law. See Tucker, 221 F.3d at 614.
Admission of Veronda Mazyck's Prior Testimony: Claim VIII
Veronda Mazyck testified at the 1984 trial to the events that took place on the night of the murders. She stated that, in 1983, she lived with Willie Reid on North Asquith Street. On the night of May 18, 1983, Reid and Booth-El came to the apartment with a small brown paper bag containing jewelry. She, Booth-El, Reid, and Jewell Edwards took a cab to Booth-El's home, where Booth-El got *525 some trash bags and gloves. They then went to a nearby house and entered through the back door. Inside she saw a woman lying on the floor with her hands tied behind her back and a man sitting on the couch with something covering his face. They removed appliances and other items from the house, placed them in a car which had been in the driveway, and took them to Ms. Mazyck's apartment. The next morning Ms. Mazyck asked Booth-El, "why you all do that to those people?" She testified that he replied, "because they knew me and my nephew." (State's Answer, Ex. 7 at 98-144.)
In 1986 a warrant was issued for Ms. Mazyck's arrest for violation of probation.[32] On June 6, 1989, she was arrested in Baltimore City on a new charge of burglary. Although she gave an alias, police or jail staff apparently were able to identify her. (Id., Ex. 21 at 116-17.) On June 15, 1989, the Court of Appeals vacated Booth-El's 1988 sentence. On July 3, 1989, the Department of Parole and Probation became aware of Ms. Mazyck's arrest. On July 11, 1989, her probation officer became aware that she was scheduled for trial that day in Wabash District Court. He contacted the Baltimore City Sheriff's Department and was told that a detainer would be placed on Ms. Mazyck. Nevertheless, when Ms. Mazyck appeared for trial, the new charge was stetted and she was released. (Id. at 148.)
At the 1990 sentencing proceedings, the prosecution requested permission to read Ms. Mazyck's 1984 testimony into the record. A hearing was held outside the presence of the jury to determine whether she was available to testify. At that hearing, Detective Donald Steinheice of the Baltimore City Police Department homicide unit testified he had attempted to locate Ms. Mazyck but was unable to do so. (Id. at 79-104.) An investigator for Booth-El testified she had been able to locate Ms. Mazyck and spoke with her on April 18, 1990. (Id. at 110.)
Judge Angeletti ruled that Ms. Mazyck was "unavailable" and allowed her 1984 testimony to be read into the record. (Id. at 183-84, 211-81; Ex. 21a at 8-59.) Sentencing counsel properly preserved his objections to the testimony. (Id., Ex. 21 at 211.) The issue, however, was not raised on direct appeal. (Id., Ex. 38.)
In his post-conviction petition, Booth-El argued that his appellate sentencing counsel was ineffective for failing to raise the issue of Ms. Mazyck's availability on direct appeal. (Id., Ex. 46 at 90-98.) He also asserted that the state had failed to make a good faith effort to locate Ms. Mazyck. (Id. at 120-22.) Judge Friedman noted that the state had made substantial efforts to locate Ms. Mazyck for the sentencing proceedings. (Id., Ex. 52 at 37.) She also noted that Booth-El did not produce Ms. Mazyck at the post-conviction hearing to testify about either her availability or his proffer that she had recanted her trial testimony. (Id.) Judge Friedman concluded that appellate counsel was not ineffective for failing to raise this issue. (Id. at 37-38.) She also found that the state had made a good faith effort to locate Ms. Mazyck, and she affirmed Judge Angeletti's ruling that Ms. Mazyck was unavailable. (Id. at 55-56.) Booth-El did not raise either issue in his application for leave to appeal the denial of post-conviction relief. (Id., Ex. 53.)
In his motion to reopen the post-conviction proceedings, Booth-El argued that Judge Angeletti erred in ruling that Ms. *526 Mazyck was unavailable and that his appellate sentencing counsel was ineffective for not raising the issue on direct appeal. He further contended that his post-conviction counsel[33] was deficient in not calling Ms. Mazyck, not presenting other evidence at the post-conviction hearing, and not presenting a more thorough argument. (Id., Ex. 62 at 25-45.) Judge Friedman concluded that it would not be in the interests of justice to allow Booth-El to reopen the post-conviction proceedings to raise these issues. She found that he had waived his proffer of Ms. Mazyck's testimony that she had been available in 1990 by the failure to present her testimony at the post-conviction hearing. As to his claim that post-conviction counsel had not presented additional legal authority, she concluded, "this court stands by its determination and application of the standard governing the availability of witnesses, specifically, Ms. Mazyck." (Id., Ex. 69 at 19.)
In his application for leave to appeal the denial of his motion to reopen, Booth-El asserted that Judge Friedman had improperly interpreted the "interests of justice" standard in denying his motion. He also argued ineffective assistance of post-conviction counsel. (Id., Ex. 71 at 15-21.) The Court of Appeals vacated Judge Friedman's decision with regard to the Brady issue but affirmed in all other respects. Booth v. State, 346 Md. 246, 696 A.2d 440 (1997).
In the present petition, Booth-El argues both that his right to confront witnesses was denied and that his appellate counsel was ineffective for failing to raise that issue on direct appeal. These claims were procedurally defaulted when they were not raised in the application for leave to appeal the denial of post-conviction relief. Raising the issues in the motion to reopen the post-conviction proceedings did not cure the default because Judge Friedman applied Maryland waiver principles and did not address them on the merits.[34]See, e.g., Baker, 220 F.3d at 290 n. 13.
Further, because there is no constitutional right to counsel in post-conviction proceedings, a claim of ineffective assistance of post-conviction counsel cannot serve as cause to excuse a procedural default. Coleman, 501 U.S. at 752-53, 111 S.Ct. at 2566; Mackall, 131 F.3d at 449. Thus, Booth-El has failed to show cause for the procedural default of these claims
Failure of Trial Judge to Recuse Himself Due to Personal Knowledge Concerning Ms. Mazyck: Claim IX
During the hearing to determine if Ms. Mazyck was available to testify at the 1990 sentencing proceedings, Jennifer Clouse, an investigator for Booth-El, testified that she had spoken to Ms. Mazyck about her 1989 incarceration. She testified:
Ms. Mazyck said that after she had been at the jail for about two weeks, she figured that she was going to do her time on the accessory after the fact charge, and she said that she called Judge Angeletti's chambers and she spoke to a man who identified himself as Judge Angeletti. She told him who she was, using her true name, and she said that she was over at the Baltimore City Jail. The man on the phone identified himself to her as Judge Angeletti and said, "Ronnie, we have been trying to find you for a long time." The conversation *527 went on for a few more sentences, and the man that Ms. Mazyck believed to be the judge then said, "This is improper; we shouldn't be having this conversation," and the conversation was terminated.
(State's Answer, Ex. 21 at 113-14.)
Robert Thumma, Ms. Mazyck's probation officer, testified that on July 24, 1989, his office received a letter from Judge Angeletti concerning a letter that Ms. Mazyck had sent to the judge. (Id. at 150.) The record does not indicate the contents of either letter.
Counsel for Booth-El argued he should be allowed to determine if Ms. Mazyck had, in fact, spoken to Judge Angeletti and asked to examine her original letter. (Id. at 162-63.) Judge Angeletti denied any impropriety but did not otherwise respond. (Id. at 164.) Counsel then renewed the motion for recusal and asked for a mistrial. Alternatively, counsel asked that Ms. Mazyck's availability be determined by another judge. All of the requests were denied. (Id. at 164.)
The issue of ex parte contact between Judge Angeletti and Ms. Mazyck was not raised on direct appeal.[35] In his post-conviction petition, Booth-El contended that his appellate sentencing counsel was ineffective for failing to raise the argument that Judge Angeletti should have recused himself based upon his contact with Ms. Mazyck. His argument was based primarily on the Maryland Canons of Judicial Conduct. (Id., Ex. 46 at 104-108.)
The post-conviction court found that the conversation and letter were "unproven and therefore ... not considered by the court." (Id., Ex. 52 at 42.) Judge Friedman examined the other grounds that Booth-El argued should have been raised on appeal and concluded:
Thus, even if appellate counsel had raised these points on appeal in addition to the others that were raised, petitioner would not have prevailed. Also, it is quite possible that counsel strategically chose to raise the issues that were raised and not to raise others that would only muddy the waters. Thus, counsel's strategic choice could not be labeled as ineffective counseling.
(Id. at 43-44.)
In his application for leave to appeal, Booth-El did not challenge Judge Friedman's finding that the contacts with Ms. Mazyck were unproven. He did argue that his sentencing counsel was ineffective for failing to raise the issue of Judge Angeletti's recusal in a thorough manner, but he did not mention the contact with Ms. Mazyck. Rather, he argued Judge Angeletti "behaved as a prosecutor rather than as a neutral arbiter in his actions toward Eddie Smith, Veronda Mazyck and Jennifer Clouse." (Id., Ex. 53 at 63.)
In his motion to reopen the post-conviction proceedings, Booth-El argued that he was denied due process and a fair trial when Judge Angeletti refused to recuse himself based upon his personal knowledge of Ms. Mazyck's availability from the phone call and letter. (Id., Ex. 62 at 46-48). In denying the motion to reopen, Judge Friedman stated that, because the issue should have been raised on direct appeal, Booth-El had to overcome the presumption that it was waived. She then stated that since the arguments about the phone call and letter had been rejected as unproven in the original post-conviction proceedings, they would not be reconsidered. (Id., Ex. 69 at 21.)
In the present petition, Booth-El asserts that he was denied due process and a *528 fair trial because Judge Angeletti refused to recuse himself despite his ex parte contacts with Ms. Mazyck. His failure to raise this claim on direct appeal constitutes a procedural default. The default was not cured by the motion to reopen post-conviction proceedings because Judge Friedman found that the claim had been waived by the failure to raise it on direct appeal. See Oken v. Corcoran, 220 F.3d 259, 264-65 (4th Cir.2000), cert. denied, ___ U.S. ___, 121 S.Ct. 1126, 148 L.Ed.2d 992 (2001).
While ineffective assistance of appellate counsel may, under some circumstances, be cause for a procedural default, Booth-El's claim for ineffective assistance of appellate sentencing counsel itself is procedurally defaulted by the failure to raise it with any degree of specificity in the application for leave to appeal the denial of post-conviction relief. Thus, the claim may serve as cause only if Booth-El can show cause and prejudice for this second level of procedural default. Edwards, 529 U.S. at 453-54, 120 S.Ct. at 1592.
The only "cause" asserted by Booth-El is deficient performance by post-conviction counsel. As is discussed supra, ineffective assistance of post-conviction counsel cannot serve as cause for a procedural default.
Use of Robbery to Sustain Felony Murder Conviction and as Sole Aggravating Factor: Claim X
Booth-El argues that, in cases such as this one, where a robbery renders the defendant eligible for the death penalty, it is unconstitutional also to use the robbery as the sole aggravating factor because it does not "narrow" the class of death eligible defendants. This claim was not raised at any point in the state proceedings. Although Booth-El now asserts that the failure to "preserve" this issue was due to ineffective assistance of counsel, that claim also was never presented to the state courts. It, therefore, cannot serve as cause. Oken, 220 F.3d at 265 (citing Edwards, 529 U.S. at 453, 120 S.Ct. at 1592).[36]
Conduct of Judge Angeletti at Sentencing: Claim XI
Booth-El argues that Judge Angeletti's conduct during the 1990 sentencing proceeding violated his right to a fair trial. First, he asserts that the Maryland Code of Judicial Conduct required Judge Angeletti to recuse himself.[37] Because it is a matter of state law, this claim cannot provide grounds for federal habeas corpus relief. Wright v. Angelone, 151 F.3d 151, 157 (4th Cir.1998).
Next, Booth-El contends that Judge Angeletti was biased against him in fact and appearance. In support of this argument Booth-El relies upon the following incidents: 1) during a meeting with counsel prior to the 1990 sentencing hearing Judge Angeletti referred to Booth-El as "amoral"; 2) Judge Angeletti offered to consider recusing himself if Booth-El would waive his right to a jury and agree to be sentenced *529 by another judge chosen by Judge Angeletti; 3) Judge Angeletti stated that he intended to rule upon pending motions as he had in the past; 4) Judge Angeletti's questioning of a defense expert, Dr. William Brownlee, was prosecutorial in nature; and 5) Judge Angeletti's treatment of defense witness Jennifer Clouse was prosecutorial in nature. Booth-El also asserts that, having been reversed twice in this case, Judge Angeletti had a personal stake in the outcome of the proceedings. Finally, Booth-El argues that, because Judge Angeletti had twice completed a Report of Trial Judge as required by Md. Rule 4-343,[38] he was a trier of fact and could not serve as a judge.
On direct appeal, Booth-El argued that Judge Angeletti should have recused himself as a result of his pre-sentencing proceeding comments that Booth-El was amoral and that he would rule upon pending motions as he had before, and because he had a personal stake in the outcome having been reversed twice in this case. Booth-El based his argument upon Canon 3 of the Code of Judicial Conduct, not any constitutional provision. (State's Answer, Ex. 38 at 130-133.)
In his post-conviction petition, Booth-El argued that his appellate sentencing counsel was ineffective for failing to fully argue the recusal issue. Specifically, Booth-El asserted that the appellate counsel should have argued that: 1) Judge Angeletti's conduct was prosecutorial in nature when he: (a) consistently overruled objections to the testimony of Eddie Smith, (b) questioned Dr. Brownlee, and (c) questioned Ms. Clouse; 2) Canon 3 of the Maryland Code of Judicial Conduct required recusal because Judge Angeletti had participated in ex parte communications with Ms. Mazyck and had presided over proceedings involving a member of her family; 3) Judge Angeletti improperly referred to Booth-El as "Mr. Guilt"; and 4) Maryland law required that a different judge rule on the recusal motion. Once again, Booth-El based his underlying recusal arguments solely on Maryland law. (Id., Ex. 46 at 99-109; Ex. 50 at 11-13.)
In his motion to reopen the post-conviction proceedings, Booth-El argued for the first time that Judge Angeletti's conduct during the 1990 sentencing proceedings violated his constitutional right to a fair trial. In that motion, he presented essentially the same arguments as are raised in the instant petition. (Id., Ex. 62 at 48-72.) In denying the motion to reopen Judge Friedman addressed these claims as follows:
Petitioner's recusal claims, when reviewed as direct constitutional claims, are absolutely barred by the failure to present them on direct appeal and reopening is, thus, not in the interests of justice. Art. 27, § 645A; McElroy v. State, 329 Md. 136, 138-42, 617 A.2d 1068 (1993). Further, even if the recusal grounds were not barred under the waiver provisions in § 645A, the fact that the grounds advanced were fully available to the petitioner at the time of the initial post conviction proceeding shows that reopening is not in the interests of justice.
(Id., Ex. 69 at 23.) Given this clear invocation of a procedural bar by the state court, Booth-El defaulted his constitutional claims by failing to raise them on direct appeal.
To the extent that he is attempting to assert ineffective assistance of appellate sentencing counsel as cause, that claim is *530 defaulted by the failure to present any type of underlying constitutional argument in his original post-conviction claim for ineffective assistance.
Maryland's Failure to Provide for Automatic Review of Ineffective Assistance of Counsel Claims is Unconstitutional: Claim XII
Under Maryland law, ineffective assistance of counsel claims generally are required to be raised in post-conviction proceedings, not on direct appeal. Colvin v. State, 299 Md. 88, 472 A.2d 953, 965 (1984). There is, however, no right of appeal in post-conviction proceedings. Appellate review must be sought by filing an application for leave to appeal. Md. Ann. Code Art. 27, § 645-I. Booth-El asserts that this system violates the Eighth and Fourteenth Amendments. Identical arguments were rejected by the United States Court of Appeals for the Fourth Circuit in Hunt, 57 F.3d at 1336-37. Booth-El makes no effort to distinguish that decision nor explain why it is incorrect.
Delay in Execution: Claim XIII
Booth-El argues that executing him seventeen years after his conviction would constitute cruel and unusual punishment. This claim was raised for the first time in his motion to reopen the post-conviction proceedings. (State's Answer, Ex. 62 at 72-75.) Contrary to Respondents' assertions, a claim may be exhausted by being raised through a request to reopen post-conviction proceedings. Baker, 220 F.3d at 291. Indeed, with a claim of this nature, the first opportunity to present it may be a motion to reopen.
In her opinion denying the motion to reopen, Judge Friedman agreed with the state's argument that, because the delay was due to Booth-El's legal attacks on his conviction and sentence, it would not be in the interests of justice to reopen the proceedings to consider this claim. (State's Answer, Ex. 69 at 24-25.) Booth-El did not challenge this decision in his application for leave to appeal. (Id., Ex. 71.) Thus, his claim was procedurally defaulted. See Bradley, 551 F.Supp. at 481 (failure to seek leave to appeal denial of post-conviction relief). Booth-El makes no attempt to show cause and prejudice for this default. Where a petitioner "does not attempt to establish cause and prejudice or actual innocence to excuse his default, we do not consider whether either exists." Fitzgerald v. Greene, 150 F.3d 357, 367 (4th Cir.), cert. denied, 525 U.S. 956, 119 S.Ct. 389, 142 L.Ed.2d 321 (1998).
Ineffective Assistance of Counsel: Claims XIV-XVII
To state a claim for ineffective assistance of counsel, a petitioner must show that "counsel's representation fell below an objective standard of reasonableness," and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 687-94, 104 S.Ct. at 2064-68. There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance ...." Whitley v. Bair, 802 F.2d 1487, 1493 (4th Cir.1986). This standard was applied by the post-conviction court. (State's Answer, Ex. 52 at 7-8.)
In the instant petition Booth-El presents several claims for ineffective assistance of counsel. Those claims are analyzed in the following sections.
A. Guilt/Innocence Counsel
1. Failure to investigate/present forensic evidence relating to the "two knife theory"
There were two knives recovered from the Bronsteins' home; a bent knife with blood on it was found under Mrs. Bronstein's body, and a serrated knife with *531 no blood was found on a chair. (Id., Ex. 7 at 9-10). At trial, the prosecution argued that Booth-El killed Mr. Bronstein and Reid killed Mrs. Bronstein.[39] (Id., Ex. 10 at 41-42.) Although the prosecution argued that differences in Mr. and Mrs. Bronstein's wounds showed that they had been killed by different persons, it never specified whether more than one knife was involved. (Id. at 48.) Booth-El's trial counsel did not challenge the theory that each of the Bronsteins had been killed by a different person. Instead, counsel argued that the State had not met its burden of proof for either premeditated or felony murder. (Id. at 53-61.)[40]
During the 1990 re-sentencing proceedings, Booth-El called Dr. William Brownlee as an expert witness. Dr. Brownlee testified that both Mr. and Mrs. Bronstein's wounds appeared to have been inflicted by a single-edged knife with a heel. (Id., Ex. 21a at 109-11.) He opined that the serrated knife found at the scene was not used in either killing and that the bent knife could have been used in both. (Id. at 112-15.) During Dr. Brownlee's testimony, it was brought out that the blood on the bent knife had not been tested to determine the blood type. (Id. at 115-16.) The sentencing jury nevertheless concluded that Booth-El was a principal in the first degree of Mr. Bronstein's murder.
The post-conviction court concluded that, in his claims for ineffective assistance of counsel, Booth-El had not met the second prong of the Strickland test. It reasoned that, since the sentencing jury had the benefit of Dr. Brownlee's testimony and still concluded beyond a reasonable doubt that Booth-El was a principal in the first degree, the testimony would not have made any difference in the verdict had it been presented during the guilt/innocence phase. (State's Answer, Ex. 52 at 10-11.) This conclusion is not an unreasonable application of clearly established federal law. See Williams, 529 U.S. at 391, 120 S.Ct. at 1512 ("[A] reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different ... is a probability sufficient to undermine confidence in the outcome.") (quoting Strickland, 466 U.S. at 694, 104 S.Ct. at 2068).
2. Failure to properly object to jury pool
The pool from which jurors for the 1984 guilt/innocence trial were chosen included three panels. Booth-El argues that the second panel was "tainted" and that counsel failed to preserve this issue for appeal.
In support of his argument that the panel was tainted, Booth-El relies on voir dire statements: a) by two panel members that they overheard conversations in the jury room about the case; b) by two different panel members in which they expressed fear; c) by three panel members refusing to provide their addresses; and d) by another juror stating that he believed Booth-El was guilty.[41] Although Ms. Shearer expressed concern over the panel,[42] she specifically stated that she was not *532 challenging the entire array. (State's Answer, Ex. 5 at 183.) At the post-conviction hearing, lead defense counsel, Mr. Brown, was questioned regarding the concerns about the panel. He testified:
C. That I I read that in there and that leads me to believe that it was, you know, one of the things you'd throw up during the course of the trial and if you can get something out of it you can, if not, then, you know I don't get the impression in looking at that that it was something that that we really wanted to to fight on that level about....
. . . . .
D. If it was meritorious we would have wanted to raise it. I mean, and preserve it for appeal. But I'm not sure it was meritorious in looking at it. I just don't know. I mean, I think that if if we had really felt strongly about it, then I think we would have preserved it.
(Id., Ex. 28 at 53.)
In her post-conviction opinion, Judge Friedman noted that all of the jurors ultimately chosen had stated that they could be impartial. She concluded that counsel had made a tactical decision to preserve the jury that had been chosen. (Id., Ex. 52 at 19-20.) She also found that, in light of the fact that none of the members of the second panel who had expressed fear or reported conversations ultimately were chosen to sit on the jury, an appellate court would not have found the jury to have been tainted even if the issue had been preserved for appeal. (Id. at 20.) This conclusion is not an unreasonable application of clearly established federal law. See Ross v. Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273, 2278, 101 L.Ed.2d 80 (1988) ("So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated."); Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975).[43]
3. Failure to request removal of a juror, Gail Graves, who expressed "fear"
After opening statements, Judge Angeletti received a note from one of the jurors asking to speak with him. He called her, *533 counsel, and Booth-El to the bench and had the following exchange:
Ms. Graves: Okay. In the vicinity where I work, I work near Park Heights and Pimlico. I work right on the corner where all this took place. I didn't even know I was going to be selected, but just that I am now. I am just I am really scared. I am frightened for my family and things like that since I work in the vicinity. I work for a public place, for a bank. You were saying all the witnesses that lived in the area were going to be testifying. I don't know if they are going to be testifying against him or for their side, but either way
The Court: Ms. Graves, there is no cause for fear in this matter. This is a normal reaction and emotion that a person as a juror would normally have. You were selected as a juror. I will simply ask you to throw out of your mind any of these considerations. Simply listen to the evidence. There is absolutely no cause of concern or fear in this case.
(State's Answer, Ex. 6 at 53-54.) Counsel did not move to strike Ms. Graves and did not ask that any further inquiry be made.
At the post-conviction hearing, Mr. Brown testified that defense counsel had considered whether to request that Ms. Graves be stricken, but had decided not to because they believed she could "be fair, could maybe hold out, if not for on guilt or innocence at least on the second phase of the trial." (Id., Ex. 28 at 56-57.) Judge Friedman found to be speculative Booth-El's argument that, if Ms. Graves had been stricken, she would have been replaced with an impartial alternate who could have swayed the jury. She concluded that, in light of Mr. Brown's reasons for wanting Ms. Graves to remain on the jury, there was no error in not moving to strike. (Id., Ex. 52 at 20-21.) This court agrees that counsel made a reasoned, tactical decision in not moving to strike Ms. Graves. This type of tactical decision should not be "second-guessed on collateral review." Fitzgerald v. Thompson, 943 F.2d 463, 469 (4th Cir.1991).
4. Trial counsel failed to preserve voir dire objections
After the jury had been chosen, defense counsel stated:
Very briefly, Your Honor. At the conclusion of your selection this morning, there was one thing which we neglected to put on the record. I would like the Court's permission to do that at this time; that is, simply the Court's jury is acceptable to the defense subject to the previous objections that have been made with regard to the Witherspoon matter, and bifurcation.
(State's Answer, Ex. 6 at 55.) Booth-El argues that this statement was ineffective because it did not preserve for appeal any objections other than the two mentioned. The only specific objection that Booth-El complains was waived is the objection to Mr. Pascoe.
Judge Friedman found that Booth-El was not prejudiced by the failure to preserve this objection because Mr. Pascoe did not serve on the jury; he was stricken by the prosecution. Thus, she concluded Booth-El did not meet the second prong of the Strickland test. (Id., Ex. 52 at 23.) This conclusion is a proper application of clearly established federal law.
5. Collectively, the errors of trial counsel prejudiced the fair outcome of the trial
Ineffective assistance of counsel claims "must be reviewed individually, rather than collectively." Fisher, 163 F.3d at 852. Because, individually, none of the alleged *534 errors amounted to unconstitutionally ineffective assistance of counsel, their cumulative effect cannot constitute ineffective assistance.
B. 1984 Appellate Counsel
1. Failure to order a complete transcript of the voir dire proceedings
On direct appeal, Booth-El was represented by George Burns and Julia Doyle Bernhardt from the Office of the Public Defender. Only portions of the voir dire were transcribed for that appeal. (See State's Answer, Ex. 2-4.) At the post-conviction hearing, Mr. Burns testified that, in 1984, the Public Defender's Office policy was not to order an entire transcript of voir dire but that "anything that was objected to, that is anything there was a reasonable probability that could be raised on appeal was ordered." (Id., Ex. 28 at 5-6.)
Booth-El argues: a) the failure to order a complete transcript constitutes ineffective assistance even without an allegation of prejudice because his appellate counsel was different from his trial counsel; b) he was prejudiced by the failure to order a complete transcript because his appellate counsel was precluded from arguing that the State had exercised its peremptory challenges in a racially biased manner; and c) he was prejudiced by the failure to order a complete transcript because the transcript would have shown contamination of the second jury panel. (Petition at 131-37.)
In addressing this claim, Judge Friedman noted that there was no Maryland or Supreme Court decision concluding that counsel's failure to obtain a complete transcript constitutes per se ineffective assistance. She then stated:
[I]n testimony at post conviction, appellate counsel indicated that they followed their standard and established procedure in the ordering of the transcript. Appellate counsel consulted with trial counsel and ordered those portions of the transcript where issues were raised. Appellate counsel was not ineffective in this case.
(State's Answer, Ex. 52 at 25-26.)
As Judge Friedman noted, the Supreme Court has never found that failure to order a complete trial transcript is per se ineffective. Further, those federal courts of appeal that have addressed the issue have concluded that a defendant arguing ineffective assistance of counsel in this context must demonstrate prejudice. See Goodwin v. Johnson, 132 F.3d 162, 176 n. 10 (5th Cir.1997); Glover v. Littlefield, 30 F.3d 133, 1994 WL 315228 at *2 (6th Cir. June 29, 1994) (unpublished); Gruszie v. United States, 937 F.2d 612, 1991 WL 127709 at *1 (9th Cir. July 15, 1991) (unpublished). Thus, Judge Friedman's conclusion that counsel was not per se ineffective in failing to obtain a complete voir dire transcript was not contrary to clearly established federal law.
Judge Friedman also noted that Booth-El had produced no evidence to support his claim that the prosecution had exercised its peremptory strikes in a racially discriminatory manner. She reiterated her earlier conclusion that the second jury panel "was not so contaminated as to prevent the petitioner from having an impartial jury." She also noted appellate counsel's testimony that standard procedures were used in deciding what portions of the transcript to order. She concluded it was not ineffective assistance for counsel not to order the complete transcript. (State's Answer, Ex. 52 at 25-26.) Her determination is not an incorrect application of clearly established federal law.
2. Failure to raise "bias" of the second jury panel on appeal
Booth-El argues that it was ineffective for his appellate counsel not to raise the *535 bias of the second jury panel on appeal. Judge Friedman restated her earlier conclusion that the appellate court would not have found the jury tainted and that, therefore, it was not ineffective assistance for counsel to fail to raise this issue. (Id. at 26.) As Booth-El does not meet the second prong of the Strickland test, Judge Friedman's conclusion was not an unreasonable application of clearly established federal law.
3. Failure to raise on appeal "false" answers given by members of the second jury panel during voir dire
Booth-El argues that members of the second jury panel concealed the fact that they had participated in conversations about the case. Judge Friedman concluded that this claim was "redundant" of his claim for failure to raise the bias issue. (Id. at 26.) Whether this is a separate claim or merely a variation on the bias claim, it fails in light of Judge Friedman's determination that the chosen jury was not tainted.
C. 1990 Sentencing Counsel
1. Sentencing counsel failed to preserve voir dire objections.
At his 1990 re-sentencing, Booth-El was represented by Thomas Hill and Gadi Weinreich of the Washington, D.C. firm, Shaw, Pittman, Potts and Trowbridge. During jury selection, the defense did not exhaust its peremptory challenges and, at the conclusion of the process, pronounced the jury "acceptable." (Id., Ex. 30 at 12.) Under Maryland law, either of these actions waives prior jury objections. White v. State, 300 Md. 719, 728-29, 481 A.2d 201, 205 (1984). Booth-El argues that counsel was unaware of the waiver rules and rendered ineffective assistance as a result. He does not allege any particular prejudice from the failure to preserve the objections. Rather, he argues that the failure to preserve the jury objections is the equivalent of failing to note a timely appeal. (Petition at 137-41.)
Here, as before the post-conviction court, Booth-El premises his argument on Lozada v. Deeds, 498 U.S. 430, 111 S.Ct. 860, 112 L.Ed.2d 956 (1991). In Lozada, the defendant sought federal habeas corpus relief on the grounds that trial counsel had failed to inform him of his right to appeal, the procedures for filing an appeal, the time limits, or that he had a right to counsel on appeal. The district court denied the petition because the defendant had not stated any grounds that he would have raised on appeal and, therefore, failed to meet the second prong of the Strickland test. The United States Court of Appeals for the Ninth Circuit denied a certificate of probable cause. The Supreme Court reversed, noting that a number of Circuits had presumed prejudice in similar situations. Id. at 432, 111 S.Ct. at 861-62.
Judge Friedman rejected the presumption of prejudice and, instead, applied the traditional Strickland analysis. (State's Answer, Ex. 52 at 29-30.) The Supreme Court has never applied a presumption of prejudice to actions which do not deprive a defendant of the opportunity to appeal but, rather, waive a specific issue. Indeed, in the context of challenges to jury selection not based on ineffective assistance, the Court has required a showing of prejudice. Ross, 487 U.S. at 88, 108 S.Ct. at 2278 ("So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated."). Lower courts have applied the traditional Strickland analysis to claims for ineffective assistance of counsel for not preserving an issue for appeal. See Mazzell v. Evatt, 88 F.3d 263, 269 (4th Cir. *536 1996) (failure to object to jury instructions). Judge Friedman's application of the traditional Strickland analysis, therefore, was not contrary to clearly established federal law.
At the post-conviction hearing, Mr. Hill testified that, at the time of the sentencing proceedings, he was aware that, by failing to exercise all peremptory strikes and pronouncing the jury acceptable, he would waive voir dire objections. (State's Answer, Ex. 30 at 12-13.) Mr. Hill testified that, during voir dire, he consulted Katherine Marks of Jury Selections, Inc., other attorneys in his firm, and Booth-El. (Id. at 27-28.) He stated he had a "vague recollection" that the reason he did not use his last peremptory strike was that he was concerned about the person who would then have become a member of the jury. (Id. at 30-31.)
Judge Friedman concluded that Mr. Hill had made a tactical decision which, under the circumstances, was not unreasonable. (Id., Ex. 52 at 30.) Her determination is not an unreasonable application of clearly established federal law. See Fitzgerald v. Thompson, 943 F.2d at 469.
2. Sentencing counsel failed to apply the proper death qualification standards during voir dire
Booth-El argues that, during voir dire, counsel and Judge Angeletti relied upon Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) rather than Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985).[44] He identifies three instances in which this misapplication caused the wrongful exclusion or inclusion of a juror.
First, Booth-El argues that one juror, Mr. Levene, was incorrectly excused for cause after stating that he was opposed to the death penalty. After Mr. Levene said he was opposed to the death penalty, Judge Angeletti asked him if he would he be able to impose the death penalty if Adolph Hitler had been convicted of killing twelve million people. Mr. Levene stated he thought he would still oppose it. (State's Answer, Ex. 15 at 128-29.) In an attempt to rehabilitate Mr. Levene, Mr. Hill then asked a number of questions about willingness to follow the law and the court's instructions. (Id. at 129-32.) Finally, after allowing the prosecution an opportunity to ask questions, Judge Angeletti inquired whether Mr. Levene could *537 "impose the death penalty in an appropriate case." Mr. Levene answered that he could not. (Id. at 138.) The prosecution then moved to excuse him for cause. Mr. Hill argued that Mr. Levene should not be stricken because he would be able to follow the court's instructions and the law even though he was morally opposed to the death penalty. Judge Angeletti disagreed, concluding: "It's obvious to the court that he would not impose the death penalty under any circumstance, and therefore would not be a fair and impartial juror to one of the parties in this proceeding." (Id. at 141.)
Mr. Hill questioned Mr. Levene in an effort to bring forth opinions indicating that he was not disqualified under Witt. He argued that Mr. Levene should not be stricken under the Witt standard. Booth-El points to no defects in Mr. Hill's questions or argument other than the fact that Judge Angeletti struck Mr. Levene for cause. Counsel did not render ineffective assistance merely because the trial judge did not rule in his favor.
Booth-El next argues that two jurors, Mr. Grant and Ms. Hopkins, who should have been struck by Judge Angeletti for cause, were not because he improperly applied the Witherspoon standard. Again, the only alleged defect in Mr. Hill's performance is that Judge Angeletti did not grant the motions to strike these jurors.
During questioning by Judge Angeletti, Mr. Grant stated that he would not automatically vote either for or against the death penalty and did not have any preexisting opinion as to the appropriate penalty for Booth-El. (Id., Ex. 18 at 99-101.) Mr. Hill then asked a number of questions concerning circumstances under which Mr. Grant would feel obligated to impose the death penalty. (Id. at 101-04.) He then argued Mr. Grant should be stricken for cause. (Id. at 104-06.) The request was denied.
During questioning by Judge Angeletti, Ms. Hopkins stated that she could vote for or against the death penalty as the facts and circumstances of the case required. (Id., Ex. 15 at 83.) When Mr. Hill questioned her, she indicated that, under the facts he proffered, she believed the death penalty would be appropriate. (Id. at 83-85.) Again, he argued that she should be stricken for cause and, again, his request was denied. (Id. at 93.)
Mr. Hill's performance did not fall below an objective standard of reasonableness. He questioned the jurors and asked that they be struck. Standing alone, the fact that Judge Angeletti did not grant the request does not demonstrate any insufficiency on Mr. Hill's part.
3. Counsel failed to object to the prosecution's reference to Booth-El as a serial killer
Near the end of his closing rebuttal argument the prosecutor stated:
Ladies and Gentlemen, it can never be said that a crime like this should go unpunished. No one could call that an act done in the name of justice. Ladies and Gentlemen, the Defendant is the ultimate criminal here. He is a repeated, serial killer. He has committed the ultimate crime and, Ladies and Gentlemen, we ask for the ultimate punishment.
(Id., Ex. 24 at 141-42.) Booth-El argues that his counsel was ineffective for failing to object to the serial killer remark. Judge Friedman found that counsel was not ineffective because the remark was accurate. She noted that, in addition to the robbery/murders of Mr. and Mrs. Bronstein, Booth-El had been convicted of an unrelated robbery/murder which occurred in April 1983. (Id., Ex. 52 at 31.) Her conclusion is not an unreasonable application of clearly established federal law. See United States v. Brainard, 690 F.2d *538 1117, 1122 (4th Cir.1982) (prosecutor may argue facts in evidence and reasonable inferences therefrom).
4. Failure to adequately question a defense witness
During the 1990 sentencing proceedings, Cessie Alphonso, a social worker, testified on behalf of Booth-El. In the course of testifying about Booth-El's background, she stated that "he became truant. He eventually got caught and he was then placed in Boy's Village where he was raped." The prosecution objected and Judge Angeletti struck the answer as unresponsive. (State's Answer, Ex. 23 at 92.) Booth-El now complains that counsel was ineffective for not following up with a different question to elicit the fact that he had been raped. As this argument was not raised as an ineffective assistance of counsel claim at any point in the state proceedings,[45] it is procedurally defaulted.
D. Sentencing Appellate Counsel
1. Failure to raise the "flip-flop" juror issue
On appeal of the 1990 sentencing proceedings, Booth-El was represented by John Kopolow and Julia Doyle Bernhardt from the Office of the Public Defender. Booth-El argues that they were ineffective for failing to argue that, after being death qualified during voir dire, one juror, Laurel Gilbert, spoke with Judge Angeletti over the phone and told him that she had changed her mind about the death penalty. After advising counsel of this conversation, Judge Angeletti struck Ms. Gilbert for cause. Booth-El also argues that Judge Angeletti then called Ms. Gilbert to the bench and spoke with her outside the presence of counsel.
Judge Friedman found this claim to be without merit because the transcript demonstrated that Judge Angeletti did not speak with Ms. Gilbert, but received a message from her. Further, the notation on the transcript indicating that counsel had not been present when Ms. Gilbert was questioned by Judge Angeletti was a clerical error. (Id., Ex. 52 at 33, 45.) Factual findings by a state court are presumed to be correct, and a federal habeas corpus petitioner has the burden to rebut this presumption with "clear and convincing evidence." 28 U.S.C. § 2254(e). Booth-El has presented no evidence to rebut the presumption.[46]
2. Failure to raise the "serial killer" issue
Booth-El argues that it was ineffective for appellate counsel not to raise the prosecutor's reference to him as a repeated serial killer during closing arguments. For the same reasons she found that it was not ineffective for sentencing counsel to have failed to object to the comment, Judge Friedman concluded that it "was not so prejudicial as to undermine the outcome of the trial." (State's Answer, Ex. 52 at 45.) For the reasons discussed above, this determination was not an unreasonable application of clearly established federal law.
Fundamental Rights: Claim XVIII
Booth-El next raises a number of claims that he classifies as violations of "fundamental rights which cannot be waived."[47]
*539 A. Denial of Right to a Fair Trial
1. Contamination of the second jury panel
Booth-El asserts that the "contamination" of the second jury panel deprived him of his right to an impartial jury free from outside influences. Judge Friedman considered this claim and concluded:
As discussed, supra, any exposure by the jury to extrinsic evidence was not enough to cause the jurors that actually sat on the jury to answer in the negative about whether or not they could be impartial. The level of exposure was not such as to require that the trial judge excuse the panel. Nor was there any argument that the extrinsic information was so pervasive that venue should have been changed.
(State's Answer, Ex. 52 at 54.) This conclusion is not an unreasonable application of clearly established federal law. See Ross, 487 U.S. at 88, 108 S.Ct. at 2278.
2. The inclusion of a biased juror, Ms. Graves, deprived Booth-El of a fair trial
Booth-El argues that "the only logical conclusion to draw" from Ms. Graves's expression of fear is that she was "predisposed" to find him guilty and that, therefore, the entire jury panel was contaminated. (Petition at 163-64.) This claim is without basis in fact. Ms. Graves stated that she was afraid because she worked in the neighborhood in which many of the witnesses lived. (State's Answer, Ex. 6 at 53-54.) This statement does not imply a predisposition either way. Indeed, trial counsel testified that he believed Ms. Graves was desirable because she was the type of juror who would be willing to stand up for her opinion should she decide in Booth-El's favor. (Id., Ex. 28 at 56-57.) Because Ms. Graves's "fear" was based on the location of her job and there is no evidence that any of the other jurors worked in the same area, it is unlikely they were "contaminated" by it.
3. The voir dire inquiry was prejudiced by Judge Angeletti's refusal to allow Mr. Hill to ask jurors a hypothetical question
During the voir dire of Mr. Grant, Mr. Hill asked a number of hypothetical questions concerning whether Mr. Grant would feel compelled to vote for or against the death penalty if he were convinced that Booth-El had been a principal in the first degree. (Id., Ex. 18 at 102-104.) Judge Angeletti allowed the questions but stated afterwards:
It was as extraordinarily unfair as any question that has been asked of any juror on voir dire, and the reason being it stops at the point of the decision as to principalship without considering the feeling of the juror with reference to any other mitigating circumstance which might be in evidence. And you completely prevent the prospective panelist from even considering the possibility that there might be mitigating circumstances that have to be considered.
(Id. at 105.) Although Judge Angeletti stated that he would not permit the questions to be answered by any other juror, he and Mr. Hill continued their discussion of the questions. (Id. at 105-107.) Later, Mr. Hill continued to ask similar questions but added references to the presentation of mitigating evidence. (Id. at 122-23.)
*540 This claim was procedurally defaulted because it was not raised at any point during the state court proceedings. Moreover, even if it were not defaulted, it is without merit because Mr. Hill was permitted to ask substantially the same question, albeit with a more accurate hypothetical.
B. Constructive Denial of Right to Counsel
Booth-El asserts that the collective errors committed by his counsel during the 1990 sentencing proceedings and on appeal is "evidence of a constructive denial of counsel." Judge Friedman found this claim to be without merit for the same reasons she had denied his individual ineffective assistance claims. (Id., Ex. 52 at 54.) Her finding is not an unreasonable application of clearly established federal law. Fisher, 163 F.3d at 852.
C. Denial of the Right of Confrontation
Booth-El argues that Judge Angeletti's questioning of Ms. Graves after she had been excused for cause violated his right of confrontation because he was not present for the questioning and counsel was not allowed an opportunity to rehabilitate her. As discussed above, this claim is without merit in light of Judge Friedman's determination that counsel and Booth-El, in fact, were present. (See State's Answer, Ex. 52 at 61.)
Prosecutorial Misconduct: Claim XIX
During the 1990 sentencing proceedings two knives were introduced into evidence. One was bent and blood stained. The other had a serrated edge. In closing, Booth-El's counsel argued that, because there was no blood found on the serrated knife, it clearly was not a murder weapon and was introduced by the prosecution to mislead the jury. (Id., Ex. 24 at 74-75.) In his rebuttal, the prosecutor argued that the state had never claimed that the serrated knife was used in the murders but, rather, that it was an item found at the scene of the crime which was introduced for what it was worth. As part of this argument he stated: "You see, life is a little different when you are a prosecutor than when you are a defense attorney. We are stuck with what we have. We are stuck with the facts and what we do is we present what we have." (Id. at 119-20.) Defense counsel did not object to this statement.
Booth-El's counsel devoted much of his closing to arguing that it had not been proven beyond a reasonable doubt that Booth-El was a principal in the first degree. As part of this argument he stated that, on cross examination, Sergeant Lamartina had indicated that, during the course of the investigation, the police had developed information that someone else (Darryl Brooks) had admitted to stabbing Mr. Bronstein. (Id. at 78.) He also challenged the credibility of both Eddie Smith and Reid in connection with Smith's testimony that Reid had admitted to him that he and Booth-El had killed some white people. (Id. at 79-80.) During his rebuttal, the prosecutor argued:
Mr. Doory: It's different being a prosecutor than it is a defense attorney. You see, even in a hearing like this, we are bound by the rules of evidence
Mr. Hill: Objection, Your Honor.
The Court: Overruled.
Mr. Doory: I can't come in here and tell you what anybody else had to say about this crime except John Booth. Mr. Hill would have you take into consideration the famous Sweetsie in his consideration; he would have you take into consideration the Defendant's nephew, Darrall Brooks. I can't come in here and show you *541 evidence against them. I can't tell you everything that they had to say. I just present the evidence against Mr. Booth and I present it in good faith.
(Id. at 122-23.)
Booth-El's counsel conceded that the murders had taken place during the course of a robbery, a statutory aggravating factor. He then stated:
Mr. Hill: What is not an aggravating factor, Ladies and Gentlemen, is the heinousness of the crime, the severity of the crime, the brutality of the crime. Just the fact, simple fact, sad fact, that the murder was committed during the course of a robbery. That you may not consider as an aggravating factor the heinousness or the brutality or the horror of the 12 stab wounds makes no difference as far as the law is concerned.
(Id. at 101.) In rebuttal the prosecutor replied:
Mr. Doory: I will speak to you about the law. I will do everything I can not to misled [sic] you. Mr. Hill, in his closing argument to you, made one egregious, one outrageous, one absolute misstatement of the law. He said that you are not allowed to take into consideration the brutality, the heinousness and the cruelty of the crime for which you are sentencing the Defendant
Mr. Hill: Objection.
The Court: Overruled.
Mr. Doory: Ladies and Gentlemen, that is one hundred percent, no, that is one thousand percent ridiculous.
(Id. at 123.)
Booth-El's parents, June Sparrow and John Booth, Sr., did not testify during the sentencing proceedings. Two of his sisters and a social worker testified about his childhood. They each stated that both parents drank heavily and were frequently absent from the home. Booth-El as the oldest child attempted to care for the others, on occasion stealing milk and bread so they would have food. All three testified that his mother abused him physically and verbally. (Id., Ex. 22 at 4-42, 104-41; Ex. 23 at 60-92.)
While commenting on the testimony of the social worker, the prosecutor stated during his rebuttal argument:
Mr. Doory: ... and why was she brought in when the people whom she interviewed, who could have presented you with live testimony, who could have been cross examined, why was she asked to do that? Because she makes a far more favorable and impressive advocate than they ever could, and any characteristics inconsistent with the defense's theory, they need not be presented to you in this form of near evidence. Had you met June Sparrow you would have realized that she is not the horrible person she is described
Mr. Hill: Objection.
The Court: Overruled.
Mr. Doory: Had you met John Booth [Sr.], you would have seen that he is someone who, for all of his faults, provides a fabulous male role model for this Defendant and did in his young, formative years and could have at any time, if that is what the Defendant wanted.
(Id., Ex. 24 at 129-30.)
Booth-El argues that those comments violated his right to a fair trial because they: 1) suggested that evidence not introduced supported the prosecution's case; 2) incorrectly stated that the prosecution and defense played by different rules; and 3) *542 misrepresented defense counsel's closing argument. This argument was raised on direct appeal.
For improper comments by a prosecutor to be grounds for federal habeas corpus relief, it is not enough that they be undesirable or even universally condemned; the remarks must have so infected the trial with unfairness that the resulting conviction is a denial of due process. See Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986). In making this determination, the court looks at "(1) the nature of the comments, (2) the nature and quantum of the evidence before the jury, (3) the arguments of opposing counsel, (4) the judge's charge, and (5) whether the errors were isolated or repeated." Arnold v. Evatt, 113 F.3d 1352, 1358 (4th Cir.1997), cert. denied, 522 U.S. 1058, 118 S.Ct. 715, 139 L.Ed.2d 655 (1998).
The Court of Appeals found that the first two challenged comments were proper rebuttal. It explained:
The State was explaining that its case was focused on proof directed toward Booth, while the defense could generate hypotheses generally consistent with the evidence in an attempt to create a reasonable doubt. Further, the State was telling the jurors, in lay terms, that it generally could not introduce the statements of persons who were not party opponents.
Booth IV, 608 A.2d at 188. This conclusion is not an unreasonable application of clearly established federal law.
The Court of Appeals found that the statement that defense counsel had misstated the law was appropriate rebuttal because defense counsel had indeed misstated Maryland law. Booth IV, 608 A.2d at 188. Because it is a determination of state law, this conclusion is binding on this court. Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 479-80, 116 L.Ed.2d 385 (1991).
Finally, the Court of Appeals concluded that Judge Angeletti had not abused his discretion in allowing the prosecutor's comment regarding Booth-El's parents:
Basically the State was presenting in an argumentative fashion the concept that Booth's parents were not the caricatures which the defense had sought to create. This was fair rebuttal. The jury had heard information that Booth's father had served in the Navy. During that period Booth and two of his siblings were born. When the father was discharged, the parents married, the father became one of the first African-American fire fighters in Baltimore City, and the couple purchased a home. The jury had also been told that, while the father was in the Navy, the mother worked as a domestic six or seven days a week, for long hours each day. Ms. Alphonso described Booth's father, at the time of her meeting with him, as a "sensitive, intelligent, highly educated man." One of Booth's sisters said that Booth's father held degrees in mechanical engineering and theology.
Booth IV, 608 A.2d at 189. This finding is not an unreasonable application of clearly established federal law. See Brainard, 690 F.2d at 1122 (prosecutor may argue facts in evidence and reasonable inferences therefrom).
Reasonable Doubt Instruction: Claim XX
At the guilt/innocence trial Judge Angeletti instructed the jury:
The State has the responsibility to offer you proof to overcome that presumption of innocence and to prove that a defendant was guilty of a crime with which he is charged and the degree of proof that it is necessary for the State to produce *543 is proof that the defendant is guilty beyond a reasonable doubt. This does not mean that the State must prove the defendant guilty beyond all possible doubt or to an absolute or mathematical certainty. The evidence in a criminal case need not be that certain, but it must establish guilt beyond a reasonable doubt.
Reasonable doubt has been defined as follows. If after considering all of the facts and law of the case you can say that you have an abiding belief that the defendant is guilty, a belief such as you would be willing to act upon in an important matter relating to the affairs of your own life, then you have no reasonable doubt.
In the final analysis in order to sustain a verdict of guilty the evidence need not eliminate from your minds every conceivable doubt based on mere guess work or speculation or suspicion but must eliminate from your minds any doubt based on a sound and logical reason.
(State's Answer, Ex. 10 at 28-29.) Booth-El argues that the middle part of this instruction was erroneous and, therefore, violated his due process rights. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970) ("the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt ...").
Trial counsel did not object to this instruction. The issue was raised for the first time during the post-conviction proceedings. Judge Friedman concluded that the instructions, when viewed as a whole, were "not bias[ed] nor did they incite misunderstanding of the meaning of reasonable doubt."[48] (State's Answer, Ex. 52 at 63.) This finding is not an unreasonable application of clearly established federal law. See Victor v. Nebraska, 511 U.S. 1, 5-6, 114 S.Ct. 1239, 1243, 127 L.Ed.2d 583 (1994).
Brady Violations: Claim XXI
Booth-El asserts that the state failed to turn over to him a statement made by Darryl Brooks and the FBI analysis of a pair of gloves found in the Bronsteins' home.
In Brady v. Maryland, the Supreme Court held that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963). There are three essential elements to a Brady claim: "(1) the evidence at issue must be favorable to the defendant, whether directly exculpatory or of impeachment value; (2) it must have been suppressed by the state, whether willfully or inadvertently; and (3) it must be material." Spicer v. Roxbury Correctional Inst., 194 F.3d 547, 555 (4th Cir. 1999). Evidence is material "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A `reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985). "[A] showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant's acquittal," but, rather, "whether in its absence he received a fair trial, understood as a *544 trial resulting in a verdict worthy of confidence." Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995).
A. FBI Report
A pair of white gloves was found inside the Bronsteins' home. The gloves, or portions thereof, were sent to the FBI for analysis. The FBI created a report stating that "no hairs of Negroid origin" were found in its analysis. (Petition, Ex. 31 at 2.) Assuming that the first two requirements of a Brady claim are met, this evidence was not "material" because there is no reasonable probability that it would have affected the outcome of the trial.[49]
B. Statement of Darryl Brooks
Darryl Brooks is Booth-El's nephew. At the time of the offense he was 12 or 13 years old. Eventually, he was charged as an adult in connection with the Bronstein murders and pled guilty to robbery with a deadly weapon. (See Supp. Answer, Ex. 82, Attached transcript at 63.) He did not testify at Booth-El's trial or sentencing.
Brooks was interviewed by the police on May 21, 1983 and made an oral statement. (Id., Ex. 74, Attachment 1.) On July 21, 1984, he signed an affidavit asserting that a statement he made on June 10th concerning the offense was not true. (Id., Attachment 2.) Booth-El argues that this affidavit and notes by Assistant State's Attorney Ara Crowe, (see Petition, Ex. 14), show that Brooks made statements to the police in addition to the one he made on May 21, 1983. He contends that the failure to turn over these statements constitutes a Brady violation.
Pursuant to the remand in Booth V, a hearing was held on this claim on October 16, 1997, at which Brooks testified that he had made several statements to the authorities implicating Booth-El and that the statements were false. (Supp. Answer, Ex. 82, attached transcript at 6-49.) A number of other witnesses, including Brooks's attorneys, testified that he did not make any statements after the May 21st interview. (Id. at 59, 65, 73, 82, 89, 106, 109-10.) Judge Friedman found Brooks's testimony to be "wholly unbelievable." (Id., Ex. 79 at 11.) After reviewing the testimony and other evidence presented, Judge Friedman concluded that the only information the prosecution had were hypothetical proffers made by Brooks's counsel during plea negotiations that were "significantly damaging, not favorable to [Booth-El]." (Id. at 14.) She found that no exculpatory evidence had been withheld and, thus, there was no Brady violation. (Id.)
As discussed above, factual findings by a state court are presumed to be correct, and a federal habeas corpus petitioner has the burden to rebut this presumption with "clear and convincing evidence." See 28 U.S.C. § 2254(e). In the instant petition, Booth-El does no more than restate the arguments he made to Judge Friedman. He, therefore, has not met his burden of proof. In light of Judge Friedman's finding that Brooks did not make any statements to authorities after *545 May 21, 1983, Booth-El's Brady claim is without merit.
Imposition of Death Penalty in Maryland: Claim XXII
Booth-El asserts that in Maryland, the death penalty is imposed in an unconstitutionally arbitrary, wanton, and freakish manner. In making this claim he relies upon a 1994 analysis entitled "The Report of the Governor's Commission on the Death PenaltyAn Analysis of Capital Punishment in Maryland: 1978-1993."[50] According to Booth-El, the report shows that, in many cases involving multiple murders or multiple aggravating factors, the defendant received a life sentence. He argues that, therefore, the death penalty is imposed disproportionately, arbitrarily, wantonly and freakishly. This claim is procedurally barred because it was not presented to the state courts.[51]
Racial Discrimination in Imposition of Death Penalty: Claim XXIII
Booth-El argues that the death penalty is imposed in a racially discriminatory manner in Maryland. To prevail on this claim, he "must prove that the decision makers in his case acted with discriminatory purpose." McCleskey v. Kemp, 481 U.S. 279, 292, 107 S.Ct. 1756, 1767, 95 L.Ed.2d 262 (1987) (emphasis omitted). Booth-El bases his argument solely upon the Report of the Governor's Commission. With regard to racial disparity the Commission found:
There is no evidence of intentional discrimination in the implementation of the death penalty in Maryland, but racial disparities in its implementation remain a matter of legitimate concern.
Commentary. The Commission's public hearings produced considerable testimony on the perceived unfairness of the death penalty, particularly on the discriminatory effects of capital punishment on African Americans. This concern focused on what the witnesses believed to be a disproportionately high number of African American capital defendants and a disproportionately low number of African American victims in capital cases. There were, however, no accusations of intentional discrimination, and, indeed, the Commission has found no evidence of any intentional discrimination.
The Commission has attempted to respond to these concerns by gathering as complete data as possible on the race of capital defendants and their victims. The data does not establish discrimination against African American defendants or in favor of White victims; neither does the data disprove racial discrimination. It has not been subject to the type of statistical analysis necessary to determine whether the numerical discrepancies that do appear are statistically significant. That inquiry is appropriate for the legislature to pursue if it wishes. The issue, however, is an extraordinarily difficult one; clear answers are unlikely to be forthcoming, regardless of the resources assigned to the task. How does one determine what variables explain the selection *546 from a very large number of murderers of a very small number of death-sentenced defendants? The Commission did not have the means to determine whether race or some other impermissible variable affects the process. The question remains how Maryland should respond to this state of uncertainty. The Commission believes that the response is for the legislature and the people of the State of Maryland to make.[52]
These statements are not sufficient evidence to support a claim that the death penalty was imposed in this case in a racially discriminatory manner. See McCleskey, 481 U.S. at 297, 107 S.Ct. at 1769-70.
Combined Effect of the Unaniminity Requirement on Principalship and Judge Angeletti's Instructions: Claim XXIV
In his Supplemental Memorandum in Support of Petition for Writ of Habeas Corpus, Booth-El argues that the requirement of a unanimous decision on principalship combined with the jury instructions deprived him of the possibility that at least one juror had reasonable doubts about principalship and could have concluded that that doubt was a mitigating factor. (Pet'r Supp. Mem. at 26-41.) This claim was never presented fairly to the state courts and, therefore, is procedurally defaulted.
CONCLUSION
For the reasons stated above, the court concludes that the removal of diminished capacity as a result of intoxication as a statutory mitigating factor at Booth-El's 1990 re-sentencing was an unconstitutional ex post facto law. The remaining claims raised by Booth-El, however, either were procedurally defaulted or do not provide a basis on which the court can grant relief. Booth-El's Petition for Writ of Habeas Corpus, therefore, will be granted in part.
NOTES
[1] See infra Analysis, Claim III.
[2] This trial and the 1988 and 1990 sentencing proceedings were in front of the Honorable Edward J. Angeletti. The first 1984 trial was in front of the Honorable James W. Murphy.
[3] The appellant's brief is attached as Exhibit 31 to the State's Answer to the Petition for Writ of Habeas Corpus and Order to Show Cause. In that brief, Booth-El raised several other arguments which pertained to the 1984 sentencing proceeding and are not relevant to the instant petition.
[4] Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).
[5] The appellant's brief is attached as Exhibit 38 to the State's Answer to the Petition for Writ of Habeas Corpus and Order to Show Cause.
[6] Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).
[7] Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
[8] The appellant's brief is attached as Exhibit 46 to the State's Answer to the Petition for Writ of Habeas Corpus and Order to Show Cause. An amended petition was filed challenging the use of the gas chamber, the method of execution then used in Maryland. (State's Answer, Ex. 48.) In 1994 the statute was amended to provide for execution by lethal injection, 1994 Md. Laws ch. 5, rendering these claims moot.
[9] The amendment was submitted as an attachment to Exhibit 62 to the State's Answer to the Petition for Writ of Habeas Corpus and Order to Show Cause.
[10] Post-conviction counsel filed an application for leave to appeal on Booth-El's behalf on January 20, 1995. (State's Answer, Ex. 53.) Booth-El filed a supplemental application pro se on January 27, 1995. Respondents have provided only portions of the supplemental application. (State's Answer, Ex. 71, Attachment B). Accordingly, it will be assumed that the supplemental application contained all of the claims in the pro se amendment to the post-conviction petition.
[11] Booth-El also argued the post-conviction court erred in denying a continuance. (State's Answer, Ex. 62 at 11-13.)
[12] The claim must be fairly presented to the state courts. Thus, both the operative facts and controlling legal principles must be presented. Baker v. Corcoran, 220 F.3d 276, 289 (4th Cir.2000) (citations and punctuation omitted), cert. denied, ___ U.S. ___, 121 S.Ct. 1194, 149 L.Ed.2d 110 (2001).
[13] The procedural default doctrine applies where a state court refuses to consider the merits of a claim on procedural grounds or where procedural grounds would clearly bar consideration of the claim by a state court. Teague, 489 U.S. at 297-98, 109 S.Ct. at 1068. It does not apply if a state court fails to apply the bar and considers the merits of a claim. County Court of Ulster v. Allen, 442 U.S. 140, 154, 99 S.Ct. 2213, 2223, 60 L.Ed.2d 777 (1979).
[14] Ineffective assistance of counsel in proceedings, such as post conviction, where representation by counsel is not constitutionally mandated, is not cause for a procedural default. Coleman, 501 U.S. at 752, 111 S.Ct. 2546. The fact that certain types of claims may only be raised in post-conviction proceedings does not create a limited constitutional right to counsel in those proceedings which would permit ineffective assistance to constitute cause. See Mackall v. Angelone, 131 F.3d 442, 449 (4th Cir.1997), cert. denied, 522 U.S. 1100, 118 S.Ct. 907, 139 L.Ed.2d 922 (1998).
[15] In capital cases, it is also possible to present a claim of actual innocence of the death penalty. See Sawyer v. Whitley, 505 U.S. 333, 345, 112 S.Ct. 2514, 2522, 120 L.Ed.2d 269 (1992); Smith v. Murray, 477 U.S. 527, 537-38, 106 S.Ct. 2661, 2668, 91 L.Ed.2d 434 (1986). Such a claim involves either showing that there was no aggravating circumstance or proving the absence of some other condition of eligibility for the death penalty. Sawyer, 505 U.S. at 345, 112 S.Ct. at 2522. To succeed, the petitioner must show "by clear and convincing evidence that but for constitutional error, no reasonable juror would find him eligible for the death penalty ...." Id. at 348, 112 S.Ct. at 2523.
[16] Donnelly involved the propriety of a remark made by the prosecutor during closing argument. 416 U.S. at 640-41, 94 S.Ct. at 1870.
[17] According to the motion, the pre-July 1, 1983 language was included on the verdict sheet at his 1984 trial. (State's Answer, Ex. 39 at 48.)
[18] In Kring, the defendant pled guilty to second-degree murder at a time when, under Missouri law, the guilty plea operated as an acquittal of the first-degree murder charge. The law was changed subsequently and, at his retrial, the court refused to accept the defendant's plea; he was tried and convicted of first-degree murder and sentenced to death. 107 U.S. at 222-23, 2 S.Ct. at 444-45. The Supreme Court overturned his conviction. Similarly, in Thompson, the Court found that a statute reducing the size of criminal juries from 12 to 8 constituted an ex post facto law. 170 U.S. at 352-53, 18 S.Ct. at 623.
[19] The significance of this change to the jury's deliberation process is indicated, in part, by the trial court's instructions to the jury that: "You are not to consider, I repeat, you are not to consider intoxication from alcohol or drugs in mitigating circumstance Number 4. You may, however, consider that in mitigating circumstance number 8, if you so choose." Booth IV, 608 A.2d at 177. As this instruction indicates, under the prior law, jurors were required to recognize intoxication as a mitigating factor, once it was proved, rather than being permitted to conclude that intoxication need not be considered in mitigation of the potential death sentence.
[20] The fact that a defendant might have received the same sentence under the prior law does not insulate the law from ex post facto review. See Lindsey v. Washington, 301 U.S. 397, 401, 57 S.Ct. 797, 799, 81 L.Ed. 1182 (1937) ("It is true that petitioners might have been sentenced to fifteen years [the sentence actually received] under the old statute. But the ex post facto clause looks to the standard of punishment prescribed by a statute, rather than to the sentence actually imposed.").
[21] In fact, most laws that violate the Ex Post Facto Clause when applied to a particular defendant probably were passed without the legislature considering that particular defendant.
[22] Of course, this conclusion does not imply that the Maryland law itself is unconstitutional. Rather, it supports a finding that the change is unconstitutional as applied to Booth-El.
[23] The State argues that, in this claim, Booth-El seeks application of a new rule of law which is not applicable retroactively and, therefore, is barred by Teague v. Lane, 489 U.S. at 310, 109 S.Ct. at 1075. (State's Answer at 35-36.)
To apply Teague, a federal court engages in a three-step process. First, it determines the date upon which the defendant's conviction became final. Second, it must `[s]urve[y] the legal landscape as it then existed,' and `determine whether a state court considering [the defendant's] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [he] seeks was required by the Constitution.' Finally, if the court determines that the habeas petitioner seeks the benefit of a new rule, the court must consider whether the relief sought falls within one of the two narrow exceptions to nonretroactivity.
Lambrix v. Singletary, 520 U.S. 518, 527, 117 S.Ct. 1517, 1524, 137 L.Ed.2d 771 (1997) (internal citations omitted); see also United States v. Sanders, 247 F.3d 139, 146 (4th Cir.2001).
Booth-El's death sentence became final on November 16, 1992 when certiorari was denied by the Supreme Court. See Caspari v. Bohlen, 510 U.S. 383, 390, 114 S.Ct. 948, 953, 127 L.Ed.2d 236 (1994). "[A] case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." Id. (quoting Teague, 489 U.S. at 301, 109 S.Ct. at 1070). Booth-El's ex post facto claim is not based upon a new rule of law. Rather, he seeks application of a very old rule, i.e., the fourth Calder category. While his claim is supported by the Supreme Court's decision in Carmell, as that decision points out, the principle has its roots in the seventeenth century prosecution of Sir John Fenwick for treason. (529 U.S. at 526-30, 120 S.Ct. at 1629-31). Even Collins, which was decided two years before Booth-El's death sentence became final and relied on by the Maryland Court of Appeals, recognized the Calder categories. 497 U.S. at 46, 110 S.Ct. at 2721. Thus, reasonable jurists in 1992 "`would have felt compelled by existing precedent' to rule in his favor," and the ex post facto claim is not based upon a new rule of law. Graham v. Collins, 506 U.S. 461, 467, 113 S.Ct. 892, 898, 122 L.Ed.2d 260 (1993) (quoting Saffle v. Parks, 494 U.S. 484, 488, 110 S.Ct. 1257, 1260, 108 L.Ed.2d 415 (1990)). It is not necessary to address the two exceptions to non-retroactivity.
[24] Under Maryland law, accomplice testimony must be corroborated to sustain a conviction. Turner v. State, 294 Md. 640, 452 A.2d 416, 417 (1982). Booth-El argues that this rule should be applicable equally to prove first-degree principalship at a capital sentencing. As explained below, the prosecution has presented sufficient corroborating evidence to support its conviction. Moreover, "federal habeas corpus relief is unavailable where a petitioner alleges the state court incorrectly or inadequately applied state law." Roach, 176 F.3d at 216. Consequently, "absent some specific evidence that the review procedures employed by [the state] court constituted an independent violation of the federal constitution, [the federal court] shall not entertain [the petitioner's] contention that the state court failed to follow state law." Id. at 216 (citing Fisher v. Angelone, 163 F.3d 835, 854-55 (4th Cir.1998)). No such violation has occurred here.
[25] This Court is bound by the Fourth Circuit's determination that the 1987 amendments creating a sentence of life without parole are not retroactively applicable. Hunt v. Nuth, 57 F.3d 1327, 1335 (4th Cir.1995).
[26] Effective July 1, 1987 this provision was amended to read: "If the jury, within a reasonable time, is not able to agree as to whether a sentence of death shall be imposed, the court may not impose a sentence of death." 1987 Md. Laws ch. 237. This change was not applied at Booth-El's 1990 resentencing. See Booth IV, 608 A.2d at 166.
[27] The Court of Appeals rejected the argument that Judge Angeletti should have dismissed the jury and imposed a life sentence. It held that "in Maryland, it is the court's function to determine whether the jury's total deliberations have extended beyond a reasonable time." Booth IV, 608 A.2d at 167. Further, it found that this decision was left to the discretion of the trial court. Id., 608 A.2d at 169. To the extent Booth-El argues that, under Maryland law, he was entitled to have a life sentence imposed when the jury reported their inability to agree, his claim is not one on which federal habeas corpus relief can be granted. Roach, 176 F.3d at 216.
[28] The instruction approved in Lowenfield read:
When you enter the jury room it is your duty to consult with one another to consider each other's views and to discuss the evidence with the objective of reaching a just verdict if you can do so without violence to that individual judgment.
Each of you must decide the case for yourself but only after discussion and impartial consideration of the case with your fellow jurors. You are not advocates for one side or the other. Do not hesitate to reexamine your own views and to change your opinion if you are convinced you are wrong but do not surrender your honest belief as to the weight and effect of evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict.
484 U.S. at 235, 108 S.Ct. at 549.
[29] In determining coerciveness of an Allen charge, the court considers the instruction, its context, any suggestion the jury would be forced to deliberate until a verdict is reached, suggestions that unanimity is required, whether the judge knew the numerical division of the jury, whether the charge was directed at the minority, the length of deliberations following the charge, the total length of deliberations, and whether the jury requested further instructions. Tucker v. Catoe, 221 F.3d 600, 611 (4th Cir.2000), cert. denied, ___ U.S. ___, 121 S.Ct. 661, 148 L.Ed.2d 563 (2000).
[30] Although the law in this Circuit states that an Allen charge should "incorporate a specific reminder both to jurors in the minority and those in the majority that they reconsider their positions in light of the other side's views," United States v. Burgos, 55 F.3d 933, 941 (4th Cir.1995), the rule is not one of constitutional law.
[31] The Court of Appeals found this statement to be an erroneous characterization of Maryland law, but concluded that it was harmless error because it was not prejudicial to Booth-El. Booth IV, 608 A.2d at 169 n. 5.
[32] Ms. Mazyck pled guilty to being an accessory after the fact to murder for her role in the Bronsteins' murders. As part of the plea agreement, she was sentenced to 15 years, all of which was suspended, and she was required to testify against Booth-El. (State's Answer, Ex. 21a at 60-66.)
[33] Booth-El was represented by Roger Galvin in the original post-conviction proceedings and on the application for leave to appeal. The motion to reopen was filed on his behalf by Nevett Steele and Michael Gentile, who were also the original counsel on the instant petition.
[34] Respondents argue that a motion to reopen post-conviction proceedings can never revive a procedurally defaulted claim. This argument recently was rejected by the Fourth Circuit. See Baker, 220 F.3d at 291.
[35] Booth-El did argue that Judge Angeletti erred in not recusing himself, but did so on grounds other than contact with Ms. Mazyck. (State's Answer, Ex. 38 at 130-33.)
[36] Even if this claim were not procedurally defaulted, it is without merit. See Lowenfield, 484 U.S. at 244-46, 108 S.Ct. at 554-55 (1988) (finding no constitutional violation where the narrowing function performed at both the guilt-innocence and sentencing phases used the used an element of the crime as the sole aggravating factor).
[37] Canon C of the Code of Judicial Conduct, currently codified as part of Md. Rule 16-813, provides in relevant part:
RECUSAL. (1) A judge should not participate in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:
(a) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.
[38] This Rule requires the presiding judge to prepare a report after sentencing with basic factual information about the defendant, the offense, the trial, and sentencing. One section calls for the judge's recommendation about whether imposition of the death sentence is justified.
[39] The jury was instructed on both premeditated and felony first-degree murder for each of the Bronsteins. (State's Answer, Ex. 10 at 72.)
[40] Booth-El was represented by Roger W. Brown and Donna P. Shearer at the 1984 trial.
[41] According to Booth-El, William Pascoe and Douglas Freeman were the panel members who heard others discussing the case, Amelia Matthews and Virginia Anderson expressed fear, Mr. Freeman, Mary Fletcher and Kathy Roseborough refused to give their addresses, and Ronald Markhum stated that "my opinion is that the Defendant was guilty." (Petition at 118-23.)
[42] The following exchange occurred between defense counsel and Judge Angeletti after Mr. Pascoe's voir dire:
Ms. Shearer: I am also concerned about this panel as a whole. Apparently there is a rumor going around that he was found guilty and the case was overturned due to an exclamation point [sic], and that they are not following your honor's instructions not to discuss the case, and that there has been some opinion formed within the jury assembly room this morning.
The Court: Keeping that in mind, the court will inquire of each panelist whether or not they have heard anything about the case, what they have heard, and whether or not that would [influence] their opinion and if it would the court will not keep them, and if it would not we will continue with the remaining questions.
(State's Answer, Ex. 4 at 43.) Counsel later reiterated her concerns. (Id., Ex. 5 at 181-83.)
[43] In Murphy, the Supreme Court held:
The constitutional standard of fairness requires that a defendant have "a panel of impartial, `indifferent' jurors." Irvin v. Dowd, 366 U.S. [717], 722, 81 S.Ct. [1639], 1642 [1961]. Qualified jurors need not, however, be totally ignorant of the facts and issues involved. "To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court." Id. at 723, 81 S.Ct. at 1642.
421 U.S. at 799-800, 95 S.Ct. at 2036.
[44] In Witherspoon the Supreme Court found that automatically excluding from a capital sentencing jury all prospective members who opposed the death penalty violated the Due Process Clause. In a footnote, the Court stated:
We repeat, however, that nothing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt.
391 U.S. at 523 n. 21, 88 S.Ct. 1770. In Witt, the Court observed that this language had been relied upon by lower federal courts as a standard for juror qualification and clarified its earlier holding:
We therefore take this opportunity to clarify our decision in Witherspoon, and to reaffirm the above-quoted standard from Adams as the proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment. That standard is whether the juror's views would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath."
469 U.S. at 424, 105 S.Ct. 844.
[45] It was raised on direct appeal as a claim of error by Judge Angeletti for striking the remark. The Court of Appeals concluded the claim had been waived by counsel's failure to rephrase it or to call Booth-El to testify about the incident. Alternatively, it concluded that if any error occurred, it was harmless. Booth IV, 608 A.2d at 185.
[46] Booth-El simply cites to the sentencing transcript, which was considered by Judge Friedman.
[47] These claims are a collection of issues which could have been raised on direct appeal of the 1984 trial or the 1990 sentencing. Because they were not raised on direct appeal, the claims were termed "fundamental rights" when raised during the post-conviction proceedings, in order to avoid application of Maryland waiver rules. See Md.Code Ann. Art. 27, § 645A(c); Cirincione v. State, 119 Md.App. 471, 705 A.2d 96, 115 (1998), cert. denied, 350 Md. 275, 711 A.2d 868 (1998).
[48] Judge Friedman did not find the claim waived by the failure of trial counsel to object, nor by not being raised on direct appeal. Booth-El properly exhausted this claim by raising it in his application for leave to appeal. (State's Answer, Ex. 53 at 76-77.)
[49] This claim was first raised in Booth-El's pro se amendment to his post-conviction petition. (State's Answer, Ex. 62, attachment at 31-32.) It was not addressed by Judge Friedman in her original decision denying relief. (Id., Ex. 52.) It was raised again in Booth-El's motion to reopen the post-conviction proceedings. (Id., Ex. 61 at 1.) In denying the motion to reopen, Judge Friedman found this claim had been waived because it was not raised in the application for leave to appeal. (Id., Ex. 69 at 14-15.) While she is correct that it was not raised in the application for leave to appeal filed on Booth-El's behalf by counsel, (see id., Ex. 53), it was raised in his pro se supplemental application. (Id., Ex. 71, Attachment B at 54-55.) Thus, it appears that this claim was not waived.
[50] Available at http: //www.sailor.lib.md.us/md/docs/death_pen/ (April 27, 1994).
[51] In the pro se amendment to his post-conviction petition, Booth-El listed as a claim:
The death penalty in the instant case was sought on the basis of racial bias, and as such is constitutionally disproportionate to sentences for first degree murder, occasioned in Baltimore City.
(State's Answer, Exhibit 62, attachment at 35.) Although this statement arguably is sufficient to present Booth-El's claim of racial bias discussed below, it does not present the claim of arbitrary and wanton imposition with sufficient particularity. Baker, 220 F.3d at 289.
[52] The Report of the Governor's Commission on the Death Penalty An Analysis of Capital Punishment in Maryland: 1978-1993, Chapter 7, Finding 10, available at http://www.sailor.lib.md.us/md/docs/death_pen/ (April 27, 1994).
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749 F.2d 281
Mack F. BURNS, Plaintiff-Appellant,United States Fidelity & Guaranty Co., Intervenor-Appellant,v.E.I. DuPONT De NEMOURS AND COMPANY, Defendant-Appellee.Willie HARRIS, Plaintiff-Appellant,v.E.I. DuPONT De NEMOURS AND COMPANY, et al., Defendants-Appellees.
Nos. 84-3538, 84-3570
Summary Calendar.
United States Court of Appeals,Fifth Circuit.
Jan. 2, 1985.
Tullos, Tullos & Tullos, Eugene C. Tullos, Raleigh, Miss., George & George, Ltd., Vincent J. DeSalvo, Baton Rouge, La., for Burns.
Donovan & Lawler, James L. Donovan, Metairie, La., for U.S. Fidelity & Guaranty Co.
Arthur Cobb, Ltd., Arthur Cobb, Baton Rouge, La., for Harris.
Chaffe, McCall, Phillips, Toler & Sarpy, Harry McCall, Jr., L. Havard Scott, III, New Orleans, La., for defendants-appellees.
Appeals from the United States District Court for the Eastern District of Louisiana; Charles Schwartz, Jr., Judge.
Before WILLIAMS, JOLLY and HILL, Circuit Judges.
PER CURIAM:
1
Affirmed on the basis of the district court's opinion. See 600 F.Supp. 20 (E.D.La.1984).
2
AFFIRMED.
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40 F.3d 1041
V. Elizabeth GINI, Plaintiff-Appellant,v.LAS VEGAS METROPOLITAN POLICE DEPARTMENT, et al.,Defendants-Appellees.
No. 93-15713.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Oct. 7, 1994.Decided Nov. 23, 1994.
Randall J. Roske and Daniel Markoff, Las Vegas, NV, for plaintiff-appellant.
Melissa Collins, Rawlings, Olson & Cannon, Las Vegas, NV, for defendants-appellees.
Appeal from the United States District Court for the District of Nevada.
Before: SCHROEDER, FERGUSON, and RYMER, Circuit Judges.
RYMER, Circuit Judge:
1
Until she was terminated for involving two judicial officers in a private dispute with the Las Vegas Metropolitan Police Department, Elizabeth Gini was a Courtroom Deputy Clerk for the United States District Court for the District of Nevada. She had filed theft charges against the girlfriend of an LVMPD officer, and when the police failed to pursue the charges as she wished, filed an Internal Affairs complaint alleging a cover-up of the theft. Meanwhile, Gini had discussed the matter with a Magistrate Judge and the Chief Judge, which came up during an Internal Affairs interview. Her complaint alleges that an LVMPD officer went to her employer, made defamatory statements about the impropriety of what she had told them, and caused her to be terminated in retaliation for her filing the theft charges and the Internal Affairs complaint. She claims this violated a number of federal constitutional rights,1 42 U.S.C. Secs. 1983-86, and she also seeks damages for defamation, invasion of privacy, infliction of emotional distress, and tortious interference with prospective business advantage. The district court2 dismissed Gini's civil rights claims for failure to state a claim under Fed.R.Civ.P. 12(b)(6), and the pendent claims pursuant to United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). Gini appeals both rulings.
2
We hold that no Sec. 1983 claim can be stated against the police officers who set the events in motion that culminated in Gini's termination, in the absence of any allegation that they knew, or reasonably should have known, that she would be terminated without due process. As the amended complaint alleges no such knowledge, and Gini acknowledged at oral argument that she would stand on this pleading, we affirm dismissal of the federal claims. While dismissal of the pendent claims was within the court's discretion, we vacate the judgment so that it can be modified to make clear that dismissal of the state claims is without prejudice.
3
* Elizabeth Gini was a Courtroom Deputy Clerk in the United States District Court for the District of Nevada. The amended complaint, whose allegations we take as true, avers that she believed that the girlfriend of a Las Vegas Metropolitan Police Officer stole some of her clothes, so she filed a stolen property report with the LVMPD and asked that a search warrant be obtained. The police declined on the footing that the information was stale. Gini became disgruntled and filed an internal affairs complaint. In the meantime Gini advised Chief Judge Lloyd George of what she was doing, and he told her to "go for it." Gini also discussed her problem with Magistrate Judge Leavitt, who agreed that the information may be too stale to support a warrant; and later, again, with Chief Judge George, who told her that she had the same rights as anyone else.
4
During the internal affairs investigation, Gini was interviewed by Lt. Daniel Mahony. Mahony told her that "the people you work for are not going to like it if you pursue this issue or if it becomes public." Gini responded that she had briefed Chief Judge George and he had said she had every right to pursue her remedies.
5
As part of his investigation, Mahony interviewed both Magistrate Judge Leavitt and the Chief Judge. Mahony told Leavitt that Gini had given him the impression that she had spoken to both judges about her case, the judges were checking up on the LVMPD investigation, were concerned that the department was not investigating the matter, and were personally interested in its outcome. Leavitt believed Mahony had implied that an abuse of power had taken place, and George thought Mahony was assuring him that the investigation was being properly handled.
6
Mahony then gave a sworn statement to the Clerk of the United States District court indicating that Gini had told him she had met with Judges George and Leavitt, that both judges saw no problem establishing probable cause and obtaining search warrants, and that there may be a federal issue here. Shortly thereafter, and without a hearing, Gini was given a Notice of Termination. It gave as reasons Gini's untrue statements to the LVMPD which led the Department to believe that Chief Judge George and Magistrate Judge Leavitt had involved themselves in her private dispute in a way that reflects adversely on the judicial officers; her misleading Judge Leavitt about whether Gini had mentioned his name in meetings with the LVMPD; attempting to use her position for personal gain; and violating Canon 2 of the Code of Conduct for Clerks of Court. There was no pre-termination hearing, but the Notice of Termination advised Gini of her right to appeal.
7
Gini filed suit in state court against the LVMPD, Mahony, Mahony's supervisor, and the Director of Financial Services who directed Mahony to contact the judges (collectively, "Mahony"). Mahony removed. The district court sua sponte indicated that the original complaint was deficient, and Gini filed the amended complaint which is the subject of this appeal.
II
8
* Gini argues that her termination was directly caused by Mahony's retaliation for her exercise of First Amendment rights; that despite being an at will employee, she has property rights created by state law and thus has federal protection for deprivation of those rights; and that she also has a liberty interest in employment protected by the Due Process Clause when the reason for dismissal was stigmatizing. The difficulty with Gini's case, however, is that assuming all these things to be true, the alleged retaliation was undertaken by Mahony (a state actor) whereas her alleged constitutional injury--being terminated without due process--was inflicted by her federal employer.
9
"To make out a cause of action under section 1983, [Gini] must plead that (1) the defendants acting under color of state law (2) deprived [her] of rights secured by the Constitution or federal statutes." Thomas v. Carpenter, 881 F.2d 828, 829 (9th Cir.1989), cert. denied, 494 U.S. 1028, 110 S.Ct. 1475, 108 L.Ed.2d 612 (1990). No matter whether her theory of constitutional injury is founded in the First Amendment right to petition for redress of grievances, property and liberty interests in continued employment, or privacy, Gini must show that Mahony deprived her of federally protected rights.
10
There is no question here that neither the LVMPD nor Mahony was Gini's employer. Neither terminated her. However, we have recognized that "[t]he requisite causal connection can be established not only by some kind of direct personal participation in the deprivation but also by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury." Merritt v. Mackey, 827 F.2d 1368, 1371 (9th Cir.1987) (quoting Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir.1978)).
11
The constitutional injury Gini claims is termination from her federal employment. Discharge assumes constitutional dimension when the employee has a property interest in continued employment, or a liberty interest in not being defamed, as a result of which she may not be terminated without due process. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). As Mahony did not and could not directly deprive Gini of due process, she must show that it was reasonably foreseeable to him that his statement to her federal employer would cause her to be terminated without a pre-termination, or name-clearing, hearing. Because her complaint makes no such allegation, it fails to state a claim.
12
We therefore conclude that because Mahony did not terminate Gini's employment without due process, and did not know and should not reasonably have known that her federal employer would terminate her employment without due process, Gini has failed to state a claim under Sec. 1983.
B
13
Gini contends that where a Sec. 1983 claim rests on retaliation for the exercise of First Amendment rights, no deprivation of property rights needs to be pled. We have so held, when the retaliation is by a state employer against a state employee who has spoken out against his employer, Thomas, 881 F.2d at 829, and when it is by a government agency against a permit holder who has criticized and sued the agency, Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1313-16 (9th Cir.1989).
14
These, and similar, cases spring from the principle that the government may not deny a person a valuable privilege or benefit on a basis that infringes her constitutionally protected interests. See Hyland v. Wonder, 972 F.2d 1129 (9th Cir.1992) (discussing cases), cert. denied, --- U.S. ----, 113 S.Ct. 2337, 124 L.Ed.2d 248 (1993). Thus, the government could not change Thomas's job, or pull the plug on Soranno's Gasco's permit, for a constitutionally unacceptable reason. Unlike these cases, however, the LVMPD could not, and did not, make any decision or take any state action affecting Gini's rights, benefits, relationship or status with the state. Mahony did allegedly defame her, but as we recognized in Patton v. County of Kings, 857 F.2d 1379 (9th Cir.1988), "the constricture of Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), that damage to reputation is not actionable under Sec. 1983 unless it is accompanied by 'some more tangible interests,' " cannot be avoided by alleging that defamation by a public official occurred in retaliation for the exercise of a First Amendment right. Patton, 857 F.2d at 1381 (quoting Paul, 424 U.S. at 701, 96 S.Ct. at 1161). For any defamation and damage flowing from it, Gini has a tort remedy under state law, not under the First Amendment. Therefore, we affirm the district court's dismissal of Gini's First Amendment claim.
C
15
Gini argues that she did not waive any privacy interests because she discussed her situation with the LVMPD and with the judicial officers. She claims that nothing in the record suggests that she knowingly authorized any LVMPD officer to talk to her employers about the theft investigation and that she told no one about her discussions with the judges until after Mahony threatened her.
16
The information she told the police is not protected by the constitutional right of privacy. By reporting a potential crime to the police, Gini could not reasonably expect the information to remain secret. Scheetz v. The Morning Call, Inc., 946 F.2d 202, 206-07 (3rd Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1171, 117 L.Ed.2d 417 (1992). "The police could have brought charges without her concurrence, at which point all the information would have wound up on the public record, where it would have been non-confidential." Id. at 207.
D
17
Gini argues that her third claim, that the LVMPD affirmatively threatened, hindered, and delayed the reporting of a crime, is a valid obstruction of justice claim. She contends that reporting a possible crime cannot be a discretionary act and that the LVMPD had an affirmative duty not to prevent her from reporting it.
18
Count three alleges that the police hindered the investigation of her theft complaint, not her reporting of the theft. The police have no affirmative obligation to investigate a crime in a particular way or to protect one citizen from another even when one citizen deprives the other of liberty of property. DeShaney v. Winnebago County, 489 U.S. 189, 195-96, 109 S.Ct. 998, 1002-03, 103 L.Ed.2d 249 (1989).
19
Gini argues that the fourth claim (prevention of an officer of the court from performing her duties) is viable because she alleged that the LVMPD conspired to injure her good name. However, injury to reputation alone is not sufficient to state a claim for loss of liberty. Paul, 424 U.S. at 703, 96 S.Ct. at 1161; Hyland, 972 F.2d at 1142.
20
Gini's fifth claim alleges negligence in not preventing the conspiracy alleged in the first claim, so it fails for the same reasons as her primary claim.III
21
Gini contends that the pendent state law claims were improperly dismissed, even though all the federal claims were dismissed, because the court never held that these claims failed to state a cause of action. She argues that the court should have either retained the state claims or referred them back to state court.
22
We disagree. "[I]n the usual case in which federal-law claims are eliminated before trial, the balance of factors ... will point toward declining to exercise jurisdiction over the remaining state law claims." Schneider v. TRW, Inc., 938 F.2d 986, 993 (9th Cir.1991) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7, 108 S.Ct. 614, 619 n. 7, 98 L.Ed.2d 720 (1988)); see also United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). Gini does not argue that her case is in any way unusual.
23
Because the court's order simply enters judgment dismissing the amended complaint, however, it might be unclear whether those claims are dismissed with or without prejudice. "When ... the court dismisses the federal claim leaving only state claims for resolution, the court should decline jurisdiction over the state claims and dismiss them without prejudice." Les Shockley Racing v. National Hod Rod Ass'n, 884 F.2d 504, 509 (9th Cir.1989). Therefore, we vacate the judgment with instructions that it be modified to make clear that dismissal of the pendent claims is without prejudice.
24
AFFIRMED; JUDGMENT VACATED FOR MODIFICATION.
1
The complaint identifies the rights she was denied as follows: to be free from intimidation under color of state law; to be free from retribution for petitioning the LVMPD; to continue in her employment without interference and not to be deprived of property rights without due process of law; to be free from infliction of emotional distress as a result of an internal police investigation; to be free from defamation affecting her liberty and property interests; to privacy; not to be oppressed by police officers; and to be free from threats to induce her to give up a course of action or to influence her actions as a public officer
2
Hon. Mary Johnson Lowe, Senior United States District Judge for the Southern District of New York, sitting by designation, presided following the recusal of all judges for the District of Nevada
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 5, 2015 *
Decided March 12, 2015
Before
RICHARD A. POSNER, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 14-1607
JOSEPH DAVIS, Appeal from the United States District
Plaintiff-Appellant, Court for the Southern District of Illinois.
v. No. 3:10-CV-00971-JPG-PMF
JILL WAHL, J. Phil Gilbert,
Defendant-Appellee. Judge.
ORDER
Joseph Davis, an Illinois inmate, appeals from the grant of summary judgment
against him in this suit under 42 U.S.C. § 1983 for deliberate indifference to his medical
needs. He contends that Dr. Jill Wahl, a physician at Pinckneyville Correctional Center,
refused to treat properly his rectal prolapse, a condition where the rectum falls through
the anal opening. See Rectal Prolapse, NAT’L INST. OF HEALTH, http://www.nlm.nih.gov/
medlineplus/ency/article/001132.htm (last updated Mar. 2, 2015). We affirm the
*
After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
No. 14-1607 Page 2
judgment because Davis furnished no evidence suggesting that Dr. Wahl provided
treatment that was so inadequate that it violated his constitutional rights.
Beginning in April 2010, Davis complained to Dr. Wahl of pain and rectal
bleeding. When the doctor first examined him, she noted that he might have a rectal
prolapse. She prescribed suppositories, blood work, and stool tests. After Davis tested
positive for a bacterial infection and complained of more abdominal discomfort and
bleeding, Dr. Wahl prescribed antibiotics for the infection and medication to relieve his
abdominal pain. When examining him in July, Dr. Wahl found no blood in his stool.
Davis still reported abdominal pain, so she ordered more stool tests. Four months after
Dr. Wahl first saw Davis, he tested negative for the bacterial infection that Dr. Wahl had
treated. Davis continued to report abdominal discomfort, and he told a nurse that
Dr. Wahl had recommended a colonoscopy.
During the next four months, other doctors treated Davis’s condition. During
that time his rectal bleeding returned, as did his bacterial infection. These doctors
categorized Davis’s bleeding, not as a rectal prolapse, but as a hemorrhoid issue. The
two conditions are often difficult to distinguish. See Jeffrey J. Morken, Rectal Prolapse,
AM. SOC’Y OF COLON AND RECTAL SURGEONS, http://www.fascrs.org/patients/
disease-condition/rectal-prolapse (last visited Feb. 27, 2015). These doctors prescribed
medications and tests similar to those ordered by Dr. Wahl, but they also began to treat
Davis with sitz baths. A sitz bath is a warm water bath often used to relieve pain and
speed healing after hemorrhoid surgery. See Sitz Baths, NAT’L INST. OF HEALTH,
http://www.nlm.nih.gov/medlineplus/ency/article/ 002299.htm (last updated Mar. 2,
2015).
Dr. Wahl saw Davis again in January 2011, about nine months after her first
examination of him. Davis told her that the sitz baths were helping relieve his
symptoms. Based on her knowledge, reflected in an uncontradicted affidavit, that he
could regularly get the equivalent of a sitz bath in his cell by sitting on a warm towel,
she cancelled the baths for him in the health-care unit and prescribed the warm-towel
treatment. But Davis found that he could not perform the towel treatment in his cell
because the cell was unsanitary and he could not get hot water there. After he filed a
grievance in which he explained these problems, Dr. Wahl reauthorized the sitz baths in
the health-care unit.
More than a year after Dr. Wahl first examined Davis, he saw two specialists in
2011 for his rectal condition. Dr. Stephen Schmidt, a gastroenterology specialist,
examined Davis in June 2011. The specialist found nothing remarkable but, like
No. 14-1607 Page 3
Dr. Wahl, suggested further stool studies, blood work, and a possible colonoscopy.
About a half year later, Dr. Matthew Mutch, a colorectal surgeon, also examined Davis.
The surgeon confirmed, as Dr. Wahl had initially suspected, that Davis had a rectal
prolapse, and he recommended surgery. But Davis has refused to consent to the
procedure.
Davis sued Dr. Wahl, contending that her treatment of his rectal condition,
including prescribing a warm towel in lieu of a sitz bath and the year-long delay before
he was referred to a specialist, violated the Eighth Amendment. After the district court
dismissed some claims not at issue on appeal, it granted summary judgment to
Dr. Wahl for three reasons. First, no evidence suggested that Dr. Wahl did not exercise
professional judgment in prescribing treatment and tests, and Davis conceded that her
treatments helped him. Second, Dr. Wahl was not deliberately indifferent to his need
for a sitz bath because she reinstated his bath treatment when she learned that Davis’s
cell was ill-equipped to provide the warm-towel equivalent. Finally, the court
concluded, nothing in the record suggested that Dr. Wahl improperly delayed Davis’s
access to a specialist and when Davis saw the first specialist, the gastroenterologist
recommended the same course of treatment as Dr. Wahl had suggested.
On appeal, Davis disputes the district court’s conclusion that Dr. Wahl did not
violate the Eighth Amendment. To avoid summary judgment on a claim of
constitutionally deficient medical care, Davis must supply evidence that Dr. Wahl both
knew of and disregarded an excessive risk to his health. See Farmer v. Brennan, 511 U.S.
825, 837 (1994). He has not met his burden.
Davis first argues that Dr. Wahl’s treatment of his rectal condition, including
the temporary discontinuation of the sitz baths, violated the Eighth Amendment. He
asserts that she knew that the baths provided him relief and that the towel procedure
would less effectively treat his symptoms. But Davis has supplied no evidence of the
second point. He does not contradict Dr. Wahl’s affidavit that the benefits of a sitz bath
can be achieved with a warm towel. Nor does he furnish evidence that she knew that
his cell was unsanitary or lacked hot water. See FED. R. CIV. P. 56(c), (e); Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986); Knight v. Wiseman, 590 F.3d 458, 463–64 (7th Cir. 2009).
And when Dr. Wahl became aware, through Davis’s prison grievance, that Davis could
not perform the warm-towel treatment in his cell, she reinstated the sitz baths for him in
the health-care unit. Finally Davis has provided no evidence that, in the remainder of her
treatment, Dr. Wahl failed to exercise her medical judgment; the fact that other doctors
continued her treatment plan—and Davis does not challenge their judgment—is
No. 14-1607 Page 4
evidence to the contrary. See Holloway v. Delaware Cnty. Sheriff, 700 F.3d 1063, 1074–75
(7th Cir. 2012); Johnson v. Doughty, 433 F.3d 1001, 1013 (7th Cir. 2006).
Davis next argues Dr. Wahl violated the Eighth Amendment by not referring him
to a specialist immediately when she first suspected a possible rectal prolapse in April
2010. Doctors may exercise their medical judgment when deciding whether to refer a
prisoner for specialist care; a decision not to refer will constitute deliberate indifference
only when the decision is “blatantly inappropriate.” See Pyles v. Fahim, 771 F.3d 403,
411–12 (7th Cir. 2014) (internal citations and quotation marks omitted); Jackson v. Kotter,
541 F.3d 688, 697–98 (7th Cir. 2008). This deferential standard is violated when needless
suffering results from the delay. See Knight, 590 F.3d at 466; Williams v. Liefer, 491 F.3d
710, 714–16 (7th Cir. 2007); Gil v. Reed, 381 F.3d 649, 662 (7th Cir. 2004); Walker v.
Benjamin, 293 F.3d 1030, 1038 (7th Cir. 2002). But nothing in the record suggests that
Davis suffered needlessly. First, Davis has admitted that, even without the referral, his
symptoms improved with Dr. Wahl’s treatment. Second, the first specialist that Davis
saw recommended treatment similar to what Dr. Wahl had been prescribing. Finally,
even after he saw a second specialist, who advised surgery, Davis has refused to consent
to that procedure; his refusal undercuts his unsubstantiated assertion of harm.
See Pinkston v. Madry, 440 F.3d 879, 892 (7th Cir. 2006); Walker v. Peter, 233 F.3d 494, 500
(7th Cir. 2000).
Davis raises other arguments on appeal, which we have considered, but because
he fails to develop them, we need not say more about them. See FED. R. APP. P.
28(a)(8)(A); Ball v. City of Indianapolis, 760 F.3d 636, 645 (7th Cir. 2014); Anderson v.
Hardman, 241 F.3d 544, 545–46 (7th Cir. 2001).
AFFIRMED.
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803 F.2d 719
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.HENRY HARPER, Plaintiff-Appellantv.ELTON SCOTT; HENRY WIDMARK, KULAS WIGGAND, Defendants-Appellees.
No. 86-1309.
United States Court of Appeals, Sixth Circuit.
Sept. 25, 1986.
1
BEFORE: MARTIN, GUY and NORRIS, Circuit Judges
ORDER
2
This matter is before the Court upon consideration of plaintiff's motion for counsel on appeal from the district court's order dismissing his civil rights complaint. The case has been referred to a panel of the Court pursuant to Sixth Circuit Rule 9(a). Upon consideration of plaintiff's motion, informal brief and the certified record, the panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.
3
Plaintiff, a prisoner, alleges that defendants, prison authorities, negligently deprived him of personal property without due process of law. Upon consideration, this Court finds that the district court's order must be affirmed. Plaintiff alleges that the deprivation of his property is the result of defendants' negligence. Injuries inflicted by governmental negligence are not addressed by the United States Constitution. Daniels v. Williams, --- U.S. ----, 106 S.Ct. 662 (1986). Hence, the protections of the Due Process Clause of the Fourteenth Amendment are not triggered by lack of due care by prison officials. Daniels, supra. Accordingly, while plaintiff may seek redress under state tort law, no procedure for compensation is constitutionally required for the negligent act of a government official which caused injury to life, liberty or property. Daniels, supra.
4
It is therefore ORDERED that plaintiff's motion for appointment of counsel be and hereby is denied and the district court's order, affirmed. Rule 9(d)(3), Rules of the Sixth Circuit.
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38 So.3d 133 (2010)
SHARPE
v.
SHARPE.
No. SC10-999.
Supreme Court of Florida.
June 1, 2010.
Decision Without Published Opinion Review dismissed.
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40 F.3d 1237
16 O.S.H. Cas. (BNA) 2081, 1995 O.S.H.D. (CCH)P 30,651
Spancretev.Secretary of Labor
NO. 94-4043
United States Court of Appeals,Second Circuit.
Oct 14, 1994
Appeal From: Dept. of Labor 90-1726
1
AFFIRMED.
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392 F.2d 590
68-1 USTC P 15,840
Willie Robert MOTLEY, Appellant,v.UNITED STATES of America, Appellee.
No. 24133.
United States Court of Appeals Fifth Circuit.
April 18, 1968.
A. K. Black, Lake City, Fla., M. H. Myerson, Jacksonville, Fla., for appellant.
Bernard Nachman, Asst. U.S. Atty., Jacksonville, Fla., for appellee.
Before TUTTLE and WISDOM, Circuit Judges, and HEEBE, District Judge.
ORDER
PER CURIAM:
1
The United States of America agreeing that the recent Supreme Court cases of Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968) and Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968) are on all fours with the instant case, and upon motion of the United States, the judgment of conviction is vacated and the case is remanded to the United States District Court for final disposition.
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 15, 2011
Decided July 11, 2011
Before
MICHAEL S. KANNE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 10-2884 Appeal from the
United States District Court for the
UNITED STATES OF AMERICA, Northern District of Illinois,
Plaintiff-Appellee, Eastern Division.
v. No. 09 CR 30
BRYAN CAMPBELL, Matthew F. Kennelly,
Defendant-Appellant. Judge.
ORDER
Bryan Campbell brokered a meeting between a crack dealer and a potential
customer. His stint as a middleman landed him a conviction for conspiracy to distribute a
controlled substance. On appeal Campbell argues that the district court should have
postponed his sentencing until the Fair Sentencing Act went into effect. We disagree; the
court did not have the authority to postpone Campbell’s sentencing to allow him to take
advantage of a change in the law regarding sentences in crack cases. Campbell also
contends that the district court ought to have sentenced him below his guidelines range
using the powder-cocaine guidelines, as the court had done with his codefendant, the crack
dealer. On this issue we conclude that the court did not sufficiently explain its refusal to
use the same approach in sentencing Campbell, so we vacate Campbell’s sentence and
remand for additional explanation.
No. 10-2884 Page 2
An acquaintance told Campbell that he was in the market for crack cocaine.
Campbell agreed to put him in touch with a dealer named John Crafton, and the trio met at
a barbershop, where a little over 100 grams of crack changed hands. Unfortunately for
Campbell and Crafton, their “customer” was working for the FBI.
Campbell pleaded guilty to a conspiracy to distribute a controlled substance.
See 21 U.S.C. §§ 846, 841(a)(1). Sentencing was set for late July 2010; Campbell asked to
postpone the hearing until the Fair Sentencing Act was signed into law so he could “reap
the possible benefits of the upcoming changes.” The district court denied the request. The
court calculated a total offense level of 27 and a criminal-history category of VI, which
yielded an imprisonment range of 130 to 162 months. Campbell’s lawyer proposed a
sentence of 120 months, which at the time was the statutory minimum term for an offense
involving at least 50 grams of crack. See id. § 841(b)(1)(A)(iii). The district court decided
instead to impose a sentence of 130 months, at the low end of Campbell’s guidelines range.
On appeal Campbell argues first that the district court committed constitutional
error by refusing to postpone his sentencing until the Fair Sentencing Act went into effect.
Campbell is wrong to assume that the district court could grant a continuance to allow him
to take advantage of a change in the law. In fact the court could not: “[T]he power to grant
or deny a continuance is abused when it is exercised not in order to manage a proceeding
efficiently but in order to change the substantive principles applicable to a case.” United
States v. Tanner, 544 F.3d 793, 796-97 (7th Cir. 2008). Because Campbell requested a
continuance solely “to reap the possible benefits of the upcoming changes in the law,” the
district court had no choice but to turn him down.
And in any event, the Fair Sentencing Act would not have applied to Campbell even
if the district court had granted the continuance. A few weeks after Campbell filed his
opening brief, this court rejected the same distinction he urges and held that the act does
not apply retroactively to any defendant who committed his offense before the act became
law, even if the defendant is not sentenced until after that day. United States v. Fisher,
635 F.3d 336, 340 (7th Cir. 2011), reh’g en banc denied, 2011 WL 2022959 (7th Cir. May 25,
2011). Campbell has not offered any persuasive reason why Fisher should be abandoned so
soon after it was decided.1 See Tate v. Showboat Marina Casino P’ship, 431 F.3d 580, 582-83
1
The U.S. Sentencing Commission voted on June 30, 2011, to make its amendment to the
federal sentencing guidelines that implements the Fair Sentencing Act of 2010 retroactive, effective
November 1, 2011. See http://www.ussc.gov/Legislative_and_Public_Affairs/Newsroom/
Press_Releases/20110630_Press_release.pdf (last visited July 11, 2011). Unless Congress acts to
(continued...)
No. 10-2884 Page 3
(7th Cir. 2005) (examining “considerations that a court should weigh in deciding whether
to follow or to overrule a previous decision”).
Campbell’s other argument is that he should have received a below-guidelines
sentence like his codefendant, Crafton. Crafton was sentenced to 151 months’
imprisonment a week before Campbell received his 130-month term. The district court
found that Crafton had participated in other drug deals that comprised part of the same
course of conduct as the offense he had committed with Campbell; this relevant conduct
pushed his drug quantity to at least 15 kilograms of crack, which produced a base offense
level of 38. (Campbell’s offense, by contrast, involved only the 100 grams of crack that he
had arranged for his acquaintance to purchase from Crafton.) Because Crafton had
accepted responsibility for his crime, the court then subtracted 3 levels to arrive at a total
offense level of 35. Factoring in Crafton’s criminal-history category of IV (which is less
serious than Campbell’s criminal-history category of VI), the court arrived at a guidelines
range of 235 to 293 months. But the court decided to give Crafton a substantial break and
sentenced him well below that range. To determine how low it should go, the court
decided to calculate, as a benchmark, the guidelines range that would have resulted if
Crafton’s offense had involved 15 kilograms of powder cocaine instead of 15 kilograms of
crack; essentially the court decided to sentence Crafton as if the sentencing guidelines’ ratio
of crack to powder cocaine was 1:1 instead of 100:1. The powder range turned out to be 151
to 188 months. After careful consideration, the court sentenced Crafton to the low end of
that range.
Campbell argues that Crafton’s below-guidelines term creates an “unwarranted
disparity” forbidden by 18 U.S.C. § 3553(a)(6) because the “profound” difference in the way
the court sentenced the codefendants was not explained and in fact cannot be justified.
Instead, Campbell continues, the district court should have sentenced him as if his offense
had involved powder cocaine rather than crack cocaine, just as it had done in Crafton’s
case. Of course the court could not actually sentence Campbell as if his offense had involved
mere powder; his guidelines range then would have been just 41 to 51 months, and the
court was forbidden by statute to sentence Campbell to a term lower than 120 months. But
the court did have some room to impose a more lenient sentence before bumping up
against the statutory limit. At issue, then, is the 10-month difference between the
1
(...continued)
disapprove the amendment, defendants who were sentenced above the mandatory minimums
based on the old guidelines will be eligible to apply to the district court to have their sentences
reduced. See 18 U.S.C. § 3582(c)(2).
No. 10-2884 Page 4
130-month sentence the district court imposed on Campbell and the 120-month mandatory minimum.
Campbell is wrong to frame his argument in terms of § 3553(a)(6). That subsection
speaks not to disparities among codefendants but rather to disparities in the sentences
handed down across judges or districts. United States v. Scott, 631 F.3d 401, 405 (7th Cir.
2011); United States v. Boscarino, 437 F.3d 634, 638 (7th Cir. 2006); see also Gall v. United States,
552 U.S. 38, 54 (2007) (holding that district court “necessarily gave significant weight and
consideration to the need to avoid unwarranted disparities” by properly calculating
guidelines range). Nevertheless, Campbell’s argument that the district court should have
meted out a shorter term on account of the leniency shown to his codefendant is a
legitimate challenge to raise on appeal. Section 3553(a) does permit a district court to
“reduce one defendant’s sentence because of another’s lenient sentence—not because of
§ 3553(a)(6), but despite it.” United States v. Bartlett, 567 F.3d 901, 908 (7th Cir. 2009).
In this case, the district court did not explain a crucial choice it made in imposing
Campbell’s sentence: the decision not to use the powder-cocaine guideline as a benchmark,
as the court had done for Crafton, the crack dealer for whom Campbell was the
middleman. At Crafton’s sentencing the court seemed to have grave doubt that the
100:1 ratio of crack to powder cocaine ought to be applied in any defendant’s case; instead
the court sentenced Crafton using a 1:1 ratio. When it came time to sentence Campbell,
however, the district court rebuffed his request to be sentenced using a 1:1 ratio and
instead returned to the 100:1 ratio. Our best guess is that this outcome was driven by
differences in the codefendants’ criminal backgrounds. Crafton hadn’t previously spent
much time in prison, the court observed. Campbell, in contrast, had fetched “progressively
more severe sentences” for drug and gun crimes yet never seemed to learn his lesson. But
we cannot be sure; the court’s explanation is not sufficient for us to review Campbell’s
challenge on this issue. See United States v. Panice, 598 F.3d 426, 443-44 (7th Cir. 2010).
Therefore we VACATE Campbell’s sentence and REMAND the case with instructions to
the district court to provide a more complete explanation for why it chose to sentence
Campbell using a 100:1 ratio of crack to powder cocaine despite earlier sentencing his more
culpable codefendant using a 1:1 ratio.
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314 F.Supp. 181 (1970)
Norma Jean CRAPPS and Evelyn B. Hall, individually, and on behalf of all others similarly situated, Plaintiffs,
v.
DUVAL COUNTY HOSPITAL AUTHORITY OF DUVAL COUNTY, FLORIDA, a body politic and corporate of the State of Florida, operating as Duval Medical Center, Defendant.
No. 70-194-Civ-J.
United States District Court, M. D. Florida, Jacksonville Division.
June 11, 1970.
Joseph F. Duszlak, Russell H. Showalter, Jr., Duval County Legal Aid Ass'n, Inc., Jacksonville, Fla., for plaintiffs.
James C. Rinaman, Jr., Gen. Counsel, David U. Tumin, John J. Higgins, Asst. Counsel, Jacksonville, Fla., for defendant.
ORDER
SCOTT, District Judge.
This cause came on for hearing in open court, with all parties represented by counsel, on May 14, 1970.
The plaintiffs, Norma Jean Crapps and Evelyn B. Hall, are female citizens of the United States. Both plaintiffs also claim to be residents of the City of Jacksonville, Duval County, Florida. The plaintiff Crapps moved to Jacksonville from Montana on March 7, 1970, and claims *182 that she intends to make Jacksonville her permanent home. The plaintiff Hall moved to Jacksonville from New York in February 1970, and she likewise claims that she intends to make Jacksonville her permanent place of residence. It is uncontested that both plaintiffs are indigent.
The defendant, Duval County Hospital Authority of Duval County, Florida, operating as Duval Medical Center, is an agency created and regulated by Chapter 63-1305, Laws of Florida, 1963, a special act with local application only in Duval County, Florida. Section 21 of Chapter 63-1305, Laws of Florida, 1963, requires that indigent individuals reside in Duval County, Florida, one (1) year preceding their application for free medical care in the defendant hospital, and it is this durational residency statute which is the root of this controversy (see Appendix A).
Plaintiffs claim to be persons who meet all standards of eligibility for admission to the Duval Medical Center for medical care without charge, subject to the rules and regulations prescribed by the Governing Body of the Duval County Hospital Authority, except that they have not resided in Duval County for a period of one (1) year preceding their applications for medical treatment. Both plaintiffs have been refused admission to the Duval Medical Center prior to institution of this suit, allegedly for the sole reason of their failure to meet the durational residency requirement.
At the hearing the defendant introduced some evidence to the effect that the reason the plaintiffs had not been admitted was their failure to submit the necessary information for the defendant to determine the plaintiffs' eligibility. Plaintiffs, on the other hand, contended that the application information given to the plaintiffs by the defendant (see Appendix B) clearly indicates the requirement of one (1) year of residency, and thus it would have been futile for the plaintiffs to have supplied further information to the defendant.
In reality this factual dispute is insignificant, for it is obvious that even if the plaintiffs had supplied all necessary information and had submitted all required forms, and were otherwise qualified for medical treatment, their lack of one (1) year of residency in Duval County would preclude their admission to the Duval Medical Center.
Thus, the plaintiffs have filed this action on behalf of themselves and all others similarly situated, predicated on 28 U.S.C. § 1343, 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201, 2202, alleging that the defendant, under the color of state law, is depriving the plaintiffs of rights, privileges and immunities secured to the plaintiffs by the equal protection clause of the Fourteenth Amendment. They request redress in the form of a declaratory judgment from this Court that the durational residency requirement of Section 21 of Chapter 63-1305, Laws of Florida, 1963, is unconstitutional, as well as a permanent injunction against the further enforcement of the durational residency requirement.
Fortunately, the opinion of the Supreme Court of the United States in the case of Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), makes the task of deciding this case an easy one. In Shapiro the Supreme Court held that a statutory one (1) year residency requirement established by several states as a prerequisite to the granting of welfare assistance violated the equal protection clause of the Fourteenth Amendment to the Constitution of the United States. In that opinion the Court said:
We do not doubt that the one-year waiting period device is well suited to discourage the influx of poor families in need of assistance. An indigent who desires to migrate, resettle, find a new job, and start a new life will doubtless hesitate if he knows that he must risk making the move without the possibility of falling back on state welfare assistance during his first year of residence, when his need may *183 be most acute. But the purpose of inhibiting migration by needy persons into the State is constitutionally impermissible.
The Supreme Court further stated:
* * * appellants argue that even if it is impermissible for a State to attempt to deter the entry of all indigents, the challenged classification may be justified as a permissible state attempt to discourage those indigents who would enter the State solely to obtain larger benefits. We observe first that none of the statutes before us is tailored to serve that objective. Rather, the class of barred newcomers is all-inclusive, lumping the great majority who come to the State for other purposes with those who come for the sole purpose of collecting higher benefits. In actual operation, therefore, the three statutes enact what in effect are nonrebuttable presumptions that every applicant for assistance in his first year of residence came to the jurisdiction solely to obtain higher benefits. Nothing whatever in any of these records supplies any basis in fact for such a presumption.
Although the terms "residence" and "domicil" have distinct legal meanings, they are often used synonymously in statutes when residence is a pre-requisite to the qualification for a right or privilege. See 11 Florida Jurisprudence, Domicil and Residence § 6. Such is the present case. In strict legal terms, domicil is the place where a person has fixed his abode with the present intention of making it his permanent home. Minick v. Minick, 111 Fla. 469, 149 So. 483 (1933). While Section 21 of Chapter 63-1305, Laws of Florida, 1963, uses the word "resided", it in reality seeks to determine domicil by establishing a non-rebuttable presumption that those who have not lived in Duval County for that period do not have the present intent to make Duval County their permanent home. But the Supreme Court, in Shapiro, has held that such a presumption may not be erected to determine domicil (or residency as the terms are used synonymously) because the thing presumed (domicil) does not necessarily follow from the established standards (one (1) year's presence). Neither does the lack of one year of residency prove that an individual lacks the present intent to make his domicil in Duval County. The resulting classification of otherwise equal indigents, and the resulting dissimilarity in treatment afforded the two classes of indigents, based on such an irrational distinction, is prohibited by the equal protection clause. Moreover, since in moving from state to state persons are exercising a constitutional right, any classification which serves to hinder that right is unconstitutional in the absence of a compelling state interest.
Shapiro does not say that the state may not enact any criteria for determining the intent of indigents seeking free medical care to reside in the community. However, the standards for determining intent must be rationally related to the finding of that ultimate fact, and any resulting classification must be shown to promote a compelling state interest. It may be that the standards for determining intent to reside among indigents will differ radically from determining intent to reside among the more affluent members of society. Indigents, due to their espoused lack of funds, may not have many roots in the community. It may ultimately boil down to the proposition that any indigent present in Duval County is entitled to free medical care so long as it cannot be shown that the indigent came to Duval County solely for the purpose of receiving the free medical care. But these are matters for counsel to consider in the first instance, and the Court indicates no opinion on these matters at that time.
This Court has previously applied the Shapiro holding to strike down a similar durational residency requirement for indigent medical care in the case of Arnold v. Halifax Hospital District, 314 F.Supp. 277 (M.D.Fla., March 11, 1970).
*184 Therefore, it is
Ordered:
1. The plaintiffs are granted leave to prosecute this suit as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure.
2. Section 21 of Chapter 63-1305, Laws of Florida, 1963, is hereby declared to be unconstitutional, as violative of the Fourteenth Amendment to the Constitution of the United States, insofar as it contains a durational residency requirement of one (1) year as a pre-requisite to the granting by the defendant of medical treatment to indigents.
3. The defendant, its representatives, servants, employees or agents, are enjoined from further enforcement of the durational residency requirement of Section 21, Chapter 63-1305, Laws of Florida, 1963. Inasmuch as Section 21, Chapter 63-1305, Laws of Florida, 1963, is a state statute of local application only, the provisions of 28 U.S.C. § 2281, requiring a three-judge court to enjoin the enforcement of a state statute, are not applicable, and enforcement of the statute may be enjoined by a single United States Judge. Moody v. Flowers, 387 U.S. 97, 87 S.Ct. 1544, 18 L.Ed.2d 643 (1967); Dusch v. Davis, 387 U.S. 112, 87 S.Ct. 1554, 18 L.Ed.2d 656 (1967); Oliver v. Mayor and Councilmen of Town of Savannah Beach, Tybee Island, Georgia, 346 F.2d 133 (5th Cir. 1965).
4. Counsel for the parties are directed to negotiate new standards for determining residency of indigent individuals seeking medical treatment in defendant's hospital facility. Jurisdiction is retained for purposes of review of the newly-promulgated standards.
APPENDIX A
LAWS OF FLORIDA CHAPTER 63-1305
Section 21. Use of Facilities. Every hospital, out-patient clinic or other facility heretofore established by act of Legislature in Duval County, Florida (with the exception of the hospital established for the Jacksonville Beaches by Chapter 25807, Laws of Florida, Special Acts of 1949) and every hospital, out-patient clinic or other facility established by the Authority subsequent to the effective date of this Act shall be for the use and benefit of the sick, infirm and injured persons and shall be under the exclusive jurisdiction of the Authority. The indigent sick, who have resided in Duval County for not less than one (1) year next preceding their application for admission for treatment, shall be admitted to such hospitals, out-patient clinics or other facilities and shall be entitled to occupancy, nursing care, medicine and attendance without charge, subject to the rules and regulations prescribed by the Authority. Such hospitals, out-patient clinics and other facilities shall care for and treat without charge patients who are found by the Authority to be indigent, but the Authority shall collect from patients financially able such charges as the Authority may from time to time establish. The Authority shall have the power to extend the benefits and privileges to non-residents of Duval County upon such terms and conditions as the Authority may from time to time by its rules and regulations provide; provided, however, that the indigent residents of Duval County shall have the first claim to admission.
*185 APPENDIX B
APPLICATION FOR MATERNITY CARE
DUVAL MEDICAL CENTER
FINANCIAL EVALUATION DEPT.
Appointment Date: Thurs. Time: 8:00 A.M.
CHECK THIS FORM IN AT FINANCIAL
EVALUATION DEPARTMENT
PLEASE BRING REQUIREMENTS LISTED BELOW:
1. PROOF OF ONE (1) YEARS RESIDENCE IN DUVAL COUNTY
(A) If married, bring proof of husbands residence for past twelve (12)
months.
(B) If single and under 21 years of age, bring proof of parents (mother
or father) residence for past twelve (12) months.
(C) If single and over 21 years of age, bring proof of your residence
for the past twelve months.
EXAMPLES:
Will accept receipts dated over period of past twelve
(12) months.
Will accept three written notorized statements from
reliable people, or places of business certifying residence
in Duval County for the past twelve (12)
months. STATEMENTS NOT ACCEPTED FROM
RELATIVES.
2. PROOF OF INCOME:
(A) Wage slip attached must be filled out by present employer of
husband.
(B) If single and under 21 years of age, bring proof of parents (mother
or father) weekly earnings.
(C) If over 21 years of age and self-supporting, bring proof of weekly
earnings.
3. PROOF OF UNEMPLOYMENT:
(A) If husband is unemployed, bring unemployment card and claims
record from Florida State Employment Service or a written statement
from last employer.
(B) If single and under 21 years of age, bring proof of parents (mother
or father) unemployment.
4. INSURANCE POLICY:
If covered by hospitalization, bring insurance policy.
5. IF MARRIED: Bring Marriage Certificate.
6. IF MARRIED and not living with husband because of desertion or
separation, bring three (3) written statements from reliable people (not
relatives), certifying separation or desertion.
7. IF MARRIED AND UNDER 21 YEARS OF AGE, person assuming
responsibility of hospital bill must accompany or send a written notorized
statement accepting responsibility.
8. IF UNMARRIED AND UNDER 21 YEARS OF AGE, a parent (mother
or father) or legal guardian must accompany you.
TO AVOID UNNECESSARY DELAY IN RECEIVING MEDICAL CARE, COMPLETE INFORMATION MUST BE PRESENTED ON RETURN APPOINTMENT.
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-00-00074-CR
Michael Anderson, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
NO. 0991669, HONORABLE TOM BLACKWELL, JUDGE PRESIDING
A jury found Michael Anderson, appellant, guilty of indecency with a child by
contact. See Tex. Penal Code Ann. § 21.11(a)(1) (West Supp. 2001). The district court assessed
punishment at ten years' confinement in the Texas Department of Criminal Justice Institutional
Division. Appellant seeks reversal and remand, raising four points of error. We will affirm.
BACKGROUND
Appellant does not challenge sufficiency of the evidence; however, a brief summary
of the evidence will provide context for the discussion of appellant's points of error.
According to trial testimony, appellant and the complainant's mother, Tonya, were
involved in a romantic relationship. On the night in question, November 18, 1998, Tonya invited
appellant to her apartment to spend the night. The couple retired to the bedroom and the fifteen year-old complainant, who was feeling ill, took some NyQuil prior to falling asleep on a couch in the
living room. Later that evening, the complainant awoke when she felt fingers inside her vagina. She
sat up and discovered appellant sitting next to her, naked, with his hands in her underpants. Without
comment, appellant quickly stood up and returned to Tonya's bedroom.
A few minutes later, Tonya emerged from the bedroom after hearing noise in the
living room. She noticed that the complainant was upset and asked her what was wrong. The
complainant told her mother that appellant had touched her. Tonya went back to the bedroom, where
she confronted appellant. From the living room, the complainant heard appellant deny the allegation
and accuse complainant of lying. The complainant became angry, obtained a knife from the kitchen,
and attempted to chase appellant from the home. Tonya restrained the complainant and appellant
ran out of the apartment. Tonya contacted a security guard, who later returned with appellant. The
police arrived shortly thereafter.
Appellant was indicted on or about May 6, 1999, for sexual assault of a child and
indecency with a child by contact. For penalty enhancement purposes, the indictment also alleged
that appellant had previously been convicted of possession of a controlled substance, a felony
offense, on February 8, 1995.
At trial, the State's witnesses were the complainant, Tonya, and two police officers
who were called to the scene. The defense called an expert witness who testified that it was possible
the complainant imagined the incident. Appellant did not testify. Appellant's defense at trial was
that the event alleged by the complainant did not occur and he was innocent of the charges.
Although the jury acquitted appellant of the sexual assault charge, it found appellant
guilty of indecency with a child by contact. Appellant elected to have the trial judge set punishment.
The district court assessed appellant's punishment at ten years' confinement in the Texas Department
of Criminal Justice Institutional Division.
Appellant's four points of error contend that (1) the judgment does not accurately
reflect events during the penalty phase of appellant's trial; (2) the State violated appellant's rights
by commenting on his failure to testify; (3) the indictment alleges an impossible date; and (4) trial
counsel rendered ineffective assistance of counsel.
DISCUSSION
Judgment
Appellant's first point of error argues that the judgment does not accurately reflect
events during the penalty phase of appellant's trial. The judgment recites that appellant pled "true"
to a previous conviction alleged for enhancement, and that the trial judge found the allegation to be
true. In contrast, the reporter's record of the sentencing hearing contains no plea and no findings
regarding the enhancement paragraph. Based on this discrepancy, appellant asks this Court to
modify the district court's judgment by deleting appellant's plea of "true" to the enhancement
paragraph and the district court's finding of "true." See Tex. R. App. P. 43.2(b).
When the judge serves as the trier of fact during the punishment phase of the trial,
it is not necessary for the enhancement paragraph to be read or for the appellant to plead to it. Reed
v. State, 500 S.W.2d 497, 499-500 (Tex. Crim. App. 1973); Davis v. State, 970 S.W.2d 747, 749-50
(Tex. App.--Houston [14th Dist.] 1998, no pet.); Simms v. State, 848 S.W.2d 754, 755 (Tex.
App.--Houston [1st Dist.] 1993, pet. ref'd). See also Tiudel v. State, 830 S.W.2d 135, 136 (Tex.
Crim. App. 1992). Appellant waived the reading of the indictment, and the judge asked if this was
because he understood the charges. Appellant nodded his head in the affirmative. Later, during a
discussion on motions, defense counsel stated he had no objection to the extraneous offenses for
punishment, as long as they were not introduced in the case-in-chief. Lastly, during the penalty
phase, when the prosecutor asked the court to consider the prior conviction, the defense counsel
made the comment, "I think the fact that he has a prior conviction has already been taken into
consideration; that's the reason we're starting at five years instead of two."
There is ample evidence to prove the previous conviction and appellant does not
argue otherwise. Without direct proof to the contrary, the recitations in a formal judgment are
presumed to be correct. Breazeale v. State, 683 S.W.2d 446, 450-51 (Tex. Crim. App. 1985). The
first point of error is overruled.
Comment on Failure to Testify
Appellant contends that the district court erred in allowing the state's counsel to
comment on appellant's failure to testify. During closing arguments, one of the prosecutors made
the following statement:
Now, as the Charge tells you, you are the exclusive judges of the credibility
of the witnesses in this case. You can believe all of what somebody says, none of
what somebody says, or some of what somebody says. And who did you hear from
in this case? Well, it's undisputed, that is, there is no evidence contrary in this case
that on or about November 18, 1999, [the complainant] was in her home. It's
undisputed. There's also no dispute that [the complainant's address] is in Austin,
Travis County, Texas. That's undisputed. There's no dispute that [the complainant]
is the person who is the victim named in the indictment. There is no dispute that
Michael Anderson is the defendant named in the indictment. In fact, [the
complainant] identified him; Tonya identified him. There is no dispute that Michael
Anderson and Tonya were dating and that they were in her bedroom at some point
during that night. There's no dispute that [the complainant] was on the couch.
There's no dispute that Michael Anderson was standing in front of [the complainant]
naked.
(Emphasis added.) Appellant argues that the phrase, "And who did you hear from in this case," is
a reference to his failure to testify and thus is in violation of his right to remain silent under the Fifth
Amendment to the United States Constitution, section 10 of article I of the Texas Constitution, and
article 38.08 of the Texas Code of Criminal Procedure.
There was no objection to the prosecutor's argument. An appellant forfeits his right
to raise an argument on appeal if he failed to object to a jury argument or pursue an adverse ruling
during trial. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). The alleged error was
not preserved for appeal.
Even if the objection had been preserved, the argument was not improper because
when taken in context, the prosecutor's comment does not constitute even an indirect comment on
appellant's failure to testify. See Nowlin v. State, 507 S.W.2d 534, 537 (Tex. Crim. App. 1974). In
this case, the prosecutor was referring to evidence that could have been supplied by parties other than
the appellant, including Tonya, the security guard, or the police officers. The prosecutor did not
comment on the challenged portions of the case. The prosecutor's statements referred only to
undisputed physical facts that had no relation to appellant's defense at trial. There is nothing
appellant could have testified to that would contradict these points. Appellant's defense was not that
he was somewhere other than at the complainant's home on the night alleged, but rather that the
specific incident never occurred.
The second point of error is overruled.
Indictment
Appellant challenges the district court's jurisdiction because he claims that the
indictment alleges an impossible date. See Tex. Code Crim. Proc. Ann. art. 21.02(6) (West 1989).
Appellant was charged with indecency with a child on November 18, 1998. According to the
reporter's record, the prosecutor stated in open court that the indictment was handed down May 6,
1991--more than seven years prior to the offense. However, the indictment appears in the clerk's
record and is file stamped May 6, 1999. The incorrect date in the reporter's record was simply due
to a transcription error or the prosecutor's slip of the tongue. The third point of error is overruled.
Ineffective Assistance of Counsel
Appellant's fourth point of error raises the issue of ineffective assistance of counsel.
Appellant alleges the defense counsel at trial was ineffective in three areas: (1) he did not object to
the prosecutors or witnesses referring to the complainant as "the victim"; (2) he did not challenge
for cause any venirepersons who had personal experience with abuse, and allowed one juror who had
been abused to serve on the jury; and (3) he did not object to the prosecutor's alleged comment on
appellant's failure to testify.
In determining whether counsel's actions constitute ineffective assistance under the
Sixth Amendment to the United States Constitution, the relevant test is found in Strickland v.
Washington, 466 U.S. 668, 687 (1984), which was first adopted by the Texas Court of Criminal
Appeals in Hernandez v. Texas, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). This test requires that
a court first determine if the attorney provided reasonably effective assistance. Hernandez, 726
S.W.2d at 55; see also Chuong Duong Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000);
Thompson v. State, 9 S.W.3d 808, 812-13 (Tex. Crim. App. 1999); Young v. State, 991 S.W.2d 835,
837 (Tex. Crim. App. 1999). This determination requires some evidence regarding the defense
attorney's strategy, such as testimony during a motion for a new trial, or we must presume the
attorney made his decisions reasonably. Thompson v. State, 9 S.W.3d 808, 814-15 (Tex. Crim. App.
1999); Jackson, 877 S.W.2d at 772-73 (Baird, J., concurring). It is not up to this Court to second
guess the defense attorney's trial strategy. See Johnson v. State, 629 S.W.2d 731, 737 (Tex. Crim.
App. 1981). Instead, we must try to view the case from counsel's view at the time, rather than
indulge in the distorting effects of hindsight. Strickland, 466 U.S. at 689; Ex parte Kunkle, 852
S.W.2d 499, 505 (Tex. Crim. App. 1993). If it is determined that the defense attorney did not
provide reasonably effective assistance, the court must then decide if the error resulted in reversible
error or prejudice. Hernandez, 726 S.W.2d at 55; see also Chuong Duong Tong, 25 S.W.3d at 712;
Thompson, 9 S.W.3d at 812-13; Young v. State, 991 S.W.2d at 837.
A. "Victim" Language
Appellant refers to eight occasions when defense counsel did not object to use of the
term "victim." He argues that failure to object to use of this term was not a reasonable trial strategy
and prejudiced appellant's fundamental and substantial right to be presumed innocent.
There is a strong presumption that any actions taken by a defense attorney were made
as sound trial strategy. Strickland, 466 U.S. at 689; Jackson v. State, 877 S.W.2d 768, 771 (Tex.
Crim. App. 1994); Mayhue v. State, 969 S.W.2d 503, 510 (Tex. App.--Austin 1998, no pet.). The
appellant has the burden of overcoming this presumption. Jackson, 877 S.W.2d at 771; Gutierrez
v. State, 8 S.W.3d 739, 749 (Tex. App.--Austin 1999, no pet.); Mayhue, 969 S.W.2d at 510.
"Victim" is quite mild compared to other terms used by prosecutors in their comments to the jury,
which the courts have found non-prejudicial. Lopez v. State, 286 S.W.2d 424, 425 (Tex. Crim. App.
1956) (holding that use of word "slaughter" did not cause injury to appellant); Espalin v. State, 237
S.W. 274, 279 (Tex. Crim. App. 1921) (holding prosecutor's reference to appellant as "this killer"
was not so prejudicial as to injure appellant's rights); Jones v. State, 900 S.W.2d 392, 397 (Tex.
App.--San Antonio 1995, pet. ref'd) (holding that prosecutor's use of term "sex slave" in regard to
complainant was not reversible error); White v. State, 699 S.W.2d 607, 615 (Tex. App.--Dallas
1985, pet. ref'd) (holding that use of word "butcher" in reference to appellant was not improper).
Failure to object to the term "victim" may have been an intentional choice not to draw
the jury's attention to its use. At best, the defense attorney at trial could have requested use of the
term "alleged victim"; however, it is unlikely he would have succeeded or that this would have had
a different effect on the jury. Therefore, failure to object did not constitute ineffective assistance of
counsel.
B. Voir Dire
During voir dire, the prosecutor asked: "Is anybody either themselves or a relative or
someone close to them been a victim of child abuse?" Four venirepersons raised their hands. Of
these four, two were peremptorily stricken by the defense attorney without discussion; one was
peremptorily stricken after discussion; and the fourth was not stricken and became a member of the
jury. Appellant alleges his attorney should have attempted to challenge the first three venirepersons
for cause, rather than using peremptory strikes, and that the juror who served should have been
challenged for cause, or at a minimum struck peremptorily. Appellant believes that these actions did
not constitute reasonable trial strategy and that they resulted in a prejudicial jury.
Without a record regarding the defense attorney's trial strategy, it is presumed counsel
used reasonable judgment during voir dire. Jackson, 877 S.W.2d at 771; Delrio v. State, 840 S.W.2d
443, 447 (Tex. Crim. App. 1992). There was no motion for new trial, no hearing, and no affidavit
from defense counsel. Therefore, the record is completely silent regarding trial strategy. Without
some evidence regarding the defense attorney's strategy, such as testimony during a motion for a new
trial, we must presume the attorney made his decisions regarding jury members reasonably.
Thompson v. State, 9 S.W.3d 808, 814-15 (Tex. Crim. App. 1999); Jackson, 877 S.W.2d at 772-73
(Baird, J., concurring). We cannot second guess the defense attorney's trial strategy and declare that
defense counsel's failure to challenge for cause was not sound trial strategy; nor can we say, in the
absence of testimony to the contrary, that defense counsel's decision to keep the complained of
venireperson on the jury was not sound trial strategy.
Even if defense counsel had challenged the first three venirepersons for cause rather
than using peremptory strikes, appellant has failed to show that this would have changed the outcome
of the trial. See Alfano v. State, 780 S.W.2d 494, 496 (Tex. App.--Corpus Christi 1989, no pet.).
Appellant has not argued that the defense ran out of peremptory strikes, such that counsel could have
obtained different or more favorable jurors if he had challenged the first three panelists for cause.
As for not striking for cause the venireperson who served on the jury, she did not unequivocally say
she was unable to be impartial. When asked if past abuse would prevent her from rendering a fair
decision, she responded: "Maybe . . . the older child thing could." Thus, the defense counsel may
have had some reason to believe she could be helpful to appellant as a juror.
C. Comment on Appellant's Failure to Testify
Appellant's final argument regarding ineffective assistance of counsel is related to
the second point of error. He argues that the defense attorney's failure to object to the prosecutor's
comment during closing argument, "And who did you hear from in this case," was an unreasonable
action resulting in prejudice. As previously concluded, when considered in context, the comment
did not refer to appellant's failure to testify, but to a lack of controverting testimony from individuals
other than the appellant. See Nowlin, 507 S.W.2d at 537; see also Patrick v. State, 906 S.W.2d 481,
490-91 (Tex. Crim. App. 1995). The statement merely introduced the prosecutor's appropriate
review of the testimony given and the uncontroverted events leading up to the alleged complaint.
Defense counsel's failure to object to this comment may reflect his understanding of this fact. Even
if he did believe it was in reference to the appellant's failure to testify, he may have chosen not to
object because doing so would have called the jury's attention to the lack of testimony by the
appellant more than the comment itself. In either event, as we have concluded that the comment was
not a reference to appellant's failure to testify, defense counsel's failure to object is not ineffective
assistance of counsel. See Richards v. State, 912 S.W.2d 374, 383 (Tex. App.--Houston [14th Dist.]
1995, pet. ref'd); see also Ladd v. State, 3 S.W.3d 547, 569 (Tex. Crim. App. 1999).
The fourth point of error is overruled.
CONCLUSION
Having overruled each of appellant's points of error, we affirm the judgment of
conviction and sentence.
Mack Kidd, Justice
Before Justices Kidd, B. A. Smith and Puryear
Affirmed
Filed: June 14, 2001
Do Not Publish
sed their hands. Of
these four, two were peremptorily stricken by the defense attorney without discussion; one was
peremptorily stricken after discussion; and the fourth was not stricken and became a member of the
jury. Appellant alleges his attorney should have attempted to challenge the first three venirepersons
for cause, rather than using peremptory strikes, and that the juror who served should have been
challenged for cause, or at a minimum struck peremptorily. Appellant believes that these actions did
not constitute reasonable trial strategy and that they resulted in a prejudicial jury.
Without a record regarding the defense attorney's trial strategy, it is presumed counsel
used reasonable judgment during voir dire. Jackson, 877 S.W.2d at 771; Delrio v. State, 840 S.W.2d
443, 447 (Tex. Crim. App. 1992). There was no motion for new trial, no hearing, and no affidavit
from defense counsel. Therefore, the record is completely silent regarding trial strategy. Without
some evidence regarding the defense attorney's strategy, such as testimony during a motion for a new
trial, we must presume the attorney made his decisions regarding jury members reasonably.
Thompson v. State, 9 S.W.3d 808, 814-15 (Tex. Crim. App. 1999); Jackson, 877 S.W.2d at 772-73
(Baird, J., concurring). We cannot second guess the defense attorney's trial strategy and declare that
defense counsel's failure to challenge for cause was not sound trial strategy; nor can we say, in the
absence of testimony to the contrary, that defense counsel's decision to keep the complained of
venireperson on the jury was not sound trial strategy.
Even if defense counsel had challenged the first three venirepersons for cause rather
than using peremptory strikes, appellant has failed to show that this would have changed the outcome
of the trial. See Alfano v. State, 780 S.W.2d 494, 496 (Tex. App.--Corpus Christi 1989, no pet.).
Appellant has not argued that the defense ran out of peremptory strikes, such that counsel could have
obtained different or more favorable jurors if he had challenged the first three panelists for cause.
As for not striking for cause the venireperson who served on the jury, she did not unequivocally say
she was unable to be impartial. When asked if past abuse would prevent her from rendering a fair
decision, she responded: "Maybe . . . the older child thing could." Thus, the defense counsel may
have had some reason to believe she could be helpful to appellant as a juror.
C. Comment on Appellant's Failure to Testify
Appellant's final argument regarding ineffective assistance of counsel is related to
the second point of error. He argues that the defense attorney's failure to object to the prosecutor's
comment during closing argument, "And who did you hear from in this case," was an unreasonable
action resulting in prejudice. As previously concluded, when considered in context, the comment
did not refer to appellant's failure to testify, but to a lack of controverting testimony from individuals
other than the appellant. See Nowlin, 507 S.W.2d at 537; see also Patrick v. State, 906 S.W.2d 481,
490-91 (Tex. Crim. App. 1995). The statement merely introduced the prosecutor's appropriate
review of the testimony given and the uncontroverted events leading up to the alleged complaint.
Defense counsel's f | {
"pile_set_name": "FreeLaw"
} |
610 F.3d 144 (2010)
Jennifer SHEEHAN, Plaintiff, Appellant,
v.
THE NORTH AMERICAN MARKETING CORP. and Delair Group, LLC, Defendants, Appellees.
No. 08-1519.
United States Court of Appeals, First Circuit.
Heard November 5, 2009.
Decided June 30, 2010.
*145 Barry C. Reed, Jr. with whom David E. Maglio was on brief, for appellant.
John W. Kershaw with whom Mark P. Dolan and Eric E. Renner were on brief, for appellee The North American Marketing Corp.
Joseph V. Cavanagh, Jr. with whom Mary C. Dunn was on brief, for appellee Delair Group, LLC.
Before LYNCH, Chief Judge, BOUDIN, Circuit Judge, and SAYLOR,[*] District Judge.
SAYLOR, District Judge.
This is an appeal of a decision granting summary judgment in a product liability action arising out of a tragic swimming pool accident. Plaintiff-appellant Jennifer Sheehan is a resident of Rhode Island. Defendants-appellees The North American Marketing Corp. ("NAMCO") and Delair Group, LLC, are a seller and manufacturer, respectively, of swimming pools. Jurisdiction is based on diversity of citizenship.
Sheehan suffered a catastrophic injury in 2002 when she broke her neck attempting to dive into a shallow, above-ground pool. As a result of the accident, she was rendered a quadriplegic. She brought suit for negligence, strict liability, breach of express warranty, and breach of implied warranty, alleging in substance that the design of the pool was defective. The district court granted summary judgment on the grounds that Sheehan assumed the risk of serious injury when she attempted *146 the dive and that her proof of proximate cause was unduly speculative. While we are less certain as to the causation issue, we find that the assumption of risk defense applies as a matter of law. We accordingly affirm.
I. Background
A. Events Prior to the Injury
On August 8, 2002, at about 1:30 p.m., Sheehan and Marvin Nadiger drove to the Islander Restaurant in Warwick, Rhode Island. Sheehan was then thirty-two years old. At the restaurant, the two shared a scorpion bowl, a drink made with fruit juice and alcohol. After leaving the restaurant, they drove to the Oakland Beach Club in Warwick, where Sheehan drank two or three twelve-ounce beers and had one or two shots of tequila. They then drove to Nadiger's home in Warwick, arriving at approximately 5:30 p.m. Not long after arriving, Nadiger, Sheehan, and Nadiger's three children decided to go swimming in the pool located in his backyard.
B. The Structure of the Pool
The swimming pool was an above-ground "Johnny Weismuller Safari" model manufactured by Delair and sold by NAMCO.[1] It was 18 feet in diameter and four feet high. At the time of the incident, the pool was filled with about three and one-half feet of water. A ladder over the edge of the pool was used for entry and exit. There was no decking or other platform next to the pool.
The top perimeter of the pool was covered by a piece known as a "coping." The coping was made of flat extruded aluminum with ridges or grooves on its surface. It was approximately six and one-half inches wide inches wide. Its function was to connect the pieces of the pool wall and prevent damage to the top surface of the wall.
It is undisputed that the coping was not intended to be stood upon or used for diving.
C. The Warning Labels
The pool contained at least four relevant warning labels.
First, there was a warning sign on the coping where the ladder entered the pool. That sign stated "DANGER" in bold red capital letters against a white background. That was followed by the words "NO DIVINGSHALLOW WATERDIVING MAY CAUSE DEATH OR PERMANENT INJURY." Those words were in bold black capital letters. There was also a pictogram showing a person striking his head on the bottom of the pool, with red lines suggesting an injury to the neck; the drawing was in a red circle with a red diagonal slash across it.
Second, there was a sign stating "DANGERNO DIVINGSHALLOW WATER" on the inside portion of the coping above the waterline, visible to persons within the pool. The warning faced the inside of the pool, approximately one-third of the way around the circumference from the ladder. The sign on the coping was approximately 1.25 inches high in bold red capital letters against a white background.
Third, there was an identical sign stating "DANGERNO DIVINGSHALLOW WATER" approximately two-thirds of the way around the pool from the ladder.
*147 Fourth, on each of the three slip-resistant ladder treads on the outside of the pool, there was an embossed sign that stated "DANGERSHALLOW WATERDO NOT DIVE OR JUMP" in capital letters.
Sheehan testified that she did not read the warnings, but even if she had, she would have dived anyway.
D. The Injury
Sheehan used the ladder when she first entered the water, and several times after that to help the children out of the pool.[2] While playing with the children, but before attempting her first dive, Sheehan noticed that the "thin metal" coping around the top edge of the pool "wasn't springy, but it wasn't sturdy either. It was kind of loose."
After playing in the pool for about thirty minutes, Sheehan hoisted herself up into a sitting position and then to a standing position on the coping. She stood on the coping for about twenty seconds and then performed a shallow dive, during which she intentionally aimed across the pool and not down. Sheehan testified that she was aware that diving into shallow water could be dangerous because she could hit her head on the bottom of the pool. However, she also testified that the only danger she thought she was facing was that she could get scraped on the bottom of the pool, and that she had never heard of anyone getting hurt from diving into shallow water.
Sheehan successfully executed her first dive without injury. She came up out of the water in front of Nadiger, who was in the pool. According to Nadiger, at that point he said, "Can't you read? You can't dive," and pointed to the warning on the side of the pool. He testified that both of them then laughed.[3]
Sheehan then climbed onto the same part of the coping to attempt a second dive. She again pulled herself up into a sitting and then a standing position on the coping. After standing on the coping for about ten seconds, she attempted to perform a shallow dive. As she was attempting to dive, she lost her balance and entered the pool at a steep angle, described by witnesses as a "jackknife." She struck her head on the bottom of the pool, which caused her to suffer a burst fracture of the C5 vertebra. The injury rendered her a quadriplegic.
Sheehan testified that she did not know what caused her to lose her balance or how she slipped during her second dive: "I don't know. I just lost my balance and slipped." She does not know where her arms and feet were positioned before and during her second dive, nor does she know how she entered the pool during her second dive. She could only recall looking at her feet as she stood on the coping and then entering the water.
Sheehan's blood-alcohol level, which was taken at the hospital when she arrived later that evening, was 0.16%. According to the report of the toxicologist, her blood-alcohol level at the time of the injury was likely even higher, between 0.169% and 0.178%. Individuals with this blood-alcohol level typically show outward signs of intoxicatione.g., a staggered gait, impaired vision, and decreased reaction timethough Sheehan herself denied feeling any impairment from the alcohol while diving.
E. Expert Evidence
All parties submitted expert reports in support of their positions in the summary *148 judgment proceedings. There is no dispute that Sheehan's injuries were caused by the top of her head striking the bottom of the pool. One of Sheehan's experts suggested that the injury could have been avoided if she had successfully performed her second dive in the same manner as the first dive.[4] Sheehan also offered evidence to support her allegation that the coping was defective in its design and was the proximate cause of her injury.
Her engineering expert, Gaston L. Raffaelli, opined that the coping was defective because it was unstable and narrow. He stated that it was foreseeable that pool users would use the narrow coping as a resting place and that swimmers would easily hoist themselves onto it because it was only a few inches above the water. He further opined that it was foreseeable that pool users would stand on the coping and re-enter the pool by either jumping or diving into it. He also stated that the presence of the narrow and unstable coping was a danger to pool users because they could lose their balance and topple into the pool in an uncontrolled manner. In Raffaelli's opinion, Sheehan's injury would have been avoided had the defendants designed the pool in a way to prevent pool users from standing on the coping. He suggested that this could have been accomplished by installing a design modification, such as a cap, that would prevent users from accessing the coping of the pool.
Her aquatic safety expert, Thomas C. Ebro, expressed a similar opinion.[5] He opined that the narrow and unstable nature of the six-inch coping was inherently dangerous because pool users could easily stand on top of it, thereby subjecting them to the risk of losing their balance and falling into or out of the pool. He also suggested that the manufacturer should have incorporated a rounded cap over the coping to prevent pool users from standing on or obtaining access to it. He stated that, in his opinion, had the defendants incorporated such a design, Sheehan's injuries would have been avoided.
F. The District Court's Ruling and the Appeal
On April 2, 2008, the district court granted the defendants' motion for summary judgment on all counts. It held that as a matter of law Sheehan assumed the risk of her injury when she decided to dive from the coping into the shallow water of an above-ground pool. On that basis, the court dismissed the negligence and strict liability claims.
As to the breach of implied warranty claim, the court held that Sheehan could not establish that the allegedly defective design of the pool was the proximate cause of her injury; it concluded that because she could not recall how she entered the pool, her expert's testimony was based upon speculation and conjecture.[6]
*149 Sheehan now appeals that decision. She contends that the district court (1) erroneously concluded that the expert evidence as to the proximate cause of her injuries was based on improper speculation; (2) failed to recognize that a legitimate question of fact existed as to whether she fully appreciated and understood the risk of sustaining a serious injury; and (3) failed to consider her intoxicated state as a relevant factor under the assumption of the risk doctrine.
II. Analysis
A. Standard of Review
We review the district court's grant of summary judgment de novo. See Triangle Trading Co., Inc. v. Robroy Indus. Inc., 200 F.3d 1, 2 (1st Cir.1999). Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits, show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). We view the record in the light most favorable to the non-moving party and resolve all reasonable inferences in its favor, without weighing the evidence or evaluating the credibility of the witnesses. See Clifford v. Barnhart, 449 F.3d 276, 280 (1st Cir.2006). The district court's decision may be upheld even if we reject its rationale, provided that we find independently sufficient grounds in the record. Id.
B. Nature of the Alleged Design Defects
In a products liability action under Rhode Island law, the plaintiff must prove the following five elements: (1) that there was a defect in the design or construction of the product; (2) that the defect existed at the time the product left the hands of the defendant; (3) that the defect rendered the product unreasonably dangerous; (4) that the product was being used in a way in which it was intended at the time of the accident;[7] and (5) that the defect was the proximate cause of the accident and the plaintiff's injuries. Jodoin v. Toyota Motor Corp., 284 F.3d 272, 276 (1st Cir.2002) (citing Raimbeault v. Takeuchi Mfg. (U.S.) Ltd., 772 A.2d 1056, 1063 (R.I. 2001)).[8]
Sheehan alleges three different types of design defects. First, she contends that the coping was too narrow, which caused her to lose her balance when she stood on it to dive. Second, she contends that the coping was unstable, which also contributed to her loss of balance. Third, she contends *150 that the coping design tempted her to climb on it to dive, and that it should have been designed so that it would have been difficult or impossible to stand on it at all.[9]
C. Proximate Causation
The first issue is whether Sheehan produced sufficient evidence of causation to survive summary judgment. As noted, under Rhode Island law, a plaintiff must prove, among other things, that any design defect was the proximate cause of her injuries. Raimbeault, 772 A.2d at 1063; Thomas v. Amway Corp., 488 A.2d 716, 719, 721-22 (R.I.1985).[10] Causation may be shown by direct or circumstantial evidence, but inferences drawn from circumstantial evidence "may not rely upon mere conjecture or speculation to establish essential elements" of the claim. Thomas, 488 A.2d at 722.
The basic facts as to causation are undisputed, if somewhat incomplete. Sheehan, who had been drinking, decided to dive from the coping of a shallow, above-ground pool into three and one-half feet of water. After completing a successful shallow dive without injuring herself, she climbed back onto the coping for the purpose of executing a second dive. She stood on the coping for about ten seconds. She then lost her balance and slipped. Sheehan said she was "preparing" to make a dive but cannot testify as to whether she started the dive or not. She fell into the pool at an angle that witnesses described as a "jackknife" and hit her head on the bottom of the pool. Both of Sheehan's experts opined that she lost her balance because the coping was narrow and unstable.
The district court reasoned that Sheehan's inability to recall how she entered the pool precluded her from establishing proximate causation. In the absence of any additional evidence, Sheehan arguably cannot show that had the coping been less narrow or unstable she would not have fallen. A number of other possible factors, alone or in combination, may have caused her to lose her balance even on a better coping, including intoxication, momentary clumsiness, or the fact that the coping was wet and slippery.
We think it is a close call whether Sheehan's causation evidence is sufficient to survive summary judgment. An alleged defect in a product need not be the only cause of harm to the plaintiff; liability may be found where the defect is a "substantial factor" in bringing about the harm. See Restatement (Second) of Torts § 431 (1965); see also Hueston v. Narragansett Tennis Club, Inc., 502 A.2d 827, 830 (R.I. 1986) (holding that proximate cause "need not be the sole and only cause"). It is uncontested that Sheehan lost her balance and that the coping was narrower than the length of a normal adult foot. Common sense and ordinary experience would suggest that it is more difficult to maintain one's balance on a narrow surface, or to regain balance on such a surface once it has been lost. Similarly, although the evidence of the coping's alleged unsteadiness *151 was thin, perhaps a reasonable jury could infer from Sheehan's observation that the coping "was kind of loose" that instability was a substantial factor in causing her to fall into the pool.
Even if we were confident that Sheehan cannot show that the coping's instability or narrowness caused her fall, she has in any event pleaded an alternate theory of design defect: the coping should have been designed to prevent anyone from standing on it. Her engineering expert opined that the manufacturer should have considered an alternative design that included a curved cap, rather than a flat surface. Sheehan argues that but for the "tempting invitation" to dive into the pool presented by the flat coping, she would not have been in a position to injure herself. This theory has the virtue of sidestepping the proximate cause issue raised by her inability to recall exactly how she came to enter the water. The jury would not need to speculate about the cause of the accident, as the lack of a rounded cap could be a substantial factor in causing Sheehan's injury regardless of how she fell.
But the "tempting invitation" theory is not without its own pitfalls. As noted above, Sheehan's claims of design defect are apparently inconsistent; a rounded cap would be a narrower and perhaps more unstable diving platform than a flat coping. It might present less of a temptation to dive but render diving more dangerous for those who attempt it. To succeed on her claim of design defect, Sheehan would need to show that the absence of a rounded cap rendered the pool unreasonably dangerous, see Raimbeault, 772 A.2d at 1063; we are skeptical, given the evidence she has so far produced, that she could succeed.
The proximate causation issue in this case is thus very close, especially when coupled with the "tempting invitation" theory. Rather than deciding these difficult questions, we find that Sheehan's claim should be resolved on the grounds of assumption of the risk.
D. Assumption of the Risk
Assumption of the risk is an affirmative defense in a products liability action in Rhode Island. Mignone v. Fieldcrest Mills, 556 A.2d 35, 41 (R.I.1989); Rickey v. Boden, 421 A.2d 539, 543 (R.I. 1980).[11] A plaintiff assumes the risk of injury when she "knowingly accepts a dangerous situation." Kennedy v. Providence Hockey Club, Inc., 119 R.I. 70, 376 A.2d 329, 333 (1977). In order to establish an assumption-of-risk defense, defendants must prove that the plaintiff knew of the existence of the danger, appreciated its unreasonable character, and voluntarily exposed herself to it. Martins v. Omega Elec. Co., Inc., 692 A.2d 1203, 1205 (R.I. 1997); Drew, 495 A.2d at 231; Rickey, 421 A.2d at 543. The standard is ordinarily subjective, and is based upon "what the particular individual in fact saw, knew, understood, and appreciated." Id. The district court held that NAMCO and Delair were entitled to summary judgment because Sheehan must be held to have known and appreciated the risk of diving into a shallow, above-ground pool.
Sheehan argues that genuine issues of material fact remain unresolved as *152 to her appreciation of the risk of diving. Such disputes ordinarily involve questions of subjective knowledge and are therefore left for the trier of fact. However, if the facts "suggest only one reasonable inference," the issue becomes a question of law for the judge. Rickey, 421 A.2d at 543. Thus, the courts of Rhode Island have found on multiple occasions that a plaintiff assumed a risk as a matter of law. E.g., D'Allesandro v. Tarro, 842 A.2d 1063, 1066-67 (R.I.2004) (pedestrian assumed risk of injury when he walked backward and tripped and fell over a rock); Raimbeault, 772 A.2d at 1064 (user of excavator assumed risk of injury when he demonstrated equipment on edge of embankment); Filosa v. Courtois Sand & Gravel Co., 590 A.2d 100, 103-04 (R.I.1991) (building owner assumed risk of injury when he reentered partially demolished building); Drew, 495 A.2d at 232 (worker assumed risk of asphyxiation when he restarted internal combustion engine in confined space after already feeling dizzy from fumes); Rickey, 421 A.2d at 543 (building employee assumed risk of injury from inadequate footing when she climbed narrow stairway without handrails); Kennedy, 376 A.2d at 333 (spectator at hockey game assumed risk of injury from flying puck).
That position is also reflected in the Restatement (Second) of Torts, which explains that a plaintiff's own testimony as to his state of mind is "not necessarily conclusive":
There are some risks as to which no adult will be believed if he says that he did not know or understand them. Thus an adult who knowingly comes in contact with a fire will not be believed if he says that he was unaware of the risk that he might be burned by it; and the same is true of such risks as those of drowning in water or falling from a height....
Restatement (Second) of Torts § 496D, cmt. d.
The risks of diving into shallow water fall into this category, as to which protestations of ignorance from an adult are deemed not believable. A recent Rhode Island case involving a diving injury, although not addressing assumption of the risk, is instructive. In Bucki v. Hawkins, 914 A.2d 491 (R.I.2007), the Rhode Island Supreme Court considered the duty of care owed by owners of lakefront property to a guest who had injured himself diving into the lake. The plaintiff had dived off a dock at night into dark water, striking his head on the lake bottom and fracturing his neck. In the context of considering, and rejecting, whether the property owner's duty of care extended to warning the plaintiff not to dive off the dock, the court noted the following:
[Plaintiff] chose to dive into dark water without first inspecting the lake to determine its depth. The plaintiff testified that he had executed successful dives off the same dock on three previous occasions and, as a result of these past dives, believed the water was [of a certain depth]. Despite this knowledge, executing a dive into a shallow lake without first ascertaining whether there has been any change in depth since one's last dive is, to put it mildly, ill-advised.
. . .
The danger of diving into shallow water was open and obvious to a twenty-four-year-old man, regardless of whether a sign was erected alerting him to the danger. Therefore, as a matter of law, plaintiff must be held to have had knowledge and an appreciation of this risk.
. . .
Although plaintiff testified that he would not have dived off the dock if he had been warned not to do so, we view this assertion skeptically given plaintiff's inclination *153 to dive from the dock on previous occasions despite knowledge of the lake's shallow waters.
Id. at 496-97; see also Banks v. Bowen's Landing Corp., 522 A.2d 1222, 1225 (R.I. 1987) (holding, in context of considering duty of care of a property owner, that "[a]s a practical matter, the danger of diving into shallow water is one of common knowledge . . .").[12]
Though Bucki is a duty-to-warn case, its underlying rationale remains equally applicable here. The danger of diving head-first into shallow water in an above-ground swimming pool was, or should have been, obvious to a thirty-two-year-old adult woman of normal intelligence. Sheehan knew the depth of the pool, and indeed had been in it for half an hour prior to the accident. If that were not enough, there were abundant warnings against diving on and around the coping, which Sheehan testified she did not read and would have ignored had she read them.
Sheehan seeks to avoid the conclusion that she knew and accepted the risk of diving as a matter of law by parsing the risk involved. By her account, the worst possible outcome that she considered was the risk that she would scrape the bottom of the pool on a poorly executed dive. But the issue is not whether she subjectively believed that the risk could be minimized or avoided.[13] Under Rhode Island law, when the circumstances are such that a person is presumed to know the risks of her dangerous conduct, she is charged with knowing all the ordinary risks associated with that conduct. Rickey, 421 A.2d at 543. Thus, Sheehan cannot be said to have assumed only the risk of a perfectly executed shallow dive; the risk that she assumed included the possibility that something would go wrong and the dive would not be perfect. Put another way, the risk of a poorly executed or botched dive is subsumed within the risk of diving generally.
Sheehan's best argument, and one which gives us pause, is that she may have assumed the risk of diving but never assumed the risk of falling from the allegedly defective coping. See Corbin, 748 F.2d at 420 (recognizing such a theory on similar facts); cf. Austin, 888 F.2d at 937 (roofer may know risk of falling off roof without assuming risk that roof-sweeping equipment would backfire and propel him off roof); Restatement (Second) of Torts § 496D, cmt. d (assumption of risk will not be presumed if there is evidence of "special circumstances which may conceal ... danger"). Plainly this case would look *154 different if Sheehan had stood on the coping to dive and fallen backwards onto the ground, or if she had stood on the coping while engaged in some activity other than diving, such as exiting the pool or cleaning it. The pool had no warning against standing on the copingas opposed to diving or jumping from itand the language of the warnings as given ("NO DIVING SHALLOW WATER") at least suggests that the primary problem with diving is misjudging the depth of the water and not tumbling from the coping.
Nevertheless, we agree that summary judgment is warranted on these facts. Sheehan stood on the coping in order to dive, and the injury that occurred was the same one contemplated by the multiple warningsincluding on the coping itself. The warnings made clear that no diving should be undertaken (whether from the narrow coping or from anywhere else). Under these circumstances, as a matter of law Sheehan assumed the risk of diving, including the risk that she might fall from the coping into the pool while attempting to dive.
Finally, we are unimpressed with Sheehan's fallback position that the district court failed to take proper account of her intoxication in assessing her subjective knowledge of the risk of diving. She has cited to no case, in Rhode Island or elsewhere, suggesting that voluntary intoxication weighs in her favor. The usual rule in tort is that a person who voluntarily becomes intoxicated "is held thereafter to the same standard as if he were a sober person." W. Keeton et al., Prosser and Keeton on the Law of Torts § 32, at 178 (5th ed.1984); see also Kay v. Menard, 754 A.2d 760, 767 (R.I.2000). Charitably construed, Sheehan's argument is that assumption of risk is a subjective doctrine, unlike the usual objective standards of reasonable conduct that prevail in tort, and thus that this is one area where voluntary intoxication may be of unusual relevance.
The problem with the objection is that excuses based on drunkenness are too easy to make and too costly to permit. See Keeton, supra, § 32, at 178. Those concerns have equal force when a plaintiff seeks to evade responsibility for assuming the risk of obviously dangerous conduct. We see no reason to suppose that the Supreme Court of Rhode Island, if presented with the question, would depart from the standard rule in this context. Cf. McEachern v. Muldovan, 234 Ga.App. 152, 505 S.E.2d 495, 500-03 (1998), rev'd on other grounds, 271 Ga. 805, 523 S.E.2d 566 (1999); Tome v. Berea Pewter Mug, Inc., 4 Ohio App.3d 98, 446 N.E.2d 848, 852-53 (1982).[14]
That is not to say, of course, that Sheehan does not deserve enormous sympathy for her current tragic circumstances. Nonetheless, under Rhode Island law, there are certain risks that are so self-evident that a person will be deemed to have understood them as a matter of law. Diving head-first into a shallow, above-ground *155 pool is such a risk, and bars recovery here.
III. Conclusion
For the foregoing reasons, we affirm the district court's decision granting defendants' motion for summary judgment.
Affirmed.
NOTES
[*] Of the District of Massachusetts, sitting by designation.
[1] Delair manufactured the pool wall and frame, but not the ladder, liner, filter unit, or skimmer.
[2] Sheehan was a reasonably experienced swimmer who had swum before in above-ground pools.
[3] Sheehan testified that she did not remember any conversation after the first dive.
[4] This opinion was based primarily on the following testimony by Sheehan:
Q: Now the second time you went in the water you were preparing to do the exact same thing?
A: I was going to prepare. I just didn't get that far. I fell before I got to.
. . .
A: I know I lost my balance on that little decking and it propelled me into the pool.
. . .
A: It wasn't springy, but it wasn't sturdy either. It was kind of loose.
[5] At his deposition, Ebro testified that he had to "fill in the blanks" when reaching his opinion because Sheehan did not recall how she entered the pool.
[6] The district court also concluded that plaintiff had made no factual allegations that she had relied on any express warranty made by defendants, and in any event had not addressed the issue of express warranty in her brief in opposition to summary judgment, thereby waiving any such claims. Sheehan does not challenge that conclusion on appeal.
[7] The term "intended use" encompasses the reasonably foreseeable consequences of normal use, even if those uses were not actually intended by the manufacturer or seller. See Turcotte v. Ford Motor Co., 494 F.2d 173, 182 (1st Cir.1974); Ritter v. Narragansett Elec. Co., 109 R.I. 176, 283 A.2d 255, 260 (1971). A reasonable jury could find that injuries sustained from diving from the edge of an above-ground swimming pool are risks that are reasonably foreseeable to manufacturers and sellers of such pools. NAMCO and Delair do not argue otherwise.
[8] Sheehan asserted claims for strict liability, negligence, breach of implied warranties of merchantability and fitness of purpose, and breach of express warranty. For the reasons stated above, Sheehan is deemed to have abandoned her express warranty claim for failure to address the issue in the district court or on appeal. She has not argued in this appeal that her implied warranty claims should be considered separately from her strict liability and negligence claims, or that the doctrine of assumption of risk should not also apply to those claims. We assume that all claims should be analyzed together.
[9] The theories are apparently inconsistent. Anything that made the coping broader or more stable (and therefore safer to stand on) would also presumably make it a more tempting platform from which to dive. Anything that made the coping more difficult to stand on (such as a rounded cap) would make it more likely that a person standing on it would lose her balance.
[10] Proximate cause includes the concepts of "factual," or "but-for," causation and reasonable foreseeability, sometimes referred to as "legal" causation. See English v. Green, 787 A.2d 1146, 1151 (R.I.2001). Only factual causation is disputed here.
[11] Rhode Island has a "pure" comparative negligence system, under which a plaintiff may recover even if she is 99% at fault. See R.I. Gen. Laws § 9-20-4 (2009); Austin v. Lincoln Equip. Assoc., 888 F.2d 934, 935 (1st Cir.1989). Under Rhode Island law, the common-law defense of assumption of risk survives under the comparative negligence system. Fiske v. MacGregor, Div. of Brunswick, 464 A.2d 719, 726-27 (R.I.1983); Drew v. Wall, 495 A.2d 229, 231 (R.I. 1985).
[12] The weight of authority from other jurisdictions is to the same effect. See, e.g., Neff v. Coleco Indus., Inc., 760 F.Supp. 864, 868 (D.Kan.1991) (applying Kansas law) (manufacturer had no duty to warn of "patent, open and obvious risk of diving head first into shallow water" of above-ground pool); O'Sullivan v. Shaw, 431 Mass. 201, 726 N.E.2d 951, 956-57 (2000) (landowner owed no duty to warn of "open and obvious danger" of diving head-first into shallow in-ground swimming pool) (collecting cases); Glittenberg v. Doughboy Recreational Indus., 441 Mich. 379, 491 N.W.2d 208, 215 (1992) (manufacturer owed no duty to warn of obvious danger of diving into above-ground pool). But see Corbin v. Coleco Indus., Inc., 748 F.2d 411, 417-18 (7th Cir.1984) (applying Indiana law) (danger of serious spinal injury from diving into shallow water of above-ground pool not open and obvious as matter of law).
[13] It would eviscerate, if not eliminate, the defense of assumption of the risk if a plaintiff could defeat it by testifying, in substance, "I knew that the activity was dangerous, and that it bore a risk of serious injury, but I thought I wouldn't get hurt if I were careful." A person who drag-races a car at 120 miles per hour no doubt subjectively believes that he will not lose control of it; but he nonetheless knowingly assumes the risk that such an event may in fact happen.
[14] In support of her position, Sheehan cites to Miller v. R.I. Hosp., 625 A.2d 778 (R.I. 1993), an easily distinguished medical consent case. In Miller, the defendant hospital provided medical treatment to an intoxicated trauma victim over his objection; the court held that whether the patient's intoxication affected his capacity to make medical decisions was a question of fact for the jury. Id. at 786. Of course, the doctor in such a situationfaced with the unpleasant alternatives of committing malpractice for failing to supply care and committing assault in doing so over objectionis entitled to have the extent of intoxication put to a jury. It is quite a different issue whether one who voluntarily intoxicates himself can use that as an excuse for ignoring risks that would be obvious and self-evident to a sober individual.
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ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
August 1,2008
Ms. Martha Galarza Opinion No. GA-0652
Cameron County Auditor
Post Office Box 3846 Re: Whether a county's alleged underpayment to
Brownsville, Texas 78520 indigent health care providers is an unconstitutional
debt for purposes of article XI, section 7 of the
Texas Constitution (RQ-0672-GA)
Dear Ms. Galarza:
Your predecessor in office informed us that health care providers submitted invoices for the
fiscal year 2006-2007 for services provided to indigent residents of Cameron County in excess of
the amount budgeted by the county for indigent health care in the 2006-2007 fiscal year.! Thus, he
asked the following four questions about this excess amount:
1. Is this a "debt" within the meaning of Article XI, Section 7 of
the Texas Constitution?
2. If it is a "debt" within the meaning ofArticle XI, Section 7[,] is
it an "unconstitutional debt" prohibited by the Texas
Constitution?
3. Ifit is an "unconstitutional debt" can it be ratified or paid by the
Cameron County Commissioners Court?
4. If it is an "unconstitutional debt" is the Cameron County
Auditor prohibited from approving the claims under ... Local
Gov[ernment] Code, [section] 113.065?
Request Letter, supra note 1, at 1.
I See Letter from Robert A. Almon, Cameron County Auditor, to Honorable Greg Abbott, Attorney General of
Texas, at 1-2 (Feb. 1,2008) (on file with the Opinion Committee, also available at http://www.texasattorneygeneral.gov)
[hereinafter Request Letter].
Ms. Martha Galarza - Page 2 (GA-0652)
I. Background
The Indigent Health Care and Treatment Act, chapter 61 of the Health and Safety Code,
requires counties to provide a certain amount ofhealth care to qualified indigent residents. 2 See TEx.
HEALTH & SAFETY CODE ANN. §§ 61.001-.066 (Vernon 2001 & Supp. 2007). Under chapter 61,
the county is the payor of last resort for health care to persons who do not reside in the service area
of a public hospital or hospital district. fd. §§ 61.002(2) (defming "eligible county resident"), .022
(specifying county obligation) (Vernon 2001). A county may "provide health care services through
a local health department, a publicly owned facility, or a contract with a private [health care]
provider." fd. § 61.029(a); see also id. § 61.030 (selection of mandated provider).
We understand that in Cameron County, in the fiscal year 2006-2007, indigent health care
services were provided, and the indigent health care expenses at issue were incurred pursuant to
several contracts executed under Health and Safety Code section 61.029(a). See Request Letter,
supra note 1, at 2-3. It appears that pursuant to these contracts, invoices-including the invoices
at issue here-were submitted to the county for payment "when the service was provided." See id.
at 2. As we understand it, these invoices in the aggregate exceed the amount budgeted by the county
for indigent health care for the 2006-2007 fiscal year. fd. at 1-2. That budgeted amount, as we
understand it, was the total amount available for the payment of indigent health care services and
included eight percent of the county's general tax revenues and matching state funds for indigent
health care to be received for the 2006-2007 fiscal year. fd. at 1-3, 4; see also supra note 2.
II. Analysis
A. Unconstitutional Debt
The first two questions ask whether the indigent health care services invoices in excess of
the budgeted amount constitute "debt" subject to the prohibition in Texas Constitution article XI,
section 7. Article XI, section 7 prohibits a county or a city from incurring a "debt" without levying
a tax to pay the interest on the obligation and at least two percent of the principal:
'The county's maximum liability for each state fiscal year for health care services provided to each eligible
resident is limited to $30,000 or thirty days ofhospitalization or treatment. TEX. HEALTH & SAFETY CODEANN. § 61.035
(Vernon 2001). The county is eligible to receive state assistance to the extent of appropriated funds when the county
spends at least eight percent of its general revenue levy for indigent health care. Id. § 61.037 (b)(I) (Vernon 2001),
.0395 (Vernon Supp. 2007). If the state fails to provide the prescribed assistance-at least ninety percent ofthe actual
health care payments during the remainder of the state fiscal year after the county's eight percent expenditure level is
reached-"the county is not liable for payments for health care services provided to its eligible county residents after
the county reaches the eight percent expenditure level." !d. § 61.039 (Vernon 2001). We were not asked, and we do
not address whether Cameron County can be held liable for claims above its statutory obligation. See, e.g., Tex. All'y
Gen. Op. No. JM-637 (1982) at 3 (concluding thatthe Indigent Health Care and Treatment Act, as it existed at the time,
limited only a county's obligation and duty to provide health care assistance and notthe county's legal power to provide
such assistance).
Ms. Martha Galarza - Page 3 (GA-0652)
[N]o debt for any purpose shall ever be incurred in any manner by any
city or county unless provision is made, at the time of creating the
same, for levying and collecting a sufficient tax to pay the interest
thereon and provide at least two per cent (2%) as a sinking fund[.]
TEx. CONST. art. XI, § 7. Any attempted creation or incurrence of a debt without also making such
provision for payment "is contrary to the express prohibition ofthe constitution, and void." McNeill
v. City ofWaco, 33 S.W. 322, 323 (Tex. 1895); see also Tex. & New Orleans R.R. Co. v. Galveston
County, 169 S.W.2d 713, 715 (Tex. 1943) ("If this provision is not made, the 'debt' is a nullity.").
"A contract which violates these constitutional provisions is void, and the governmental unit
involved need not pay any related obligation." City-County Solid Waste Control Bd. v. Capital City
Leasing, Inc., 813 S.W.2d 705, 707 (Tex. App.-Austin 1991, writ denied). The issue here is
whether the indigent health care services invoices in excess of the budgeted amount are obligations
related to contracts that violate the constitutional provision.
The term "debt" as used in article XI, section 7 "means any pecuniary obligation imposed
by contract." McNeill, 33 S.W. at 324; accord Stevenson v. Blake, 113 S.W.2d 525, 527 (Tex.
1938); Tex. & New Orleans R.R. Co., 169 S.W.2d at 715. However, a contract does not create a
"debt" if the parties lawfully and reasonably contemplate when the contract is made that the
obligation will be satisfied out of current revenues for the year, or out of some fund then within the
immediate control ofthe governmental unit. McNeill, 33 S.W. at 324. A party seeking recovery on
a contract bears the burden of showing that the obligation under the contract is not a "debt";
Prima facie, every pecuniary obligation attempted to be created by
contract is a debt, within the meaning ofthe constitutional provision[]
..., and a party attempting to recover against the [governmental unit]
must allege the facts showing a compliance with the constitution ...
or must allege such facts as bring the particular claim within the
exception ... in the definition of the word' debt.'
Id.; see also City ofBonham v. Sw. Sanitation, Inc., 871 S.W.2d 765,769 (Tex. App.-Texarkana
1994, writ denied) (stating that the party seeking recovery on the contract has the burden of alleging
and proving that the entire obligation could reasonably be paid from current revenues or funds on
hand; "[o]therwise the contract is void and no recovery can be had on it" (citing McNeill, 33 S.W.
at 323)). A contract that runs for more than one year is a commitment only of current revenues and
thus is not a "debt" if it reserves to the governing body the right to terminate the contract at the end
of each budget period. City ofBonham, 871 S.W.2d at 768; City-County Solid Waste Control Bd.,
813 S.W.2d at 707; see also TEX. LOc. GOV'TCODEANN. § 271.903(a) (Vemon2005) (commitment
of current revenues).
Your predecessor asked about the aggregate amount of the invoices submitted pursuant to
several contracts in excess ofthe amount budgeted by the county. See Request Letter, supra note
1, at 1. Based on the facts presented, we understand that under the several indigent health care
services contracts, amounts are payable, not on any specified date, but when services are provided.
Ms. Martha Galarza - Page 4 (GA-0652)
See id. at 2-3. But we have no other information regarding the contract dates and terms, including
whether they are one- or multi-year contracts or whether they contain the right to terminate atthe end
ofthe budget year. Accordingly, we carmot determine whether they create "debt" as a matter oflaw.
Cf City of Bonham, 871 S.W.2d at 768 (determining that a multi-year contract with no right of
termination at the end of each budget period was a "debt" unless payable from current revenues or
funds on hand); City-County Solid Waste Control Bd., 813 S.W.2d at 707 (determining that a
contract with an anticipated term exceeding one year is a "debt" uuless it reserves to the governing
body the right to terminate at the end of each year); see also Tex. Att'y Gen. Op. Nos. GA-0176
(2004) at 2-3 (determining that a county contract indemnifYing a third party for damages arising
from the third party's negligence would constitute a debt), JC-0582 (2002) at 7 (determining that a
multi-year county lease obligating the county to pay utilities and other maintenance charges was a
debt), JC-0395 (2001) at 3 (determining that a multi-year contract for leasing office equipment
constituted a "debt").
Thus, as your predecessor noted, the relevant test here is whether the county's pecuniary
obligations under the various contracts were--when the contracts were executed-lawfully and
reasonably contemplated to be made out of current revenues for the fiscal year 2006-2007 or out of
funds then within the immediate control of the county. See McNeill, 33 S.W. at 323-24; see also
Request Letter, supra note 1, at 4-5 (discussing relevant constitutional standard). This is a
"fundamental and necessary" question ofmaterial fact in determining whether the county obligation
undertaken by the various indigent health care services contracts is a debt. See County ofEctor v.
City ofOdessa, 492 S.W.2d 360, 362-63 (Tex. Civ. App.-EI Paso 1973, no writ); Tex. Att'y Gen.
Op. No. JM-642 (1987) at 7; see also Clay Bldg. Material Co. v. City of Wink, 141 S.W.2d 1040,
·1042 (Tex. Civ. App.-EI Paso 1940, no writ) (stating that the obligation's purpose, the extent
thereof, and the extent of a city's revenue may all have bearing on whether it is contemplated that
the obligation be paid from current revenues, but none of them is necessarily conclusive on this
question). This office carmot determine questions of fact in an attorney general opinion. See Tex.
Att'y Gen. Op. No. GA-0492 (2006) at 3 (stating that questions of fact carmot be resolved in the
opinion process). But, to provide guidance, we set out your predecessor's assertions as to the facts
and discuss the answer to the question should the assertions be correct.
In apparent reliance on statements made by your predecessor's predecessor and past practices
ofthe county, it appears that when the county entered into the indigent health care services contracts,
it did not contemplate that the entire pecuniary obligation thereunder would be paid from current
general tax revenues for the 2006-2007 fiscal year or other funds within the county's immediate
control. Request Letter, supra note 1, at 1-2, 5. 3 First, your predecessor asserted that "[t]he bottom
'Your predecessor did not reference or cite to any provisions in the indigent health care services contracts or
findings in conunissioners court orders authorizing these contracts. A court considering this issue would likely examine
the contract provisions and related commissioners court orders to determine whether the county contemplated paying
its obligations under these contracts with current revenues for the 2006-2007 fiscal year. See, e.g, Brown v. Jefferson
County, 406 S.W.2d 185, 188-89 (Tex. 1966) (examining county contract in determining whether indenmity provision
created an unconstitutional debt); Bexar County v. Hatley, 150 S.W.2d 980, 988 (Tex. 1941) (examining conunissioners
(continued...)
Ms. Martha Galarza - Page 5 (GA-0652)
line is [that] in fiscal year 2006-07 the County did not anticipate paying more [than] the amount
budgeted for indigent health care." Request Letter, supra note I, at 5; see also id at 1 ("Indigent
health care service providers, invoiced the County for the fiscal year 2006-07 for $2, 220, 929.96
more than the County had anticipated to be paid without the use of future tax revenues."). He
explained that, "after May 31 [], 2007, [when the County had exhausted the amount budgeted or
allocated for health care services], the County anticipated paying for 2006-07 indigent health care
services, if at all, after all County and State funds set aside for indigent health care in Cameron
County for the 2006-07 fiscal year had been spent, with 2007-08 general tax revenues." Id at 5.
Second, your predecessor informed, the same procedure has been followed in each ofthe past several
years: "[A]fter funds set aside for indigent health care were exhausted, indigent health care for
eligible county residents provided for the remainder of the fiscal year would be paid out of the
general tax revenue from the subsequent fiscal year." Id at 2.
If, as it appears to be suggested, the county did not contemplate when it entered into the
health services contracts that the entire pecuniary obligation thereunder would be paid from its
current general tax revenues for the 2006-2007 fiscal year or other funds within the county's
immediate control, the indigent health care services contracts created "debt" within the meaning of
article XI, section 7. See TEX. CONST. art. XI, § 7; McNeill, 33 S.W. at 324. And unless the county
levied a tax to pay interest on the "debt" and provide a sinking fund of at least two percent to pay
the principal, the contracts create "debt" that is prohibited by the constitutional provision. See TEx.
CONST. art. XI, § 7; McNeill, 33 S.W. at 324; City ofBonham, 871 S.W.2d at 768. Under these
circumstances, the indigent health care services invoices submitted in excess ofthe budgeted amount
that is at issue here would constitute "debt" prohibited by article XI, section 7. See Stevenson, 113
S.W.2d at 527 (stating that the entire obligation under a contract made in violation of article XI,
section 7 is void); City-County Solid Waste Control Bd, 813 S.W.2d at 707 (stating that a contract
violating article XI, section 7 is void, and "the govermnental unit involved need not pay any related
obligation"). We reiterate that the only amount in question is the aggregate excess amount, and our
conclusion, based on the assumption that your predecessor's factual assertions about what the county
contemplated are correct, is limited to this excess amount. We were not asked, and we cannot
determine whether any of the several contracts to which the invoices specifically relate is
unconstitutional and thus void in its entirety.
B. Ratification and Payment of Unconstitutional Debt
If the invoices for indigent health care services in excess of the budgeted amount constitute
"debt" prohibited by Texas Constitution article XI, section 7, your predecessor asked whether the
Cameron County Commissioners Court may ratify or pay it, and whether the Cameron County
Auditor is prohibited from approving such claims under Local Govermnent Code section 113.065.
'(...continued)
court's order recitals and contract provision in detennining whether expenditures were to be paid from currently available
funds); City-County Solid Waste Control Ed. v. Capital City Leasing, Inc., 813 S.W.2d 705, 707 (Tex. App.-Austin
1991, no writ) (examining anticipated tenn and tennination provisions ofa municipal lease in detennining whether the
lease created an unconstitutional debt).
Ms. Martha Galarza - Page 6 (GA-0652)
See Request Letter, supra note I, at I; see also TEx. Lac. GOY'T CODE ANN. § 113.065 (Vernon
2008) ("The county auditor may not audit or approve a claim unless the claim was incurred as
provided by law.").
We first consider ratification by the commissioners court. "As a general rule, void contracts
carmot be ratified.'" Richmond Printing v. Port of Houston Auth., 996 S.W.2d 220, 224 (Tex.
App.-Houston [14th Dist.] 1999, nopet.);see TCA Bldg. Co. v. Nw. Res. Co., 922 S.W.2d629, 634
(Tex. App.-Waco 1996, writ denied); Jackv. State, 694 S.W.2d391, 397 (Tex. App.-SanAntonio
1985, writ ref d n.r.e.). A contractual obligation incurred in violation ofarticle XI, section 7 is void.
See Tex. & New Orleans R.R. Co, 169 S.W.2d at 715 (stating that "debt" incurred in violation of
article XI, section 7 "is a nullity"); Stevenson, 113 S.W.2d at 527 (stating that the entire obligation
under a contract madein violation ofarticle XI, section 7 is void); City-County Solid Waste Control
Bd., 813 S.W.2d at 707 (stating that a contract violating article XI, section 7 is void, and "the
governmental unit involved need not pay any related obligation"). Accordingly, if the invoices for
indigent health care services submitted in excess ofthe budgeted amount constitute "debt" prohibited
by article XI, section 7, the Cameron County Commissioners Court carmot ratifY them. Cf Jack, 694
S.W.2d at 397 (upholding trial court's conclusion that lease made in violation of statute and thus
void could not be ratified by the county); Tex. Att'y Gen. Op. Nos. GA-0247 (2004) at 8 (concluding
that a commissioners court lacks authority to ratifY a contract entered into in violation ofpurchasing
statute); H-1237 (1978) at 1-2 ("The commissioners court is not authorized to order payment of a
claim under a contract made in violation of [a purchasing statute], and the auditor is prohibited from
paying such a claim.").
We next address approval and payment of the "debt" by the commissioners court and
the county auditor. Section 115.021 of the Local Government Code specifically requires a
commissioners court to "audit and settle all accounts against the county and [to] direct the payment
of those accounts." TEx. Lac. GOy'T CODE ANN. § 115.021 (Vernon 2008). Under this provision,
a commissioners court has a duty to "audit all claims against the county and to order paid those only
which are found to be just and legal demands." Padgett v. Young County, 204 S.W. 1046, 1052
(Tex. Civ. App.-FortWorth 1918, writdism'd); accord Navarro County v. Tullos, 237 S.W. 982,
987-98 (Tex. Civ. App.-Dallas 1922, writ ref d).
Additionally, under chapter 113 ofthe Local Government Code, a commissioners court may
not direct the payment of a claim until it has been examined and approved by the county auditor.
TEx. Loc. GOy'T CODE ANN. § 113.064(a)(Vernon 2008); see also Crider v. Cox, 960 S.W.2d 703,
706 (Tex. App.-Tyler 1997, writ denied) (stating that the county auditor's approval of a claim is
a prerequisite to the commissioners court's approval; without the county auditor's approval, the
commissioners court's approval of a claim is void). And "[t]he county auditor may not audit or
'This is true "so long as there has been no change in the law or in the facts as would cause the bargain to be valid
and enforceable if made at the time of ratification." TCA Bldg. Co. v. Nw. Res. Co., 922 S.W.2d 629, 634 (Tex.
App.-Waco 1996, writ denied) (quoting 6A CORBIN ON CONTRACTS § 1532, at 806 (1962)). There has been no change
in the relevant law and in the facts that we know of here that "would cause the bargain to be valid and enforceable" as
of its ratification.
Ms. Martha Galarza - Page 7 (GA-0652)
approve a claim unless the claim was incurred as provided by law." TEx. Lac. GOV'T CODE ANN .
§ 113.065 (Vernon 2008). "The language ofthese statutes is mandatory. They impose on the auditor
the responsibility, before approving a claim, to determine whether it strictly complies with the law
governing county finances." Smith v. McCoy, 533 S.W.2d 457, 459 (Tex. Civ. App.-Dallas 1976,
writ dism'd) (addressing the statutory predecessors to Local Government Code sections
113.064-.065); see also Crider 960 S.W.2d at 706 ("A claim against the county may not be approved
by the Auditor unless it was incurred in accordance with the law.") (citing Local Government Code
section 113.065).'
In answer to your predecessor's question, if the indigent health care services invoices
submitted in excess ofthe budgeted amount constitute "debt" prohibited by article XI, section 7, the
Cameron County Auditor is prohibited from approving the claims and the Cameron County
Commissioners Court is not authorized to direct their payment because they are not legal claims.
Cf Tex. Att'y Gen. Gp. No. GA-0247 (2004) at 4-5 (determining that section 113.065 prohibits a
county auditor from approving a claim under a contract awarded in violation of purchasing statute,
and the claim may not be approved by the commissioners court or paid by the county); H-1237
(1978) at 1-2 (concluding thatthe commissioners court is not authorized to order payment ofaclaim
under a contract made in violation of purchasing statute, and the auditor is prohibited from paying
such a claim). 6 Again, our conclusion here is limited to the excess invoice amount your predecessor
asked about.
5As indicated in part I of this opinion, the county is obligated by chapter 61 of the Health and Safety Code to
provide the indigent health care prescribed by the statute. See TEX. HEALTH & SAFETY CODE ANN. §§ 61.001-.066
(Vernon 2001 & Supp. 2007).
'We were not asked about, and we do not consider any legal theories on which a party to the contracts at issue
may seek relief in court.
Ms. Martha Galarza - Page 8 (GA-0652)
SUMMARY
Whether Cameron County contemplated when it entered into
indigent health care services contracts that the entire pecuniary
obligation thereunder would be paid from current general tax
revenues for the 2006-2007 fiscal year or other funds then within the
county's immediate control is a question of fact.
If, as suggested here, Cameron County did not contemplate
when it entered into indigent health care services contracts that the
entire pecuniary obligation thereunder would be paid from current
general tax revenues for the 2006-2007 fiscal year or other funds then
within the county's immediate control, such contracts created "debt"
within the meaning of Texas Constitution article XI, section 7. And
unless the county levied a tax to pay interest on the "debt" and
provide a sinking fund of at least two percent to pay the principal, the
contracts created "debt" prohibited by the constitutional provision.
Under these circumstances, indigent health care services invoices
submitted pursuant to the contracts in excess ofthe amount budgeted
by the county for such purposes at issue here would constitute "debt"
prohibited by article XI, section 7.
Ifthe indigent health services invoices in excess ofthe amount
budgeted by the county for such purposes constitute "debt" prohibited
by article XI, section 7, the Cameron County Commissioners Court
carmot ratifY them; the Cameron County Auditor is prohibited from
approving the claims; and the Cameron County Commissioners Court
is not authorized to direct their payment.
KENT C. SULLIVAN
First Assistant Attorney General
ANDREW WEBER
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Sheela Rai
Assistant Attorney General, Opinion Committee
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-1313V
Filed: September 27, 2019
UNPUBLISHED
SALLY JO DELPHA,
Petitioner,
v. Special Processing Unit (SPU);
Attorneys’ Fees and Costs
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Jessica Anne Olins, Maglio Christopher & Toale, PA, Washington, DC, for petitioner.
Amy Paula Kokot, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
Dorsey, Chief Special Master:
On September 22, 2017, petitioner filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the
“Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine
administration (“SIRVA”) as a result of the influenza (“flu”) vaccine administered on
October 3, 2016. Petition at 1. On July 25, 2019, the undersigned issued a decision
awarding compensation to petitioner based on the respondent’s proffer. ECF No. 55.
1 The undersigned intends to post this decision on the United States Court of Federal Claims' website.
This means the decision will be available to anyone with access to the Internet. In accordance with
Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or other information,
the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, the
undersigned agrees that the identified material fits within this definition, the undersigned will redact such
material from public access. Because this unpublished decision contains a reasoned explanation for the
action in this case, the undersigned is required to post it on the United States Court of Federal Claims'
website in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal
Management and Promotion of Electronic Government Services).
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
On August 28, 2019, petitioner filed a motion for attorneys’ fees and costs. ECF
No. 59. Petitioner requests attorneys’ fees in the amount of $24,290.10 and attorneys’
costs in the amount of $588.15. Id. at 1-2. In compliance with General Order #9,
petitioner filed a signed statement indicating that petitioner incurred out-of-pocket
expenses in the amount of $58.45. ECF No. 59-3. Thus, the total amount requested is
$24,936.70.
On September 6, 2019, respondent filed a response to petitioner’s motion. ECF
No. 60. Respondent argues that “[n]either the Vaccine Act nor Vaccine Rule 13
requires respondent to file a response to a request by a petitioner for an award of
attorneys’ fees and costs.” Id. at 1. Respondent adds, however, that he “is satisfied the
statutory requirements for an award of attorneys’ fees and costs are met in this case.”
Id. at 2. Respondent “respectfully requests that the Chief Special Master exercise her
discretion and determine a reasonable award for attorneys’ fees and costs.” Id. at 3.
On August 28, 2019, petitioner filed a reply. ECF No. 59. Petitioner disputes
respondent’s position that he has no role in resolving attorneys’ fees and costs and
further reiterates his view that his attorneys’ fees and costs in this case are reasonable.
The undersigned has reviewed the billing records submitted with petitioner’s
requests and finds a reduction in the amount of fees to be awarded appropriate for the
reason listed below.
I. Legal Standard
The Vaccine Act permits an award of reasonable attorneys’ fees and costs. §
15(e). Counsel must submit fee requests that include contemporaneous and specific
billing records indicating the service performed, the number of hours expended on the
service, and the name of the person performing the service. Savin v. Sec’y of Health &
Human Servs., 85 Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee
requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton v.
Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley
v. Eckerhart, 461 U.S. 424, 434 (1983)). It is “well within the special master’s discretion
to reduce the hours to a number that, in [her] experience and judgment, [is] reasonable
for the work done.” Id. at 1522. Furthermore, the special master may reduce a fee
request sua sponte, apart from objections raised by respondent and without providing a
petitioner notice and opportunity to respond. See Sabella v. Sec’y of Health & Human
Servs., 86 Fed. Cl. 201, 209 (2009). A special master need not engage in a line-by-line
analysis of petitioner’s fee application when reducing fees. Broekelschen v. Sec’y of
Health & Human Servs., 102 Fed. Cl. 719, 729 (2011).
The petitioner “bears the burden of establishing the hours expended, the rates
charged, and the expenses incurred.” Wasson v. Sec’y of Health & Human Servs., 24
Cl. Ct. at 482, 484 (1991). She “should present adequate proof [of the attorneys’ fees
and costs sought] at the time of the submission.” Id. at 484 n.1. Petitioner’s counsel
2
“should make a good faith effort to exclude from a fee request hours that are excessive,
redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is
obligated to exclude such hours from his fee submission.” Hensley, 461 U.S., at 434.
II. Attorney Fees
A. Excessive and Duplicative Billing
The undersigned has previously reduced the fees paid to petitioners due to
excessive and duplicative billing. See Ericzon v. Sec’y of Health & Human Servs., No.
10-103V, 2016 WL 447770 (Fed. Cl. Spec. Mstr. Jan. 15, 2016) (reduced overall fee
award by 10 percent due to excessive and duplicative billing); Raymo v. Sec’y of Health
& Human Servs., No. 11-654V, 2016 WL 7212323 (Fed. Cl. Spec. Mstr. Nov. 2, 2016)
(reduced overall fee award by 20 percent), mot. for rev. denied, 129 Fed. Cl. 691
(2016). The undersigned and other special masters have previously noted the
inefficiency that results when cases are staffed by multiple individuals and have reduced
fees accordingly. See Sabella, 86 Fed. Cl. at 209.
Billing records show that three attorneys and seven paralegals billed time in this
matter, with some billing less than one hour. This resulted in multiple reviews of the
same records, orders and updating the same entries on files. For example, the
attorney’s and the paralegals list 43 separate entries as reviewing court notifications of
filings and updating file entries and deadlines, for a total of 5.5 hours of time billed. The
undersigned reduces the request for attorney’s fees by $419.803, the total of the
duplicated entries at the paralegal rates.
III. Attorney Costs
Petitioner requests reimbursement for attorney costs in the amount of $588.15
After reviewing petitioner’s invoices, the undersigned finds no cause to reduce
petitioner’s’ request and awards the full amount of attorney costs sought.
IV. Conclusion
Based on the reasonableness of petitioner’s request, the undersigned GRANTS
IN PART petitioner’s motion for attorneys’ fees and costs.
Accordingly, the undersigned awards the total of $24,516.904 as follows:
3This amount consists of (0.4 hrs x $145 = $58) + (1.3 hrs x $148 = $192.40) + (1.1 hrs x $154 =
$169.40) = $419.80.
4This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all
charges by the attorney against a client, “advanced costs” as well as fees for legal services rendered.
Furthermore, § 15(e)(3) prevents an attorney from charging or collecting fees (including costs) that would
be in addition to the amount awarded herein. See generally Beck v. Sec’y of Health & Human Servs.,
924 F.2d 1029 (Fed. Cir.1991).
3
• A lump sum of $24,458.45, representing reimbursement for
attorneys’ fees and costs, in the form of a check payable jointly to
petitioner and petitioner’s counsel, Jessica Anne Olins; and
• A lump sum of $58.45, representing reimbursement for petitioner’s
costs, in the form of a check payable to petitioner.
• Petitioner requests checks be forwarded to Maglio Christopher &
Tolae, PA 1605 Main Street, Suite 710, Sarasota Florida 34236.
The clerk of the court shall enter judgment in accordance herewith.5
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
5 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
4
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15 N.J. 608 (1954)
105 A.2d 841
PATRICIA MURPHY, AN INFANT BY HER GUARDIAN AD LITEM, JERRY P. MURPHY, PLAINTIFF-RESPONDENT,
v.
LLOYD J. KELLY, TRADING AS INDEPENDENT MEMORIAL COMPANY, DEFENDANT-APPELLANT.
The Supreme Court of New Jersey.
Argued May 24, 1954.
Decided June 14, 1954.
*609 Mr. Lester C. Leonard argued the cause for appellant.
Mr. Harry A. Walsh argued the cause for respondent (Mr. Thorn Lord, attorney).
The opinion of the court was delivered by WACHENFELD, J.
We granted certification to the Appellate Division to review its reversal of an order entered, following the pretrial conference, for summary judgment in favor of the defendant. The sole issue presented is whether or not the infant plaintiff was an invitee in the light of the pleadings, the interrogatories and answers thereto, and the facts alleged in the pretrial memorandum submitted in accordance with R.R. 4:29-3. The Law Division held the defendant's invitation did not extend to the infant, and, as there was no question as to any material fact, the inquiry posed became one of law, which was decided adversely to the plaintiff.
The issue of invitation was initially projected in the complaint, where it was alleged that Patricia Murphy, age six, "was lawfully upon the premises of the defendant as an invitee in company with her father," who likewise is referred to as an invitee. Damages were sought for personal injuries to Patricia as a result of the defendant's negligence. The defendant entered a general denial and asserted the affirmative defenses of contributory negligence and assumption of risk.
The facts alleged are that on July 8, 1951 Jerry P. Murphy, father and guardian ad litem of the infant plaintiff, went to the defendant's place of business at 1100 South Olden Avenue in Hamilton Township. His daughter and her maternal grandmother accompanied him. The purpose of the visit was to make a final payment on a monument purchased for the grave of the infant's mother, who had recently died.
They entered the defendant's premises by way of the sidewalk leading to the office and were met by the defendant outside of the office doorway, where they transacted their business.
*610 The infant was standing on the sidewalk a few feet away when they heard a scream. Turning, they saw her approximately in the middle of the sidewalk some five feet away. Between them and lying across the sidewalk a stone monument in the shape of a cross had fallen from its base immediately adjacent to the sidewalk and Patricia suffered injuries to her left foot, which was badly injured, finally resulting in amputation of the large toe.
On the basis of these facts, the Appellate Division, 28 N.J. Super. 266, reversed the trial court and concluded the infant plaintiff was not, as a matter of law, a licensee but was rather an invitee, relying upon Walec v. Jersey State Electric Co., 125 N.J.L. 90 (Sup. Ct. 1940). It arrayed and assayed many cases in other jurisdictions, including Dunbar v. Ferrera Bros., 306 Mass. 90, 27 N.E.2d 675 (Sup. Jud. Ct. 1940); Belcher v. John M. Smyth Co., 243 Ill. App. 65 (App. Ct. 1926); Kremer v. Vim Co., 306 Ill. App. 476, 28 N.E.2d 811 (App. Ct. 1940); Custer v. Atlantic & Pacific Tea Co., 43 A.2d 716 (Mun. Ct. App., D.C. 1945); Weinberg v. Hartman, 6 Terry 9, 65 A.2d 805 (Del. Super. Ct. 1949), and graphically illustrated their applicability to the issues presented here. It likewise found apropos the doctrine enunciated in the Restatement of Torts, § 332(d), and 65 C.J.S., Negligence, § 43(4)(f), of which more hereafter.
The appellant does not cite or discuss any of the authorities marshalled in the comprehensive opinion of the Appellate Division, but rather naively suggests that our judicial ingenuity will find a way leading to what he considers the "right" result, which, of course, is opposite to the one determined by the Appellate Division. The principal thought interposed is that the conclusion arrived at conflicts with the principle enunciated in Fleckenstein v. Great Atlantic & Pacific Tea Co., 91 N.J.L. 145 (E. & A. 1917).
There the plaintiff, 12 years of age, accompanied a 15 year old friend into the defendant's store. The friend intended to purchase and did so, but Fleckenstein, who had *611 no such thought, merely accompanied his companion. While the friend was transacting his business, the infant plaintiff was injured by a fragment of metal flying from a box off of which one of the defendant's employees was attempting to pry the lid. A nonsuit was granted and on appeal the court held the infant plaintiff was a mere licensee, saying: "Merchants invite the public to enter their stores to buy wares. It cannot be said that they invite the entrance of those who accompany them, but who have no intention of purchasing."
While the soundness of the reasoning underlying this decision might well be explored in the light of the philosophy of modern merchandising endeavors, where every visitor becomes a potential customer and every effort is made to induce passers-by to enter and "look around," so that when the anticipated and hoped for urge to purchase materializes, the shopper will be redirected to the same attractive premises by his recollection thereof, there is no occasion to reappraise the principle employed as factually the case is not analogous.
In the situation before us, Patricia was in the custody of her grandmother and father, "both of whom were required to go with her to the premises of the defendant for the purpose of transacting this business of the family," as contended in the pretrial memorandum.
Thus the case falls squarely within the purview of the authorities already cited and is strikingly similar in circumstances to Walec v. Jersey State Electric Co., supra, where the infant was injured by falling down an opening in the floor of the defendant's store, where she had gone in company with her mother and grandmother. The defendant's invitation there extended to the infant plaintiff and the ruling was in accord with the principle set forth in Restatement of Torts, § 332(d), concerning visits incidental to business relationships of a possessor and third persons. A business visitor is defined as "a person who is invited or permitted to enter or remain on land in the possession *612 of another for a purpose directly or indirectly connected with business dealings between them."
It is not necessary that the visitor himself should be upon the land for the purpose of the defendant's business, as the visit may be for the convenience or arise out of the necessities of others who are themselves upon the land for such a purpose. Thus:
"* * * a child taken by a mother or nurse to a shop is a business visitor, and this is so irrespective of whether it is necessary for the customer to take the child with her in order to visit the shop." Restatement of Torts, § 332(d).
This view has been widely accepted and frequently adopted by the courts of Massachusetts, Illinois, District of Columbia, Delaware and other jurisdictions. It is a logical and equitable rule in this complex, rapidly moving, modern existence of ours and fulfills the purpose of our legal system "to serve justly the needs of present day society," Arrow Builders Supply Corp. v. Hudson Terrace Apts., (Bergen Bldg. Block, Inc., v. Hudson Terrace Apts.), 1954, 15 N.J. 418. We consider it the enlightened attitude toward the present problem.
We are in accord with the Appellate Division that the matter should have survived the motion for summary judgment, there being issues of fact raised by the pleadings and other papers.
The judgment below is affirmed.
OLIPHANT, J., concurring in result.
For affirmance Chief Justice VANDERBILT and Justices HEHER, OLIPHANT, WACHENFELD, BURLING and BRENNAN 6.
For reversal None.
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812 F.2d 42
UNITED STATES of America, Appellee,v.Abraham CEBALLOS and Efrain Adames, Defendants-Appellants.
Nos. 371, 516, Dockets 86-1273, 86-1299.
United States Court of Appeals,Second Circuit.
Argued Dec. 2, 1986.Decided Feb. 13, 1987.
Peter Shelley Zeiler, New York City, for defendant-appellant Ceballos.
Phylis Skloot Bamberger, The Legal Aid Society, New York City, for defendant-appellant Adames.
Baruch Weiss, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty., Kenneth Roth, Asst. U.S. Atty., New York City, on the brief), for appellee.
Before FEINBERG, Chief Judge, NEWMAN and MINER, Circuit Judges.
JON O. NEWMAN, Circuit Judge:
1
The principal issue raised on this appeal is whether a criminal suspect who passively obeys a law enforcement agent's stern request to accompany him to his field office for questioning has been "seized" within the meaning of the Fourth Amendment to the United States Constitution. The issue arises on an appeal by Efrain Adames and Abraham Ceballos from judgments of the District Court for the Southern District of New York (Gerard L. Goettel, Judge) convicting them on their pleas of guilty to counterfeiting and conspiracy violations, 18 U.S.C. Secs. 2, 371, 474 (1982). Both defendants reserved the right to challenge on appeal the denial of their motions to suppress physical evidence seized and statements made at or about the time of their arrests. Because Secret Service agents placed Adames in investigatory custody before they had probable cause to arrest him, we reverse the District Court's denial of Adames' suppression motion. We affirm Judge Goettel's denial of Ceballos' suppression motion.
Background
2
On March 4, 1985, George Mazawey of Correy & Allen Paper Company contacted Secret Service agents to report that "Abe Ceballos" and a man named "Efrain" had purchased 15,000 sheets of an expensive type of paper often used to produce counterfeit bills. Mazawey noted that the buyers had never previously bought paper from his company, had no obvious need for such paper, and had paid cash. Mazawey also reported the license plate number of the truck used to pick up the paper; the truck was registered to Royal Molds, Inc. ("Royal Molds"), Adames' employer.
3
On March 11, 1985, at mid-afternoon, four Secret Service agents arrived in two cars at Royal Molds, a tool and die company. Agent Powers went alone into the shop while another agent remained in the stairwell. Agent Powers displayed his badge to the supervisor and asked to speak with Adames. The supervisor summoned Adames to the office. During the suppression hearing, Agent Powers provided the following description of his first encounter with Adames:
4
[cross-examination by Atty. Joy, counsel for Adames]
5
Atty. Joy: [D]id you ask [Adames] to come [with you to the field office] after he completed work?
6
Agent Powers: I asked him if it was possible if he could get off a little bit early and come with us.
7
Atty. Joy: And then you say he asked his supervisor whether he could ... get off?
8
Agent Powers: I believe they discussed his shift, what time he ended, and it was a matter of a half-hour or so, and he [the supervisor] told him to go ahead.
9
Atty. Joy: And well, did you say to him, "Well, look, you know, you can come anytime you want"?
10
Agent Powers: No, we didn't say that to him. We had to speak to him.
11
Atty. Joy: You s[ai]d he had to come with you now?
12
Agent Powers: Not that he had to come, but he sensed the urgency of it, and we would wait until he got off work but if he could come now, it would be better all around.
13
Atty. Joy: How did you express the urgency? You say he sensed the urgency? How did you express to him the urgency?
14
Agent Powers: Well, I think the fact ... that his supervisor went over and got him and told him that there was someone from the law enforcement community that wanted to speak to him.... I think he said something along the lines of the police are here, they want to talk to you.
15
* * *
16
Atty. Joy: So you said, let's go down to the precinct, is that right?
17
Agent Powers: Yes, I said that.
18
Atty. Joy: Did you show your badge to Mr. Adames?
19
Agent Powers: I believe I did. I'm not sure.
20
Transcript of Suppression Hearing, January 28, 1986, at 200-01, 203. Judge Goettel found that the agents "initially indicated they would be taking [Adames] to their office for questioning." Memorandum Decision of District Court at 2 (April 3, 1986). Agent Powers scrupulously watched Adames as he got his coat.
21
Upon leaving Royal Molds, Adames asked the agents if he could follow them to their office in the company van which he was authorized to drive and customarily used to drive home. The agents refused and accompanied Adames back into the shop to return the keys to the supervisor.
22
Adames, Agent Powers, and another agent entered a car parked in front of Royal Molds. Without speaking, they drove one block to another car, which contained Agent Cases. Once in the second car, Agent Powers told Adames that he was a Secret Service agent investigating counterfeiting. Speaking in Spanish, Adames' first language, Agent Cases then read Adames his constitutional rights and advised Adames that he was not under arrest. Adames was not handcuffed.
23
The agents initially intended to drive Adames directly to the Secret Service field office. Agent Cases proceeded to question Adames in the car. Adames stated that he was planning a business to produce flyers and intended to use the paper to practice printing. In light of the high cost of the paper, the agents found this explanation to be implausible. After they had been driving about five minutes, Adames offered to take the agents to his brother's house, where the paper was being stored. They proceeded to that house. With Adames' assistance, they carried three cartons of paper to the agents' car.
24
Adames then told the agents that he had a printing press at his residence and offered to take them there. They proceeded to Adames' home. Adames showed the agents the printing press, which they recognized as being capable of producing counterfeit bills if the necessary plates were available. They knew that 90% of counterfeit bills in the New York area are printed on presses of that type. The agents also saw several inks, including green and black inks. The green ink was on a rag and a baking tray, suggesting active use. Adames denied having printed counterfeit bills.
25
The agents then took Adames to the Secret Service field office. Neither at this time nor thereafter did Adames ask to leave, nor was he physically restrained. On the other hand, the agents never told him that he could leave, and it was clear that he would have been restrained had he attempted to do so. See Memorandum Decision of District Court at 3 (April 8, 1986).
26
They arrived at the field office at 6:00 p.m. and put Adames in a small, locked interview room. Agent Powers again told Adames that he was not under arrest. The agents proceeded to question Adames for several hours. The agents warned Adames that his paper and press and the company van were subject to forfeiture and that his brother might have serious problems if the paper purchase was not cleared up. Adames made several incriminating statements involving Ceballos and stated that Ceballos had produced and currently possessed counterfeiting plates. At the agents' behest, Adames attempted repeatedly to contact Ceballos by phone, but without success. As the evening wore on, the agents offered Adames a sandwich and coffee.
27
At about 8:30 p.m., the agents asked Adames if he would take a polygraph test. Adames signed consent forms stating that he agreed to take a polygraph test and that he was aware of his constitutional right to remain silent. A test was finally administered at 10:00 p.m. upon the arrival of a polygraph examiner. After the examiner reported that the test indicated Adames was lying, the agents again warned him of the severe consequences of a criminal conviction for counterfeiting. Adames alleges that he was then roughed up by the agents, but Judge Goettel discredited this claim, noting that there was no physical evidence to support it. The agents denied using physical force. Thereafter, Adames acknowledged that he had lied and that he and Ceballos had printed some counterfeit bills which, because of poor quality, had never been passed.
28
Adames agreed to assist the agents in obtaining the plates from Ceballos the next morning. On the morning of March 12, Adames accompanied the agents to P & J Printing, the printing shop where Ceballos worked. Adames introduced Ceballos to Agent Cases, who was posing as a potential purchaser of the plates. Ceballos did not fall for the ruse.
29
Adames was taken back to the field office, where he signed a typed statement that recounted his oral admissions of the previous evening. Adames was released in the early afternoon without being charged with any crime.
30
After Adames left Ceballos' place of work, a number of agents entered P & J Printing, handcuffed Ceballos, and escorted him out. Thereafter, they advised him of his rights. Ceballos was taken to the field office and questioned. The agents warned Ceballos of the seriousness of a counterfeiting offense and threatened to get a search warrant unless Ceballos consented to a search of his apartment. They offered to help Ceballos obtain low bail and retain his job if he cooperated. After a couple of hours, Ceballos gave a full statement and consented to a search of his apartment. At the apartment, Ceballos located the plates and surrendered them. Ceballos was taken back to the field office, whereupon he and Adames were indicted on counterfeiting and conspiracy charges.
31
Adames and Ceballos filed motions to suppress their statements and physical evidence discovered near the time of their arrests. Judge Goettel denied their motions. Pursuant to Fed.R.Crim.P. 11(a)(2), Adames and Ceballos then entered conditional guilty pleas to charges of violating 18 U.S.C. Sec. 474 (1982) (plates or stones for counterfeiting obligations or securities) and conspiring to violate 18 U.S.C. Sec. 474, in violation of 18 U.S.C. Secs. 2, 371 (1982), reserving the right to appellate review of the adverse suppression rulings.
Discussion
I. Adames' Contentions
32
Adames contends that he was placed in investigative custody without consent from the time that he was taken from his place of work. He further contends that since the agents lacked probable cause to arrest at that time, the custody violated the Fourth Amendment and therefore all evidence and statements subsequently elicited from Adames must be suppressed because the causal chain between the illegal arrest and the statements and seizures was not broken. See Dunaway v. New York, 442 U.S. 200, 217, 99 S.Ct. 2248, 2259, 60 L.Ed.2d 824 (1979). Judge Goettel found that Adames was not placed under arrest until he was taken from his home to the field office. Contrary to Adames' assertion, Judge Goettel found that Adames voluntarily left his job with the agents and consented to the seizure of the paper at his brother's house and the search of his own residence. By this time, the agents had seen the paper, printing press, green and black inks, and indications suggesting that the press and green ink had recently been used. On this basis, Judge Goettel concluded that the agents had probable cause to arrest Adames when they left his home and took him to their field office.
33
A person has been " 'seized' within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (plurality opinion of Stewart, J.) (footnote omitted). Although the determination of what a reasonable person would have thought is normally a question of law, see Antilles Steamship Co. Ltd. v. Members of American Hull Insurance Syndicate, 733 F.2d 195, 206 (2d Cir.1984) (Newman, J., concurring), we believe that Judge Goettel's conclusions are entitled to some deference because the determination in this case is inextricably intertwined with the credibility of the witnesses.1
34
We note preliminarily that we accept Judge Goettel's findings as to historical facts. See United States v. Mast, 735 F.2d 745, 749 (2d Cir.1984) ("The settled rule is that a district court's findings of fact may not be disturbed unless the findings are clearly erroneous."). To the extent that these findings are incomplete, we accept the factual testimony of Agents Powers and Cases. See United States v. Waltzer, 682 F.2d 370, 371 n. 2 (2d Cir.1982) (noting that for purposes of reviewing the denial of a suppression motion, the evidence must be viewed in the light most favorable to the Government), cert. denied, 463 U.S. 1210, 103 S.Ct. 3543, 77 L.Ed.2d 1392 (1983).
35
Whether a reasonable person would have believed that he was free to leave is to be determined from the circumstances as they unfolded before Adames. See United States v. Mendenhall, supra, 446 U.S. at 554, 100 S.Ct. at 1877 (plurality opinion of Stewart, J.). In the present case, Agent Powers initiated the encounter with Adames by asking his supervisor to tell him that law enforcement agents were waiting in the Royal Molds office to speak with him. When Adames came to the office, Agent Powers flashed his badge and told Adames that they wished to take him to their office for questioning. Agent Powers testified that Adames sensed the "urgency" of the situation and that the agents "would wait until he got off work."2 The record indicates that Agent Powers scrupulously watched Adames as he prepared to leave. Upon leaving Royal Molds, the agents denied Adames' request to follow them in the company van and then escorted him when he returned to the office to return the keys. All the while, the agents avoided explaining the situation.
36
The present case illustrates the concern, articulated by the American Law Institute and noted in Dunaway v. New York, supra, 442 U.S. at 207 n. 6, 99 S.Ct. at 2253 n. 6 (1979), that a request to appear at a police station "may easily carry an implication of obligation, while the appearance itself, unless clearly stated to be voluntary, may be an awesome experience for the ordinary citizen." Model Code of Pre-Arraignment Procedure Sec. 110.1 commentary at 261 (1975).3 That concern was heightened in this case because the request to appear was made in person by law enforcement agents at Adames' place of work and in a manner that the principal agent admits conveyed a strong sense of urgency and the impression that the agents did not intend to leave without Adames. Though the agents offered to delay Adames' trip to their field office for a half hour, until his shift ended, it remained clear that he would have to accompany them at that time. This initial encounter seems to have created a stronger implication of legal obligation than in Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion of White, J.), where Drug Enforcement Agency agents stopped Royer in a public airport. See also United States v. Jefferson, 650 F.2d 854, 856 (6th Cir.1981). The initial impression of obligation to accompany the agents was compounded by their denial of Adames' request to follow them in the company van. Cf. United States v. Thompson, 712 F.2d 1356, 1360-61 (11th Cir.1983). The agents did not tell Adames that he was free not to accompany them, a statement that would have dispelled the impression already conveyed that he was obliged to go with them. Though an explanation of the right not to accompany agents for questioning is not a legal requirement to establish voluntary agreement to be questioned, cf. Schneckloth v. Bustamonte, 412 U.S. 218, 234, 93 S.Ct. 2041, 2051, 36 L.Ed.2d 854 (1973) (knowledge of right to withhold consent to a search not a requirement of effective consent), such an explanation, credibly given, would normally serve the interests of law enforcement officials by defeating any claim that custody has begun. Cf. Washington v. Chrisman, 455 U.S. 1, 9, 102 S.Ct. 812, 818, 70 L.Ed.2d 778 (1982) (explanation of "absolute right to refuse consent" to search weighed in favor of finding of consent).
37
In light of Agent Powers' "request" to come to the field office for questioning, Adames' difficulty with English,4 the agents' omission of any statement conveying to Adames a choice in the matter, and the sense of urgency and obligation admittedly conveyed, we have serious doubt whether a reasonable person in Adames' position would have felt that he was free not to accompany the agents the moment they left Royal Molds. We are certain, however, that a reasonable person would have felt obligated to accompany the agents immediately thereafter when they refused his request to follow them in a vehicle that he was authorized to drive. At that point, and surely by the time he was moved from one car into another car, Adames was in custody. The fact that he thereafter directed the agents to his brother's house and then to his own residence indicates only that he was trying to clear himself, not that he was not then in custody.
38
As support for his conclusion that Adames consented to leave Royal Molds with the agents, Judge Goettel notes that Adames was not told that he was under arrest and that the agents testified that Adames left voluntarily. The Government bore the burden of proving that Adames accompanied the agents voluntarily. See Morales v. New York, 396 U.S. 102, 105, 90 S.Ct. 291, 293, 34 L.Ed.2d 299 (1969); United States v. Webster, 750 F.2d 307, 321 (5th Cir.1984), cert. denied, 471 U.S. 1106, 105 S.Ct. 2340, 85 L.Ed.2d 855 (1985). The fact that government law enforcement agents did not inform a suspect that he was under arrest does not establish that he accompanied them voluntarily. See Florida v. Royer, supra, 460 U.S. at 494, 501-02, 103 S.Ct. at 1326 (plurality opinion of White, J.). Furthermore, the record does not support the conclusion that Adames left Royal Molds with the agents voluntarily. The agents never suggested to Adames that he was free not to accompany them. To the contrary, Agent Powers testified that he told Adames, "[L]et's go down to the precinct." The agents then denied Adames' request to follow them in a separate vehicle that he was authorized to drive. Adames did not offer to take the agents to his brother's house to look at the paper until five minutes into the questioning that had begun after they had entered a second Secret Service vehicle. Viewing the evidence bearing on Adames' decision to accompany the agents in the light most favorable to the Government, the most that can be inferred is that Adames passively submitted to authority. The historical facts found by the District Court do not support a conclusion that the Government met its burden of proving that Adames left his place of work with the agents voluntarily.
39
As a fallback position, the Government argues that the agents' actions constituted a valid Terry stop up until the point at which Adames offered to take the agents to his brother's house, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), after which the custody, searches, and statements were consensual. It is important to bear in mind, however, that Terry carved out only a limited exception to the probable cause requirement for seizures within the meaning of the Fourth Amendment. See Dunaway v. New York, supra, 442 U.S. at 210-11, 99 S.Ct. at 2255-56. In order to be valid, a Terry stop must be " 'reasonably related to the circumstances which justified the interference in the first place.' " United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 1573, 84 L.Ed.2d 605 (1985) (quoting Terry v. Ohio, supra, 392 U.S. at 20, 88 S.Ct. at 1879). See generally 3 W. LaFave, Search and Seizure Sec. 9.2(f) (1978 & Supp.1986) (discussing time, place, and investigative method limits on Terry stops). By the time that the questioning had begun in the present case, Adames had already been requested to leave his place of work for police questioning, told that he could not drive separately in a vehicle that he was authorized to operate, placed in one police vehicle with two agents and driven one block, and moved to a second vehicle, and apparently was on his way to the field office. Cf. United States v. Chamberlin, 644 F.2d 1262, 1267 (9th Cir.1980), cert. denied, 453 U.S. 914, 101 S.Ct. 3148, 69 L.Ed.2d 997 (1981). This clearly exceeded the bounds of a legitimate stop under Terry.
40
We do not mean to suggest that law enforcement officers may never remove a suspect from his place of work for brief questioning. Upon reasonable suspicion and in appropriate circumstances, agents may require a suspect to step away from his place of work for a few moments to answer some questions regarding criminal activity. But when agents purposefully lead a suspect to believe that he is required to accompany them and without clear justification postpone questioning until he is in their car en route to the field office, they plainly exceed the bounds of Terry.
41
Having concluded that the Secret Service agents placed Adames in custody without probable cause and in a manner exceeding the limits of Terry, we must determine whether subsequent events sufficiently " 'attenuate[d] the taint of [the] unconstitutional arrest' " to allow introduction at Adames' trial of the evidence seized from and confessions made by Adames. Dunaway v. New York, supra, 442 U.S. at 217, 99 S.Ct. at 2259 (quoting Brown v. Illinois, 422 U.S. 590, 602, 95 S.Ct. 2254, 2261, 45 L.Ed.2d 416 (1975)). The Government bears the burden of proving a break in the causal chain. Brown v. Illinois, supra, 422 U.S. at 604, 95 S.Ct. at 2262. Relevant to such a break are whether a Miranda warning was given, the temporal proximity of the detention and the alleged consents, the presence of intervening circumstances, and the purpose and flagrancy of the illegal arrest. See id. at 603-04, 95 S.Ct. at 2261-62.
42
In the present case, the consents to search were given within a few minutes of the illegal arrest. Immediately following the searches which led to the discovery of the paper, press, and green ink, the agents took Adames to their field office for prolonged interrogation, which eventually led to Adames' confession. At no time during this interrogation at the field office did Adames speak with anyone other than the agents. As in Royer, the consents to search and the statements given were too closely connected in context and time to the illegal arrest to break the chain of illegality. See id. at 502-03, 103 S.Ct. at 1326-27. Consequently, the District Court should have granted Adames' suppression motion.
II. Ceballos' Contentions
43
Ceballos first contends that the agents lacked probable cause to arrest him at his place of work on March 12. Judge Goettel found that Adames' statement and cooperation created probable cause for Ceballos' arrest.
44
Probable cause to arrest exists "when the [agents] have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient in themselves to warrant a person of reasonable caution in the belief that (1) an offense has been or is being committed (2) by the person to be arrested." United States v. Fisher, 702 F.2d 372, 375 (2d Cir.1983) (citation omitted). Probable cause is to be determined from the "totality-of-the-circumstances." Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983). " '[T]he evidence ... must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement,' " Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502 (1983) (plurality opinion of Rehnquist, J.) (quoting United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)), who in this case were experienced counterfeiting investigators.
45
The record contains ample indicia of probable cause under the "totality-of-the-circumstances" test adopted in Gates v. Illinois, supra. Adames' extensive statements, though lacking the reliability of a tested informant, contained significant indications of validity and were corroborated by other evidence before the agents. We have recognized that a participant in the criminal activity at issue "need not be shown to have been previously reliable before the authorities may rely on his statements." United States v. Rueda, 549 F.2d 865, 869 (2d Cir.1977) (emphasis in original). See United States v. Gaviria, 805 F.2d 1108 (2d Cir.1986). The fact that Ceballos worked at a print shop suggested that he had the background to produce plates. In addition, Mazaway, the paper company person who reported the suspicious purchase, implicated Ceballos. Viewing this evidence in the light most favorable to the Government and from the perspective of experienced counterfeiting investigators, we conclude that Judge Goettel did not err in finding that the agents had probable cause to arrest Ceballos.5
46
Ceballos next contends that his subsequent consent to search for and seize the counterfeiting plates and his incriminating statements were coerced and therefore must be suppressed as violative of the Fifth Amendment right against self-incrimination.
47
Under Davis v. North Carolina, 384 U.S. 737, 741-42, 86 S.Ct. 1761, 1764, 16 L.Ed.2d 895 (1966), we are to make an "independent determination of the ultimate issue of voluntariness" of a confession. The applicable standard is whether the confession is "the product of an essentially free and unconstrained choice by its maker." Schneckloth v. Bustamonte, supra, 412 U.S. at 225, 93 S.Ct. at 2047. Judge Goettel found that the agents forcibly removed Ceballos from his place of work in handcuffs. There is also no question that the agents sought to persuade Ceballos to consent to a search and to confess. They warned him of the disruption to his household of execution of a court-ordered search warrant. They promised him aid in obtaining low bail and retaining his job if he cooperated.
48
Nonetheless, the totality of the circumstances suggest that Ceballos' consent to search and his confession were voluntarily given. The record indicates that the only use of force was in connection with the arrest. Thereafter the agents gave Ceballos a Miranda warning. They questioned him at their field office for a couple of hours before he consented to the search and confessed. Nothing in the record suggests that he was incapable of understanding or appreciating his Miranda rights. Viewing the evidence in the light most favorable to the Government, we find that the warnings made and promises offered by the agents did not overbear Ceballos' free will. See United States v. Robinson, 698 F.2d 448, 455 (D.C.Cir.1983); United States v. Ferrara, 377 F.2d 16, 17-18 (2d Cir.), cert. denied, 389 U.S. 908, 88 S.Ct. 225, 19 L.Ed.2d 225 (1967).
Conclusion
49
We conclude that the evidence seized from, and incriminating statements made by, Adames were causally connected to an illegal arrest. Consequently, we reverse the District Court's denial of Adames' suppression motion. We uphold the District Court's findings that Secret Service agents had probable cause to arrest Ceballos and that his subsequent consent to search and incriminating statements were voluntarily given; therefore, we affirm denial of Ceballos' suppression motion.
50
Conviction of Adames reversed; conviction of Ceballos affirmed.
MINER, Circuit Judge, dissenting in part:
51
Since I do not agree with the conclusion that Mr. Adames' incriminating statements were causally connected to an illegal arrest, I respectfully dissent from so much of the opinion as reverses the denial of his suppression motion and reverses his conviction.
52
The district court judge was required to determine, from the totality of the circumstances, "whether [Adames'] consent to accompany the agents was in fact voluntary or was the product of duress or coercion, express or implied." United States v. Mendenhall, 446 U.S. 544, 557, 100 S.Ct. 1870, 1879, 64 L.Ed.2d 497 (1980). After hearing the witnesses who testified on the issue of consent and observing their demeanor, the trial judge found that Adames' consent to leave his place of employment with the agents was voluntary. Since that finding is supported by the record, we may not replace it with our view of the evidence. Id. It seems inconsistent to accept the factual testimony of Agents Powers and Cases and the "historical facts" found by Judge Goettel but reject the judge's conclusions respecting voluntariness, when those conclusions reflect his evaluation of the testimony presented at the suppression hearing.
53
According to the evidence, the agents conveyed a sense of urgency to Adames when they visited him at his place of employment. What was urgent, however, was their need to speak to him, not their need for him to accompany them. In fact, the agents told Adames that they could wait until he got off work, and they later specifically advised him that he was not under arrest. Moreover, "the Secret Service agents testified that Adames left voluntarily and cooperated in what proved to be a misplaced hope of clearing himself of suspicion." Memorandum Decision of District Court at 7 (April 8, 1986). That testimony seems quite plausible in light of the fact that Adames led the agents to the paper and printing press in an effort to persuade them that he was going into the business of printing flyers and was using the paper for "practice." It is also logical that the agents would treat Adames with great care to avoid any appearance of coercion or arrest when they first came to interview him. The investigation then was in its early stages, and the only "hard" information available to the investigators was the purchase of the special paper for cash by "Efrain" and the transportation of that paper in a truck registered to Adames' employer. The voluntary cooperation of Adames, therefore, was essential.
54
There can be no seizure of a person within the meaning of the fourth amendment unless a reasonable person would believe that he is not free to leave. Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1878. The evidence here supports Judge Goettel's conclusion that there was no arrest until the agents took Adames to their field office after viewing the paper, press and ink. At this point, it was clear that Adames would have been restrained had he attempted to leave. There is no basis to disturb the determination that a reasonable person would have believed himself free to leave until that time. The question of custodial arrest generally is a factual one, and it seems wrong to me in this case to afford only a selective deference (i.e., "some deference," majority opinion, ante, at 1512) to Judge Goettel's conclusions.
1
The Supreme Court has not been precise in stating whether a trial court's conclusion as to Fourth Amendment custody is a question of fact or a conclusion of law. In Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), a case involving a search and arrest of a person fitting the "drug courier profile," see id. at 493 n. 2, 103 S.Ct. at 1322 n. 2, a plurality of the Court appears to reach an independent conclusion that the defendant was seized within the meaning of the Fourth Amendment:
Asking for and examining Royer's ticket and his driver's license were no doubt permissible in themselves, but when the officers identified themselves as narcotics agents, told Royer that he was suspected of transporting narcotics, and asked him to accompany them to the police room, while retaining his ticket and driver's license and without indicating in any way that he was free to depart, Royer was effectively seized for purposes of the Fourth Amendment.
Id. at 501, 103 S.Ct. at 1326 (plurality opinion of White, J.). Earlier in his opinion, however, Justice White states that the issue is whether the record supports the conclusion reached by the state intermediate appellate court whose judgment was being reviewed. Id. The state appellate court had disagreed with the trial court. A plurality of the Supreme Court was more explicit in United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), the first major drug courier profile case, rebuking the Court of Appeals for substituting its view of the evidence for that of the District Court. Id. at 557, 100 S.Ct. at 1878 (plurality opinion of Stewart, J.) (citing Jackson v. United States, 353 F.2d 862 (D.C.Cir.1965) (applying a "clearly erroneous" test)). But cf. Davis v. North Carolina, 384 U.S. 737, 741-42, 86 S.Ct. 1761, 1764, 16 L.Ed.2d 895 (1966) (stating that appellate courts are to make "an independent determination of the ultimate issue of voluntariness" of a confession).
2
Agent Powers testified further that the agents would have restrained Adames had he walked away. Although this intention might well have colored the manner in which the agents dealt with Adames and would therefore seem at least relevant to whether a reasonable person would have felt free to leave during this encounter, the Supreme Court has recently stated: "A policeman's unarticulated plan has no bearing on the question whether a suspect was 'in custody' at a particular time." Berkemer v. McCarthy, 468 U.S. 420, 442, 104 S.Ct. 3138, 3152, 82 L.Ed.2d 317 (1984). This statement is not readily reconciled with statements in Dunaway v. New York, supra, 442 U.S. at 203, 215 n. 17, 99 S.Ct. at 2258 n. 17, and Florida v. Royer, supra, 460 U.S. at 503, 103 S.Ct. at 1327, emphasizing the significance of law enforcement officers' subjective intent. Cf. United States v. Mendenhall, supra, 446 U.S. at 554 n. 6, 100 S.Ct. at 1877 n. 6 (noting that subjective intention of police officers "is irrelevant except insofar as that may have been conveyed to the [suspect]"). Since we do not rely upon the agents' subjective intent in the present case, we need not attempt to square these differing views
3
To alleviate this concern, the Model Code requires that law enforcement officers "take such steps as are reasonable under the circumstances to make clear that there is no legal obligation to comply [with a request to appear at a police station]." Model Code of Pre-Arraignment Procedure Sec. 110.1(3) (1975)
4
The reasonable person test does not " 'place upon the police the burden of anticipating the frailties or idiosyncracies of every person whom they question.' " Berkemer v. McCarthy, supra, 468 U.S. at 442 n. 35, 104 S.Ct. at 3153 n. 35 (quoting People v. P., 21 N.Y.2d 1, 10, 286 N.Y.S.2d 225, 233, 233 N.E.2d 255, 260 (1967)). Nonetheless, we believe that the test does recognize obvious incapacities that critically bear upon voluntariness such as a lack of fluency in English or a significant hearing impairment. It does not seem overly burdensome for police officers to take these easily ascertainable attributes into consideration during investigatory encounters
5
Ceballos may not assert violation of Adames' Fourth Amendment rights as a ground for suppression of evidence against him. See Alderman v. United States, 394 U.S. 165, 174-76, 89 S.Ct. 961, 966-67, 22 L.Ed.2d 176 (1969)
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 09-3470
___________
United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Southern District of Iowa.
*
Sidney Glennard Hines, * [UNPUBLISHED]
*
Appellant. *
___________
Submitted: October 4, 2010
Filed: October 6, 2010
___________
Before LOKEN, MURPHY, and BENTON, Circuit Judges.
___________
PER CURIAM.
After a jury found Sidney Hines guilty of several crack-cocaine-related offenses
and the district court1 imposed sentence, Hines filed this appeal in which his counsel
moves to withdraw, filing a brief under Anders v. California, 386 U.S. 738 (1967).
For reversal, counsel argues that the district court erred or abused its discretion by (1)
overruling Hines’s objection under Batson v. Kentucky, 476 U.S. 79 (1986); (2)
admitting the out-of-court statements of a government witness; (3) admitting a video-
recording of a controlled buy between Hines and a government informant; (4)
1
The HONORABLE JOHN A. JARVEY, United States District Judge for the
Southern District of Iowa.
assessing a four-level increase for role in the offense; and (5) assessing a two-level
increase for obstruction of justice. For the reasons discussed below, we reject each
of these arguments.
First, the district court concluded that the government’s reason for striking the
lone African-American venireperson--he had worked with the husband of the attorney
who was representing Hines’s codefendant--was a race-neutral explanation. The court
further found that there was no evidence of purposeful discrimination. These findings
are not clearly erroneous, and therefore the Batson challenge fails. See United States
v. Blaylock, 421 F.3d 758, 769-70 (8th Cir. 2005). Second, the district court did not
abuse its discretion in allowing the out-of-court statements under Federal Rule of
Evidence 801(d)(1)(B): these statements were introduced on redirect examination to
rebut testimony elicited by the defense on cross-examination suggesting that the
witness might have fabricated his testimony for personal gain. See United States v.
Bercier, 506 F.3d 625, 629-30 (8th Cir. 2007).
Third, the district court did not abuse its discretion in finding a sufficient
foundation for the recording. A detective testified as to the capabilities of the
recording device, and that he had outfitted the informant with the device, had viewed
the recording, and was familiar with and could identify the parties in the recording.
See United States v. Oslund, 453 F.3d 1048, 1054-55 (8th Cir. 2006). Fourth, at least
five persons were involved in the drug operation, Hines used the residences of some
of those persons to sell drugs, and some of them sold drugs for him as well.
Therefore, the district court did not clearly err in imposing a four-level aggravating-
role increase under U.S.S.G. § 3B1.1(a). See United States v. Mesner, 377 F.3d 849,
851-52 (8th Cir. 2004).
Fifth, the district court did not clearly err in finding that Hines’s testimony at
trial was intentionally false, and assessing a two-level increase for obstruction of
justice under U.S.S.G. § 3C1.1. See United States v. Denton, 434 F.3d 1104, 1114
-2-
(8th Cir. 2006). Finally, after reviewing the record independently under Penson v.
Ohio, 488 U.S. 75 (1988), we have found no nonfrivolous issues for appeal.
Accordingly, we affirm the judgment of the district court, and we grant counsel’s
motion to withdraw, subject to counsel informing Hines about procedures for seeking
rehearing or filing a petition for certiorari.
______________________________
-3-
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IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
June 9, 2004 Session
SULLIVAN COUNTY, TENNESSEE and the SULLIVAN COUNTY
BUILDING COMMISSIONER v. JOE ELLIS LYON
Direct Appeal from the Law Court for Sullivan County
No. C10583(M) Hon. John S. McLellan, III., Judge
No. E2003-01107-COA-R3-CV - FILED JULY 27, 2004
Appellant, pro se, employed counsel during appeal, but appeal is premature. We dismiss appeal and
remand.
Tenn. R. App. P.3 Appeal Dismissed.
HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the court, in which CHARLES D. SUSANO ,
JR., J., and SHARON G. LEE, J., joined.
Cheryl C. Rollins, Knoxville, Tennessee, for Appellant.
Daniel P. Street, Blountville, Tennessee, for Appellees.
OPINION
This is an appeal by the defendant from a Judgment entered by the Trial Court on
April 4, 2003, wherein the Court granted plaintiff judgment for accrued fines and penalties.
Penalties were assessed for coercive and remedial purposes for the enforcement of a prior judgment.
The Trial Court withheld a ruling on the criminal contempt and confinement in a correctional
facility, as petitioned by plaintiffs. The Court also ruled that the Court would “consider issuing an
order for attachment of defendant to compel defendant’s appearance to show cause why he should
not be held in contempt of court. . . “
The record shows that this matter has been in litigation for the past seven years, and
there have been two trials, including a jury trial, three appeals, and two applications for review to the
Tennessee Supreme Court, followed by the issuance of two mandates. Defendant has been
unsuccessful on all substantive matters1 yet steadfastly refuses to bring his property into compliance
with the zoning regulations by “remov[ing] with due haste all cars, trucks, automobiles, equipment,
trailers, heavy equipment, etc., parts of same, salvage, scrap and/or junk” as ordered by the Court.
The appellate record is incomplete, but apparently defendant appeals from the Order
entered on April 3, 2003 that granted Plaintiff’s petition to enforce the previous judgment entered on
September 18, 2001.
Plaintiff filed the instant action on March 18, 2003 seeking to enforce the September
18, 2001 judgment and for civil and criminal penalties, including confinement in the Sullivan County
Correctional Facility. Notice of the hearing on the petition was served upon the defendant, but he did
not appear for the hearing. Plaintiff was granted judgment and execution on the fines and penalties
previously assessed. However, the trial court stated that it would withhold its ruling on the request for
criminal contempt and other matters.
The Judgment expressly reserves ruling on the criminal contempt issue, subject to
procuring Defendant’s physical presence in court. Any conditional Order that reserves any substantive
matter for hearing at a later date is not final. See, Tenn. R. App. P. 3. Thus, the Judgment here did not
adjudicate all claims at issue and was therefore not a final order, nor did the Trial Court in the Order
designate its entry as final by making an express determination that there is no just reason for delay,
as required by Tenn. R. Civ. P. 54.02. A non-final order not so certified is interlocutory and not
reviewable in this Court. Town of Collierville v. Norfolk So. Ry., 1 S.W.3d 68, 70 Tenn. Ct. App.
1998); Bayberry Assoc. v. Jones, 783 S.W.2d 553 (Tenn. 1990). Moreover, defendant failed to set
forth a concise issue for review, and we cannot respond to an issue which has not been articulated.
There is no evidentiary record available to the Court, other than a transcript of proceedings on March
28, 2003, which is largely a colloquy between counsel and the trial court.
For the foregoing reasons, we dismiss this appeal and remand to the Trial Court, having
determined that a final judgment has not been entered in this action.
The cost of the appeal is assessed to Joe Ellis Lyon.
______________________________
HERSCHEL PICKENS FRANKS, P.J.
1
The court has ruled in his favor on several motions for additional time, motions to supplement the
record, and in a reported case (20 S.W.3d 676 (Tenn. Ct. App. 1999)) vacated an agreed order which
defendant claimed he did not agree to, after it was retyped to include modifications that he had orally
approved.
-2-
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936 P.2d 31 (1997)
86 Wash.App. 107
James M. McCOY and Donna McCoy, Husband and wife, Appellants,
v.
AMERICAN SUZUKI MOTOR CORPORATION, a California Corporation; Suzuki Motor Company, Ltd., A foreign corporation, Respondents.
No. 14948-0-III.
Court of Appeals of Washington, Division 3, Panel One.
May 1, 1997.
Roger A. Felice, Theresa L. Lalone, Roger A. Felice, P.S., Spokane, for Appellants.
Thomas V. Harris, Allan H. Baris, Merrick, Hofstedt & Lindsey, P.S., Seattle, James M. Harris, Sidley & Austin, Los Angeles, CA, Paul J. Triesch, Assistant Attorney General, Seattle, for Respondents.
SWEENEY, Chief Judge.
"[O]ne who imperils himself in order to rescue a person who is in danger of being injured or killed through the negligence of another person, may recover damages from the negligent person for injuries received while effecting such rescue." Highland v. Wilsonian Inv. Co., 171 Wash. 34, 39, 17 P.2d 631 (1932). James M. McCoy saw a Suzuki Samurai swerve across the freeway and roll after hitting a patch of black ice. He stopped to help the occupants. He then helped a Washington State trooper by placing *32 flares along the highway. Mr. McCoy was injured by a hit-and-run vehicle while returning to his car some two hours later.
Mr. McCoy and his wife, Donna McCoy, sued the driver and passenger of the Samurai based on the rescue doctrine.[1] They sued American Suzuki Motor Corporation and its parent company, Suzuki Motor Company, Ltd., (Suzuki) based on the Washington product liability act (PLA), RCW 7.72.[2]
Suzuki moved for summary judgment. The trial court concluded that the hit-and-run was a superseding cause which relieved Suzuki of liability. According to the trial judge, being struck by a hit-and-run driver was too remote a circumstance and therefore not a foreseeable consequence of a defective product. The court granted Suzuki's motion for summary judgment. The McCoys appeal.
The trial judge's analysis is sound if the question here is whether the McCoys' injuries are a foreseeable consequence of manufacturing a defective car. But their cause of action is based on the rescue doctrine. That doctrine varies the ordinary rules of negligence: "it permits the rescuer to sue on the basis of defendant's initial negligence toward the party rescued, without the necessity of proving negligence toward the rescuer...." Solgaard v. Guy F. Atkinson Co., 6 Cal.3d 361, 491 P.2d 821, 99 Cal.Rptr. 29, 33 (1971). We therefore reverse the trial court's summary judgment order of dismissal of the McCoys' action and remand the matter for trial.
DISCUSSION
In French v. Chase, 48 Wash.2d 825, 830, 297 P.2d 235 (1956), the court set out the four elements of the rescue doctrine:
(1) There must be negligence on the part of the defendant which is the proximate cause of peril, or what would appear to a reasonable person under the circumstances to be peril, to the life or limb of another.
(2) The peril, or reasonable appearance of peril, to the life or limb of another must be imminent.
(3) In determining whether the peril, or appearance of peril, is imminent, in the sense that an emergency exists requiring immediate action, the circumstances presented to the rescuer must be such that a reasonably prudent man, under the same or similar circumstances, would determine that such peril existed. (The issue of whether the rescuer's determination conformed with the reasonably prudent man standard is a question for the jury, under proper instructions.)
(4) After determining that imminent peril to life or limb of a person exists, the rescuer, in effecting the rescue, must be guided by the standard of reasonable care under the circumstances. (Whether there has been conformance with this standard also is a question for the jury, under proper instructions.)
(Emphasis omitted.) We first address Suzuki's threshold argument that the trial court did not err because the PLA eliminated the McCoys' cause of action based on the rescue doctrine.
A. Application of Product Liability Act. Suzuki argues that the PLA abrogated a rescue doctrine cause of action because the doctrine is an outgrowth of common law negligence. It relies on Washington State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wash.2d 299, 320, 858 P.2d 1054 (1993), for the proposition that liability under the PLA extends to those injuries caused directly "by the product to the person or the property of the claimant." (Emphasis omitted.) And *33 it relies on Ayers v. Johnson & Johnson Baby Prods. Co., 117 Wash.2d 747, 762, 818 P.2d 1337 (1991), for the proposition that the Legislature did not intend to engraft ordinary negligence principles onto the law of design defect product liability claims.
Neither Fisons nor Ayers is controlling. Neither decision addressed or applied the rescue doctrine. The issue in Fisons was whether a treating physician had a cause of action against a drug company for personal and professional injuries he suffered when his patient had an adverse reaction to a drug. Fisons, 122 Wash.2d at 320, 858 P.2d 1054. The court held that the facts did not support a cause of action under the PLA. Id. at 322, 858 P.2d 1054. It observed that our courts have been cautious about extending a right to recover for emotional harm, "especially when the distress is the consequence of an injury suffered by a third person." Id. at 320-21, 858 P.2d 1054 (plaintiff's emotional damages caused by witnessing or learning of a third person's physical injuries are compensable only in very limited circumstances). In contrast, our state has shown no reticence in extending the right to recover to a rescuer. Highland, 171 Wash. at 40, 17 P.2d 631; Maltman v. Sauer, 84 Wash.2d 975, 530 P.2d 254 (1975); French, 48 Wash.2d at 833, 297 P.2d 235 (Schwellenbach, J., concurring); In re Estate of Keck, 71 Wash.App. 105, 110, 856 P.2d 740 (1993); Ballou v. Nelson, 67 Wash. App. 67, 70, 834 P.2d 97 (1992) (doctrine encourages efforts to save imperiled persons).
In Ayers, the plaintiff's product liability suit was based on a manufacturer's failure to warn of the danger of aspirating baby oil. Ayers simply stands for the proposition that despite the language of RCW 7.72.030(1) (manufacturer subject to liability for design defect based on negligence), foreseeability is not an element of a failure-to-warn claim. Ayers, 117 Wash.2d at 761, 818 P.2d 1337. We are not persuaded by Suzuki's claim that Ayers "makes [it] clear that the rescue doctrine cannot be `engraft[ed]' onto a claim under the [PLA]."
Other jurisdictions have permitted recovery under the rescue doctrine in product liability claims. Williams v. Foster, 281 Ill. App.3d 203, 217 Ill.Dec. 9, 666 N.E.2d 678 (1996) (rescuer sues manufacturer of water heater for injuries suffered rescuing family from burning home); Welch v. Hesston Corp., 540 S.W.2d 127 (Mo.Ct.App.1976) (injured volunteer fireman sues manufacturer of haystacker machine); Govich v. North Am. Sys., Inc., 112 N.M. 226, 814 P.2d 94 (1991) (plaintiff sued manufacturer of coffee maker and component for damages suffered while attempting rescue of dog from burning house); Guarino v. Mine Safety Appliance Co., 25 N.Y.2d 460, 255 N.E.2d 173, 306 N.Y.S.2d 942, 44 A.L.R.3d 467 (1969) (estate of rescuer who died of gas asphyxiation sues manufacturer of gas mask; court holds defendant manufacturer committed "culpable act" by manufacturing and distributing defective oxygen-producing mask); Conaway v. Roberts, 725 S.W.2d 377 (Tex.Ct. App.1987) (rescuer sues manufacturer for injuries suffered when he comes to aid of neighbor trapped under riding lawn mower).
We are also not persuaded by Suzuki's argument that liability for a design defect under the PLA should not extend to bystanders. A bystander is one who is "present but not taking part." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 307 (1969); see State v. Johnson, 7 Wash.App. 527, 535, 500 P.2d 788 (1972) (bystanders are those who, "without intent, purpose or design to do other than be where they are, find themselves among a crowd or group of people"), aff'd, 82 Wash.2d 156, 508 P.2d 1028 (1973). A rescuer, however, reacts to the "cry of distress" with action. Wagner v. International Ry., 232 N.Y. 176, 180, 133 N.E. 437, 19 A.L.R. 1 (1921). A rescuer voluntarily exposes himself or herself to danger. Keck, 71 Wash. App. at 110, 856 P.2d 740. Mr. McCoy was not a bystander. He was a rescuer.
"[W]hen one sees his fellow-man in such peril he is not required to pause and calculate as to court decisions, nor recall the last statute as to the burden of proof...." Highland v. Wilsonian Inv. Co., 171 Wash. 34, 41, 17 P.2d 631 (1932) (quoting Norris v. Atlantic Coast Line R.R., 152 N.C. 505, 67 S.E. 1017 (1910)). Likewise, a potential rescuer should not have to "pause and calculate" *34 the intricacies of the PLA before coming to the aid of one in peril. Application of the rescue doctrine does not, and should not, depend on the particular legal theory underlying the plaintiff's cause of actionso long as the conduct of the defendant created the peril which invited rescue.
The PLA has not eroded a rescuer's right to recover. We agree with the McCoys' contention that a rescuer, qualifying as such under the elements of French, may recover for injuries against the party who created the peril. We therefore apply the four elements of the rescue doctrine to the facts presented.
B. Rescue Doctrine.
1. Negligence proximately causing peril. The first element of French v. Chase, 48 Wash.2d 825, 830, 297 P.2d 235 (1956) requires "negligence on the part of the defendant which is the proximate cause of peril, or what would appear to a reasonable person... to be peril, to the life or limb of another." This provision therefore requires a determination of whether Suzuki is the proximate cause of the peril to the driver and passenger of the Samurai. This is a question for the trier of fact. It must determine if (1) the Samurai had a design defect and, if so, (2) whether the alleged defect proximately resulted in the peril here, as opposed to ice, excessive speed, the passenger's grabbing of the steering wheel, or any other factor. French, 48 Wash.2d at 830, 297 P.2d 235.
2. Imminence of peril or reasonable appearance of imminence. Suzuki asserts that the McCoys are not entitled to recovery under the rescue doctrine because the peril to the life and limb of the occupants of the Samurai was not imminent. It relies on Hawkins v. Palmer, 29 Wash.2d 570, 576, 188 P.2d 121 (1947). Again, the question of imminence is one for the trier of fact.
In Hawkins, the plaintiff drove onto the scene of a motorcycle accident. He left to summon help. When he returned, he assisted the ambulance attendants in removing the injured. While doing so, he was hit by a passing car and injured. Id. at 572, 188 P.2d 121. The plaintiff sued the ambulance company based on the rescue doctrine. The court concluded that the plaintiff was not engaged in a rescue. It recognized that every person who gives aid is not necessarily a rescuer. Id. at 576, 188 P.2d 121. The doctrine applies "when one acts impulsively, oblivious of peril, to save or assist an injured person or a person whose injury is imminent; or when, conscious of the peril and weighing the consequences, he nonetheless goes to the aid of the injured person or the person whose injury is imminent." Id. The court held that the plaintiff did not knowingly encounter danger to assist the victims: "[t]he injured man seemingly was in no more imminent or serious peril at that moment than he had been for a considerable period of time prior thereto." Id. at 577, 188 P.2d 121. There was no known danger or peril threatening the victims. Id.
Hawkins is distinguishable. Here, oncoming traffic approached the scene of the accident around a slight curve. It was nighttime. The road was coated with black ice. Approaching traffic was not slowing down or moving to the inside lane. Whether the driver and passenger of the Samurai were in imminent peril is a factual question. In re Estate of Keck, 71 Wash.App. 105, 114, 856 P.2d 740 (1993) (relying on French, 48 Wash.2d at 830, 297 P.2d 235). Summary judgment is appropriate only when the pleadings, affidavits and depositions demonstrate there is no genuine issue of fact. Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982). Considering all the facts and inferences therefrom in a light most favorable to the McCoys, we cannot say that reasonable persons could draw a single conclusion from the evidence. Keck, 71 Wash. App. at 114, 856 P.2d 740.
3. Peril or reasonable appearance of peril. Suzuki notes that Mr. McCoy continued to direct traffic and was returning to his car after the accident scene had been cleared. It argues that it was therefore unreasonable for Mr. McCoy to assume that the imminent peril continued.
As French makes clear, whether Mr. McCoy's perception of imminent peril was reasonable is a question of fact. French, 48 Wash.2d at 830, 297 P.2d 235. The rescue doctrine requires a focus on "how the injuries *35 appeared to the rescuer at the time of the rescue for the purpose of establishing the reasonableness of his determination that the injured person was in imminent peril." Id. at 832, 297 P.2d 235. A reasonably prudent person could have concluded that the victims here remained in imminent peril from traffic while Mr. McCoy assisted the trooper by setting out flares. Emergency workers removed the driver from the scene of the accident at about 6:50 p.m. Mr. McCoy started back to his car and was struck shortly before 7:00 p.m. The question of whether the peril was imminent is for the jury.
4. Reasonableness of conduct in effecting rescue. Finally, Suzuki argues that the rescue doctrine does not apply because Mr. McCoy was injured while returning to his vehicle.
If a plaintiff suffers an injury during the scope of a rescue, it is for the trier of fact to determine whether the rescuer, in effecting the rescue, was guided by the standard of reasonable care. French, 48 Wash.2d at 830, 297 P.2d 235. Mr. McCoy may have remained in the course of a rescue when he was directing traffic, even if the victims were no longer in danger, if he reasonably believed that the driver or her passenger was still in peril. Id.; see Sweetman v. State Highway Dep't, 137 Mich.App. 14, 357 N.W.2d 783 (1984) (whether rescuer's subsequent act of assuming function of traffic director on icy bridge after victim of accident was no longer in danger was within scope of rescue is question for trier of fact); Keck, 71 Wash.App. at 115, 856 P.2d 740 (rescuer remains in course of rescue attempt when he acts under reasonable belief that party's peril continues).
Given the facts heredarkness, icy highways, a curve just prior to the accident scene, and two victims being attended to on or near the highwaywe conclude the jury might conclude Mr. McCoy's activities were within the scope of his rescue.
The order of summary judgment is reversed and the matter is remanded for trial.
THOMPSON and BROWN, JJ., concur.
THOMPSON, Judge (dissenting).
The majority opinion accurately sets out the facts of this case. The trial court did not err in granting summary judgment because American Suzuki Motor Corporation and Suzuki Motor Company, Ltd. (Suzuki) was not the proximate cause of James McCoy's injuries and the imminent danger element of the rescue doctrine was not met. Therefore, I respectfully dissent.
When a defendant's negligence creates a situation that immediately endangers the life of another, then the "peril invites rescue." French v. Chase, 48 Wash.2d 825, 829, 297 P.2d 235 (1956) (citing Highland v. Wilsonian Inv. Co., 171 Wash. 34, 17 P.2d 631 (1932)). The rescue doctrine encourages individuals to render aid to those in danger, despite the rescuer's voluntary exposure to danger. Ballou v. Nelson, 67 Wash.App. 67, 70, 834 P.2d 97 (1992).
Under the rescue doctrine, the first inquiry should be whether Suzuki's negligence was the proximate cause of Mr. McCoy's injuries. In re Estate of Keck, 71 Wash.App. 105, 110, 856 P.2d 740 (1993). Proximate cause requires a showing of cause in fact and legal causation. Christen v. Lee, 113 Wash.2d 479, 507, 780 P.2d 1307 (1989). A cause in fact is cause but for which the accident would not have happened. Channel v. Mills, 77 Wash.App. 268, 272, 890 P.2d 535 (1995). Cause in fact is generally a question of fact. Hartley v. State, 103 Wash.2d 768, 778, 698 P.2d 77 (1985).
Legal causation involves "policy considerations of how far the consequences of a defendant's acts should extend," Keck, 71 Wash.App. at 111, 856 P.2d 740 (quoting Christen, 113 Wash.2d at 508, 780 P.2d 1307), and is a question of law. Id. Determining whether legal causation exists requires consideration of causation, intervening events, duty, foreseeability, reliance, remoteness and privity. Hartley, 103 Wash.2d at 780, 698 P.2d 77. Further, the application of the rescue doctrine is limited to situations where the plaintiff can establish his injury was attributable to a cause which was reasonably foreseeable given the danger created by the defendant's original act of negligence. *36 Maltman v. Sauer, 84 Wash.2d 975, 981, 530 P.2d 254 (1975).
Suzuki's alleged design defect was not the legal cause of the injuries suffered by Mr. McCoy due to the hit-and-run driver. Injury caused by any alleged design defect was limited to the driver and passenger in the Suzuki under the facts of this case. To go beyond those immediately injured, Mr. McCoy has to rely on the rescue doctrine. But that doctrine is not applicable here. The alleged negligence is too remote and insubstantial to impose liability. See Hartley, 103 Wash.2d at 784, 698 P.2d 77 (state and county's failure to revoke defendant's driver's license was too remote and insubstantial to impose liability for wrongful death action); Klein v. City of Seattle, 41 Wash.App. 636, 639, 705 P.2d 806 (design defect in road was too remote to impose liability for accident caused by driver who had been drinking and was speeding), review denied, 104 Wash.2d 1025 (1985). Suzuki is not liable for Mr. McCoy's injuries because, as a matter of law, proximate cause cannot be established. In addition, Mr. McCoy's injuries are not attributable to a reasonably foreseeable event given the design defect. Even if Suzuki designed the Samurai defectively and because of that design should foresee injury, it could not possibly foresee that Mr. McCoy would have been victimized by a hit-and-run driver in these circumstances. Thus, not only was Suzuki's alleged negligence not the proximate cause of Mr. McCoy's injuries, the injuries he suffered were not within the reasonably foreseeable consequences of Suzuki's defective design of the Samurai.
The language of the rescue doctrine makes it clear that one element is the emergency nature of the situation that presents itself to the rescuer. Here, the required imminent danger to the driver and passenger did not exist when Mr. McCoy suffered his injuries. French, 48 Wash.2d at 830, 297 P.2d 235. Mr. McCoy suffered his injuries approximately two hours after the initial rescue. The element of urgency and need for immediate action had long since passed. Both victims and the vehicle had already been removed from the scene when the pickup hit Mr. McCoy. The peril was not imminent. The court did not err by granting Suzuki's motion for summary judgment.
NOTES
[1] The McCoys claimed the driver had a duty to operate the "vehicle so as not to carelessly and/or negligently cause injury or damage to herself and other persons ... and it was her duty not to place herself or other persons in a position of `imminent peril to life or limb'." They alleged the passenger was liable because she interfered with the driver's control over the vehicle by grabbing the steering wheel.
[2] The McCoys' PLA cause of action against Suzuki is sufficient to invoke application of the rescue doctrine. The pleading gave Suzuki adequate notice of the general nature of the McCoys' claim. Christensen v. Swedish Hosp., 59 Wash.2d 545, 548, 368 P.2d 897 (1962).
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634 F.3d 183 (2011)
John GIORDANO, Plaintiff-Appellant,
v.
MARKET AMERICA, INC., and The Chemins Company, Inc., Defendants-Appellees.
Docket No. 06-2071-cv.
United States Court of Appeals, Second Circuit.
Argued: November 8, 2007.
Final Submission: April 7, 2009.
Certified Question Answered: November 18, 2010.
Decided: February 8, 2011.
*184 Brian J. Isaac, Pollack, Pollack, Isaac & De Cicco, LLP, for Sanders, Sanders, Block & Woycik, P.C. (Joseph B. Viener, of counsel), New York, NY, for Plaintiff-Appellant.
Andrew Zajac, Fiedelman & McGaw, Jericho, NY, for Defendant-Appellee Market America, Inc.
Edward J. Stolarski, Jr., Wilbraham, Lawler & Buba, Philadelphia, PA, for Defendant-Appellee The Chemins Company, Inc.
Before: McLAUGHLIN, CABRANES, and SACK, Circuit Judges.
PER CURIAM:
We return for a third time to this appeal from a judgment of the United States District Court for the Southern District of New York (Jed S. Rakoff, Judge) granting summary judgment to the defendants on statute-of-limitations grounds. See In re Ephedra Prods. Liab. Litig., No. 04-MD-1598, 2006 WL 944705, 2006 U.S. Dist. LEXIS 18691 (S.D.N.Y. Apr. 10, 2006) ("Ephedra"). We assume the parties' and readers' familiarity with the facts and lengthy procedural history of this case, *185 and the issues presented on appeal,[1] which we repeat here only as we think necessary to explain our resolution of this appeal.
The district court's grant of summary judgment rested on its interpretation of section 214-c(4) of the New York Civil Practice Law and Rules, which extends the statute of limitations in certain tort cases arising out of exposure to an allegedly harmful substance.[2] As an initial matter, the district court determined that, although section 214-c(4) does not include the word "latent" in its text, "its express reference to [subdivisions] 2 and 3 [of section 214-c, which explicitly do require latency], and the cases interpreting § 214-c as a whole, show that [subdivision] 4's additional time to discover the cause of injury operates only for injuries caused by latent effects." Ephedra, 2006 WL 944705, at *1, 2006 U.S. Dist. LEXIS 18691, at *3. Based upon this understanding, the district court concluded that "[a] stroke allegedly caused by ephedra is not an injury caused by latent effects," within the meaning of 214-c(4), id., because strokes caused by ephedra usually occur within hours or days of a person's ingestion of the substancetoo short a time to be "latent," id., 2006 WL 944705, at *1, 2006 U.S. Dist. LEXIS 18691, at *4.
The district court's interpretation of section 214-c(4) raised what we considered to be "difficult questions of New York law." Giordano v. Mkt. Am., Inc., 289 Fed.Appx. 467, 468 (2d Cir.2008) (summary order) ("Giordano I"). We therefore certified three questions to the New York Court of Appeals:
1. Are the provisions of N.Y. C.P.L.R. § 214-c(4) providing for an extension of the statute of limitations in certain circumstances limited to actions for injuries caused by the latent effects of exposure to a substance?
2. Can an injury that occurs within 24 to 48 hours of exposure to a substance be considered "latent" for these purposes?
3. What standards should be applied to determine whether a genuine issue of material fact exists for resolution by a trier of fact as to whether "technical, scientific or medical knowledge and information sufficient to ascertain the *186 cause of [the plaintiff's] injury" was "discovered, identified or determined" for N.Y.C.P.L.R. § 214-c(4) purposes?
Giordano v. Mkt. Am., Inc., 599 F.3d 87, 101 (2d Cir.2010) ("Giordano II"). The Court of Appeals answered them as follows:
(1) the provisions of CPLR 214-c(4) are limited to actions for injuries caused by the latent effects of exposure to a substance;
(2) an injury that occurs within hours of exposure to a substance can be considered "latent" for these purposes; and
(3) "technical, scientific or medical knowledge and information sufficient to ascertain the cause of [the plaintiff's] injury" is "discovered, identified or determined" within the meaning of the statute when the existence of the causal relationship is generally accepted within the relevant technical, scientific or medical community.
Giordano v. Mkt. Am., Inc., 15 N.Y.3d 590, 594, 915 N.Y.S.2d 884, 885-886, 941 N.E.2d 727, 728-29[3] (2010) ("Giordano III") (brackets in original). In light of these responses, we vacate the district court's judgment and remand the matter to the district court for further proceedings.
Summary judgment was not warranted here for two reasons.
First, contrary to the district court's conclusion, under the New York Court of Appeals' decision, the plaintiff's injury could be "latent" for the purposes of C.P.L.R. 214-c(4) despite the short time between Giordano's ingestion of ephedra and the onset of his injury. The Court has advised that the fact that Giordano developed the aneurism and suffered the subsequent strokes within days, or even hours, of his ingestion of Thermo-Chrome 5000, a supplement containing ephedra, does not foreclose a finding of latency. See Giordano III, 15 N.Y.3d at 598, 915 N.Y.S.2d at 887-88, 941 N.E.2d at 730-31. Inasmuch as the district court did not evaluate whether the plaintiff has created a triable issue of fact on the issue, it may do so in the first instance on remand. If there is such an issue of fact, and if the plaintiff prevails on the second issue outlined below, the factual issue will of course have to be resolved by a trier of fact.
Second, insofar as the plaintiff's claims are not foreclosed as a matter of law by section 214-c(4)'s latency prerequisite, the district court must decide on remand whether there was "general acceptance of [the] relationship [between ephedra and aneurism and strokes] in the relevant technical, scientific or medical community," Giordano III, 15 N.Y.3d at 601, 915 N.Y.S.2d at 890, 941 N.E.2d at 733, at some time "prior to the expiration of the period within which the action or claim would have been authorized," N.Y. C.P.L.R. 214-c(4), under the three-year statute of limitations generally applicable to cases involving personal injury arising from exposure to a certain substance, see N.Y. C.P.L.R. 214-c(2). On our earlier remand pursuant to United States v. Jacobson, 15 F.3d 19, 21-22 (2d Cir.1994), see Giordano I, 289 Fed.Appx. at 469, the district court concluded that, assuming the plaintiff's injury could be considered latent, "genuine issues of material fact remain[] to be resolved" under any standard for determining "whether the information available prior to March 2002 was sufficient to `enable' the medical or scientific `community' to `ascertain' the `probable' *187 causal relationship between ephedra and Giordano's injury," In re Ephedra Prods. Liab. Litig., 598 F.Supp.2d 535, 537 (S.D.N.Y.2009). The district court itself has thus recognized to that extent the existence of questions for a finder of fact. If the plaintiff's causes of action are not foreclosed by the district court's judgment as to "latency," the "general acceptance" issues, too, will have to be resolved by a trier of fact.
For the foregoing reasons, the judgment of the district court is vacated and the case is remanded for further proceedings.
NOTES
[1] See Giordano v. Mkt. Am., Inc., 599 F.3d 87 (2d Cir.2010) (certifying question to the New York Court of Appeals); In re Ephedra Prods. Liab. Litig., 598 F.Supp.2d 535 (S.D.N.Y. 2009) (answering question posed by this Court pursuant to remand under United States v. Jacobson, 15 F.3d 19, 21-22 (2d Cir. 1994)); Giordano v. Mkt. Am., Inc., 289 Fed.Appx. 467 (2d Cir.2008) (summary order) (identifying question to be addressed by the district court on Jacobson remand); In re Ephedra Prods. Liab. Litig., No. 04-MD-1598, 2006 WL 944705, 2006 U.S. Dist. LEXIS 18691 (S.D.N.Y. Apr. 10, 2006) (granting summary judgment in favor of the defendants).
[2] Section 214-c(4) provides:
Notwithstanding the provisions of subdivisions two and three of this section, where the discovery of the cause of the injury is alleged to have occurred less than five years after discovery of the injury or when with reasonable diligence such injury should have been discovered, whichever is earlier, an action may be commenced or a claim filed within one year of such discovery of the cause of the injury; provided, however, if any such action is commenced or claim filed after the period in which it would otherwise have been authorized pursuant to subdivision two or three of this section the plaintiff or claimant shall be required to allege and prove that technical, scientific or medical knowledge and information sufficient to ascertain the cause of his injury had not been discovered, identified or determined prior to the expiration of the period within which the action or claim would have been authorized and that he has otherwise satisfied the requirements of subdivisions two and three of this section.
N.Y. C.P.L.R. 214-c(4).
[3] The New York Reports citation and Westlaw version of the Court of Appeals' opinion are not paginated; pinpoint citations are therefore unavailable.
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39 F.Supp. 602 (1941)
MORRIS
v.
ARGO-COLLIER TRUCK LINE et al.
Civ. No. 100.
District Court, W. D. Kentucky.
July 2, 1941.
*603 F. B. Martin, of Mayfield, Ky., for plaintiff.
Finley F. Gibson, Jr., of Louisville, Ky., for defendants Collier & Weldon.
MILLER, District Judge.
The plaintiff, administratrix of the estate of Jim Morris, deceased, brought this action against the defendants Ruben Collier, and Clifford Weldon, doing business as the Argo-Collier Truck Lines, Isham Brooks and Bill Higgs to recover damages in the amount of $17,850 for injury to property and for the death of Jim Morris resulting from an automobile accident in Graves County, Kentucky. The petition alleges that the accident was caused by the negligent operation of a truck by Higgs as the employee of the partnership. The truck was owned by Brooks, who was a resident of Illinois, and was being operated under a lease contract from Brooks to the partnership. The partners Collier and Weldon, and also Higgs, the operator of the truck, were residents of Tennessee. The plaintiff is a resident of Kentucky. The defendants Collier and Weldon filed their petition for removal to the U. S. District Court which was sustained by the order of the Graves Circuit Court. The plaintiff has moved that the action be remanded to the State Court on the ground that no separate controversy exists between the plaintiff and any one of the four defendants, and that it is accordingly necessary in order to remove the action to the Federal Court that all of the defendants join in the petition for removal. The defendants Brooks and Higgs did not join in the petition.
The rule is well settled that where a State Court action against several defendants is subject to removal all the defendants who are necessary parties must join in the removal proceedings, if the action presents a nonseparable controversy as to all of the defendants. Chicago, Rock Island & Pacific Ry. Co. v. Martin, 178 U.S. 245, 20 S.Ct. 854, 44 L.Ed. 1055; Gableman v. Peoria, Decatur & Evansville Ry. Co., 179 U.S. 335, 21 S.Ct. 171, 45 L.Ed. 220; Pullman Co. v. Jenkins, 305 U.S. 534, 59 S.Ct. 347, 83 L.Ed. 334; Bailen v. Deitrick, 1 Cir., 84 F.2d 375; Belcher v. Aetna Life Ins. Co., D.C.W.D. Tex., 3 F.Supp. 809; Hillis v. Rice, D.C.E.D.Mo., 25 F.Supp. 813. In a tort action of this nature no separable controversy exists between the plaintiff and any of the defendants. Gableman v. Peoria, Decatur & Evansville Ry. Co. supra; Pullman Co. v. Jenkins, supra. This rule does not apply where there is a nonseparable controversy with respect to several nonresident defendants, and the defendants who do not join in the petition for removal have not been served with process and have not entered their appearance to the action. Under these conditions the nonresident defendants who are not before the court can be disregarded and the cause can be removed if a petition for removal is joined in by all the defendants before the Court. Hunt v. Pearce, 8 Cir., 284 F. 321; Pullman Co. v. Jenkins, 305 U.S. 534, at page 540, 59 S.Ct. 347, 83 L.Ed. 334. It is therefore necessary to apply these well-settled rules to the facts of this case in order to determine whether or not the action was properly removed to the United States District Court.
The plaintiff sought to acquire jurisdiction over the nonresident defendants by proceeding under Sections 12-1 and 12-2 of the Kentucky Statutes dealing with the use of highways in Kentucky by a *604 nonresident operator of a motor vehicle. These Sections of the statute provide in substance that any nonresident operator or owner of a motor vehicle who shall accept the privilege extended to such nonresidents of operating a motor vehicle within the Commonwealth of Kentucky shall by such acceptance and by the operation of the motor vehicle constitute the Secretary of State of Kentucky as his agent for the service of process in any civil suit instituted in the courts of Kentucky against such operator or owner arising out of any accident occurring within Kentucky. In such action the Clerk shall issue process against the defendant and direct it to the Sheriff of Franklin County, who shall execute it by delivering a true copy to the Secretary of State together with an attested copy of the petition. It shall then be the duty of the Secretary of State to write a letter to the defendant at the address given in the petition notifying him of the nature and pendency of the action and to enclose in the letter the summons and copy of the petition. The letter shall be sent by registered mail and the Secretary of State shall thereafter file with the Clerk of the Court a report of his action which shall include the copy of the letter and any answer thereto. This procedure was followed as to all four defendants. The report of the Secretary of State shows that the letters addressed to Collier and Weldon were delivered, but the letters addressed to Brooks and Higgs were not delivered, but were returned to the Secretary of State because of inability to locate the addressees. If all four of the defendants are before the Court, the motion to remand should be sustained; but if the nonresident defendants Brooks and Higgs are not before the Court the case was properly removed by the petition of the only two nonresidents who were before the Court. I find no decision from the Court of Appeals of Kentucky passing upon the effect of the failure of the Secretary of State to actually notify the nonresident defendant of the existence of the action against him where the procedure outlined by the statute has been correctly followed. The constitutionality of the statute was upheld in Hirsch v. Warren, 253 Ky. 62, 68 S.W.2d 767, in which case the Court held that due process of law was complied with if the statute contained a provision making it reasonably probable that notice of the suit would be communicated to the persons sued. This was the test previously approved by the United States Supreme Court in the case of Wuchter v. Pizzutti, 276 U.S. 13, 48 S.Ct. 259, 72 L.Ed. 446, 57 A.L.R. 1230. See also Annotation in 99 A.L.R. beginning at page 130. Neither the Kentucky Court nor the Supreme Court held that it was necessary that notice be actually given to the nonresident defendant in order to make the statute constitutional, but both Courts held that such a statute was constitutional if it contained a provision making it reasonably probable that the notice would be communicated to the persons sued. Since such a provision satisfies the constitutional requirement of due process of law it would seem to be unnecessary that the Secretary of State actually succeed in notifying the the nonresident defendant provided all the details of the statute have been fully complied with. This also assumes that the plaintiff has stated in the petition the correct address of the nonresident defendant, and is not guilty of fraud or bad faith in any way, which requirements are laid down by the Kentucky Court of Appeals in Hirsch v. Warren, supra. In the present action there is nothing to show that these requirements have not been complied with. The Kentucky statute specifically provides that the Secretary of State is made the agent of the nonresident motorist for the service of process, and that the Sheriff shall execute the process by delivering a true copy thereof to the Secretary of State. If the process is executed upon the defendant's agent, designated for that particular purpose, jurisdiction would seem to be obtained regardless of the results of the actions of the Secretary of State thereafter who performs the duties imposed upon him by the Statute. Under similar circumstances the Court of Appeals of Kentucky has held that the failure of the designated agent for the service of process to notify a nonresident defendant of the pendency of an action against him does not deprive the Court of jurisdiction to render a valid judgment in personam. Reese Lumber Co. v. Licking Coal & Lumber Co., 156 Ky. 723, 161 S.W. 1124. Accordingly, I am of the opinion that the non-resident defendants Brooks and Higgs are before the Court by virtue of the proceedings under Sections 12-1 and 12-2 of the Kentucky Statutes. It follows that their failure to join in the petition for removal is fatal to the granting of that relief.
The plaintiff's motion to remand the action to the State Court is sustained.
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245 P.3d 336 (2010)
2010 WY 169
Kenneth J. ZALOUDEK, Jr., Appellant (Defendant),
v.
Becky ZALOUDEK, Appellee (Plaintiff).
No. S-10-0068.
Supreme Court of Wyoming.
December 21, 2010.
*338 Representing Appellant: William L. Combs of Combs Law Office, L.L.C., Evanston, Wyoming.
Representing Appellee: Richard J. Mulligan of Mulligan Law Office; and Heather Noble, Jackson, Wyoming.
Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.
GOLDEN, Justice.
[¶ 1] Kenneth Zaloudek (Husband) and Becky Zaloudek (Wife) divorced in 2008. As part of the divorce decree, Husband was ordered to pay a certain dollar sum to Wife to equalize assets. Husband did not make a material payment until more than a year after the divorce decree was entered. Husband herein appeals the district court's order requiring him to pay interest on the amount he owed from the date of the rendition of the divorce decree. We affirm.
[¶ 2] Husband also appeals an award of attorney fees to Wife. Finding the issue of attorney fees to not be finally adjudicated, we dismiss this issue.
ISSUES
[¶ 3] Husband presents two issues for our review:
1: Did the Order on Hearing Held January 4, 2010, add improper interest to awards to Appellee from Appellant's IRA accounts that were not yet due during the period in which those accounts were frozen and in the control of the Court by Appellee's Writ of Garnishment, and improperly require an immediate lump sum cash payment of the total amount?
2: Did the lower Court abuse its discretion by improperly allowing attorney fees and costs to Appellee for claimed enforcement efforts that served to delay resolution of Decree compliance issues?
FACTS
[¶ 4] The parties divorced in 2008. The divorce decree was entered on November 5, 2008. Among other things, the divorce decree required Husband to pay Wife $782,659.17 in order to equalize retirement assets. The district court also ordered Husband to pay Wife $37,635.37 to equalize the personal property division. Husband appealed the decree. Husband sought a stay pending appeal. The district court required Husband to post a $900,000 supersedeas bond as a condition of granting a stay. Husband did not post the bond, and the district court consequently denied a stay.
[¶ 5] The day after Husband's motion for a stay pending appeal was denied, Wife began efforts to collect the money owed by Husband. Writs of garnishment were directed to Husband's bank accounts, including his IRA account and other accounts he held with Smith Barney. Husband filed a motion objecting to the writs. Wife continued her collection efforts with a motion to show cause why Husband should not be held in contempt of court for failing to pay the cash amounts *339 ordered in the divorce decree. Husband responded with his own motion to show cause against Wife for Wife's alleged violations of the divorce decree. In August 2009, the district court decided the motions. It declined to hold either party in contempt. The district court gave Husband until November 17, 2009, to comply with prior orders.
[¶ 6] On November 12, 2009, this Court issued its opinion affirming the divorce decree. Zaloudek v. Zaloudek, 2009 WY 140, 220 P.3d 498 (Wyo.2009). Husband, instead of complying with the mandates of the divorce decree, on November 17 filed a "Motion to Clarify Decree" and a "Motion to Extend Deadline for Compliance with Decree." Wife opposed both motions. Wife filed her own motion to recover her attorney fees and costs associated with recovery efforts. After a hearing, the district court denied Husband's motions. The district court order, entered January 26, 2010, ruled that, pursuant to Wyo. Stat. Ann. § 1-16-102 (LexisNexis 2009), Husband was required to pay 10% interest on the amounts owed, dating back to the date of the entry of the original divorce decree.[1] The district court calculated the amount owed by Husband to be $871,387.75, with interest continuing to accrue at the amount of $221.05 per day. The district court ordered Husband to pay the amount owed within five days of the order. In the same order, the district court further ordered that Husband should pay reasonable attorney fees and costs and ordered Wife's attorney to file an affidavit of such for its consideration at a future hearing. It is from this order that Husband appeals.
DISCUSSION
Calculation of Amount of Interest Due
[¶ 7] As applies to this issue, the order appealed from decided post-judgment motions filed by a judgment creditor and a judgment debtor. Post-judgment enforcement and execution proceedings are addressed to the sound discretion of the trial court and are reviewed on appeal only for an abuse of discretion. Burnett v. Steeley, 2008 WY 94, ¶ 16, 190 P.3d 132, 135-36 (Wyo. 2008); Woods v. Wells Fargo Bank Wyoming, 2004 WY 61, ¶ 19, 90 P.3d 724, 731 (Wyo.2004).
[¶ 8] Husband complains that he should not be required to pay interest from the date of the judgment for a variety of reasons. His first claim is that no specific date for payment was included in the initial divorce decree. Thus, he could not have known the payment was due on the day of the decree. This argument ignores the application of § 1-16-102, dealing with interest on judgments:
(a) Except as provided in subsections (b) and (c) of this section, all decrees and judgments for the payment of money shall bear interest at ten percent (10%) per year from the date of rendition until paid.
(b) If the decree or judgment is founded on a contract and all parties to the contract agreed to interest at a certain rate, the rate of interest on the decree or judgment shall correspond to the terms of the contract.
(c) A periodic payment or installment for child support or maintenance which is unpaid on the date due and which on or after July 1, 1990, becomes a judgment by operation of law pursuant to W.S. 14-2-204 shall not bear interest.
Obviously neither exception (b) or (c) apply. Thus, the statute clearly requires payment from the date of rendition. There is no ambiguity. A district court must expressly set a different date for payment of a judgment in order to override the application of this statute. As applies to the instant case, *340 the district court did not set a different time frame for payment. Thus, § 1-16-102 applied automatically to require payment as of the date of rendition of the decree.[2]
[¶ 9] Husband next declares that the district court eventually set November 17, 2009, as the date for him to comply with the divorce decree. Thus, he argues, at the very least interest charges should not begin until then. Husband takes the November 17 date out of context. The date comes from the district court's order generated in response to the parties' respective motions for orders to show cause. The date of November 17 was set as the date for Husband's performance in order to avoid being held in contempt of court. In no way did the date modify the requirements of the initial divorce decree.
[¶ 10] Husband moves on to argue he had no funds accessible to him to make the required payment to Wife because of Wife's garnishment of his accounts. This argument is especially specious because Husband, at all times, had the ability to execute appropriate paperwork to release the funds to Wife, thus releasing the garnishments. Indeed, in response to the order appealed from in the instant action, Husband executed a Letter of Authorization to Smith Barney for the release of funds to Wife.
[¶ 11] On a related note, Husband argues that, once his accounts were subject to garnishment, it was equivalent to tendering payment on the judgment, thus ending his statutory obligation to pay interest. Husband is correct in so far as he argues payment of funds into the court ends his responsibility to pay statutory interest on the judgment. Rule 67 of the Wyoming Rules of Civil Procedure allows for the deposit of funds to the appropriate court:
In an action in which any part of the relief sought is a judgment for a sum of money or the disposition of a sum of money or the disposition of any other thing capable of delivery, a party, upon notice to every other party, and by leave of court, may deposit with the court all or any part of such sum or thing, whether or not that party claims all or any part of the sum or thing. Money paid into court under this rule shall be held by the clerk of the court subject to withdrawal in whole or in part at any time thereafter upon order of the court or written stipulation of the parties. The fund shall be deposited in an interest-bearing account or invested in an interest-bearing instrument approved by the court.
W.R.C.P. 67. This Court has held that "[t]he purpose of W.R.C.P. 67 is to relieve the depositor of the responsibility for the funds and, in some circumstances, to stop the accrual of interest by authorizing a payment into the court." Parker v. Artery, 889 P.2d 520, 527 (Wyo.1995).
[¶ 12] Husband is incorrect, however, in his argument that garnishment of funds is the equivalent of tendering funds to the court. This Court has explained:
Statutory interest under Wyo. Stat. § 1-16-102(a) accrues from the time of the entry of the judgment "until paid."
* * * *
The phrase "until paid" as used in Wyo. Stat. § 1-16-102(a) is not defined. Therefore, this court inquires into the ordinary and obvious meaning of the statutory language to determine the legislative intent. Parker Land and Cattle Co. v. Wyoming Game and Fish Com'n, 845 P.2d 1040, 1042 (Wyo.1993).
"Until" is a word of limitation which is used to fix a point in time or establish a point at which a precedent status ceases to exist upon the happening of a condition. Jones v. Jones, 402 P.2d 272, 274 (Okla. 1965); Black's Law Dictionary 1540 (6th ed. 1990). "Paid" is the past participle of "pay." The plain meaning of "pay" includes the discharge of a debt by a tender of payment due. Black's Law Dictionary 1128 (6th ed. 1990). "Tender" is an unconditional offer to perform coupled with the ability to carry out the offer and the production of the subject matter of the tender. Black's Law Dictionary 1467 (6th ed. 1990). See Radalj v. Union Savings & Loan Ass'n, 59 Wyo. 140, 184, 138 P.2d 984, 999 (1943).
*341 Parker, 889 P.2d at 527-28. The garnishment of funds is not equivalent to a party depositing money with a court. Garnishment is a statutory process by which funds of a judgment debtor are essentially frozen until the judgment has been satisfied, by whatever means. See Wyo. Stat. Ann. § 1-15-406 (LexisNexis 2009). The funds are not required to be paid to the court. Garnished funds thus do not constitute an "unconditional offer to perform coupled with the ability to carry out the offer and the production of the subject matter of the tender" by a party.
[¶ 13] Finally on this issue, Husband argues the district court abused its discretion in ordering Husband to satisfy the judgment within five days of the order. This Court has said:
Courts have inherent power to enforce their own judgments and should see to it that such judgments are enforced when they are called upon to do so. To deprive a court of power to execute its judgments is to impair its jurisdiction, and the general rule is that every court having jurisdiction to render a particular judgment has inherent power and authority to enforce it and to exercise equitable control over such enforcement. Thus, a court of equity has inherent power to enforce its decrees. A court of equity retains and possesses the power to control the manner of the execution of its decree, and has the inherent right to modify, by a subsequent order, the manner in which it shall be enforced.
Hurd v. Nelson, 714 P.2d 767, 771 (Wyo. 1986). Given Husband's interminable recalcitrance in paying the judgment, and the fact that attachable funds in the Smith Barney account were sufficient to discharge the judgment, we find the district court did not abuse its equitable authority to establish and enforce the manner of execution in its decree.[3]
Attorney Fees
[¶ 14] Husband objects to the part of the order under appeal that grants Wife attorney fees. This aspect of the order is not final and thus not appealable. An appealable order is one, in pertinent part, that affects "a substantial right in an action, when such order, in effect, determines the action and prevents a judgment." W.R.A.P. 1.05(a). The district court in the instant case did not set an amount for the attorney fee to be awarded. The proceeding was only at the stage where the district court required Wife's attorney to submit an affidavit of fees. The action for attorney fees therefore is still pending in the lower court for final disposition.
Reply Brief
[¶ 15] Husband brings a new issue to our attention in his reply brief. He complains that Wife violated W.R.A.P. 3.05(c). The rule, in pertinent part, states:
If appellee desires to designate parts of the record for transmission not designated by appellant, appellee shall, contemporaneously with the filing of appellee's brief in the appellate court and service of that brief upon appellant, file with the clerk of the trial court and serve upon appellant a designation of those parts of the record desired by appellee.
In the instant case, Wife did designate further parts of the record. Husband declares Wife did not file her designation of the record until a few days after she filed her brief.
[¶ 16] Certainly this Court never condones any violations of the Wyoming Rules of Appellate Procedure, but sanctions are not automatic. A violation "is ground only for such action as the appellate court deems appropriate, including but not limited to: refusal to consider the offending party's contentions; assessment of costs; dismissal; and affirmance." W.R.A.P. 1.03. Under the specific facts and circumstances of this case, we do not deem any sanction appropriate. Husband presents no argument of any precise manner in which he was prejudiced by any such violation of the rule.[4] There was no *342 prejudice to this Court because Wife's designation of the record did not delay transmittal of the record from the district court to this Court.
CONCLUSION
[¶ 17] We find the district court did not abuse its discretion by ordering Husband to pay judgment interest from the date of rendition of the divorce decree. We further find the issue of attorney fees was still pending before the district court at the time of this appeal. It is thus not appealable.
[¶ 18] As to Husband's issue in his reply brief that Wife should be sanctioned because she failed to serve her designation of the record contemporaneously with the filing of her brief as required by W.R.A.P. 3.05(c), we find nothing in Husband's arguments supporting an award of sanctions.
NOTES
[1] Section 1-16-102, entitled "Interest on judgments," states:
(a) Except as provided in subsections (b) and (c) of this section, all decrees and judgments for the payment of money shall bear interest at ten percent (10%) per year from the date of rendition until paid.
(b) If the decree or judgment is founded on a contract and all parties to the contract agreed to interest at a certain rate, the rate of interest on the decree or judgment shall correspond to the terms of the contract.
(c) A periodic payment or installment for child support or maintenance which is unpaid on the date due and which on or after July 1, 1990, becomes a judgment by operation of law pursuant to W.S. 14-2-204 shall not bear interest.
[2] Husband fails to provide any discussion of § 1-16-102 on appeal.
[3] Husband presents other complaints within the discussion of this issue. We have reviewed these complaints and find no merit in them.
[4] If there had been any actual prejudice, Husband could have asked this Court for an extension of time in which to file his reply brief. His main argument, however, is that Wife caused delays throughout the proceedings in the lower court and her failure to timely file her designation of the record represents a continuing course of conduct of delay. Our review of the record does not support this argument in any respect.
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47 F.3d 1169
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.Alexander NEWELL, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.
No. 94-1818.
United States Court of Appeals, Sixth Circuit.
Jan. 31, 1995.
Before: JONES, CONTIE and MILBURN, Circuit Judges.
ORDER
1
Alexander Newell appeals from the decision to deny his motion to vacate sentence, filed under 28 U.S.C. Sec. 2255. The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).
2
In 1990, Alexander Newell pleaded guilty to conspiracy to possess with intent to distribute and to distribution of cocaine, in violation of 18 U.S.C. Secs. 841(a)(1), and 846, and received a 168 month term of imprisonment. Newell's conviction (along with that of his brother) was affirmed on appeal. United States v. Newell, Nos. 91-1322/1692, 1992 WL 259365 (6th Cir. Oct. 5, 1992) (unpublished per curiam), cert. denied, 113 S. Ct. 1657 (1993).
3
In 1994, Alexander Newell filed a motion to vacate sentence under 28 U.S.C. Sec. 2255 in which he challenged the constitutionality of the conviction and the sentence. The government responded and the district court ultimately denied the relief sought. This appeal followed. The parties have briefed the issues; Newell is proceeding without benefit of counsel.
4
Newell set forth two substantive grounds for relief in his motion to vacate sentence and further argues on appeal that he was entitled to an evidentiary hearing at the district court level. The record reflects that Newell's motion was properly denied without an evidentiary hearing, that he has abandoned one of his original claims on appeal and that the remaining ground does not present a fundamental defect in the proceedings that resulted in a complete miscarriage of justice or an error so egregious that it amounts to a violation of due process. United States v. Todaro, 982 F.2d 1025, 1028 (6th Cir.) (per curiam), cert. denied, 113 S. Ct. 2424 (1993).
5
Newell was indicted for his part in an extensive cocaine distribution ring operating in the Detroit area. After indictment, Newell was willing to plead to conspiring with others but was unwilling to admit to the exact amount of cocaine distributed by the group. The district court later conducted an evidentiary hearing at which it determined that the conspiracy involved in excess of fifty (50) kilograms of cocaine. Newell reasserted his claim at sentencing that he did not believe he should be, or was going to be, held accountable for the entire fifty kilograms:
6
I would like to just say when I pleaded guilty on November 13th, it was in my mind that they was going to base my time on the quantity of drugs that I was dealing in, which I haven't heard no one or one person out of six witnesses get up there and say my name only one time. And I don't see no other evidence.
7
* * *
8
* * *
9
I didn't say that I doesn't do wrong. I did do wrong, but I'm saying my time was going to be based on the quantity that -- this is what I was told. Other than that, I wouldn't have plead guilty. I wouldn't have plead guilty. I would have went to court.
10
* * *
11
* * *
12
It was my -- it was put to me that my time was going to be based on the quantity that I, me, me, not no one else, me, was dealing in. And I don't see no evidence of that sort nowhere.
13
Jt. App. 123-23.
14
On direct appeal, Newell contended that his guilty plea was involuntary in that he entered into it without a full understanding of the consequences. Specifically, Newell reiterated that he did not realize he was admitting his involvement with the total amount of cocaine dealt with by the conspiracy in its entirety. In response, the panel stated:
15
While [it is] clear that Alexander Newell did not choose to admit to distribution of more than five kilograms of cocaine, he did plead guilty to involvement in a conspiracy to distribute. Further, he agreed to allow the trial court to serve as factfinder with regard to the amount of drugs at issue. As the record indicates, defendant knowingly and intelligently entered into a plea agreement, reserving some determinations for the trial court. That these determinations resulted in a sentence higher than the one for which he hoped does not render his decision to plead guilty any less voluntary. United States v. Stephens, 906 F.2d 251, 254 (6th Cir. 1990).
16
Newell, slip op. at 6. The panel went on to note that testimony adduced "firmly establishes" Newell's role in the conspiracy and that the testimony of one witness, Derrick Johnson, tied Newell to transactions involving more than fifty kilograms of cocaine. Id. at 7 & 9.
17
Newell set forth two grounds for relief in his Sec. 2255 motion. The first claim is another assault on the voluntariness of his guilty plea. Although couched in hybrid terms implicating both the involuntary nature of the plea and ineffective assistance of counsel, it is essentially based on his alleged lack of knowledge that his sentence would be based on the total amount of drugs trafficked in by the entire conspiracy. Newell's second claim is that he was sentenced in contravention of constitutional ex post facto guarantees. The district court summarily denied the relief sought. The court concluded that Newell could not question the voluntary nature of the plea as that claim had been addressed and rejected on direct appeal by the Sixth Circuit.
18
On appeal, Newell advances two assignments of error. The first, again dealing with the voluntary nature of his plea, nevertheless is structured as an ineffective assistance of counsel claim. The second claim is that the district court erred in denying the motion without first conducting an evidentiary hearing. There is no mention of the ex post facto claim.
19
The appeal lacks merit. It is initially noted that issues raised in the district court, but not on appeal, are considered abandoned and not reviewable. Boyd v. Ford Motor Co., 948 F.2d 283, 284 (6th Cir. 1991), cert. denied, 112 S. Ct. 1481 (1992). Consequently, Newell's failure to advance his ex post facto claim on appeal means it has been abandoned.
20
Newell's continued attack on the voluntariness of his guilty plea is meritless whether or not it is construed as an attack on the plea or counsel's performance. On appeal, Newell gives his claim a slightly different emphasis, that is, he now contends the chief defect in his conviction was ineffective assistance of counsel. He states that he based his decision to plea on the representation that the prosecution would have to prove the sentencing factor (drug quantity) beyond a reasonable doubt. Had he only known, Newell continues, that the prosecution need only prove drug quantities by a preponderance of the evidence, he would have insisted on going to trial.
21
Even assuming the accuracy of Newell's assertion, the gravamen of Newell's complaint remains the same; he never thought his sentence would be calculated with reference to the entire amount of the cocaine attributable to the conspiracy as a whole. As the district court observed, however, it is clear the core of this very claim was considered on direct appeal and emphatically rejected, burdens of proof notwithstanding. "[Newell] knowingly and intelligently entered into a plea agreement, reserving some determinations for the trial court. That these determinations resulted in a sentence higher than the one for which he hoped does not render his decision to plead guilty any less voluntary." Newell, slip op. at 6. Issues raised and considered on direct appeal may not be relitigated in a Sec. 2255 motion to vacate absent extraordinary circumstances not presented here. Stephan v. United States, 496 F.2d 527, 528-29 (6th Cir. 1974) (per curiam), cert. denied, 423 U.S. 861 (1975). Moreover, even if the court were to consider the merits of this claim, it is clear that it is totally unsupported in fact or law. As the record conclusively shows that Newell was not entitled to relief, Baker v. United States, 781 F.2d 85, 92 (6th Cir.), cert. denied, 479 U.S. 1017 (1986), the district court's decision not to conduct an evidentiary hearing was not error.
22
Accordingly, the district court's judgment is affirmed. Rule 9(b)(3), Rules of the Sixth Circuit.
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In the United States Court of Federal Claims
No. 15-1081T
(Filed: January 18, 2018)
*************************************
WALTER SHIELDS and MAUREEN *
ALLENBACH, *
* Cross-Motions for Summary Judgment;
Plaintiffs, * RCFC 56; Tax Refund; Capital Loss; Theft
* Loss; Substantial Variance; Informal
v. * Claim; Waiver; General Claim;
* Germaneness; Quasi-Estoppel; Duty of
THE UNITED STATES, * Consistency
*
Defendant. *
*************************************
Brian G. Isaacson, Seattle, WA, for plaintiffs.
Brian J. Sullivan, United States Department of Justice, Washington, DC, for defendant.
OPINION AND ORDER
SWEENEY, Judge
Before the court is plaintiffs’ motion for summary judgment or partial summary judgment
and defendant’s cross-motion for summary judgment. Both motions are made pursuant to Rule
56 of the Rules of the United States Court of Federal Claims (“RCFC”). Plaintiffs claim that the
Internal Revenue Service (“IRS”) owes them a refund of their federal income taxes. For the
reasons set forth below, plaintiffs’ motion is denied and defendant’s motion is granted.
I. BACKGROUND
Plaintiffs are Walter Shields and Maureen Allenbach, a married couple living in the state
of Washington. 1 Am. Compl. ¶¶ 1-2. Mr. Shields is a life insurance broker with the firm of
Kibble & Prentice. Id. ¶ 5. Mr. Shields also holds himself out as a certified financial planner.
See id. Ex. A at 5. One of Mr. Shields’s former clients is Michael Mastro, a real estate developer
1
The facts in this section are derived from both parties’ submissions, including the
attached appendices and exhibits, and matters of which the court may take judicial notice
pursuant to Rule 201 of the Federal Rules of Evidence. Only one citation is provided for each
duplicative submission.
in Seattle, Washington. Id. ¶ 5. As a result of his business relationship with Mr. Mastro, 2 Mr.
Shields personally loaned him $511,731: $46,731 in 2004; $60,000 in 2005; $100,000 in 2006;
$105,000 in 2007; and $200,000 in 2008. Id. In exchange for these so-called “Friends &
Family” (“F&F”) loans, Mr. Mastro provided Mr. Shields with an unsecured promissory note
that earned 9% annual interest, which accrued and was compounded monthly. See Def.’s Opp’n
Ex. 18 (promissory note and schedule of disbursements and accrued interest). Mr. Shields’s
F&F loans accrued over $100,000 in unpaid interest, reaching a total balance of $613,890.42,
through March 2009. Id. Plaintiffs’ 2008 federal income tax return was due on April 15, 2009,
and was timely filed. Def.’s Opp’n Ex. 31 at 2; see also I.R.C. § 6072(a) (2006).
On July 10, 2009, three banks that had lent money to Mr. Mastro—Columbia Bank, First
Sound Bank, and Venture Bank—filed an involuntary Chapter 7 bankruptcy petition against him
in the United States Bankruptcy Court for the Western District of Washington (“Bankruptcy
Court”). Am. Compl. ¶¶ 7, 12. Later that day, Mr. Shields visited Mr. Mastro in his office, and
Mr. Mastro told Mr. Shields about the bankruptcy petition that had been filed against him.
Def.’s Opp’n Ex. 13 (Shields Dep. 69:5-70:22). At that point, Mr. Shields believed that the
promissory notes Mr. Mastro had given him were “worthless.” Id. (Shields Dep. 113:20-115:6).
On August 21, 2009, Mr. Mastro converted his bankruptcy case to a voluntary Chapter 7
liquidation. Am. Compl. ¶ 16. On September 16, 2009, Mr. Shields filed a proof of claim
seeking to recover $613,890.42 in “money loaned” to Mr. Mastro, and attached (1) a copy of the
promissory note and (2) a schedule of disbursements and accrued interest. See Pls.’ Mot.
Judicial Notice Ex. B. James Rigby, who was appointed Mr. Mastro’s Chapter 7 bankruptcy
trustee, hired Mordy Consulting, P.C. (“Mordy”) to perform a solvency analysis of Mr. Mastro.
Am. Compl. ¶ 9. Mordy concluded:
Mastro’s financial records were kept on a cash basis. The
derivation of asset values shown in his statement of financial
condition was not based on the cost of the properties acquired but
was estimated from his own conclusions of value and from often
outdated appraisals he obtained on many of the properties he
owned. As such the net worth portrayed in Mastro’s Statement of
Financial Condition was, in my opinion, highly suspect, and given
the nature of the assets could very likely never have been achieved
should Mastro decide to exit the business. . . . Mastro represented
his net worth at the end of 2008 as approximately $125.6 million[;]
2
As a result of his facilitating Mr. Mastro’s purchase of several life insurance policies
through Kibble & Prentice, Mr. Shields had access to information regarding Mr. Mastro’s
finances. Def.’s Mem. Supp. Opp’n to Pls.’ Mot. Summ. J. & Supp. Def.’s Cross-Mot. Summ. J.
(“Def.’s Opp’n”) Ex. 13 (Shields Dep. 47:8-25). The insurance company inspection teams who
reviewed Mr. Mastro’s applications and approved the policies also had access to this
information. Id. (Shields Dep. 24:6-26:8).
-2-
however, in his amended bankruptcy schedules, nine months later,
Mastro’s net worth was a negative $196.4 million, as he valued his
assets at approximately $384.6 million and his liabilities at
approximately $581 million.
Id. (internal quotation marks omitted). Mordy further noted:
Most F&F investors appear to have been unaware of
Mastro’s true financial status. F&F investors were not provided
with Mastro’s financial reports he provided to his lenders and did
not appear to have an understanding that Mastro’s business
operated at a negative cash flow, and that he needed to borrow
money and/or sell his properties in order to cover this negative
cash flow. In my opinion, had Mastro shared his true financial
picture in August 2008 with his F&F investors and had he shared
all the risk factors their investments were subject to by investing
with him in his business activities, there would have been a “run
on the bank,” and Mastro would have faced the call of most of the
approximately $100 million he [owed] to these investors.
On September 30, 2008, Mastro attempted to alleviate the
concerns of F&F investors by sending them a letter that ended with
“our organization is strong and healthy, in no small part because of
the relationships we value so greatly with lenders including you,
our friends and family. I hope this report has eased any concerns
you may have.” . . . [T]his letter did not fairly describe Mastro’s
financial condition or the risks one faced by continuing to invest
with him.
Id. ¶ 10. In Mr. Rigby’s first report to the creditors, which was filed on October 15, 2009, he
concluded that “general unsecured creditors,” including plaintiffs, would “receive at best, a small
dividend from the bankruptcy estate.” Id. ¶ 18 (internal quotation marks omitted); see also
Def.’s Opp’n Ex. 23 at 10 (explaining the difficulties in obtaining a return for the general
unsecured creditors of the bankruptcy estate due to the rapid decline in the real estate market).
Approximately one year later, on October 28, 2010, in his first annual report to creditors, Mr.
Rigby noted that “[t]he Bankruptcy Schedules filed by Mastro listed $325 million in unsecured
debt,” including unsecured claims by secured creditors. Am. Compl. ¶ 19 (internal quotation
marks omitted).
In the meantime, on October 1, 2009, the Securities Division of the State of Washington
Department of Financial Institutions filed a statement of charges against Mr. Mastro that accused
him of violating Securities Act of Washington (“Securities Act”), proposed to enter a cease-and-
desist order, and proposed to levy a fine. See generally Def.’s Opp’n Ex. 24. On January 10,
2010, Mr. Mastro signed a consent order in which he agreed to cease and desist from violating
the antifraud section of the Securities Act and to pay a $100,000 fine. Am. Compl. ¶ 11.
-3-
Plaintiffs’ 2009 federal income tax return was due on April 15, 2010, and was timely filed.
Def.’s Opp’n Ex. 31 at 6; see also I.R.C. § 6072(a).
Plaintiffs’ 2010 federal income tax return was due on April 15, 2011, but plaintiffs
obtained an extension to file their return by October 15, 2011. Def.’s Opp’n Ex. 39 at 2.
Plaintiffs filed their return on April 26, 2011, and received a $77,576 refund. 3 Id. Plaintiffs paid
no additional taxes with respect to the 2010 tax year after filing their original return. Id. at 2-3.
On October 25, 2012, a federal grand jury in Seattle returned an indictment with forty-
three counts against Mr. Mastro, charging him with bankruptcy fraud and money laundering—
both before and after he filed for bankruptcy in 2009. Am. Compl. ¶ 12; see generally id. Ex. C.
The indictment also charged Mr. Mastro with filing falsified documents with the Bankruptcy
Court. Id. A superseding indictment was filed on November 7, 2012. See generally Pls.’ Mot.
Judicial Notice Ex. H.
In 2012, plaintiffs filed two Forms 1040X, Amended U.S. Individual Income Tax
Return—one for the 2008 tax year and one for the 2009 tax year—claiming a capital loss
deduction; specifically, plaintiffs claimed that the six loans to Mr. Mastro, which totaled
$511,731, became worthless on October 31, 2008, the date Mr. Mastro revoked the loan
redemption rights. See Def.’s Opp’n Ex. 29 at 19 (2008 capital loss due to worthless securities);
Def.’s Opp’n Ex. 30 at 14 (2009 capital loss carryover from 2008); see also Def.’s Opp’n Ex. 28
(March 26, 2012 letter to Mr. Shields discussing the tax implications of a capital loss from a
worthless investment). The IRS received plaintiffs’ 2008 amended return on April 15, 2012, and
issued a refund in the amount of $18,264 plus $3,050.57 in interest on September 30, 2013.
Def.’s Opp’n Ex. 31 at 2-3. The IRS received plaintiffs’ 2009 amended return on July 23, 2012,
and issued a refund in the amount of $29,563 plus $2,445.77 in interest on September 10, 2012.
Id. at 6-7.
On April 14, 2014, plaintiffs filed an amended federal income tax return for 2010 that
contained plaintiffs’ names and a refund claim for $1, but included no explanation for the
claimed refund. Def.’s Opp’n Ex. 35. On July 16, 2014, plaintiffs submitted another amended
return for 2010. Am. Compl. Ex. A at 1-2. This time, plaintiffs asserted a theft loss of $511,731,
and alternatively sought safe-harbor relief under Revenue Procedure 2009-20 for a theft loss
from a Ponzi-type investment scheme. Id. at 3. Plaintiffs claimed a refund of $37,685, and
purported to show a net operating loss (“NOL”) of $315,785 as a result of the $511,731 theft
loss. Id. at 1, 8-9. That same day, plaintiffs filed a 2007 amended return that absorbed the entire
NOL carried back from 2010, and claimed a refund of $102,687. Def.’s Opp’n Ex. 38 at 1-2.
Plaintiffs did not indicate the amount of refund claimed under their alternative position. See id.
at 6.
3
A portion of plaintiffs’ 2010 tax refund—$10,000—was credited towards their 2011
tax liability, and the remaining amount—$67,576—was refunded directly to plaintiffs. Def.’s
Opp’n Ex. 39 at 2.
-4-
Plaintiffs also filed the following on July 16, 2014:
• A 2008 amended return to “remove the capital losses that were
claimed in a previous amended 2008 tax return because of the
discovery in 2010 that the same losses qualified as ‘Ponzi-type’
theft losses that should have been claimed as such in the 2010
tax return.” Def.’s Opp’n Ex. 29 at 1-3. The 2008 amended
return reported a balance due of $18,264. Id. at 1.
• A 2009 amended return to “eliminate the 2008 short term and
long term loss carryforwards from the 2008 amended tax return
. . . and eliminate any capital loss carryover to 2010.” Def.’s
Opp’n Ex. 30 at 1-3. The 2009 amended return reported a
balance due of $29,563. Id. at 1.
• A Form 1045, Application for Tentative Refund, that
aggregated the aforementioned changes to plaintiffs’ 2007,
2008, and 2009 tax returns as a result of plaintiffs’
recharacterization of the 2008 capital loss as a 2010 theft loss.
See generally Am. Compl. Ex. B.
The IRS took no action on the claims for refund for 2007 and 2010 that were filed on July
16, 2014. Id. ¶¶ 27, 35, 40; see also Def.’s Opp’n Ex. 39 at 2-3. The IRS similarly took no
action on the 2008 and 2009 amended returns that were filed on July 16, 2014, and no payment
was received by the IRS for those returns. See Def.’s Opp’n Ex. 31 at 3-4, 7-8.
On September 25, 2015, plaintiffs filed a complaint in this court. On October 14, 2015,
plaintiffs amended their complaint. Plaintiffs assert three counts in their amended complaint. In
count one, plaintiffs allege that, pursuant to I.R.C. § 165, they are entitled to claim a theft loss
deduction of $511,731 and are therefore due a refund of $37,685 plus interest for 2010, the year
in which the purported theft was ostensibly discovered. Am. Compl. ¶¶ 23, 25. In count two,
plaintiffs alternatively allege that, pursuant to Revenue Rule 2009-9 and Revenue Procedure
2009-20, they are entitled to claim a theft loss deduction of $486,144 (95% of $511,731) for the
2010 tax year. Id. ¶¶ 29, 34. Finally, in count three, plaintiffs allege that they are entitled to a
refund of $102,687 for 2007 as a result of the NOL carryback from 2010. Id. ¶ 37. Following
discovery, the parties filed cross-motions for summary judgment. 4 The motions are now fully
briefed, and the court considers oral argument unnecessary.
4
Plaintiffs also filed a motion for judicial notice in support of their motion for summary
judgment.
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II. STANDARD OF REVIEW
Summary judgment is appropriate when there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. RCFC 56(a); Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). A fact is material if it “might affect the outcome of the suit under the
governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is
genuine if it “may reasonably be resolved in favor of either party.” Id. at 250.
The moving party bears the initial burden of demonstrating the absence of any genuine
issue of material fact. Celotex Corp., 477 U.S. at 323. The nonmoving party then bears the
burden of showing that there are genuine issues of material fact for trial. Id. at 324. Both parties
may carry their burden by “citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions, interrogatory answers, or
other materials” or by “showing that the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the
fact.” RCFC 56(c)(1).
The court must view the inferences to be drawn from the underlying facts in the light
most favorable to the nonmoving party. Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986). However, the court must not weigh the evidence or make findings of fact.
See Anderson, 477 U.S. at 249 (“[A]t the summary judgment stage the judge’s function is not
himself to weigh the evidence and determine the truth of the matter but to determine whether
there is a genuine issue for trial.”); Contessa Food Prods., Inc. v. Conagra, Inc., 282 F.3d 1370,
1376 (Fed. Cir. 2002) (“On summary judgment, the question is not the ‘weight’ of the evidence,
but instead the presence of a genuine issue of material fact . . . .”), abrogated on other grounds by
Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir. 2008) (en banc); Ford Motor Co.
v. United States, 157 F.3d 849, 854 (Fed. Cir. 1998) (“Due to the nature of the proceeding, courts
do not make findings of fact on summary judgment.”); Mansfield v. United States, 71 Fed. Cl.
687, 693 (2006) (“[T]he Court may neither make credibility determinations nor weigh the
evidence and seek to determine the truth of the matter. Further, summary judgment is
inappropriate if the factual record is insufficient to allow the Court to determine the salient legal
issues.”). Entry of summary judgment is mandated against a party who fails to establish “an
element essential to that party’s case, and on which that party will bear the burden of proof at
trial.” Celotex Corp., 477 U.S. at 322.
In ruling on cross-motions for summary judgment, the court “must evaluate each motion
on its own merits.” First Commerce Corp. v. United States, 335 F.3d 1373, 1379 (Fed. Cir.
2003). If neither party meets its burden, then the court must deny both motions. Bubble Room,
Inc. v. United States, 159 F.3d 553, 561 (Fed. Cir. 1998).
-6-
III. DISCUSSION
A. The Jurisdiction of the United States Court of Federal Claims Over Tax Refund Suits
Congress has granted the United States Court of Federal Claims (“Court of Federal
Claims”) the authority to entertain tax refund suits. 28 U.S.C. § 1346(a)(1) (2012); United States
v. Clintwood Elkhorn Mining Co., 553 U.S. 1, 4 (2008). To bring a tax refund suit, a plaintiff
must:
• make full payment of its tax liabilities, Flora v. United States,
357 U.S. 63, 75 (1958);
• file a timely claim for refund with the IRS, I.R.C. § 7422(a);
and
• file a timely complaint after the refund claim is denied or
deemed denied, id. § 6532(a).
By requiring that a plaintiff file a timely refund claim with the IRS, I.R.C. § 7422(a)
creates a jurisdictional prerequisite to filing a refund suit in this court. Chi. Milwaukee Corp. v.
United States, 40 F.3d 373, 374 (Fed. Cir. 1994); see also Clintwood Elkhorn, 553 U.S. at 7
(noting that Congress must have intended I.R.C. § 7422(a) to have an expansive reach given its
inclusion of five “any’s” in one sentence). In addition, the timely refund claim filing
requirement “is designed both to prevent surprise and to give adequate notice to the [IRS] of the
nature of the claim and the specific facts upon which it is predicated, thereby permitting an
administrative investigation and determination.” Computervision Corp. v. United States, 445
F.3d 1355, 1363 (Fed. Cir. 2006) (internal quotation marks omitted). To that end, Treasury
Regulation § 301.6402-2 provides:
The claim must set forth in detail each ground upon which a credit
or refund is claimed and facts sufficient to apprise the [IRS] of the
exact basis thereof. The statement of the grounds and facts must
be verified by a written declaration that it is made under the
penalties of perjury. A claim which does not comply with this
paragraph will not be considered for any purpose as a claim for
refund or credit.
Treas. Reg. § 301.6402-2(b)(1) (2014). For individuals, a refund claim must be filed on Form
1040X. Id. § 301.6402-3(a)(2).
The allowable time period for filing a tax refund claim is described in I.R.C. § 6511(a).
See United States v. Dalm, 494 U.S. 596, 602 (1990) (“[U]nless a claim for refund of a tax has
been filed within the time limits imposed by [I.R.C.] § 6511(a), a suit for refund . . . may not be
maintained in any court.); Stelco Holding Co. v. United States, 42 Fed. Cl. 101, 104 (1998)
(“Recently, the Supreme Court unanimously reaffirmed the long-standing principle that the
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limitations period under [I.R.C.] § 6511(a) is jurisdictional, and must be strictly construed
against a taxpayer whose administrative claim for refund is untimely filed.” (citing United States
v. Brockamp, 519 U.S. 347, 350-52 (1997))). Further, “[n]o credit or refund shall be allowed or
made after the expiration of the period of limitation prescribed in [I.R.C. § 6511(a)] for the filing
of a claim for credit or refund, unless a claim for credit or refund is filed by the taxpayer within
such period.” I.R.C. § 6511(b)(1).
The United States Court of Appeals for the Federal Circuit (“Federal Circuit”) has
recognized four exceptions to the requirement that a taxpayer must file a formal, detailed claim
for this court to have subject matter jurisdiction over the taxpayer’s tax refund suit.
Computervision Corp., 445 F.3d at 1363-64. Collectively, “this aggregation of rules has come to
be known as the substantial variance doctrine.” Id. The first such exception is the informal
claim doctrine. Id. at 1364. Under this exception, “a timely claim with purely formal defects is
permissible if it fairly apprises the IRS of the basis for the claim within the limitations period.”
Id.; see also United States v. Kales, 314 U.S. 186, 194 (1941) (“This Court . . . has often held
that a notice fairly advising the [IRS] of the nature of the taxpayer’s claim, which the [IRS] could
reject [as] too general or because it does not comply with formal requirements of the statute and
regulations, will nevertheless be treated as a claim, where formal defects and lack of specificity
have been remedied by amendment filed after the lapse of the statutory period.”); Furst v. United
States, 230 Ct. Cl. 375, 380-81 (1982) (“[T]here should be a written component to the informal
claim for refund . . . . Only when the facts and circumstances demonstrate the [IRS] was on
notice that a right was being asserted with respect to an overpayment of tax will we hold a timely
informal claim was filed.”); Pennoni v. United States, 86 Fed. Cl. 351, 362 (2009) (“An informal
claim is valid if (1) it is submitted within the limitations period, (2) it has a written component,
and (3) it adequately apprises the IRS that a refund is sought and for certain years.”).
The second exception is the waiver doctrine. Computervision Corp., 445 F.3d at 1365-
68. Under the waiver doctrine, “[i]f the taxpayer files a timely formal claim but fails to include
the specific claim for relief, the claim may nonetheless be considered timely if the IRS considers
that specific claim within the limitations period.” Id. at 1365. In other words, “[t]he IRS’s
consideration of the specific claim is held to be a waiver of the requirement of the regulation that
the refund claim ‘set forth in detail each ground upon which a credit or refund is claimed and
facts sufficient to apprise the Commissioner of the exact basis thereof.’” Id. (quoting Treas. Reg.
§ 301.6402-2(b)(1)); see also United States v. Memphis Cotton Oil Co., 288 U.S. 62, 65-73
(1945) (holding that a timely claim for a tax refund that fails to state the basis for the claim may
not be rejected by the IRS after the IRS has considered the claim on its merits and notified the
taxpayer that it was owed a refund prior to the expiration of the limitations period, even though
the taxpayer amended its claim after the limitations period had run); Cencast Servs., L.P. v.
United States, 729 F.3d 1352, 1368-69 (Fed. Cir. 2013) (refusing to apply the waiver doctrine
where, prior to the expiration of the limitations period, the taxpayer failed to raise a particular
theory in its claim—the independent contractor theory—and the IRS did not consider or reach
any conclusions with respect to that theory in its investigation).
-8-
The third exception is the general claim doctrine, which applies when “(1) the taxpayer
has filed a formal general claim within the limitations period; and (2) an amendment is filed
outside the limitations period that makes the general claim more specific.” Computervision
Corp., 445 F.3d at 1368. As described by the United States Supreme Court in United States v.
Andrews, 302 U.S. 517, 524 (1938):
Where a claim which the [IRS] could have rejected as too general,
and as omitting to specify the matters needing investigation, has
not misled [the IRS] but has been the basis of an investigation
which disclosed facts necessary to [IRS] action in making a refund,
an amendment which merely makes more definite the matters
already within [the IRS’s] knowledge, or which, in the course of
[the IRS’s] investigation, [the IRS] would naturally have
ascertained, is permissible.
In other words, an amendment that makes a timely general claim more specific is permissible
even if not timely filed. Id.; see also Cochran v. United States, 105 Ct. Cl. 628, 636 (1945)
(permitting the untimely amendment of a defective claim that failed to state “the nature of the
losses sustained . . . [or] the facts relied on to support the claim” because “a broad statutory
ground was stated” therein).
The final exception is the germaneness doctrine. Related to the general claim doctrine,
the germaneness doctrine
applies where the taxpayer (1) files a formal claim within the
limitations period making a specific claim; and (2) after the
limitations period but, while the IRS still has jurisdiction over the
claim, files a formal amendment raising a new legal theory—not
specifically raised in the original claim—that is “germane” to the
original claim, that is, it depends upon facts that the IRS examined
or should have examined within the statutory period while
determining the merits of the original claim. Unlike the waiver
doctrine, the inquiry here is not whether the particular legal theory
for recovery has been considered by the IRS during the limitations
period but whether the underlying facts supporting that legal
theory were discovered or should have been discovered by the IRS
in considering the original claim during the limitations period.
Computervision Corp., 445 F.3d at 1369-70; see also Bemis Bros. Bag Co. v. United States, 289
U.S. 28, 31 (1933) (allowing the taxpayer to amend its original claim because the amendment did
“not differ in matter of substance from the claim as first presented”); Addressograph-Multigraph
Corp. v. United States, 112 Ct. Cl. 201, 222-23 (1948) (allowing the taxpayer to amend its
original refund claim because the amendment “merely made more definite the matters already
within the knowledge of the [IRS], which in the course of [the IRS’s] investigation [the IRS]
actually did ascertain.”).
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B. The Court Lacks Subject Matter Jurisdiction Over Plaintiffs’ Request for a Tax Refund
for the 2010 Tax Year
1. Plaintiffs’ April 14, 2014 Tax Refund Claim Is Invalid
In its cross-motion for summary judgment, defendant argues that the court lacks subject
matter jurisdiction over plaintiffs’ request for a tax refund for the 2010 tax year “because
plaintiffs failed to file a timely administrative claim for refund for 2010 that apprised the IRS of
the tax relief they sought—a theft loss—as required by [I.R.C.] § 7422(a).” Def.’s Opp’n 12-13.
The court agrees.
Section 7422 of the Internal Revenue Code provides:
No suit or proceeding shall be maintained in any court for the
recovery of any internal revenue tax alleged to have been
erroneously or illegally assessed or collected, or of any penalty
claimed to have been collected without authority, or of any sum
alleged to have been excessive or in any manner wrongfully
collected, until a claim for refund or credit has been duly filed with
the [IRS], according to the provisions of law in that regard, and the
regulations . . . established in pursuance thereof.
I.R.C. § 7422(a). For a refund claim to be “duly filed with the [IRS],” it must meet the
requirements of I.R.C. § 6511, which provides:
Claim for credit or refund of an overpayment of any tax . . . shall
be filed by the taxpayer within [three] years from the time the
return was filed or [two] years from the time the tax was paid,
whichever of such periods expires the later, or if no return was
filed by the taxpayer, within [two] years from the time the tax was
paid.
I.R.C. § 6511(a). Where a refund claim is not filed within three years of the filing date of the
original return, any refund is limited to the “tax paid during the [two] years immediately
preceding the filing of the claim.” 5,6 Id. § 6511(b)(2)(B). In addition, a refund claim must also
5
A tax return filed prior to the due date (without extensions) is considered filed on such
due date. I.R.C. § 6513(a). Similarly, tax paid prior to the due date (without extensions) of the
tax return is considered paid on such due date. Id. A tax return is deemed filed on its postmark
date if certain requirements are met. Treas. Reg. § 301.7502-1(a).
6
An original tax return may also constitute a claim for refund, and is similarly subject to
the three-year lookback period. See, e.g., Wertz v. United States, 51 Fed. Cl. 443, 446-47
(2002).
-10-
“set forth in detail each ground upon which a credit or refund is claimed and facts sufficient to
apprise the [IRS] of the exact basis thereof.” Treas. Reg. § 301.6402-2(b)(1).
In the instant case, plaintiffs filed two administrative claims for a tax refund for tax year
2010 on Form 1040X—the first on April 14, 2014, and the second on July 16, 2014. Because
plaintiffs filed their original 2010 federal income tax return on April 26, 2011, plaintiffs had until
April 26, 2014, to file their refund claim. Thus, plaintiffs’ April 14, 2014 claim was timely.
Plaintiffs’ April 14, 2014 claim did not, however, meet the specificity requirements of Treasury
Regulation § 301.6402-2(b)(1). While plaintiffs’ April 14, 2014 claim identified the taxpayers
by name and contained a request for a $1 refund, it failed to describe any basis for the claimed
refund. See Waltner v. United States, 679 F.3d 1329, 1334 (Fed. Cir. 2012) ( “[A] form that
contains zeros in place of any reportable income does not constitute a valid tax return; it is not
‘properly executed’ for purposes of [Treasury Regulation] § 301.6402-3(a)(5) and does not meet
the specificity requirements imposed by [Treasury Regulation] § 301.6402-2(b)(1).”).
Furthermore, none of the exceptions to the requirement that a taxpayer file a formal,
detailed claim has been met. First, to qualify for an exception to the rule under the informal
claim doctrine, plaintiffs would have had to provide the IRS with a description of both the legal
and factual basis for their claim. Plaintiffs’ April 14, 2014 claim did neither. See, e.g., Fremuth
v. United States, 129 Fed. Cl. 684, 689 (2016) (finding that a letter that failed to “contain enough
information to apprise the IRS of the nature of [the plaintiff’s] refund claim” was not a valid
claim, whereas letters that contained “sufficient detail to apprise the IRS of the nature of [the
plaintiff’s] refund claim” were valid claims).
Second, for plaintiffs to qualify for an exception to the rule under the waiver doctrine, the
IRS must have treated plaintiffs’ April 14, 2014 claim as though it was properly filed. In this
case, plaintiffs do not allege that the IRS treated their claim as having been properly filed, and
there is no evidence that it did.
Third, to qualify for an exception to the rule under the general claim doctrine, plaintiffs
would have had to file two claims—a timely formal general claim and then an untimely, more
specific second claim. Here, plaintiffs’ April 14, 2014 claim does not qualify as a general claim
because it contained absolutely no substantive information. Therefore, plaintiffs do not qualify
for this exception.
Finally, under the germaneness doctrine, a taxpayer must file two claims—a timely
formal specific claim and then an untimely second claim (filed after the limitations period but
while the IRS is still processing the first claim) that raises a new, yet germane, theory based on
the same facts asserted in the first claim. As noted above, plaintiffs’ April 14, 2014 claim
contained no factual information, and thus cannot be supported by an untimely second claim.
-11-
In sum, plaintiff’s April 14, 2014 claim failed to “set forth in detail each ground upon
which a credit or refund is claimed and facts sufficient to apprise the [IRS] of the exact basis
thereof,” and therefore “will not be considered for any purposes as a claim for refund or credit.”
Treas. Reg. § 301.6402-2(b)(1). Accordingly, it does not constitute a valid claim for refund, and
therefore cannot serve as a basis upon which the Court of Federal Claims can exercise subject
matter jurisdiction.
2. Plaintiffs’ July 16, 2014 Tax Refund Claim Is Untimely
Plaintiffs’ second administrative claim for a tax refund for the 2010 tax year was filed on
July 16, 2014. Since plaintiffs filed their original 2010 tax return on April 26, 2011, the statute
of limitations for filing a timely refund claim expired on April 26, 2014. 7 Because plaintiffs’
July 16, 2014 administrative claim was filed nearly three months late, it is untimely. See, e.g.,
Fremuth, 129 Fed. Cl. at 689 (deeming a refund claim filed on January 30, 2013, as untimely
when the statute of limitations had expired in April 2011). Further, plaintiffs’ July 16, 2014
claim does not effectively relate back to plaintiffs’ April 14, 2014 claim for the reasons
explained above. Finally, since plaintiffs did not pay any additional tax after filing their original
2010 return, there was no tax paid in the two years immediately prior to July 16, 2014, for which
a refund could have been sought on that date.
Accordingly, plaintiffs’ July 16, 2014 claim is untimely, and therefore cannot serve as a
basis upon which the Court of Federal Claims can exercise subject matter jurisdiction.
C. Plaintiffs’ Request for a Tax Refund for the 2007 Tax Year Lacks Merit
In the third count of their complaint, plaintiffs assert that, after applying the NOL
carryback from their 2010 amended tax return, they are entitled to a tax refund of $102,687 for
2007. 8 The court disagrees. Plaintiffs may not recover twice for the same financial loss.
7
Pursuant to Rule 201 of the Federal Rules of Evidence, the court takes judicial notice
that April 26, 2014, was a Saturday. Therefore, plaintiffs’ refund claim would have been timely
had it been filed on April 28, 2014, the next business day. See I.R.C. § 7503.
8
Plaintiffs’ administrative claim for a tax refund for 2007, which carried back a
remaining NOL due to the alleged 2010 theft loss, was filed on July 16, 2014. Because plaintiffs
had obtained an extension to file their 2010 federal income tax return by October 15, 2011, they
had until October 15, 2014, to file their administrative claim due to an NOL carryback from
2010. See I.R.C. § 6511(d)(2) (“If the claim for credit or refund relates to an overpayment
attributable to a net operating loss carryback or a capital loss carryback, in lieu of the [three]-
year period of limitation prescribed in subsection (a), the period shall be that period which ends
[three] years after the time prescribed by law for filing the return (including extensions thereof)
for the taxable year of the net operating loss or net capital loss which results in such carryback . .
. . In the case of such a claim, the amount of the credit or refund [is allowed] to the extent of the
amount of the overpayment attributable to such carryback.”). Thus, plaintiffs’ claim for a 2007
refund was timely.
-12-
Plaintiffs initially characterized, on 2008 and 2009 amended federal income tax returns
filed in 2012, the losses they suffered from Mr. Mastro’s defaulting on his loans as capital losses.
As a result, plaintiffs received tax refunds arising from those returns—a total of $53,323.34
including interest—and continued to carry forward the unused capital loss from the default into
2010. 9 In their current suit, however, plaintiffs now characterize the 2008 capital loss as a theft
loss arising in 2010. The doctrine of quasi-estoppel precludes plaintiffs from doing so. 10
The United States Court of Claims (“Court of Claims”), the predecessor court to the
Federal Circuit, stated that the purpose of the doctrine of quasi-estoppel, also known as the “duty
of consistency,” see Lewis v. Comm’r, 18 F.3d 20, 26 (1st Cir. 1994), is
to prevent a taxpayer, after taking a position in one year to his
advantage and after correction for that year is barred, from shifting
to a contrary position touching on the same facts or transaction. A
key element is the fact that the earlier position was then to the
advantage of the taxpayer but that it is now to the taxpayer’s
advantage to shift his position.
Union Carbide Corp. v. United States, 222 Ct. Cl. 75, 90 (1979) (citation omitted). Furthermore,
the doctrine only applies to a misstatement of fact, “one on which the government reasonably
relied, in the sense that it neither knew, nor ought to have known, the true nature of the
transaction mischaracterized by the taxpayer.” Lewis, 18 F.3d at 26.
The Court of Claims has also emphasized:
Three elements are necessary to establish that a duty of
consistency exists, such that a party is estopped, or quasi-estopped,
from changing its position. First, the taxpayer must have made a
representation or reported an item for tax purposes in one year;
second, the [IRS] must have acquiesced or relied on that fact for
that year; and third, the taxpayer must desire to change the
representation, previously made, in a later year after the statute of
limitations on assessment bars adjustment for the initial years.
Hess v. United States, 210 Ct. Cl. 483, 495 (1976); see also R.H. Stearns Co. v. United States,
291 U.S. 54, 61-62 (1934) (“The applicable principle is fundamental and unquestioned. He who
prevents a thing from being done may not avail himself of the nonperformance which he has
himself occasioned, for the law says to him, in effect: This is your own act, and therefore you
are not damnified. Sometimes the resulting disability has been characterized as an estoppel,
9
The record before the court does not reflect whether plaintiffs continued to carry
forward the remaining capital loss from the default into 2011 and beyond.
10
Because plaintiffs are estopped from asserting this theory, the court need not consider
whether plaintiffs’ loss qualifies as a theft loss under I.R.C. § 165.
-13-
sometimes as a waiver. The label counts for little. Enough for present purposes that the
disability has its roots in a principle more nearly ultimate than either waiver or estoppel, the
principle that no one shall be permitted to found any claim upon his own inequity or take
advantage of his own wrong.” (citation and internal quotation marks omitted)); Estate of Ashman
v. Comm’r, 231 F.3d 541, 544 (9th Cir. 2000) (“When all is said and done, we are of the opinion
that the duty of consistency not only reflects basic fairness, but also shows a proper regard for
the administration of justice and the dignity of the law. The law should not be such a[n] idiot
that it cannot prevent a taxpayer from changing the historical facts from year to year in order to
escape a fair share of the burdens of maintaining our government. Our tax system depends upon
self assessment and honesty, rather than upon hiding of the pea or forgetful tergiversation.”);
Rissetto v. Plumbers & Steamfitters Local 343, 94 F.3d 597, 600 (9th Cir. 1996) (noting that the
doctrine of judicial estoppel “precludes a party from gaining an advantage by taking one
position, and then seeking a second advantage by taking an incompatible position.”).
In Ashman, the United States Court of Appeals for the Ninth Circuit (“Ninth Circuit”)
affirmed the United States Tax Court’s application of the duty of consistency doctrine after it
found that the taxpayer’s change of position from a representation that a pension distribution was
timely rolled over to one that it was not timely rolled over constituted a change in representation
that was relied upon by, and detrimental to, the IRS. 231 F.3d at 545-46. Significantly, the
Ninth Circuit held that Ashman made “a clear representation that she had complied with the
requirements of [I.R.C.] § 402(c)(3)” when she “declared as a matter of fact that the amount of
the rollover of the $725,502 distribution was $725,502, and that it went to Merrill Lynch,” even
though that is not what happened. Id. The Ninth Circuit observed:
Finally, Ashman argues, she has not really changed her
representations. Rather, she simply made an incorrect legal
statement in 1990 and then corrected it in 1993. We reject that
argument. As we see it, her representation in 1990 was that, as a
matter of fact, she had rolled over the amount within [sixty] days.
She now wants to change that representation; she cannot. If she
could, she would surely harm the [IRS]; she would have managed
to obtain $100,502.21 tax free by misleading [the IRS].
Id. at 546.
The facts in the instant case are analogous to those in Ashman. First, plaintiffs stated
that, as a matter of fact, they suffered a capital loss in 2008 that carried forward into 2009 and
beyond. Thus, plaintiffs made a representation or reported an item for tax purposes—in this
case, for two years. Second, plaintiffs received tax refunds for 2008 and 2009. Thus, the IRS
relied on plaintiffs’ representation that they had suffered capital losses. Finally, plaintiffs now
contend that the capital losses they suffered as a result of Mr. Mastro’s inability to repay his F&F
loans were actually theft losses. Although plaintiffs filed amended returns for 2008 and 2009 to
reflect a 2010 theft loss instead of a 2008 capital loss due to Mr. Mastro’s default, plaintiffs did
not do so until July 16, 2014—well after the statute of limitations on assessment bars any such
-14-
adjustment. 11 Thus, plaintiffs attempted to change their representation after the statute of
limitations expired.
Because all three elements of the doctrine have been satisfied, plaintiffs are bound by the
duty of consistency. 12 See, e.g., Squeri v. Comm’r, T.C. Memo. 2016-116 (2016) (holding that,
pursuant to the duty of consistency, the petitioners were bound by their previous declaration that
certain income was earned in a later tax year when in fact it was earned in an earlier tax year);
Koppen v. Comm’r, T.C. Memo. 1995-316 (1995) (holding that, pursuant to the duty of
consistency, the petitioner was bound by his previous declaration that gain from the sale of
property was realized in a later tax year when it was in fact realized in an earlier tax year).
IV. CONCLUSION
The court has considered all of the parties’ arguments. To the extent not discussed
herein, they are unpersuasive, without merit, or immaterial.
Plaintiffs’ April 14, 2014 administrative claim for refund was not a valid claim because it
failed to contain any grounds upon which the refund was sought, and plaintiffs’ July 16, 2014
administrative claim was not timely filed because the statute of limitations expired on April 26,
2014. Accordingly, the Court of Federal Claims lacks subject matter jurisdiction over plaintiffs’
claims with respect to the 2010 tax year. In addition, the duty of consistency prevents plaintiffs
from maintaining their refund claim with respect to the 2007 tax year.
11
Plaintiffs’ 2008 federal income tax return was deemed filed on April 15, 2009, and
plaintiffs’ 2009 federal income tax return was deemed filed on April 15, 2010. Therefore, the
three-year statute of limitations on assessment, see I.R.C. § 6501(a), expired on April 15, 2012,
with respect to plaintiffs’ 2008 tax return, and on April 15, 2013, with respect to plaintiffs’ 2009
tax return. Although the limitations period can be extended by agreement, any such agreement
must be executed prior to the expiration of the limitations period. Id. § 6501(b)(4). There is no
evidence in the record before the court that an agreement extending the limitations period was
executed for either 2008 or 2009. Therefore, even if plaintiffs attempted to pay additional tax
with respect to 2008 and 2009—whether via payment or an offset to any refunds plaintiffs might
otherwise be due—the IRS lacks authority to collect any such tax because it was not assessed
within the limitations period. Further, there is no evidence that any exceptions to the three-year
statute of limitations on assessment (such as failing to file a return, filing a false or fraudulent
return, a willful attempt to evade tax, or a substantial omission) apply to plaintiffs with respect to
2008 or 2009.
12
The court also observes that plaintiffs, despite alleging that they “discovered the theft
[in] 2010,” Am. Compl. ¶ 25, filed—in 2012—their 2008 and 2009 amended federal income tax
returns reflecting a capital loss arising in 2008.
-15-
Therefore, the court DENIES plaintiffs’ motion for summary judgment or partial
summary judgment and GRANTS defendant’s cross-motion for summary judgment. Counts one
and two of plaintiffs’ complaint are DISMISSED for lack of subject matter jurisdiction, and
count three of plaintiffs’ complaint is DISMISSED on its merits. All other pending motions are
DENIED AS MOOT. No costs. The clerk is directed to enter judgment accordingly.
IT IS SO ORDERED.
s/ Margaret M. Sweeney
MARGARET M. SWEENEY
Judge
-16-
| {
"pile_set_name": "FreeLaw"
} |
In the United States Court of Federal Claims
No. 11-389L
(Filed: August 20, 2013)
_________
DENNIS J. QUEBEDEAUX, on behalf of *
himself and all other similarly situated *
persons and entities, * Takings case; Motion to dismiss under
* RCFC 12(b)(6); Morganza Floodway –
Plaintiffs, * release of water; Iqbal/Twombly – pleading
* standard; Sponenbarger doctrine; Tort vs.
v. * takings; Rejection of bright line test in favor
* of multi-factored approach; Motion denied.
THE UNITED STATES, *
*
Defendant. *
_________
OPINION
__________
Richard Lyle Coffman, The Coffman Law Firm, Beaumont, TX, for plaintiffs.
Joshua Pratt Wilson, Environment and Natural Resources Division, United States
Department of Justice, Washington, D.C., with whom was Assistant Attorney General Ignacia S.
Moreno, for defendant.
ALLEGRA, Judge:
This takings case is before the court on defendant’s motion to dismiss the complaint
pursuant to RCFC 12(b)(6). Plaintiffs own land in the Morganza Floodway and Atchafalaya
River basin, part of the Lower Mississippi River Valley. They seek just compensation under the
Fifth Amendment for an alleged takings associated with the inundation of their property with
water diverted from the Mississippi River.1 Based on its careful review of the briefs, and oral
argument, the court hereby DENIES defendant’s motion.
1
Plaintiffs seek certification of a class of similar-situated property holders. The court has
deferred consideration of class certification under RCFC 23 until resolution of this motion.
I. BACKGROUND2
The facts required here are relatively simple and few.
The Morganza Floodway, which includes the Morganza Spillway, is part of the
Mississippi River & Tributaries Project (the MR&T Project) – the comprehensive federal system
of levees, flood control channels, dams, pumping stations, and reservoirs designed to control
floods on the Mississippi River.3 The Morganza Spillway is a structure on the Mississippi River
that sits at the head of the Morganza Floodway. This 3,900-foot structure features 125
floodgates and other structures. Ordinarily, the Spillway gates remain closed. However, during
flood events, the Morganza Spillway can be opened to divert water through the Morganza
Floodway into the Atchafalaya River basin.
Upriver on the Mississippi from the Morganza Spillway lies another flood control
structure, the Old River Control Structure. This is used routinely to divert water from the
Mississippi River into the Atchafalaya River basin. The Morganza Spillway is opened only
during extreme flood events to divert additional water into the Atchafalaya River basin.
The Morganza Spillway has been opened only twice – once during a 1973 flood, and
again on or about May 14, 2011, during the flood event that underlies plaintiffs’ lawsuit. In the
latter instance, the Army Corps of Engineers (the Corps) became concerned that flooding along
the Mississippi River would overwhelm the levees in Baton Rouge and New Orleans. After
considering several alternatives, the Corps decided to open the Morganza Spillway to 21 percent
of its maximum capacity to prevent flooding downriver. As a consequence, the Morganza
Floodway, the Atchafalaya River basin, and its residents and property owners were inundated
with flood waters between May 14, and July 7, 2011. According to plaintiffs, this flooding
destroyed, damaged and/or devalued their crops, farms, homes, businesses, buildings, structures,
equipment, oil and gas wells, fishery waters, and other real and personal property.
On June 15, 2011, plaintiffs filed a complaint in this court seeking just compensation for
the destruction to their property caused by the flooding. They allege that defendant’s intentional
diversion of flood water “constitutes an ongoing, continuous and permanent physical taking” of
their property without just compensation. They aver that the existence of the MR&T Project
evidences defendant’s permanent commitment to the intermittent, but inevitably recurring,
flooding of plaintiffs’ property and businesses. On September 21, 2011, plaintiffs filed their
amended complaint. On October 19, 2011, defendant filed a 12(b)(6) motion to dismiss for
failure to state a claim upon which relief can be granted. Briefing and argument of that motion
have been completed.
2
These facts are drawn largely from plaintiffs’ complaint, and, for purposes of this
motion, are assumed to be correct. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
3
Congress authorized the creation of the MR&T Project following the great 1927
Mississippi River Flood. See Cent. Green Co. v. United States, 531 U.S. 425, 432 (2001).
-2-
II. DISCUSSION
Deciding a motion to dismiss “starts with the complaint, which must be well-pleaded in
that it must state the necessary elements of the plaintiff’s claim, independent of any defense that
may be interposed.” Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir. 1997); see also
Twombly, 550 U.S. at 554-55. To survive a motion to dismiss for failure to state a claim under
RCFC 12(b)(6), the complaint must have sufficient “facial plausibility” to “allow[] the court to
draw the reasonable inference that the defendant is liable.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009); see also Klamath Tribe Claims Comm. v. United States, 97 Fed. Cl. 203, 208 (2011).
The plaintiffs’ factual allegations must “raise a right to relief above the speculative level” and
cross “the line from conceivable to plausible.” Twombly, 550 U.S. at 555, 570; see also Dobyns
v. United States, 91 Fed. Cl. 412, 422-28 (2010) (examining this pleading standard).
Nevertheless, the Federal Circuit has reiterated that “[i]n ruling on a 12(b)(6) motion to dismiss,
the court must accept as true the complaint’s undisputed factual allegations and should construe
them in a light most favorable to the plaintiff.” Cambridge v. United States, 558 F.3d 1331,
1335 (Fed. Cir. 2009); see also Bank of Guam v. United States, 578 F.3d 1318, 1326 (Fed. Cir.
2009), cert. denied, 130 S. Ct. 3468 (2010); Petro-Hunt, LLC v. United States, 90 Fed. Cl. 51, 68
(2009).
Plaintiffs seek compensation from the United States pursuant to the Fifth Amendment’s
instruction: “[N]or shall private property be taken for public use, without just compensation.”
Because defendant conducted no formal exercise of eminent domain, this case is for an alleged
“inverse condemnation.” See Cary v. United States, 552 F.3d 1373, 1376 (Fed. Cir. 2009), cert.
denied, 129 S. Ct. 2878 (2009); Moden v. United States, 404 F.3d 1335, 1342 (Fed. Cir. 2005).
Defendant makes two arguments as to why plaintiffs’ complaint should be dismissed. First, it
argues that because plaintiffs receive ongoing protection from the MR&T Project, they must
allege, as part of their takings claim, that the injuries they suffered from the operation of the
Morganza Spillway exceeded the benefits conferred on them by the federal flood control system.
Second, defendant asseverates that, as a matter of law, a single flooding event, of the sort alleged
by plaintiffs, cannot constitute a takings. The court will consider these arguments, and plaintiffs’
responses thereto, seriatim.
The Takings Clause is “designed to bar Government from forcing some people alone to
bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”
Armstrong v. United States, 364 U.S. 40, 49 (1960); see also First English Evangelical Lutheran
Church of Glendale v. Cnty. of L.A., 482 U.S. 304, 318-19 (1987); Penn Cent. Transp. Co. v.
City of New York, 438 U.S. 104, 123-25 (1978). And “[w]hen the government physically takes
possession of an interest in property for some public purpose, it has a categorical duty to
compensate the former owner.” Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning
Agency, 535 U.S. 302, 322 (2002) (citing United States v. Pewee Coal Co., 341 U.S. 114, 115
809 (1951)). “These guides,” the Supreme Court recently reminded, “are fundamental in our
Takings Clause jurisprudence.” Ark. Game & Fish Comm’n v. United States, 133 S. Ct. 511, 518
(2012). In that same case, the Court emphasized that “most takings claims turn on situation-
specific factual inquiries,” adding “that no magic formula enables a court to judge, in every case,
-3-
whether a given government interference with property is a taking.” Id. The Court admitted,
however, that in rare instances, it has “drawn some bright lines,” giving, as examples, situations
in which a permanent physical occupation of property occurs or where regulations require a
property owner to sacrifice all economic benefit associated with its land. Id. (citing Loretto v.
Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426 (1982); Lucas v. S.C. Coastal Council,
505 U.S. 1003, 1019 (1992)).
The Supreme Court long ago recognized that government-induced flooding can constitute
a takings. See United States v. Cress, 243 U.S. 316, 328 (1917); Pumpelly v. Green Bay & Miss.
Canal Co., 80 U.S. 166, 181 (1871) (“where real estate is [] invaded by superinduced additions
of water . . . so as to effectually destroy or impair its usefulness, it is a taking, within the meaning
of the Constitution”); see also Loretto, 458 U.S. at 427-28; Cotton Land Co. v. United States, 75
F. Supp. 232, 232-35 (Ct. Cl. 1948). More recently, the Court made clear that floods that are
temporary in duration can be compensable and gain no automatic exemption from the Takings
Clause. Ark. Game & Fish, 133 S. Ct. at 519 (“our precedent indicates that government-induced
flooding of limited duration may be compensable”); see also United States v. Dickinson, 331
U.S. 745, 751 (1947). These and other cases indicate that “government actions may not,” in
effect, “impose upon a private landowner a flowage easement without just compensation.”
Ridge Line, Inc. v. United States, 346 F.3d 1346, 1353 (Fed. Cir. 2003). Defendant, however,
argues that the courts have established two other bright-line rules that cabin these principles and
require dismissal of plaintiffs’ complaint.
Defendant first claims that a plaintiff who has benefited from a flood control project may
not pursue a takings action unless it avers that the cost of a flooding event exceeds the benefits
received from the project as a whole. For the reasons that follow, the court rejects this
proposition as a matter of pleading practice, as well as substantive takings law.
In terms of the former, the court flatly disagrees with the notion that a party pleading a
takings must address every facet of its claim, including likely defenses, in the complaint. In the
court’s view, one claiming a takings need not address such matters in order to allege facts that
‘“state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 570). It is enough that a plaintiff plead enough “factual detail to put defendant on
notice as to the basic nature of the claims raised, so as to allow this case to proceed to
discovery.” Dobyns, 91 Fed. Cl. at 430. Takings cases are no exception to this rule. See TrinCo
Inv. Co. v. United States, 2013 WL 3746090, at *4 (Fed. Cir. July 18, 2013); Cary, 552 F.3d at
1376 (“This does not require the plaintiff to set out in detail the facts upon which the claim is
based, but enough facts to state a claim to relief that is plausible on its face.”); Petro-Hunt, 90
Fed. Cl. at 71; see generally Extreme Coatings, Inc. v. United States, 109 Fed. Cl. 450, 454
(2013).4 To meet this standard, a complaint need only aver facts showing that: (i) the plaintiff
4
In rejecting the claim that a party claiming the temporary takings of leases had to plead
more specific details regarding the leases, this court, in Petro-Hunt, observed –
At this nascent stage of the proceedings, this court need go no further – contrary
to defendant’s intimations, plaintiff need not plead every single fact concerning
-4-
had a property interest; (ii) defendant caused some form of appropriation of the property to
occur; and (iii) just compensation has not been paid. See Acceptance Ins. Cos., Inc. v. United
States, 583 F.3d 849, 854 (Fed. Cir. 2009), cert. denied, 130 S. Ct. 2402 (2010); Cary, 552 F.3d
at 1376-77, 1380; Am. Pelagic Fishing Co., L.P. v. United States, 379 F.3d 1363, 1372 (Fed. Cir.
2004), cert. denied, 545 U.S. 1139 (2005); Ridge Line, 346 F.3d at 1355; D.R. Smalley & Sons,
Inc. v. United States, 372 F.2d 505, 508 (Ct. Cl.), cert. denied, 389 U.S. 835 (1967). The
amended complaint here does all that – and more. Contrary to defendant’s claims, plaintiffs did
not need specifically to aver that the harm caused by the flood here exceeded the benefits
provided to plaintiffs by the flood control project.
Moreover, defendant is simply wrong in suggesting that a takings cannot occur whenever
the benefits associated with a flood control program outweigh its costs. Defendant claims that a
series of cases supports this proposition. Among these is John B. Hardwicke Co. v. United
States, 467 F.2d 488, 490 (Ct. Cl. 1972), where the court stated: “[A] condemnor need not
compensate a landowner for value which the condemnor creates by the establishment of the
project for which the landowner’s land is condemned. . . . The same principle is for application
when, in a flooding case, the question is whether property is taken at all.” Hardwicke quotes
from United States v. Sponenbarger, 308 U.S. 256, 266-67 (1939), where Mr. Justice Black,
writing on behalf of the court in a case involving another Mississippi River floodway, stated:
“[I]f governmental activities inflict slight damage upon land in one respect and actually confer
great benefits when measured in the whole, to compensate the landowner further would be to
grant him a special bounty.” See also United States v. Miller, 317 U.S. 369, 375 (1943); City of
Van Buren, Ark. v. United States, 697 F.2d 1058, 1061 (1983). Importantly, though, the focus of
this cost/benefit analysis is not on whether, broadly speaking, the benefits of a flood control
project outweigh its costs. Rather, for purposes of applying the Sponenbarger doctrine, “only
benefits inuring specifically to the condemnee, rather than to the community at large, are relevant
to an analysis of the government’s liability under the Fifth Amendment.” Id. at 1062; see also
Laughlin v. United States, 22 Cl. Ct. 85, 111-12 (1990), aff’d, 975 F.2d 869 (1992). While
defendant claims otherwise, nothing in plaintiffs’ complaint admits that the particularized
every single lease in order to meet the “plausibility” standard of Twombly. The
Supreme Court in the latter case (and, even more so in its recent decision in Iqbal)
made clear that it intended neither to defenestrate the notice pleading rules that
have reigned under Conley v. Gibson, 355 U.S. 41, 45, 78 S. Ct. 99, 2 L.Ed.2d 80
(1957), nor, correspondingly, to collapse discovery, summary judgment and trial
into the pleading stages of a case. See Twombly, 550 U.S. at 555, 127 S. Ct. 1955
(“a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations”); Iqbal, 129 S. Ct. at 1949-50 (“Determining whether
a complaint states a plausible claim for relief will . . . be a context-specific task
that requires the reviewing court to draw on its judicial experience and common
sense.”).
90 Fed. Cl. at 71.
-5-
benefits received by the property owners here exceeded the costs associated with the alleged
takings.5
More importantly for our purposes, as the quote from Justice Black’s opinion reveals, the
Sponenbarger doctrine applies only where the government has inflicted only “slight damage” on
the property allegedly taken. 308 U.S. at 266-67; see also ARK-MO Farms v. United States, 530
F.2d 1384, 1386 (Ct. Cl. 1976). Such is certainly not the allegation in the complaint here. See,
e.g., Amended Complaint, at ¶ 42 (alleging that 4,600 square miles were flooded, destroying
hundreds of millions of dollars of crops, not to mention homes, businesses, and other structures).
The court, of course, must presume these facts to be true for purposes of considering defendant’s
motion. See Twombly, 550 U.S. at 555; see also Kam-Almaz v. United States, 682 F.3d 1364,
1367-68 (Fed. Cir. 2012) (applying this rule in a takings case). Determining whether these
allegations are actually true is a matter preliminarily for discovery and, ultimately, decision later
in this case. See Miller v. United States, 220 Ct. Cl. 718, 720-22 (1979) (ordering a trial judge to
render factual findings regarding application of the Sponenbarger doctrine); Avenal v. United
States, 33 Fed. Cl. 778, 789 (1995), aff’d, 100 F.3d 933 (Fed. Cir. 1996) (finding that the
application of the doctrine requires “extensive factual determinations”); see also Hartwig v.
United States, 485 F.2d 615, 622 (Ct. Cl. 1973) (finding that application of the doctrine
presented a triable issue of fact that need not be resolved because of other infirmities in the
subject complaint). Accordingly, there is no basis for dismissing plaintiffs’ complaint now.
Indeed, given the factually-intensive nature of the Sponenbarger doctrine, it is unsurprising that
defendant has failed to cite a single case in which this doctrine has been applied in granting a
motion to dismiss under RCFC 12(b)(6).6
5
On brief, defendant asserts that, in their amended complaint, plaintiffs acknowledge
“that the Mississippi River and Tributaries Project provides their own lands with indispensable
protection from flooding.” But, a review of the cited paragraph in the amended complaint –
indeed, a review of the entire amended complaint – reveals no such statement. Rather, defendant
cites a paragraph in the complaint that generically describes the fact that “[t]he Lower
Mississippi River Valley is a relatively flat plain of about 35,000 square miles bordering the
river, which would be inundated during times of high water if not for man-made protective
works.” While plaintiffs’ property falls within this valley, the court is unwilling to assume – as
defendant apparently is – that this means that every parcel at issue has received specific benefits
from these flood protections.
6
Compare Hendler v. United States, 175 F.3d 1374, 1382-83 (Fed. Cir. 1999)
(reviewing judgment after trial); Bistline v. United States, 640 F.2d 1270, 1275 (Ct. Cl. 1981)
(reviewing grant of summary judgment); Bartz v. United States, 633 F.2d 571, 578 (Ct. Cl.
1980), cert. denied, 450 U.S. 967 (1981) (reviewing trial judge’s opinion after trial); Vukovich v.
United States, 229 Ct. Cl. 486, 489-90 & n.3 (1981) (same); Hartwig, 485 F.2d at 621
(considering this issue on summary judgment); Johnson v. United States, 479 F.2d 1383, 1392
(Ct. Cl. 1973) (applying doctrine after trial); John B. Hardwicke, 467 F.2d at 491 (same);
Laughlin, 22 Cl. Ct. at 111-12 (same).
-6-
Defendant’s second contention is that a single flooding event may not give rise to a
takings. It notes, in this regard, that the Federal Circuit and this court’s predecessor have
sometimes stated that “[i]solated invasions, such as one or two floodings . . . , do not make a
taking.” Eyherabide v. United States, 345 F.2d 565, 569 (Ct. Cl. 1965); see also Ridge Line, 346
F.3d at 1357; Barnes v. United States, 538 F.2d 865, 870 (Ct. Cl. 1976); Hartwig, 485 F.2d at
620; N. Cntys. Hydro-Electric Co. v. United States, 151 F. Supp. 322, 323 (Ct. Cl. 1956), cert.
denied, 355 U.S. 882 (1957). Defendant views these cases as establishing a black and white rule
– one or two floodings is a tort; more than two can be a takings. But, the decisional law suggests
that the inquiry here is more grey.
On closer examination, the flooding cases seem to focus on periodicity only as one
indication as to whether defendant has appropriated an interest for itself in the affected property.
While a single flooding may indicate that such an interest has not been taken, that conclusion
depends upon whether the flooding was truly an “[i]solated invasion,” Eyherabide, 345 F.2d at
569, as opposed to an event that characterizes a “permanent liability to intermittent but inevitably
recurring overflows.” Cress, 243 U.S. at 328; Cary, 552 F.3d at 1381. When the latter has been
true, defendant has been found liable in a variety of cases involving permanent flood control
facilities. See Barnes, 558 F.2d at 870 (collecting cases). On the same basis it is conceivable
that a takings might lie where defendant, using a permanent structure, purposely floods a
property once and expressly reserves the right to do so in the future. In this instance, it is
conceivable that defendant’s actions may be viewed not as an “isolated invasion,” but rather as
reserving a flowage easement over the affected property. See Cress, 243 U.S. at 329; King v.
United States, 504 F.2d 1138, 1142 (Ct. Cl. 1974); Richard v. United States, 282 F.2d 901, 904
(Ct. Cl. 1960), modified on other grounds, 285 F.2d 129 (Ct. Cl. 1961); see also Barnes, 538
F.2d at 870.7 At the least, the cases in this area suggest that “[t]he distinction between tort and
takings in the flooding cases is not as easy as saying one flood is a tort and any more than that a
taking.” Arkansas Game & Fish Comm’n v. United States, 648 F.3d 1377, 1382 (Fed. Cir. 2011)
(Moore, J., dissenting); see also Nat’l By-Prods. v. United States, 405 F.2d 1256, 1273-74 (Ct.
Cl. 1969) (“The distinction between ‘permanent liability to intermittent but inevitably recurring
overflows,’ and occasional floods induced by government projects, which we have held not to be
takings, is, of course, not a clear and definite guideline.”).8
7
In Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S. 327 (1922),
defendant erected a fort and installed guns on land adjacent to an ocean-side resort owned by the
plaintiff. The Court held that the number of times the guns was fired did not control the takings
analysis, but rather served as one of several barometers of defendant’s intent to appropriate the
resort. In this regard, the Court found that “[i]f the United States, with the admitted intent to fire
across the claimants’ land at will should fire a single shot or put a fire control upon the land, it
well might be that the taking of a right would be complete.” Id. at 329.
8
Indeed, in an opinion later reversed by the Supreme Court (on other grounds), the panel
majority in Arkansas Game & Fish Comm’n v. United States, 637 F.3d 1366, 1377 (Fed. Cir.
2011), rev’d, 133 S. Ct. 511 (2012), observed that “permanent structures or improvements, such
as dams, canals, or levees . . . often, but not always, yield inevitably recurring flooding.” See
also id. at 1376 (“Most government-induced flooding cases involve overflows caused by
-7-
Defendant’s counting convention cannot be squared with the modern jurisprudence of
temporary takings. Thus, a number of cases hold that conduct that purposely floods property for
an extended period of time can give rise to a temporary takings – even if the flooding occurred
only one time. See United States v. Dickinson, 331 U.S. 745, 746-47 (1947); Cooper v. United
States, 827 F.2d 762, 762-64 (Fed. Cir. 1987) (finding a takings where flooding was caused by a
temporary stream blockage); Fromme v. United States, 412 F.2d 1192, 1196 (Ct. Cl. 1969).9
Indeed, Eyherabide itself so held. 345 F.2d at 570 (“The measure of plaintiffs’ recovery is for
the temporary taking (from 1954 through 1959).”). These cases suggest that, depending upon a
variety of other factors, a single flooding event can be evidence of an intent to appropriate an
interest in property, that is, a takings. To rule otherwise would be to suggest that a single
disastrous flood that lasts a year is not actionable, whereas a dozen floods of the same property
for a few hours each might be. Compare Cooper, 827 F.2d at 763-64 (flooding occasioned by
the construction of a flood control project over a five-year period effectuated a takings even
though the flooding was then abated by the Corps). Counting floods is not the controlling
consideration. The question, rather, is whether defendant has appropriated an interest for itself in
the subject property – and that inquiry requires an examination of multiple factors, certainly
beyond whether actual flooding has occurred once, twice, or even a dozen times.
This multi-factored, factually-intensive nature of the takings analysis is well-evidenced in
the Supreme Court’s recent opinion in Arkansas Game & Fish. In that case, the Court reversed a
Federal Circuit decision holding that a government-induced flooding, temporary in duration,
gains an automatic exemption from Takings Clause inspection. Ark. Game & Fish, 133 S. Ct. at
515, 520. The Court rejected this bright-line rule because it viewed the determination of whether
a flood results in a takings as a case-specific, factual inquiry, emphasizing that “[f]looding cases,
like other takings cases, should be assessed with reference to the ‘particular circumstances of
each case,’ and not by resorting to blanket exclusionary rules.” Id. at 521 (quoting United States
v. Cent. Eureka Mining Co., 357 U.S. 155, 168 (1958)). In its opinion, the Court identified a
series of factors that bears on that inquiry, among them: (i) the duration of the flooding; (ii)
whether the invasion is intended or is the foreseeable result of authorized government action; (iii)
the character of the land at issue and the owner’s “reasonable investment-backed expectations”
regarding the land’s use; and (iv) the severity of the interference. Ark. Game & Fish, 133 S. Ct.
at 522; see also Loretto, 458 U.S. at 436 n.12.10 A similar approach to the takings analysis is
permanent structures or improvements, such as dams, canals, or levees.”); Hartwig, 485 F.2d at
619 (“The essential inquiry is whether the injury to the claimant’s property is in the nature of a
tortious invasion of his rights or rises to the magnitude of an appropriation of some interest in his
property permanently to the use of the government.”).
9
See also Tahoe-Sierra Pres. Council, 535 U.S. at 322 (discussing the temporary takings
doctrine); First Evangelical Lutheran Church, 482 U.S. at 328 (same).
10
In Big Oak Farms, Inc. v. United States, 105 Fed. Cl. 48 (2012), another judge of this
court dismissed a takings complaint under RCFC 12(b)(6), holding that “[w]here, as here,
-8-
reflected in flooding cases like Ridge Line, 346 F.3d at 1355-56, in which the Federal Circuit
employed a two-part test – focusing on causation and appropriation – to distinguish between a
takings and a tort.11 These multifaceted approaches, heavily imbued, as they are, with factual
considerations, strongly militate against the adoption of a bright-line rule that would require this
court to dismiss plaintiffs’ complaint – which avers that the invasion here was intended, the
flooding foreseeable, and the damages severe – simply because it cites only a single recent
flooding event. In the court’s view, plaintiffs should be given the opportunity to develop facts in
support of their claims via discovery.12
Accordingly, based on the foregoing, the court DENIES defendant’s motion to dismiss
the complaint under RCFC 12(b)(6). On or before September 6, 2013, the parties shall file a
preliminary status report which contains the information required by RCFC Appendix A,
including a proposed discovery plan for this case. The status report shall also propose a course
for dealing with class certification issues under RCFC 23.
IT IS SO ORDERED.
s/ Francis M. Allegra
Francis M. Allegra
Judge
plaintiff’s claim is based upon a single flood that has since receded, plaintiffs have not stated a
takings claim.” Id. at 56. The opinion, however, relied extensively upon the Federal Circuit’s
decision in Arkansas Game & Fish, see 105 Fed. Cl. at 55-56, and did not have the guidance
provided by the Supreme Court opinion reversing that decision. One must assume that with the
latter guidance a different decision would have been reached.
11
See also Cary, 552 F.3d at 1376-77; Moden v. United States, 404 F.3d 1335, 1342
(Fed. Cir. 2005); Tyler J. Sniff, “The Waters of Takings Law Should Be Muddy: Why
Prospectively Temporary Government-Induced Flooding Could Be a Per Se Taking and the Role
for Penn Central Balancing,” 23 Fed. Cir. B.J. 53, 63-64 (2011).
12
Indeed, the Federal Circuit has cautioned that, even in the context of summary
judgment, “[t]he fact-intensive nature of just compensation jurisprudence to date . . . argues
against precipitous grants of summary judgment.” Yuba Goldfields, Inc. v. United States, 723
F.2d 884, 887 (Fed. Cir. 1983); see also Chapman v. United States, 107 Fed. Cl. 47, 51 (2012).
-9-
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472 F.2d 121
Larry PETTENGILL et al., Appellants,v.PUTNAM COUNTY R-1 SCHOOL DISTRICT, UNIONVILLE, MISSOURI, etal., Appellees.
No. 72-1532.
United States Court of Appeals,Eighth Circuit.
Submitted Jan. 12, 1973.Decided Jan. 18, 1973.Rehearing Denied Feb. 12, 1973.
Frick & Mayberry, Kirksville, Mo., filed brief for appellants.
Lawrence M. Berkowitz, Kansas City, Mo., filed brief for appellees.
Before MATTHES, Chief Judge, BRIGHT, Circuit Judge, and TALBOT SMITH, District Judge.*
PER CURIAM.
1
The appellants, property owners and residents of the Putnam County R-1 Reorganized School District of Putnam County, Missouri, brought an action in Federal District Court in their own behalf and on behalf of all those similarly situated to set aside a school bond election held by the appellee-school district on October 19, 1971. Appellants contended that certain election irregularities deprived them of their right to a fundamentally fair election and of their right to have their votes undiluted by illegal votes cast in the election, and that these irregularities subject the property of appellants to a taking without due process of law. The district court dismissed the complaint for want of jurisdiction. This appeal followed. We affirm the action of the district court.
2
Appellants alleged the following facts in their complaint: That appellee-school board held an election on a proposed $1,100,000 school bond issue, with the bonds to be retired by the levy of a property tax; that 1,466 votes were cast in favor of the proposition, 726 being cast against; that the proposition was declared to have passed by a margin of five votes over the required two-thirds majority; that appellants believed that five electors personally voting and six electors casting absentee ballots were not qualified to vote because they did not satisfy the residency requirements prescribed by law; that two electors were not qualified to vote because they were not of lawful age when they applied for absentee ballots; that 116 electors cast absentee ballots which were void since there were irregularities in the application, delivery or execution of these ballots; that on November 5, 1971, appellees were informed of these irregularities and were requested to declare that the bond election had failed of passage or to hold a hearing on these irregularities; that these requests were denied.
3
Appellants attempt to posit the existence of federal jurisdiction on the theory that the board of education of the appellee-school district has diluted appellants' legal votes by counting illegally cast votes and that such (state) action amounts to a deprivation of appellants' civil rights. According to appellants, the complaint alleges facts actionable under the provisions of 42 U.S.C. Sec. 1983, with federal jurisdiction resting either upon 28 U.S.C. Sec. 1343, the jurisdictional counterpart to Sec. 1983, or upon 28 U.S.C. Sec. 1331, which authorizes federal jurisdiction for civil actions of a requisite amount arising under the Constitution, laws, or treaties of the United States.
4
We reject this theory. Appellants cite no cases, and we have found none, which authorize a federal court to be the arbiter of disputes over whether particular persons were or were not entitled to vote or over alleged irregularities in the transmission and handling of absentee voter ballots.
5
In Powell v. Power, 436 F.2d 84 (2d Cir. 1970), six voters in a congressional primary election sought the intervention of the federal court, alleging that state officials had permitted a number of individuals to cast ballots in the election, which individuals were not qualified to vote under state law. In affirming the district court's denial of relief sought under the Voting Rights Act of 1965 and the Civil Rights Act of 1871, 42 U.S.C. Sec. 1983, the Court said:
6
In the plaintiffs' view, [these] federal statutes comprehensively protect their ballots against dilution by illegal voting, whether or not the dilution was wilful or knowing. It is appropriate to note at the outset that the plaintiffs do not claim any discrimination because of race. Thus, they face a considerable burden of persuasion in asserting so sweeping and novel a conception, one apparently never before asserted, so far as reported cases reveal. Were we to embrace plaintiffs' theory, this court would henceforth be thrust into the details of virtually every election, tinkering with the state's election machinery, reviewing petitions, registration cards, vote tallies, and certificates of election for all manner of error and insufficiency under state and federal law. [Id. at 86.]
7
We here adopt and apply this rationale. In essence, the appellants' complaint asks the federal court to oversee the administrative details of a local election. We find no constitutional basis for doing so in the absence of aggravating factors such as denying the right of citizens to vote for reasons of race, see United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960), or fraudulent interference with a free election by stuffing of the ballot box, see United States v. Saylor, 322 U.S. 385, 64 S.Ct. 1101, 88 L.Ed. 1341 (1944), or other unlawful conduct which interferes with the individual's right to vote, see 42 U.S.C. Sec. 1985. No similar circumstance is alleged in the complaint in this case.
8
Appellants complain that the state courts of Missouri will not afford them a forum for their complaint. See Nichols v. Reorganized School District No. 1 of Laclede County, 364 S.W.2d 9 (Mo.1963). The lack of a state remedy to appellants does not alone operate to give federal jurisdiction over their cause. Missouri law does permit challenges to absentee ballots, which challenges may be presented to election officials for review. Mo.Rev.Stat. Sec. 112.080 (Supp. 1972), V.A.M.S.
9
Accordingly, we find no basis for federal intervention in this local election dispute and we affirm the judgment of dismissal by the district court.
*
Eastern District of Michigan, sitting by designation
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261 F.Supp. 616 (1966)
Curtis Edward MOUL, Jr. and
Priscilla Moul
v.
James Roddy PACE and
Joseph O. Trahan t/a Sani-Kan Company and
Sani-Kan Company, a corporation.
Civ. No. 16784.
United States District Court D. Maryland.
December 12, 1966.
*617 Jacob S. Levin, Langley Park, Md., and Andrew B. Ferrari, Arlington, Va., for plaintiffs.
John M. McInerney, Bethesda, Md., and John K. Barbour, Jr., Baltimore, Md., for defendants, Joseph O. Trahan, t/a Sani-Kan Company and Sani-Kan Company, a corp.
FRANK A. KAUFMAN, District Judge.
Plaintiffs filed suit in this Court on October 13, 1965, alleging that they suffered injuries on December 24, 1962, in an automobile accident caused by the negligence of defendant Pace, an agent, servant or employee of one or both of the other two defendants. Jurisdiction is based upon diversity of citizenship. Defendant Trahan filed an answer to the complaint. Defendant Sani-Kan Company's motion for summary judgment was granted pursuant to a stipulation of all parties.
The Return on Service of Writ, dated October 26, 1965, stated that defendant Trahan had reported that defendant Pace was deceased. On December 4, 1965, a Suggestion of the Death of defendant Pace was filed by counsel for plaintiffs. On July 16, 1966, plaintiffs filed a motion for substitution of Albert Ginsberg, Esquire, Administrator of the Estate of James Roddy Pace as party defendant in place of defendant Pace. In so doing, plaintiffs alleged the death of defendant Pace on February 12, 1965, and the issuance of letters of administration to, and the qualification of, the administrator on March 24, 1966, in Anne Arundel County, Maryland. On July 18, 1966, defendant Trahan filed a "Motion to Strike" plaintiffs' motion for substitution.
Federal Rule 25(a) (1) provides as follows:
"(a) Death.
(1) If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in Rule 5 and upon persons not parties in the manner provided in Rule 4 for the service of a summons, and may be served in any judicial district. Unless the motion for substitution is made not later than 90 days after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party."
In Chorney v. Callahan, 135 F.Supp. 35 (D.Mass.1955), defendant Callahan died on January 11, 1953. Suit was thereafter instituted on March 13, 1953. The Court held that Rule 25(a) (1) was not applicable as it "clearly contemplates substitution for a party, i. e., for someone who had been made a party to the action before *618 his death." Chorney v. Callahan, supra, 135 F.Supp. at 36.
This Court agrees that Rule 25 (a) (1) does not apply in this case because the defendant Pace was deceased at the time the suit was filed. Therefore, questions presented by the ninety day provision of Rule 25(a) (1) and possible enlargement of that period under Rule 6(b) (2) do not need to be decided in this proceeding.
The Court has considered the possibility that plaintiffs' motion for substitution might be treated as a motion to add a party by way of amendment pursuant to Federal Rule 15(c), the first paragraph of which provides:
"(c) Relation Back of Amendments: Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him." (Emphasis added).
For discussion of Rule 15(c) and its application to adding parties, see 3 MOORE, FEDERAL PRACTICE ¶ 15.08[5] (1964).
The "period provided by law for commencing the action" was three years. Burket v. Aldridge, 241 Md. 423, 216 A.2d 910 (1966), construing 5 MD.ANN. CODE art. 57, § 1 (1964 Replacement Vol.).
In Burket v. Aldridge, supra, plaintiff allegedly was injured in an automobile accident on September 11, 1961, due to the negligence of defendant Smith. Smith died on December 29, 1963. Suit was instituted in the Circuit Court for Frederick County on September 8, 1964. Judge Clapp, in the trial court, sustained the plea of limitations entered by Smith's administrator. The Court of Appeals of Maryland affirmed, holding, in an opinion by Judge Oppenheimer, that the action of plaintiff was barred by the three year limitations period of Section 1 of Article 57 and that the three year period was not extended because suit was brought within the six month period after the appointment of Smith's administrator pursuant to 8A MD.ANN. CODE art. 93, § 112 (1964 Replacement Vol.). That section provides that executors or administrators are liable for certain actions commenced within a period of six months after their qualification. The Court of Appeals of Maryland held in the Burket case that Section 112 does not extend or toll the three year period of limitations provided in Section 1 of Article 57, that "an action brought against a dead man is a nullity," and that "where an action * * * is brought against a dead man, the substitution of his personal representative after the expiration of the period of the Statute of Limitation does not relate back to the time of the filing of the original suit so as to prevent the Statute from being a bar to the litigation." Burket v. Aldridge, supra, 241 Md. at 430-431, 216 A.2d at 913-914.
The administrator, Mr. Ginsberg, the party who would be added in this case if plaintiff were permitted so to do under Rule 15(c), did not know and could not have known, in his capacity as administrator, of this action "within the period provided by law for commencing the action against him" (see Rule 15(c) quoted above), namely the three year period provided by Section 1 of Article 57. Therefore, plaintiffs' motion for substitution cannot be treated as a motion to amend under Rule 15(c).
For the foregoing reasons, plaintiffs' motion for substitution is denied. Defendant *619 Trahan's motion to strike is thereby rendered moot. The action in this case against the deceased party, James Roddy Pace, one of the defendants, is dismissed with costs.
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110 Ga. App. 369 (1964)
138 S.E.2d 600
ALLEN et al.
v.
ARROW CONTRACTING COMPANY.
40868.
Court of Appeals of Georgia.
Decided September 24, 1964.
*372 Zachary & Hunter, W. E. Zachary, for plaintiff in error.
Robert L. Fine, contra.
HALL, Judge.
The plaintiff brought suit seeking a general judgment and a special lien on the defendants' real estate for a sum allegedly due for work that it had completed on a contract to remodel a house by an addition to the rear, enclosing an existing porch, and making other changes and improvements specified in the contract in some detail and with reference to a drawing. The defendants assign error on the overruling of their demurrers to the petition. Held:
1. The petition was brought by Arrow Contracting Company, a corporation organized under the laws of the State of Georgia, having its principal domicile and place of business in the City of Atlanta, Fulton County, State of Georgia. The contract alleged in the petition names Arrow Contracting Company as the contractor and is executed by "Contractor: Arrow Contracting Company, by Jack A. Spielberg." The recorded claim of lien attached to the petition, upon which the prayer for a special lien is based, names as claimant "Jack A. Spielberg, trading as Arrow Contracting Company, Inc." and is executed "Jack A. Spielberg, t/a Arrow Contracting Company, Inc., By: Jack A. Spielberg."
The execution of the lien by Jack A. Spielberg, even though it is followed by "t/a Arrow Contracting Company, Inc.," did not bind the plaintiff corporation; the words "t/a Arrow Contracting Company, Inc." are merely descriptive of Jack A. Spielberg. They do not bind the plaintiff as a corporation and consequently have no binding effect on the defendants. Latham Plumbing &c. Co. v. Ledbetter Trucks, Inc., 96 Ga. App. 219, 221 (99 SE2d 545).
The allegation that the plaintiff corporation filed the lien, attached to the petition as an exhibit, in the office of the Clerk of the Superior Court of Fulton County is contradicted by the exhibit itself which shows that it was filed by an individual in a trade name. Allegations of a petition yield to contradictory facts shown in exhibits attached thereto. A petition based on an instrument executed in the name of a different person from the person named as a party in the petition is subject to general demurrer. Harris v. Ackerman, 88 Ga. App. 128 (76 SE2d 132); Vandiver v. Endicott, 215 Ga. 250, *370 251 (109 SE2d 775); Spielberg v. McEntire, 105 Ga. App. 545, 549 (125 SE2d 134). The present petition, however, prays for a general judgment based on the contract alleged, as well as for a special lien on the defendant's property based on the recorded claim of lien. The contradiction in the parties named in the petition and in the claim of lien does not affect the right of the plaintiff corporation to the general judgment prayed for. The defendants did not raise the question of the contradiction of parties between the petition and the claim of lien by a special demurrer, and this defect did not subject this petition to general demurrer.
A petition may be amended to correct a misnomer of a party, but may not be amended to add a new party. Parker v. Kilgo, 109 Ga. App. 698, 700 (137 SE2d 333). See Clark Bros. v. Wyche, 126 Ga. 24 (54 SE 909); Goldgar v. North Fulton Realty Co., 106 Ga. App. 459, 463 (127 SE2d 189).
2. This court held in Jones v. Ely, 95 Ga. App. 4 (96 SE2d 536), that a contract for labor and materials to be furnished on a house, upon which the work had not been completed, was too vague and indefinite to be the basis of recovery for the reason that the work contracted to be done could not be ascertained from the instrument. The Jones opinion pointed out additionally that the provision for payment for the work (similar to that in the contract alleged in the present case) was also indefinite and appeared to be contingent upon the completion of a loan involving a named bank that was not a party to the contract. The present petition alleges a contract that (even without the floor plan drawing that was alleged by amendment and attached as an exhibit) is extensively more detailed and specific as to the work contracted to be done, the parts of the premises to be improved, and the numbers, sizes and locations of various items, and in which payment does not appear contingent as in the Jones case. The contract alleged in the present case is not too vague and indefinite to be enforceable by the terms of the written instrument or by other explanatory evidence. Hanson v. Stern, 102 Ga. App. 341 (116 SE2d 237); Milton Frank Allen Publications v. Georgia Assn. of Petroleum Retailers, 219 Ga. 665, 672 (135 SE2d 330). Furthermore, the petition alleges that the plaintiff has performed its part of the contract according to its terms. Even if we assume arguendo that the alleged contract was unenforceable when entered into, the plaintiff's *371 performance would make it mutual and enforceable against the defendants. Jones v. Logan Co., 85 Ga. App. 256 (68 SE2d 718); Allen v. Confederate Pub. Co., 121 Ga. 773 (49 SE 782); Hardin v. Case, 134 Ga. 813, 814 (68 SE 648); Case Threshing Machine Co. v. Donalson, 10 Ga. App. 428, 431 (73 SE 618); Peeples v. Citizens Nat. Life Ins. Co., 11 Ga. App. 177 (74 SE 1034); Perry v. Kimberly Jewelry Co., 68 Ga. App. 568 (23 SE2d 471). Accord Jones v. Ely, 95 Ga. App. 4 (2), supra.
The trial court did not err in overruling the defendants' general demurrers (numbers 2 and 3).
3. The defendants contend that the drawings attached to the petition as exhibits, and the allegation that the drawings were made according to discussions between the parties at the time the contract was signed, as an illustration of the work to be done as set out in the contract and assented to by the defendants, are irrelevant and an attempt to vary the terms of the contract which provides, "This contract constitutes the entire understanding of the parties and no other understanding, collateral or otherwise, should be binding unless in writing signed by both parties."
This allegation and the drawings are not shown to be inconsistent with the terms of the written contract alleged. Since they appear as allegations to explain and amplify the written contract, they are not irrelevant for this purpose. The trial court did not err in overruling the demurrers directed at these allegations and exhibits (numbers 4 and 5).
4. Though the defendants did not raise the point by special demurrer, they argue that it was necessary that the petition allege that the plaintiff had taken no personal security for the work done and material furnished. The statement in Latham Plumbing &c. Co. v. Ledbetter Trucks, Inc., 96 Ga. App. 219, supra, that such an allegation "is necessary legal prerequisite" is in conflict with Chicago Building &c. Co. v. Talbotton Creamery &c. Co., 106 Ga. 84, 91 (31 SE 809), which holds to the contrary. Cf. Belmont Farm v. Dobbs Hdw. Co., 124 Ga. 827 (53 SE 312); Pippin v. Owens, 29 Ga. App. 789, 790 (116 SE 549). The case of Royal v. McPhail, 97 Ga. 457, 460 (25 SE 512). merely held that it was too late after judgment to raise this issue.
Judgment affirmed. Nichols, P. J., and Russell, J., concur.
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In the
United States Court of Appeals
For the Seventh Circuit
Nos. 14‐2913 & 15‐1294
UNITED STATES OF AMERICA,
Plaintiff‐Appellant,
Cross‐Appellee,
v.
CORNELIUS PAXTON, et al.,
Defendants‐Appellees,
and
MATTHEW WEBSTER,
Defendant‐Appellee,
Cross‐Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:13‐cr‐00103 — Robert W. Gettleman, Judge.
ARGUED DECEMBER 1, 2016 — DECIDED FEBRUARY 17, 2017
2 Nos. 14‐2913 & 15‐1294
Before POSNER, RIPPLE, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. The district court suppressed the
covertly‐recorded statements that the defendants made to one
another while being transported in a police van immediately
after their arrests, finding that the characteristics of the van
supported a reasonable expectation of privacy in the defen‐
dants’ conversations. The government has appealed that
ruling, and defendant Matthew Webster has cross‐appealed
the district court’s determination that his subjective expecta‐
tion of privacy ended when a co‐defendant warned others
within the van that they were likely being recorded. Building
upon our decision in United States v. Webster, 775 F.3d 897 (7th
Cir.), cert. denied, 135 S. Ct. 2368 (2015), we conclude that the
defendants lacked an objectively reasonable expectation of
privacy in the van, and we therefore reverse the district court’s
decision to suppress their statements. We dismiss Webster’s
cross‐appeal as moot.
I.
The five defendants in this case were arrested on the
evening of January 30, 2013, as they were preparing to execute
a planned robbery of what turned out to be a wholly fictitious
narcotics “stash house.” See, e.g., United States v. Lewis, 641 F.3d
773, 777‐78 (7th Cir. 2011). They had been recruited into the
scheme by an undercover agent who posed as a drug courier
seeking to rob the Mexican drug cartel for which he was
purportedly working. The sting was organized by a task force
comprised of Chicago police officers and agents of the federal
Bureau of Alcohol, Tobacco, Firearms & Explosives (“ATF”).
Nos. 14‐2913 & 15‐1294 3
Two of the defendants, Randy Walker and Randy Paxton,
were arrested outside of a Chicago restaurant. They were
placed into a police transport van that was clearly marked as
a Chicago Police Department vehicle. The vehicle was a Ford
E350 cargo van that had been modified for police use. The
van’s interior was divided into three compartments by two
solid steel walls with small double plexiglass viewing win‐
dows. The driver and a passenger would occupy the front
compartment, while the rear two compartments were reserved
for detainees. After Walker and Paxton were loaded into the
van, task force officers drove the van a short distance to a
warehouse, where the other three defendants—Cornelius
Paxton, Adonis Berry, and Matthew Webster—had convened
with the undercover agent for a final pre‐robbery meeting.
Those three defendants, having also been arrested, were placed
into the rear‐most compartment of the van along with Walker
and Randy Paxton.
Within the van, the defendants were seated on two benches
facing one another from opposite sides of the van—“shoulder
to shoulder, knee to knee,” as the district court later put it.
United States v. Paxton, No. 1:13‐cr‐00103, 2015 WL 493958, at *2
(N.D. Ill. Feb. 3, 2015) (“Paxton II”). All five of the defendants
had their wrists handcuffed behind their backs. The district
court would later determine that the defendants could expect
to be overheard conversing from outside of the compartment
only if they spoke in an above‐normal tone of voice.
None of the defendants was given Miranda warnings before
being placed into the van. Each defendant was, however, asked
by officers to state his name and certain other identifying
information before entering the van. Once all five defendants
4 Nos. 14‐2913 & 15‐1294
had been loaded, the van was driven to the Chicago field office
of the ATF.
During the drive, the defendants conversed quietly.
Unbeknownst to them, two recording devices (one audio, and
the other audiovisual) had been hidden in the rear compart‐
ment of the van so as to capture their conversation. Randy
Paxton made a number of inculpatory statements to Walker
while en route to the warehouse. When their three co‐defen‐
dants joined Paxton and Walker in the van, conversation
among all five commenced. Several minutes into their discus‐
sion, Berry remarked that the van was “probably bugged,”
Gov. Ex. Draft Tr. 8, and he then pointed out areas where he
thought there might be surveillance cameras. Nonetheless, the
defendants continued to converse and make incriminating
statements. The recording equipment captured these state‐
ments as well as the identifying information each of the
defendants was asked to provide prior to being seated in the
van. The defendants’ answers to the biographical questions
were used by the ATF to identify each speaker in the ensuing
conversations.
Upon arrival at the ATF field office, the defendants were
interviewed individually after being apprised of their rights
under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
The recording equipment was removed from the van and the
contents were downloaded and subsequently transcribed; the
equipment was then re‐installed in the van for purposes of the
subsequent trip to the Metropolitan Correctional Center, where
the defendants would be jailed. Although the recording
equipment could be configured in such a way as to broadcast
the detainees’ conversations in real time to the van driver and
Nos. 14‐2913 & 15‐1294 5
his passenger, the equipment was not set up in that manner
and was instead used only to record the detainees’ conversa‐
tions for use at a later date.
A grand jury charged the five defendants with (among
other offenses) conspiring to possess, with the intent to
distribute, 500 grams or more of cocaine, in violation of
21 U.S.C. § 846; conspiring to commit a robbery, in violation of
the Hobbs Act, 18 U.S.C. § 1951(a); and possession of a firearm
in furtherance of those crimes, in violation of 18 U.S.C.
§ 924(c)(1)(A). The section 846 charges were later dismissed
without prejudice on the government’s motion.
The defendants moved to suppress any recorded state‐
ments they made within the van while en route to the ware‐
house and ATF field office, and the district court granted that
motion in part following an evidentiary hearing. Following his
colleague’s decision in United States v. Williams, 15 F. Supp. 3d
821 (N.D. Ill. 2014) (Castillo, C. J.), Judge Gettleman found that
the defendants initially had both a subjective as well as an
objectively reasonable expectation of privacy in their conversa‐
tions within the rear compartment of the police van. United
States v. Paxton, No. 1:13‐cr‐00103, 2014 WL 3807965, at *1 (N.D.
Ill. July 31, 2014) (“Paxton I”). That expectation of privacy was
reinforced by testimony from a task force officer seated in the
front compartment that he could hear conversation occurring
in the rear compartment at a normal volume but that he did
not overhear any such conversation on the night that the
defendants were arrested and transported. Id. “It is obvious
that defendants took steps to conceal their conversation from
the officers driving the vehicle by lowering their voices, and
were under the impression, at least initially, that their discus‐
6 Nos. 14‐2913 & 15‐1294
sion was private.” Id. Any subjective expectation of privacy on
the part of the defendants ended, however, once defendant
Berry placed his co‐defendants on notice of the probability that
they were being monitored. Id., at *2. The court therefore
suppressed any statements that the defendants may have
uttered prior to Berry’s warning—as those statements were
uttered with an expectation of privacy and intercepted without
judicial authorization—but not after. Id. The court rejected the
defendants’ request to suppress, as fruit of the poisonous tree,
any statements they subsequently made when interviewed
(following Miranda warnings) at the ATF field office. The court
reasoned that neither the interviewing agents nor anyone else
had listened to the recording of the van conversations at that
point, so in that respect the interviews were not the tainted
product of the recording. Id.
The court denied the defendants’ subsequent motion to
reconsider its finding that their subjective expectation of
privacy ended with Berry’s warning. Paxton II, 2015 WL
493958. After inspecting a van identical to the one used to
transport the defendants, the court had no doubt that each of
the defendants in the rear compartment would have heard
Berry’s warning. Id., at *2. The inspection also confirmed the
court’s understanding that agents in the front compartment of
the van would have been unable to overhear a conversation
occurring in the rear compartment of the van so long as the
detainees were speaking quietly. Id.
II.
The government appeals the district court’s decision to
suppress any statements made by the defendants within the
Nos. 14‐2913 & 15‐1294 7
police van before Berry warned his comrades that the van was
likely bugged. In the government’s view, detainees can have
no reasonable expectation of conversational privacy within a
clearly‐marked police vehicle, regardless of the particular type
(and configuration) of vehicle in which they are being trans‐
ported. Webster, by contrast, challenges the district court’s
decision that his subjective expectation of privacy ended with
Berry’s warning about the probability of electronic surveil‐
lance.
The Fourth Amendment safeguards “[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures[.]” U.S.
Const. amend. IV. Subject to limited exceptions, “warrants are
the general rule” in judging the reasonableness of a search or
seizure. Katz v. United States, 389 U.S. 347, 362, 88 S. Ct. 507, 517
(1967) (Harlan, J., concurring). A search within the protection
of the Fourth Amendment occurs when the government
intrudes upon an individual’s legitimate expectation of privacy
in the object of the search. Id. at 352‐53, 88 S. Ct. at 512 (major‐
ity); id. at 360–61, 88 S. Ct. at 516 (Harlan, J., concurring); see
Kyllo v. United States, 533 U.S. 27, 33, 121 S. Ct. 2038, 2042–43
(2001); Minnesota v. Olson, 495 U.S. 91, 95–96, 110 S. Ct. 1684,
1687 (1990); Smith v. Maryland, 442 U.S. 735, 740–41, 99 S. Ct.
2577, 2580 (1979). The amendment’s protections extend to
government eavesdropping upon one’s conversations with
others, in circumstances where he has a reasonable expectation
that the conversation is not subject to interception. See Katz, 389
U.S. at 353, 88 S. Ct. at 512 (treating interception and recording
of telephone conversation in public telephone booth as a search
and seizure within the meaning of Fourth Amendment); id. at
8 Nos. 14‐2913 & 15‐1294
361, 88 S. Ct. at 516–17 (Harlan, J., concurring). In order to
establish that he has a protected privacy interest in an inter‐
cepted conversation, the individual must show first that he
manifested a subjective expectation of privacy in that conversa‐
tion, and second, that his subjective expectation is one that
society is prepared to recognize as reasonable. E.g., Smith, 442
U.S. at 740–41, 99 S. Ct. at 2580. If he makes these showings,
then the warrantless interception and recording of his conver‐
sation will normally be considered to be an unauthorized
search and as such unlawful, absent the applicability of an
exception that justifies the government’s failure to obtain a
warrant. See Katz, 389 U.S. at 354‐59, 88 S. Ct. at 513–15.
Paralleling the coverage of the Fourth Amendment in the
realm of electronic surveillance is Title III of the Omnibus
Crime Control and Safe Streets Act of 1968 (“Title III”),
18 U.S.C. § 2510, et seq., which generally prohibits (again, with
certain exceptions) the interception, disclosure, and use of
wire, oral, and electronic communications absent judicial
authorization or the consent of one of the parties to such
communication. The statute’s definition of protected oral
communications, see § 2510(2), is “intended to parallel the
‘reasonable expectation of privacy’ test created by the Supreme
Court in Katz v. United States,” In re John Doe Trader No. One,
894 F.2d 240, 242 (7th Cir. 1990), and courts therefore apply the
same legal framework to suppression motions under either
source of authority. See United States v. Larios, 593 F.3d 82, 92
(1st Cir. 2010); United States v. Clark, 22 F.3d 799, 801 (8th Cir.
1994); United States v. McKinnon, 985 F.2d 525, 527 (11th Cir.
1993).
Nos. 14‐2913 & 15‐1294 9
Our decision in this case turns on whether any expectation
of privacy that the defendants may have harbored in their
conversations within the police van was an objectively reason‐
able expectation. As we discuss below, we held in Webster that
detainees lack an objectively reasonable expectation of privacy
in conversations taking place in the back seat of a squad car,
775 F.3d at 903‐04, but our decision held open the question of
whether detainees might have a reasonable expectation of
privacy in a different type of police vehicle, id. at 904. We
address that question now, and answer it in the negative.
In the three‐plus decades preceding the district court’s
suppression decision in this case, federal and state courts had
concluded with apparent unanimity that a person has no
objectively reasonable expectation of privacy while seated in a
marked patrol car. See United States v. Dunbar, 553 F.3d 48, 57
(1st Cir. 2009); United States v. Turner, 209 F.3d 1198, 1200–01
(10th Cir. 2000); Clark, 22 F.3d at 801‐02; McKinnon, 985 F.2d at
527–28; United States v. Fridie, 442 F. App’x 839, 841 (4th Cir.
2011) (per curiam) (non‐precedential decision); United States v.
Carter, 117 F.3d 1418 (table), 1997 WL 336290 (5th Cir. June 5,
1997) (per curiam) (unpublished); United States v. Sallee, No. 91
CR 20006‐19, 1991 WL 352613, at *2 (N.D. Ill. Oct. 24, 1991)
(collecting state cases); State v. Torgrimson, 637 N.W.2d 345, 350
(Minn. Ct. App. 2002); State v. Ramirez, 535 N.W.2d 847, 850
(S.D. 1995) (collecting cases); State v. Smith, 641 So.2d 849, 852
(Fla. 1994); People v. Crowson, 660 P.2d 389, 392‐93 (Cal. 1983)
(plurality), overruled in part on other grounds by People v. Myers,
858 P.2d 301 (Cal. 1993). Those holdings have deemed it
immaterial whether the individual has been arrested, tempo‐
rarily detained, or simply invited to sit in the car while the
10 Nos. 14‐2913 & 15‐1294
police conduct an investigation. See, e.g., Turner, 209 F.3d at
1201 (“whether an individual is in custody does not materially
affect an expectation of privacy in a police car”) (following
McKinnon, 985 F.2d at 528 (“[w]e find no persuasive distinction
between pre‐arrest and post‐arrest situations in this case”)
(collecting cases)).
A number of these decisions are, as Chief Judge Castillo
pointed out in Williams, fairly cursory in their treatment of the
issues. 15 F. Supp. 3d at 828. From the cases that address the
subject in any detail, two basic points emerge. First, the patrol
car is an official, crime‐fighting vehicle that serves both as a
police officer’s workplace and also as a mobile jail. Clark, 22
F.3d at 801–02. Consequently, an individual seated in that car
would have no reason to expect privacy within the car. Id.
Second, the dashboard area of a patrol car, which is visible to
anyone sitting in the car, “bristl[es]” with electronic equipment
(including two‐way radios, for example) that places one on
notice of the possibility that his oral statements may be
intercepted. Turner, 209 F.3d at 1201.
Prior to Williams, only a few cases had expressly dealt with
police vehicles other than squad cars; and although they too
had found no reasonable expectation of privacy for conversa‐
tions occurring within such vehicles, they did not expressly
address how the unique compartmentalization of the vehicle’s
interior might affect privacy expectations. See United States v.
Mahon, No. CR 09‐712‐PHX‐DGC, 2010 WL 3954506, at *4
(D. Az. Sep. 29, 2010) (“Defendants clearly had no legal
expectation of privacy while handcuffed in the police van.”)
(citation omitted), j. aff’d, 620 F. App’x 571 (per curiam) (non‐
precedential decision) & 804 F.3d 946 (9th Cir. 2015), cert.
Nos. 14‐2913 & 15‐1294 11
denied, 136 S. Ct. 2510 (2016); United States v. Reese, No.
1:09 CR 00145, 2010 WL 2606280, at *5 (N.D. Ohio June 25,
2010) (relying on squad car cases to hold that “none of the
defendants could reasonably expect that their conversations
were private merely because they were alone in the van,
handcuffed and awaiting transport to the Cleveland Police
Department for questioning”); United States v. Ingram, No.
IP 04‐201‐CR‐1 H/F, et seq., 2005 WL 775930, at *1 n.1 (S.D. Ind.
Mar. 25, 2005) (Hamilton, J.) (noting court’s prior oral ruling
that defendants lacked reasonable expectation of privacy
within a police van used to transport them to jail), appeal
dismissed sub. nom. United States v. Douglas, 182 F. App’x 558
(7th Cir. 2006) (per curiam) (unpublished).
In his Williams decision, Chief Judge Castillo acknowledged
the general line of authority as to squad cars, but found the
layout of a police squadrol to be materially distinct from that
of a patrol car vis‐à‐vis the expectation of privacy. In contrast
to a typical patrol car, a squadrol (which is used both as an
ambulance and as a vehicle to transport detainees) has a
separate cab for the driver and his passenger, resulting in a
physical division of the driver’s compartment from the fully
enclosed rear section of the vehicle. 15 F. Supp. 3d at 829.
Within their own compartment, the detainees are not within
earshot of officers sitting in the cab. Id. Moreover, the rear
compartment does not “bristle” with electronics that are visible
to detainees. Id. Detainees in the rear compartment of a
squadrol thus have practical reasons to expect privacy that
detainees in the back seat of a patrol car lack. Id. And that is
true even if the squadrol is regarded as a mobile jail. The judge
could not imagine that the types of safety concerns that
12 Nos. 14‐2913 & 15‐1294
outweigh individual privacy interests in the jail setting
(controlling narcotics and other contraband, and preventing
escape) are present to the same degree in a squadrol. Id. at
829–30. Indeed, if safety concerns were the motivation for the
government’s decision to intercept detainee conversations,
then its agents would have activated the live‐monitoring
feature of their equipment. But they had not taken advantage
of that feature, which led Judge Castillo to conclude that the
government’s real purpose in intercepting the detainee’s
conversations was to capture their incriminating statements. Id.
at 830. Weighing the totality of the circumstances, he con‐
cluded that the detainees had a reasonable expectation of
privacy in the rear compartment of the squadrol and that the
government’s wish to capture any incriminating remarks was
not justified. Id.
The modified cargo van at issue in this case has a layout
that is distinct from both the typical patrol car and the
squadrol: it has three compartments separated by metal
dividing walls with small (and thick) plexiglass viewing
windows. But there is no dispute that in material respects, the
van is more like the squadrol than the patrol car. Detainees are
seated within a separate, fully enclosed compartment—in this
case, with another empty compartment between them and the
driver’s compartment. The detainees’ compartment did not
“bristle” with visible electronic equipment. And, per Judge
Gettleman’s findings, the prisoners would have subjectively
expected that if they were speaking quietly, they would not be
overheard by the driver and his passenger. Judge Gettleman
thus relied on Williams to conclude that the defendants had an
objectively reasonable expectation of privacy in the conversa‐
Nos. 14‐2913 & 15‐1294 13
tions they conducted within the rear compartment of the van.
Paxton I, 2014 WL 3807965, at *1.
It was not long after Chief Judge Castillo’s decision in
Williams and Judge Gettleman’s first decision in Paxton that we
held in Webster that an individual lacks an objectively reason‐
able expectation of privacy in conversations occurring within
a squad car. 775 F.3d at 903–04. We found the decisions of our
six sister circuits instructive on this point, noting, as they had,
that squad cars function both as a mobile office for a patrol
officer and as a temporary jail for detainees in transport. Id. at
904 (citing Clark, 22 F.3d at 801–02, and McKinnon, 985 F.2d at
537). At the same time, such vehicles visibly bristle with
electronics that place a detainee on notice of the possibility that
his statements might be recorded. Id. (citing Turner, 209 F.3d at
1201).
Given the nature of the vehicle and the visible
presence of electronics capable of transmitting any
internal conversations, the expectation that a conver‐
sation within the vehicle is private is not an expecta‐
tion that society would recognize to be reasonable.
We agree with those circuits, and hold that conver‐
sations in a squad car such as the one in this case are
not entitled to a reasonable expectation of privacy,
and therefore the recording of the conversation [in
this case] is not a violation of the Fourth Amend‐
ment.
Id. We added, however, “that this holding reflects the layout
and equipment of the squad car, and express no opinion as to
conversations that occur in other vehicles.” Id. We cited and
14 Nos. 14‐2913 & 15‐1294
distinguished Williams, noting the distinctive layout of a police
squadrol that Chief Judge Castillo had relied upon to conclude
that detainees did have a reasonable expectation of privacy in
conversations occurring in that type of vehicle. Id. at 904.
This case requires us to confront the issue we left open in
Webster and to decide whether the unique features of police
vans and squadrols support an expectation of privacy that
society is prepared to recognize as reasonable. Although we
agree with Judges Castillo and Gettleman that distinctions can
be drawn between a squad car on the one hand and a police
squadrol or van on the other, we believe those distinctions
matter more as to a detainee’s subjective expectation of privacy
than they do to the objective reasonableness of that expectation
of privacy. The enclosed nature of the detainee compartment
in a van like the one used to transport the defendants in this
case may cause a detainee to think that he cannot be overheard.
See R. 156‐1 (declaration of Matthew Webster) ¶ 3 (“I believed
that the conversation was private because it was in a separate,
enclosed area of the paddy wagon and not in a squad car, and
because we had the conversation when no agents or officers
were present and the van door was shut … .”). But given the
inescapable fact that a detainee has been taken into custody
and placed into a marked police vehicle for transport to a law
enforcement facility, we are not convinced that any expectation
of privacy on the part of the detainee in the van is one that
society is prepared to recognize as reasonable.
At the outset, we emphasize that the police van was
functioning (and was designed to function) as a mobile jail cell.
See Clark, 22 F.3d at 801–02; McKinnon, 985 F.2d at 527. The
defendants had been arrested and placed in handcuffs, and
Nos. 14‐2913 & 15‐1294 15
they were being transported in the van to the ATF field office
for processing and questioning, and hence to incarceration. The
arrest itself resulted in a diminished expectation of privacy on
the part of the defendants, see McKinnon, 985 F.2d at 527, and
as detainees they could not reasonably have perceived the
(marked) police van as a sanctuary for private conversation,
Clark, 22 F.3d at 802; United States v. Colon, 59 F. Supp. 3d 462,
466 (D. Conn. 2014). See Hudson v. Palmer, 468 U.S. 517, 525–28,
104 S. Ct. 3194, 3200–01 (1984) (prisoner has no reasonable
expectation of privacy in prison cell), overruled in part on other
grounds by Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662
(1986); Lanza v. New York, 370 U.S. 139, 143, 82 S. Ct. 1218, 1221
(1962) (in jail setting, “official surveillance has traditionally
been the order of the day”); United States v. Madoch, 149 F.3d
596, 602 (7th Cir. 1998) (marital communications privilege does
not apply vis‐à‐vis recorded telephone conversations between
defendant and her incarcerated spouse, as privilege applies
only to communications made in confidence, and there is no
expectation of privacy in jail telephone calls).
The fact that the interior of the van was divided by walls
into separate, fully enclosed compartments in no way altered
the essential nature of the vehicle. The metal dividing walls,
with their thick plexiglass windows, were present to serve a
security function rather than to foster an atmosphere of
solitude and privacy. The defendants’ surroundings may have
lulled them into assuming, mistakenly, that their discussions
could not be overheard; but in that respect this case is no
different from those in which individuals have been left alone
in the back seat of a patrol car, thinking no one can overhear
what they say. See Clark, 22 F.3d at 800‐01; McKinnon, 985 F.2d
16 Nos. 14‐2913 & 15‐1294
at 526. Regardless of the particular layout, a police vehicle that
is readily identifiable by its markings as such, and which is
being used to transport detainees in restraints, does not
support an objectively reasonable expectation of conversational
privacy.
The rear compartment of the van was not “bristling” with
electronics, it is true. Cf. Turner, 209 F.3d at 1201. But even
when police radios, scanners, computer terminals and other
equipment are visible to a detainee, it is unlikely that any of
those items are actually the source of electronic surveillance;
the recording devices themselves, if present, are likely to be
nearly if not wholly invisible to the untrained eye. See Colon,
59 F. Supp. 3d at 466–67. Such electronic equipment that is
visible to a detainee may cause him to think about the prospect
of covert surveillance. But given the increasing presence of
unobtrusive, if not invisible, audio and video surveillance in all
manner of places, public and private,1 one wonders how much
of a reminder a detainee needs that he might be under
surveillance—particularly in a marked police vehicle—or that
this might be so regardless of whether he can see any obvious
signs of surveillance devices.
More to the point is the likelihood that we are fast ap‐
proaching a day when police interactions with civilians,
including detainees, will be recorded from beginning to end,
1
See, e.g., David Alan Sklansky, Too Much Information: How Not to Think
About Privacy and the Fourth Amendment, 102 Cal. L. Rev. 1069, 1085–87
(2014) (discussing extent of electronic surveillance that individuals face in
various settings); Kevin Werbach, Sensors and Sensibilities, 28 Cardozo
L. Rev. 2321, 2323–38 (2007) (same).
Nos. 14‐2913 & 15‐1294 17
and for a variety of important ends. Police surveillance
equipment (including both dashboard cameras and body
cameras) has become both cheaper and more effective at a time
when the public interest in police conduct, by virtue of certain
abuses exposed by citizen cell‐phone cameras in addition to
police surveillance equipment, has skyrocketed. See, e.g., Iesha
S. Nunes, Note, “Hands Up, Don’t Shoot”: Police Misconduct and
the Need for Body Cameras, 67 Fla. L. Rev. 1811 (2015).2 Govern‐
ment, members of the public, and detainees share an interest
in monitoring the handling of detainees in order to ensure that
they are being treated appropriately. Cf. Am. Civil Liberties
Union of Ill. v. Alvarez, 679 F.3d 583, 605–07 (7th Cir. 2012)
(finding no privacy interest supporting use of state eavesdrop‐
ping statute to criminalize third‐party audiovisual recording
of police officers performing their duties—including engaging
citizens in non‐confidential conversations—in public places).
Police officers and other law enforcement agents have a
parallel interest in both the appropriate treatment of detainees
(to foster public confidence in law enforcement and to rebut
false allegations of misconduct) and identifying problem
officers and practices where they exist. Officers also have a
significant interest in security that warrants the monitoring of
detainees in their custody, to ensure that detainees are not
harming one another or attempting escape, or that a detainee
2
Events of the last several years in particular may have focused the
public’s attention on police practices resulting in injuries to detainees and
other civilians, but the public interest in such police actions substantially
predated the events at issue in this case. See Nunes, “Hands Up, Don’t
Shoot,” 67 Fla. L. Rev. at 1815‐19 (summarizing incidents over past 25
years).
18 Nos. 14‐2913 & 15‐1294
has not fallen ill, for example. See, e.g., Virginia v. Moore,
553 U.S. 164, 177, 128 S. Ct. 1598, 1607–08 (2008) (describing
safety rationale for permitting police searches incident to
arrest); Florence v. Bd. of Chosen Freeholders of Cnty. of Burlington,
566 U.S. 318, 330–34, 132 S. Ct. 1510, 1518‐20 (2012) (noting
safety and health interests that justify intrusive searches of
detainees upon admission to jail).3 The government stresses
this latter interest in its briefs. We agree with the defendants
that it is somewhat ironic for the government to invoke this
interest, given that it did not use its surveillance equipment to
monitor them in real time during their transport to the ATF
office (which would have enabled agents to detect and address
any safety problems as they arose) and instead only recorded
their conversations for later use. But the material point, in
terms of the defendants’ expectation of privacy, is that the
government has legitimate reasons, wholly consistent with the
public interest, for monitoring individuals it has taken into its
custody and placed into a transport vehicle. Regardless of the
agents’ actual motivations for monitoring the defendants
during transport, these legitimate interests reinforce our
conclusion that society is not prepared to recognize as reason‐
3
The Williams decision posits that the safety concerns of officers transport‐
ing detainees are not comparable to those warranting intrusion upon an
inmate’s privacy in the prison setting. 15 F. Supp. 3d at 829–30. Certainly
there are differences between the two settings, but we think that the
interests warranting close monitoring of detainees are no less compelling
in the transportation context than they are in the jail or prison setting. Two
officers transporting multiple detainees on public roads must deal with
multiple risks and multiple demands on their attention, rendering both
themselves and detainees more vulnerable to harm than they would be in
a secure location with multiple staff members to assist them.
Nos. 14‐2913 & 15‐1294 19
able whatever subjective expectations of privacy the defen‐
dants may have harbored in their conversations within the van.
See Illinois v. Lafayette, 462 U.S. 640, 646–47, 103 S. Ct. 2605,
2609–10 (1983) (conducting inventory search of arrested
person’s belongings is reasonable regardless of particular
officer’s subjective motivations for search).
In sum, because the defendants lacked an objectively
reasonable expectation of privacy when placed into the marked
police van, the interception and recording of their conversa‐
tions did not constitute a search for purposes of their Fourth
Amendment rights or an unauthorized interception for
purposes of Title III. Our conclusion on this score makes it
unnecessary for us to reach the question of whether and when
the defendants’ subjective expectation of privacy within the
van terminated, and renders Webster’s cross‐appeal moot.
One point remains for us to address for the sake of com‐
pleteness, and that is whether there was any problem posed by
the identification questions that agents asked of the defendants
as they entered the van, the answers to which were later used
to identify the speakers in the recorded conversations that took
place within. Because these questions were posed by agents
before the defendants were left alone in the rear compartment
of the van, the defendants cannot have had any reasonable
privacy expectation in their answers. See Katz, 389 U.S. at 361,
88 S. Ct. at 516 (Harlan, J., concurring) (statements that
individual “exposes to the ‘plain view’ of outsiders are not
‘protected’ because no intention to keep them to himself has
been exhibited”). Nor did they have any cognizable privacy
interest in their voices. United States v. Dionisio, 410 U.S. 1,
14–15, 93 S. Ct. 764, 771–72 (1973); United States v. Ceballos, 385
20 Nos. 14‐2913 & 15‐1294
F.3d 1120, 1123 (7th Cir. 2004). Although the defendants had
not yet been given their Miranda warnings when they were
asked these biographical questions, we do not think there was
any Fifth Amendment violation, given that the sorts of ques‐
tions posed (soliciting, e.g., their names, birth dates and/or
ages, and places of residence)—the same sorts of questions that
would be posed in booking any arrested individual—are not
the sort of questions that one would expect to yield incriminat‐
ing information. See United States v. Edwards, 885 F.2d 377,
385–86 (7th Cir. 1989); see also United States v. Westbrook, 125
F.3d 996, 1003 (7th Cir. 1997); United States v. Kane, 726 F.2d
344, 349 (7th Cir. 1984).
III.
Having concluded that the defendants lacked an objectively
reasonable expectation of privacy within the police van, we
REVERSE the district court’s decision to partially suppress the
covertly recorded statements that the defendants made while
conversing in the van. We DISMISS defendant Webster’s cross‐
appeal as moot.
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77 So.2d 24 (1954)
226 La. 739
Jack C. KONEN
v.
NEW ORLEANS POLICE DEPARTMENT.
No. 41846.
Supreme Court of Louisiana.
November 8, 1954.
Rehearing Denied December 13, 1954.
*25 Michael E. Culligan, Jr., New Orleans, for plaintiff-appellant.
Henry B. Curtis, City Atty., Beuker F. Amann, Asst. City Atty., New Orleans, for defendant-appellee.
FOURNET, Chief Justice.
The plaintiff, availing himself of the provisions of Article 14, Section 15 of the Louisiana Constitution of 1921, as amended[1] and the Rules of this Court,[2] appeals from the Civil Service Commission's ruling on his appeal to that body from the action of the Superintendent of Police in dismissing him from the New Orleans Police Department for the assigned reason that an arrest made by him was found to have been "made out of personal prejudice and without proper cause."
The appellant's dismissal was based upon the findings of an investigation of the arrest by appellant, then a member of the New Orleans Department of Police, Traffic Division, of Bernhard C. Dahlen, Major in the Enforcement Division, Louisiana Wild Life and Fisheries Commission, shortly after midnight on the morning of Saturday, September 26, 1953. Dahlen was booked on a charge of violating, LSA-R.S. 14:98 and 14:99 (operating a vehicle while intoxicated, and reckless operation of a vehicle, respectively), was confined in the Fifth District Police Station until about 6:30 a. m., when he was released on bail through the efforts of a friend.[3]
The investigation was prompted by a complaint of false arrest by Dahlen. It appears that on the Monday morning following the incident, two men who knew Acting Superintendent of Police Milton L. Durel took Dahlen to Durel's office and introduced the two; Dahlen then told Durel of his arrest, mentioned that the appellant held a special commission in the Wild Life and Fisheries Commission and was friendly with two of Dahlen's fellow employees who were his opponents in a factional split within the department, and expressed the belief that those persons had prompted Officer Konen to put him in jail to get even with him, or to get him out of the way, since such an arrest would mean his immediate dismissal. He also stated he had witnesses who could prove he was sober at the time.
*26 Superintendent Durel directed Detective Fallon, investigating officer for the Traffic Division, to make an investigation, and this was begun on the same day with the assistance of Acting Supervisor of Traffic Claiborne Trainor and Officer Milazo, also of the Traffic Division. Those who made statements were interviewed separately and individually, not in the presence of the appellant; the latter was also called by Fallon for questioning. Information was gathered by means of interrogation, and from statements made by the various people which were reduced to writing and individually signed. On the basis of this information a report was compiled showing that, according to these statements, on the night in question Dahlen, accompanied by Peter Rau, a ranger in the Wild Life and Fisheries Commission and one of Dahlen's subordinates, attended a meeting of the Southern Deer Hunters' Association at a tavern on the old Jefferson Highway, where Dahlen (admittedly) had three beers; at approximately 10:30 p. m. Dahlen and Rau drove to the Yacht Club pen at West End to check the moorings of a boat docked there; that appellant, then off duty, was also at West End, and left there in his personal car at approximately the same time as Dahlen and Rau; that Rau, having picked up his own automobile, followed Dahlen back to town via DeSaix Boulevard and left him shortly after midnight on Gentilly Boulevard at the intersection of Franklin Avenue, Dahlen continuing out Gentilly Boulevard; and that appellant, who claims to have been following and checking the Dahlen car since first observing it on DeSaix weaving from side to side of the street, stopped Dahlen at the Peoples Avenue underpass on Gentilly Boulevard and placed him under arrest, the time then being 12:15 a. m. The report, signed by Captain Trainor, concurred in by Officer Milazo and Detective Fallon, and addressed to Superintendent Durel, concluded "the preponderance of evidence shows that in reality Konen actually followed Dahlen from West End, all the way in, and knew of Rau's presence behind the Dahlen car, which accounts for the long check for drunk driving."
Following his dismissal (based on the above report) Konen appealed to the Civil Service Commission; and after the hearing that Commission, by a divided vote, concluded: (1) "Appellant has not discharged the burden of proof imposed upon him by Article XIV, Section 15, Subsection (N) (1) of the Constitution of Louisiana;"[4] (2) "Although the investigation conducted by the Police Department left much to be desired, nevertheless the record contains enough substantial evidence to justify the action taken by the Superintendent in dismissing Konen;" and (3) "The Superintendent did not act arbitrarily, capriciously, or discriminatorily in dismissing Konen." A dissenting opinion, filed by one Commissioner, expressed the view that "the evidence adduced was entirely too conflicting and confusing to support the reasons assigned by the discharging authority for the dismissal."
The basis for the majority ruling was the following Findings of Fact: "(1) The testimony of Konen concerning his activities on the night in question is uncorroborated and appears inconsistent on its face, and is accordingly discredited for the reason, among others, that he failed to produce as a witness, his friend, Mr. House, to corroborate his testimony, although the said Mr. House was apparently available at all times as a witness; (2) Konen's testimony in several important particulars is flatly contradicted by other witnesses and by admitted facts; (3) In view of the fact that Konen's charge that Dahlen was under the influence of liquor is unsupported by any testimony other than Konen's own statement, the conclusion by the Board investigating the matter for the Police Department that the arrest in question was made for unworthy motives cannot be said to be without substance or foundation."
The appellant contends that (1) the restriction of his appeal in this Court to questions *27 of law is a denial of due process and the equal protection of the laws, in violation of the Fourteenth Amendment of the U. S. Constitution and Article 1, Sections 2 and 6 of the Constitution of Louisiana, in that civil service workers are thus deprived of access to the courts for review of facts surrounding their dismissal; (2) the Commission's refusal to grant a new trial or a new hearing was an error of law, in that plaintiff's timely motion for a rehearing was not acted upon until after the expiration of thirty days from rendition of the adverse judgment, and after the commission had divested itself of jurisdiction of the case by granting plaintiff's appeal; (3) there is no evidence whatsoever in the record to support the charge that the arrest was made because of personal prejudice and without proper cause, and hence a question of law is presented; and (4) the Commission made findings of fact unrelated to the charge under which plaintiff was dismissed, which constitutes error of law.
Counsel has cited no authority supporting his first above contention that appellant has been unconstitutionally deprived of his property rights, as indeed he cannot, for it is a rule of law universally obtaining that "In the absence of specific provision to the contrary, the power of removal from office is incident to the power of appointment." Keim v. United States, 177 U.S. 290, 293, 20 S.Ct. 574, 575, 44 L.Ed. 774, 776. See, also, 37 Am.Jur., Verbo Municipal Corporations, Sec. 240, p. 869; 62 C.J.S., Municipal Corporations, §§ 734, 735, pp. 1508, 1509. And, as pointed out in the case of Ricks v. Department of State Civil Service, 200 La. 341, 8 So.2d 49, "The privilege of holding public office is not guaranteed by the Constitution as an inalienable right. On the contrary, the privilege is conferred only upon such terms and conditions, as the people, speaking through their chosen representatives, might determine." 200 La. at page 363, 8 So.2d at page 56. While it is true that under our civil service system now in force, persons who have acquired civil service status are protected from discrimination and/or disciplinary action which is arbitrary or is based on political or religious reasons[5] the same provision of the Constitution authorizes dismissal "for cause,"[6] and sets up a Commission to which application may be made when an employee is aggrievedsaid commission being vested with "the exclusive right to hear and decide all appeals and the legality of all removal and disciplinary cases."[7] The right of appeal to this Court is restricted to questions of law alone,[8] but is not for that reason unconstitutional where the prescribed procedure has been followed. Hearings of this kind are usually final, and the Court will not interfere with the bona fide judgment of the Commission. State ex rel. Bourgeois v. Board of Sup'rs of La. State University, 205 La. 177, 17 So.2d 25; State ex rel. Rathe v. Jefferson Parish School Board, on Rehearing, 206 La. 317, at pages 362-363, 19 So.2d 153.
We find no substance in appellant's second contention; by filing with the Commission a motion for appeal before insisting that his motion for a new trial or rehearing be passed upon, he waived his motion for a rehearing. Of necessity the Commission divested itself of jurisdiction upon granting the order for appeal.
In support of his third argument, appellant relies on the well known principle of law obtaining in criminal cases that while ordinarily this Court is without appellate jurisdiction of the facts, where there is no evidence whatsoever to support the verdict of guilty a question of law arises which this Court may decide after examination of the record. See State v. McDonell, 208 La. 602, 23 So.2d 230; State v. *28 Asher, 217 La. 735, 47 So.2d 477; State v. Brown, 224 La. 480, 70 So.2d 96; State v. Roberts, 224 La. 491, 70 So.2d 100. In a case such as this, however, "* * * as a general rule, in the absence of arbitrary action, where the proceeding for the removal or discharge of a civil service employee has been conducted in compliance with civil service laws, the decision of the civil service commission or other authority authorized to conduct the hearing or to consider the employee's explanation is not subject to review by the court. * * * the reviewing court will ordinarily inquire only whether the officer, board, or commission had jurisdiction, acted within the prescribed rules, and followed the form of proceedings legally applicable in such cases; and the court will not disturb the order or decision on its merits, or interfere with the exercise of the discretion vested in the officer, board, or commission, unless the action of the board or commission was arbitrary. * * * where the decision is based on substantial evidence, the court may not consider the weight or sufficiency of the evidence. * * * the burden of proving arbitrary action in the discharge of the employee is on the employee." 62 C.J.S., Municipal Corporations, § 740c(1), pp. 1523-1524; see, also, Pettit v. Reitzell, 202 La. 12, 11 So.2d 13.
A mere perusal of the record readily brings out the fact, as pointed out in the dissenting opinion of the Commission's ruling, that the testimony is conflicting and confusing; and, as observed in the majority view, "The investigation by the Police Department left much to be desired." However, it is not the province of this Court to consider the weight or sufficiency of the evidence, our appellate jurisdiction being limited to questions of law alone.
We think the conclusion just reached disposes of appellant's last complaint.
For the reasons assigned, the ruling of the Commission is affirmed.
PONDER, J., absent.
NOTES
[1] Section 15(O) (1): "There is vested in the State Civil Service Commission and in the appropriate Civil Service Commissions for the several cities respectively the exclusive right to hear and decide all appeals and the legality of all removal and disciplinary cases. The decision of the appropriate Civil Service Commission shall be final on the facts, but an appeal shall be granted to the Supreme Court of Louisiana on any question of law if application to the Commission is made within thirty (30) days after the Commission's decision becomes final. The Supreme Court shall promulgate rules of procedure to be followed in the taking and lodging of such appeals." (Emphasis supplied.)
[2] Rule XXII, Revised Rules of the Supreme Court of Louisiana, effective January 1, 1952, limiting the appeal to a review of questions of law.
[3] The charges against him were subsequently nolle prossed.
[4] "* * * (a) The burden of proof on appeal, as to the facts, shall be on the employee."
[5] La.Const. of 1921, Art. 14, Secs. 15(A) (1) and 15(N) (1).
[6] La.Const. of 1921, Art. 14, Secs. 15(A) (1) and 15(N) (1).
[7] La.Const. of 1921, Art. 14, Secs. 15(C) and (D); Sec. 15(O) (1).
[8] See Note 1, supra.
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United States Court of Appeals
For the Eighth Circuit
___________________________
No. 18-2352
___________________________
Maria C. Childress, An Individual, on behalf of Herself and Others Similarly
Situated, also known as Tina Childress; Association of Late Deafened Adults,
(ALDA), an Illinois Corporation
lllllllllllllllllllllPlaintiffs - Appellees
Mary Stodden, An Individual, on behalf of Herself and Others Similarly Situated
lllllllllllllllllllllPetitioner - Appellee
Hearing Loss Association of America, Greater St. Louis Chapter, (HLAA-StL), an
unincorporated affiliate of the Hearing Loss of America, A Maryland Corporation
lllllllllllllllllllllPlaintiff - Appellee
v.
Fox Associates, LLC, doing business as Fabulous Fox Theatre
lllllllllllllllllllllDefendant - Appellant
___________________________
No. 18-2577
___________________________
Maria C. Childress, An Individual, on behalf of Herself and Others Similarly
Situated, also known as Tina Childress; Association of Late Deafened Adults,
(ALDA), an Illinois Corporation
lllllllllllllllllllllPlaintiffs - Appellees
Mary Stodden, Individual, on behalf of Herself and Others Similarly Situated
lllllllllllllllllllllPetitioner - Appellee
Hearing Loss Association of America, Greater St. Louis Chapter, (HLAA-StL), an
unincorporated affiliate of the Hearing Loss of America, A Maryland Corporation
lllllllllllllllllllllPlaintiff - Appellee
v.
Fox Associates, LLC, doing business as Fabulous Fox Theatre
lllllllllllllllllllllDefendant - Appellant
____________
Appeals from United States District Court
for the Eastern District of Missouri - St. Louis
____________
Submitted: April 17, 2019
Filed: August 7, 2019
____________
Before SHEPHERD, MELLOY, and GRASZ, Circuit Judges.
____________
SHEPHERD, Circuit Judge.
Fox Associates, LLC, doing business as the Fabulous Fox Theater, appeals the
district court’s1 adverse grant of summary judgment and award of attorney’s fees,
expenses, and costs on an Americans with Disabilities Act claim brought by Maria
1
The Honorable Catherine D. Perry, United States District Judge for the Eastern
District of Missouri.
-2-
Childress and Mary Stodden, two individuals with hearing impairments, as well as
two organizations that serve individuals with hearing impairments. Having
jurisdiction under 28 U.S.C. § 1291, we affirm.
I.
Fox Associates runs the Fabulous Fox Theater (the Fox), a 4,500-seat live
theater in St. Louis, Missouri. The Fox does not develop or produce its own shows;
rather, it provides a venue for traveling Broadway shows to perform. These traveling
shows do not rehearse at the Fox for any length of time before performing. They
simply arrive at the venue, set up their sets and equipment pursuant to their needs,
and conduct multiple performances of the same production.
In April 2016, Maria Childress, a late-deafened adult, contacted the Fox and
requested captioning for a performance of the musical Rent, scheduled for May 2017.
Childress, while fluent in American Sign Language (ASL), prefers captioned shows
to ASL-interpreted shows so that she can experience the writers’ original dialogue
and lyrics rather than an ASL interpreter’s version. The Fox told Childress that it did
not offer captioning and had no plans to do so in the future, but that Childress was
welcome to attend a scheduled ASL-interpreted performance of the show.
Childress and the Association of Late-Deafened Adults (ALDA) filed suit
against Fox Associates under Title III of the Americans with Disabilities Act (ADA),
42 U.S.C. § 12182, in June 2016.2 She sought injunctive and declaratory relief,
including mandated captions at all performances for which the Fox received a
captioning request two weeks in advance, publicity that captions were available along
with a way to request them, and sale of tickets to deaf and hard-of-hearing patrons by
2
Plaintiffs Mary Stodden and the Hearing Loss Association of America
(HLAA) joined the lawsuit in July 2017.
-3-
non-telephonic means. After Childress sued, the Fox offered to amend its policies
and to offer a single prescheduled captioned performance of each Broadway
production as long as a theater patron requested captions for a performance of that
production two weeks in advance. To that end, the Fox provided a single scheduled
captioned performance—a Saturday matinee—for each of six separate productions
from May 2017 to January 2018. The Fox also began publicizing the availability of
these performances and provided a means to request captioning and purchase tickets
through its website.
Childress was unable to attend the prescheduled captioned performance of
School of Rock in January 2018, so the Fox provided a second captioned performance
a week earlier. It notified Childress, however, that this second captioned performance
was an exception to its policy and that future requests for additional captioned
performances would not always be granted.3 When Michele Westmaas, a season
ticketholder and member of ALDA, requested that the Fox provide captioning at the
remaining 2018 performance for which she had tickets, the Fox instead exchanged
her tickets for tickets to the prescheduled captioned performance.
While Childress’s initial request asked the Fox to provide open captioning, the
Fox chose to provide closed captioning.4 It therefore purchased six electronic tablets
that allow theater patrons to view captions during a performance. The tablets can be
used from any seat in the theater. The Fox also offers device holders for these tablets
so that patrons can view captions hands-free, but these holders can only be affixed to
3
This hedging by the Fox blunts the force of the dissent’s contention that, since
the original compromise was reached, the Fox has not denied the plaintiffs captioning
at any requested performance.
4
Closed captioning is generally provided on handheld devices and is visible
only to the patron who requests the captioning, while open captioning is projected on
a surface that is visible to an entire theater or section of the theater.
-4-
wheelchair-accessible seating due to fire hazards. Captions are generated and appear
in real time so as to exactly duplicate what occurs onstage, including dialogue, song
lyrics, and sound effects. Because every live performance is slightly different, a live,
in-person court reporter must be present to transcribe captions for each performance.
Following the Fox’s implementation of its single-captioned-performance
policy, both parties moved for summary judgment. The plaintiffs argued that,
because the ADA requires equal service, the Fox was required to offer captioning
when requested, subject only to the ADA’s “undue burden” affirmative defense.
Because Fox Associates refused to provide financial information during discovery,
stating that such information was irrelevant, and because the undue burden defense
requires consideration of a defendant’s financial state, the plaintiffs contended that
Fox Associates had waived the defense. Fox Associates argued that requiring
captioning whenever it was requested was not a reasonable modification to the Fox’s
policies, practices, and procedures and that, because it provided captioning whenever
the plaintiffs requested it, their claim for injunctive relief was moot. It further argued
that it was not yet raising an undue burden argument and that this fact, alone,
prevented a grant of summary judgment against it.
The district court found that the plaintiffs brought suit under the ADA’s
auxiliary aids and services requirements, see 42 U.S.C. § 12182(b)(2)(A)(iii), rather
than the less-specific section addressing modification to “policies, practices, and
procedures,” see 42 U.S.C. § 12182(b)(2)(A)(ii). It further found that failing to offer
captioning at any performance where captions were requested “results in deaf persons
being excluded, denied services, or otherwise treated differently than other
individuals merely because of the absence of [an auxiliary] aid. This failure violates
42 U.S.C. § 12182(b)(2)(A)(iii).” Childress v. Fox Assocs., LLC, No. 4:16 CV 931
CDP, 2018 WL 1858157, at *4 (E.D. Mo. Apr. 18, 2018). Fox Associates presented
no argument regarding the undue burden defense and the district court granted
summary judgment for the plaintiffs. It awarded them injunctive relief and, as
-5-
relevant to this appeal, required the Fox to provide captioning whenever it received
a request two weeks in advance.
Following the grant of summary judgment in their favor, the plaintiffs moved
for an award of attorney’s fees, expenses, and costs under 42 U.S.C. § 12205. The
district court granted the motion and calculated reasonable attorney’s fees based on
the lodestar method. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). It reduced
the requested amount of attorney’s fees, however, based on its findings that the
plaintiffs’ attorney billed for clerical or secretarial work and expended time on
matters irrelevant to the case as filed. The district court therefore granted the
plaintiffs $97,920 in attorney’s fees rather than their requested $100,845.
Fox Associates now appeals, arguing that it provides deaf and hard-of-hearing
individuals with meaningful access to its benefits and it should be allowed flexibility
to consolidate multiple captioning requests into one performance because providing
captions is expensive. Fox Associates further challenges the award of attorney’s fees,
arguing that the district court used an inflated hourly rate to calculate those fees,
allowed the plaintiffs’ counsel to bill for tasks he should not have included, and failed
to reduce the fee award to account for the plaintiffs’ partial success on their summary
judgment motion.
II.
Fox Associates first argues that the district court improperly granted summary
judgment for Appellees and failed to grant Fox Associates’ summary judgment
motion on Appellees’ ADA claim. “We review a district court’s decision on cross-
motions for summary judgment de novo.” Thirty & 141, L.P. v. Lowe’s Home Ctrs.,
Inc., 565 F.3d 443, 445-46 (8th Cir. 2009).
-6-
Under the ADA, a public accommodation5 must provide auxiliary aids and
services to individuals with disabilities if such individuals need those aids and
services to enjoy “meaningful access” to the public accommodation. Argenyi v.
Creighton Univ., 703 F.3d 441, 449 (8th Cir. 2013). A person with a disability
receives meaningful access if she receives an “equal opportunity to gain the same
benefit” as a person without her disability. Id. Whether an entity provides
meaningful access is a fact-based inquiry; a public accommodation’s exact
responsibilities under the ADA must be determined on a case-by-case basis. Id.
The exact form of auxiliary aid necessary is left up to the public
accommodation, but, once the public accommodation determines that an aid is
needed, it must provide that aid unless doing so would be an undue burden or would
fundamentally alter the nature of the provided benefit. 42 U.S.C.
§ 12182(b)(2)(A)(iii). Both the undue burden and the fundamental alteration
arguments are affirmative defenses provided by the ADA. Gorman v. Bartch, 152
F.3d 907, 912 (8th Cir. 1998) (citing 28 C.F.R. § 35.150(a)(3)). Failure to raise an
affirmative defense before the district court constitutes waiver of that defense.
Warner Bros. Entm’t, Inc. v. X One X Prods., 840 F.3d 971, 980 (8th Cir. 2016).
On appeal, Fox Associates argues that deaf and hard-of-hearing individuals
receive meaningful access to the Fox’s productions because the Fox currently
captions one performance of each Broadway production and has never denied a
captioning request. Appellees counter that deaf and hard-of-hearing individuals are
guaranteed only one performance date while individuals without hearing impairments
may choose from a broad range of performance dates. This discrepancy, Appellees
argue, indicates that individuals with hearing impairments have less opportunity to
5
Fox Associates does not dispute that the Fox is a public accommodation and
is subject to the ADA’s requirements.
-7-
receive the benefits the Fox provides, and that, therefore, the Fox denies them
meaningful access.
The Fox provides its scheduled captioned performance during a Saturday
matinee time slot for each Broadway production. Under the Fox’s current policies,
individuals with hearing impairments must attend that production in order to have
access to captioning and therefore cannot, like their hearing-enabled counterparts,
attend the theater during the week or in the evening. This excludes individuals with
hearing impairments from “the economic and social mainstream of American life[,]”
perpetuating the discrimination the ADA sought to address. McGann v. Cinemark
USA, Inc., 873 F.3d 218, 230 (8th Cir. 2017) (quoting PGA Tour, Inc. v. Martin, 532
U.S. 661, 675 (2001)).
We note, too, that the Fox implemented Childress’s request for a second
captioned performance of School of Rock only after explicitly stating that it did so as
an exception to its policy and that it would not always grant similar requests in the
future.6 We therefore find that the Fox’s one-captioned-performance policy denies
persons with hearing impairments an equal opportunity to gain the same benefit as
persons without hearing impairments, and that deaf and hard-of-hearing individuals
therefore do not have meaningful access to the benefits the Fox provides.
Despite its failure to provide meaningful access to individuals with hearing
impairments, Fox Associates could still prevail if it could show that providing
captioning at all requested performances would be an undue burden.7 However, in
6
See Footnote 3.
7
Fox Associates could also prevail if it could show implementing this request-
based captioning system would fundamentally alter the nature of the benefit it
provides. However, Fox Associates conceded in the district court that captioning is
not a fundamental alteration, see Def.’s Resps. & Objections 3, Dist. Ct. Dkt. 34-2,
and it presents no argument on this point on appeal.
-8-
response to Appellees’ motion for summary judgment, Fox Associates explicitly
stated that it was “not asserting the affirmative defense[] of ‘undue burden’ . . . .”
Def.’s Mem. Opp’n Pls.’ Mot. Summ. J. 7, Dist. Ct. Dkt. 50. Having failed to do so
in the district court, it cannot do so now. See Warner Bros., 840 F.3d at 980; Modern
Leasing, Inc. of Iowa v. Falcon Mfg. of Cal., Inc., 888 F.2d 59, 62-63 (8th Cir. 1989).
Fox Associates’ conclusion that Appellees were “not entitled to summary
judgment on any non-asserted affirmative defenses[,]” ” Def.’s Mem. Opp’n Pls.’
Mot. Summ. J. 7, and its argument on appeal that the district court erred in failing to
account for a potential undue burden ignore the fact that it was Fox Associates’
responsibility to assert the undue burden defense. A party who does not assert a
defense in the district court cannot assert that defense on appeal, and Fox Associates
has therefore waived that defense.
Finding that the Fox does not provide meaningful access to individuals with
hearing impairments and that Appellees’ claim is not subject to the undue burden
defense, we conclude that the district court properly granted summary judgment in
favor of Appellees on their ADA claim. We note, however, that if the volume of
captioning requests in the future rises to the level of an undue burden on the Fox,
nothing precludes Fox Associates from bringing its own lawsuit and seeking to
modify the district court’s order in this case.
III.
Having determined that the district court properly granted summary judgment
in favor of Appellees, we must now determine whether the district court properly
awarded Appellees over $97,000 in attorney’s fees. “Attorney’s fees are within the
broad discretion of the district court and will not be reversed absent an abuse of
discretion.” Hanig v. Lee, 415 F.3d 822, 825 (8th Cir. 2005).
-9-
Federal courts employ the lodestar method, which multiplies the number of
hours worked by the prevailing hourly rate, when calculating reasonable attorney’s
fees. Perdue v. Kenny A. ex rel Winn, 559 U.S. 542, 546 (2010). A district court has
“great latitude to determine a reasonable hourly rate because it is intimately familiar
with its local bar[,]” Banks v. Slay, 875 F.3d 876, 882 (8th Cir. 2017) (internal
quotation marks omitted), and it may rely on reconstructed time entries to calculate
the hours worked if those entries “satisfactorily document [the] time[.]” MacDissi
v. Valmont Indus., Inc., 856 F.2d 1054, 1061 (8th Cir. 1988). A district court should
exclude “hours that were not ‘reasonably expended’” from its calculations, Hensley,
461 U.S. at 434 (quoting S. Rep. No. 94-1011, at 6 (1976)), and may reduce a fee
award if a plaintiff does not obtain all the relief she sought. See id. at 435-36 (finding
that courts can reduce a fee award to account for unsuccessful claims).
Fox Associates argues on appeal that the district court committed three errors
in calculating its award of attorney’s fees. First, Fox Associates argues that it
implemented all the remedies Appellees sought before the district court ruled in their
favor, including offering captioned performances, publicizing those performances and
providing a way to request captioning, providing handheld captioning devices, and
allowing deaf and hard-of-hearing individuals to obtain tickets through non-
telephonic means. Fox Associates contends, therefore, that Appellees’ counsel
should only be compensated up until the date the Fox implemented those remedies.
However, as Appellees correctly point out in their brief, the parties continued to fight
over how many captioned performances the Fox needed to provide, nothing prevented
the Fox from reverting to its previous policies, and ultimately the district court
awarded nearly all the relief Appellees requested in their Amended Complaint.8 “[I]n
8
Appellees additionally requested that the Fox be required to solicit and
respond to customer feedback on its captioning. The district court did not grant this
request. However, the Fox does not argue on appeal that the district court erred in
failing to reduce the attorney’s fees award based on Appellees’ failure to obtain this
remedy.
-10-
light of the substantial relief [Appellees] obtained,” see id. at 436, we conclude that
the district court did not abuse its discretion in failing to reduce its award of
attorney’s fees based on partial litigation success.
Second, Fox Associates argues that Appellees’ requested hourly
rate—$450—is unreasonable because it exceeds prevailing market rates and because
Appellees’ counsel does not charge his clients that much. We note first that
Appellees’ counsel does not charge his clients $450 an hour because he does not
charge a set fee at all. Rather, he relies on the jurisdictions in which he practices to
determine a fair market rate. Fox Associates does not address the fact that Appellees’
counsel has over 30 years of practice experience, including 10 years of experience
solely in ADA litigation involving individuals with hearing impairments. Nor does
Fox Associates present any evidence that $450 is above the prevailing market rate for
such an attorney in the St. Louis area. In fact, Fox Associates presents no evidence
as to prevailing market rates in the St. Louis area other than the rates for its own
attorneys. Because a district court is presumed to be familiar with the market rates
in its jurisdiction, see Banks, 875 F.3d at 882, and because Fox Associates has failed
to present evidence that the market rate the district court chose is unreasonable, we
find that the district court did not abuse its discretion in setting an hourly rate of
$450.
Third and finally, Fox Associates argues that the district court should have
reduced its fee award because Appellees’ counsel impermissibly reconstructed time
entries after the fact, billed an excessive number of hours, and impermissibly billed
non-attorney work at the attorney rate. However, reconstructed time entries do not
necessarily require a fee reduction, see MacDissi, 856 F.2d at 1061, and the district
court determined that the reconstructed entries, which dealt only with brief
communications, satisfactorily documented the time. We agree. The district court
conducted a thorough review of the time entries in this case and concluded that 5.7
hours of work were not compensable as either non-attorney work or unreasonably-
-11-
expended hours. Fox Associates provides no evidence that the district court abused
its discretion in failing to exclude more hours; indeed, Fox Associates does not even
indicate how many hours it believes were excessive. Without more, we cannot say
the district court abused its discretion in failing to reduce its fee award further for
inefficiency, and we uphold the district court’s award of attorney’s fees.
IV.
We affirm the district court’s judgment in full.
GRASZ, Circuit Judge, dissenting.
There is an old adage that “bad facts make bad law.” Colbruno v. Kessler, __
F.3d __, 2019 WL 2751434, at *7 (10th Cir. July 2, 2019) (Tymkovich, C.J.,
dissenting). Likewise, a litigation strategy can result in bad law leading to unforeseen
consequences. I fear that may be the case here. For whatever reason, the Fox
addressed only the question of meaningful access and failed to assert an undue burden
defense at the summary judgment stage, even though the Fox says the cost of
providing an in-person captioner at each performance is substantial. This has resulted
in a decision that could undercut the meaningful access precedent of this circuit. See,
e.g., Argenyi v. Creighton Univ., 703 F.3d 441, 449 (8th Cir. 2013).
Under the meaningful access standard, “aids and services ‘are not required to
produce the identical result or level of achievement for handicapped and
nonhandicapped persons,’ but they nevertheless ‘must afford handicapped persons
equal opportunity to . . . gain the same benefit.’” Id. at 449 (alteration in original)
(quoting Loye v. Cty. of Dakota, 625 F.3d 494, 499 (8th Cir. 2010)). While the ADA
is broad in scope, the law does not require institutions to provide all requested
auxiliary aids and services but instead only “necessary” ones. Id. The law tests what
level of provision of necessary aids and services is required for meaningful access
without reaching the affirmative defenses. See Loye, 625 F.3d at 499. This is an
“inherently fact-intensive” inquiry that “largely depends on context.” See Argenyi,
703 F.3d at 449 (quoting Liese v. Indian River Cty. Hosp. Dist., 701 F.3d 334, 343
(11th Cir. 2012)).
Here, the Fox originally provided its hearing-impaired patrons with an
American Sign Language interpreter. And then, after litigation ensued, the Fox
provided Childress with the specific accommodation she asked for, live captioning
at one showing of each requested production. When Childress requested live
captioning at a different showing, the Fox provided captioning at her requested
showing. In fact, since their original compromise was reached, there is no evidence
that any of the plaintiffs have been denied captioning at a requested showing.
Yet the court concludes that, although the Fox provides real time captioning
from a live, in-person court reporter for at least one performance of every production
at its theater and has demonstrated a willingness to work with patrons to
accommodate requests for alternative dates, it must instead provide this service at
every performance of every production in order to provide meaningful access.
Childress expressly argued, and the court seemingly agrees, the Fox has no ability to
limit the frequency of the live captioning services it provides. In my view, this
conclusion effectively replaces the meaningful access test with an identical access
standard. I also believe this conclusion improperly cabins arguments about what
access qualifies as meaningful to the context of affirmative defenses even though the
defenses test whether the auxiliary aid or service must be provided at all, not what
level of access is meaningful. See, e.g., id. at 451 n.3. It is the meaningful access
analysis, not the undue burden standard, that determines whether it is necessary to
provide a court reporter at every performance.
Fortunately for all concerned, advanced technology appears poised to moot this
issue as a practical matter by making real time captioning of live performances
inexpensive and routine. This does not, however, negate the legal problem. A legal
-13-
standard requiring identical access in the context of auxiliary aids and services may
have far-reaching unforeseen consequences in other contexts. Identical access would
possibly require, for example, 24/7 sign language translation in hospitals as well as
a myriad of other requirements. Such a result is not consistent with our meaningful
access precedent. See Loye, 625 F.3d at 499 (affirming district court’s opinion
rejecting the contention that “an interpreter is mandated for every meeting”). The
benefit the Fox offers is the opportunity to attend traveling Broadway productions.
Access to this benefit does not require live court reporters at each and every
performance of every production in order to be meaningful.
I respectfully dissent.
______________________________
-14-
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397 Pa. Superior Ct. 574 (1990)
580 A.2d 781
COMMONWEALTH of Pennsylvania
v.
Juan PEREZ, Appellant.
Supreme Court of Pennsylvania.
Submitted July 2, 1990.
Filed September 12, 1990.
*575 John W. Packel, Asst. Public Defender, Philadelphia, for appellant.
Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
Before OLSZEWSKI, MONTEMURO and CERCONE, JJ.
CERCONE, Judge:
Following a trial before the learned court, sitting without a jury, appellant was convicted of Possession with Intent to Deliver a Controlled Substance,[1] in this instance, cocaine. As a result of this conviction, appellant was sentenced pursuant to 18 Pa. C.S.A. § 7508[2] to a term of imprisonment of not less than one (1) year nor more than two (2) years in the county prison and to pay a fine of five thousand dollars ($5,000). Appellant was also ordered to pay costs in the amount of twenty-five ($25.00). We now have appellant's timely filed appeal before us.
Appellant presents a single question on appeal, claiming that the trial court erred in sentencing him pursuant to 18 Pa. C.S.A. § 7508 as the Commonwealth failed to produce any evidence relating to an illegal "substance," and in sentencing him contrary to a proper interpretation of § 7508. Appellant argues that the mandatory minimum sentence under § 7508 can only apply in this case if the substance seized is pure cocaine of the proscribed weight. Appellant argues that the cocaine or its derivatives cannot be "mixed" with another product in determining the total weight of cocaine or its derivatives. His argument is based *576 on an alleged ambiguity present in the language of § 7508(a) which is as follows:
(3) A person who is convicted of violating section 13(a)(14) or (30) of The Controlled Substance, Drug, Device and Cosmetic Act where the controlled substance is coca leaves or is any salt, compound derivative or preparation of coca leaves or is any salt, compound, derivative or preparation which is chemically equivalent or identical with any of these substances or is any mixture containing any of these substances except decocainized coca leaves or extracts of coca leaves which (extracts) do not contain cocaine or ecgonine shall, upon conviction, be sentenced to a mandatory minimum term of imprisonment and a fine as set forth in this subsection:
(i) upon the first conviction when the amount of the substance involved is at least 2.0 grams and less than ten grams; one year in prison and a fine of $5,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity . . . .
18 Pa. C.S.A. § 7508(a)(3)(i).
Appellant argues that the word "substance" in subsection (a)(3)(i) refers to pure cocaine and does not have any reference to a "mixture" of cocaine or its derivatives with any other product. He argues further that a criminal statute must be strictly construed and any ambiguity must be interpreted in his favor. The claim is based on that alleged ambiguity in the language of (a)(3)(i) so that it must be construed strictly and that only pure cocaine, or its derivative, of the proscribed weight can be considered in the sentencing process of that subsection. It is our opinion that there is no ambiguity in the language of § 7508 and its subsections. But even if ambiguity existed, the Supreme Court of Pennsylvania has determined that strict construction of the crimes code provisions is to be applied in conjunction with the requirement of 18 Pa. C.S.A. § 105 that such provisions must be construed according to the "fair import" of their terms.[3] In Commonwealth v. Lurie, 524 Pa. 56, *577 63, 569 A.2d 329, 332 (1990), the court held, "it is clear from the explicit language of Section 105 that the `fair import' principle of construction specifically applies to the provisions of the Crimes Code (Title 18)." See Official Comment to 18 Pa. C.S.A. 105. See also Commonwealth v. Rhodes, 510 Pa. 537, 545-46, 510 A.2d 1217 (1986) (explicating the purpose and interpretation of § 105); Commonwealth v. Frisbie, 506 Pa. 461, 466, 485 A.2d 1098, 1100 (1984) (same); Commonwealth v. Henley, 504 Pa. 408, 415, 474 A.2d 1115, 118-19 (1984) (same). There is nothing in this case as we shall point out to rebut the "fair import" of the language in (a)(3) and (a)(3)(i) of § 7508 supra, which is to punish drug traffickers who, in this case, distribute cocaine or its derivative mixed with another product in order to avoid detection of their obvious crime.
As to ambiguity, in a study of the two subsections of § 7508 we find clear, transitional language which ties together the "substance" referred to in subsection (a)(3) of the section with "substance" referred to in subsection (a)(3)(i) of the section. The language in subsection (a)(3) of § 7508 holds that anyone convicted of trafficking in cocaine, its derivatives or any mixture containing cocaine or its derivatives with other products shall "be sentenced to a mandatory minimum term of imprisonment and a fine as set forth in this subsection . . . ." The very next subsection is (a)(3)(i), which is the only penalty subsection to § 7508, and can only refer to the imposition of sentence for anyone convicted of trafficking in the substance referred to in subsection (a)(3). To interpret § 7508 in accordance with appellant's view would allow all traffickers of cocaine to avoid the harsher penalties set forth in § 7508 by merely *578 distributing cocaine or its derivatives with an amount of mixture of another product that would bring the weight of cocaine below the proscribed weight. The legislature in its study of this social problem was too aware of the realities in the subterfuge of drug dealers to intend the "fair import" of this legislation to be interpreted in appellant's favor.
The other question in this case is whether extrapolation of the total weight of contraband from samplings is proper. At trial the Commonwealth presented a chemist's analysis of the substance seized from appellant. The chemist analyzed two randomly selected packets of the twenty-two packets submitted and found that each of the two packets contained cocaine, or its derivatives with a mixture of another product and calculated the amount of cocaine in the twenty-two packets to be 2.21 grams. Appellant contends again that only the weight of pure cocaine may be considered by the court to meet the proscribed weight. This argument would require that each molecule of substance seized, whether in the form of grain, leaf or powder be analyzed to determine the presence of cocaine or its derivatives. We addressed this issue in Commonwealth v. Lisboy, 392 Pa.Super. 411, 573 A.2d 222 (1990) and in Commonwealth v. Minott, 395 Pa.Super. 552, 577 A.2d 928 (1990). We found in essence that when calculating the proper weight of a controlled substance for purposes of determining whether the mandatory minimum sentence was required to be imposed, the court must consider the combined weight of both the controlled substance and any product contained in the mixture.[4]
We said in Commonwealth v. Minott, supra, 395 Pa.Superior Ct. at 559, 577 A.2d at 931, that "[t]he practice of testing representative samples of larger quantities of drugs and extrapolating therefrom the total narcotics content of an illegal substance is well accepted." This method of *579 detecting the quantity of substances in illegal drug trafficking was approved in Commonwealth v. Gorodetsky, 178 Pa.Super. 467, 115 A.2d 760 (1955) and allows for the total weight of "substance" to include the proscribed narcotics together with a mixture of any other product. In Gorodetsky, a chemist testified that his analysis of representative samples of eight tablets sold by defendant to a police informant permitted him to conclude that each of the tablets contained more than one-fourth (1/4) gram of morphine. This evidence was held sufficient to sustain the defendant's conviction of possessing or delivering more than the statutorily prohibited amount of the illegal substance. Other jurisdictions have also permitted the use of extrapolation in determining the quantity of illegal drugs. See, e.g., Mullins v. State, 277 Ark. 93, 639 S.W.2d 514 (1982) (trial judge could find from representative sampling and testing of ten of one hundred tablets seized and found to contain methaqualone that the other ninety tablets were identical); Pama v. State, 552 So.2d 309 (Fla.Dist.Ct.App. 1989) (evidence that experienced law enforcement officer examined twenty bales of a seized substance and identified those bales as containing marijuana was adequate proof that at least twenty of the bales seized contained marijuana); Asmer v. State, 416 So.2d 485 (Fla.Dist.Ct.App. 1982) (one thousand tablets weighing 795.7 grams were seized; one tablet was tested and found to contain methaqualone; appellant's conviction of trafficking in more than two hundred grams of methaqualone upheld); Commonwealth v. Shea, 28 Mass.App.Ct. 28, 545 N.E.2d 1185 (1989) (no basis for reversal of conviction for cocaine trafficking where only five infrared and four ultraviolet tests were made on a total of nine bags seized); State v. Anderson, 76 N.C.App. 434, 333 S.E.2d 762 (1985) (evidence sufficient to support finding that defendant possessed more than four grams of heroin where fourteen packets were seized and random samples with a total weight of one gram were taken from three packets); State v. Mattox, 13 Ohio App.3d 52, 468 N.E.2d 353 (1983) (evidence that random sample of five tablets taken from ten tablets that defendant had sold police officer contained LSD *580 was substantial evidence from which court could properly conclude beyond a reasonable doubt that all ten tablets contained LSD); State v. Selph, 625 S.W.2d 285 (Tenn.Crim. App. 1981) (evidence sufficient to convict appellant of selling more than two hundred grams of methaqualone where five tablets of five thousand tablets seized were tested and found to contain methaqualone weighing a total of 1500 milligrams; total weight of tablets seized was 3,824 grams).
The extrapolation of drug quantities was approved in the context of the sentencing phase of a criminal process in United States v. Fuentes, 877 F.2d 895 (11th Cir. 1989), cert. denied, ___ U.S. ___, ___, 110 S.Ct. 347 & 516, 107 L.Ed.2d 335 & 517 (1989). In that case, coast guardsmen observed brown objects being thrown from a vessel which they were pursuing. Approximately two hundred fifty to four hundred such objects were observed, and were characterized at trial as identically packaged bales. One of these bales, weighing 27.65 grams and identified as a mixture containing marijuana, was entered into evidence. The court concluded that the evidence supported a finding that appellant possessed a mixture containing marijuana well in excess of the statutory figure of one thousand kilograms. See The Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 960 (1988) (setting forth updated mandatory minimum sentencing provisions of the Act).
Judgment of sentence is affirmed.
NOTES
[1] 35 Pa.S. § 780-113(a)(30).
[2] Entitled Drug Trafficking Sentencing and Penalties; P.L. 262, No. 31, § 13, Passed Mar. 25, 1988, effective Jul. 1, 1988. Appellant was sentenced under Section (a)(3)(i) of the statute.
[3] Principles of construction
The provisions of this title shall be construed according to the fair import of their terms but when the language is susceptible of differing constructions it shall be interpreted to further the general purposes stated in this title and the special purposes of the particular provision involved. The discretionary powers conferred by this title shall be exercised in accordance with the criteria stated in this title and, in so far as such criteria are not decisive, to further the general purposes stated in this title.
18 Pa. C.S.A. § 105.
[4] Although an application for allowance of appeal has been filed in Commonwealth v. Lisboy, 480 E.D. allocatur Dkt. 1990, we are satisfied at this point with our present holding.
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-1992
___________
Nathan Andrew Bryant, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Department of Defense, Inspector *
General, * [UNPUBLISHED]
*
Appellee. *
___________
Submitted: November 7, 2008
Filed: December 2, 2008
___________
Before MELLOY, COLLOTON, and SHEPHERD, Circuit Judges.
___________
PER CURIAM.
Nathan Bryant appeals the district court’s1 judgment dismissing his civil suit
for lack of subject matter jurisdiction. After carefully reviewing the record de novo,
see LeMay v. U.S. Postal Serv., 450 F.3d 797, 799 (8th Cir. 2006) (standard of review),
we conclude dismissal was proper for the reasons stated by the district court.
Accordingly, we affirm the judgment of the district court. See 8th Cir. R. 47B. All
Bryant’s pending requests and motions are denied.
1
The Honorable Michael J. Davis, Chief Judge, United States District Court for
the District of Minnesota.
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43 F.3d 1457
U.S.v.Neff
NO. 94-1323
United States Court of Appeals,Second Circuit.
Nov 03, 1994
Appeal From: E.D.N.Y. 93-cr-880
1
AFFIRMED.
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-08-00745-CR
Cluren Williams, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT
NO. D-1-DC-05-203236, HONORABLE JULIE H. KOCUREK, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant's motion to dismiss this appeal is granted. See Tex. R. App. P. 42.2(a).
The appeal is dismissed.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Pemberton and Waldrop
Dismissed on Appellant's Motion
Filed: January 14, 2009
Do Not Publish
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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 30 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
GAIL HOLMES, No. 13-55821
Plaintiff - Appellant, D.C. No. 5:12-cv-01708-VAP-
DTB)
v.
MEMORANDUM*
JOHNSON & JOHNSON, JANSSEN
RESEARCH & DEVELOPMENT, LLC,
and JANSSEN PHARMACEUTICALS,
INC.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Argued and Submitted April 9, 2015
Pasadena, California
Before: BENAVIDES,** TASHIMA, and CLIFTON, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
**
The Honorable Fortunato P. Benavides, Senior Circuit Judge for the U.S. Court of
Appeals for the Fifth Circuit, sitting by designation.
1
Plaintiff-Appellant Gail Holmes (“Holmes”) appeals the district court’s
dismissal of her claims against Defendants-Appellees Johnson & Johnson, Janssen
Research & Development, LLC, and Janssen Pharmaceuticals, Inc. (collectively,
“Johnson” or “Defendants”). We AFFIRM IN PART and REVERSE IN PART.
I. FACTUAL AND PROCEDURAL BACKGROUND
Unless otherwise noted, the following facts are based on allegations as set forth
in the second amended complaint (“SAC”), Holmes’ live pleading at the time of the
district court’s dismissal order. Prior to the events described below, Holmes was “a
healthy individual who engaged in activities of daily living with vigor and
enthusiasm.” However, between September and December of 2009, Holmes’ health
condition dramatically deteriorated, resulting in various diagnoses and treatments
during this time. She was ultimately diagnosed with Stevens Johnson Syndrome
and/or Toxic Epidermal Necrolysis (“SJS/TEN”), a condition constituting “an
extremely severe cutaneous adverse reaction—involving skin necrolysis, blistering,
and mucous membrane destruction, through an auto-immune mechanism.”
Holmes’ ordeal began in early September when, on suspicion of strep throat,
her doctor prescribed Levaquin, a medication manufactured by Defendants. Holmes
took Levaquin as prescribed from September 10, 2009 to September 19, 2009. On
September 13 and 14, Holmes visited the emergency room twice due to continued
2
strep throat symptoms and “altered mental status.” On September 15, Holmes suffered
a seizure and was admitted to the ICU, where she was unable to give any medical
information due to intubation and sedation. Over the next four days, Holmes’ doctors
continued her Levaquin regimen, and added treatment on suspicion of a viral cause.
On September 19, 2009, a doctor noted that Holmes was “awake and alert but could
not speak in sentences and could not follow commands.” Holmes then entered into a
coma from which she would not wake for 15 days.
While Holmes was comatose, her condition worsened, and different doctors
speculated on various causal theories which included an adverse reaction to another
drug, H1N1 virus, “sepsis consistent with Toxic Shock syndrome,” and SJS/TEN. On
October 2, 2009, Holmes’ primary doctor diagnosed her with subepidermal vesicular
dermatitis.
Holmes awoke from her coma on October 4, 2009, though she remained
debilitated and only communicated through “gestures and phonation.” At this time,
Holmes’ physician affirmatively told her that she suffered from an H1N1 viral
infection. Over the following two months, Holmes underwent two series of surgical
procedures to remove diseased and necrotic tissue, which by then had covered a
majority of her body, with an intervening treatment for septic shock resulting from
wound infection. During this time, Holmes alleges that she was administered high
3
doses of pain killers and sedatives on a nearly continuous basis. Holmes was
discharged on December 2, 2009, with an ultimate diagnosis of SJS/TEN on her
discharge summary.
Holmes commenced this action on November 8, 2011, by filing her original
complaint. Holmes later amended the complaint to include the claims against Johnson
which are the subject of this appeal, specifically Holmes’ claims against Johnson
alleged strict product liability (“SPL”) and violation of the California Business and
Professions Code §§ 17200, et seq. (“UCL”). The district court dismissed these claims
under Federal Rule of Civil Procedure 12(b)(6), and entered judgment in Johnson’s
favor. In doing so, the district court concluded that Holmes’ SPL claim was
limitations-barred, and that Holmes’ UCL allegations were insufficient to state a
viable claim. Holmes timely appealed.
II. JURISDICTION AND STANDARD OF REVIEW
As an initial matter, we confirm that we have jurisdiction under 28 U.S.C.
§ 1291. Holmes prematurely filed her notice of appeal, see FED. R. CIV. P. 54(b), but
“subsequent events can validate a prematurely filed appeal.” Anderson v. Allstate Ins.
Co., 630 F.2d 677, 681 (9th Cir. 1980). This is the case here since outstanding claims
against other parties were subsequently dismissed, neither party to this appeal will be
4
prejudiced by the court’s exercise of jurisdiction, and neither party disputes the court’s
jurisdiction at this point. Cf. Fadem v. United States, 42 F.3d 533, 535 (9th Cir. 1994).
In exercising our jurisdiction, “[w]e review de novo a district court’s grant of
a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure
12(b)(6) and for failure to allege fraud with particularity under Federal Rule of Civil
Procedure 9(b).” Reese v. Malone, 747 F.3d 557, 567 (9th Cir. 2014) (quoting WPP
Luxembourg Gamma Three Sarl v. Spot Runner, Inc., 655 F.3d 1039, 1047 (9th Cir.
2011)). In this regard, all well-pleaded allegations “must be enough to raise a right to
relief above the speculative level, on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007) (internal citation and footnote omitted). “Threadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “To survive a motion to dismiss,
a complaint must contain sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Id. (citation and internal quotation marks
omitted). Two additional facets are pertinent here. First, the court’s review may extend
beyond the contents of the complaint to documents which are attached to the
complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987).
Second, under Federal Rule of Civil Procedure 9(b), claims alleging fraud must meet
5
a heightened pleading requirement and “state with particularity the circumstances
constituting fraud.” FED. R. CIV. P. 9(b).
III. WHETHER HOLMES’ SPL CLAIM IS LIMITATIONS-BARRED
A. Applicable Law
The district court dismissed Holmes’ SPL claim as falling outside the two-year
statute of limitations period prescribed for such claims under the California Code of
Civil Procedure. CAL. CIV. PROC. CODE §§ 312, 335.1. Under the discovery rule, an
action accrues when a plaintiff has “suspicion of one or more of the elements of a
cause of action, coupled with knowledge of any remaining elements.” See Fox v.
Ethicon Endo-Surgery, Inc., 110 P.3d 914, 920 (Cal. 2005). Critically, however, when
a plaintiff “could not have reasonably discovered facts supporting the cause of action
within the applicable statute of limitations period,” id. at 921, an action does not
accrue until “the factual basis for a claim was reasonably discoverable through
diligent investigation,” id. at 924.
B. Discussion
The district court concluded that Holmes knew or should have known the basis
of her claim on October 5, 2009, the day after waking from her coma, at which point
6
the district court found that “at least one doctor gave a possible diagnosis of SJS/TEN
linked to an adverse drug reaction.” As a result, the district court concluded that
Holmes commenced the action outside the two-year statute of limitations period. We
hold that this finding was in error for two reasons.
In the first instance, the only allegation in the SAC that a diagnosis was directly
communicated to Holmes is that on October 4, 2009, her physician told her that she
suffered from an H1N1 viral infection. The other allegations do not specify that a
diagnosis was directly communicated to Holmes, nor do those allegations support a
reasonable inference of such direct communication. In the dismissal order, the district
court relied on Holmes’ allegation that, on September 25, 2009, “Dr. Wolfe went on
to state” a possible SJS/TEN diagnosis. However, the allegation never specifies to
whom the statement was made, and the inference that the statement was made to
Holmes is not only impermissible at the dismissal stage, but also highly unlikely since
it is undisputed that Holmes was in a coma at the time. Moreover, even assuming the
doctor “gave a possible diagnosis of SJS/TEN” to Holmes, the timing alone prevents
imputing knowledge of the diagnosis to the then-comatose Holmes. Assuming
Holmes’ awareness of her symptoms upon awakening, Holmes expressly alleges that
her doctor responded to her inquiry by explaining her condition was caused by the
H1N1 virus, not a drug reaction. Over the following two months, Holmes alleges that
7
she had a “cloudy” mental state as she underwent two rounds of multiple surgeries and
treatment for septic shock, requiring high doses of pain killers and sedatives. We
therefore conclude that the district court erred in concluding that Holmes’ SPL cause
of action accrued prior to November 8, 2009, because that conclusion was not
supported at the dismissal stage absent impermissible inference. We make no
determination, however, whether Holmes’ awareness during that period might
otherwise be supported by evidence as the case proceeds through summary judgment
and trial.
IV. WHETHER HOLMES’ UCL CLAIM IS SUFFICIENTLY ALLEGED
We next turn to the district court’s dismissal of Holmes’ claim that Johnson
violated the California UCL, which prohibits “any unlawful, unfair or fraudulent
business act or practice and unfair, deceptive, untrue or misleading advertising . . . .”
CAL. BUS. & PROF. CODE § 17200. A plaintiff can assert any of three independent
grounds for a violation as “unlawful, unfair, or fraudulent.” Berryman v. Merit Prop.
Mgmt., Inc., 152 Cal. App. 4th 1544, 1554 (2007).
Holmes asserts that Johnson’s labeling, marketing, and distribution of
Levaquin—in the form of Levaquin’s medication guide, FDA label, and patient
insert—failed to disclose the risk of severe subcutaneous adverse reaction (“SCAR”)
conditions resulting from the medication. The district court considered this claim
8
under each of the three grounds.
Regarding her “unlawful” basis, Holmes alleged that Johnson’s conduct
violated misbranding or inadequate-directions-for-use prohibitions of the Federal
Food, Drug, and Cosmetic Act (“FDCA”), 21 U.S.C. §§ 352(a), 352(f) (2012), and the
Sherman Food, Drug, and Cosmetic Laws (“Sherman Law”), CAL. HEALTH & SAFETY
CODE §§ 111330, 111360, 111375, 111445; both the FDCA and Sherman Law are
independently actionable under the UCL. Cf. Cel-Tech Commc’ns, Inc., v. L.A.
Cellular Tel. Co., 20 Cal. 4th 163, 180 (1999). The district court concluded that
Holmes’ allegations were insufficient as merely reciting statutory language, and on
appeal Holmes does not challenge that ruling by the district court. Instead, Holmes
argues that Johnson violated § 17500 of the California Business and Professions Code,
CAL. BUS. & PROF. CODE § 17500, as well as the Consumers Legal Remedies Act.
CAL. CIV. CODE §§ 1750-84. However, Holmes did not present this argument to the
district court, which did not address it; we therefore deem this argument waived. See
Hillis v. Heineman, 626 F.3d 1014, 1019 (9th Cir. 2010). We therefore find no error
in the district court’s dismissal of this ground.
A claim under the “fraudulent” prong of the UCL requires a showing that
members of the public are “likely to be deceived.” Schnall v. Hertz Corp., 78 Cal.
App. 4th 1144, 1167 (Cal. Ct. App. 2000). Holmes argued that Johnson created such
9
a likelihood by omitting risk information, and the district court dismissed this ground
for failing to meet the particularity requirements of Federal Rule of Civil Procedure
9(b), as well as for failing to allege reliance on the alleged misrepresentations. Rule
9(b) requires fraud allegations to detail “the who, what, when, where, and how of the
misconduct charged.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir.
2003) (internal quotation marks omitted). Holmes’ allegations fail to specify what
information was likely to deceive Holmes or her doctor, and we agree with the district
court that the allegations were insufficiently specific under Rule 9(b); we therefore
need not address the district court’s alternative basis for dismissal.
Regarding the “unfairness” ground of Holmes’ UCL claim, we have previously
held that where a plaintiff alleges that the defendant engaged in “a unified course of
fraudulent conduct and rel[ies] entirely on that course of conduct as the basis of that
claim[,] . . . the claim is said to be ‘grounded in fraud’ or to ‘sound in fraud,’ and the
pleading . . . as a whole must satisfy the particularity requirement of Rule 9(b).”
Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009) (second omission in
original) (quoting Vess, 317 F.3d at 1103-04). Holmes alleges that Johnson unfairly
misled the public about the dangers of Levaquin by engaging in the same activity
which forms the basis of her fraudulent ground. Accordingly, we hold that her claim
is similarly subject to the particularity requirements of Rule 9(b), and similarly fails
10
to satisfy those requirements. We therefore find no error in the district court’s
dismissing Holmes’ unfairness ground on this basis, and we need not address the
district court’s alternative basis for dismissal.
V. Conclusion
For the foregoing reasons, we AFFIRM IN PART the district court’s judgment
as to Holmes’ UCL claim, but REVERSE IN PART the judgment as to Holmes’ SPL
claim. Each party shall bear its own costs.
AFFIRMED in part; REVERSED in part; REMANDED.
11
| {
"pile_set_name": "FreeLaw"
} |
237 F.Supp.2d 394 (2002)
DOW JONES & COMPANY, INC., Plaintiff,
v.
HARRODS, LIMITED and Mohamed Al Fayed, Defendants.
No. 02 Civ. 3979(VM).
United States District Court. S.D. New York.
October 11, 2002.
*395 *396 *397 *398 Jack M. Weiss, Gibson, Dunn & Crutcher, L.L.P., New York City, for Plaintiff.
DECISION AND ORDER
MARRERO, District Judge.
TABLE OF CONTENTS
Page
INTRODUCTION ...........................................................399
I. BACKGROUND ........................................................399
A. FACTS ..........................................................399
B. THE ARGUMENTS ..................................................402
II. STANDARD OF REVIEW ................................................404
III. DISCUSSION ........................................................404
A. ACTUAL CONTROVERSY .............................................406
1. Meaning and Scope of Actual Controversy .....................406
2. The Actual Controversy Standard Applied .....................407
3. First Amendment Considerations ..............................409
4. Intercourt Conflict and Comity ..............................410
*399
5. Other Case Law ..............................................413
B. PURPOSES OF THE DJA ............................................418
1. Constitutional Dimensions ...................................418
2. Antisuit Injunctions ........................................420
3. Concurrent Jurisdiction .....................................421
a. Jurisdictional Basis .....................................421
b. Basis for Injunctive Relief ..............................422
4. Preemptive Judgments ........................................425
5. Unique Complexities of Public Policy ........................427
C. COURT DISCRETION ...............................................431
1. Resolution of the Controversy ...............................437
2. Useful Purpose ..............................................439
3. Forum Shopping ..............................................439
4. Conflict with Another Jurisdiction ..........................440
5. Adequate Alternate Remedy ...................................442
a. Pendency of Another Action ...............................442
b. Comity ...................................................443
c. Exception to Comity ......................................446
IV. PERSONAL JURISDICTION ..............................................447
V. ORDER ..............................................................447
Plaintiff Dow Jones & Company, Inc. ("Dow Jones") brought this action against defendants Harrods, Limited ("Harrods") and Mohamed Al Fayed ("Al Fayed") requesting a declaratory judgment and injunctive relief. Dow Jones seeks to preclude Harrods and Al Fayed from pursuing claims for defamation asserted in a lawsuit Harrods commenced against Dow Jones in the United Kingdom arising from the publication of an article in The Wall Street Journal (the "Journal") in April of this year. Now before the Court is a motion by Harrods and Al Fayed, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(2), to dismiss the complaint. At issue is whether the federal Declaratory Judgment Act (the "DJA") may be applied for the purpose of the judgment Dow Jones seeks, or whether, assuming the DJA were properly invoked, based on the facts presented here the Court should exercise its discretion under the DJA to grant or deny declaratory relief. For the reasons discussed below, the motion is granted.
I. BACKGROUND
A. FACTS
To the question "What is in a joke?", this lawsuit gives a decidedly wooden answer: a federal case.[1] Beyond the purported humor that gave rise to the conflict, however, lie several serious questions entailing federal statutory and constitutional law, as well as issues of weighty international dimensions.
The action began with an April Fool's joke. Harrods, which, among various other commercial enterprises, operates the well-known department store of that name *400 in London, England, issued a press release on March 31, 2002, headlined "Al Fayed Reveals Plan to `Float' Harrods." The release stated that Al Fayed, Harrods' Chairman and effective owner, would issue on the following day an important announcement "about his future plans for the world-famous store," including "a first-come-first-served share option offer."[2] Journalists seeking further comment were directed to contact "Loof Lirpa" at Harrods. In fact, "Loof Lirpa" is "April Fool" spelled backward. On April 1, 2002, the planned announcement posted on the designated website described Al Fayed's decision to "float" Harrods by building a ship version of the store to be moored in London on the embankment of the Thames River. The announcement included a limited offer of "shares in this exciting new venture." Persons who registered on the website by noon that day, "the first of April!", were promised "a share certificate."[3]
Dow Jones read the March 31 press release as purporting to announce that Harrods planned to "float shares," i.e., a public offering of stock. It did not wait to see Harrods' actual disclosure on the announcement date. Instead, on April 1, in the print editions of the Journal in the United States, and in the Journal's website "WSJ.com.," Dow Jones published an article reporting that Harrods would disclose plans that day to publicly list the company's shares.[4]
Upon learning that Harrods' announcement had been an April Fool's joke, the Journal published a correction so advising its readers in an item that appeared in its April 2, 2002 print editions in the United States as well as on WSJ.com. Three days later, Dow Jones countered with a story it asserts was intended as the Journal's own brand of wry, light-hearted humor, the article that ultimately catapulted into the conflict now before this Court. The Journal's "Deals & Deal Makers: Bids & Offers" column on April 5, 2002 published an item entitled "The Enron of Britain?" (the "April 5 Article").[5] The first sentence of the April 5 Article, which appeared in the *401 Journal's United States print edition and on WSJ.com., states that: "If Harrods, the British luxury retailer, ever goes public, investors would be wise to question its every disclosure." It then detailed the April Fool's joke, which the story reported had been mistaken by "some news organizations" as an announcement of a plan to sell Harrods shares publicly. Dubbing the prank "[n]ot exactly Monty Python-level stuff," the column questioned whether Harrods could "get in trouble for messing with the facts?" by issuing the bogus press announcement.
At this point the lawyers entered. Promptly the face of comedy began to furrow and its smile to curl into what often becomes tragedy's first sour frowns and snarls: incipient litigation. As the lawyers recount the tale, Harrods apparently did not see any humor in the article, and rather took umbrage from the Journal's reference to it and Enron in the same breath. On April 10, 2002, Harrods' director of legal affairs wrote to Dow Jones officials asserting that the April 5 Article had enraged Harrods and "caused serious damage to Harrods' reputation worldwide" by "linking Harrods (a law abiding and historic British institution) with Enron" and thereby insinuating that Harrods "can and will act unlawfully."[6] The letter demanded that the Journal publish a correction and an apology in its domestic and international editions and pay Harrods "substantial damages."[7] It also explained that Harrods' April Fools Day jest followed a long-standing tradition practiced in Britain by other prominent businesses that issued similar humorous press releases.[8]
Attorneys for the two sides then exchanged numerous letters and communications articulating the parties' respective positions. On April 15, 2002, Dow Jones responded to Harrods' letter, denying that the April 5 Article was defamatory and asserting Dow Jones' view that the item was intended as humorous commentary, that the mention of Enron merely reflected "tongue-in-cheek hyperbole," and that because there was nothing inaccurate in the report there was nothing that needed correction.[9] Dow Jones suggested that Harrods submit a letter to the Journal's editor for publication.[10]
Harrods replied on Arpil 18, 2002. It rejected Dow Jones' contention that the April 5 Article was meant to be humorous as "simply an incredible, if not bizarre, assertion," and reiterated Harrods' demand for a published apology, warning of Harrods' intent to commence a defamation suit in the United Kingdom if Dow Jones *402 failed to satisfy Harrods' demands.[11] Dow Jones replied on April 19, 2002. It asserted that the April 5 Article contained only non-actionable opinion grounded on disclosed which could not serve as grounds for a defamation action, and repeated Dow Jones' willingness to publish a letter to the editor if Harrods submitted one.[12]
Dow Jones next heard from Harrods' London solicitors on May 13, 2002. The correspondence informed Dow Jones that in preparation for filing a defamation suit in the United Kingdom, Harrods requested Dow Jones to provide certain "pre-action disclosure" concerning the circulation of the Journal's United States edition in the United Kingdom, the number of subscribers to its online edition in the United Kingdom and worldwide and the number of "hits" received on WSJ.com since April 5, 2002. The letter fixed a date of May 27, 2002 for disclosure of the requested information, after which Harrods would bring the matter to the appropriate court in London.[13]
Dow Jones construed the demand from Harrods' solicitors for pre-action disclosures as a threat and prelude to litigation.[14] Dow Jones did not respond to Harrods' request for disclosure. Instead, it commenced the instant action against Harrods and Al Fayed in this Court on May 24, 2002. With regard to Al Fayed, Dow Jones asserts that although no threat of litigation had yet derived from Al Fayed himself, Dow Jones believes it faces a genuine threat because, as Chairman and owner of Harrods, "Al Fayed might well assert a claim for defamation against Dow Jones based on the April 5 Article."[15]
Harrods proceeded to institute litigation in the High Court of Justice in London (the "London Action") on May 29, 2002 seeking damages for libel arising out of the Journal's publication of the April 5 Article.[16] Harrods later filed further particulars in the London Action specifying that it also sought an injunction against continued publication of the April 5 Article.[17] Al Fayed is not a party to the London Action.
B. THE ARGUMENTS
Dow Jones argues that an action for defamation based on the April 5 Article would be summarily dismissed under federal and state constitutional law of any American jurisdiction because the publication comprises only the author's non-actionable expression of opinion based on true statements and contains no facts capable of being proved false. By contrast, according to Dow Jones, the London Action may proceed against it under various longstanding principles of British law that are plainly antithetical to historic rules, traditions and policies established to protect free speech and freedom of the press in the United States.[18] Under these circumstances, *403 Dow Jones maintains that, absent intervention by this Court, in defending the London Action Dow Jones would be compelled to incur enormous expenses and divert its editors and writers from their journalistic endeavors, and to operate with the uncertainty as to whether it may continue to publish the April 5 Article or face potential liability on account of it.
Accordingly, Dow Jones asks this Court to exercise its jurisdiction under the DJA to adjudicate the dispute. The judgment Dow Jones seeks would declare that any libel claim based on the April 5 Article would be insufficient as a matter of law on the grounds that the story contains no provably false statements of fact and represents only protected expressions of opinion, and that Harrods could not prove that Dow Jones acted with actual malice or gross irresponsibility in publishing it. Moreover, by reason of the running costs it would continue to incur, and the perceived threat of restrictions on its continued publication of the April 5 Article, Dow Jones requests an injunction barring Harrods and Al Fayed from pursuing the London Action or related litigation against Dow Jones in any other forum in the world.
Harrods counters that the Court lacks subject matter jurisdiction over Dow Jones' action because: (1) declaratory judgment relief is not the proper mechanism to resolve tort claims such as the defamation action underlying the parties' dispute; (2) Dow Jones' action represents a forum-shopping pre-emptive first strike brought in anticipation of a suit by Harrods the natural plaintiff in this matter which reflects a purpose not contemplated by the declaratory judgment statute; and (3) granting declaratory judgment to prevent Harrods from enforcing any recovery it may obtain in the London Action and to bar Al Fayed from instituting future litigation based on the April 5 Article would be improper because, on the basis of these contingent events alone, no "actual controversy" *404 within the meaning of the DJA exists here.
II. STANDARD OF REVIEW
The matter now before the Court relates to Harrods' challenge to the Court's subject matter and personal jurisdiction pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(2) respectively. Ordinarily, when presented with such a double-barreled jurisdictional attack, the Court should determine the subject matter challenge first.[19] Although this rule does not reflect an "unyielding jurisdictional hierarchy,"[20] and reasons of judicial economy may suggest a different sequence in particular circumstances, the Court finds that in the instant case efficiency is better served by adhering to the customary practice. Accordingly, the Court will address the subject matter issue first.
Rule 12(b)(1) challenges to subject matter jurisdiction are generally regarded as following two forms. The motion may attack either the facial sufficiency of the pleadings in the complaint or the existence of subject matter jurisdiction in fact, irrespective of the substantive causes of action asserted in the pleadings.[21] In a facial challenge, the court accepts as true the uncontroverted factual allegations in the complaint.[22] By contrast, in connection with a factual challenge the court's review is not confined to the pleadings, but may examine extraneous evidence submitted with the motion and make any findings of fact necessary to determine the existence of subject matter jurisdiction.[23] In that event, the court is not obligated to accord presumptive truthfulness to the allegations of the complaint. Rather, it may weigh the evidence on the record accompanying the Rule 12(b)(1) motion, or hold an evidentiary hearing, and decide for itself the merits of the jurisdictional dispute.[24] Finally, "[t]he burden of proving jurisdiction is on the party asserting it."[25]
Here, the underlying dispute does not entail Dow Jones' affirmative statement of a substantive cause of action. The Court construes Harrods' challenge to constitute an attack on the factual existence of subject matter jurisdiction under the DJA rather than a facial challenge to the sufficiency of the pleadings. Accordingly, the Court will consider the various affidavits and other documents submitted by both sides as these relate to the jurisdictional dispute and make factual findings as necessary to determine whether subject matter jurisdiction does exist.
III. DISCUSSION
This case encompasses the bounds, contours, purposes and interstices of the DJA.[26] That statute is an enabling law *405 which confers discretionary jurisdiction upon federal courts rather than an absolute right upon the litigant invoking the remedy.[27] Specifically, the statute provides that in a case of an "actual controversy" within its jurisdiction, "[a] federal court may declare the rights and other legal relations of any interested party seeking such declaration...."[28]
The DJA remedy was designed as a means to facilitate early and effective adjudication of disputes at a time when a controversy, though actual, may still be incipient, but before it expands into larger conflict. The action generally commences at the instance of a party facing potential liability to another who may have an accrued claim at that time but has not yet commenced coercive litigation to pursue relief. By enabling the parties to narrow the issues and differences and expedite resolution of their conflict, the DJA procedure helps to minimize the prolongation of disputes, reduce the risk of loss and avoid the unnecessary accumulation of damages.[29]
Declaratory relief thus not only functions as an adjudicatory device but serves a preventive purpose as well. It permits the court in one action to define the legal relationships and adjust the attendant rights and obligations at issue between the parties so as to avoid the dispute escalating into additional wrongful conduct. In this manner, the statute can avert greater damages and multiple actions and collateral issues involving not only the original litigants but potentially other third parties. So employed, the remedy promotes several utilitarian values in the adjudication of disputes: speed, economy and effectiveness. The Second Circuit, in Beacon Const. Co., Inc. v. Matco Elec. Co., Inc.,[30] has recognized these efficiencies as the primary purposes of the DJA. There, the Circuit Court noted that the statute was intended to "`afford a speedy and inexpensive method of adjudicating legal disputes without invoking the coercive remedies of the old procedure, and to settle legal rights and remove uncertainty and insecurity from legal relationships without awaiting a violation of the rights or a disturbance of the relationships.'"[31]
The motion before the Court raises three basic issues that arise from the plain language and stated purposes of the statute, and from a number of guiding principles that govern the applicability of the remedy: whether the action as described in the pleadings (1) raises an "actual controversy"; (2) falls within the scope of cases for which the DJA was intended, and (3) presents circumstances sufficiently compelling to warrant exercise of the *406 Court's discretion to grant or deny the relief requested. These issues are considered in turn.
A. ACTUAL CONTROVERSY
1. Meaning and Scope of Actual Controversy
As a threshold issue, DJA actions are justiciable only in cases in which an "actual controversy" exists.[32] The relevant inquiry for this prerequisite is coextensive with the analysis applicable to the "case or controversy" standard embodied in Article III of the United States Constitution.[33] To this end, the Supreme Court has reinforced that the DJA does not alter the essential predicates for the exercise of federal jurisdiction embodied in the prescription that "`[t]he judicial power does not extend to abstract questions' and that `[c]laims based merely upon `assumed potential invasions' of rights are not enough to warrant judicial intervention.'"[34] This requirement circumscribes federal jurisdiction to real conflicts so as to preclude the courts from gratuitously rendering advisory opinions with regard to events in dispute that have not matured to a point sufficiently concrete to demand immediate adjudication and thus that may never materialize as actual controversies. Recognizing the practical difficulties associated with fashioning a precise test to distinguish in every case between an abstract, hypothetical or academic question and a real and substantial controversy, the Supreme Court has acknowledged that the difference is necessarily a matter of degree. In Maryland Casualty Co. v. Pacific Coal & Oil Co.,[35] the Court offered as guidance that
[b]asically, the question in each case is whether the facts alleged, under the circumstances, show that there is a substantial controversy, between the parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.
The Supreme Court has stressed not only that the controversy must be sufficiently real and immediate, allowing specific and conclusive relief, but that it must also be ripe for adjudication. In Wycoff, the Court instructed that "[t]he disagreement must not be nebulous or contingent but must have taken a fixed and final shape so that a court can see what legal issues it is deciding, what effect its decision will have on its adversaries, and some useful purpose to be achieved in deciding them."[36] In a similar vein, the Second Circuit, in Muller v. Olin Mathieson Chem. Corp.,[37] reaffirmed that the measure of an actual controversy is necessarily relative and demands corresponding flexibility; it instructed that "[t]he difference between definite, concrete and substantial controversies which are justiciable, and hypothetical, abstract, or academic ones which are not justiciable, is one of degree, to be determined on a case by case basis."[38] Accordingly, a touchstone to *407 guide the probe for sufficient immediacy and reality is whether the declaratory relief sought relates to a dispute where the alleged liability has already accrued or the threatened risk occurred, or rather whether the feared legal consequence remains a mere possibility, or even probability of some contingency that may or may not come to pass.[39]
The "actual controversy" standard is conceptually linked to the doctrine of ripeness, requiring that the claim of threatened injury be of direct and immediate impact and the injury sufficiently likely to occur, so as to render the issue appropriate for judicial review.[40] In Laird v. Tatum,[41] the Supreme Court elaborated on this prerequisite. Reversing a determination that a sufficient controversy existed in an action for declaratory relief, the Court noted that allegations of a "subjective chill" on the exercise of First Amendment rights "are not an adequate substitute for a claim of specific present objective harm or threat of a specific future harm."[42]
2. The Actual Controversy Standard Applied
In the light of this overview of relevant principles, the Court is not persuaded that under the circumstances presented here Dow Jones has met its burden to sufficiently demonstrate the existence of an actual controversy.
Dow Jones contends the April 5 Article is non-actionable under American First Amendment jurisprudence, and hence that any judgment obtained in the London Action pursuant to foreign libel law principles repugnant to United States constitutional doctrine and public policy would be unenforceable in American courts.[43] Thus, under Dow Jones' theory, an actual controversy exists by reason of the mere potential that Dow Jones may be exposed to liability in the London Action and that its being compelled to defend a lawsuit that would be found meritless in any court in the United States violates Dow Jones' First Amendment rights. On this basis, Dow Jones asks the Court to declare unenforceable, *408 not only in the United States and the United Kingdom but anywhere else in the world, any libel judgment Harrods may obtain against Dow Jones in the London Action grounded on the April 5 Article. The Court cannot accept Dow Jones' proposition.
Even if Dow Jones' theory that a judgment against it in the London Action would be unenforceable in most or all American jurisdictions were conceded, it does not follow that the mere prospect that such a ruling may be rendered at some indefinite point in the future raises a sufficient actual controversy within the meaning of the DJA. The Court does not find enough immediacy and reality in Dow Jones' claim at this early stage of the London Action to warrant declaratory relief. In essence, Dow Jones' complaint is grounded on a string of apprehensions and conjectures about future possibilities: that the court in the London Action will find a basis to assert jurisdiction and will recognize the pleading of a sufficient claim; that an adverse ruling on the merits may be rendered against Dow Jones; that the adjudication may award Harrods compensatory damages or enjoin Dow Jones from publishing the April 5 Article; that Harrods may seek to enforce such judgment in the United States or elsewhere; that if enforcement is sought, the judgment will be recognized somewhere. At this juncture, however, these protestations and prospects amount to nothing more than what they still are: premature concerns about contingencies that may or may not come to pass.[44]
In fact, Dow Jones cannot assert with any degree of concreteness or certainty at this point that Harrods' claim in the London Action necessarily would prevail on jurisdictional defenses[45] or on the merits under applicable British libel law principles. It cannot identify which particular aspects of the April 5 Article the British court may find defamatory nor which method and timeframe of publication would be held actionable. What specific relief would be granted, whether monetary or injunctive, and whether a ruling against Dow Jones would be sustained on final appeal, are all speculative questions. Whether or not Harrods would attempt to enforce a favorable judgment in the United States or elsewhere is also uncertain.
Dow Jones' own express confidence that any judgment rendered against it in the London Action would be summarily dismissed in any United States court works against its strenuous assertions that it faces a real, sufficiently direct and immediate threat of injury. In this regard, given the current posture of the London Action, the Court finds that Dow Jones' claim of impending harm, and its fears of enforcement *409 of an adverse judgment, are too abstract, remote and hypothetical to constitute an actual controversy qualifying for the declaratory relief it seeks.
3. First Amendment Considerations
Dow Jones nonetheless contends that it is entitled to declaratory relief by virtue of the mere act of its having to defend what it considers a frivolous lawsuit in a foreign tribunal. It argues that this burden presents sufficient present harm and chilling effect on its First Amendment rights to constitute a justiciable controversy, and that this constitutional dimension elevates the stakes and should lower the threshold for finding an actual controversy, distinguishing this action from cases involving ordinary commercial disputes. In support of its proposition Dow Jones cites cases in which the Supreme Court has found it appropriate for federal courts to grant declaratory or injunctive relief barring parallel state court proceedings in which fundamental federal constitutional rights are threatened or not adequately protected.[46]
It is true that under some circumstances it is easier to satisfy the threshold of a justiciable controversy when the claim implicates First Amendment rights.[47] However, the precedents Dow Jones' argument relies upon, as the Supreme Court subsequently made clear, do not constitute the rule, but a rigidly narrow exception to settled doctrines. In Younger v. Harris,[48] the Court noted:
"[w]e hold that the Dombrowski decision should not be regarded as having upset the settled doctrines that have always confined very narrowly the availability of injunctive relief against state criminal prosecutions. We do not think that opinion stands for the proposition that a federal court can properly enjoin enforcement of a statute solely on the basis of a showing that the statute `on its face' abridges First Amendment rights."
The Younger Court recognized that not every chilling effect on freedom of expression presents a justiciable controversy warranting extraordinary equitable relief.[49] It found that no genuine controversy was presented with respect to parties who did not yet face prosecution under a statute alleged to infringe protected speech but who merely claimed that they "feel inhibited" in the exercise of First Amendment rights by reason of a state law.[50] Responding to this concern, the court observed: "[p]ersons having no fears of state prosecution except those that are imaginary or speculative, are not to be accepted as appropriate plaintiffs in such cases."[51]
With respect to the defendant in Younger who actually was prosecuted, the Supreme Court found that the prospect of defending a criminal proceeding under a statute regulating speech did not amount to sufficient basis, in and of itself, to support federal injunctive relief barring the state proceeding. The "chilling effect" on freedom of expression associated with such prosecution, the Court noted, "should not *410 by itself justify federal intervention."[52] Moreover, also germane to the issues Dow Jones' claim raises here, the Younger Court stated that: "Certain types of injury, in particular, the cost, anxiety and inconvenience of having to defend a single criminal prosecution, could not by themselves be considered `irreparable' in the special legal sense of that term."[53] And, as noted above, the Supreme Court also held in Laird that allegations of a "subjective chill" on the exercise of First Amendment freedoms are insufficient to create an actual controversy absent a concrete claim of specific present "objective" harm or threat of future harm.[54] Under these standards, this Court concludes that Dow Jones' allegations of present or future harm are neither sufficiently concrete, objective or specific to support a finding of an actual controversy justifying the extraordinary relief Dow Jones seeks.
4. Intercourt Conflict and Comity
The precedents Dow Jones cites in support of its argument are inapposite in other respects. Those cases allowed federal injunctions of state court proceedings under extraordinary circumstances. But they did so in the context of domestic federal-state principles under which the issuance of relief by a federal court could afford an effective, enforceable remedy. Under the Supremacy Clause and principles of federalism embedded in our constitutional structure, the federal and state systems of government, though separate, are also interconnected and interdependent in vital ways. As the Supreme Court noted in Wycoff: "State courts are bound equally with the federal courts by the Federal Constitution and laws."[55] Thus, final federal judgments must be given full faith and credit and conclusive effect in state courts.
The circumstances are quite distinct as regards the foreign proceeding at issue here. Dow Jones insists that a real controversy exists because the relief it seeks would declare preemptively that Harrods' cause of action in the United Kingdom would be nullified not only in the United States but, under the American "single publication rule,"[56] "anywhere else in the world, including the U.K. itself."[57] On this basis, Dow Jones asks this Court, in *411 aid of declaratory relief, to enjoin Harrods from pursuing its litigation in the London Action and every other possible forum. The Court cannot endorse such a farreaching request. The constitutional strictures of the Full Faith and Credit Clause do not extend to international assertions of jurisdiction, especially those that the forum state may consider extravagant or exorbitant.[58]
American law contains among the most extensive mantle of rights and safeguards to guarantee and protect individual freedoms and fundamental fairness. Gauged by the rigorous standards constituting the American conception of civil liberties and due process, the legal systems of many foreign states are bound to fall short as to any given basic precept our law encompasses. Accordingly, countless occasions inevitably arise when Americans are sued in foreign tribunals by parties invoking laws that in some aspect or other may not measure up to our constitutional mark or may even do violence to public policies and principles Americans hold dear not only those valued under the First Amendment, but under other vital protections of our jurisprudence.
Dow Jones maintains that in the contemporary world, the Internet has made communications originating in the United States instantly available almost anywhere on Earth and, consequently, has rendered publishers vulnerable to the application of foreign laws regulating speech and to potential liability incompatible with American First Amendment principles. At the cusp of this momentous development, Dow Jones urges, United States courts in general, and this Court in particular, are thus uniquely poised to seize the opportunity to reinforce and enlarge the First Amendment protections American publishers enjoy so as to bar preemptively potential liability for any alleged defamation injury their commercial activities conducted in this country and transmitted through the worldwide web may cause in foreign jurisdictions. Validating this proposition would make it appropriate and commonplace for litigants to resort to federal courts under the DJA to obtain declarations of non-liability and injunctive relief whenever a party alleges that it faces even a mere prospect of a lawsuit or contingent liability in a foreign jurisdiction whose laws or procedures may conflict in some way with fundamental rights enjoyed under United States law.
Thus, under Dow Jones' hypothesis, the DJA would confer upon an American court a preemptive style of global jurisdiction branching worldwide and able to strike down offending litigation anywhere on Earth. Intriguing as such universal power might appear to any judge, this Court must take a more modest view of the limits of its jurisdiction, and offers a more humble response to the invitation and temptation to overreach. The Court finds nothing in the United States Constitution, nor in the DJA or in customary practice of international law, that comports with such a robust, Olympian perspective of federal judicial power.
Dow Jones itself implicitly acknowledges a first manifest flaw in its argument. It contends that the judgment it seeks from this Court would have a direct impact and immediately end the London Action "[i]f *412 recognized by the British court," an eventuality Dow Jones suggests "likely would" happen.[59] Dow Jones cites no authority for its bold proposition, other than the conclusory assertion of its London counsel. The statement is not only speculative, but strenuously contested by Harrods' own solicitor, who questioned "on what basis it could possibly be said that an English court would recognize and apply a decision by an American Court as to whether a publication in England was actionable in accordance with English law,"[60] and expressed doubt "that the English court would be greatly influenced by the fact that the defendant had sought declaratory relief, presumably on the basis of the American law of defamation, in New York."[61] In light of such divergent expressions of legal opinion on foreign law by advocates for the two parties, neither thoroughly briefed, the Court is not in a position to accept as uncontroverted fact Dow Jones' hypothesis that the British tribunals would unquestioningly recognize a declaratory ruling of this Court as dispositive of the matters at issue in the London Action. The Court need not resolve definitively which version of English rules governing this point more closely reflects applicable law, although it better comports with this Court's notion of common sense and the practicalities of judicial administration to find Dow Jones' theory highly improbable.
Moreover, the large contingency reflected by that prominent "IF" would apply in every other corner of the globe where Harrods might alternatively choose to litigate the events at issue in the London Action or enforce an ensuing judgment. The argument presupposes an equally doubtful premise: that every other plausible sovereign jurisdiction in this world would similarly recognize the wisdom and commendable respect that the British tribunal would exhibit if it were to honor the higher authority of American law that this Court would have proclaimed dispositive and binding, and, in an equally pliant and agreeable display of deference, likewise would bow to this Court's presumed superior judgment.[62]
The Court cannot share Dow Jones' ebullient faith in this prospect. Just as the Court's professed perception of its authority to grant the relief sought here is more restrained than the vision Dow Jones' theory tenders, the Court also harbors a skeptical view of the international recognition that would be accorded to a preemptive declaration by this Court to the effect that, because under American law a person could not be sued for a particular libel published in the United States, that party therefore could not be sued anywhere else in the world under the laws of any other country where the libel was actually published and plausibly may *413 have caused harm. In this Court's reckoning, the realities and practicalities endemic to international relations do not allow for placing much stock in Dow Jones' sanguinity on this point. Any forecast of political or social consequences or even of legal expectations concerning issues on a global scale is bound to be subject to countless variables and imponderables whose vagaries render such oracles suspect and not sufficiently meaningful as grounds for hard judgments.
In fact, Dow Jones' hypothesis finds no support in international law principles or practice. As one leading commentator observed: "Courts of foreign countries, while likely to use comity language, will be reluctant to give effect to any injunctions purporting to restrain their own citizens and transactions."[63] Nor is Dow Jones' proposition likely to gain a sympathetic ear in the United Kingdom to compel a stay of the London Action in favor of the instant proceeding in this Court. Under British practice, where a plaintiff in England is the defendant in a foreign action involving the same parties and events, the courts are reluctant to stay the English proceedings.[64] "`The court ought not to stay a plaintiff in the courts of this country on the ground that he happens to be a defendant elsewhere.'"[65] Even were this Court to grant the relief Dow Jones seeks, its judgment may not be entitled to recognition or enforcement in the United Kingdom to the extent the British courts may find it contrary to English public policy,[66] or to constitute an effort to prevent the administration of justice for an unjust end.[67]
5. Other Case Law
Other authorities Dow Jones cites for its expansive proposition are not on point. In Yahoo!, Inc. v. La Ligue Contre Le Racisme et L'Antisemitisme,[68] plaintiff Yahoo! sought a judgment declaring unenforceable in the United States a ruling that defendant, a French entity, had obtained from a tribunal in France. The French order directed Yahoo! not to post for sale through its online auction network accessible in France any items of Nazi memorabilia. The district court rejected defendant's argument. It held that there was no case or controversy because the French tribunal's order was still provisional and subject to appeal prior to any enforcement in the United States.[69] The Yahoo! facts are easily distinguishable from those at issue here.
First, the French proceeding was not an incipient lawsuit, or litigation still in its early stages, or merely a feared result that might arise from the prosecution of such a case. Rather, the declaratory action there challenged, after the fact, one consequence of an adjudication that had already been reduced to an actual official order issued by a government tribunal. Thus, the particular conduct which that judgment did or did not encompass, what the foreign tribunal ordered or did not order Yahoo! to do, as well as the specific penalties and timeframe *414 for compliance it imposed, were all substantial, real and immediate. The effects of the French order were concrete and known to Yahoo!. In fact, Yahoo! had sought to comply with it, and the defendant had acknowledged Yahoo!'s substantial compliance, but had not taken steps to withdraw the action.
Second, the French order explicitly extended to an American national's activities in the United States. Compliance with the order required Yahoo! immediately to modify its business operations and the content of its expression in the United States. Third, the order specifically directed enforcement in the United States. Defendants twice used the United States Marshal's office to serve the French order on Yahoo! in California. And the French court prescribed that the penalties assessed against Yahoo! could not be collected from Yahoo!'s affiliate in France.
Finally, the federal declaratory relief Yahoo! sought was limited to a determination that the French order would not be cognizable under the laws of the United States nor enforceable in this country. There was no indication that Yahoo! sought the federal court to bar the French court from prosecuting the action in France or from enforcing its order within any French jurisdiction. Nor was there an implicit argument that because Yahoo's conduct was not actionable in the United States under American law, it could not be actionable at all either in France under French law, or anywhere else. In fact, the Yahoo! court underscored that these issues were not before it. Recognizing France's sovereign prerogatives to govern affairs within its borders, the Court stated: "A basic function of a sovereign state is to determine what forms of speech and conduct are acceptable within its borders."[70] Thus, the practical and enforceable remedy sought in Yahoo! did not implicate judicial ambitions nor arguably extra-judicial forays and intrusions into international affairs. Nor did it place in contention the constitutional dimensions, or the worldwide ramifications for which the DJA is invoked here.
Farrell Lines Inc. v. Columbus Cello-Poly Corp.[71] is equally unavailing. Dow Jones cites that case as precedent for the proposition that in aid of declaratory relief a federal court may enjoin parties from pursuing or maintaining litigation in a foreign country. In Farrell, the litigants were parties to a commercial shipping transaction reflected in a maritime contract which contained a forum selection clause providing for United States law to govern its construction and designating New York as the venue to adjudicate any claims arising under the agreement.[72] Plaintiff was the owner and operator of the ship and defendants the insurers of cargo damaged at sea. The goods at issue were being shipped to a recipient in the United States in a vessel owned by a United States corporation and registered in the United States, and the accident occurred in the United States. Plaintiff's declaratory judgment action sought no more than to give effect to the parties' contractual commitments under the bill of lading's limitation of liability, venue and choice of law provisions. The defendants, however, subsequently brought suit in Italy claiming that the Italian limitation of liability and forum selection rules applied.
The court found that defendants' challenge to the applicability of the bill of lading's restrictions established the existence *415 of an actual controversy. Reaching the merits, the court concluded that under federal admiralty and choice of law rules, the enforceability of the forum selection clause would be determined by United States law in accordance with the parties' designation. Accordingly, the federal limitation of liability and forum selection governed, rendering defendants' proceeding in Italy impermissible. The Court concluded that injunctive relief was warranted because defendants' competing litigation in Italy was specifically intended to evade the jurisdiction of the federal court, avoid application of the contractual provisions the parties had agreed upon, and thus frustrate important public policies of the forum.
The Farrell court's judgment was fully dispositive of the controversy because it declared the relations between the parties, and their attendant rights and liabilities, applying the substantive law of the forum designated in the bill of lading. Given the contractual basis of the dispute, the conflict was immediate and real and readily determinable through declaratory relief by reference to an agreement circumscribing the legal parameters of the controversy. There was no dispute that an accident had occurred, nor that the cargo was damaged and liability existed. The United States limitation of liability either did or did not apply; the forum selection clause was or was not enforceable; defendants' litigation in Italy was or was not inconsistent with the parties' business arrangement. The litigation in the two separate forums was essentially the same and subject to effective resolution by a federal court vested with proper jurisdiction. No settled expectations of the litigants could have been disturbed by the declaratory and injunctive relief granted by the federal court.
The Farrell controversy is thus also easily distinguishable from the matter at hand. Unlike the instant case, it did not raise the delicate issue concerning potential assertions of competing adjudicatory power, nor the scope of a cause of action whose defining elements were grounded on the substantive law of a foreign nation. Clearly, effectuating an agreement containing a forum selection provision to resolve a maritime dispute cannot be equated with the far more intricate and expansive relief Dow Jones seeks in this Court, a remedy that by Dow Jones' own argument presents constitutional and international comity implications not at issue in Farrell's ordinary admiralty contract dispute.
The governing law there was predetermined by the parties, and its application readily adjudicated the controversy. By contrast, there is no touchstone by which this Court can dispositively rule that American law should be applied in the case at hand to resolve a conflict pending in a British court involving a claim allegedly arising in the United Kingdom under English law. The Farrell court also was not called upon to extend the reach of its authority extraterritorially as this Court is urged to do with the desired relief being motivated by substantive choice of law reasons, so as to preclude consideration by a foreign court of an action brought by a national of the foreign country that effectively would have barred application of that nation's own laws to a dispute properly before its courts. In sum, the Farrell court was merely called upon to give expression to the contractual intent of the parties to a controversy properly within its jurisdiction, and not to prejudge the outcome of a foreign proceeding by means of a normative conjecture about the quality of justice that a judicial tribunal of another country, if not restrained by the intervention of an American court, would likely render, and by these means compelling the rescue of a domestic litigant from a conjured travesty of law.
*416 More compelling and germane to the action before this Court are the cases in which federal courts considered the appropriateness of granting declaratory relief and found no actual controversies in a context implicating international comity issues more analogous to those entailed here.
In this regard, Basic v. Fitzroy Eng'g, Ltd.[73] is closer on point. There, plaintiff ("Basic") and his company ("BEE") entered into an agreement with defendant ("Fitzroy") for BEE to perform design and engineering services for Fitzroy in connection with the installation of a generator in New Zealand. A contract dispute arose which Fitzroy, pursuant to the agreement, took to arbitration. BEE failed to appear in the proceeding and the arbitrator entered a default order against it. Fitzroy then filed an action in New Zealand against Basic alleging that Basic had made negligent misrepresentations that had induced Fitzroy to contract with BEE and Basic.
Basic entered a limited appearance in the New Zealand action to challenge the court's personal jurisdiction and the appropriateness of venue. While the New Zealand action was pending, Basic filed suit in federal court in Illinois seeking declaratory judgment. The complaint asserted various grounds for relief, including that: (1) the New Zealand action was barred by issue and claim preclusion, (2) Fitzroy's claims for negligent misrepresentation were not cognizable under Illinois law, and (3) the New Zealand action was inconsistent with American public policy.[74]
In a motion to dismiss the complaint, Fitzroy argued that the court lacked subject matter jurisdiction to grant the type of declaratory relief Basic sought. The Basic court agreed. It found no "actual controversy" in Basic's claim that a judgment in favor of Fitzroy in the New Zealand action would be unenforceable in the United States.[75] Elaborating on this point the court noted:
Basic seeks to have the court declare a future foreign judgment invalid and unenforceable even before Fitzroy has the opportunity to have the future judgment entered by the New Zealand court and confirmed in a United States federal court. Put another way, Basic's act of filing the instant Complaint is an attempt to render null and void a possible future New Zealand judgment, a judgment which "may never come to pass."[76]
The district court found Basic's request improper and denied declaratory relief for several reasons. The New Zealand action was at a relatively early stage, awaiting an appellate ruling on Basic's jurisdictional challenge. On this basis, a federal court's ruling on the prospective effect of a New Zealand ruling would be premature. Second, the court could only surmise as to the claims which would be sustained by any judgment in the New Zealand action, because in any litigation such claims are always subject to change. Third, the court concluded that granting the relief Basic requested would not serve the purpose of the DJA, in that the declarations sought would not "help him avoid imminent harm" prior to an impending injury-causing event.[77]
Finally, addressing Basic's contentions that judgment in the New Zealand action would be inconsistent with Illinois law and *417 unenforceable as contrary to American public policy, the court concluded that even if it made such findings, the declarations would be "worthless."[78] In this regard the court stated:
The action brought by Fitzroy asserts violation of New Zealand law, and findings by this court favorable to Basic would, for obvious reasons, result in neither persuasive nor binding authority on the New Zealand court. The only effect of such declarations would be on Fitzroy's ability to enforce the foreign judgment in the United States. Yet, such a determination by this court at this juncture would be premature. Assuming that Fitzroy prevails on the [New Zealand] action, Basic will have the opportunity to argue the same issues raised in this Complaint to the federal district judge to which any enforcement proceeding is assigned.[79]
Here, viewing as a whole the allegations in the complaint and the contentions Dow Jones raises in connection with the instant motion, it appears that what Dow Jones has erected as its case for the existence of an actual controversy justifying declaratory relief is merely guesswork, an abstract tower of hypotheticals stacked like a house of cards on suppositions piled on top of speculations all founded on conjectures and contingent "ifs", "mays" and "to the extents."
"If' the London Action is not enjoined, the argument goes, Dow Jones may be sued not only in the United Kingdom but in any other country where the offending publication appeared; if so, Dow Jones necessarily will be held liable; if so, Dow Jones may be ordered to pay damages and/or it may be directed to cease future publication of the article "to the extent that the U.K. court were to issue an injunction" so ordering;[80] Harrods may seek to enforce any judgment not just in the United States but conceivably in other countries. And, as already mentioned, as the antidote to these hypotheticals, if this Court were to grant the relief Dow Jones seeks, the conflict may be fully resolved, closing the loop of surmises, but only "if' the courts in the United Kingdom (and presumably elsewhere) were to recognize and enforce this Court's judgment.
As the Basic court found under comparable circumstances, such future contingencies ordinarily do not constitute a proper basis for declaratory relief: "The Constitution does not allow a federal district court to issue advisory opinions based on fears of future judgments and speculation."[81] On this basis, and other considerations discussed above, the Court concludes that Dow Jones' claim does not present a actual controversy warranting the declaratory and injunctive relief it seeks.
With regard to Al Fayed, Dow Jones acknowledges that he has not asserted or threatened any claim against Dow Jones, nor is he a party to the London Action. Dow Jones nonetheless contends that, by reason of Al Fayed's role as chairman and owner of Harrods, and Harrods' "propensity ... to mingle its corporate purposes with promotion of Mr. Fayed's personal interests," while he has "not yet" sued, Dow Jones has no assurance that Al Fayed would not do so, and "believes that Mr. Fayed may in fact sue Dow Jones in the future."[82]
The Court finds these unsubstantiated contingent fears insufficient to support a *418 finding of an actual controversy warranting the requested declaratory judgment against Al Fayed.
B. PURPOSES OF THE DJA
Dow Jones endeavors to shore up the loose sands of contingencies grounding much of its request for declaratory relief by adding a measure of concreteness in real damages it claims to be actually suffering on account of the London Action. It contends that a declaratory judgment would relieve it from "vexatious and oppressive" litigation in another country, in that: (1) the London Action cannot result in any substantial recovery either in the United Kingdom, where Dow Jones maintains no substantial assets, or in the United States, where no court would enforce a judgment based on the April 5 Article; (2) the expense of defending the London Action would be considerable; (3) Dow Jones journalists would be diverted from their news reporting tasks if required to participate in defending the London Action; and (4) the pendency of the London Action causes Dow Jones to be uncertain and insecure in the exercise of its right to continue publishing the April 5 Article.[83] These types of damages, Dow Jones maintains, are real and immediate and infringe on its "constitutional right not be forced to defend harassing litigation in a distant forum."[84]
Thus, bared of the hypotheticals and apprehensions about wrongs and injuries that may or may not occur, what Dow Jones asks this Court to do, in general terms distills to this: to apply the DJA as a defensive shield, a preemptive means to immunize a litigant from the inevitable costs and inconveniences attendant to any form of potential litigation arising from the party's alleged wrongful acts. In essence then, the question the Court must answer is whether the DJA was meant to serve this sanctuarial purpose, and whether it makes a difference that the asserted harmful conduct relates to exercise of First Amendment rights, in this case a protected publication. The Court finds nothing in the statute or in pertinent case law that lends cogency or force to such an application of the DJA.
1. Constitutional Dimensions
A predicate of Dow Jones' theory is that as regards a claim by a publisher alleging infringement of its freedom of expression by reason of a lawsuit against it arising out of a publication, the First Amendment may be invoked as a refuge to guard against the various burdens and effects ordinarily associated with litigation, whether foreign or domestic. There is no merit to such a far-reaching proposition. First, as already discussed above, the Supreme Court has declared that even in the much more profoundly harmful context of a criminal prosecution instituted under a tenuous statute regulating speech, alleged injuries such as the cost, anxiety and inconveniences an individual may suffer by being compelled to defend litigation are not sufficient by themselves to be considered irreparable, and thus to justify extraordinary federal injunctive relief to bar state judicial proceedings.[85] The Second Circuit has also rejected as insufficient grounds for relief a publisher's conclusory and speculative assertions claiming a chilling effect on First Amendment rights when based merely on its having to defend an allegedly unmeritorious lawsuit.[86]
*419 Second, however subjectively vexatious or oppressive defending a lawsuit may be deemed, even by a publisher, an asserted "right not to be forced to defend harassing litigation in a distant forum"[87] must be balanced against the no less weighty and fundamental due process right of every person in our society to fair access to the judicial system in order to have his day in court.[88]
As the claim is articulated here, the Court fails to see how it matters that the forum in which the action Dow Jones objects to is far away or near. Dow Jones' invocation of its purported right to be protected from litigation "in a distant forum" could not be distinguished from the defense of litigation on the part of many publishers, no doubt including Dow Jones, routinely sued on any given day all over the country on claims the defendants may regard no less frivolous, harassing or oppressive than those Dow Jones faces here. It could not be unusual to a publisher in one part of the country to be subjected to a lawsuit instituted in distant jurisdictions, even when it may consider the action entirely unmeritorious under established First Amendment principles. The potential costs, diversion of personnel and resources, the effects of an adverse ruling and other inconveniences associated with defending such litigation would be no less burdensome than those Dow Jones complains of in the instant case. To address legitimate concerns about potential inconvenience to the parties, appropriateness of venue or source of substantive law, aggrieved litigants may avail themselves of established procedures and remedies such as the doctrine of forum non conveniens and principles of judicial abstention or comity.[89] But the response to these potential burdens is not as a routine matter to preemptively shut access to the courthouse in one forum by an anticipatory restraining order issued in another jurisdiction.
Neither is it persuasive that the law governing the allegedly burdensome litigation is claimed to offend fundamental federal rights, or that it is foreign rather domestic law. It should come as no surprise to a publisher doing business in many jurisdictions to be hauled into a state court anywhere in this country to defend an action brought under a then prevailing theory of state law whose concept or application of the First Amendment may not conform in some particular way with the understanding the publisher advocates. That a litigant quarrels with a given substantive state law and asserts that on its face a domestic libel suit based on it should be summarily dismissed as hostile to the First Amendment and that any judgment rendered pursuant to it would be patently unenforceable, does not by itself render that affirmative defense eligible for recognition in federal court as a barrier to alleged potentially costly, burdensome or even "chilling" litigation in a state forum.[90] Again, this principle is the same when the application of law is that of a foreign country.[91]
*420 Yet, under the logical extension of Dow Jones' theory, a publisher would be entitled as a matter of course to invoke the DJA as protection and relief from any subjectively irksome and self-declared frivolous litigation affecting freedom of expression, implicitly investing the DJA with operation as a source of substantive rights a purpose for which the statute was not envisioned.[92]
2. Antisuit Injunctions
To be sure, the Supreme Court has left open the possibility that a strong demonstration of bad faith or harassment sufficiently unusual or unconscionable could justify federal intervention to protect the exercise of First Amendment rights against a particular potential infringement in a state proceeding.[93] It made clear, however, that such interference could be justified only in very narrow, "extraordinary circumstances."[94] The conditions under which this rigorous standard may be satisfied are rare and strictly confined: where an injunctive remedy is necessary in aid of the court's jurisdiction or to protect or effectuate its judgments.[95] These circumstances ordinarily arise post-judgment in cases where a party, by filing a separate action in another forum, seeks to relitigate matters already adjudicated, or pre-judgment where the litigant otherwise acts unconscionably or in bad faith to frustrate the exercise of the first court's proper jurisdiction in order to circumvent domestic laws.[96]
What public policies these rules encompass, and to what extent domestic law may be vitiated by a foreign proceeding before comity is not entitled to recognition and injunctive relief may be justified, is not clearly defined. Comity would not be warranted, however, where the purpose of the foreign interference is specifically designed to impede the forum court's exercise of its proper jurisdiction and thereby hinder its ability to adjudicate a particular conflict pending before it.[97] Under these circumstances denial of comity may be justifiable not necessarily on account of the repugnance of the foreign jurisdiction's justice system whose protection a litigant has invoked, but by reason of the apparent purposeful evasion of the forum's public policies and judicial power.[98]
Here, Dow Jones has not made a persuasive case that Harrods' mere filing of the London Action represents sufficient extraordinary circumstances demonstrating unconscionable bad faith or harassment.
The case at hand is not one in which objectively unusual vexatiousness or bad faith is clearly evidenced by absence of any legitimate basis for Harrods to be litigating in the British courts for no reason other than as a tactic calculated to evade *421 compliance with domestic law or frustrate important public policy.[99] To the contrary, Harrods' defamation claim in the London Action relates only to injury alleged by a British national to have arisen by publication of the April 5 Article in the United Kingdom and the action is being pursued there under British law.[100] Dow Jones acknowledges that it has affiliates that publish European print editions of the Journal, that it holds some (though allegedly not substantial) assets in the United Kingdom, where it presumably maintains some presence or conducts business activities in London, and that the April 5 Article was accessible online to paid subscribers of WSJ.com, some of whom are probably situated in Britain.[101]
On the facts before it, there is no basis for the Court to find that Harrods' claims could not state a cognizable cause of action under British law, or that the British courts have no legitimate grounds pursuant to their applicable rules and procedures to assert jurisdiction over the dispute so as to decide whether or not Harrods' pleadings state a sufficient defamation claim.[102]
3. Concurrent Jurisdiction
a. Jurisdictional Basis
The Court already determined above that this action warrants dismissal because no actual controversy exists in the current posture of the case. However, even assuming for the purposes of this argument that some element of Dow Jones' claims did present an actual controversy under American law, the end result may not differ. In that event, at best the case may be viewed as presenting an instance of the Court's concurrent jurisdiction to adjudicate, and the proper approach to a resolution of the dispute would apply the corresponding jurisdictional analysis. On this hypothesis, the fundamental public policy and laws of two sovereign states governing defamation conceivably may apply to regulate some aspects of the same publication and to confer authority upon their respective courts to adjudicate the underlying controversy. Any intercourt dispute that may arise in that event may be addressed by traditional conflict of laws principles and choice of forum analysis applicable to divergent assertions of judicial power.
The state's exercise of jurisdiction to adjudicate, as an adjunct of the power to prescribe governing law, generally derives from the relationship of the state to the particular person or thing that is the subject of the litigation, including the defendant's presence, conduct, or ownership of property within the state, or conduct occurring outside the state's territorial boundaries but producing certain kinds of injury within the state.[103] Based on these predicates, the United Kingdom may have legitimate national interests and a valid jurisdictional basis to exercise jurisdiction to protect its residents from the harmful effects of an alleged defamation action arising within its boundaries. At the same *422 time, the United States has a profound interest in fostering its broad concept of First Amendment freedoms, and safe-guarding the freest exercise of those fundamental rights within the United States by all persons accorded the protection of American law.
In cases where national jurisdiction overlaps and an apparent conflict over competing assertions of judicial authority exists, the Court must examine the sufficiency of the respective jurisdictional contacts and interests to ascertain whether either claim is unsubstantiated, or whether guiding principles apply that on balance compel a particular method to resolve the tension.[104] The Court could exercise discretion to intervene in the parties' proceeding with the London Action, and would be under no obligation to defer to the British tribunal, for example, if it found that in fact there was no clear justification for the exercise of adjudicatory power by the United Kingdom over the matter because its assertion of jurisdiction is extravagant, and that allowing the parties to pursue the foreign litigation would violate fundamental interests of the United States.[105]
b. Basis for Injunctive Relief
But even when concurrent jurisdiction to adjudicate does exist, that circumstance by itself does not produce conflict, nor is it sufficient to justify one forum's exercise of judicial power to interfere with or restrain parallel proceedings in another.[106] Federal courts do have power to exercise control over the conduct of parties within their jurisdiction extending to restraining them from pursuing litigation in foreign tribunals.[107] Under settled doctrine, however, the authority of federal courts to enjoin foreign lawsuits involving litigants within their jurisdiction, where it is appropriate, should be used sparingly and granted only with care and restraint.[108] As the Second Circuit has cautioned: "[B]ecause an order enjoining a litigant from continuing a foreign action is facially obstructive, international comity demands that this extraordinary remedy be used only after other means of redressing the injury sought to be avoided have been explored."[109]
To guide the courts in applying these restrictive standards, the Second Circuit has recognized an approach entailing several considerations. First, the court must determine as a threshold matter that (1) the parties in both matters are the same, and (2) resolution of the case before the enjoining court must be dispositive of the action to be restrained. Upon finding these requirements, a court should then consider other relevant factors: (1) frustration of a policy in the enjoining forum; (2) vexatiousness of the foreign *423 action; (3) threat to the enjoining court's jurisdiction; (4) the foreign proceedings' prejudice to other equitable considerations; (5) delay, inconvenience, expense, inconsistency or race to judgment engendered by adjudication of the same issues in separate actions.[110]
Here, the alignment of the parties in the concurrent proceedings is not identical: Al Fayed is not a plaintiff in the London Action but is a defendant in the case before this Court. But even if, as Dow Jones contends, Harrods and Al Fayed are effectively the same party for the purposes of this motion,[111] the Court is not persuaded, as discussed above, that granting declaratory relief in this action would be dispositive of the litigation in Britain. Because the essential purpose of this Court's declaratory relief and attendant injunction in aid of it would be to nullify the United Kingdom's exercise of jurisdiction in the London Action, there is no certainty that the English courts would honor the Court's judgment. In fact, a substantial basis and greater likelihood may then exist to justify the British tribunals' issuing a counterinjunction designed to protect their own rightful assertion of adjudicatory power.[112]
Dow Jones, citing Farrell, nonetheless argues that the test of whether this Court's judgment is dispositive does not rest on whether or not the English tribunals choose to respect this Court's resolution of the dispute, but on whether the subject matter of the competing actions is substantially the same. Dow Jones contends that under an application of the American single publication rule, the proceedings in the London Action and the case before this Court are substantially the same. The Court finds Dow Jones' premise and reasoning unpersuasive. Application of the American single publication rule would be only the means by which this Court would justify disrupting the London Action. However, that course would not necessarily ensure, given the extraterritorial intrusion, that the matter would conclusively rest there. Nor, however the circumstances underlying the two cases may be parsed, can this Court convincingly conclude that the two actions in question, even if the parties were identical, are substantially the same. With regard to the April 5 Article, Dow Jones seeks a declaration of non-liability under an application of American libel law principles on the theory that the publication occurred in the United States and that Dow Jones did not have sufficient connection with any injury the article may have caused Harrods in England. The London Action, on the other hand, entails a claim of liability asserted under English law for a wrong that allegedly was committed in England to a British national. Second Circuit doctrine instructs that in such circumstances the principle of international comity comes into play and that the Court should not restrain the foreign proceeding, even if denial of relief would require the party seeking the injunction to defend the related or even identical action brought under foreign law.[113]
Moreover, assuming that the London Action entails application of British law to a cause of action arising in the United *424 Kingdom, there was legitimate basis for Harrods to be in the British court, and that forum would have sufficient jurisdictional ground to adjudicate the underlying dispute free from any interference by this Court. There is evidence of sufficient relationship between the United Kingdom and the litigants and the underlying events and injury to presumptively render the exercise of jurisdiction by the British court not unreasonable.[114] Insofar as it may be ultimately determined that Dow Jones maintains sufficient presence or conducts substantial business activities in the United Kingdom,[115] and has paying online or print subscribers to whom the April 5 Article may have been published there, or that its publication of the April 5 Article, even if it had occurred outside Britain, had a substantial, direct and foreseeable effect within the United Kingdom, Dow Jones may have subjected itself to the application of Britain's laws and the jurisdiction of its courts, at least with regard to those activities.[116] It therefore would not "offend `traditional notions of fair play and substantial justice'"[117] for courts in the United Kingdom to exercise jurisdiction over Dow Jones and compel it to defend injuries allegedly caused by its commercial activities there. Nor could such action deprive Dow Jones of any reasonable expectations in the conduct of its business affairs in the United Kingdom.
While Dow Jones asserts that the April 5 Article was published only in the Journal's United States print editions and on its WSJ.com website, the Court has no basis to find as a matter of fact or law that the publication did not occur in Britain to a degree sufficient to cause harmful effects there justifying exercise of jurisdiction by the British court. That is a factual issue integrally connected with the merits of what the British tribunal's jurisdiction was invoked to resolve. Until Britain's courts rule on the matter, this Court, even if it possessed concurrent jurisdiction over some aspects of the controversy and honoring the doctrine of international comity discussed below in greater detail, should defer to the proceedings in the foreign tribunal where the matter properly lies.[118]
Turning to the other side of the scale, the interest of the United States in protecting the freest possible exercise of constitutional speech and press freedoms by its nationals in this country is undisputably a vital governmental end. However, whatever legitimate jurisdictional contacts and interests the parties in this forum may have to invoke the Court's authority over the controversy would not necessarily be foreclosed by the Court's deference to the British tribunals at this juncture. Those interests could be preserved and asserted in subsequent proceedings in the United *425 States depending on the ultimate outcome of the London Action.
Moreover, addressing the content of the publication itself, though Dow Jones minimizes its April 5 Article as a jocular response to Harrods' April Fool's prank, given the sensitivity of the time and the context when the term "Enron" was being grafted onto the English language,[119] whatever view this Court may have about the reality of any injury caused by such a remark, it cannot summarily declare that a defamation action commenced in the forum where the injury allegedly occurred and under laws of that jurisdiction invoked by its nationals, must necessarily be dismissed as a matter of law as frivolous and motivated by unconscionable bad faith.
With regard to the factor of public policies, the Second Circuit has instructed that an injunction may be appropriate when a party seeks to evade important policies of the forum state by commencing litigation in a foreign court.[120] The Circuit Court stressed, however, that while an attempt to evade compliance with laws of the forum state that effectuate important public policies may justify a restraining order, such relief "is not appropriate merely to prevent a party from seeking slight advantages in the substantive or procedural law to be applied in a foreign court."[121] On this point, the Sabena court elaborated that: "An impermissible evasion is much more likely to be found when the party attempts to elude compliance with a statute of specific applicability upon which the party seeking an injunction may have relied, and which is designed to effectuate important state policies."[122]
There is no evidence here that Harrods' London Action was necessarily motivated by attempts to avoid compliance with American law or important public policy. Rather, the foreign litigation seems grounded on a British subject's wish to avail itself of the substantive or procedural law applicable in the jurisdiction where the alleged injury occurred.
Finally, concerning considerations of claimed vexatiousness, expense and inconvenience associated with defending foreign litigation, Second Circuit doctrine instructs that these factors alone do not suffice to warrant injunctive relief intended to restrain parties within the Court's jurisdiction from litigating a related matter in a foreign court, and thus must yield ground to interests and concerns compelled by principle of international comity.[123]
Absent more compelling circumstances than those alleged here, this Court cannot agree that it is an appropriate purpose of the DJA to apply the statute's remedy as a protective shield on behalf of a potential defendant against the costs and bothers of litigation, whether foreign or domestic, even when that litigant asserts First Amendment rights as a basis for relief.
4. Preemptive Judgments
In the final analysis, what Dow Jones' resort to the DJA amounts to is an anticipatory interposition of a defense as affirmative armor to ward off damages from a potential tort action by preemptively procuring a federal declaration of nonliability. *426 In Wycoff the Supreme Court provided some guidance relevant to a proper analysis of this circumstance:[124]
Where the complaint in an action for declaratory judgment seeks in essence to assert a defense to an impending or threatened state court action, it is the character of the threatened action, and not the defense, which will determine whether there is federal-question jurisdiction in the District Court. If the cause of action, which the declaratory defendant threatens to assert, does not itself involve a claim under federal law, it is doubtful if a federal court may entertain an action for a declaratory judgment establishing a defense to that claim. This is dubious even though the declaratory complaint sets forth a claim of federal right, if that right is in reality in the nature of a defense to a threatened cause of action. Federal courts will not seize litigations from state courts merely because one, normally a defendant, goes to federal court to begin his federal-law defense before the state court begins the case under state law.
Similarly, in Brillhart v. Excess Ins. Co. of Am.,[125] the Supreme Court noted that "[o]rdinarily it would uneconomical as well as vexatious for a federal court to proceed in a declaratory judgment suit where another suit is pending in a state court presenting the same issue, not governed by federal law, between the same parties." The principle that Wycoff and Brillhart articulate, as applied by other courts, should be equally apt in a case where, as here, the alternate forum involved is a tribunal in a foreign nation and the declaratory defendant's asserted or threatened cause of action with which the federal litigation conflicts or duplicates arises under the laws of that country.[126]
The Court is mindful that there are circumstances in which anticipatory judgments of non-liability may be appropriate under the DJA, particularly in regards to claims asserting unaccrued or undefined rights or obligations arising under contractual relations such as insurance and intellectual property.[127] However, where the purported use of the DJA seeks a declaration of non-liability to preemptively defeat actions grounded on tort claims involving rights already accrued by reason of alleged wrongful conduct, various courts have held that that application is not a warranted purpose of the DJA.[128] The Seventh Circuit, for example, characterized the use of the statute to compel potential personal injury plaintiffs to litigate their claims at a time and in a forum chosen by the alleged wrongdoer as a "perversion of the Declaratory Judgment Act."[129]
Here, the character of the action pending in the foreign jurisdiction is a tort suit charging defamation, and the purpose Dow *427 Jones asserts in this Court amounts to a federal-law affirmative defense intended to frustrate the other proceeding and thus permit Dow Jones to avoid having to defend foreign litigation it deems vexatious where the underlying dispute arises under foreign law. By these means, an anticipatory restraining order of this Court would wrest the action from the London court before it is fully heard there under British law, and it would enable Dow Jones to invoke the preclusive effect of this adjudication in any future action between the parties arising from the same events. The Court finds that this application of the DJA, for a tactically preemptive purpose of declaring non-liability so as to guard against a tort action brought by a foreign national in a court of another country and arising under foreign law, is not within the contemplated purposes of the DJA.[130]
5. Unique Complexities of Public Policy
The Court has also weighed an additional point that bears on whether the purposes of the DJA would be properly advanced by declaratory and injunctive relief in this action. That consideration arises from the unique, complex international dimensions implicated in the case, as already touched upon above. We live in a world of ever-expanding transportation, communications and commerce across national borders. More than ever, people, and their goods, services and information, travel from one country and are able to reach the remotest villages of other nations a reality enlarged manifold in modern times by instant means of the worldwide web, online shopping and electronic messaging. Correspondingly, as people and products and information move more freely and rapidly across territorial lines, national interests expand, response time to events contracts, and the world becomes more economically interdependent. But also enlarging are the number and complexity of the legal problems associated with various forms of international communication and commerce.
Private enterprise has tapped into the vast opportunities and new markets opened by modern technologies, with the industrial movements accompanied by significant related shifts in social, economic and political preferences around the world. As companies knowingly and willingly avail themselves of these business opportunities, they necessarily embrace the protections of the laws of foreign jurisdictions to foster the benefits of their ventures. At the same time, as the law has many edges, businesses operating in foreign lands inevitably encounter the opposite more incidence of scrutiny by foreign legal regimes, the sharper sides of public rules and policies intended to deter, punish and compensate for the bad effects of international activities.
Expansion of worldwide business interests and communications by multinational corporations thus not only means a broader reach for products and services, but also greater likelihood that aspects of that trade will become ensnared in circumstances governed by the laws of other countries, or regulated by both domestic and foreign rules. In this context, for the nations of the world to maintain the freest and most orderly flow of people, products and services and related communications, no one sovereign state's laws would suffice. Of necessity, to maximize the economic advantages, social goods and legal expectations of citizens of any one country, both sellers and consumers, every state may encounter occasions when it must depend upon the legal system of other sovereigns to advance particular national interests *428 where it may be mutually beneficial to do so.
In this global mercantile environment, it is not at all unusual that conflicts involving the application of competing laws would regularly occur. Goods produced in one country may cause injury in another; conduct legally engaged in one place may offend norms and values prevailing in others; an act in one nation may produce consequences, intended or not, in another; business standards and practices prescribed or tolerated in one forum may be deemed wrongful or even barbaric elsewhere, or regulated by materially different ways and means.
Amid the rapid expansion of international commerce and the emergence of a larger, interdependent global economy, and from the clashes of cultures, conflicts of laws, competing assertions of jurisdiction over the same parties or events, as well as tensions over national policies and international politics, countless delicate legal and public policy questions are bound to arise, and to do so with correspondingly larger frequency. How far may one state reach to protect its citizens from the control of conduct and application of foreign laws that govern their activities in other countries? What conduct occurring within the territorial borders of a state causing harm in another, and what wrongs committed by nationals, or by foreigners outside a state causing adverse effects within its territory, may a state properly regulate? Which state is the proper forum for the resolution of international disputes that fall into recognized jurisdictional interstices and gray zones?
The precise frontiers of these and other sensitive issues remain blurry, constantly evolving, and far from settled. Drawing those lines is always a delicate matter, even after many centuries of international experience. The contours of resolution is the subject of perennial discourse in legislative and other political forums all over the world. To be sure, at proper times and places a legitimate role exists for the judiciary in these endeavors. Cases and controversies surely arise that warrant occasion for courts to add their rightful perspectives and contributions to inform these debates in the context of resolving real disputes validly before them.
When all is said and done, two things are clear and warrant emphasis. First is that these international conflicts are inherently complex matters, some of the intricacies necessarily abstract and intensely political. Often the underlying issues encompass more than legal questions. To untangle the attendant controversies frequently requires considerable time and resources, and sometimes the combined energies and contributions of multiple jurisdictions. Definitions of rights and declarations of relations that arise from such international uncertainties do not readily lend themselves to facile rules or momentary relief that in the long run settle nothing. Rather, as technological advances alter the spacial and temporal dimensions of the world, the goals of enhancing the benefits of global markets for particular countries and promoting commercial intercourse in the interest of the international community as a whole compel that, in resolving legal disputes properly before them that raise international implications, tribunals in all nations render judgments that are consistent with fostering broader cooperation and good will, and that encourage mutual sovereign respect and the international rule of law among states.
In this context, it is harder to foresee what the precise role of the judiciary will be than to forewarn of what it should not be. Absent extraordinary circumstances, it would not comport with considerations of "practicality and wise administration of *429 justice"[131] for the courts of one nation as a matter of course to sit in judgment of the adequacy of due process and the quality of justice rendered in the courts of other sovereigns, and to decree injunctive relief at any time the forum courts conclude that the laws of the foreign jurisdiction under scrutiny do not measure up to whatever the scope of rights and safeguards the domestic jurisprudence recognizes and enforces to effectuate its own concept of justice.[132] On this larger scale, there can be no room for arrogance or presumption, or for extravagant rules or practices that may encourage insularity or chauvinism rather than respect for comity. It cannot be the proper province of any one judge in any one country, giving expression to the push of a moment or the pull of the immediate case, to promulgate judgments that impose that court's rule and will across all sovereign borders so as to reach the rest of humankind.
For, in the rules of the international arena, premised as they are on the nearly immutable concept of even sovereignty and the co-equality of states, arrogation is often infectious. In response to one nation's tendency to overreach, it does not take long for the ill-effects to catch on, and for others to reciprocate, requiting sovereign indignity with indignity. The consequences of precipitous, ill-considered action by a court in one jurisdiction could produce corresponding repercussions in other countries. On this point, it is well to recall the guidance of the Supreme Court when it admonished that
[i]n dealing with international commerce we cannot be unmindful of the necessity for mutual forbearance if retaliations are to be avoided; nor should we forget that any contact which we hold sufficient to warrant application of our law to a foreign transaction will logically be as strong a warrant for a foreign country to apply its law to an American transaction.[133]
Specifically, an injunction issued by one forum restraining parties from pursuing litigation pending in a foreign tribunal with jurisdiction over the matter could invite a duel of injunction and counterinjunction to thwart the attempt of the enjoining court to exercise exclusive jurisdiction and protect the foreign state's own judicial power.[134] As the Laker Airways court noted, in a dispute depicting precisely this dynamic: "The consequences to international trade and to amicable relations between nations that would result from this kind of interference are difficult to overestimate."[135]
In this customary tit-for-tat global environment, special caution and sensitivity to guard against potential retaliation against American foreign interests would be a proper consideration for this Court to weigh.[136] The vast expanse of American *430 international interests validates this concern and lends relevance and prudence to its consideration by the Court. American corporations do business and have affiliates in almost every corner of the globe. On a proportionate scale, United States nationals probably engage in international travel, commerce and communication, and hence are parties to litigation arising from these activities, in larger numbers than citizens of other countries. Consequently, our judicial attitudes on matters of international comity, the level of recognition and respect our courts accord to foreign proceedings, could have significant bearing on the treatment American litigants receive when their disputes reach the tribunals of foreign countries for resolution. Given the range of their international interests, Americans thus could stand to bear the brunt of adverse consequences in jurisdictional battles that potentially could be ignited by unwarranted rulings of our own courts on matters that unjustifiably hinder the assertion of judicial power by other sovereign states.
The second note worth underscoring, and more to the point here at issue, is that questions charged with the moment, scope and intricacies of substantial international disputes defy solutions under the aegis of a jurisdictional mechanism that confers only discretionary authority upon federal courts, and whose underlying purpose speaks of fostering efficiencies, of promoting speed, economy and effectiveness in the resolution of private conflicts and of encouraging the conclusive clarification of rights, relations and remedies among litigants. It is precisely for these reasons that the Supreme Court has counseled against the application of the DJA in controversies entailing complex issues of public law or constitutional dimensions fraught with doubt.[137]
*431 For the reasons discussed above, Harrods' motion to dismiss Dow Jones' complaint may be granted on this basis as well.
C. COURT DISCRETION
Even were the Court to find the existence of an actual controversy or an appropriate invocation of the DJA, its inquiry would not necessarily end there. The DJA does not create a source of substantive rights and imposes no duty upon the courts to grant its remedy. By its terms, the statute provides that a federal court may declare the rights and other legal relations of any interested party seeking such declaration.[138] This language explicitly confers broad discretion upon the courts to grant or deny declaratory relief "rather than an absolute right upon the litigant."[139] In its most recent pronouncement delineating scope of the district courts' discretion to consider declaratory relief, the Supreme Court reaffirmed not only that the latitude is unique and extensive, but reviewable on appeal under a standard of abuse of discretion rather than de novo.[140] In Wilton, the Supreme Court stated:
By the Declaratory Judgment Act, Congress sought to place a remedial arrow in the district court's quiver; it created an opportunity, rather than a duty, to grant a new form of relief to qualifying litigants. Consistent with the nonobligatory nature of the remedy, a district court is authorized, in the sound exercise of its discretion, to stay or to dismiss an action seeking a declaratory judgment before trial or after all arguments have drawn to a close. In the declaratory judgment context, the normal principle that federal courts should adjudicate claims within their jurisdiction yields to considerations of practicality and wise judicial administration.[141]
The Wilton Court thus underscored that even if a court determines that a given DJA case does present an "actual controversy" within its jurisdiction, it is not obligated to exercise judicial authority to resolve the dispute. Rather, it possesses statutory latitude to deny a declaratory judgment where the court finds that granting relief would serve no useful purpose.[142] The Court explicitly instructed that the courts have "discretion in determining whether and when to entertain an action under the Declaratory Judgment Act, even when the suit otherwise satisfies subject-matter jurisdictional prerequisites."[143]
In essence, the Supreme Court's definition of the district court's extensive DJA discretion reflects a recognition of a necessary alignment of form and function, of a statutory purpose fostering adjudicatory efficiency and a vesting of uniquely broad judicial discretion as a means to that end. In other words, for the DJA procedure to work as envisioned and achieve its desired ends, it is essential for the courts to possess the widest possible flexibility and room to assess the circumstances when the declaratory remedy would be *432 most useful and effective and when to eschew it in the interest of other principles vital to the efficient administration of justice.
To guide the district courts in exercising the broad discretion the DJA confers, several tests and considerations have been recognized and generally applied. One articulation holds that a court may properly render declaratory judgment "(1) when the judgment will serve a useful purpose in clarifying and settling the legal relations in issue, and (2) when it will terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding."[144] Further elaboration of the applicable equitable considerations is articulated in guidance adopted by several other circuit courts. These include (1) whether the declaratory action would settle the controversy; (2) whether the declaratory action would serve a useful purpose in clarifying the legal relations in issue; (3) whether the declaratory remedy is being used merely for the purpose of "procedural fencing" or "to provide an arena for a race for res judicata;" (4) whether the use of a declaratory action would increase friction between our federal and state courts and improperly encroach upon state jurisdiction; and (5) whether there is an alternative remedy which is better or more effective.[145]
Reviewing all of the circumstances on the record before it in the light of the preceding guidelines and other considerations, this Court, even if it were presented with an actual controversy, would not be inclined to exercise its discretion to render the declaratory judgment Dow Jones requests, and thus grants Harrods' motion to dismiss.
Before articulating the basis for its decision, some preliminary observations are in order. This backdrop may be appropriate both because the Court is mindful of the particular moment of the case and the implications of its holding, and because Dow Jones' argument calls into question the scope of the Court's DJA latitude. Instead, Dow Jones advocates a much narrower standard to govern the exercise of judicial discretion to deny declaratory relief than this Court considers applicable. A much more reasoned articulation elaborating on the notion and breadth of principled discretion the DJA confers, as this Court perceives it, may thus be helpful to an understanding of the rationale and judgment embodied in this ruling.
As a point of departure, the Court acknowledges that Dow Jones' complaint raises weighty issues and identifies burdens and inconveniences, both actual and perceived, that any publisher understandably would devoutly wish to be spared in the exercise of its First Amendment rights. The Court is also mindful of the overall significance of the alleged injuries asserted here, and is not indifferent to Dow Jones's efforts to seek a judicial remedy. Nor is Dow Jones' theory of relief overlooked, even if novel and expansive. Indeed, based on a fair reading of the content and context of the April 5 Article, this Court would have little hesitation finding, under a different posture of the case, that Dow Jones would have a substantial likelihood to prevail on the merits were the remedy Dow Jones proposed limited, such *433 as it was in Yahoo!, to a declaration to the effect that a judgment arising from a judicial order actually rendered and sought to be executed in the United States would not be cognizable under American jurisprudence governing freedom of expression, and hence would be unenforceable in United States jurisdictions, insofar as it found defamation liability based on the April 5 Article under a clear and specific application of abhorrent libel law principles such as those Dow Jones asserts govern the London Action.[146]
But this theoretically cognizable fact pattern is not the case Dow Jones presents to the Court. Instead, Dow Jones' prayer for relief pushes far beyond the bounds of what this Court considers practical and remediable, and expands into the zone of what it regards as exceeding the Court's reasonable latitude under the declaratory judgment statute. For, Dow Jones' contentions implicate issues of national policy, constitutional law and international affairs that transcend the particulars of the matter before the Court. Thus, even if it arose from a joke, the case cannot be viewed in isolation as a narrow dispute between Dow Jones and Harrods. Rather, Dow Jones' claims, and what the Court is called to do to recognize and authorize relief to protect Dow Jones' interests, must be weighed against the import of this action not only to the interests of other litigants, but to the perils that inhere in the Court's entry of an empty judgment.
As already discussed, the Court considers it doubtful that its ruling would gain recognition in a foreign jurisdiction for the purpose it would purport to achieve insofar as the adjudication would necessarily rest on value-laden judgments about the adequacy of justice in a tribunal of another sovereign whose jurisdiction to adjudicate a dispute brought by a party properly invoking the forum's authority and according to its laws this Court decidedly would frustrate were it to grant the remedy here requested.
In Dow Jones' view, the Court's discretion to pass upon an application for declaratory judgment "must" be exercised to accept jurisdiction upon a finding of only two particular factors: when a judgment would (1) serve a useful purpose in clarifying and settling the legal relations at issue, and (2) terminate and afford relief from the uncertainty, insecurity and controversy giving rise to the proceeding.[147] The Court does not regard its discretion as so constricted or guided solely by these two criteria.
As a backdrop for the considerations that inform the Court's view of the scope of its discretion and the reasoning that compels its judgment, it is well to recall the fundamental philosophy that underlies the judicial leeway conferred by the DJA, as emerges from the various self-imposed rules the courts have enunciated and followed over the years defining the proper exercise of DJA authority.
In enacting the DJA, Congress empowered the federal courts with a useful means to resolve disputes more expeditiously and economically. No doubt, as already discussed above, the success of the legislation and the intended utility and value of its remedial purpose, rest upon liberal application and flexible administration of the statute.[148] Achievement of these ends, in turn, depends on the investiture of authority upon the courts consonant with *434 the purposes and usefulness of the tool. In practice, the Supreme Court, early in the statute's history, recognized that the range of the courts' DJA discretion necessarily must be expansive.[149] In Brillhart, offering guidance on declaratory judgment criteria the courts may consider, the Court noted: "we do not now attempt a comprehensive enumeration of what in other cases may be revealed as relevant factors governing the exercised of a district court's discretion."[150]
More recently, in Wilton, the Supreme Court not only reaffirmed that the breadth of that authority is greater but underscored its uniqueness in relation to the range of judicial leeway Congress has vested in other discretionary contexts.[151] While the Supreme Court rejected a constraining standard that would have required a showing of "exceptional circumstances" to justify the district courts' refusal to accept jurisdiction, it again declined to delineate the "outer boundaries" governing the exercise of that discretion.[152] As the Wilton Court observed:
Since its inception, the Declaratory Judgment Act has been understood to confer on federal courts unique and substantial discretion.... The statute's textual commitment to discretion and the breadth of leeway we have always understood it to suggest, distinguish the declaratory judgment context from other areas of the law in which concepts of discretion surface.[153]
Of course no grant of judicial discretion can ordain justification so broad and subjective as to match what Lucetta deigned enough: "I have no other but a [judge's] reason: I think [it] so because I think [it] so."[154] In fact, honoring the indefinite task that the DJA's maneuvering space has entrusted to them, the courts have recognized that their discretion is not without limits, but that in practice the exercise of DJA jurisdiction "has been hardened by experience into rule."[155] Both in expression of what is workable and reasonably contemplated within the purposes of the statute, and as a marker of what might cross the line into abuse of the courts' valid authority, case law records some pertinent guidance.
As perhaps the paramount measure of restraint, the courts require that any declaratory remedy granted must be useful and effective.[156] Dismissal of a declaratory action is proper when any judgment entered has no practical means of enforcement.[157] To further confine declaratory relief to solutions that are relatively expeditious and economical both to the parties and the courts, pertinent guidelines counsel against accepting jurisdiction where major controversial issues of public law or constitutional dimensions are involved. In *435 this connection the Supreme Court has "[c]autioned against declaratory judgments of issues of public moment, even falling short of constitutionality, in speculative situations."[158] In Ernst & Young,[159] the First Circuit similarly instructed that "[t]he discretion to grant declaratory relief is to be exercised with great circumspection when matters of public moment are involved ... or when a request for relief threatens to drag a federal court prematurely into constitutional issues that are freighted with uncertainty."[160]
Courts also avoid unnecessary conflicts with other jurisdictions considering related actions involving the same parties, and defer to those forums where appropriate.[161] In so doing, they are mindful not only of the mutual respect that the corresponding tribunals should accord each other in the interest of fostering their shared missions and public functions of doing justice, but recognize that to that end nothing gainful would be served by unwarranted interference with the proper exercise of the other court's jurisdiction.[162] Intrusions upon another sovereign's legitimate functions and counterproductive assertions of power work either to prolong or proliferate litigation, and ultimately to invite a battle of reciprocity.[163]
These jurisdictional skirmishes are no mere hypotheticals. They have arisen in other contexts, and their harmful effects and implications for foreign relations have been recorded.[164] Notable examples presenting issues analogous to those now before this Court have arisen in international antitrust and intellectual property infringement disputes.[165] The complex maneuvering, protracted proceedings, contradictory *436 judgments and lengthy appeals in the courts of different countries involved, and the combination of delicate international political, economic and cultural issues implicated in these controversies, all underscore why it would be particularly inappropriate, as the procedural means to pursue such intricate, public policy-laden litigation, to invoke a statute whose primary aim is to promote swift and efficient declaration of rights and to bring finality to legal conflicts.[166]
In synthesis, a common theme runs like an undercurrent through these self-imposed boundaries on the reach of the courts' DJA discretion. When all the lines are drawn and the terms of limitation are spelled out, and when rules of caution are put to the test, however finely the distinctions cut, what remains of the courts' demarcation of their discretionary role is a case-by-case approach circumscribed by recognition that what the statute bestows upon them is discretion, not ambitions; that a free hand does not mean free rein, and that in practice, in giving expression to the confidence Congress reposed upon them, the courts' response should be measured and orderly.
Closer to home, in this Court's own conceptualization of the DJA's discretionary mandate, because the charge is purposefully broad and flexible, and because the trust is so generous, the courts owe balanced *437 exercise of authority hedged by manifest logic, reasoned articulation and principled restraint. To the task of resolution they should bring to bear the wisest impulses and draw from the best experience that go into the mix of sound judgment. At bottom, these principles counsel that the Court's declaratory judgment call should of course be guided as always by its place in realizing the higher aspirations of the law, but that it also must do so taking account of the practicalities and constraints that ordinarily attend the fair and orderly administration of justice, and that define the proper roles and reach of judicial power. As the Supreme Court noted in Wilton: "[i]n the declaratory judgment context, the normal principle that federal courts should adjudicate claims within their jurisdiction yields to considerations of practicality and wise judicial administration."[167]
In this spirit, the Court turns to specific reasons that compel its rejection of Dow Jones' reading of the DJA and denial of the declaratory and injunctive relief sought here.
1. Resolution of the Controversy
The court is not persuaded that issuing the remedy requested will necessarily resolve the controversy between the parties. The ruling Dow Jones urges would declare that under applicable American legal principles, a judgment in the London Action based on the April 5 Article would be unenforceable in the United States and, under American legal doctrine, anywhere else. The Court considers first the practicalities surrounding this claim.
The defamation claim asserted in the London Action is grounded on the application of British law. By this Court's reckoning of realities and probabilities, insofar as the Court were to endeavor to stretch the range of its powers to enjoin litigation pursued by a party in the foreign country of its nationality that is based on that forum's own law, to recover damages for an injury alleged to have been committed and suffered in that jurisdiction, it is highly improbable that its determination would conclusively settle the dispute. Rather, it is more likely that an order purporting to effect a universal assertion of American substantive law and judicial power employing to that end a dubious, novel or overly aggressive application of a discretionary remedy under a procedural statute, would be perceived as a judgment motivated not by a purpose to see that justice is done somewhere in this case through a speedy, efficient and economical resolution of the merits of the dispute, but prompted instead by tactical maneuvering designed to undermine the exercise of judicial authority by a British court in a matter properly within its jurisdiction.
Under those circumstances, rather than definitively settling the rights of the parties, this Court's exercise of jurisdiction would spur more litigation. Compounded legal wrangling may ensue both in this forum through further challenges in this Court and later on appeal. More significantly, any ruling of this Court that fails to honor comity in the first instance could produce extended litigation in the London Action and possibly in other jurisdictions outside the United States.[168] An injunctive *438 remedy issued here intended to frustrate the application of British law by British courts to operative events allegedly occurring in the United Kingdom in an action brought there by a British national, may very well provide sufficient ground for countermeasures by the British tribunals to exercise judicial power to protect their own jurisdiction over the matter.[169]
There is no certainty, despite Dow Jones' intense speculation to the contrary, that British tribunals would honor any judgment by this Court that, based on application of American law, sought to arrogate jurisdiction and wrench the case away from the British courts before they have had a fair and full opportunity to consider its merits under application of British law.[170] Whatever validity such a long-arm concept may have in the United States, absent a binding agreement between the parties designating a choice of venue, any extraterritorial order this Court might issue will be neither selfexecuting *439 nor in and of itself binding on or recognized by foreign tribunals.[171] Nor does it necessarily follow that were this Court to enter judgment in favor of Dow Jones, the matter would promptly end there, as Dow Jones contends. Appeal of the Court's decision is a distinct probability, given the novel aspects of the case. And there is no assurance that British tribunals would be inclined to forbear consideration of the merits of the proceedings before them for as long as it would require to exhaust all appeals and obtain a final judgment in the instant action in this country.[172]
2. Useful Purpose
For much the same reasons, granting the declaratory relief Dow Jones seeks would not necessarily serve a useful purpose in clarifying the legal relations between the parties. Dow Jones instituted this action with a view to settle its defamation dispute with Harrods not only in the United Kingdom but anywhere in the world. This Court is not persuaded that an order to this effect would have any value to that declared end. While such a judgment arguably may settle Dow Jones' rights and remove uncertainties concerning the enforceability of a damage award and future publication of the April 5 Article in the United States, it is unlikely to do much to dispose of Harrods' claims in London or elsewhere beyond this country.[173]
To this extent, by granting relief this Court would be rendering judgment unenforceable for the real purposes intended. For, in the final analysis, the game of judicial overreaching often plays out as a two-way street. Just as much as this Court may preemptively declare a foreign judgment based on repugnant legal principles to have no effect in the United States and enjoin parties from proceeding overseas, a foreign tribunal may just as cavalierly ignore this Court's order and command the parties to proceed with their litigation there. Rather than settling the relations between the parties, this outcome may prevent both from obtaining a remedy and serve only a counterproductive end of engendering more litigation.[174]
3. Forum Shopping
The timing of the events that gave rise to this action suggests that in commencing litigation as and when it did, Dow Jones sought to score a preemptive procedural strike essentially intended to derail the London Action by compelling Harrods to withdraw it.[175] Dow Jones contends that a ruling in this litigation applying American law would likely be given effect by the British court as dispositively solving the parties' conflict, and thus inhibit further proceedings in the London Action and anywhere else. If successful, this strategy presumably would curtail litigation of Harrods' defamation action stemming from the April 5 Article insofar as that claim were *440 held not cognizable in the United States. But the effect Dow Jones seeks would also bar consideration of the question whether a valid judgment could be rendered applying British law, encompassing a wrong and redressing past injury to a British national occurring only within the United Kingdom, and awarding remedies enforceable only where the judgment is recognized.
This Court cannot rule out such an outcome of the London Action as entirely implausible. It is also not inconceivable that a set of circumstances may prevail under which such a solution would satisfactorily resolve the parties' dispute. By restraining Harrods' pursuit of this prospect, however, this Court would not only expand its authority to achieve a result over which its jurisdiction is at best dubious, but would also preclude the parties from pursuing an outcome that theoretically could settle their conflict more expeditiously and efficiently than is likely to prevail by the course Dow Jones presses here.
On this analysis, Dow Jones' litigation in this Court amounts to strategic forum-shopping motivated by pursuit of a tactical edge over an opponent. In essence, it seeks to establish venue here and away from another jurisdiction where the action could properly be brought, and to haul foreign parties into this Court for an application of American law in support of a declaration of non-liability shielding Dow Jones from damages for prior conduct.[176] That in this race to the courthouse Dow Jones managed to file its declaratory action first is immaterial.[177]
A rush to file first in anticipation of litigation in another tribunal, thereby enabling a potential defendant to choose the forum and governing law by which to adjudicate the dispute, and otherwise to interfere with or frustrate the other party's pursuit of claims elsewhere, is one of the equitable considerations a court may weigh in ruling on a request for declaratory relief.[178] The Court is mindful that this factor alone is not dispositive and may yield to other values, especially in cases implicating substantial First Amendment issues. For the reasons discussed above, however, on balance the Court concludes that this consideration nonetheless weighs against the exercise of jurisdiction in this case.
4. Conflict With Another Jurisdiction
The Court earlier addressed the implications of extraterritorial jurisdiction as a consideration supporting a finding that no sufficient actual controversy exists in this action. Some of those same complications weigh in favor of the Courts' exercise of its discretion to deny Dow Jones' application for declaratory relief. The uncertainties surrounding what claims or defenses the parties may or may not interpose in the London Action, what legal principles may or may not apply, and how the British forum ultimately may or may not rule upon the matters before it, not only engender contingencies that diminish the reality and immediacy of the controversy at issue here. Equally pertinent, the incipiency of the foreign proceedings leaves open considerable room for the existence of real and substantial issues regarding claims arising in the United Kingdom whose adjudication under British law by British tribunals, if intruded upon by doubtful orders of this Court, may unjustifiably interfere with the exercise of jurisdiction by tribunals of *441 another sovereign nation and thus engender unnecessary tensions between the judicial power of the United States and that of the United Kingdom. In Brillhart, the Supreme Court cautioned that "[g]ratuitous interference with the orderly and comprehensive disposition of a state court litigation should be avoided."[179]
The considerations that prompt the principle of noninterference interference by federal courts with domestic state court proceedings apply with equal cogency in an international context. The potential for friction to occur in this case gives rise to application of the doctrine of international comity, prompting the Court to decline the exercise of jurisdiction and defer to the laws and interests of proceedings in a foreign country, insofar as they are not detrimental to United States interests.[180]
Under somewhat analogous situations, other courts have invoked the principle of comity of nations as a factor in their decision to deny declaratory relief. In Basic, the court noted that: "[a] declaratory action would also create friction between federal courts of the United States and New Zealand, and would improperly encroach on the jurisdiction of New Zealand."[181] For these reasons, the court concluded that the "comity of nations" doctrine compelled it to decline to exercise its jurisdiction and instead to defer to New Zealand's court. As the Court noted:
Because Fitzroy filed the NZ action before Basic filed the Complaint, the New Zealand court should have the opportunity to render a judgment, or make other decisions regarding its own jurisdictional and pleading rules, without an American federal court "looking over its proverbial shoulder," second-guessing each New Zealand court decision, and predicting possible foreign court judgments. Therefore, for reasons of comity, and ever mindful of "the strong sense of the Judicial Branch that its engagement in the task of passing on the validity of foreign acts ... may hinder the conduct of foreign affairs," the court finds that the instant action would serve only to interfere with New Zealand's sovereign right to decide cases brought to its own judicial forum.[182]
Finding the Basic court's reasoning persuasive, another court confronted with a declaratory judgment action brought by Eastman Kodak Company that involved related proceedings in Bolivia, relied heavily on Basic in deciding that, in the interests of comity, it should decline to grant relief intended to preempt the effect of a possible adverse judgment against Kodak in Bolivia.[183] And, in a reverse of the situation in the case at hand, the House of Lords ruled that an anticipatory action commenced in Great Britain to bar antitrust litigation brought in the United States involving the same parties was an inappropriate use of declaratory and injunctive relief.[184] Noting that circumspection *442 was required in these matters of international comity, one member of the court stated: "The approach has to be cautious because an injunction restraining a person within the jurisdiction of the English court from pursuing a remedy in a foreign court where, if he proves the necessary facts, he has a cause of action is, however disguised and indirect, an interference with the process of justice in that foreign court."[185]
Here, as in Basic, the Court considers that by interjecting itself prematurely into the parties' conflict now pending adjudication in the London Action, it would unduly meddle with the orderly administration of justice in the British tribunals. This Court has no basis at this point, other than positing hypotheticals and surmising what the British tribunals may or may not do, for prejudging the outcome of the London Action, or for presuming that the parties could not achieve a satisfactory voluntary settlement of their conflict in that forum.
Even less does the court possess grounds for concluding that the United Kingdom's judiciary, by some assumed reason of incompetence, undue bias in favor of its own laws or nationals, or reflexive predisposition against Dow Jones' claims, would be predictably inclined to hold Dow Jones liable under any conceivable application of British law. Such deterministic augury is not only unwarranted as a foundation for this Court's exercise of discretion to grant the extraordinary relief requested here. More to the point, it is certain to impede the British courts' ability to perform their judicial functions, and hamper their opportunity adjudicate disputes in accordance with their jurisdiction and legal principles, presumably bringing to the task no less commitment to do what is right and just than this court is constitutionally sworn to do.[186]
5. Adequate Alternate Remedy
Another principle guiding the application of the DJA derives from the operation of the statute in conjunction with Federal Rule of Civil Procedure 57. That rule expressly provides that the "[e]xistence of another adequate remedy does not preclude a judgment for declaratory relief in cases where appropriate."[187] A corollary of this principle is that a court may lack subject-matter jurisdiction, or may properly exercise its discretion to deny declaratory judgment, in cases where a more appropriate form of relief does exist.[188]
a. Pendency of Another Action
One consideration in determining whether another adequate remedy exists is the pendency of another action between the same parties in a forum in which some or all of the same issues raised in the declaratory judgment action are also in dispute. In that event the court considering DJA relief may weigh whether the issues before it could be fully resolved in the other action, and where the issues are likely to be most comprehensively adjudicated.[189] In this regard, "`[t]he tests are whether the issuance of a declaratory judgment will *443 effectively solve the problem, whether it will serve a useful purpose, and whether or not the other remedy is more effective or efficient.'"[190]
But the existence of an alternative forum, actual or prospective, presents several additional factors, raised in the instant case, that come into play in assessing the appropriateness of granting declaratory relief. First is the relevance and weight assigned to which action came first, factors of forum shopping and the race to court-house. The Supreme Court's ruling in Wilton may be read to instruct that there can be no mechanistic accrual of rights that attaches by reason of reaching the courthouse first, or indeed of engaging in a race at all.[191] Rather, what counts in the relevant inquiry, among other considerations, is which forum is better and more efficiently equipped to serve the interests and convenience of the parties; whether defenses may be adequately addressed in the alternative forum; whether all of the issues and parties in dispute may be joined and the conflict comprehensively adjudicated.[192]
Second, when parallel actions are being pursued in courts with concurrent jurisdiction, the general rule favors honoring the doctrine of comity that compels deference and mutual respect for the foreign proceedings, even outweighing considerations of avoiding certain hardships and inconveniences, promoting economies of consolidated litigation, or preventing inconsistent adjudications.[193] Whatever potential may exist for an adverse ruling in one forum that conflicts with fundamental public policies of another may be addressed when a final judgment is sought to be enforced.
Third, when such concurrent jurisdiction exists the declaratory judgment action may not be misused as a precipitous means to obtain access to court ahead of an opponent in an alternate action and thereby attempt to defeat an anticipated defense that may be interposed the other forum.[194]
b. Comity
The more sensitive issues raised by the inquiry regarding adequate alternate remedies are those that implicate potential inter-jurisdictional conflict. Specifically, friction may arise from the exercise of federal judicial power in the face of the equally valid jurisdiction of the alternate forum over disputes properly before it.[195] On this point the Supreme Court has counseled that "[i]t is in the public interest that federal courts of equity should exercise their discretionary power to grant or withhold relief so as to avoid needless obstruction with the domestic policies of the states."[196] To these ends, longstanding federal law and policy proscribe federal court injunctions, except where specifically authorized, that would interfere with proceedings in state courts.[197]
Though deriving primarily from issues peculiar to our domestic concept of federalism, these principles are no less pertinent in the context of intercourt judicial *444 relations extending beyond national borders.[198] This imperative is recognized in the doctrine of comity already discussed above. Consistent with the spirit of mutual respect and cooperation embodied in the "comity of nations" principle, judicial proceedings in foreign tribunals touching on the laws and interests of other sovereign states should be accorded due recognition in cases where it is appropriate to do so.[199] In Hilton, the Supreme Court defined the principle of international comity as "the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of [its] own citizens, or of other persons who are under the protection of its laws."[200] In Cunard S.S. Co. v. Salen Reefer Services AB,[201] the Second Circuit elaborated that "[c]omity will be granted to the decision or judgment of a foreign court if it is shown that the foreign court is a court of competent jurisdiction, and that the laws and public policy of the forum state and rights of its residents will not be violated."
The concept of international comity is based on the principle that giving due recognition to acts and proceedings of foreign tribunals promotes international cooperation, strengthens mutual ties, fosters reciprocal treatment and thereby enhances the rule of law on the international scale, both within and among nations. Conversely, just as significant public interests would be harmed by failure to promote harmonious federal-state relations in domestic governmental affairs, relations among nations may also be imperiled, inviting potentially damaging reciprocity, by the refusal of a forum nation to accord due recognition to the proper, fair and orderly proceedings of another country, as long as enforcing the judgment of the foreign tribunal does not frustrate fundamental interests or policies of the domestic forum.[202] On this point, the Supreme Court underscored in a related context "the strong sense of the Judicial Branch that its engagement in the task of passing on the validity of foreign acts of state may hinder" the conduct of foreign affairs.[203] The doctrine accordingly counsels that absent exceptional circumstances, a federal court in the exercise of its discretion should decline to assert jurisdiction and defer to the corresponding interests and laws of foreign tribunal adjudicating related disputes in proceedings involving the same parties over which they have proper jurisdiction.
Notions of comity come into play with heightened sensitivity in cases where, as here, injunctive relief is sought to bar a litigant from pursuing an action in the courts of a foreign jurisdiction. In these situations, the general rule holds that, except in very narrow, compelling circumstances such as to prevent "an irreparable miscarriage of justice,"[204] there is no justifiable basis for issuing a restraining order for this purpose, especially where the restraint affects the forum where an alleged injury occurred and whose laws are being *445 invoked.[205] As discussed above, the exception has been satisfied in cases where the restraining order is intended to protect the court's jurisdiction, where one party affirmatively seeks to relitigate matters already adjudicated by the first court or otherwise attempts to frustrate the exercise of the court's proper authority in order to evade important public policies of the forum state.[206]
Central to this cautionary rule is the recognition that enjoining such litigation implicates delicate issues of comity and that these considerations demand exceptional care and great restraint.[207] In Sabena, Court recognized that: "[e]njoining participation in a foreign lawsuit in order to preempt a potential judgment is a much greater interference with an independent country's judicial processes."[208]
Grounds for particular circumspection derive in large part from the reality that no practical difference exists between an injunction restraining the parties and one addressed to the foreign court itself, thus highlighting the potential for deleterious conflicts with the orderly administration of justice of another sovereign state and for undue hindrance of the conduct of foreign relations.[209] In this light, the deference to a foreign proceeding that comity counsels is not born strictly of obligation or self-preservation. Neither is it compelled by abnegation of judicial power duly conferred, nor by abdication of a sovereign's jurisdictional prerogatives. Rather, due respect for the proper assertion of judicial authority by a foreign court derives from the salutary doctrine, matured into wisdom and near universality by enduring custom and recognition, of "acceptance by common consent of civilized communities of rules designed to foster amicable and workable commercial relations."[210]
Applying these principles here compels a finding that a more appropriate alternative remedy exists for the parties in proceeding with the London Action, and therefore that the Court refrain from encroachment upon the British tribunals. In so ruling, the Court's judgment is not blinded by any Panglosian faith in British justice; decidedly, the world we live in is not "the best of all possible worlds." In a flawed cosmological state, anyone can easily conjure the occurrence of a "worst case" prospect. Like all domestic courts, British tribunals are not internationally constituted; they are creations of national enactments whose mandate is primarily to enforce domestic law and public policy. Despite national commitment to recognize international law as an aspect of domestic law, and to honor comity and other principles compelling cooperation among sovereign states, in cases of conflict or doubt, courts in the final analysis generally place national interests and concerns ahead of foreign interests or international imperatives.[211] As the Sabena court observed: *446 "[C]ourts inherently find it difficult neutrally to balance competitive foreign interests."[212]
Thus, this Court could not rule out the possibility, one among many it has factored, that Dow Jones may not prevail in the London Action and subsequent British appellate review on any jurisdictional or substantive defenses asserted, and that a judgment is then entered against Dow Jones that may incorporate legal principles inimical to prevailing American First Amendment jurisprudence and public policy. Even in that event, however, Dow Jones is not without recourse, at least not in this country.
c. Exception to Comity
The doctrine of international comity admits of a widely recognized exception. As the Supreme Court noted in Hilton, "`comity' ... is neither matter of absolute obligation ... nor of mere courtesy and good will...."[213] So circumscribed, comity ceases where a foreign judgment's actual conflict with vital public concerns of the forum state begins to prejudice or undermine domestic interests. No sovereign state is under unyielding compulsion to enforce the judgments of another nation that are predicated on laws inherently repugnant to fundamental public policies or notion of justice of the forum state, or that do violence to its important domestic interests.[214] Applying these principles, a New York State court has declined to recognize or enforce a judgment rendered in a libel action in the United Kingdom on the ground that the judgment was antithetical to State public policy in that it was founded on legal doctrine contrary to freedom of speech protections embodied in the federal and New York constitutions.[215]
Thus, should the London Action produce a judgment based on application of principles that would vitiate public policies of the United States, Dow Jones will then accrue a justiciably ripe occasion to challenge in a United States jurisdiction any effort to enforce the judgment on the substantive grounds it prematurely interposes here.[216]*447 In sum, Dow Jones will have ample opportunity to exercise its right to its day in court, the same right the outcome of this action would effectively deny to its opponent were Dow Jones' strategy to prevail here.
The Court also does not ignore that this course affords relatively modest comfort. As Dow Jones ardently stresses, the eventuality of an adverse judgment in the London Action and attendant burdens is precisely the outcome Dow Jones seeks to avert, for it could well subject Dow Jones to multiplying legal costs and possible prejudgment interest and fees.[217] Insofar as concern over the costs and inconvenience associated with defending litigation is a consideration to be weighed in the context of this case, the Court has addressed it above. There is no satisfactory answer to this apprehension. As already noted, absent extraordinary circumstances not evidenced here, the Court does not read in the DJA, or in the recognized criteria which should guide the exercise of the Court's discretion in granting declaratory relief, a routine purpose or mandate to spare a party subject to potential or actual litigation properly within the jurisdiction of another judicial forum from the costs of defending itself in that other action, however frivolous or vexatious the lawsuit is alleged to be.[218]
Viewed as a whole, the various considerations that guide the Court's exercise of its DJA discretion would weigh heavily in favor of denying relief in this case. Accordingly, the Court grants Harrods' motion to dismiss.
IV. PERSONAL JURISDICTION
The parties devoted considerable portions of their motion papers to arguments over Harrods' Rule 12(b)(2) challenge to the Court's personal jurisdiction over Harrods pursuant to New York Civil Practice Law and Rules §§ 301 and 302. In light of the Court's decision granting Harrods' Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, it is not necessary to address the parties' personal jurisdiction dispute.
V. ORDER
For the reasons discussed above, it is hereby
ORDERED that defendants Harrods' motion to dismiss the complaint is GRANTED.
The Clerk of Court is directed to close this case.
SO ORDERED.
NOTES
[1] In defense of the dignity of the Court, and not to mock or diminish in any way its lofty jurisdiction, under some circumstances, as the outcome here suggests, the high threshold of federal judicial authority may not be crossed even in a case presenting the qualifying distinction of a dispute over the exchange of not just one but two jokes, at least one of which arises from an April Fool's gag played in a foreign country, and which then raises the stakes to entail international consequences implicating the protection of speech under the First Amendment of the United States Constitution.
[2] Declaration of Lile Deinard in Support of Motion to Dismiss, dated June 18, 2002 ("Deinard Decl.") Ex. B. The full text of the press release reads:
AL FAYED REVEALS PLAN TO "FLOAT" HARRODS
Harrods Chairman, Mohamed Al Fayed, will tomorrow make an important announcement about his future plans for the world-famous store. The announcement is featured on the new version of alfayed.com which launches tomorrow, Monday April 1, 2002 at 00:01. It will include a first-come-first-served share option offer.
The information may help those journalists who have speculated during the last few months as to the future direction of Harrods. The announcement will only be posted on the website until 12 noon on April 1st. To view the information, log on to alfayed.com and click on the Harrods story on the home page. The re-launched alfayed.com is Mr. Al Fayed's personal website and gives the visitor the opportunity to learn a little more about Mr. Al Fayed: his life, his beliefs and his thoughts. ends
For further comment, please contact LOOF LIRPA at Harrods on 020 7225 5785.
[3] Deinard Decl. Ex. C.
[4] Deinard Decl. Ex. D at 2.
[5] Deinard Decl. Ex. F. The full text of the April 5 Article reads:
The Enron of Britain?
If Harrods, the British luxury retailer, ever goes public, investors would be wise to question its every disclosure.
Harrods made "news" at the beginning of this week, when the London department-store operator announced it was about to sell shares publicly. Some news organizations picked up the news item, including The Wall Street Journal in a news-briefs column but it was all an April Fools' joke. The gimmick was a promotion for the Web site of Mohamed Al Fayed, the company's chairman. Clues that it was a joke included the fact that the contact person listed to get more information was Loof Lirpa April Fool spelled backward.
Not exactly Monty Python-level stuff. But Harrods was pleased with itself. "The reason we played out this April Fools' joke was to draw people's attention" to the relaunched and redesigned Web site, says Peter Willasey, corporate communications director for Harrods. "We have no plans" to issue shares.
Can Harrods get in trouble for messing around with the facts? It is a private limited company. As such, its actions aren't under the aegis of the Financial Services Authority, the U.K.'s securities regulator. A spokesman for Companies House, an agency of the Department of Trade and Industry responsible for regulating corporate governance in the U.K., said the body wasn't aware of any complaints.
As of yesterday, Harrods hadn't calculated the number of hits that Mr. Al Fayed's Web site obtained to gauge the success of the bogus release. Mr. Willasey says: "Mr. Al Fayed is delighted it has been picked up all around the world."
[6] First Amended Complaint for Declaratory Judgment and Injunction ("Compl.") ¶ 27.
[7] Id.
[8] Deinard Decl. Ex. G at 2.
[9] Deinard Decl. Ex. A ¶ 19.
[10] Compl. ¶ 28.
[11] Compl. ¶ 30; Deinard Decl. Ex. I at 1-2.
[12] Compl. ¶ 31.
[13] See id. ¶ 32.
[14] Id. ¶ 33.
[15] Id.
[16] Id. ¶ 35.
[17] Id. ¶ 36.
[18] As examples, Dow Jones asserts that under British law: (1) the burden of proving truth of defamatory statements falls on the defendant; (2) defamation is a strict liability tort and plaintiff need not prove that the defendant acted with any fault, in contrast with the "actual malice" standard that applies under American First Amendment principles; (3) protection for expression of opinion is severely limited; (4) only limited protection is available for statements about public officials or public figures; (5) aggravated damages are permitted for asserting certain defenses, for example, a defendant's seeking to justify the publication; (6) plaintiff's attorneys fees and costs must be paid by the unsuccessful defendant; (7) multiple, repetitive suits are allowed for each individual publication, for example, for different media or various places of publication. (See Memorandum in Opposition to Motion to Dismiss, dated July 8, 2002 ("Pl.'s Memo"), at 9-11, attaching the Declaration of Mark Stephens, Esq., dated 8 July 2002 ("Stephens Decl.") ¶ 5, at 2-4.). See also Matusevitch v. Telnikoff, 877 F.Supp. 1, 4 (D.D.C. 1995); Bachchan v. India Abroad Publications Inc., 154 Misc.2d 228, 585 N.Y.S.2d 661, 663-65 (1992).
Harrods countered with a statement by its solicitor in the London Action taking issue with Dow Jones' characterization of English law. (Declaration of James Price in Support of Motion to Dismiss, dated 15 July 2002 ("Price Decl.")). According to this declaration, two recent events have produced significant reforms in the English law of defamation: the passage of the Defamation Act of 1996 and of the Human Rights Act of 1998, which incorporated into English law the European Convention for the Protection of Human Rights. The combined effect of these development, Harrods contends, is to do away with many of the antiquated "Victorian" principles reflected in the earlier defamation law cited by Dow Jones. (See Price Decl. ¶¶ .3-17.)
For the purposes of deciding the instant motion, the Court need not resolve which version of English law better comports with prevailing British jurisprudence. It suffices for the Court to note that at minimum it is persuaded by the sharp dispute between the parties' English law experts that it is all the more uncertain how the court in the London Action would adjudicate the case or what legal principles any other British tribunals later called upon to rule in any aspect of the dispute would apply to resolve the conflict. What is thus significant from this legal flux is not so much which view of law is more accurate, but that from the divergent versions offered, each of which may have aspects of plausibility, it is clear that considerable doubt exists as to whether the liability and other harms Dow Jones fears are in fact sufficiently real and immediate or may not come to pass at all. That contingency, as the Court discusses below, is a vital element of the considerations regarding the appropriateness of the relief sought in this action.
[19] See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 578, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999); see also United States ex rel. Kreindler & Kreindler v. United Technologies Corp., 985 F.2d 1148, 1155-56 (2d Cir.1993); see generally 2 James Wm. Moore et al., Moore's Federal Practice § 12.30[1], at 12-35-36 (3d ed.1997).
[20] Ruhrgas, 526 U.S. at 578, 119 S.Ct. 1563.
[21] See Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir.1990) (per curiam) (citing Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.)), cert. denied, 449 U.S. 953, 101 S.Ct. 358, 66 L.Ed.2d 217 (1980) (citing Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir.1977)); see generally 2 Moore's Federal Practice, supra, § 12.30[3].
[22] See Garcia v. Copenhaver, Bell & Assoc., M.D's P.A., 104 F.3d 1256, 1260-61 (11th Cir.1997) (citing Lawrence, 919 F.2d at 1529); 2 Moore's Federal Practice, supra, § 12.30[4], at 12-38.
[23] See Garcia, 104 F.3d at 1260-61.
[24] Id.
[25] Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir.1994).
[26] Section 2201(a) of the DJA provides in pertinent part:
In a case of actual controversy within its jurisdiction ... any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.
28 U.S.C. § 2201(a) (1994).
[27] See Public Serv. Comm'n of Utah v. Wycoff Co., 344 U.S. 237, 241, 73 S.Ct. 236, 97 L.Ed. 291 (1952).
[28] 28 U.S.C. § 2201(a) (emphasis added).
[29] See In re Combustion Equip. Assocs., 838 F.2d 35, 37 (2d Cir.1988); United States v. Doherty, 786 F.2d 491, 498 (2d Cir.1986); 10B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2751, at 456-57 (3d ed. 1998) ("Wright, Miller & Kane"); 12 James Wm. Moore et al., Moore's Federal Practice, § 57.031[2], at 57-11, 57-12 (3d ed.2001).
[30] 521 F.2d 392 (2d Cir.1975).
[31] Id. at 397 (quoting Aetna Cas. & Surety Co. v. Quarles, 92 F.2d 321, 325 (4th Cir.1937)).
[32] 28 U.S.C. § 2201(a).
[33] See Wycoff, 344 U.S. at 241-42, 73 S.Ct. 236; Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239-40, 57 S.Ct. 461, 81 L.Ed. 617 (1937); Keene Corp. v. Fiorelli, 14 F.3d 726, 731 (2d Cir.1993).
[34] Wycoff, 344 U.S. at 242, 73 S.Ct. 236 (quoting Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 325, 56 S.Ct. 466, 80 L.Ed. 688 (1936)); see also F.X. Maltz, Ltd. v. Morgenthau, 556 F.2d 123, 125 (2d Cir.1977); see generally 10B Wright, Miller & Kane, supra, § 2757, at 477.
[35] 312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826 (1941).
[36] 344 U.S. at 244, 73 S.Ct. 236.
[37] 404 F.2d 501 (2d Cir.1968).
[38] Id. at 504 (citing Maryland Casualty, 312 U.S. at 273, 61 S.Ct. 510).
[39] See Thomas v. Union Carbide Agric. Prod. Co., 473 U.S. 568, 580-81, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985) (noting that central to the ripeness requirement is that courts should not endeavor to resolve contingencies that may or may not occur as expected or may not happen at all).
[40] See id.
[41] 408 U.S. 1, 13-14, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972).
[42] Id.; see generally 12 Moore's Federal Practice, supra, § 57.22[3][a].
[43] The court notes that Harrods' motion does not frontally challenge Dow Jones' contentions in this regard. Although in connection with certain Rule 12(b)(1) motions, the Court must consider as true the assertions of fact in the pleadings, here the Court has concluded that Harrods' motion presents an attack on the existence of subject matter jurisdiction irrespective of the facial sufficiency of the pleadings. See supra Part II. Accordingly, the Court need not attach a presumption of truthfulness to the pleadings in the complaint. See Lawrence, 919 F.2d at 1529. Moreover, with respect to Dow Jones' allegations and arguments concerning the likelihood of the unenforceability in the United States of any judgment of defamation rendered in the London Action, the Court notes that such statements constitute not assertions of fact, but conclusions of law. As such, they are not entitled to unqualified acceptance by the Court in connection with this motion. See First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 771 (2d Cir.1994). Nonetheless, because Harrods has not asserted any direct challenge to this aspect of Dow Jones' allegations, for the purposes of this motion, the Court will resolve any doubts on this point in Dow Jones' favor and treat these assertions as uncontroverted. The Court, of course, can make no assumption at this time as to which, if any, of the English defamation law doctrines Dow Jones contends are antithetical to American public policy the British courts are likely to apply in any judgment rendered in the London Action.
[44] See Thomas, 473 U.S. at 580-81, 105 S.Ct. 3325; Wycoff, 344 U.S. at 244, 73 S.Ct. 236.
[45] Dow Jones contends that it does not publish the Journal or transact any other business in the United Kingdom, and that whatever activities or contacts it may have there are maintained through a separate subsidiary or affiliate, Dow Jones International. (See Transcript of the Oral Argument on September 19, 2002 ("Tr."), at 12.) Whether or not Dow Jones had sufficient presence or contacts or conducted enough business in the United Kingdom directly or through its affiliate to warrant the exercise of personal jurisdiction by the British tribunals represents a jurisdictional dispute that should be addressed in the first instance in the London Action under an application of governing English law relating to in personam jurisdiction and relationships among corporate affiliates. The court there may or may not find a supportable legal basis to assert judicial authority over Dow Jones, an unknown that raises some possibility that Dow Jones could prevail on this point and that the liability it fears may never materialize. To this degree, its assertion of a controversy about actual and immediate injury loses much of its reality and immediacy.
[46] See, e.g., Zwickler v. Koota, 389 U.S. 241, 249-251, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967); Dombrowski v. Pfister, 380 U.S. 479, 489-90, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); see also New York Times v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).
[47] See Golden v. Zwickler, 394 U.S. 103, 109-110, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969); National Student Ass'n v. Hershey, 412 F.2d 1103, 1113-15 (D.C.Cir.1969).
[48] 401 U.S. 37, 53, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).
[49] See id. at 42, 91 S.Ct. 746.
[50] Id.
[51] Id.
[52] Id. at 50.
[53] Id. at 46; see also Nat'l Student Ass'n, 412 F.2d at 1113-1114 ("[W]e are not persuaded that every plaintiff who alleges a First Amendment chilling effect and shivers in court has thereby established a case or controversy.").
[54] 408 U.S. at 13-14, 92 S.Ct. 2318.
[55] 344 U.S. at 247-48, 73 S.Ct. 236.
[56] According to Dow Jones, a plaintiff in the United Kingdom may sue a defendant for each individual "publication" of an allegedly defamatory statement. In other words, separate actions may be cognizable for print publication as opposed to Internet publication, as well as in every particular country where the publication occurred and plaintiff suffered damages. By contrast, in the United States, the single publication rule, recognized by "the great majority" of states, limits defamation actions by requiring that for any single publication: (1) only one action for damages can lie; (2) all damages suffered in all jurisdictions may be recovered in the same action; and (3) a judgment on the merits of plaintiff's claims bars similar suits between the same parties in all jurisdictions. (See Stephens Decl. ¶ 5(k), at 4; and Pl.'s Memo at 10-11.) (citing Restatement (Second) of Torts § 577 A and Keeton v. Hustler, Magazine, Inc., 465 U.S. 770, 777, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984)). Harrods takes issue with Dow Jones' view of English law on this point, contending that Dow Jones' characterization does not represent the reality of English law, and that it would be an abuse of process for a plaintiff to bring more than one defamation action against the same defendant in England based on the same publication. (See Price Decl. ¶¶ 17, 20, at 10, 11.)
[57] Pl.'s Memo at 13 (emphasis in original).
[58] See Restatement (Third) of the Foreign Relations Law of the United States: Jurisdiction to Adjudicate § 421(2)(i), at 304-05 (1987) ("Restatement (Third) of Foreign Relations"); see also id. at § 431 and Comment at 321-22 (noting that under international law, a state may not exercise authority to enforce a law that it has no jurisdiction to prescribe, whether the assertion of jurisdiction is carried out through the courts or by nonjudicial means); see generally Albert A. Ehrenzweig, A Treatise on the Conflict of Laws, §§ 51, 59, at 52 (1962).
[59] Pl.'s Memo at 14, 16.
[60] Price Decl. ¶ 20, at 11.
[61] Id. ¶ 21, at 11.
[62] Parody, if the tone of this portrayal may so appear, is not the message the Court's "tongue-in-cheek hyperbole" intends on this point. (Deinard Decl. Ex. A.) Nor is it derision. Rather, any levity here conveyed is but a medium, and like the desired effect of any parable, metaphor or fable, what the Court strives to capture is that of teachings informed by the art of purposed overstatement and contrast. Just as it is often said about various forms of combat that the best defense is a good offense, so at times in dialectics the best instruction may come by deconstruction. In this spirit, the Court is mindful that in the quest for wisdom there may be no more sober way to see the fallacy in some human perspectives, and thereby deflate grandiose proportions to real world scale, than by objectively endeavoring to see things as others might perceive them, and to project foreseeable consequences of our acts as others would likely experience them and so respond.
[63] Ehrenzweig, Conflict of Laws, supra, § 51, at 183 (citing British Nylon Spinners, Ltd. v. Imperial Chem. Indus., Ltd., [1951] 1 Ch. 37 (1955) (denying recognition to an injunction issued by a United States district court against a British national)).
[64] See A.V. Dicey and J.H.C. Morris, The Conflict of Laws, ch. 33, Rule 183, at 1083 (J.H.C. Morris et al. eds., 8th ed. 1967) ("Dicey's Conflict of Laws").
[65] Id. (quoting The Janera [1928] P. 55, 57).
[66] Id. ch. 31, Rule 159, at 966-68. Cf. Restatement (Third) of Foreign Relations, supra, § 482(d), at 604.
[67] See Dicey's Conflict of Laws, supra, ch. 33, Rule 183, at 1081.
[68] 169 F.Supp.2d 1181 (N.D.Cal.2001).
[69] Id. at 1188.
[70] Id. at 1186.
[71] 32 F.Supp.2d 118 (S.D.N.Y.1997), aff'd, 161 F.3d 115 (2d Cir.1998).
[72] Id. at 124.
[73] 949 F.Supp. 1333 (N.D.Ill.1996).
[74] See id. at 1335.
[75] Id. at 1337.
[76] Id. (quoting American Fidelity & Cas. Co. v. Pennsylvania Threshermen & Farmers' Mut. Cas. Inc. Co., 280 F.2d 453, 461 (5th Cir. 1960)).
[77] Id. at 1338.
[78] Id.
[79] Id.
[80] Pl.'s Memo at 18.
[81] 949 F.Supp. at 1338.
[82] Pl.'s Memo at 12-13 n. 12 (emphasis added).
[83] Compl. ¶ 72.
[84] Pl.'s Memo at 19.
[85] See Younger, 401 U.S. at 46, 91 S.Ct. 746; see also Laird, 408 U.S. at 13-14, 92 S.Ct. 2318.
[86] See Spear, 954 F.2d at 67-68.
[87] Pl.'s Memo at 19.
[88] See, e.g., Brinkerhoff-Faris Trust & Sav. Co. v. Hill, 281 U.S. 673, 678, 50 S.Ct. 451, 74 L.Ed. 1107 (1930); Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314-15, 70 S.Ct. 652, 94 L.Ed. 865 (1950); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971); Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977).
[89] See, e.g., Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 928 (D.C.Cir.1984) (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 258-61, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981)).
[90] See Younger, 401 U.S. at 46, 91 S.Ct. 746; Spear, 954 F.2d at 67-68.
[91] See generally Sabena, 731 F.2d at 928-29 ("important principles of comity ... compel deference and mutual respect for concurrent foreign proceedings.").
[92] See Wycoff, 344 U.S. at 242-243, 73 S.Ct. 236.
[93] See Younger, 401 U.S. at 53-54, 91 S.Ct. 746.
[94] Id.
[95] See, e.g., 28 U.S.C. 33 § 2283; China Trade and Dev. Corp. v. M.V. Choong Yong, 837 F.2d 33, 36-37 (2d Cir.1987); Sabena, 731 F.2d at 928-29 n. 59; see generally 17 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure §§ 4225 at 534-35, 4226 at 548-49 (2d ed.1988) (noting that the exceptions provided by 28 U.S.C. § 2283 do not authorize federal courts to enjoin state court proceedings merely to protect a judgment that involves issues presented in a federal in personam action, or to protect a judgment "that the federal court may make in the future but has not yet made."); see also infra notes 106-110 and accompanying text.
[96] See, e.g., China Trade, 837 F.2d at 36-37; Sabena, 731 F.2d at 928-29.
[97] See Sabena, 731 F.2d at 929.
[98] See id. at 931 n. 71.
[99] See Harvey Aluminum, Inc. v. Am. Cyanamid Co., 203 F.2d 105, 108 (2d Cir.1953).
[100] See Price Decl. ¶ 19.
[101] Dow Jones estimates that it has between 5,000 and 6,000 paid subscribers of WSJ.com in the United Kingdom. See Tr. at 11.
[102] See supra notes 95-98 and accompanying text.
[103] See, e.g., International Shoe Co. v. Washington, 326 U.S. 310, 317-19, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Hanson v. Denckla, 357 U.S. 235, 251, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); Shaffer v. Heitner, 433 U.S. 186, 212, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977); see generally Restatement (Third) of Foreign Relations, supra, § 421(2)(j) at 304-05 § 421.
[104] See Sabena, 731 F.2d at 922.
[105] Id. at 921.
[106] Id.; Computer Assocs., 126 F.3d at 371-72; China Trade, 837 F.2d at 36 (citing Donovan v. City of Dallas, 377 U.S. 408, 412, 84 S.Ct. 1579, 12 L.Ed.2d 409 (1964)); Compagnie des Bauxites de Guinea v. Ins. Co. of No. Am., 651 F.2d 877, 887 (3d Cir.1981), aff'd on other grounds, 456 U.S. 694, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982); see also Atlantic Coast Line R.R. Co. v. Bhd. of Locomotive Eng'rs, 398 U.S. 281, 295, 90 S.Ct. 1739, 26 L.Ed.2d 234 (1970).
[107] See, e.g., Cole v. Cunningham, 133 U.S. 107, 10 S.Ct. 269, 33 L.Ed. 538 (1890); United States v. Davis, 767 F.2d 1025, 1038 (2d Cir.1985); In re Marc Rich & Co., A.G., 707 F.2d 663, 666 (2d Cir.), cert. denied, 463 U.S. 1215, 103 S.Ct. 3555, 77 L.Ed.2d 1400 (1983); Sabena, 731 F.2d at 926; Canadian Filters (Harwich) v. Lear-Siegler, 412 F.2d 577, 578 (1st Cir.1969).
[108] See China Trade, 837 F.2d at 35-36 (quoting Davis, 767 F.2d at 1038 and Canadian Filters, 412 F.2d at 578).
[109] Davis, 767 F.2d at 1038.
[110] See China Trade, 837 F.2d at 35 (citing Am. Home Assurance Corp. v. Ins. Corp. of Ireland, Ltd., 603 F.Supp. 636, 643 (S.D.N.Y. 1984)).
[111] See MasterCard Int'l Inc. v. Argencard Sociedad Anonima, No. 01-CV-3027 2002 WL 432379, at *1, 5 (S.D.N.Y. Mar. 20, 2002)
[112] See infra notes 129-130, 161-164 and accompanying text.
[113] See Computer Assocs., 126 F.3d at 371-72; China Trade, 837 F.2d at 35-36.
[114] See Restatement (Third) of Foreign Relations, supra, § 421.
[115] See supra note 45.
[116] Id.; see also Dicey's Conflict of Laws, supra, ch. 10, Rule 22 at 174-76 (noting that courts in England have jurisdiction to entertain an action in personam if a corporate defendant is present in England through the conduct of business over a substantial period of time); id., ch. 10, Rule 25 at 201-2 (noting that British courts may assume jurisdiction to adjudicate an action founded on tort committed in England and that the tort of defamation is committed where the defamatory statement is published or received and not where it is posted or uttered).
[117] International Shoe, 326 U.S. at 316, 66 S.Ct. 154 (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)).
[118] See China Trade, 837 F.2d at 36 ("`[P]arallel proceedings on the same in personam claim should ordinarily be allowed to proceed simultaneously, at least until a judgment is reached in one which can be pled as res judicata in the other.'") (quoting Sabena, 731 F.2d at 926-27); Computer Assoc., 126 F.3d at 371-72.
[119] The Court here recognizes that much of the word's rapid etymology developed connotations, as noun, verb and adjective, commonly understood to be derisive (indeed some of them defined and promoted by late-night comedians).
[120] See China Trade, 837 F.2d at 37.
[121] Id. (quoting Sabena, 731 F.2d at 931, n. 73); see also Piper Aircraft Co. v. Reyno, 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981).
[122] 731 F.2d at 931 n. 73.
[123] See id.; Computer Assoc., 126 F.3d at 372.
[124] 344 U.S. at 248, 73 S.Ct. 236 (citations omitted) (emphasis added).
[125] 316 U.S. 491, 495, 62 S.Ct. 1173, 86 L.Ed. 1620 (1942) (citations omitted) (emphasis added).
[126] See Basic, 949 F.Supp. at 1340; see also Cunningham, 407 F.2d at 1167.
[127] See, e.g., Salomon Bros., Inc. v. Carey, 556 F.Supp. 499, 501 (S.D.N.Y.1983).
[128] See, e.g., Cunningham, 407 F.2d at 1167-68.
[129] See also BASF Corp. v. Symington, 50 F.3d 555, 559 (8th Cir.1995) (holding that "where a declaratory plaintiff raises chiefly an affirmative defense, and it appears that granting relief could effectively deny an allegedly injured party its otherwise legitimate choice of the forum and time for suit, no declaratory judgment should issue."); Morrison v. Parker, 90 F.Supp.2d 876, 880-81 (W.D.Mich.2000); Sun Oil Co. v. Transcontinental Gas Pipe Line Corp., 108 F.Supp. 280, 282 (E.D.Pa.1952), aff'd, 203 F.2d 957 (3d Cir.1953); see generally 10B Wright, Miller & Kane, supra, § 2765 at 638-39.
[130] See Wycoff, 344 U.S. at 247-48, 73 S.Ct. 236; Cunningham, 407 F.2d at 1167.
[131] Wilton v. Seven Falls Co., 515 U.S. 277, 288, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995).
[132] See Blanco v. Banco Indus. de Venezuela, S.A., 997 F.2d 974, 981 (2d Cir.1993) ("[I]t is not the business of our courts to assume the responsibility for supervising the integrity of the judicial system of another foreign nation.") (quoting Chesley v. Union Carbide Corp., 927 F.2d 60, 66 (2d Cir.1991)).
[133] Lauritzen v. Larsen, 345 U.S. 571, 582, 73 S.Ct. 921, 97 L.Ed. 1254 (1953)
[134] See Sabena, 731 F.2d at 934 (noting among cases where this intercourt injunctive combat was recorded James v. Grand Trunk Western R.R. Co., 14 Ill.2d 356, 152 N.E.2d 858, cert. denied, 358 U.S. 915, 79 S.Ct. 288, 3 L.Ed.2d 239 (1958) and Bryant v. Atl. Coast Line R.R., 92 F.2d 569 (2d Cir.1937)). The controversy at issue in Sabena itself, detailed infra, note 166, presents a quintessential example of this harmful potential.
[135] 559 F.Supp. at 1132.
[136] In Hilton, the Supreme Court, in what appeared to be dictum, purportedly established a requirement of reciprocity for recognition of foreign judgments. See 159 U.S. at 228, 16 S.Ct. 139; Ehrenzweig, Conflict of Laws, supra, § 46, at 165. Broad criticism and rejection of the doctrine in this country has cast doubt on its continued vitality as an absolute prerequisite to comity. See Sabena, 731 F.2d at 939; Tahan v. Hodgson, 662 F.2d 862, 864, 867-68 (D.C.Cir.1981); Ehrenzweig, supra, § 46, at 165-66. While generally reciprocity is not imposed by British courts under common law, in other countries it remains a recognized practice or consideration in giving recognition to judgments or proceedings of other sovereign states. See generally Arthur T. von Mehren & Donald T. Trautman, Recognition of Foreign Adjudications: A Survey and Suggested Approach, 81 Harv. L.Rev. 1601, 1660-62 (1968); Courtland H. Peterson, Foreign Country Judgments and the Second Restatement of Conflict of Laws, 72 Colum. L.Rev. 220, 233-36 (1972); Kurt H. Nadelmann, Reprisals Against American Judgments?, 65 Harv. L.Rev. 1184, 1187-90 (1952); Willis L.M. Reese, The Status in This Country of Judgments Rendered Abroad, 50 Colum. L.Rev. 783, 790-93 (1950); Restatement (Second) of Conflict of Laws: Recognition of Foreign Nation Judgments § 98 cmt. e (1971).
That is not to say however, that in practice, theory universally comports with reality. Noting the limitation on reciprocity, the Sabena court stated: "[c]ertainly our law has not departed so far from common sense that it is reversible error for a court not to capitulate to a foreign judgment based on a statute ... designed to prevent the court from resolving legitimate claims placed before it." See Sabena, 731 F.2d at 939. Here, common sense would similarly suggest that it is highly unlikely that it would escape the contemplation of the British tribunals that in order to protect their exercise of judicial power over a matter properly before them and prevent foreign disruption of their jurisdiction, it would be justifiable for them to counter an arguably doubtful foreign intrusion with their own restraining order.
[137] See Public Affairs Assoc. v. Rickover, 369 U.S. 111, 112-113, 82 S.Ct. 580, 7 L.Ed.2d 604 (1962); see also Ernst & Young v. Depositors Econ. Protection Corp., 45 F.3d 530, 535 (1st Cir.1995); Washington Pub. Power Supply Syst. v. Pacific Northwest Power Co., 332 F.2d 87, 88 (9th Cir.1964); Frazier v. Ward, 426 F.Supp. 1354, 1361 (N.D.N.Y.1977).
[138] See 28 U.S.C. § 2201(a).
[139] Wycoff, 344 U.S. at 241, 73 S.Ct. 236; Rickover, 369 U.S. at 112, 82 S.Ct. 580 (noting that the DJA was "an authorization, not a command. It gave the federal courts competence to make a declaration of rights; it did not impose a duty to do so."); see also Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491, 494, 62 S.Ct. 1173, 86 L.Ed. 1620 (1942); Beacon Const., 521 F.2d at 397; see generally Edwin Borchard, Discretion to Refuse Jurisdiction of Actions for Declaratory Judgments, 26 Minn. L.Rev. 677 (1942) ("Discretion to Refuse").
[140] See Wilton, 515 U.S. at 277, 289, 115 S.Ct. 2137.
[141] Id. at 288, 115 S.Ct. 2137.
[142] See id. at 282, 115 S.Ct. 2137.
[143] Id.
[144] Broadview Chem. Corp. v. Loctite Corp., 417 F.2d 998, 1001 (2d Cir.1969), cert. denied, 397 U.S. 1064, 90 S.Ct. 1502, 25 L.Ed.2d 686 (1970) (quoting Edwin Borchard, Declaratory Judgments 299 (2d ed.1941)).
[145] See Grand Trunk Western R.R. Co. v. Consol. Rail Corp., 746 F.2d 323, 326 (6th Cir. 1984); NUCOR Corp. v. Aceros Y Maquilas de Occidente, S.A. decl. C.V., 28 F.3d 572, 577 (7th Cir.1994); see generally 10B Wright, Miller & Kane, supra, § 2759, at 547-48.
[146] See Yahoo!, 169 F.Supp.2d at 1194.
[147] Pl.'s Memo, at 17 (quoting Farrell, 32 F.Supp.2d at 124 and Texport Oil Co. v. M/V Amolyntos, 11 F.3d 361, 366 (2d Cir.1993)).
[148] See, e.g., Beacon Constr., 521 F.2d at 397; 12 Moore's Federal Practice, supra, § 57.03[3], at 57-12 to 57-14.
[149] See Brillhart, 316 U.S. at 495, 62 S.Ct. 1173.
[150] Id.
[151] See Wilton, 515 U.S. at 286-87, 115 S.Ct. 2137.
[152] Id. at 286, 290, 115 S.Ct. 2137.
[153] Id. at 286-87, 115 S.Ct. 2137 (internal citations omitted).
[154] William Shakespeare, The Two Gentlemen of Verona, Act I, Sc. II, line 23.
[155] Borchard, Discretion to Refuse, supra, 26 Minn. L.Rev. at 682.
[156] See, e.g., Starter Corp. v. Converse, Inc., 84 F.3d 592, 597 (2d Cir.1996).
[157] See, e.g., S. Jackson & Son, Inc. v. Coffee, Sugar & Cocoa Exchange, Inc., 24 F.3d 427, 431-32 (2d Cir.1994), Browning Debenture Holders' Comm. v. DASA Corp., 524 F.2d 811, 817 (2d Cir.1975).
[158] See, e.g., Rickover, 369 U.S. at 112, 82 S.Ct. 580 (citing Eccles v. Peoples Bank, 333 U.S. 426, 432, 68 S.Ct. 641, 92 L.Ed. 784 (1948)).
[159] 45 F.3d at 530.
[160] Id. at 535 (citing El Dia, Inc. v. Hernandez Colon, 963 F.2d 488, 494 (1st Cir.1992) and Washington Pub. Power, 332 F.2d at 88). In El Dia, the First Circuit noted that a factor courts should always consider in determining whether to grant declaratory relief in constitutional cases is "the need for courts to be chary of adjudicating constitutional rights by means of declaratory judgment actions. Uncertain questions of constitutional law should be addressed only when absolutely necessary." 963 F.2d at 494 (citing Alabama State Fed'n of Labor v. McAdory, 325 U.S. 450, 461, 65 S.Ct. 1384, 89 L.Ed. 1725 (1945)). The Circuit Court also cautioned that courts should withhold declaratory relief as a matter of discretion "if such redress is unlikely to palliate, or not needed to palliate, the fancied injury, especially when refraining from issuing a declaratory judgment `avoid[s] the premature adjudication of constitutional issues.'" Id. (quoting Penthouse Int'l, Ltd. v. Meese, 939 F.2d 1011, 1019-20 (D.C.Cir. 1991), cert denied, 503 U.S. 950, 112 S.Ct. 1513, 117 L.Ed.2d 650 (1992)).
[161] See Brillhart, 316 U.S. at 495, 62 S.Ct. 1173; Wycoff, 344 U.S. at 247-48, 73 S.Ct. 236.
[162] Id.
[163] See, e.g., Basic, 949 F.Supp. at 1341; see also Sabena, 731 F.2d at 909; British Airways Bd. v. Laker Airways, Ltd., [1985] A.C. 58.
[164] See, e.g., Computer Assoc., 126 F.3d at 371-72; Laker Airways Ltd. v. Pan American World Airways, 559 F.Supp. 1124 (D.D.C. 1983), aff'd sub nom, Laker Airways v. Sabena, 731 F.2d 909 (D.C.Cir.1984); British Airways Bd., [1985] A.C. 58.
[165] In antitrust cases, for example, the clash is typically triggered by a litigant in one jurisdiction seeking an antisuit injunction from the court in the forum state in an attempt to bar a competitor from prosecuting an action asserting antitrust violations arising from claims of wrongful practices that allegedly occurred in another country and that are being litigated there under what the party seeking to enjoin the proceeding asserts is extraterritorial application of the laws of that jurisdiction. See, e.g., Sabena, 731 F.2d at 915-916; see generally John H. Chung, The International Anti-Trust Enforcement Assistance Act of 1994 and the Maelstrom Surrounding the Extraterritorial Application of the Sherman Act, 69 Temp. L.Rev. 371 (1996).
[166] The Laker Airways litigation serves to illustrate the pernicious effects of these international legal standoffs. There, Laker Airways, an air carrier chartered in the United Kingdom, filed suit in 1982 in the federal court in the District of Columbia. The complaint alleged an extensive conspiracy under which British Airways and several other domestic and foreign airlines engaged in predatory practices designed to drive Laker out of the business of providing low-fare "no-frills" travel in the routes from the United Kingdom to the United States. In 1983 British Airways and British Caledonia Airways, later joined by other carriers named defendants in Laker's antitrust action, commenced an antisuit action in the High Court of Justice in London seeking a declaration of non-liability and permanent injunction prohibiting Laker from continuing its antitrust action in Washington. British Airways argued that Laker's antitrust claims were frivolous and vexatious, and that Laker's conduct in initiating litigation in the United States was motivated by unconscionable bad faith.
The court in the London action apparently accepted the proposition that because of the way the American legal system is structured, compounded by the expense entailed in the discovery process, the British defendants were unlikely to receive justice in American courts. It issued an interim order enjoining Laker from pursuing its suit against the two British carriers in the United States. See Laker Airways, 559 F.Supp. at 1128-29. Shortly thereafter, Laker obtained a temporary restraining order from the district court in the Washington litigation prohibiting several foreign airlines from joining the antisuit action in Britain. See id. The district court perceived the London tribunal's order as inconsistent with the doctrine of international comity and considered its issuance of federal injunctive relief as warranted to preserve the court's rightful jurisdiction. See id. at 1138-39. The Court of Appeals for the District of Columbia Circuit affirmed. See Sabena, 731 F.2d at 956. On an appeal in the London Action, the House Lords subsequently reversed the lower court's issuance of the original injunction. See British Airways, [1985] A.C. at 84 (opinion of Lord Diplock). The House of Lords held that because both Laker and the two British airlines, by reason of their business operations in the United States, subjected themselves to American territorial jurisdiction and antitrust laws, there was nothing sufficiently unconscionable or unjust in Laker's conduct in pursuing litigation in American courts so as to justify a British court's exercise of proper judicial discretion to enjoin Laker's action. Of significance to the principle before this Court was the British tribunal's recognition of the potential interference that a restraining order in the London proceedings would have on the judicial process in the United States. See id. at 95 (opinion of Lord Scarman).
[167] 515 U.S. at 288, 115 S.Ct. 2137; see also Wycoff, 344 U.S. at 243, 73 S.Ct. 236 (stating that the propriety of declaratory judgment in a particular case "will depend upon a circumspect sense of its fitness informed by the teachings and experience concerning the functions and extent of federal judicial power."); see generally David L. Shapiro, Jurisdiction and Discretion, 60 N.Y.U. L.Rev. 543 (1985).
[168] If shared elements of human behavior continue to hold true across the Atlantic and to sway conduct in similar ways, the manifest indignation the federal courts expressed in the Laker Airways litigation at the original British tribunal's restraining order interfering with the antitrust proceedings in a United States court with proper jurisdiction, especially in the light of the British court's implicit value judgment about the fairness of the American justice system, opens a window into what might be expected as the British judicial response when confronted with a converse of the situation, and may also provide a glimpse of the probable complications and prolongation of the instant case that may ensue were this Court to act in a way regarded by the British tribunals in the London Action as an unjustifiable intrusion into the litigation before they have had an adequate opportunity to rule even on whether the action is properly within British personal jurisdiction or makes out a prima facie case. See, e.g., Sabena, 731 F.2d at 933, 938-39.
The Sabena court's reaction was hardly muted: "[T]he initial opportunity to exercise comity, if this were called for, was put to the United Kingdom courts. No recognition or acceptance of comity was made in those courts. The appellants' claims of comity now asserted in United States courts come burdened with the failure of the British to recognize comity." 731 F.2d at 939. "[A]lthough our counterparts on the United Kingdom courts may disagree, the English injunctions against Laker cannot be justified as necessary to prevent Laker's evasion of Britain's important public policy of avoiding foreign remedies that could damage British trading interests. The British injunction is not an antisuit injunction designed to protect their jurisdiction to proceed with the case. Rather, its only purpose is to destroy the United States District Court's jurisdiction." Id. at 933 n. 81. Noting that the federal judgment at issue was defensive and neither made nor implied any view about the wisdom of British law, the Circuit Court observed that: "[i]n contrast, the English injunction is purely offensive it is not designed to protect English jurisdiction, or to allow English courts to proceed to a judgment on the defendant's potential liability under English anticompetitive law free from foreign interference. Rather, the English injunction seeks only to quash the practical power of the United States courts to adjudicate claims under United States law against defendants admittedly subject to the courts' adjudicatory jurisdiction." Id. at 938 (emphasis in original). Interchange the references to the United States and the United Kingdom in these passages, and it may yield a fair if discomfitting view of what justifiable reaction may well be provoked when the shoe is squeezed on the other foot.
[169] Under British law, courts in the United Kingdom have inherent power, in order to prevent the administration of justice from being perverted for an unjust end, to restrain by injunction the institution or continuation of vexatious or oppressive proceedings in a foreign court or the enforcement of foreign judgments. See Dicey's Conflict of Laws, supra, ch. 33, Rule 183, at 1081-84. Arguably, under this standard, such an exercise of authority might be warranted to protect the court's jurisdiction in connection with a foreign case involving the same parties and operative transaction that has as its purpose to interfere with the orderly process of litigation pending before it or to defeat the court's exercise of proper jurisdiction over the parties. Cf. Sabena, 731 F.2d at 927.
[170] See supra notes 59-61 and accompanying text.
[171] See supra notes 63-67 and accompanying text.
[172] British courts generally refuse to stay their proceedings pendente lite in favor of litigation in foreign tribunals because of their "prevailing preference for their own courts." Ehrenzweig, Conflict of Laws, supra, § 36, at 127; see also Dicey's Conflict of Laws, supra, ch. 33, Rule 183, at 1183.
[173] See supra notes 62-65 and accompanying text.
[174] See, e.g., Sabena, 731 F.2d at 927 (citing Peck v. Jenness, 48 U.S. (7 How.) 612, 624-25, 12 L.Ed. 841 (1849)); see also Lauritzen, 345 U.S. at 582, 73 S.Ct. 921.
[175] Dow Jones affirmatively states that its purpose in this Court is to "[s]eek to shut that [London Action] down. As we have said very explicitly, we seek an injunction preventing Harrods from pursuing that action ..." (Tr. at 15.)
[176] See Cunningham, 407 F.2d at 1168; Basic, 949 F.Supp. at 1339-40.
[177] See Wilton, 515 U.S. at 280-81, 115 S.Ct. 2137.
[178] See Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 219 (2d Cir.1978), rev'd on other grounds, 652 F.2d 278 (2d Cir.1981); Federal Ins. Co. v. May Dep't Stores Co., 808 F.Supp. 347, 349-51 (S.D.N.Y.1992).
[179] 316 U.S. at 495, 62 S.Ct. 1173; see also Wycoff, 344 U.S. at 247, 73 S.Ct. 236 ("Anticipatory judgment by a federal court to frustrate action by a state agency is even less tolerable to our federalism."); Beacon Constr., 521 F.2d at 397 (noting that in diversity actions "an important consideration in granting declaratory relief is its effect on federal-state relationships.") (citing Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 298, 63 S.Ct. 1070, 87 L.Ed. 1407 (1943)).
[180] See Basic, 949 F.Supp. at 1340-41.
[181] Id. at 1340.
[182] Id. at 1340-41 (quoting W.S. Kirkpatrick & Co., Inc. v. Environmental Tectonics Corp., Int'l, 493 U.S. 400, 404, 110 S.Ct. 701, 107 L.Ed.2d 816 (1990)).
[183] See Eastman Kodak Co. v. Kavlin, 978 F.Supp. 1078, 1089 (S.D.Fla.1997).
[184] See Laker Airways, [1985] A.C. at 95.
[185] Id. (opinion of Lord Scarman).
[186] The result of the British Airways litigation in the House of Lord, see id., not only manifested the British court's proper recognition of the principle of comity that counseled deference to the litigation pending in the United States court which had exercised proper jurisdiction over the British defendants, but demonstrated the working of the British legal system in that instance to yield an adjudication that prevented what otherwise may have produced a miscarriage of justice for the plaintiff in the federal antitrust action.
[187] Fed.R.Civ.P. 57.
[188] See Hickmann v. Wujick, 488 F.2d 875, 876 (2d Cir.1973).
[189] See generally 10B Wright, Miller & Kane, supra, § 2758, at 513-19.
[190] Id. at 519 (quoting Western v. McGehee, 202 F.Supp. 287, 294 (D.Md.1962)).
[191] See id. § 2758, at 529-30.
[192] See Wilton, 515 U.S. at 283, 115 S.Ct. 2137 (citing Brillhart, 316 U.S. at 495, 62 S.Ct. 1173); Continental Casualty Co. v. Coastal Sav. Bank, 977 F.2d 734, 737 (2d Cir.1992).
[193] See Sabena, 731 F.2d at 928; Compagnie des Bauxites, 651 F.2d at 887.
[194] See Wycoff, 344 U.S. at 247, 73 S.Ct. 236.
[195] See, e.g., Great Lakes Dock, 319 U.S. at 298, 63 S.Ct. 1070.
[196] Id.
[197] See, e.g., 28 U.S.C. § 2283; Younger, 401 U.S. at 43-45, 91 S.Ct. 746.
[198] See Sabena, 731 F.2d at 928, n. 52 (citing Canadian Filters, 412 F.2d at 578).
[199] See Hilton v. Guyot, 159 U.S. 113, 164, 16 S.Ct. 139, 40 L.Ed. 95 (1895).
[200] Id.
[201] 773 F.2d 452, 457 (2d Cir.1985).
[202] See W.S. Kirkpatrick & Co., Inc. v. Envt'l Tectonics Corp., Int'l, 493 U.S. 400, 404, 110 S.Ct. 701, 107 L.Ed.2d 816 (1990).
[203] Id. (quoting Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964)); see also Basic, 949 F.Supp. at 1340; Eastman Kodak, 978 F.Supp. at 1078.
[204] Sabena, 731 F.2d at 927.
[205] See Bryant, 92 F.2d at 571; Laker Airways, 559 F.Supp. at 1129.
[206] See Sabena, 731 F.2d at 927.
[207] See China Trade, 837 F.2d at 36; Computer Assoc., 126 F.3d at 371-72.
[208] 731 F.2d at 931; see also Harvey Aluminum, 203 F.2d at 108 (noting that a district court could enjoin the prosecution of an action in a foreign jurisdiction if the litigation was motivated solely by vexatiousness, but that the restraining order should not be granted if the party had valid grounds to be in the foreign tribunal under the laws of the country involved).
[209] See Laker Airways, 559 F.Supp. at 1128 n. 14 (citing Peck, 48 U.S. (7 How.) at 624-25 and Compagnie Bauxites, 651 F.2d at 887).
[210] Lauritzen, 345 U.S. at 582, 73 S.Ct. 921.
[211] See Hilton, 159 U.S. at 165, 16 S.Ct. 139 (noting that "`[I]n the conflict of laws it must often be a matter of doubt which should prevail; and that, whenever a doubt does exist, the court which decides will prefer the laws of its own country to that of the stranger.'") (quoting Story, Conflict of Laws § 28).
[212] 731 F.2d at 951 (citing Maier, Interest Balancing and Extraterritorial Jurisdiction, 31 Am. J. Comp. L. 579, 593-95 (1983)).
[213] 159 U.S. at 163-64, 16 S.Ct. 139. The Hilton Court also stated that: "`Every nation must be the final judge for itself, not only of the nature and extent of the duty, but of the occasions on which its exercise may be justly demanded.'" and that "`[n]o nation will suffer the laws of another to interfere with her own to the injury of her citizens.'" Id. at 165, 16 S.Ct. 139 (quoting Story, Conflict of Laws, §§ 33-38); see also Somportex Ltd. v. Philadelphia Chewing Gum Corp., 453 F.2d 435, 440 (3d Cir.1971), cert denied, 405 U.S. 1017, 92 S.Ct. 1294, 31 L.Ed.2d 479 (1972) (noting that "comity does not achieve the force of an imperative or obligation").
[214] See Hilton, 159 U.S. at 164, 16 S.Ct. 139; Clarkson Co., Ltd. v. Shaheen, 544 F.2d 624, 629 (2d Cir.1976); Sabena 731 F.2d at 937; Tahan, 662 F.2d at 864 see also Restatement (Third) of Foreign Relations § 482(2)(d) ("A court in the United States not recognize a judgment of the court of a foreign state if ... the cause of action on which the judgment was based, or the judgment itself, is repugnant to the public policy of the United States or of the State where recognition is sought."); Restatement (Second) of Conflict of Laws § 117, Comment c (1971) (enforcement will usually be accorded to a foreign nation judgment "except in situations where the original claim is repugnant to fundamental notions of what is decent and just in the State where enforcement is sought.")
[215] See Bachchan, 585 N.Y.S.2d at 665; see also Abdullah v. Sheridan Square Press, Inc., No. 93 Civ. 2515, 1994 WL 419847 (S.D.N.Y. May 4, 1994); Yahoo!, 169 F.Supp.2d at 1188-89.
[216] See Yahoo!, 169 F.Supp.2d at 1188-89.
[217] See Pl.'s Memo at 16.
[218] See Younger, 401 U.S. at 46, 91 S.Ct. 746.
| {
"pile_set_name": "FreeLaw"
} |
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