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___________ No. 95-3784 ___________ Ronnie Parker, * * Appellant, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. Michael S. Bowersox, * Jeremiah W. Nixon, * * Appellees. * ___________ Submitted: June 14, 1996 Filed: August 26, 1996 ___________ Before RICHARD S. ARNOLD, Chief Judge, WOLLMAN, Circuit Judge, and KORNMANN,* District Judge. ___________ WOLLMAN, Circuit Judge. Ronnie Parker appeals the denial of his 28 U.S.C. § 2254 petition, arguing that his Fourteenth Amendment due process rights and his Sixth Amendment right to effective assistance of counsel were violated during his state court trial and appeal. We affirm. I. At approximately 2:00 p.m. on February 6, 1989, Beverly Tate was shot and killed. Her neighbor, Johnetta Graham, testified that less than two hours before Tate's death, she saw Parker, Tate's former boyfriend, sitting on a stool outside the door of Tate's *The HONORABLE CHARLES B. KORNMANN, United States District Judge for the District of South Dakota, sitting by designation. apartment. Shortly thereafter, she heard Tate open her door, and she then heard scuffling sounds, as if Tate were trying to close the door but could not because someone was pushing it from the opposite side. As the struggling parties entered the apartment, the noise escalated to screams, and Graham heard punching sounds and then Tate's voice screaming, "Ronnie, stop punching me, Ronnie, stop hitting me." She then heard Parker respond, "Where is my gun? You are playing tricks, you bitch, you bitch." The sounds moved upstairs to where Tate's bedroom was located, and they were subsequently drowned out by the noise of a television. Graham called the police, who arrived at approximately 12:50 p.m. Two police officers knocked on Tate's door, but heard no answer. The noise quieted. After waiting for approximately thirty minutes, the officers left. Approximately thirty minutes later they returned to Tate's apartment after receiving a call from the apartment manager reporting the sound of a gunshot. They discovered Tate's body, naked on the floor of her bedroom, with a fatal bullet wound to her head. Latez Strong, who was visiting his sister in the apartment to the immediate left of Tate's, corroborated Graham's testimony, although he testified that he did not know the identities of the male and female that he heard fighting next door. In addition to the sounds heard by Graham, Strong testified that he heard a male voice say, "If [you are] going to act like a dog, I'll treat you like a dog. Get f--- naked." Strong further testified that after the police left the first time, he heard a gunshot. A criminalist with the St. Louis police department testified that the results from tests of swabs taken from Tate's body indicated anal intercourse. The medical examiner testified that in addition to the gunshot wound to Tate's head, her body contained some "irregular very thin scratches and superficial punctures in the small area of the back and on to the adjacent parts of the -2- buttocks." Mildred Morgan, Tate's mother, testified, over Parker's objection, that Parker and her daughter had fought on previous occasions and that Parker had "blackened her eyes." She also testified that her daughter wished to discontinue her relationship with Parker and had made plans to move to California. Over Parker's objection, Morgan further testified that her daughter did not want Parker around because she had recently completed a drug treatment program. Counsel moved for a mistrial after this testimony, arguing that the implication that Parker was a drug user was irrelevant and prejudicial. The court denied the request for a mistrial, but directed the jury to disregard the last statement. Following his conviction for murder, sodomy, and armed criminal action, Parker filed a petition for state post-conviction relief, which was denied. After consolidating Parker's appeal from this ruling with his direct appeal, the Missouri Court of Appeals affirmed both Parker's conviction and the denial of his petition for post-conviction relief. Parker then filed this petition for writ of habeas corpus, which the district court1 denied. II. Parker first argues that his due process rights were violated by the trial court's admission of Mildred Morgan's testimony referring to past fights between Tate and Parker and implying that Parker was a drug user. Parker attacks this testimony as improper evidence of prior bad acts and as irrelevant. A state court's evidentiary rulings can form the basis for federal habeas relief under the due process clause only when they 1 The Honorable Donald J. Stohr, United States District Judge for the Eastern District of Missouri. -3- were so conspicuously prejudicial or of such magnitude as to fatally infect the trial and deprive the defendant of due process. Troupe v. Groose, 72 F.3d 75, 76 (8th Cir. 1995); Bennett v. Lockhart, 39 F.3d 848, 856 (8th Cir. 1994), cert. denied, 115 S. Ct. 1363 (1995). We find that the errors alleged by Parker were not of such magnitude as to support a due process claim. The jury was instructed to disregard the comment implying that Parker was a drug user, and we presume that it did so. See United States v. Koskela, 86 F.3d 122, 125 (8th Cir. 1996). Moreover, in light of the abundant testimony that Parker was in the apartment threatening and hitting Tate shortly before her death, the evidence that on one or two prior occasions Parker blackened Tate's eyes was not sufficiently prejudicial to fatally infect the trial. III. Parker next argues that he received ineffective assistance of both trial and appellate counsel. As it pertains to trial counsel, this argument is based on counsel's failure to object to testimony that Parker characterizes as inadmissible hearsay and his failure to call a certain witness in Parker's defense. Parker contends that his appellate counsel failed to appeal the admission of allegedly prejudicial evidence of witness threats and that he failed to appeal the sufficiency of the evidence supporting the murder conviction. To obtain relief for a claim of ineffective assistance of either trial or appellate counsel, a defendant must show both that his attorney's performance fell below an objective standard of reasonableness and that he was prejudiced by that deficient performance. Strickland v. Washington, 466 U.S. 668, 687-688 (1984); Harris v. State, 960 F.2d 738, 740 (8th Cir. 1992) (applying Strickland analysis to appellate counsel), cert. denied, 506 U.S. 921 (1992). -4- A. Trial Counsel Without objection by trial counsel, Morgan testified that her daughter told her that she did not wish to continue her relationship with Parker. The district court characterized this testimony as fitting into the state-of-mind exception to the hearsay rule under Missouri law. See State v. Post, 901 S.W.2d 231, 235 (Mo. App. Ct. 1995). We need not delve into the intricacies of Missouri evidentiary law to determine whether this characterization was correct, because we find that even if counsel erred in failing to object to this testimony, the omission was not sufficiently prejudicial to warrant habeas relief. In light of the strong evidence that Tate wished to keep Parker out of her apartment on that day and that once he entered a vicious struggle ensued, the jury could have reasonably inferred (indeed, could hardly have done otherwise) that Tate wished to end her relationship with Parker even without this evidence. Moreover, given the strong evidence of guilt, Parker has failed to show that there is a reasonable probability that, but for counsel's failure to object to this evidence, the result of the trial would have been different. See Strickland 466 U.S. at 694. Parker next attacks his trial counsel's failure to call Donald Cohen as a witness in his defense. Cohen allegedly would have testified that he saw a man leaving Tate's apartment building around the time of the killing. Cohen's description of this man is inconsistent with Parker's appearance. This claim was first addressed to the state court at Parker's sentencing hearing, during which his trial counsel stated that he had spoken with Cohen, but that Cohen refused to give him an address or phone number at which he could be contacted. Counsel further stated that he and his investigator set up a meeting with Cohen but that Cohen did not show up for the arranged meeting. According to counsel, he and his investigator perceived that Cohen was extremely reluctant to get involved and that "as a matter of trial strategy [they] felt there -5- was nothing to do." Parker again raised this claim in his Rule 29.15 motion for post- conviction relief. The Rule 29.15 court, pointing to trial counsel's explanation of his actions, found the claim to be without merit. Several months after this hearing, Parker obtained an affidavit in which Cohen stated that he had been willing to testify at trial but that he was not called by anyone to do so. In addition, more than three years after obtaining Cohen's affidavit, Parker obtained an affidavit from his brother, Aaron Parker, stating that Aaron had met with trial counsel prior to Parker's trial and gave him Cohen's address and phone number. As these affidavits were prepared after the conclusion of the state-court proceedings, the district court was apparently the first court to consider this new evidence. The district court determined that an evidentiary hearing on this issue was not warranted, and we agree. We must evaluate counsel's decision not to interview or call a particular witness from the perspective of counsel at the time the decision was made. See Whitmore v. Lockhart, 8 F.3d 614, 619 (8th Cir. 1993). When evaluated in this light, trial counsel's performance did not fall outside the wide range of professionally reasonable performance. See Strickland, 466 U.S. at 687. In any event, we find that Parker was not prejudiced by counsel's failure to call Cohen as a witness. The jury heard uncontroverted testimony that Parker was sitting outside Tate's apartment less than two hours before the murder and that a person, whom Tate was calling "Ronnie" and whose voice Graham testified sounded like Parker's, was in Tate's apartment punching her and shouting "Where is my gun?" less than an hour before Tate was shot. In light of this testimony, we conclude that there is no reasonable likelihood that the outcome of the trial would have been different had the jury heard testimony that a man who did not fit Parker's description was seen leaving the building around the time of the -6- murder. See Strickland, 466 U.S. at 694. B. Appellate Counsel Parker argues that his appellate counsel was ineffective for failing to raise two issues on appeal: 1) the trial court's admission of evidence of threats allegedly received by prosecution witnesses; and 2) the sufficiency of the evidence supporting the murder conviction. We find that counsel's failure to raise these issues on appeal did not rise to the level of constitutionally deficient performance. Reasonable appellate strategy requires an attorney to limit the appeal to those issues which he determines to have the highest likelihood of success. To perform competently under the Sixth Amendment, counsel is neither required nor even advised to raise every conceivable issue on appeal. See Ruff v. Armontrout, 77 F.3d 265, 268 (8th Cir. 1996). Evidence that witness Strong had received threats that led to his reluctance to testify against Parker arose because of a strategy followed by Parker's trial counsel. Strong's testimony before the grand jury was highly favorable to the state. At a pre-trial hearing, however, he became a much less cooperative witness. In fact, he initially attempted to exercise his perceived Fifth Amendment right against self-incrimination. When the prosecuting attorney met with him and ostensibly explained that he was in no danger of incriminating himself and therefore had no Fifth Amendment right not to testify, Strong reluctantly testified against Parker, both at the hearing and at trial. On cross examination at trial, defense counsel asked Strong if he remembered taking the Fifth Amendment at the pre-trial hearing. The state objected on relevancy grounds, but the court allowed the testimony, giving the state permission to question Strong on this point during re-direct examination. On re-direct, the prosecuting attorney -7- elicited an explanation from Strong that his attempt to invoke the Fifth Amendment was prompted by his fear that his family would be harmed if he testified. Having opened the door to this testimony, Parker may not now argue that the court erred in allowing the state to obtain an explanation for Strong's reluctance to testify. Accordingly, appellate counsel's failure to raise this issue on appeal was not only reasonable, but prudent. Parker next attacks his appellate counsel's choice to appeal the sufficiency of the evidence supporting the sodomy conviction but not of that supporting the murder conviction. In light of the ample evidence supporting the murder conviction, we find this decision to be well within the bounds of competent appellate assistance. C. State Post-Conviction Counsel The basis of Parker's final ineffective assistance claim is that potential jurors at his trial were challenged solely on the account of their race in violation of Batson v. Kentucky, 476 U.S. 79 (1986). This claim comes to us in a rather convoluted posture. Parker claims that his trial counsel was ineffective for failing to raise a Batson challenge during the voir dire. Because this claim was considered by the Rule 29.15 court, Parker is confined to an argument that his state post-conviction appellate counsel was ineffective for failing to appeal the Rule 29.15 court's denial of this claim. Because a defendant has no constitutional right to effective assistance of counsel on the appeal of a Rule 29.15 motion, ineffective assistance claims such as this one are not cognizable. Lowe-Bey v. Groose, 28 F.3d 816, 820 (8th Cir.), cert. denied, 115 S. Ct. 674 (1994). -8- IV. Parker next argues that he was denied due process because the evidence was insufficient to support his sodomy conviction. A sodomy conviction under Missouri law requires proof that defendant "has deviate sexual intercourse with another person to whom he is not married, without that person's consent by the use of forcible compulsion." Mo. Rev. Stat. § 566.060. We conclude that Parker's challenge to the sufficiency of the evidence is without merit. Tate's mother testified that her daughter and Parker were not married. The medical examiner found numerous sperm in Tate's rectal cavity, which implied that Tate had engaged in anal sex. Strong testified that he heard a male named "Ronnie" state to a female, who could hardly have been anyone other than Tate, "If [you are] going to act like a dog, I'll treat you like a dog," and "Get f--- naked." Moreover, the jury heard evidence of possible coercion with a gun and evidence of scratches and punctures on Tate's back and buttocks. Viewed in the light most favorable to the verdict, this circumstantial evidence was sufficient to allow a reasonable jury to infer that Tate was forced to submit to anal intercourse and that Parker was the perpetrator. The judgment is affirmed. A true copy. Attest: CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT. -9-	{ "pile_set_name": "FreeLaw" }
IN THE SUPERIOR COURT OF THE STATE OF DELAWARE STEADFAST INSURANCE ) COMPANY, ) ) Plaintiff, ) Vv. ) CA. No.: N18C-03-291 PRW CCLD ) DBI SERVICES, LLC, ) ) Defendant. ) Submitted: July 15, 2019 Decided: July 25, 2019 ORDER REFUSING TO CERTIFY AN INTERLOCUTORY APPEAL This 25" day of July, 2019, upon consideration of Plaintiff Steadfast Insurance Company’s application under Rule 42 of the Supreme Court for an order certifying an appeal from the interlocutory order of this Court, dated June 24, 2019,! it appears to the Court that: (1) This is an insurance coverage action in which Plaintiff Steadfast Insurance Company denied it had any duty to defend and/or indemnify Defendant ! See Steadfast Insurance Co. v. DBi Services, LLC, 2019 WL 2613195 (Del. Super. Ct. June 24, 2019). DBi Services, L.L.C.,* under a Contractor’s Protective Professional Indemnity and Liability Insurance Policy (the “Policy”). (2) Steadfast has now applied, under Delaware Supreme Court Rule 42, for this Court to certify its grant of DBi’s partial motion for summary judgment on the issue of whether Steadfast had a duty to defend DBi under the Policy to the Supreme Court.’ Steadfast maintains that this Court inappropriately rendered a case dispositive decision on the duty to defend, overlooking well-established New York law and ruling on contractual provisions as a matter of first impression under New York law. Steadfast claims that its application meets the criteria listed in Rules 42(b)(i)* and 42(b)(iii)(G) and (H).5 (3) Under Rule 42, the Court must: (a) determine that the order to be certified for appeal “decides a substantial issue of material importance that merits 7 DBi is a corporation that provides highway operations and maintenance services to public entities. See Flexstake, Inc. v. DBI Servs., LLC, 2018 WL 6270972, at 1 (S.D. Fla. Nov. 30, 2018). : See Pl.’s Appl. for Certification of Interlocutory Appeal at 1 (July 3, 2019) (D.I. 70) [hereinafter “P].’s Appl.”]. 4 Id. at 3. See Del. Sup. Ct. R. 42(b)(i) (“No interlocutory appeal will be certified by the trial court or accepted by [the Supreme Court] unless the order of the trial court decides a substantial issue of material importance that merits appellate review before a final judgment.”). 2 Pl.’s Appl. at 4-5. See Del. Sup. Ct. R. 42(b)(iii)(G) (“Review of the interlocutory order may terminate the litigation. . . .”); id at (H) (“Review of the interlocutory order may serve considerations of justice.”); id. (“[T]he trial court should identify whether and why the likely benefits of interlocutory review outweigh the probable costs, such that interlocutory review is in the interests of justice.”). appellate review before a final judgment;”® (b) decide whether to certify via consideration of the eight factors listed in Rule 42(b)(iii);’ (c) consider the Court’s own assessment of the most efficient and just schedule to resolve the case; and then (d) identify whether and why the likely benefits of interlocutory review outweigh 6 Del. Supr. Ct. R. 42(b)(i). 7 Del. Supr. Ct. R. 42(b)(iii) (A) The interlocutory order involves a question of law resolved for the first time in this State; (B) The decisions of the trial courts are conflicting upon the question of law; (C) The question of law relates to the constitutionality, construction, or application of a statute of this State, which has not been, but should be, settled by this Court in advance of an appeal from a final order; (D) The interlocutory order has sustained the controverted jurisdiction of the trial court; (E) The interlocutory order has reversed or set aside a prior decision of the trial court, a jury, or an administrative agency from which an appeal was taken to the trial court which had decided a significant issue and a review of the interlocutory order may terminate the litigation, substantially reduce further litigation, or otherwise serve considerations of justice; (F) The interlocutory order has vacated or opened a judgment of the trial court; (G) Review of the interlocutory order may terminate the litigation; or (H) Review of the interlocutory order may serve considerations of justice. the probable costs, such that interlocutory review is in the interests of justice. “If the balance is uncertain, the trial court should refuse to certify the interlocutory appeal.” (4) Steadfast requests the Court’s certification of its June 24, 2019 grant of DBi’s partial motion for summary judgment.'? The Court considers Steadfast’s application under the rigorous standards of Rule 42.!' (5) The Court must first determine if the order that Steadfast seeks certification of “decides a substantial issue of material importance that merits appellate review before a final judgment.”'? The “substantial issue of material importance” prong of Rule 42 requires that the matter decided goes to the merits of the case.'> The Delaware Supreme Court has before refused to entertain 8 Id. Those “probable costs” are informed, in part, by Rule 42(b)(ii), i.e., interlocutory appeals “disrupt the normal procession of litigation, cause delay, and can threaten to exhaust scarce party and judicial resources.” Del. Supr. Ct. R. 42(b)(ii) (2016). ? Id. 7 See Pl.’s Appl. at 1. u TowerHill Wealth Mgmt., LLC v. Bander Family P’ship, L.P., 2008 WL 4615865, at 2 (Del. Ch. Oct. 9, 2008) (citing Donald J. Wolfe, Jr. & Michael A. Pittenger, CORPORATE AND COMMERCIAL PRACTICE IN THE DELAWARE COURT OF CHANCERY § 14.04 (2008) (noting that Rule 42 contains “rigorous criteria” and the Supreme Court requires “strict compliance with Rule 42”)). 12 Del. Supr. Ct. R. 42(b)(i). 3 Id. See Sprint Nextel Corp. v. iPCS , Inc., 2008 WL 2861717, at 1 (Del. Ch. July 22, 2008) (“The ‘substantial issue’ requirement is met when an interlocutory order decides a main question of law which relates to the merits of the case, and not to collateral matters.”’). -4- interlocutory appeals of decisions in contract cases.'* This is because “[a]s a general matter, issues of contract interpretation are not worthy of interlocutory appeal.”'° While the Court agrees that there are no New York reported decisions interpreting the specific policy language at issue, this dearth does not create a “substantial issue of material importance” out of a mere contract dispute.'° That might end it there. But engaging the remainder of the Rule 42 analysis further convinces the Court that certification for interlocutory review is not in the interests of justice in this case and should be refused. (6) The Court must consider all eight factors in Rule 42(b)(iii), but “[a]fter considering these factors and its own assessment of the most efficient and just schedule to resolve the case, th[is] [ ] [C]ourt should identify whether and why the likely benefits . . . outweigh the probable costs, such that interlocutory review is in M4 See, e.g., Lexington Ins. Co. v. Almah LLC, 167 A.3d 499 (Del. 2016) (refusing to grant interlocutory appeal of a Delaware Superior Court decision addressing cross-motions for summary judgment in an insurance coverage dispute turning on issues of contract interpretation); Robino- Bay Court Plaza, LLC v. W. Willow-Bay Court, LLC, 941 A.2d 1019 (Del. 2007) (refusing to grant interlocutory appeal when the underlying issue was one of Delaware contract interpretation). 15 REJVS AWH Orlando, LLC v. AWH Orlando Member, LLC, 2018 WL 1109650, at 3 (Del. Ch. Feb. 28, 2018), appeal refused, 182 A.3d 115 (Del. 2018). 7 McKnight v. USAA Cas. Ins. Co., 872 A.2d 959 (Del. 2005) (affirming the Delaware Superior Court’s refusal to certify an interlocutory appeal because “while the particular exclusion at issue ha[d] not previously been interpreted in Delaware, the trial court applied well-established principles of contract interpretation and thus the case did not involve a matter of first impression.”). the interests of justice.”'’ Here, Steadfast argues that two of the eight factors are met. But the Court disagrees. (7) \|The Court does not believe that a successful interlocutory appeal on the duty to defend issue would necessarily terminate the litigation in its entirety. In making its June 2019 decision on the then-pending cross-motions for summary Judgment, the Court noted that the duty to indemnify is distinct from the duty to defend.' With separate measurement dates and different criteria,'? it is inappropriate for Steadfast to conflate the two duties for purposes of its application. The Court did not take up Steadfast’s invitation to do so in deciding the case. And the Court cannot now endorse Steadfast’s view that any duty to indemnify is wholly dependent on a positive or negative finding of a duty to defend. One can, under the right circumstances, exist without the other. (8) \| Nor does the Court believe that certification would promote the most efficient and just schedule to resolve this case. In fact, Steadfast’s contention that 17 Del. Supr. Ct. R. 42(b)(iii) (2016). 18 See Steadfast Ins. Co. v. DBi Servs., LLC, 2019 WL 2613195, at 11 (Del. Super. Ct. June 24, 2019). 7 See, e.g., Servidone Const. Corp. v. Security Ins. Co., 477 N.E.2d 441, 444 (N.Y. 1985) (“The duty to defend is measured against the allegations of pleadings but the duty to pay is determined by the actual basis for the insured’s liability to a third person.”); Cohen v. Employers Reinsurance Corp., 503 N.Y.S.2d 33, 34 (N.Y. App. Div. 1986) (“With respect to the obligation to defend, the question is whether the plaintiff can state facts which bring the insured within the coverage of the policy. The obligation to pay depends upon the outcome of the action.”). -6- interlocutory review will conserve judicial resources again rests on the misguided notion that the duty to defend and the duty to indemnify are functionally the same. Even if interlocutory appeal would terminate this litigation a bit faster than through the appeal process, the Court does not find that these two (of eight) factors warrant granting Steadfast’s certification request when considering the totality of the circumstances.”? The posited benefits of the interlocutory review Steadfast now seeks simply do not outweigh the probable costs, such that the proposed interlocutory review is in the interests of justice. The Court finds, therefore, that Steadfast has failed to meet the strict standards for certification under Rule 42.7! (9) “Interlocutory appeals should be exceptional, not routine, because they disrupt the normal procession of litigation, cause delay, and can threaten to exhaust scarce party and judicial resources.”” This case is not exceptional. And so the Court must refuse to certify this interlocutory appeal. a See Del. Supr. Ct. R. 42(b) (“If the balance is uncertain, the trial court should refuse to certify the interlocutory appeal.”). 7 See, e.g., Liberty Mut. Ins. Co. v. Silva-Garcia, 2012 WL 4165653, at *3 (Del. Super. Ct. Sept. 5, 2012) (“[B]efore the Supreme Court will accept an interlocutory appeal, the party seeking the appeal must adhere to the strict requirements set forth in the rule.”). 7 Del. Supr. Ct. R. 42(b)(ii). NOW, THEREFORE, IT IS HEREBY ORDERED that Plaintiff Steadfast Insurance Company’s Application for Certification of Interlocutory Appeal is hereby DENIED. a Je) Paul R. Wallace, Judge Original to Prothonotary cc: All counsel via File & Serve	{ "pile_set_name": "FreeLaw" }
People v Wisdom (2018 NY Slip Op 05950) People v Wisdom 2018 NY Slip Op 05950 Decided on August 29, 2018 Appellate Division, Second 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 on August 29, 2018 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department MARK C. DILLON, J.P. HECTOR D. LASALLE BETSY BARROS LINDA CHRISTOPHER, JJ. 2014-09908 (Ind. No. 6615/12) [1]The People of the State of New York, respondent, vAtara Wisdom, appellant. Paul Skip Laisure, New York, NY (Tammy E. Linn of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Thomas M. Ross of counsel), for respondent. DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Kings County (Albert Tomei, J.), rendered October 8, 2014, convicting her of murder in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress a statement made by her to law enforcement officials. ORDERED that the judgment is affirmed. Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620), we find that it was legally sufficient to disprove the defendant's justification defense beyond a reasonable doubt and to establish the defendant's guilt of murder in the second degree beyond a reasonable doubt (see Penal Law §§ 35.15[2][b]; 125.25[1]). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence, we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410; People v Bleakley, 69 NY2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633). We agree with the Supreme Court's determination to deny suppression of an oral statement the defendant made to police on the morning of July 26, 2012. After waiving her Miranda rights (see Miranda v Arizona, 384 US 436), the defendant freely and voluntarily made a videotaped statement at the police station on July 25, 2012, beginning at approximately 9:00 p.m. The interview ended after approximately 30 minutes, not because the defendant unequivocally invoked her right to remain silent, but rather, to allow her to compose herself. The idea for ending the interview and stopping the videotape was that of the Assistant District Attorney (hereinafter ADA) conducting the interview. The ADA said, "Let's stop the tape for now," and "there will be no further questions until we resume the tape." Questioning resumed the following morning at approximately 10:00 a.m., at which time the defendant was reminded of the rights she had been read the previous day, and the defendant agreed to continue answering more questions. During that session, the defendant stated that after she stabbed the victim, she took the victim's cell phone, keys, and wallet. The wallet contained the victim's welfare benefit card, but the defendant specifically denied ever using the card. The defendant's morning statement was properly admitted at trial. Had the defendant [2]unequivocally and unqualifiedly invoked her right to remain silent the previous evening, the request would have had to be scrupulously honored (see id. at 479; People v Ferro, 63 NY2d 316, 322), and further interrogation would have had to cease (see People v Gray, 31 NY2d 68, 70). Under such circumstances, further inquiry can be made, but only if a significant period of time has passed and the police reiterate the requisite warnings (see Michigan v Mosley, 423 US 96, 103-104; People v Brown, 266 AD2d 838). However, since the defendant in this case had not unequivocally and unqualifiedly invoked her right to remain silent (see People v Horton, 46 AD3d 1225, 1226; People v Caruso, 34 AD3d 860, 862; cf. People v Legere, 81 AD3d 746, 749) and remained in continuous custody in the interim, police and prosecutors were free to resume their questioning of the defendant within a reasonable time, and to do so without repeating the Miranda warnings (see People v Legere, 81 AD3d at 748; People v Santalis, 302 AD2d 614; People v Holland, 268 AD2d 536, 537; People v Baker, 208 AD2d 758; People v Glinsman, 107 AD2d 710). The further questioning at issue here was within a reasonable time under this Court's precedent (see People v Holland, 268 AD2d at 536; People v Thomas, 233 AD2d 347; People v Baker, 208 AD2d at 758). The suppression hearing testimony of a detective who, in response to questions by defense counsel that the defendant did not want to talk anymore during the prior evening's videotaped interview, answered, "Right," and in another instance said, "Correct," does not require a different result. This testimony does not change the fact that there was no unequivocal invocation of the defendant's right to remain silent at that time. The suggestion that the detective's answers refer instead to an unrecorded communication by the defendant, despite the colloquy on the videotape that there would be no further questioning until the tape is resumed, is mere speculation and conjecture that reads into the record information that simply is not present, and provides no basis for concluding that the defendant's 10:00 a.m. statement should have been suppressed. We agree with the Supreme Court's determination to admit evidence of a prior uncharged crime involving the defendant's theft and use of certain property that belonged to the victim, as it completed the narrative and provided circumstantial evidence of the date of the victim's death (see People v Morris, 21 NY3d 588, 594; People v Conroy, 102 AD3d 979, 980). The probative value of the evidence outweighed its prejudicial effect (see People v Till, 87 NY2d 835, 836), and the court's limiting instruction was sufficient to avert any potential prejudice (see People v Jackson, 178 AD2d 438, 439; People v Economy, 156 AD2d 459, 460). The defendant's contention that she was deprived of a fair trial by the admission into evidence of a recording of the victim's 911 call is unpreserved for appellate review (see CPL 470.05[2]) and, in any event, without merit. We agree with the Supreme Court's determination to admit the recording under the present sense impression exception to the hearsay rule (see People v Catave, 21 NY3d 374, 382; People v Vasquez, 88 NY2d 561, 575; People v Brown, 80 NY2d 729, 732). The defendant's contention that certain comments made by the prosecutor during summation deprived her of a fair trial is partially unpreserved for appellate review (see CPL 470.05[2]). In any event, to the extent that the prosecutor exceeded the bounds of permissible rhetorical comment or made other improper remarks during summation, the remarks were not so egregious as to have deprived the defendant of a fair trial, and any other error in this regard was harmless (see People v Crimmins, 36 NY2d 230, 238, 241-242; People v Adamo, 309 AD2d 808, 809). We agree with the defendant that it was improper for the Supreme Court to condition her ability to interview a prosecution witness upon the interview occurring either in the presence of the prosecutor or a detective (see e.g. People v Eanes, 43 AD2d 744). However, the error was harmless (see People v Crimmins, 36 NY2d 230). The defendant's remaining contention is without merit. DILLON, J.P., LASALLE, BARROS and CHRISTOPHER, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court	{ "pile_set_name": "FreeLaw" }
FIRST DIVISION DOYLE, C. J., ANDREWS, P. J., and RAY, J. NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules May 6, 2016 In the Court of Appeals of Georgia A16A0177. GORDON v. THE STATE. DO-006 C DOYLE, Chief Judge. Following a bench trial, Sherome Gordon was convicted of possession of cocaine,1 aggravated assault,2 felony obstruction of a police officer,3 and misdemeanor obstruction of a police officer.4 Gordon appeals from the denial of his motion for new trial, contending that the trial court erred by (1) sentencing him for aggravated assault in violation of the rule of lenity, and (2) failing to merge his 1 OCGA § 16-13-30 (a). 2 OCGA § 16-5-21 (b) (2). 3 OCGA § 16-10-24 (b). 4 OCGA § 16-10-24 (a). convictions for aggravated assault and felony obstruction. For the reasons that follow, we affirm. Construed in favor of the verdict,5 the record shows that an officer stopped a vehicle because its brake lights were not functioning. As he spoke to the driver, Gordon, the officer smelled alcohol on Gordon’s breath and observed a beer bottle in plain view in the back seat. The officer inquired about the bottle, and Gordon responded “oh, Lord,” and handed the officer the bottle, which was partially full of beer. The officer elected to arrest Gordon for an open container violation and asked Gordon to exit the vehicle, which he did. As the officer attempted to handcuff Gordon, Gordon forcefully attempted to flee, and a struggle ensued. As the officer held Gordon’s neck, Gordon attempted to burn the officer’s eye with a lit cigarette. The officer blocked the attempt, and the two fell to the ground, grappling in a stalemate until a group of young men from a nearby fraternity house assisted the officer in subduing Gordon. Ultimately, after deploying a taser, the officer was able to successfully handcuff Gordon. The officer then searched Gordon and found cocaine. 5 See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998). 2 Gordon was charged with possession of cocaine, aggravated assault, felony obstruction of an officer, misdemeanor obstruction of an officer, obstructing the highway, possession of an open container of alcoholic beverage while operating a vehicle, and driving with no working brake lights. Gordon pleaded guilty to the cocaine charge, and the State nolle prossed the charges for obstructing the highway, having an open container, and having no working brake lights. Following a bench trial, Gordon was found guilty of aggravated assault and both obstruction charges. The trial court sentenced Gordon to serve ten years on the cocaine charge consecutive to ten years on the aggravated assault charge, with five-year and twelve-month concurrent sentences on the felony and misdemeanor obstruction charges. Gordon unsuccessfully challenged his sentences in a motion for new trial, giving rise to this appeal. 1. Gordon contends that the rule of lenity requires that he can only be sentenced for felony obstruction of an officer (and not aggravated assault) because the evidence shows that both offenses served as alternative charges for the same conduct. We disagree. 3 As this Court recently recounted in Gordon v. State,6 a whole-court case decided after the briefing in this case, the rule of lenity finds its roots in the vagueness doctrine, which requires fair warning as to what conduct is proscribed. The rule of lenity, more specifically, ensures that if and when an ambiguity exists in one or more statutes, such that the law exacts varying degrees of punishment for the same offense, the ambiguity will be resolved in favor of a defendant, who will then receive the lesser punishment. But if after applying the traditional canons of statutory construction the relevant text remains unambiguous, the rule of lenity will not apply. The fundamental inquiry when making this assessment, then, is whether the identical conduct would support a conviction under either of two crimes with differing penalties, i.e., whether the statutes define the same offense such that an ambiguity is created by different punishments being set forth for the same crime. In explaining the appropriate analysis to apply in making this assessment, however, the Supreme Court of Georgia has cautioned that simply because a single act may, as a factual matter, violate more than one penal statute does not implicate the rule of lenity. By way of example, . . . [we note that] depending upon attendant circumstances, it is possible for the act of striking another person with an object to meet the definitions of each of the crimes of: simple battery, OCGA § 6 334 Ga. App. 633 (780 SE2d 376) (2015) (whole court). The defendant in that case was Kyle Lee Gordon, not Sherome Gordon. 4 16-5-23, a misdemeanor; aggravated battery, OCGA § 16-5-24, a felony; simple assault, OCGA § 16-5-20, a misdemeanor; aggravated assault, OCGA § 16-5-21, a felony; and malice murder, OCGA § 16-5-1, a felony. In the foregoing circumstance, a defendant could be prosecuted for multiple crimes. But when a defendant is prosecuted for and [found guilty] of multiple crimes based upon a single act, the injustice that must be avoided is sentencing the defendant for more than one crime following [a guilty verdict for] multiple crimes based upon the same act.7 Therefore, to decide whether the rule of lenity applies, we look to whether there is any ambiguity in the two statutes such that “both crimes could be proved with the same evidence.”8 Here, Gordon was accused of aggravated assault and felony obstruction of an officer. The aggravated assault statute provides, in relevant part: “A person commits 7 (Footnotes and punctuation omitted; emphasis supplied.) Id. at 634-635, citing United States v. Lanier, 520 U. S. 259, 266 (II) (117 SCt 1219, 137 LE2d 432) (1997) (“[A]s a sort of ‘junior version of the vagueness doctrine,’ . . . the canon of strict construction of criminal statutes, or rule of lenity, ensures fair warning by so resolving ambiguity in a criminal statute as to apply it only to conduct clearly covered.”) (citation omitted)); McNair v. State, 293 Ga. 282, 283 (745 SE2d 646) (2013); Banta v. State, 281 Ga. 615, 617-618 (2) (642 SE2d 51) (2007). 8 (Punctuation omitted.) Gordon, 334 Ga. App. at 637, quoting Quaweay v. State, 274 Ga. App. 657, 658 (618 SE2d 707) (2005). 5 the offense of aggravated assault when he or she assaults9 . . . with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.”10 Likewise, a person commits felony obstruction when he “knowingly and willfully resists, obstructs, or opposes any law enforcement officer . . . in the lawful discharge of his or her official duties by offering or doing violence to the person of such officer or legally authorized person . . . .”11 Based on these two statutory provisions, Gordon’s indictment accused him of committing aggravated assault and felony obstruction in the following ways: Count 2 And the grand jurors . . . further charge and accuse . . . Gordon with having committed the offense of AGGRAVATED ASSAULT, for that . . . Gordon did . . . make an assault upon the person of Deputy Mark Guarino, with an object, device or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury to wit: a lit cigarette by attempting to insert the lit cigarette 9 “A person commits the offense of simple assault when he or she either: (1) Attempts to commit a violent injury to the person of another; or (2) Commits an act which places another in reasonable apprehension of immediately receiving a violent injury.” OCGA § 16-5-20. 10 OCGA § 16-5-21 (b). 11 OCGA § 16-10-24 (b). 6 into the deputy’s eye during arrest, contrary to the laws of this state . . .. Count 3 And the grand jurors . . . further charge and accuse . . . Gordon with having committed the offense of OBSTRUCTION OF AN OFFICER, for that . . . Gordon did . . . knowingly and willfully resist Deputy Mark Guarino, a law enforcement officer in the lawful discharge of his official duties by doing violence to such officer by . . . attempting to insert a lit cigarette into the deputy’s eye during lawful arrest, contrary to the laws of this state . . . .12 A close reading of the indictment and the applicable Code sections reveals that the two counts do not address the same criminal conduct, even though the indictment predicated both offenses on the same act of attempting to insert a lit cigarette into the eye of the deputy. Under the indictment and the statutory definitions, Gordon could commit felony obstruction only if he offered violence against an officer while the officer was in the lawful discharge of his official duties.13 Moreover, felony 12 (Emphasis supplied.) 13 See, e.g., Land v. State, 259 Ga. App. 860, 863 (2) (2003) (“An essential element of the offense of obstruction of an officer is that the State prove beyond a reasonable doubt that the obstruction occurred while the officer was in the lawful discharge of his official duties.”) (punctuation omitted). 7 obstruction can occur regardless of whether it involved the use of an offensive weapon likely to result in serious bodily injury, unlike aggravated assault.14 Thus, the two offenses, as described in the indictment and the Code, are not proved by the same evidence, and the rule of lenity does not apply.15 If we were to hold otherwise, any defendant who wrestles a gun away from an officer and murders him could only be punished for felony obstruction, which carries a maximum sentence of five years, as opposed to a sentence of death or life imprisonment for murder.16 We decline to hold that this is what the legislature intended when it defined the offenses. Simply because “a single act may, as a factual matter, violate more than one penal statute does not implicate the rule of lenity.”17 14 See Banta, 281 Ga. at 618 (2) (misdemeanor obstruction under OCGA § 16-10-24 (a) is distinct from making a false statement to a government agency under OCGA § 16-10-20 even though the act of lying to an officer could satisfy both statutory definitions). See also Chynoweth v. State, 331 Ga. App. 123, 126 (2) (768 SE2d 536) (2015) (finding that the rule of lenity was not implicated by convictions for riot in a penal institution and felony obstruction). 15 See Banta, 281 Ga. at 618 (2). 16 See OCGA §§ 16-5-1 (e) (1); 16-10-24 (b). 17 Banta, 281 Ga. at 618 (2). 8 What is required is a statutory ambiguity such that identical evidence, not merely a single act, results in different punishments.18 We do not have that scenario here. 2. Gordon also contends that the trial court erred by sentencing him for both aggravated assault and felony obstruction because they should have merged as a matter of fact. We disagree. When a defendant is convicted of multiple crimes based upon the same act, the principle of factual merger operates to avoid the injustice [of multiple sentences for the same offense]. In Drinkard v. [Walker],19 [the] Supreme Court of Georgia adopted the “required evidence” test set forth by the Supreme Court of the United States to resolve these situations. Thus, to determine whether convictions for multiple crimes merge for purposes of sentencing, the applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each [statutory] provision requires proof of a fact which the other does not.20 18 See, e.g., Dawkins v. State, 278 Ga. App. 343, 345 (629 SE2d 45) (2006) (recognizing that it is not possible to give a false name to a police officer in violation of OCGA § 16-10-25 (a misdemeanor) without also making a false statement in violation of OCGA § 16-10-20 (a felony)). 19 281 Ga. 211 (636 SE2d 530) (2006). 20 (Footnotes and punctuation omitted.) Gordon, 334 Ga. App. at 636, quoting Drinkard, 281 Ga. at 215, and citing Blockburger v. United States, 284 U. S. 299 (52 SCt 180, 76 LE 306) (1932). See also Cordero v. State, 296 Ga. 703, 710 (3) (770 9 “The test focuses on the evidence required to establish the statutory elements of each criminal offense, not the actual evidence presented at trial.”21 Here, a review of the statutory elements of felony obstruction and aggravated assault demonstrates that they are two separate offenses. As stated in Division 1, to commit felony obstruction, one must obstruct or resist by offering or doing violence to a law enforcement officer who is engaged in the lawful discharge of his official duties.22 Having such a law enforcement victim is not an element of aggravated assault, which requires as an additional element the use of “any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.”23 Although the felony obstruction statute requires offering or using “violence,” regardless of whether a weapon is used, it does not, by SE2d 577) (2015) (“In Drinkard v. Walker, we adopted the “required evidence” test for determining when one crime is “included in” another under OCGA § 16-1-6 (1) and therefore merges as a matter of fact,” pursuant to OCGA § 16-1-7 (a) (1)) (citation and punctuation omitted). 21 Nolley v. State, __ Ga. App. __ (2) (Case No. A15A1686; decided Feb. 2, 2016). 22 See OCGA § 16-10-24 (b). 23 OCGA § 16-5-21 (b). We note that aggravated assault may occur in other ways not at issue here: intent to murder, to rape, or to rob; use of an object to strangulate; or discharging a firearm from within a vehicle. See id. 10 its plain terms, require that this violence be the type that likely will or actually does result in serious bodily injury. We recognize that in certain cases the use of fists, for example, can suffice as a weapon for purposes of aggravated assault. But felony obstruction can encompass other conduct, such as verbal threats to kill24 or slapping, that can occur without the use of an object as a weapon that is likely to or actually does result in serious bodily injury. It is of no moment that the violence offered in this case – attempting to burn the officer’s eye with a cigarette – also satisfies the elements of aggravated assault. Under Drinkard, the relevant inquiry focuses on the elements of the offenses, and even though both offenses result from the same act, each offense required proof of an additional element that the other did not.25 Accordingly, the trial court did not err by failing to merge the convictions for aggravated assault and felony obstruction. We note that Gordon relies on Taylor v. State,26 which addressed a scenario involving a defendant charged with aggravated assault upon a peace officer and 24 See Steillman v. State, 295 Ga. App. 778, 781 (2) (673 SE2d 286) (2009). 25 See Drinkard, 281 Ga. at 217 (explaining how different crimes with overlapping elements do not merge even when crimes occurred by a single act by the defendant), citing Sanford v. State, 169 Ga. App. 769 (315 SE2d 281) (1984). 26 327 Ga. App. 882 (761 SE2d 426) (2014). 11 felony obstruction based on “fighting” the officer.27 Relying on Dobbs v. State,28 the Court concluded that the two offenses should have merged because they encompassed the same crimes.29 Nevertheless, in both Dobbs and Taylor, the offense of aggravated assault upon a peace officer contained the additional element that the assault was “upon a peace officer while the peace officer is engaged in, or on account of the performance of, his or her official duties,”30 which is not the case here. Therefore, because the aggravated assault offense at issue in this case does not contain that element, the obstruction charge did contain an element not in the aggravated assault charge, and the two do not merge under the Drinkard analysis. Judgment affirmed. Andrews, P. J. and Ray, J., concur. 27 See id. at 887-888 (5), citing Dobbs v. State, 302 Ga. App. 628, 630 (2) (691 SE2d 387) (2010). 28 302 Ga. App. at 628. 29 See id. 30 OCGA § 16-5-21 (b) (2), (d). See Taylor, 327 Ga. App. at 888 (5); Dobbs, 302 Ga. App. at 630 (2). 12	{ "pile_set_name": "FreeLaw" }
968 F.2d 1222 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES of America, Plaintiff-Appelleev.Michael D. GRANT, Defendant-Appellant No. 90-50234. United States Court of Appeals, Ninth Circuit. Submitted May 7, 1992.Decided July 15, 1992. 1 Before JAMES R. BROWNING and FARRIS, Circuit Judges, and MACBRIDE,* District Judge. 2 MEMORANDUM*** 3 Michael D. Grant, appearing pro se, appeals his conviction and sentence for credit card fraud. Grant claims a number of trial errors including ineffective assistance of counsel, a violation of Federal Rule of Criminal Procedure Rule 5(a) in that no probable cause hearing was provided and error arising out of an alleged delay between initial arrest and indictment and trial in federal court. In addition, Grant claims the court erred at sentencing by using Grant's prior convictions for sentence enhancement, by ordering restitution and by failing to attach to the Presentence Investigation Report a written record of the court's factual findings of matters controverted at sentencing as required by Federal Rule of Criminal Procedure 32(c)(3)(D). We affirm defendant's conviction. Defendant's sentence is vacated and remanded for further hearing.1 BACKGROUND 4 Both federal and state officials participated in the April 13, 1989 arrest of Michael Grant. The arrest was made pursuant to a State of California parole violator warrant. Grant was placed in state custody and incarcerated to serve the remainder of his state term. A federal arrest warrant and complaint were issued on May 17, 1989 for a violation of 18 U.S.C. § 1029(a)(2), Use of Unauthorized Access Device, i.e., credit card fraud. A federal detainer was placed on file at the Chino Institute for Men. 5 On October 12, 1989, Grant was arrested on the federal arrest warrant. He was brought before a magistrate the same day. The magistrate scheduled a probable cause hearing for October 26, 1989. A federal grand jury indicted Grant for credit card fraud on October 24, 1989. Trial was set for January 2, 1990 but was continued until January 25, 1990 due to unavailability of a government witness. Grant was tried and convicted of one count of credit card fraud. Three remaining counts were dismissed. Grant was sentenced to fifty-one months in custody. Fines were waived but the court ordered restitution of $14,761.53. DISCUSSION A. INEFFECTIVE ASSISTANCE OF COUNSEL 6 Grant claims his Sixth Amendment right to the effective assistance of counsel was violated when the district court refused to appoint new counsel despite defendant's claim that a conflict existed between defendant and his appointed counsel. In addition, Grant claims that his attorney failed to adequately investigate and prepare for trial. 7 The customary procedure for raising a claim of ineffective assistance of counsel in this circuit is by collateral attack under 28 U.S.C. § 2255. United States v. Rewald, 889 F.2d 836, 859 (9th Cir.1989), amended, 902 F.2d 18, cert. denied, 111 S.Ct. 64 (1990). This procedure enables a district court to determine if the claim has merit and, if it does, to develop a record on which the issue can be decided. Therefore, we decline to address this issue on direct appeal. If Grant wishes to pursue this claim, he should do so in a habeas corpus proceeding. 8 B. FAILURE TO PROVIDE A PROBABLE CAUSE HEARING 9 Grant claims Federal Rule of Criminal Procedure 5(a) was violated when he was denied a probable cause hearing before a federal magistrate. Rule 5(a) requires that an arrested person be taken without unnecessary delay before the nearest available federal magistrate for hearing. The purpose of a preliminary or probable cause hearing is to enable the federal magistrate to determine that "there is probable cause to believe that an offense has been committed and that the defendant committed it." Fed.R.Crim. Procedure 5.1. However, Rule 5(c) provides in pertinent part that "the preliminary examination shall not be held if the defendant is indicted ... before the date set for the preliminary examination." Here, Grant was indicted by the Grand Jury on October 24, 1989, two days before the day set by the magistrate for a preliminary hearing. Since indictment by a grand jury obviates the need for a probable cause hearing, there was no violation of Rule 5(a) for failure to provide a probable cause hearing. Since we find no violation of Rule 5, we need not reach Mr. Grant's claim that such violation was racially motivated. C. SPEEDY TRIAL VIOLATION 10 18 U.S.C. § 3161(b), a provision of the Speedy Trial Act, provides a thirty day limit on the time which may elapse between an individual's arrest on federal charges and the date an information or indictment is filed. Grant claims the Act was violated when the federal prosecutor waited 182 days from the date federal agents participated in his arrest until federal authorities brought him before a federal magistrate. 11 There was no violation of the Speedy Trial Act because there was no delay. As stated in United States v. Manuel, 706 F.2d 908, 915 (9th Cir.1983): "Regardless of the degree of federal involvement in a state ... investigation and arrest, only a federal arrest will trigger the running of the time period set forth in 18 U.S.C. § 3161(b)." See also United States v. Johnson, 953 F.2d 1167 (9th Cir.1992). In the present case, although federal agents participated in the April 13, 1989 arrest of defendant, Grant was not arrested on the federal charge. Instead, he was placed in state custody on a parole violation relating to a state conviction. Grant was not arrested on federal charges until October 12, 1989. He was indicted on October 26, 1989, well within the 30 day requirement. Thus, Grant's claim of a violation of the Speedy Trial Act must fail. Since there was no delay, the court need not address Grant's claim that the alleged delay was racially motivated.2 12 In a related claim, Grant argues that illegally obtained evidence was used in his trial. Grant claims that a delay between April 13, 1989 when he was originally arrested and taken into custody by the state and October 12, 1989 when he was arrested on a federal warrant enabled federal authorities to continue their investigation. 13 Absent a showing that the government sought somehow to gain "tactical advantage over the accused," there is no time limit within which federal authorities must complete their investigations and indict a suspect. United States v. Lovasco, 431 U.S. 783, 795 (1977). Here, defendant does not make any showing of prejudice or disadvantage to his case attributable to the 7 months between his arrest on state charges and his indictment on the federal charge. Thus, defendant's Speedy Trial claim fails. D. UNCONSTITUTIONAL SENTENCE ENHANCEMENT 14 Grant argues that unconstitutional state court convictions were used for purposes of sentence enhancement. A district court's finding as to whether a defendant had a prior conviction is reviewed for clear error. United States v. Gross, 897 F.2d 414, 416 (9th Cir.1990), overruled on other grounds by United States v. Palmer, 946 F.2d 97 (9th Cir.1991). Interpretation of the Sentencing Guidelines are reviewed de novo. United States v. Anderson, 942 F.2d 606, 609 (9th Cir.1991) (en banc). 15 Grant does not dispute that he pleaded guilty to all three charges. He does, however, claim that all three convictions are invalid for purposes of sentencing enhancement because he had not been apprised of his constitutional rights prior to pleading guilty. A conviction is constitutionally invalid if the defendant does not knowingly and voluntarily waive his right to trial by jury, to confront the witnesses against him, and to remain silent. Boykin v. Alabama, 395 U.S. 238, 242-243 (1969). 16 At the time Grant was sentenced, the Sentencing Guidelines allowed a defendant to challenge his prior convictions at sentencing. U.S.S.G. § 4A1.2, Application note 6 (effective November 1, 1989) ("Convictions which the defendant shows to have been constitutionally invalid may not be counted in the criminal history score"). Therefore, Grant properly challenged the use of his priors at sentencing. 17 In Carroll, the court set out the process courts must use in determining whether to use prior convictions for enhancement: 18 [W]hen the government seeks to raise the offense level under the Guidelines, the government must show the fact of conviction. Then, pursuant to the USSG § 4A1.2, Commentary No. 6 (effective November 1, 1989), the defendant has the burden of establishing the constitutional invalidity of the prior conviction. 19 United States v. Carroll, 932 F.2d 823, 825 (9th Cir.1991) (citing United States v. Newman, 912 F.2d 1119 (9th Cir.1990). 20 In the present case, the three convictions at issue are guilty pleas taken in L.A. County Superior Court in 1983: Accessory No. A563123, Credit Card Forgery No. A904100 and Perjury No. A564009. Although certified copies of the convictions are not included in the court record, the transcript of the sentencing hearing indicates that the government provided the sentencing judge with certified copies for two of the convictions--A904100 and A564009. A certified copy of the third conviction was not provided at sentencing. However, at the sentencing hearing, Grant acknowledged that he did, in fact, plead guilty to all three. Thus, the government can be considered to have carried it's burden. 21 In support of his claim that the prior convictions were constitutionally invalid, Grant told the court that he was not advised of his rights when he pled guilty to three offenses in state court in 1983. Grant explained that in order to make sure his priors were valid, he had written to the state court requesting copies of the pleas of all the convictions to be used at his sentencing. For some convictions, he received copies of the pleas which showed he had been properly advised of his rights. Grant made no objection to the use of these convictions. However, Grant did object to the use of the three 1983 priors. In support of his claim that he was not advised of his rights, Grant proffered two documents certified by the Los Angeles Criminal Deputy Clerk. One informed the court as follows: "This is to certify that a plea is not on record in file A563123 Defendant Michael David Grant." The other communicated the same message but for A904100 and A564009. 22 The court took Grant to be arguing that the priors did not exist and ruled that the certified copies presented by the government obviated the lack of record with respect to two of the cases. The court also opined that defendant's inquiry about case number A563123 had been directed to the wrong branch of the Los Angeles Superior Court. Had the inquiry not been misdirected, the court concluded, Grant would have obtained a certified copy. The court ruled that Grant had failed to carry his burden of proving the priors did not exist. 23 Grant was not arguing that the convictions did not exist but, instead, that the record was silent as to whether he had been advised of his rights prior to pleading. A court may not presume a waiver of constitutional rights from a silent record. Boykin, 395 U.S. at 243. Although properly raised, the question of whether the record is silent was not addressed at sentencing. The sentence is vacated and remanded for hearing and decision by the district court. E. RESTITUTION 24 Grant claims that the court abused its discretion in ordering defendant to pay restitution of $11,061.53 to Maryland Bank and $3,700 to Wells Fargo Bank. Grant argues that the court made inconsistent findings in determining that Grant could not afford to pay fines but could afford to pay restitution. 25 Inconsistency alone is not error. Although based on the same kinds of information, the decisions to impose restitution and/or a fine are based on different criteria. 26 Restitution compensates the victim of a crime. See 18 U.S.C. § 3663(a)(1). Its purpose is to make the victim whole. United States v. Rochester, 898 F.2d 971, 983 (5th Cir.1990) (discussed with favor in United States v. Smith, 944 F.2d 618, 624 n. 2 (9th Cir.1991), cert. denied, 112 S.Ct. 1515 (1992). On the other hand, the purpose of a fine is to punish, to deter, to promote respect for law and to reflect the seriousness of the offense. U.S.S.G. § 5E1.2(d)(1). The payment of restitution is given precedence over the payment of a fine. U.S.S.G. § 5E1.1(c). In fact, a fine is to be imposed only to the extent that payment would not impair a defendant's ability to make restitution. 18 U.S.C. § 3572(b). Thus, it is not clear error to order restitution while waiving a fine. 27 Not so clear is whether the court properly ordered restitution. A court's determination that a defendant has the ability to pay restitution is a finding of fact reviewed under a clearly erroneous standard. United States v. Smith, 944 F.2d 618, 623 (9th Cir.1991), cert. denied, 112 S.Ct. 1515 (1992). The court need not make findings of fact concerning defendant's financial condition, United States v. Cannizzaro, 871 F.2d 809, 810 (9th Cir.), cert. denied, 493 U.S. 895 (1989), but the record must show that the district judge had at his disposal information from which he could make a determination of the defendant's ability to pay. Smith at 623. In determining the amount of restitution, it is an abuse of discretion for the court to fail to consider a defendant's ability to pay. Id. 28 We have read the record. The only information presented to the court concerning the defendant's ability to pay was the information included in the presentence report. The report indicated that Grant had no assets, that between 1986 and 1989, Grant earned $300 per week working as a truck driver for his uncle's thrift store and that Grant intermittently worked as a digger and grader for his father's cement business. The pre-sentence report also indicated that Grant has four dependent children presently under the age of seven. 29 This information is insufficient to support a determination that the defendant will have the ability to pay $14,761.53 in restitution. We therefore vacate and remand to the district court for reconsideration. F. VIOLATION OF RULE 32 30 Grant claims error in that a written record of the court's factual findings of matters controverted at sentencing was not attached to the Presentence Investigation Report as required by Federal Rule of Criminal Procedure 32. Rule 32(c)(3)(D) provides: 31 If the comments of the defendant and the defendant's counsel or testimony or other information introduced by them allege any factual inaccuracy in the presentence investigation report or the summary of the report or part thereof, the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report thereafter made available to the Bureau of Prisons. 32 The Notes of the Advisory Committee accompanying the 1983 Amendment to the Rules explain that a written record is required because of widespread use of presentence reports by the Bureau of Prisons. In this circuit, strict compliance with the rule is required. United States v. Fernandez-Angulo, 897 F.2d 1514, 1516 (9th Cir.1990) (en banc). 33 In the present case, the clerk's record does not indicate whether a written record was prepared and attached to the presentence report. Having remanded for further hearing on sentencing, the court also orders that after resentencing, the court attach to the presentence report written findings on any controverted facts in the report. 34 AFFIRMED IN PART AND VACATED AND REMANDED IN PART. * The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a) and Ninth Circuit Rule 34-4 Honorable Thomas J. MacBride, Senior United States District Judge for the Eastern District of California, 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 1 Grant also filed a second appeal. This was appeal No. 91-55875, an appeal of the district court's denial of a petition for habeas corpus. After the government sought and was granted consolidation of the two appeals, defendant objected to the consolidation. The Ninth Circuit construed the objection as a motion to reconsider the consolidation and a motion to dismiss the habeas appeal. The court granted the motion and dismissed appeal No. 91-55875. Consequently, this appeal is not before the court and will not be addressed herein During the course of his appeal, defendant has filed a number of other motions. These pending motions are denied. 2 For purposes of the Speedy Trial Act, the clock started on October 30, 1989 when the defendant was arraigned. 18 U.S.C. § 3161(c)(1). The trial was set for December 19, 1989 but was continued until January 2, 1990 without excluded time. Due to unavailability of a government witness, a second continuance was granted until January 25, 1990 with time excluded. See § 3161(h)(3)(A)	{ "pile_set_name": "FreeLaw" }
Edward L. Fourth Court of Appeals San Antonio, Texas April 16, 2015 No. 04-14-00483-CV Rowland MARTIN, Jr., Appellant v. Edward L. BRAVENEC and 1216 West Ave., Inc., Appellee From the 285th Judicial District Court, Bexar County, Texas Trial Court No. 2014-CI-07644 Honorable Dick Alcala, Judge Presiding ORDER On January 12, 2015, appellant filed his amended brief in this appeal. The appellee’s brief was filed on March 2, 2015, and the appellant’s amended reply brief was filed on April 6, 2015. In addition to the foregoing briefs, appellant has filed numerous documents with this court alluding to amendments to the briefs, requests for this court to take judicial notice, etc. Specifically, this courts notes the following filings: (1) Appellant’s Advisory to the Court and Notice of Amendments to Appellant’s Opening Brief filed January 30, 2015; (2) Appellant’s Advisory of Fraud on the Court, Further Notice of Breifing [sic] Amendment, and Second Supplemental Appendix filed February 19, 2015; and (3) Appellant’s Motion for Judicial Notice, Special Exceptions, and Partial Non-Suit with Prejudice Pursuant to the Texas Citizen’s Participation Act filed March 13, 2015. Although several of these documents allude to amendments to briefs, appellant did not seek leave of this court to file any such amendments. See TEX. R. APP. P. 38.7 (providing briefs may be amended on whatever terms the court may prescribe). It is therefore ORDERED that this court will not consider any arguments made in the foregoing filings in resolving this appeal, but will consider only the arguments that are properly briefed in the appellant’s amended brief and amended reply brief and are in compliance with this court’s order dated December 8, 2014, setting forth the trial court’s orders that would be considered in this appeal. It is FURTHER ORDERED that this appeal is set for formal submission ON BRIEFS ONLY on May 7th, 2015, before a panel consisting of Chief Justice Sandee Bryan Marion, Justice Marialyn Barnard, and Justice Luz Elena D. Chapa. This court will not entertain any further motions or filings seeking to amend or expand the parties’ briefs. PER CURIAM ATTESTED TO:_____________________________ Keith E. Hottle Clerk of Court	{ "pile_set_name": "FreeLaw" }
United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS July 10, 2006 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III __________________________ Clerk No. 05-51671 Summary Calendar __________________________ In Re: CYNTHIA MORGAN RIPPSTEIN Debtor, ________________________ TAPSS, LLC, Appellant, versus NUNEZ COMPANY, Appellee. ___________________________________________________ Appeal from the United States District Court for the Western District of Texas (5:05-CV-61) ___________________________________________________ Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges. * PER CURIAM: The district court affirmed the judgment of the bankruptcy court, which granted summary judgment to Nunez Company (“Nunez”). TAPSS, LLC, appeals the district * 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. court’s decision and also moves to certify the legal question at issue to the Texas Supreme Court. We affirm the judgment of the district court and deny the motion to certify the question. I. FACTS AND PROCEEDINGS The facts of this case are undisputed. In October 1991, a judgment was rendered against Van Rippstein in the amount of $610,000 plus costs and interest. In May 1992, an abstract of judgment was recorded and indexed in Comal County, Texas, creating a judgment lien on Van Rippstein’s real property in Comal County, including after-acquired real property. See TEX. PROP. CODE § 52.001. Van Rippstein married Cynthia Rippstein two years later, and shortly thereafter, Cynthia Rippstein purchased property, called the Rolling Oaks property, in Comal County. Acquired during marriage, the property was community property. TEX. FAM. CODE § 3.002. In September 2001, a writ of execution issued on the 1991 judgment, preventing the judgment from becoming dormant. See TEX. CIV. PRAC. & REM. CODE § 34.001. In June 2003, Cynthia Rippstein sold the Rolling Oaks property to Nunez for $1.75 million. At the time of the closing, Van Rippstein conveyed his interest in the property to his wife by quitclaim deed, and she in turn sold the collective share to Nunez. The judgment was still unpaid at the time of sale. In July 2003, TAPSS acquired the 1991 judgment by assignment. In August 2003, more than ten years after the May 1992 abstract of judgment, a second abstract of judgment was filed in Comal County. TAPSS then attempted to execute the judgment by seizing, among other property, the Rolling Oaks property. 2 Cynthia Rippstein brought suit in state court, seeking a temporary restraining order and injunctive relief to prevent execution of the judgment. TAPSS filed a counter claim seeking declaratory judgment that the judgment lien was valid and also filed a third-party action against Nunez for foreclosure of the judgment lien. After Cynthia Rippstein filed for chapter eleven bankruptcy, the proceedings continued in bankruptcy court. Nunez moved for summary judgment. The bankruptcy court granted the motion, finding (1) that, under TEX. PROP. CODE § 52.006, the judgment lien terminated after ten years, and (2) that, therefore, the Rolling Oaks property was not encumbered at the time of the sale in June 2003. The district court affirmed the decision of the bankruptcy court. TAPSS appeals this ruling and moves to certify the question of the interpretation of § 52.006 to the Texas Supreme Court. II. STANDARD OF REVIEW “We review 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 to the district court.” U.S. Dept. of Educ. v. Gerhardt (In re Gerhardt), 348 F.3d 89, 91 (5th Cir. 2003) (citing Total Minatome Corp. v. Jack/Wade Drilling, Inc. (In re Jack/Wade Drilling, Inc.), 258 F.3d 385, 387 (5th Cir. 2001)). Findings of fact are reviewed for clear error; conclusions of law, de novo. Id. We also review de novo the bankruptcy court’s grant of summary judgment. Ingalls v. Erlewine (In re Erlewine), 349 F.3d 205, 209 (5th Cir. 2003); Zer-Ilan v. Frankford (In re CPDC, Inc.), 337 F.3d 436, 441 (5th Cir. 2003). 3 III. DISCUSSION The parties agree that the sole issue is the interpretation of TEX. PROP. CODE § 52.006. Section 52.006, which is entitled “Duration of a Lien,” provides: “A judgment lien continues for 10 years following the date of recording and indexing the abstract, except that if the judgment becomes dormant during that period the lien ceases to exist.” The parties do not dispute that the judgment had not become dormant and that a judgment lien arose based on the abstract of judgment recorded in May 1992. The parties do dispute whether the judgment lien still encumbered the Rolling Oaks property at the time it was conveyed to Nunez in June 2003, more than ten years after the May 1992 abstract of judgment was filed. Nunez contends that the statute provides that the judgment lien expired at the conclusion of ten years. TAPSS maintains that the lien was still valid, because the underlying judgment had not become dormant. Under Texas law, a court construes a statute in accordance with the legislative intent. Dept. of Protective & Regulatory Servs. v. Schutz, 101 S.W.3d 512, 520 (Tex. App. 2002) (citing, inter alia, Albertson’s Inc. v. Sinclair, 984 S.W.2d 958, 960 (Tex. 1999)). See also In re CPDC, 337 F.3d at 442 (citing Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 383 (Tex. 2000)). In doing so, a court first looks to the statute’s language and presumes that the legislature intended the plain meaning of the statute’s terms. Schutz, 101 S.W.3d at 520 (citations omitted); Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex. 1999). If a statute is unambiguous, a court may not employ other rules of construction to create ambiguity but should give the statute its common meaning. 4 Fitzgerald, 996 S.W.2d at 865–66; St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex. 1997). TAPSS argues that the statute should be interpreted broadly. TAPSS states that the word “continues” used in the statute is not the same as “expires” and that the statute should be read to provide for the continuance of the lien as long as the judgment is not dormant. However, TAPSS’s suggested interpretation of § 52.006 is contrary to the plain language of the statute. The statute explicitly provides that a judgment lien lasts ten years, unless the underlying judgment becomes dormant, in which case the lien expires before ten years have lapsed. “Continues for” is synonymous with “lasts” or “expires after” in this provision; otherwise, the “10 years” time-frame would be meaningless. The plain language of the statute does not suggest that the lien continues beyond ten years as long as the underlying judgment remains valid. Additionally, § 52.001, which provides for the establishment of the lien, references both a “first” and “subsequent” abstract of judgment; in other words, the statute anticipates that a subsequent abstract may be filed to extend the lien beyond ten years. Consequently, we agree with the district court that a judgment lien terminates at the expiration of the ten year period, even if the underlying judgment is not dormant. Though the plain meaning of the statute dictates this result, we also find support in other sources. Early Texas cases, which discuss the predecessor statute of § 52.006 have made clear that a judgment lien terminates at the conclusion of ten years. See Burton Lingo Co. v. Warren, 45 S.W.2d 750, 752 (Tex. App. 1931); Nichols v. Cansler, 140 S.W.2d 5 254, 256 (Tex. App. 1940). See also TEX. GOVT. CODE § 311.023 (providing that, when construing a statute, a court may consider a former statutory provision). Recently, in Olivares v. Nix Trust, a Texas appellate court cited to one of the early cases for the proposition that “a judgment lien terminates by the expiration of the ten-year period.” 126 S.W.3d 242, 249 (Tex. App. 2003) (citing Burton Lingo Co., 45 S.W.2d at 752). Finally, various Texas practice guides employ the same interpretation of § 52.006 as that of the bankruptcy and district courts. See, e.g., 5 ELAINE A. GRAFTON CARLSON, MCDONALD & CARLSON TEXAS CIVIL PRACTICE § 31.17 (2005); 1 W. MICHAEL BAGGETT & BRIAN THOMPSON MORRIS, TEXAS PRACTICE GUIDE: REAL ESTATE LITIGATION §1:101 (2006). Because the plain language of the statute is clear, and because we find support for the plain interpretation in other sources, we reject TAPSS’s various arguments that the statute should be interpreted in a manner inconsistent with its common meaning. Finally, we deny TAPSS’s motion to certify. Texas Rule of Appellate Procedure 58.1 provides that the Texas Supreme Court may answer question of law certified to it if the certifying court is presented with question of Texas law without controlling Texas Supreme Court precedent. TEX. R. APP. P. 58.1. The decision whether to certify a question or not lies within our sound discretion. Patterson v. Mobil Oil Corp., 335 F.3d 476, 487 (5th Cir. 2003) (citing Nationwide Mut. Ins. Co. v. Unauthorized Practice of Law Comm., 283 F.3d 650, 656 (5th Cir. 2002)). Generally, we will not certify questions where Texas law is sufficiently clear. See id. Because the plain meaning of § 52.006 is unambiguous, we see no need to certify the question at issue to the Texas Supreme Court. 6 IV. CONCLUSION The judgment of the district court is AFFIRMED. The motion to certify is DENIED. 7	{ "pile_set_name": "FreeLaw" }
842 F.Supp. 1225 (1993) Santana NAVARRO-AISPURA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. C-93-1630 DLJ. United States District Court, N.D. California. December 6, 1993. 1226 Jonathan Scop, San Francisco, CA, for petitioner. Alberto E. Gonzalez, Sp. Asst. U.S. Atty., San Francisco, CA, for respondent. ORDER JENSEN, District Judge. Petitioner seeks habeas corpus review of a Board of Immigration Appeals' ["BIA"] order of exclusion. On November 24, 1993, the Court heard respondent's motion for summary judgment. Having considered the papers submitted, the applicable law, the arguments of counsel, and the entire record herein, the Court DENIES respondent's motion for summary judgment and GRANTS petitioner's request for writ of habeas corpus for the following reasons. I. BACKGROUND Petitioner is a fifty-five year old native and citizen of Mexico who first entered the United States without inspection in 1957. Petitioner has made numerous trips to and from Mexico since his first entry, and has reentered the United States each time without inspection. Petitioner has resided in the United States continuously since 1971. Petitioner works as a baker, and has been a member of the local bakery and confectionery union since 1971. He is currently employed full-time as a baker for Safeway Stores in Sunnyvale, CA, and has also worked for Adeline Bake Shop of San Francisco and Golden Crescent Bakery in Palo Alto. On March 7, 1985, petitioner was apprehended by the INS while he was at work at the Pisano French Baking Company in Redwood City. Petitioner accepted administrative voluntary return to Mexico without a hearing, and was returned to Mexico the same day. At that time petitioner was living in San Francisco with his brother. Petitioner did not intend to abandon his residence or job in the United States, but instead planned to return in two weeks after visiting family in Mexico. Petitioner contracted tuberculosis in Mexico, and was unable to return to San Francisco as planned. Petitioner re-entered the United States without inspection nineteen months later, in October 1986. Petitioner returned to his former residence in San Francisco and resumed work with Adeline Bake Shop. On March 11, 1988 petitioner submitted an application for "registry," with INS pursuant to INA § 249 (8 U.S.C. § 1259).[1] Petitioner 1227 submitted his application without the assistance of counsel. Over two years later petitioner's application for registry was still pending. Petitioner needed to return to Mexico briefly to assist his mother in property transactions. Although he had made numerous trips to and from Mexico previously without inspection, petitioner contacted the INS before leaving so that he could make the journey under lawful procedures. On July 2, 1990 the INS district director granted petitioner advance parole[2] and issued him a Form I-512. The Form I-512 given petitioner contained the following statement in the "Remarks" section: If your application for Adjustment of Status is denied, you will be subject to exclusion proceedings, under Section 236 of the Immigration and Nationality Act. Individual is to be paroled into the United States for an indefinite period of time providing prima facie eligibility for adjustment of status continues. (emphasis added) Petitioner accepted the grant of advance parole without guidance of counsel, and without advisement by INS officials about exclusion, deportation, or the consequences of accepting advance parole. Petitioner spent two months in Mexico, and was paroled into the United States in September, 1990. On August 9, 1991, the district director denied petitioner's application for registry due to his nineteen month absence from the country in 1985-1986. Petitioner's parole was subsequently revoked and the INS commenced exclusion proceedings against him, rather than deportation proceedings, which normally follow an administrative denial of registry.[3] In the exclusion proceeding, petitioner admitted that he was an intending immigrant not in possession of a valid immigrant visa. However, petitioner challenged the nature of the proceedings. The IJ found that petitioner was properly in exclusion proceedings and charged him with excludability under INA § 212(a)(7)(A)(i)(I). The IJ also found that petitioner was in exclusion rather than in deportation proceedings only because he had previously been issued advance parole. The IJ allowed petitioner to renew his application for registry in the exclusion hearing, and granted petitioner registry. The INS appealed the IJ's authority to grant registry in an exclusion proceeding. On March 30, 1993 the BIA reversed, ordering petitioner excluded and deported. Petitioner filed this petition for writ of habeas corpus on May 3, 1993. On August 13, 1993 respondent moved for summary judgment. II. DISCUSSION A. Jurisdiction Petitioner filed this petition for habeas corpus review of his exclusion order within the time specified by statute. 8 U.S.C. § 1105a(a)(1). Petitioner has exhausted his administrative remedies, and jurisdiction is proper under 8 U.S.C. § 1105a(c). B. Standard of Review Factual findings underlying a BIA decision are reviewed under the substantial evidence standard. I.N.S. v. Elias Zacarias, ___ U.S. ___, ___, 112 S.Ct. 812, 815, 117 L.Ed.2d 38 (1992); Desir v. Ilchert, 840 F.2d 723, 726 (9th Cir.1988). Respondent argues that the substantial evidence standard should apply in this instance. The parties raise no contested issues of fact. Petitioner's claim is based on statutory 1228 interpretation and application. "Where ... the agency determinations turn on purely legal questions concerning the requirements of the applicable statutes, `[t]he questions ... are questions of law, which we review de novo.'" Desir, 840 F.2d 723, 726 (quoting Lazo-Malano v. INS, 813 F.2d 1432, 1434 (9th Cir.1987)). Petitioner therefore correctly requests de novo review. Id. Strong deference is provided, however, to an agency's interpretation of a statute. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984). C. Summary Judgment Because there is no issue of material fact presented, the Court on summary judgment may make a determination of the legal issues presented. See Edwards v. Aguillard, 482 U.S. 578, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987) (interpretation of statute made on motion for summary judgment). D. Petition For Habeas Review Petitioner characterizes his claims as arising from the lack of any explicit authority addressing the case of an alien granted advance parole while awaiting a determination of registry. Petitioner argues that his situation was not contemplated by Congress or the INS, and asks the Court to interpret the applicable regulations in a logical manner so as to avoid an unjust and harsh result. Petitioner submits that the "gap" should be filled in his favor by either allowing petitioner to have a deportation hearing, or allowing the IJ to use his discretion to remedy this unique situation. Petitioner also claims violations of equal protection. The Court finds that summary judgment must be denied, and writ of habeas corpus granted, for reasons other than those presented by petitioner. The Court therefore does not address the merits of petitioner's contentions, but rests its holding on the following analysis. 1. Significance of Exclusion and Deportation Hearings Exclusion hearings and deportation hearings are the two types of proceedings in which aliens may be denied access to the United States.[4]Landon v. Plasencia, 459 U.S. 21, 21, 103 S.Ct. 321, 323, 74 L.Ed.2d 21 (1982). Of the two proceedings, deportation hearings afford more procedural and substantive rights to an alien, and are therefore more desirable to the alien. Id. at 25-26, 103 S.Ct. at 325-26. The two types of proceedings are different in a number of ways. Exclusion hearings are generally held in the cases of aliens who are seeking entry from outside the United States, and are therefore typically held at the port of entry. Id. at 25, 103 S.Ct. at 325. Deportation hearings are used to proceed against aliens already physically in the United States, and the hearing is usually held near the alien's residence. Id. Deportation hearings provide procedural rights to the alien, such as notice of charges and direct appeal, that are not available in exclusion hearings. Id. at 25-26, 103 S.Ct. at 325-26. Significant to petitioner, an alien in a deportation hearing may renew an application for registry. 8 C.F.R. § 249(a). Although an alien in exclusion proceedings is allowed to renew an application for adjustment of status, the regulations governing exclusion proceedings do not address an alien's right to renew an application for registry. 8 C.F.R. § 236.4. Finally, an alien who loses his right to live in the United States following a deportation hearing is afforded a number of substantive rights that are not available to the alien who is denied admission in an exclusion proceeding. Id. at 26, 103 S.Ct. at 326. 2. Authority Of The District Director District directors are under the governance of their regional commissioners, and are delegated the authority to grant or deny any application or petition submitted to the INS except for those matters delegated 1229 to asylum officers. 8 C.F.R. § 103.1(n)(1). A district director may also commence deportation proceedings against an alien by filing an order to show cause. 8 C.F.R. § 242.1(a)(1). Accordingly, it is within the authority of a district director to deny an alien's application for registry and subsequently initiate deportation proceedings against that alien. The district director's authority to grant or deny applications also encompasses applications for advance parole. Advance parole is a device that does not have a direct statutory basis in the INA, but which has evolved from INA § 212(d)(5) (8 U.S.C. § 1182(d)(5)). Section 212(d)(5) allows an alien to be paroled into the United States temporarily for emergency reasons or for reasons in the public interest. Advance parole is described as a "process which permits certain aliens who are in the United States in temporary status to obtain permission for a brief absence." Charles Gordon and Stanley Mailman, Immigration Law and Procedure, § 6402, at 64-10 (rev. ed. 1991). After the purpose for which parole was authorized is accomplished, the district director may determine that neither emergency nor public interest warrants the alien's continued presence in the United States and terminate the alien's parole. When parole is terminated, the alien is "restored to the status which he or she had at the time of parole." 8 C.F.R. § 212.5(d)(2)(i). Section 212(d)(2)(i) also states that "[a]ny further inspection or hearing shall be conducted under section 235 or 236 of the Act" (exclusion proceedings). Advance parole is a device that, by its very language, anticipates application to aliens who have recently entered the United States and have applied for adjustment of status. That an alien may renew an application for adjustment of status in an exclusion proceeding supports this interpretation. 8 C.F.R. § 245.2(a). In addition, the regulations governing applications for adjustment of status state that an alien who has applied for adjustment of status, and who was granted advance parole and inspected upon return, is subject to exclusion proceedings, not deportation. 8 C.F.R. § 245.2(a)(4)(ii). In most situations, therefore, a district director's grant of advance parole to an alien does nothing to change that alien's status because the alien was subject to exclusion proceedings in the first place. Petitioner's situation, however, is significantly different. According to the BIA analysis, the district director's discretionary grant of parole changed petitioner's status as a deportable alien to that of an excludable alien, and eliminated his right to deportation proceedings. The regulations do not address a situation such as petitioner's, in which a long-time resident of the United States is given a grant of advance parole pending the outcome of his application for registry. As already indicated, respondent maintains that the district director's discretionary grant of advance parole converted petitioner's status to that of an excludable alien. However, respondent cites to no authority, and the Court finds none, which permits a district director to arbitrarily require an alien subject to deportation to go through exclusion proceedings instead. The advance parole documents issued by the district director in this case do, in fact, expressly limit any further proceedings to exclusion proceedings, but it is clear that this thoroughly inequitable situation was not agreed to by the petitioner. More importantly, the district director cannot use the administrative convenience of the advance parole procedure to exercise authority he does not have. It is apparent than that this use of advance parole is beyond the authority conferred upon the district director. Accordingly, the Court finds that petitioner's placement in exclusion proceedings was outside the authority of the district director. Any further adjudication of petitioner's status must be conducted in deportation proceedings. III. CONCLUSION For the foregoing reasons, the Court ORDERS the following: 1. Respondent's motion for summary judgment is DENIED. *1230 2. Petitioner's writ for habeas corpus review is GRANTED. IT IS SO ORDERED. NOTES [1] INA § 249 provides that "a record of lawful admission for permanent residence may, in the discretion of the Attorney General and under such regulations as he may prescribe" be made if an alien entered the United States prior to January 1, 1972, has resided continuously in the United States since such entry, and is not ineligible for citizenship. An application for registry is distinct from an application for "adjustment of status." An alien who enters the United States may apply for adjustment to permanent resident. 8 C.F.R. § 235.1(a). A grant of adjustment of status does not require that the alien have completed a period of continuous residency, as does a grant of registry. [2] Advance parole is an administrative device based in INA § 212(d)(5) (8 U.S.C. § 1182(d)(5)) which allows an alien to enter the United States temporarily for emergency reasons or for reasons in the public interest. [3] "The deportation hearing is the usual means of proceedings against an alien already physically in the United States, and the exclusion hearing is the usual means of proceedings against an alien outside the United States seeking admission." Landon v. Plasencia, 459 U.S. 21, 25, 103 S.Ct. 321, 325, 74 L.Ed.2d 21 (1982). [4] Exclusion hearings are governed by 8 C.F.R. § 236 et seq. Deportation hearings are governed by 8 C.F.R. § 242 et seq.	{ "pile_set_name": "FreeLaw" }
972 F.2d 1348 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES FIDELITY & GUARANTY, a Maryland corporation,Plaintiff-Appellant,v.John B. RIGGS; Jennifer J. Riggs; Imperial Casualty andIndemnity Company, a foreign corporation,Defendants-Appellees. No. 91-15198. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 9, 1992.Decided July 27, 1992. Before BOOCHEVER, REINHARDT and BEEZER, Circuit Judges. 1 MEMORANDUM* 2 United States Fidelity and Guaranty Company ["USF & G"] appeals the district court's grant of summary judgment in favor of Imperial Casualty and Indemnity Company ["Imperial"] in USF & G's insurance contribution action. The district court held that Imperial's policy with John Riggs ["Riggs"] excluded coverage for injury to Lois McLane, a third party. We reverse and remand for a determination of whether Riggs negligently performed architectural services causing McLane's injuries and, if so, for an allocation of liability between USF & G and Imperial. STATEMENT OF FACTS 3 Lois McLane, an invitee in the home of John Riggs, was injured when she fell through an uncovered opening in the floor of Riggs' home. Riggs is a licensed architect. He designed the home and contracted its construction. The design incorporated the opening in the floor. 4 McLane sued Riggs. Count one of her Complaint alleged that Riggs violated the duty which a homeowner owes to an invitee. Count two alleged that Riggs breached the standard of care required of architects when he designed the plans for the floor opening. 5 Riggs was insured by an Architects, Engineers and Construction Managers Professional Liability Insurance Policy, issued by Imperial Casualty & Indemnity Company. The policy provided $1,000,000 in liability coverage with a $50,000 deductible, including costs in providing a defense. Riggs was also insured by a USF & G Homeowner's Insurance Policy. That policy provided $500,000 in liability coverage. 6 Riggs submitted the entire McLane claim to USF & G which undertook the defense of Count One. Imperial undertook the defense of Count Two. Riggs was paying Imperial's defense costs because of the deductible. Consequently, in October 1988, at the insistence of Riggs, USF & G assumed the defense of Count Two in addition to Count One. Imperial withdrew from the defense, although they were given notice and an opportunity to defend the McLane action. In January 1989, USF & G requested that Riggs and Imperial participate in a settlement of the McLane claim. The parties are in dispute regarding whether Imperial stated, at that time, that its coverage was excess. Imperial did not participate in the settlement. Riggs demanded that USF & G settle McLane's claim for any amount up to the $500,000 limit of USF & G's policy. USF & G settled the McLane claim for $400,000 and then filed a contribution action against Imperial in district court. Riggs filed a counterclaim against USF & G. The district court granted summary judgment to Imperial. The court held that Imperial's policy excluded coverage for McLane's claim and that Imperial did not waive its right to invoke the exclusion. USF & G appeals the district court's grant of summary judgment. DISCUSSION 1. Jurisdiction 7 On October 23, 1990, the district court entered an order granting Imperial's motion for summary judgment and denying USF & G's motion for summary judgment. The order did not address the counterclaim Riggs had filed. On January 7, 1991, the district court issued an order dismissing Riggs' counterclaim with prejudice. USF & G filed its notice of appeal on January 16, 1991. 8 When multiple claims are involved the court may direct the entry of a final judgment of fewer than all the claims only upon an express determination that there is "no just reason for delay and upon an express direction for the entry of judgment." Fed.R.Civ.P. 54(b). In the absence of such determination and direction, any order which adjudicates fewer than all the claims shall not terminate the action. Id. The October 23, 1990 order did not address all the claims nor did it contain any language regarding a determination and direction for the entry of judgment. Therefore, the October 23, 1990 order was not final. The January 7, 1991 order finally terminated the action by rendering judgment on the last outstanding claim, Riggs' counterclaim. Thus, USF & G's notice of appeal filed on January 16, 1991, was well within 30 days after the entry of the judgment as required. Fed.R.App.P. 4(a)(1). Therefore, we have jurisdiction. 2. Exclusionary Clause 9 USF & G argues that the Imperial policy clause which excludes claims arising out of the ownership of property is not applicable to McLane's claim and therefore Imperial is liable for contribution to the claim. We review a grant of summary judgment de novo. Datagate, Inc. v. Hewlett-Packard Co., 941 F.2d 864, 867 (9th Cir.1991), cert. denied, 112 S.Ct. 1667 (1992). 10 Imperial's policy with Riggs states that Imperial will indemnify Riggs for any " '[d]amages' by reason of liability arising out of any negligent act, error, mistake or omission in rendering or failing to render professional services." The policy excludes coverage for "claims or 'costs, charges and expenses' for or arising out of: ... (f) the ownership, rental, leasing, operation, maintenance, use or repair of any real or personal property, including property damage to property owned by, occupied by, rented or leased to the [i]nsured." 11 The traditional rule of contract interpretation states that when a court finds a clause to be clear and unambiguous, the court will construe the clause "according to its ordinary meaning." State Farm Mut. Auto. Ins. Co. v. Wilson, 782 P.2d 727, 733 (Ariz.1989). On the other hand, where a court finds ambiguity in an insurance clause, the policy will be construed against the insurer. Security Ins. Co. of Hartford v. Andersen, 763 P.2d 246, 248 (Ariz.1988). This is especially true where ambiguity involves an exclusionary clause. Id. 12 In the instant case, McLane filed two claims, one based on Riggs' duty as a homeowner, the other based on his alleged negligence in performing architectural services. There is no dispute over USF & G's liability for the first claim. The issue is whether there is joint liability or in the alternative whether Imperial's policy unambiguously excludes liability for the second claim. Imperial argues that the clause is clear and that the only sensible reading of the exclusion is that it obviates any liability on its part. It contends that the clause excludes liability for actions arising out of negligent services rendered if the insured owns the property. We believe, however, that there is another equally or more plausible interpretation of the clause. 13 Imperial's policy excludes coverage of a claim "arising out of" ownership of property by the insured. If McLane's claim arises out of Riggs' ownership of the structure it would fall under the policy exclusion. On the other hand, if it could be construed as not "arising out of" Riggs' ownership, it would not fall under the policy exclusion and thus would be covered by the policy. 14 In American Modern Home Ins. Co. v. Rocha, 729 P.2d 949 (Ariz.Ct.App.1986), the court had occasion to construe an analogous exclusion in the defendant's homeowner policy for injury "arising out of the ownership, maintenance, operation, use, loading or unloading of: Any motor vehicle owned ... by ... any insured...." Rocha was injured when a tripod collapsed as it was pulled by a vehicle owned by Page, the defendant's insured. The injury occurred on Page's property and was covered by his homeowner's policy if the exclusion was inapplicable. 15 The defendant insurance company argued that any connection between the automobile and the accident invokes the exclusion. The court rejected this argument, stating: "Arizona courts have consistently looked for ... a causal connection when invoking similar exclusions in homeowner policies." Rocha, 729 P.2d at 951. Quoting from Vanguard Ins. Co. v. Cantrell, 503 P.2d 962 (Ariz.Ct.App.1972), the court stated: " '[C]ourts construing the 'arising out of' clause have held the words are '... broad, general and comprehensive terms effecting broad coverage ...' but that the words do import a concept of causation." Id. 16 Moreover, the Rocha court explained that "[i]t is hornbook law that exclusionary clauses are subject to more strict construction than are covered provisions." Id at 952. The court referred to yet another Arizona case, Brenner v. Aetna Ins. Co., 445 P.2d 474 (Ariz.Ct.App.1968), which held: "That the situs of the accident was in fact within a motor vehicle and the fact that both the tort-feasor and the injured party were both 'using' the car at the time does not make the injury one 'arising out of ... use' of the vehicle.' " Rocha, at 951. 17 Similarly, the fact that both Riggs and McClean were in Riggs' home when the injury occurred does not make the injury one "arising out of" Riggs' ownership of the house. Here, there was an insufficient causal connection between the injury and Riggs' ownership of the house to warrant invocation of the strict terms of the exclusion. Ownership was largely irrelevant, because McLane could have brought her negligent design claim against Riggs regardless of whether Riggs owned the premises. Thus, under the Arizona courts' interpretation, the claim for negligent architectural services does not "arise out of" Riggs' ownership of the structure where the accident occurred. 18 Moreover, it would have been easy for Imperial to exclude coverage for injuries occurring on the insured's premises by expressly stating that in the exclusionary clause. As the clause is currently written, the language "arising out of ownership" presents a causal problem that, at best, makes the clause ambiguous. Assuming that the clause is ambiguous, the traditional rule of construing ambiguous insurance provisions against the insurer mandates that the policy be construed in favor of Riggs. See Security Ins. Co. of Hartford, 763 P.2d at 248. Consequently, Imperial would be liable for McLane's claim. 3. Contribution 19 USF & G argues that it is entitled to contribution from Imperial, including prejudgment interest. "[W]here two companies insure the same risk and one is compelled to pay the loss, it is entitled to contribution from the other." Universal Underwriters Ins. Co. v. Dairyland Mut. Ins. Co., 433 P.2d 966, 968 (Ariz.1967), overruled on other grounds, Hartford Accident & Indem, Co. v. Aetna Casualty & Sur. Co., 792 P.2d 749, 754-56 (Ariz.1990) (in banc). In order for there to be contribution, however, "the interest, as well as the risk and subject matter, must be identical." Granite State Ins. Co. v. Employers Mut. Ins. Co., 609 P.2d 90, 93 (Ariz.Ct.App.1980) (quoting Continental Casualty Co. v. Signal Ins. Co., 580 P.2d 372, 374 (Ariz.Ct.App.1978). A four-part test has evolved which must be satisfied before contribution is required. Both policies must cover: (1) the same parties, (2) the same interest, and (3) the same property, (4) against the same casualty. Id. In this case, both policies cover Riggs. Both policies cover the same interest because they entitle Riggs to indemnification upon the occurrence of the accident. See id. at 93-95. Both cover an injury occurring on the same property, and finally, both policies insure against the same casualty, bodily injury. Thus, USF & G has satisfied the four-part test for contribution and is entitled to contribution from Imperial to the extent, if any, that Riggs' architectural negligence caused McLane's injury. CONCLUSION 20 We find that Imperial's policy provides coverage for McLane's injury and the exclusion does not apply. Therefore, we REVERSE the district court's grant of summary judgment to Imperial. We remand for a determination of Riggs' negligence in his capacity as an architect and, if necessary, for determination of a proper allocation of Riggs' liability between McLane's two causes of action. The question of prejudgment interest will await determination of the allocation issue. REVERSED and REMANDED. BEEZER, Circuit Judge, dissenting: 21 In Arizona a written insurance policy provides evidence of the contract between insurer and insured. Darner Motor Sales v. Universal Underwriters Ins. Co., 140 Ariz. 383, 682 P.2d 388, 392-99 (1984) (adopting Restatement (Second) of Contracts § 211). Although the parties do not mutually assent to boilerplate terms, a court must follow their plain meaning unless the insured would not have assented to the contract with the disputed term in it. State Farm Fire & Casualty Co. v. Powers, 163 Ariz. 213, 786 P.2d 1064, 1067 (Ct.App.1989). 22 Imperial's policy language unambiguously excludes claims "for or arising out of ... the ownership ... of any real ... property." The whole purpose of an exclusion is to exclude claims otherwise covered by the terms of the policy. There would have been no occasion for McLane's visit and injury but for Riggs' real property ownership. A court may not invent an ambiguity where none exists. Security Ins. Co. v. Andersen, 158 Ariz. 426, 763 P.2d 246, 248 (1988). Riggs would not have rejected the professional liability policy had he known that it would not cover an accident that occurred in his residence. Powers, 786 P.2d at 1067. He had a homeowner's policy to cover such an accident. I would affirm the district court's summary judgment. 23 I respectfully dissent. * This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3	{ "pile_set_name": "FreeLaw" }
498 F.2d 1400 87 L.R.R.M. (BNA) 2127 dN.L.R.B.v.Marathon LeTourneau Company, Gulf Marine Division ofMarathon Manufacturing Company 74-1580 UNITED STATES COURT OF APPEALS Fifth Circuit 8/13/74 1 N.L.R.B., Tex. ENFORCED Summary Calendar case; Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N	{ "pile_set_name": "FreeLaw" }
52 B.R. 15 (1985) In the Matter of L. Leroy WILLIAMS a/k/a Lewis Leroy Williams, a/k/a Leroy Williams, and Barbara E. Williams, a/k/a Barbara Elaine Williams, a/k/a Barbara Williams, Debtors. Bankruptcy No. 82-00098. United States Bankruptcy Court, W.D. Pennsylvania. June 18, 1985. *16 Brenda K. McBride, Grove City, Pa., for debtors. Peter M. Glaubach, Franklin, Pa., trustee, for trustee pro se. P. Raymond Bartholomew, Sharon, Pa., for McDowell Nat. Bank. MEMORANDUM AND ORDER WM. B. WASHABAUGH, Jr., Bankruptcy Judge. This matter comes before us on the motion of the McDowell National Bank to compel payment by the trustee of the monies he received from the debtors in making the monthly payments required under its modified plan of debt adjustment of the sum of $240.00 in satisfaction of its encumbrance against the debtors' 1978 Ford Econoline Van, and the sum of $340.20 with respect to its encumbrance against their 1979 Ford Granada prior to the conversion of the case to a Chapter 7 liquidation bankruptcy proceeding. The debtors made payments totaling $1,050.00 to the trustee, agreeably to the confirmed plan in the Chapter 13 proceeding which provides that the bank's secured claims should be first paid out of the debtors' payments before being applied to costs and other claims. There appears to be no question about the bank's rights to payment of the sum of $240.00 in satisfaction of its claim against the 1978 Ford van, but the payment of $340.20 on the 1979 Ford Granada was confused by its abandonment by the trustee under an order requested by the bank dated May 12, 1983 following which it repossessed said Granada which the testimony shows has a fair market value of $3,400.00 as against the secured claim of the bank granted in the original sum of $3,806.72, all of which except the sum of $340.20 it appears to have received. A further question has been raised in regard to the exemption rights of the debtor in the sums they paid the trustee under the provisions of the plan. It is ORDERED, ADJUDGED, and DECREED as follows: 1. That the trustee shall pay the sum of $240.00 to the McDowell National Bank in satisfaction of its secured claim against the 1978 Ford Econoline Van in accordance with the provisions of the confirmed plan before the case was converted: Resendez v. Lindquist, 691 F.2d 397 (8th Cir.1982) holding that debtors can not claim exemptions in funds they paid under the provisions of a Chapter 13 debt adjustment proceeding before its conversion to a Chapter 7 liquidation. 2. Action on the claim of the McDowell National Bank in the sum of $340.20 is deferred pending the filing of an amended claim showing the disposition it made of the repossessed Granada and comprising a basis for determination that it suffered a loss in the sum of $340.20. The bank cited the cases of Woods Trust, 350 Pa. 290, 38 A.2d 28 (1944), Toll-Barkan Co. v. Toll, 193 Pa.Super. 221, 164 A.2d 36 (1960), and Dennis v. Badcock Corp., 31 B.R. 128, 8 C.B.C.2d 1264 (M.D.Ga.1983) for the proposition that Chapter 13 payments collected on an under-secured debt must be first credited to the unsecured portion of the debt, but we feel we should have further light on both the facts and the law on this matter in respect to the rights of the other unsecured creditors before directing payment to it of this amount. Perhaps the matter can be fully resolved on the filing of the Chapter 7 Trustee's Final Account in the Chapter 7 proceeding which he is hereby directed to file as soon as possible after liquidating any remaining assets.	{ "pile_set_name": "FreeLaw" }
524 F.2d 1230 dDumkev.C. I. R. 75-3244 UNITED STATES COURT OF APPEALS Fifth Circuit 12/4/75 1 T.C., Tex. AFFIRMED Summary Calendar case; Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N	{ "pile_set_name": "FreeLaw" }
964 F.Supp. 665 (1997) Marvin MOORER, Plaintiff, v. GRUMMAN AEROSPACE CORPORATION, Defendant. No. CV 94-3755. United States District Court, E.D. New York. May 19, 1997. 666 667 Krupnick & Goldman, Garden City, N.Y., for Plaintiff; by Sheldon M. Krupnick, Gary M. Mionis. Morgan, Lewis & Bockius, LLP, New York, N.Y. for Defendant; by Christopher A. Parlo, Anita W. Coupe. MEMORANDUM DECISION AND ORDER SPATT, District Judge. This lawsuit arises out of the claims of the plaintiff, Marvin Moorer (the "plaintiff"), that the defendant, Grumman Aerospace Corporation (the "defendant"), violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), 42 U.S.C. § 1981 ("Section 1981"), and New York State Executive Law § 296, also known as the New York Human Rights Law (the "New York Human Rights Law"), by discriminating against the plaintiff on the basis of his "race and color". Presently before this Court are the defendant's motions: (1) for summary judgment pursuant to Fed.R.Civ.P. 56; (2) to strike, in its entirety, the affidavit of Marvin Moorer dated October 7, 1996, or in the alternative, each portion of the affidavit that does not comply with Fed.R.Civ.P. 56; and (3) for sanctions equivalent to the amount of reasonable expenses incurred as a result of the plaintiff's affidavit pursuant to Fed. R.Civ.P. 56(g). I. BACKGROUND A. Local Civil Rule 56.1 statement As a preliminary matter, the Court notes that the plaintiff failed to file a statement of material facts as to which there exists a genuine issue of material fact in response to the defendant's summary judgment motion as required by Local Civil Rule 56.1 ("Rule 56.1 statement"), formerly Local Civil Rule 3(g). Rather, the plaintiff filed a list of rhetorical questions, labelling these questions as a Rule 56.1 statement. However, the plaintiff did submit an affidavit and memorandum in opposition to defendant's motion. To the extent that there is some dispute between the defendant's Rule 56.1 statement and the plaintiff's papers, the facts will be viewed in the light most favorable to the plaintiff. However, any facts in the defendant's Rule 56.1 statement which remain uncontroverted by the plaintiff's papers will be accepted as true. See Dusanenko v. Maloney, 726 F.2d 82, 84 (2d Cir.1984). B. Factual background The plaintiff, Marvin Moorer, is a 47 year old African-American male residing in North Babylon, New York. On or about November 13, 1967, the plaintiff became employed by the defendant to fill the position of riveter/assembler and to perform other structural assembly work. Since November, 1967, except for a twenty month period during 1969 and 1970 when the plaintiff was in military service, the plaintiff has been and continues to be an at-will employee of the defendant. Over the last thirty years, the plaintiff has received three promotions: (1) to inventory planner and analyst in 1978; (2) to program planner and scheduler in 1984; and (3) to program representative for machine parts in 1986. The plaintiff remained in the latter position until 1991. In January, 1991, the plaintiff was transferred from the position of program representative for machine parts to the position of senior program coordinator. In addition, the defendant downgraded the plaintiff's position code one level from exempt to non-exempt status, which affected potential future raises for an undetermined amount of time, but did not affect his then salary or benefits. Simultaneously, the defendant also lowered the exempt/non-exempt position codes of four Caucasian employees within the plaintiff's department. The downgrades were authorized by William Vreeland ("Vreeland"), the plaintiff's manager, who believed that the titles held by the five employees were not indicative of the work they were performing. The plaintiff's May, 1991 performance evaluation as a customer interface representative 668 for the machine parts department states in relevant part: Mr. Moorer's ability to maintain status of his assigned programs is handled well. Additionally he is able to maintain a look ahead in resolving problem areas prior to customer impact. Marvin has also proved his ability in answering direct [sic] to our customers, maintaining a flow of information, of real time status. His knowledge and use of manufacturing systems aids his abilities of accurate machine part statusing. The plaintiff's May, 1992 performance evaluation as a customer interface representative for the machine parts department states in relevant part: Marvin is diligent and concerned in his approach to his duties. He has shown a willingness to do whatever needs to be done in support of our customers. He accepts and follows direction readily. Marvin's attendance, housekeeping and safety habits are very good. On both the May, 1991 and May, 1992 performance evaluations, the plaintiff was given a 300 out of a possible rating of 500, with 500 denoting outstanding. A rating of 300 denotes that the plaintiff met expectations of the supervisor completing the evaluation. On July 24, 1992, the plaintiff was selected for inclusion in a reduction in force ("RIF"), with the earliest possible date of termination to be September 3, 1992. At the time, the plaintiff was ranked eighth out of ten people in his department on a Termination Review Report Position Rank Order Form (the "Termination Review Report"). The Termination Review Report dated July 24, 1992 states that the reason for the plaintiff's selection for RIF was "budget/manpower reduction" and that the plaintiff's selection was due to "ranking in skill." Significantly, the individuals rated below him were laid-off during a RIF in September, 1992. Even more significantly, the individual rated above him was laid-off in June, 1993. All three of these persons are Caucasian. In fact, from 1991 to 1993, 15 of the 28 people in the plaintiff's department were RIF'd or otherwise left the department, and only one of these 15 people was African-American. Plaintiff's RIF paperwork was "revalidated" and extended into 1993. In January, 1993, the plaintiff was selected for another RIF, with the earliest possible RIF date being January 21, 1996. Although the plaintiff was placed in the RIF category, he was never laid-off. The plaintiff appealed his situation to the defendant's Personnel Relations department and to the President of the Company, Renzo Caporali. His appeal was successful and consequently, the plaintiff received a transfer to the Property Management department. The plaintiff could not identify any other position open at the time he was selected for RIF into which he could have been transferred. Upon his transfer, the duties which were previously fulfilled by the plaintiff were distributed among at least five people remaining in the department. The plaintiff was transferred to the Property Management department in March, 1993. During his tenure in this department, the plaintiff was spoken to regarding numerous performance issues: too many personal calls; being away from his desk on too many occasions during the day; returning late from lunch; and failing to appropriately notify superiors in advance as to when he would take time off from work. In addition, during a three month period, the plaintiff was absent from work for thirteen and one-half days. On July 16, 1993, the plaintiff received an adverse evaluation from Pat Jacklets, his manager in the Property Management department. The plaintiff received an overall rating of "1" out of a possible "5", which was an "unsatisfactory" rating. In addition, the July 16, 1993 performance evaluation detailed the plaintiff's performance problems including lack of concentration, wandering away from his desk for extended periods of time, and making too many personal calls. It was recommended in this evaluation that the plaintiff be transferred to a position that is "not as complex as Property Management which requires self-motivation and the ability to work alone." At that time, the Property Management department was required to lay-off one person. The plaintiff was not selected for that layoff. 669 In July, 1993, the plaintiff was transferred to the Sealant Laboratory. Once again, at the time of the transfer, the plaintiff was unable to identify any other available position for which he was qualified to fill. A Caucasian employee was also transferred to the Sealant Laboratory along with the plaintiff. In November, 1994, the Sealant Laboratory began its phase out program. Although several Caucasian employees were laid off, the plaintiff was transferred to another position within the warehouse. Prior to that time, on November 3, 1993, the plaintiff filed charges of race, color and age discrimination with the State of New York, State Division of Human Rights, which charges were cross filed with the Equal Employment Opportunity Commission (the "EEOC"), the federal agency. The plaintiff's discrimination charge was based on his selection for the January 1993 RIF. On June 28, 1994, at the request of the plaintiff's attorney, the EEOC issued a "Notice of Right to Sue." C. The complaint On August 11, 1994, the plaintiff filed his complaint with this Court. Included among the causes of action are claims based on violations of Title VII, the New York Human Rights Law, Section 1981, and negligent and intentional infliction of emotional distress. The plaintiff seeks declaratory and injunctive relief, back pay, future pay, and compensatory and punitive damages. In an Order dated August 24, 1995, the Court dismissed with prejudice and on the merits, any and all claims that the plaintiff may have under New York State law, except for any claims the plaintiff may have under Section 296. The plaintiff's claims for intentional and negligent infliction of emotional distress were dismissed under this Order. II. DISCUSSION A. Summary judgment standard A court may grant summary judgment only if the evidence, viewed in the light most favorable to the party opposing the motion, presents no genuine issue of material fact, Samuels v. Mockry, 77 F.3d 34, 35 (2d Cir. 1996), and the movant is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); see also Fed. R.Civ.P. 56(c) (summary judgment standard). The Court must, however, resolve all ambiguities and draw all reasonable inferences in the light most favorable to the party opposing the motion. See Quaratino v. Tiffany & Co., 71 F.3d 58 (2d Cir.1995); Twin Laboratories, Inc. v. Weider Health & Fitness, 900 F.2d 566, 568 (2d Cir.1990); Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987). According to the Second Circuit, "[s]ummary judgment is a tool to winnow out from the trial calendar those cases whose facts predestine them to result in a directed verdict." United National Ins. Co. v. The Tunnel, Inc., 988 F.2d 351, 355 (2d Cir.1993). Once a party moves for summary judgment, in order to avoid the granting of the motion, the non-movant must come forward with specific facts showing that a genuine issue for trial exists. West-Fair Elec. Contractors v. Aetna Cas. & Surety Co., 78 F.3d 61, 63 (2d Cir.1996); see also Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990) (quoting Fed.R.Civ.P. 56(e)). A genuine issue of material fact exists if "a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510; see Vann v. New York City, 72 F.3d 1040 (2d Cir.1995). However, mere conclusory allegations, speculation or conjecture will not avail a party resisting summary judgment. Kulak v. City of New York, 88 F.3d 63, 70 (2d Cir. 1996). If there is evidence in the record as to any material fact from which an inference could be drawn in favor of the non-movant, summary judgment is unavailable. Holt v. KMI-Continental, Inc., 95 F.3d 123 (2d Cir. 1996); Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir.1991). Finally, the Court is charged with the function of "issue finding", not "issue resolution." Gallo v. Prudential Residential Services, 22 F.3d 1219, 1224 (2d Cir. 1994). 670 The general principles underlying a motion for summary judgment apply no less to this action simply because it is an employment discrimination case. While caution is to be exercised in granting summary judgment where intent and state of mind is in issue, Gallo, supra, 22 F.3d at 1224, summary judgment remains available where no genuine issue exists as to a material fact, Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 40 (2d Cir.1994). For a plaintiff in a discrimination case to survive a motion for summary judgment, the plaintiff must offer "concrete particulars" to substantiate the claim. Meiri v. Dacon, 759 F.2d 989 (2d Cir.), cert. denied, 474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d 74 (1985). It is within this framework that the Court addresses the grounds for the present motion for summary judgment B. The plaintiff's affidavit In addition to the defendant's motion for summary judgment, the defendant moves to strike, in its entirety, the affidavit of Marvin Moorer dated October 7, 1996, or in the alternative, each portion of the affidavit that does not comply with Fed.R.Civ.P. 56, and for reasonable expenses incurred as a result of the plaintiff's affidavit. The defendant contends that portions of the plaintiff's affidavit contain inadmissible hearsay, are not based on the plaintiff's personal knowledge, contain conclusory allegations and legal arguments, and directly contradict the plaintiff's previous sworn deposition testimony. Hearsay statements set forth in the plaintiff's affidavit which cannot be categorized as a hearsay exception, conclusory allegations, legal arguments and statements not based upon personal knowledge will be stricken. See Caldwell v. The American Basketball Assoc., 825 F.Supp. 558, 572 (S.D.N.Y.1993), aff'd, 66 F.3d 523 (2d Cir.1995), cert. denied, ___ U.S. ___, 116 S.Ct. 2579, 135 L.Ed.2d 1094 (1996) (hearsay); Kamen v. American Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir.1986) (conclusory allegations and legal arguments); Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 643 (2d Cir.1988) (personal knowledge). Merely because the plaintiff's affidavit conflicts with his deposition testimony does not nullify the value of the affidavit. "[T]he court may not exclude the affidavit from consideration in the determination of the question whether there is any genuine issue as to any material fact." Perma Research & Development Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir.1969) (citation omitted). This Court will examine conflicting statements in the plaintiff's affidavit and the deposition testimony, if any, to determine the weight to give to these statements. C. Plaintiff's race discrimination claims i. Statutory time requirements The defendant contends that the plaintiff's claim for relief for the skill code change in 1991 from exempt to non-exempt status is untimely under Title VII and the New York Human Rights Law. It was revealed during discovery that the plaintiff's skill code change occurred in January, 1991, not September, 1991 as alleged in the complaint. The plaintiff does not dispute that his claim may be barred by the applicable time limitations but maintains that the defendant has waived this affirmative defense by its failure to assert it in its answer. The statutory time requirements are analogous to a statute of limitations. Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir.1996). Fed.R.Civ.P. 8(c) provides in relevant part: ... a party shall set forth affirmatively ... statute of limitations ... and any other matter constituting an avoidance or affirmative defense. However, "absent prejudice to the plaintiff, a defendant may raise an affirmative defense in a motion for summary judgment for the first time." DeVito v. Pension Plan of Local 819 I.B.T., No. 90 CIV. 5299, 1997 WL 26292 at 4 (S.D.N.Y.1997) (citation omitted). Although the defendant has not asserted the untimeliness of plaintiff's claims under Title VII and the New York Human Rights Law as an affirmative defense, the Court deems defendant's motion for summary judgment to include a motion to amend its answer pursuant to Fed.R.Civ.P. 15(a). See Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir. 1993). Fed.R.Civ.P. 15(a) provides that leave 671 to amend "shall be freely given when justice so requires." A party may amend its pleadings in the absence of prejudice or bad faith by the moving party. See id. at 350. The plaintiff in the present case does not allege any prejudice resulting from defendant's assertion of this affirmative defense, nor does the Court find any evidence of bad faith by the defendant's prior failure to amend its answer. The plaintiff had notice of this affirmative defense as early as May 10, 1995 when the issue was raised in a letter by defendant's attorney to the plaintiff's former counsel, Valerie A. Hawkins, Esq. The issue was raised again in defendant's Rule 56.1 statement dated February 21, 1996. In addition, the complaint incorrectly states that the plaintiff's skill code change occurred in September, 1991, rather than in January, 1991. The complaint was never amended by the plaintiff. Therefore, the Court concludes that the defendant may properly assert that the plaintiff's claims arising from Title VII and the New York Human Rights Law are time barred. Under Title VII, a plaintiff must file a discrimination claim with the EEOC within 300 days of the alleged violation. See 42 U.S.C. § 2000e-5(e). Claims arising under the New York State Human Rights Law must be filed within three years of the alleged discriminatory act. Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir. 1997) (citing Murphy v. American Home Products, 58 N.Y.2d 293, 307, 461 N.Y.S.2d 232, 239, 448 N.E.2d 86 (1983)). Under Title VII, timely filing with the EEOC is a prerequisite for bringing suit in federal court, although the requirement may be excused on equitable grounds. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). However, conduct that occurred more than 300 days before an EEOC filing may be included in a cause of action if it is a continuing pattern of discrimination. Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir.1994). A continuous violation may be established by alleging a "series of related acts, one or more of which fall within the limitations period, or the maintenance of a discriminatory system both before and during the limitations period." Varrone v. Staten Island Univ. Hosp., No. 96-CV-3132, 1996 WL 524390 (E.D.N.Y. Sept. 6, 1996) (citing LaBeach v. Nestle Co., Inc., 658 F.Supp. 676 (S.D.N.Y.1987)). Plaintiff contends that the 1991 demotion and skill code change from a supervisory level to a non-supervisory level caused him to be eligible to be included in a RIF. Indeed, the Plaintiff was RIF'd in July, 1992. Plaintiff's RIF paperwork was "revalidated" and extended into 1993. On January 1, 1993, the plaintiff was identified for another RIF. The January 1993 RIF was the basis for the plaintiff's complaint filed with the EEOC on November 3, 1993 alleging discrimination based on the plaintiff's race, age and color. Given these facts, the plaintiff has alleged a continuing violation through a series of related acts beginning with the plaintiff's skill code change and transfer in 1991. Therefore, the plaintiff's claim under Title VII arising from the plaintiff's skill code change in 1991 is not time barred. Likewise, the plaintiff's claim under the New York Human Rights Law is not time barred. See Harris v. The New York Times, No. 90 CIV. 5235, 1993 WL 42773 (S.D.N.Y. Feb. 11, 1993) (continuing violation doctrine applies to claims arising under Title VII and the New York Human Rights Law). ii. The McDonnell Douglas analysis The plaintiff asserts that any reason proffered by the defendant in. support of its decision to demote the plaintiff was merely a pretext for race discrimination. The Court examines the plaintiff's allegations of race discrimination pursuant to Title VII under the three-step burden shifting analysis developed by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). This three step burden shifting analysis also applies to the plaintiff's claim under the New York Human Rights Law. See Van Zant, supra, 80 F.3d at 714-15 (citing Tomka v. Seiler Corp., 66 F.3d 1295, 1304 n. 4 (2d Cir.1995)). First, the plaintiff bears the initial burden of proving by the preponderance of the evidence a prima facie case of discrimination. 672 Second, if the plaintiff succeeds, the burden of production shifts to the employer to articulate some legitimate, nondiscriminatory reason for the plaintiff's demotion. Third, should the defendant advance such a reason or reasons, the plaintiff bears the ultimate burden to prove that the legitimate reasons offered by the employer were merely a pretext for intentional racial discrimination. McDonnell Douglas Corp., supra, 411 U.S. at 802-03, 93 S.Ct. at 1824-25; Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981). The plaintiff may satisfy this latter burden either: (1) directly, by producing evidence that a discriminatory reason more likely motivated the employer; or (2) indirectly, by showing that the employer's proffered explanation is unworthy of credence, and that intentional discrimination actually motivated the employer's actions. Meiri, supra, 759 F.2d at 997. However, mere conclusory allegations of discrimination are insufficient to meet this burden. Id. at 998. a. The prima facie case In order to establish a prima facie case under the facts of this case (namely, reduction in position, not discharge), the plaintiff must present evidence that: (1) he is a member of a protected class; (2) he was qualified for the position or positions in which he worked; (3) he was subject to adverse employment decisions; and (4) either the position remained open or he was replaced by someone not a member of his protected class. De la Cruz v. N.Y. City Human Resources Administration Dep't of Soc. Serv., 82 F.3d 16, 20 (2d Cir.1996). Title VII forbids employment decisions in which the race of the adversely affected employee is a substantial factor. In a case such as the present one, where the plaintiff's evidence is entirely circumstantial, the pertinent question is whether the plaintiff's prima facie case contains evidence sufficient to permit the trier of fact to draw an inference that the prohibited motive was a substantial factor in the adverse employment decision. See Burger v. New York Institute of Technology, 94 F.3d 830, 834 (2d Cir.1996). The threshold of evidence that the plaintiff must meet to establish a prima facie case is low. De la Cruz, 82 F.3d at 20. Once the plaintiff establishes a prima facie case, the question of whether the plaintiff has been harmed by the transfer is a question of fact for the jury. Id. at 21. The plaintiff alleges that his numerous transferrals were attempts by the defendant to demoralize him into resigning from the company. In this regard, the plaintiff's skill code change in 1991, the RIF in 1992, the RIF in 1993, and the transfers can be viewed as continuous discrimination practices by the defendant, according to the plaintiff. The defendant does not contest that the plaintiff belongs to a class of protected persons and thus, the first element of the plaintiff's prima facie case is satisfied. To satisfy the second element, the plaintiff need only demonstrate that he "possesses the basic skills necessary for performance of [the] job." Powell v. Syracuse Univ., 580 F.2d 1150, 1155 (2d Cir.), cert. denied, 439 U.S. 984, 99 S.Ct. 576, 58 L.Ed.2d 656 (1978). The plaintiff need not demonstrate that his performance was flawless or superior. See de la Cruz, supra, 82 F.3d at 20. Regarding the plaintiff's alleged demotion from the position of program representative for machine parts to the position of senior program coordinator, the Court cannot glean the plaintiff's qualifications. The plaintiff's May, 1991 and May, 1992 evaluations of his performance as a customer interface representative for the machine parts department were generally positive. For both the May, 1991 and May, 1992 performance evaluations completed, the plaintiff was given a 300 out of a possible rating of 500, with 500 denoting outstanding. A rating of 300 denotes that the plaintiff met expectations of the supervisor completing the evaluation. The Court finds that the plaintiff was qualified to fill the position of customer interface representative for machine parts which 673 position the plaintiff held in January, 1991 through in or about February, 1991. Regarding the plaintiff's performance evaluation dated July 16, 1993, the plaintiff received a rating of 100 out of a possible rating of 500, or denotes a rating of "unsatisfactory". In addition, this performance evaluation detailed the plaintiff's performance problems including lack of concentration, wandering away from his desk for extended periods of time, and making too many personal calls. Further, the plaintiff took 13 and one-half days off during a 90 day period and did not follow office procedure regarding advance notification. It was recommended in this evaluation that the plaintiff be transferred to a position that is "not as complex as Property Management which requires self-motivation and the ability to work alone." This is a close case as to this element. The Court gives all favorable inferences to the plaintiff and finds that he has established, at least prima facie that he is qualified and was qualified for the positions worked, as well as for the position he assumed in the property management department. As to the third element of plaintiff's prima facie case, the defendant maintains that the plaintiff suffered no unfavorable employment action. The defendant emphasizes that although the plaintiff was selected for RIF in early 1993, he was not laid off. Furthermore, when the plaintiff was "demoted" to the position of senior program coordinator and his skill code changed from exempt to non-exempt status, the plaintiff's salary and benefits did not change. The plaintiff did not lose any vacation eligibility or vacation pay, sick time or leave days, nor did his skill code change affect his ability to participate in profit sharing and pension plans. Therefore, the defendant suggests that the plaintiff has not suffered any adverse employment action. The Court finds this argument unavailing. Title VII prohibits employers from discriminating with respect to "compensation, terms, conditions, or privileges of employment" on account of an individual's race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(1). In de la Cruz, supra, the plaintiff, a caseworker in the Adoption Unit of the New York City Human Resources Administration Department of Social Services, was transferred to the Foster Care Unit. However, the plaintiff retained his civil service rank and he did not suffer a reduction in salary. The plaintiff asserted that the defendant moved him from an "elite" division, which position was prestigious and provided an opportunity for advancement, to a less prestigious unit with little opportunity for professional growth. The defendant argued that the two units were equal in status and therefore, did not constitute a legally cognizable adverse action. The Second Circuit, reaffirming that the protections afforded under Title VII are not limited to "instances of discrimination in pecuniary emoluments", held that the third element of the plaintiff's prima facie case was satisfied since the plaintiff's transfer altered the terms and conditions of his employment in a negative way. De la Cruz, 82 F.2d at 21. Similarly, the plaintiff in this case maintains that as a result of his 1991 skill code change from exempt to non-exempt status, he became susceptible for selection for a RIF and prevented the plaintiff from any further advancements. In addition, the plaintiff's skill code change affected his future raises for an undetermined amount of time. Under the standard enunciated in de la Cruz, supra, this Court concludes that the plaintiff has been subjected to adverse employment decisions and thus, has presented sufficient evidence to satisfy the third element of his prima facie case. As to the fourth element of the plaintiff's prima facie case, the Court finds that the plaintiff has not presented any evidence that his position remained open or that he was replaced by someone not a member of his class. The plaintiff alleges that James Cappelluto, the son of his manager, John Cappelluto, replaced him when he was allegedly demoted from the position of senior program coordinator to a position in the Property Management department. James Cappelluto is Caucasian. However, the plaintiff has presented no evidence to support this allegation. Nor did the plaintiff offer any evidence to dispute the statement in John Capelluto's affidavit submitted in 674 support of defendant's motion that the plaintiff's job duties were distributed among the remaining people in the department. Moreover, the plaintiff's allegation tends to support a theory of nepotism rather than one of racial discrimination. Further undermining the plaintiff's theory is John Cappelluto's affidavit in which he stated that his son, James Cappelluto, was RIF'd on August 6, 1993. In sum, the plaintiff does not offer any evidence to create a genuine issue of material fact. Therefore, as a result of a failure to prove the fourth element or provide evidence of any racial discrimination, the plaintiff has not met his burden of proof as to his prima facie case. b. Pretext Even if the plaintiff would have been able to prove his prima facie case, the Court finds that the defendant offers legitimate and non-discriminatory explanations for the plaintiff's skill code change, his selection for RIF and the transfers. Under the applicable law, the plaintiff must counter defendant's explanations with sufficient evidence to support a rational finding that the legitimate and nondiscriminatory reasons proffered by the defendant were false or pretextual and that race discrimination was the real motivating factor. See Van Zant, supra, 80 F.3d at 714 (grant of summary judgment affirmed where insufficient evidence of pretext existed). The plaintiff contends that the Second Circuit's requirement that a plaintiff prove pretext to defeat a motion for summary judgment is erroneous and inconsistent with the decisions rendered by the Supreme Court. However, this Court is bound by the precedent set by the Second Circuit and therefore, this contention by the plaintiff must be rejected. The defendant contends that the plaintiff's skill code was changed to accurately reflect the work he was performing. The defendant denies disparate treatment of the plaintiff. The plaintiff does not dispute that the skill codes of other Caucasian employees were also adjusted. The Court finds no evidence of disparate treatment in this case. In addition, the defendant asserts that the plaintiff's selection for RIF was due to plaintiff's relative rank in his department. The plaintiff was ranked eighth out of ten individuals. The two persons ranked below the plaintiff were Caucasian, and were laid off during a RIF in September, 1992. Indeed, the individual rated directly above the plaintiff was also Caucasian, and was laid off in June, 1993. Once again, the plaintiff does not present any evidence to dispute the defendant's proffered non-discriminatory explanations. Nor does the plaintiff dispute the downsizing of the defendant's Long Island facilities, or the resulting well-publicized enormous number of layoffs. From the evidence presented by the defendant, the Court concludes that the criteria for selection of individuals for RIF treatment was evenhanded and thus, the plaintiff has not established a pretext for racial discrimination. See Grant v. Bethlehem Steel Corp., 635 F.2d 1007, 1014-15 (2d Cir.1980) (pretext may be established where policy was not applied evenly). Third, the defendant attempted to match the plaintiff's abilities with available job positions. The plaintiff was transferred to the Sealant Laboratory due to his poor performance evaluation while employed in the Property Management department. The plaintiff maintains that the poor evaluations were a pretext for race discrimination. However, the plaintiff fails to cite any evidence that the performance evaluations were discriminatory or were undeserved for any other reason. "An employee's opinion that a performance review was unfair, supported only by ... [his] own conclusory statements to that effect, cannot bootstrap her claims into a Title VII claim of discrimination." Reilly v. Metro-North Commuter R.R. Co., No. 93 Civ. 7317, 1996 WL 665620, at 9 (S.D.N.Y. Nov. 15, 1996). Nor can prior good evaluations of the plaintiff's work performance alone establish that later unsatisfactory evaluations are pretext for unlawful discrimination. See Shabat v. Blue Cross Blue Shield of Rochester Area, 925 F.Supp. 977, 988 (W.D.N.Y.1996); Orisek v. American Institute of Aeronautics and Astronautics, 938 F.Supp. 185, 191 (S.D.N.Y.1996). The plaintiff's affidavit contains conclusory allegations and hearsay, neither of which is sufficient to create a genuine issue of material 675 fact. The plaintiff maintains that circumstantial evidence directs the conclusion that the legitimate and non-discriminatory reasons proffered by the defendant are pretextual. The plaintiff claims in his affidavit that he felt "racial tension" from Vreeland while he was under Vreeland's supervision. However, this unsupported allegation is insufficient to create a genuine issue of material fact. There is no evidence to support the plaintiff's subjective feeling of "racial tension." The plaintiff further contends that during 1992, Vreeland, his supervisor, ate lunch with a group of supervisors, all of whom were Caucasian. However, the plaintiff was not employed in a supervisory capacity in 1992 and therefore, the plaintiff's allegation that he was never invited or made to feel welcome at a supervisors' luncheon, does not create an issue of fact. Finally, the plaintiff cites statements made to him by co-workers confirming the plaintiff's beliefs that his transfers were motivated by race discrimination. The plaintiff claims that in or about August, 1993, James Capelluto approached him and stated, "Marvin I'm leaving. I'm going to Florida and I want you to know I had nothing to do with what they were trying to do to you." The plaintiff further claims that Bob Smith, the plaintiff's former supervisor approached him in or about November, 1993 and stated, "they [Defendant] really tried to screw you." Finally, the plaintiff claims that in or about July, 1994, John Hulse, another former supervisor, stated, "Marvin, I didn't like any of it, but I couldn't take you with me and I knew that they were going to try to screw you." The plaintiff claims that he went on to state, "I know that John Capelluto wanted to give his son your job." Not only are these statements hearsay, but standing alone, assuming they are admissible, they fail to provide any evidence of race discrimination. The Court notes that the plaintiff did not produce one affidavit or even a statement by a non-party validating the assertions set forth in his affidavit. The plaintiff has failed to demonstrate through admissible evidence that race discrimination was the more likely motive or that the defendant's three legitimate, non-discriminatory reasons are unworthy of credence. The Court finds that the non-discriminatory reasons advanced by the defendants are the true reasons, as a matter of law. Therefore, the defendant's motion for summary judgment dismissing the plaintiff's claims arising under Title VII and the New York Human Rights Law, is granted. iii. Section 1981 claim The defendant also moves for summary judgment on the plaintiff's claim brought pursuant to 42 U.S.C. § 1981. Section 1981 provides: (a) Statement of equal rights 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 ... (b) "Make and enforce contracts" defined For the purposes of this section, the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship. 42 U.S.C. § 1981, Pub.L. 102-166, 105 Stat. 1071, Nov. 21, 1991. The defendant contends that the plaintiff's Section 1981 claim should be dismissed because no underlying contract exists upon which to base the plaintiff's claims. The Court agrees. By its very terms, Section 1981 governs contractual relationships. The Second Circuit has repeatedly recognized that Section 1981 requires both evidence of intentional discrimination "and that this discrimination interfered with a contractual relationship." Murray v. National Broadcasting Co., 844 F.2d 988, 995 (2d Cir.1988) (citing Runyon v. McCrary, 427 U.S. 160, 170-71, 96 S.Ct. 2586, 2594-95, 49 L.Ed.2d 415 (1976)); Krulik v. Board of Educ., 781 F.2d 15, 23 (2d Cir.1986). In Askew v. May Merchandising Corp., 87 CIV. 7835, 1991 WL 24390, at 6 (S.D.N.Y. Feb. 29, 1991), the district court 676 applied this standard and granted the defendants' motion for summary judgment dismissing the plaintiff's Section 1981 claims based on his failure to establish the necessary contractual relationship as the plaintiff was an at-will employee. See also Moscowitz v. Brown, 850 F.Supp. 1185, 1192 (S.D.N.Y. 1994) (dismissing Section 1981 claim of an at-will employee because there was no underlying contractual relationship upon which to base a claim). In addition, to establish a claim under Section 1981, the plaintiff must allege facts in support of the following elements: (1) the plaintiff is a member of a racial minority; (2) an intent to discriminate on the basis of race by the defendant; and (3) the discrimination concerned one or more of the activities enumerated in the statute. See Mian v. Donaldson, Lufkin & Jenrette Securities Corp., 7 F.3d 1085, 1087 (2d Cir.1993). The essential element of a Section 1981 claim is that the discrimination occurred as a result of the plaintiff's race. See id. at 1088. In the present case, the plaintiff proffered no direct or circumstantial evidence of race discrimination. Applying these standards, the Court must dismiss the plaintiff's Section 1981 claims. The plaintiff has not established the existence of a contractual relationship with the defendant sufficient to support a Section 1981 cause of action and produced no evidence of racial discrimination. As a result, the Section 1981 claim cannot be sustained. Accordingly, the defendants' motion for summary judgment dismissing the plaintiff's Section 1981 claim is granted. C. Sanctions under Fed.R.Civ.P. 56(g) The defendant seeks reasonable costs, including attorneys fees, incurred as a result of its motion to strike the plaintiff's affidavit submitted in opposition to the defendant's motion for summary judgment, pursuant to Fed.R.Civ.P. 56(g). The defendant asserts that "Plaintiff's current counsel has repeatedly been advised that the positions Plaintiff seeks to advance could not be supported in light of Plaintiff's deposition testimony and other record evidence in this case." The plaintiff counters by maintaining that neither he nor his current attorney has ever reviewed the plaintiff's deposition testimony prior to being served with the instant motion for summary judgment. The plaintiff's current attorney claims that the "[p]laintiff was of limited means and had already expended more than he had on litigation costs, a great deal of which was to defend against Defendant's motion to have ... [plaintiff's] prior counsel disqualified, and that if ... [the defendant was] sincere in wishing to resolve this matter amicably, they would supply ... [plaintiff's counsel] with a copy of the transcript." The Court assumes that the failure to provide a copy of the plaintiff's deposition transcript was done by inadvertence. Fed.R.Civ.P. 56(g) provides: Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt. There is little case law applying Rule 56(g). In the rare instances in which Rule 56(g) sanctions have been granted, the conduct has been egregious. See e.g., SMS Assoc. v. Clay, 868 F.Supp. 337 (D.D.C.1994), aff'd, 70 F.3d 638 (D.C.Cir.1995) (Rule 56(g) sanctions awarded where litigant engaged in "dilatory tactics expressly designed to prolong ... already unduly protracted litigation" in case which had been going on for over 10 years); Alart Assocs., Inc. v. Aptaker, 402 F.2d 779 (2d Cir.1968) (Rule 56(g) sanctions imposed where litigant reasserted substantially the same grounds for summary judgment after the court had already twice rejected the theory). Merely because the defendant believes that the plaintiff's arguments are without merit does not furnish grounds for the imposition of sanctions under this Rule. The Court finds that Mr. Moorer's affidavit submitted in support of plaintiff's opposition to defendant's motion for summary judgment was not submitted in bad faith and therefore, *677 sanctions pursuant to Fed.R.Civ.P. 56(g) are not warranted in the present case. III. CONCLUSION After receiving the submissions of both parties and hearing oral argument on this matter, and for the reasons set forth above, it is hereby ORDERED, that the defendant's motion for summary judgment pursuant to Fed. R.Civ.P. 56 is granted; it is further ORDERED, that the defendant's motion to strike portions of plaintiff Marvin Moorer's affidavit submitted in opposition of defendant's motion to dismiss is denied; it is further ORDERED, that the defendant's motion for sanctions pursuant to Fed.R.Civ.P. 56(g) is denied; and it is further ORDERED, that the complaint in this action is dismissed in its entirety. The Clerk of the Court is advised that this Order closes the case. SO ORDERED.	{ "pile_set_name": "FreeLaw" }
149 N.W.2d 502 (1967) BROOKS UPHOLSTERING COMPANY, Inc., Appellant, v. AETNA INSURANCE COMPANY et al., Respondents. No. 40357. Supreme Court of Minnesota. March 23, 1967. 503 Robins, Davis & Lyons, and Harding A. Orren, Minneapolis, for appellant. Dorsey, Owen, Marquart, Windhorst & West, Henry Halladay, and Curtis Forslund, Minneapolis, for respondents. OPINION KNUTSON, Chief Justice. This is a companion case to Brooks Realty, Inc. v. Aetna Ins. Co., Minn., 149 N.W.2d 494, which is filed as of this day. Plaintiff here appeals from an order denying its motion for judgment notwithstanding 504 a special verdict or for a new trial and from the judgment. It is needless to repeat the facts stated in the Realty case except in so far as it is necessary in order to understand the issues involved in this appeal. This case was tried after the Realty case and after Charles Rottach had recanted his testimony in the Realty trial and admitted that he committed perjury therein. In answer to special interrogatories, the jury in the instant case found that plaintiff did not actually set the fire which destroyed the building but that it did intentionally increase the risk of loss by fire. It must be assumed from the latter answer that the jury found that Upholstering had knowledge that the sprinkler system had been turned off and intentionally left it off. The post-trial motions for judgment notwithstanding the special verdict or for a new trial on the sole issue of whether there was an increase of risk of loss by fire or on all issues were denied, and this appeal followed. In this case Rottach testified substantially as he had stated after the trial in the Realty case, that he had told his supervisor, Don Johnson, on the day that he had damaged the sprinkler head that he had shut off the system and that he had also told Edward Brooks that he had the accident and had shut off the system; that Edward Brooks had said, "Leave it go. * * * We'll get it fixed later. The building has been here fifty years, it'll be here another fifty years." He further testified that Brooks had asked him to set "a small fire for me" and that he had had other conversations with him that led him to believe that the fire was intentionally started. We must assume that the jury disbelieved part of Rottach's testimony in finding that plaintiff did not intentionally start the fire, but that it believed part of it in finding plaintiff intentionally increased the risk of loss. It is difficult to reconcile these two findings with Rottach's testimony and certainly more difficult to reconcile the finding of the jury in this case with that in the Realty case unless it is on the grounds that the jury accepted part of Rottach's testimony. However, the main difficulty with the case involves the confusion which seemed to exist after the case was submitted to the jury. The jury returned for additional instructions and asked two questions, one being, "If managing agent has knowledge of sprinkling system being out of order. After issuing orders to maintenance man to take care of it, can this be construed intentional?" and the second being, "Can negligent [sic] be considered intentional?" The court instructed the jury on the second question that "carelessness or negligence, regardless of degree, does not bar a recovery under the policies," but refused to give additional instructions on the first question, saying: "* * * On this point it is my present views that I will tell the jury, number one, who is a managing agent is what they have to decide and whether a managing agent, after issuing orders to a maintenance man to take care of it, whether or not that can be construed as intentional, I can't help them on, because that's something that they have got to decide. I can't decide it for them with a legal statement ahead of time. It's one of the issues that's been submitted to them." He later told the jury: "* * * I can't give you any further law on that. In other words, that's one of the questions that's arisen in your minds that you will have to decide. In other words, you will have to decide whether if, as you say, a managing agent says to someone else, `You take care of it, you take care of it,' you'll have to decide whether that's enough or whether it isn't enough. That's a decision that the twelve of you will have to make without any further law from me." How the jury could understand what it was to do in light of these instructions it is difficult to see. The judge 505 should have instructed the jury on the law of whether knowledge of a managing agent was imputable to the company or not, and not have left it to the jury to conjecture on this, the main issue in the case. The court was undoubtedly right in holding that negligence did not bar recovery on the grounds that the company had intentionally increased risk of loss. It would seem that if the jury believed Rottach's testimony at all it might have concluded that Edward Brooks had actual knowledge that the sprinkler system had been turned off and intentionally left it off and thereby increased the risk of loss from fire. It is the claim of plaintiff that before this could defeat recovery under these policies the shutdown of the sprinkler system must have been permanent. We are not persuaded by this argument because, if it was shut down until the fire occurred, it could hardly be more permanent, even if it was only a matter of a few days. For the general rule on this contention, see 29A Am.Jur., Insurance, § 888. The intention to leave the system inoperative must be more or less permanent, but if that intent appears, the time that elapses until a fire occurs is immaterial. We have considered various hazards in prior cases that have been held to increase risk of loss or the contrary, and while we have no case involving the shutdown of a sprinkler system, a brief review of some of the cases might be of help. In Romain v. Twin City Fire Ins. Co., 193 Minn. 1, 258 N.W. 289, plaintiff bought an icehouse for $1,000 and had it insured for $10,000 at the time of the fire. There was an agreement that the building would be wrecked prior to any sale of the land or, in any event, within 10 years. After destruction of the building by fire, it was contended that the existence of such agreement constituted a moral hazard as a matter of law and defendants requested that the court set aside the jury verdict for plaintiff. By a divided court we held, quoting from Mack v. Pacific Mutual Life Ins. Co., 167 Minn. 53, 57, 208 N.W. 410, 412: " * * Usually it is for a jury to decide whether a misrepresentation has in fact been made, whether it is material, whether it is made with intent to deceive and defraud, or whether the matter misrepresented, in, fact increases the risk of loss." While this involved a moral hazard, according to the minority opinion, in applying for and procuring the insurance, much the same rule applies to increase of hazard after insurance is obtained. In Betcher v. Capital Fire Ins. Co., 78 Minn. 240, 242, 80 N.W. 971, 972, we upheld a directed verdict for the insurer where it appeared that a large quantity of fireworks had been stored on the insured premises, stating: "* * * Even if there was no direct evidence on the question, we would take judicial notice of the fact that the storage of such articles caused an increase of the risk." Similarly, in Schaffer v. Hampton Farmers Mutual Fire Ins. Co., 183 Minn. 101, 235 N.W. 618, 236 N.W. 327, we held that a tenant's operation of a still in one of plaintiff's barns had increased the hazard so as to invalidate his insurance. We granted a new trial rather than judgment for defendant because the lower court had not submitted to the jury the issue of whether plaintiff had knowledge that the tenant was operating a still. In Taylor v. Security Mutual Fire Ins. Co., 88 Minn. 231, 92 N.W. 952, we held the burden is on the insurer to prove violation of a provision against increasing the risk of loss, and that what constitutes an increase of risk usually is a fact question for the jury's determination. Similar holdings are to be found in Nathan v. St. Paul Mutual Ins. Co., 243 Minn. 430, 68 N.W.2d 385, and Board of Trustees of First Congregational Church of Austin v. Cream City 506 Mutual Ins. Co., 255 Minn. 347, 96 N.W.2d 690, where a church was destroyed by a fire of incendiary origin. For annotations on the questions involved, see 26 A.L.R.2d 809, concerning the increase of risk of loss by the property owner's actions, such as bringing inflammable substances onto the property, and 34 A.L.R.2d 717, concerning the effect of accidentally created conditions which increase the risk of loss. There are foreign cases that could be discussed but we see no need of doing so here, as they are to be found in the annotations. Thus it follows that it is ordinarily for the jury to determine whether the action of the insured has increased the risk of loss so as to vitiate an insurance policy. Had it not been for the apparent confusion of the jury, shown by the record, in this case we would be inclined to let the verdict stand, but inasmuch as the verdict with respect to increase of risk is the exact opposite of what was found in the Realty case and we conclude that that case must be tried over, we think that this case, too, should be submitted to a jury without such confusion as to whether knowledge of the agent would be sufficient to vitiate the policy. Here again, as we said in Realty, if the officer or agent was one who was acting within the scope of his duties, his knowledge is imputable to the corporation. Certainly if the jury believed that Edward Brooks had knowledge that the sprinkler system had been shut down and intentionally left it off, an inference would be permissible that he had increased the risk of loss. As a matter of fact, it would almost follow as a matter of law that that were true. Plaintiff argues that Minn.St. 65.011, subd. 11, which provides: "It may print or use on its policy, printed forms covering the maintenance or supervision of watchman's service, automatic sprinkler service or the maintenance of a clear space in lumber yards, when approved by the commissioner of insurance, but no such clause shall contain any provision calling for the lapse or the suspension of the insurance coverage." precludes any claim on the part of the insurer that the risk of loss has been increased by the failure of the sprinkler system. We are not persuaded by this argument. Obviously the statute is aimed at a situation where the sprinkler system is out of order as the result of accident, or even negligent failure to repair it, but it can hardly be thought that the legislature would provide a statute which would permit the insured to recover if he intentionally shuts off a sprinkler system that is intended to protect the building from fire and does nothing about it. To so read this provision would nullify the provision of our statutory standard policy, § 65.011, subd. 2, reading: "Unless otherwise provided in writing added hereto this company shall not be liable for loss occurring: "(a) while the hazard is increased by any means within the control or knowledge of the insured." Increase of the hazard is a defense to a claim under the policy. The provision relied on by plaintiff prohibits the inclusion in the policy of a suspension or forfeiture clause if a sprinkler requirement is included. At first blush the two provisions seem inconsistent but they need not be so construed. Whether intentional failure to repair a sprinkler system increased the hazard is a fact issue for the jury. Plaintiff also contends that the court erred in using the term "increase of risk of loss" rather than "increase of hazard." We are convinced the two expressions are synonymous. We have considered other errors assigned but see no need of discussing them. 507 A new trial will be granted. PETERSON, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.	{ "pile_set_name": "FreeLaw" }
611 F.2d 373 N. L. R. B.v.Kal-Equip Co. No. 78-1532 United States Court of Appeals, Sixth Circuit 11/21/79 1 N.L.R.B. ENFORCEMENT DENIED	{ "pile_set_name": "FreeLaw" }
227 P.3d 1242 (2010) 234 Or. App. 218 NOLLETTE v. EMPLOYMENT DEPT. A142544. Court of Appeals of Oregon. March 3, 2010. Affirmed without opinion.	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 17-1563 MARK WHITE, Plaintiff - Appellant, v. METROPOLITAN WASHINGTON AIRPORTS AUTHORITY, Defendant - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (1:16-cv-00670-LMB-IDD) Submitted: September 14, 2017 Decided: October 5, 2017 Before NIEMEYER and FLOYD, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Mark White, Appellant Pro Se. Morris Kletzkin, I, Joseph Walter Santini, FRIEDLANDER MISLER, PLLC, Washington, D.C., for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Mark White appeals the district court’s order granting Defendant’s summary judgment motion on his claims, brought pursuant to the Family and Medical Leave Act, 29 U.S.C.A. §§ 2601 to 2654 (West 2009 & Supp. 2017); the Americans with Disabilities Act, 42 U.S.C. §§ 12101 to 12213 (2012); Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. §§ 2000e to 2000e-17 (West 2012 & Supp. 2017); and the Rehabilitation Act of 1973, as amended, 29 U.S.C.A. §§ 701 to 796l (West 2008 & Supp. 2017). We have reviewed the record and discern no reversible error. Accordingly, we affirm for the reasons stated by the district court. See White v. Metro. Wash. Airports Auth., No. 1:16- cv-00670-LMB-IDD (E.D. Va. Apr. 14, 2017 & May 5, 2017). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 2	{ "pile_set_name": "FreeLaw" }
226 B.R. 112 (1998) In re KRC, INC., Debtor. Bankruptcy No. 98-20315. United States Bankruptcy Court, D. Idaho. October 20, 1998. 113 David Manko, Coeur d'Alene, Idaho, for debtor. R. Wayne Sweney, Lukins & Annis, Coeur d'Alene, Idaho, for Wells Fargo Bank. MEMORANDUM OF DECISION and ORDER TERRY L. MYERS, Bankruptcy Judge. This matter comes before the Court upon the motion for relief from stay of Wells Fargo Bank ("Bank"). 11 U.S.C. § 362(d). A § 362(e) final hearing was held upon the Bank's motion at which time the Bank and the Debtor in Possession KRC, Inc. ("Debtor") presented evidence and argument. This opinion constitutes the Court's Findings of Fact and Conclusions of Law upon the matters presented under the motion. Fed. R.Bankr.P. 9014, 7052; Fed.R.Civ.R. 52. FACTS Certain of the underlying facts are not disputed. The Bank holds a secured obligation with a present balance of approximately $279,000.00. That obligation is secured by several different categories of collateral including equipment, vehicles, accounts receivable, contract rights and similar intangibles, together with all proceeds of any of the identified collateral. The obligation is further guaranteed by Debtor's principals, Kathy and Randy Cardwell, and that guarantee is, it appears, secured by real estate. A great deal of evidence was presented in regard to the value of Debtor's presently held equipment. The appraisal prepared by the Bank's expert, Exhibit 2, asserted a fair market value of $52,325.00 for several specifically identified items. However, testimony indicated that two trailers which were appraised for $31,500.00 were actually leased by the Debtor from a third party and were not part of the Bank's collateral. The Court thus finds, for the purpose of the present motion, that the equipment (essentially vehicles) has a value of $18,500.00.[1] In regard to the accounts receivable and contract rights, which further collateralize the Bank's debt, the Debtor's president and bookkeeper testified regarding the ongoing work of the Debtor and anticipated profits or collections there from. This would include, given the Debtor's method of doing business, the collection of existing "receivables" (including retainages from prior jobs) as well as the anticipated profits from ongoing and future work. The Debtor's projection of cash flow for the last six months of 1998 indicates that it can generate a monthly net profit (including retainage) of between $11,000.00 and $22,000.00 at least through November, 114 1998. For the six month period, Debtor estimates a $78,604.00 net profit (composed of $37,831.00 in retainage and $40,773.00 profit).[2] It is true that the Debtor did not specifically deal with the question of the aging or collectibility of existing accounts receivable. Rather, Debtor focused on the issue of anticipated profitability of its operations. This is relevant in regard to the ability of the Debtor to provide adequate protection through periodic or proposed payment (as opposed to adequate protection through equity cushion alone). Debtor has proposed making adequate protection payments to the Bank commencing in September and continuing through confirmation of a plan which Debtor says will provide for full payment to the Bank.[3] Debtor's pleadings and exhibits assert that, from the total outstanding "accounts receivable," it can generate a net profit of $40,774.00 even after payment of $5,700.00 per month to the Bank and after reserving $37,831.00 in retainage for the benefit of the Bank. The Debtor further alleges that there is an outstanding account receivable owed by the State of Idaho in the amount of $189,000.00 which is collateral for the Bank and thus provides it with additional protection. This account, however, is in litigation. The Bank is also protected by the guarantee of the Debtor's principals and, it is alleged, by unencumbered real estate owned by those principals. Though this property is not property of the Debtor's estate, it would be appropriate to consider the availability of this asset as protection for the Bank's interest pending the Debtor's attempts to confirm a plan.[4] The testimony of the Debtor is that this property has a value of $185,000.00.[5] DISCUSSION The Bank would be entitled to relief from the automatic stay if it can establish cause, including a lack of adequate protection of its interest. § 362(d)(1). The Bank may also be entitled to stay relief if it establishes that the Debtor has no equity in the subject property (i.e. the collateral) and such property is not necessary for an effective reorganization. § 362(d)(2)(A) and (B). The Bank bears the burden of proof on the question of the Debtor's equity in such property, § 362(d)(2)(A), and the Debtor bears the proof on all other issues. § 362(g)(1) and (2). The evidence leaves something to be desired as far as certainty as to the values of the various assets, and the amounts which can be reasonably assured of collection over the near term from the Debtor's operations. Nevertheless, the Court is required, at this juncture, to attempt to establish those values in order to determine whether or not stay relief is appropriate. The total obligation to the Bank for purposes of this analysis is $279,000.00. The Court finds that the equipment collateral for the obligation (sans trailers) has a value of $18,500.00. The Court recognizes that these values may decline through ongoing depreciation 115 and use of the property, but has no evidence upon which to quantify that decline. Nor does it have evidence as to the value of other equipment collateral. The Court further finds the real estate held by the Debtor's principals and which secures the principals' guarantee of the total KRC obligation owed to the Bank has a value of approximately $160,000.00. This figure represents a discount of approximately 10 to 15% from the asserted fair market value of the property based upon the fact that the Debtor's estimates do not appear to include any costs for sale of the property and thus may well have overstated the net realizable value of this collateral to the Bank. There was no evidence presented as to any other impediments to the Bank's realizing upon this property. I find that the Bank's security interest in the ongoing proceeds generated by the Debtor's business has a value, at the present, of at least $75,000.00. This analysis relies primarily upon the evidence of the Debtor regarding the net profit expected from the ongoing work and from currently collectible jobs, including the 5% retainage. Subtraction of the $18,500.00 equipment and vehicle value, $160,000.00 net value of the real estate, and the $75,000.00 in work in progress, leaves an exposure to the Bank of $25,500.00. The Debtor's testimony, not disputed by the Bank, is that the Debtor has a $189,000.00 receivable from the State of Idaho. While it is in litigation, the Court has not been provided with any evidence which would establish that the entirety of the amount is uncollectible. It appears reasonable to assume, regardless of the factors of discount, aging or collectibility which might be applied, that the state and other receivables[6] would have enough value to cover the above-calculated projected deficiency of $25,500.00. At least for the purpose of the present motion, the Court finds that the Debtor's property is necessary for any effective reorganization of this Debtor's business, and that the Bank is adequately protected until such time as plan confirmation comes before the Court. The real estate securing the Cardwells' guarantee of the KRC debt is relevant to the issue of adequate protection under § 362(d)(1). While its value can be considered for this purpose, as was done above, it is not "property" in the sense of § 362(d)(2)(A), which concerns only "property of the estate" protected by the § 362(a) stay. It would therefore be inappropriate to include this real estate in calculating "equity" under § 362(d)(2)(A). Nevertheless, § 362(d)(2) requires the Court to find both that (A) Debtor has no equity in its property and (B) the property isn't required for an effective reorganization. While there might well be a question as to "equity" if valuing just KRC's pledged assets and not the Cardwells' realty, the Court finds that at this stage the Debtor has prevailed on the element of need under § 362(d)(2)(B). Debtor must still, however, move the case toward the "effective reorganization" contemplated by § 362(d)(2)(B). As noted above, the current analysis of value is for stay relief purposes, and may vary in the context of plan confirmation. § 506(a). Additionally, nothing in this decision varies the requirements of § 363. The Debtor may not use or dispose of any collateral, or any proceeds of collateral, without the Bank's express written consent or an order entered on notice to the Bank and hearing.[7] 116 ORDER Based upon the foregoing, the Motion for Relief from Stay of the Bank is DENIED, without prejudice. NOTES [1] Valuation under § 506(a) of the Code is driven by the proposed use of the property or the context in which valuation is determined. this value, as well as any other value today determined by the Court, may be revisited in the context of later proceedings in this case. The Court additionally notes that there is apparently other equipment owned by the Debtor which constitutes collateral for the Bank's obligation, though no party provided conclusive evidence as to its value. [2] These figures do not include Debtor's estimates of income or a profit from jobs being bid at the present time, though both the Debtor's exhibit and the testimony of the bookkeeper express confidence in Debtor's ability to increase the above figures. Nor do these figures include the specific "receivables" addressed later in this opinion. [3] Since the § 362(e) final hearing, Debtor has filed its amended disclosure statement and plan, and hearing on the adequacy of the disclosure statement is scheduled for October 26. Debtor also, by post-hearing pleading on September 28, profferred an additional account receivable as "adequate protection". This receivable is already collateral of the Bank, and Debtor admits litigation is required to realize upon it. The new proffer therefore adds little to the present analysis. [4] The Court was not provided copies of security documents on the Cardwells' "lake front" property. However, part of the Bank's Exhibit No. 1 is a document entitled "Hypothecation/Lent Collateral Agreement and Guaranty" dated May 6, 1994 which refers to the Cardwells' grant of a deed of trust on that date securing the KRC debt to the Bank. The Bank at no time during the hearing disputed that it held this additional security. [5] It is true, as the Bank contended, the Debtor earlier ascribed a $150,000.00 value to this real estate though that representation was disavowed at hearing by the Debtor's president who held to the $185,000.00 valuation. No independent evidence of value of the real estate was provided. [6] The latest "proffer" of accounts received, made contemporaneously with the filing of the Plan, is in the face amount of $33,354.35. See footnote 3. Debtor's exhibits, and its liquidation analysis in the disclosure statement, appear to show significant additional "receivables" but no evidence was presented regarding the net, presently realizable value of the same as collateral. Given other collateral available to the Bank, the Court need not at this stage reach the issue of valuing all the receivables. [7] There was evidence to the effect that the Debtor had previously sold collateral of the Bank. While it appears certain sales may have had at least the tacit approval of the Bank, through communication between Bank officers and Debtor's employees or principals, some dispositions may not have been authorized. The Court reserves the right to further consider the conduct of the Debtor in this regard as may be appropriate.	{ "pile_set_name": "FreeLaw" }
236 F.3d 968 (8th Cir. 2001) UNITED STATES OF AMERICA, APPELLEE,v.STEVEN CURTIS MCINTOSH, APPELLANT. No. 00-1035 UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT Submitted: September 12, 2000Filed: January 10, 2001 Appeal from the United States District Court for the Southern District of Iowa.[Copyrighted Material Omitted] Before Hansen, Heaney, and Morris Sheppard Arnold, Circuit Judges. Hansen, Circuit Judge. 1 Steven Curtis McIntosh pleaded guilty to a charge that he conspired to manufacture methamphetamine, in violation of 21 U.S.C. 846 (1994). On December 20, 1999, the district court1 sentenced McIntosh to twenty years in prison. McIntosh appeals his sentence, and we affirm. I. 2 A grand jury returned a seven-count, superceding indictment against McIntosh, Lenora ("Jean") Cresswell, John McMillan, and Amy Cresswell. The charges stemmed from an investigation that ensued after the September 12, 1998, death of Jessica Smith, Jean's 14-year-old daughter. Jessica's death resulted from a methamphetamine overdose. 3 The facts underlying the indictment are truly tragic. In June or July 1998, Jean, her 12-year-old son, and Jessica moved in with McIntosh. Jean initially agreed that she would take care of McIntosh's home if he would supply her with methamphetamine; the two later became romantically involved. McIntosh was privy to a methamphetamine supply because he and McMillan had been manufacturing the drug together since February 1998. McMillan and McIntosh split the manufactured methamphetamine evenly, and after Jean moved in, McIntosh provided the drug to her out of his half. The three shared their methamphetamine with others, including Amy Cresswell, Jean's 21-year-old niece. Amy often used methamphetamine with Jean, but she was also close to Jessica and spent a considerable amount of time with her. Jean and Amy frequently provided methamphetamine to Jessica, as did McMillan on a few occasions. McIntosh was unaware that the three were giving methamphetamine to Jessica. He, in fact, made it known that Jessica was not to be involved with methamphetamine nor was she to know that he and McMillan were manufacturing the drug. 4 On the afternoon of September 12, 1998, Amy and Jessica ingested methamphetamine together. Amy had been given a coffee filter, previously used in the manufacturing process, that contained residue methamphetamine. She and Jessica soaked the filter in a glass of Diet Coke and then split the concoction between them. Jessica later became unresponsive as McMillan, Amy, and Jessica were driving in a car. McMillan and Amy took Jessica to McMillan's home and later to the hospital where she died early the next morning. A search of McIntosh's home was executed later in the day. Officers conducting the search located items necessary to manufacture methamphetamine and further investigation ensued, resulting in the charges filed in the superceding indictment. 5 Pursuant to a plea agreement, McIntosh pleaded guilty to a charge that he conspired with Jean and McMillan to manufacture methamphetamine. McIntosh stipulated in his plea agreement that he was responsible for at least 500 grams of a mixture or substance containing methamphetamine, subjecting him to the penalties for manufacturing a controlled substance identified in 21 U.S.C. 841(b)(1)(A) (1994 & Supp. IV 1998). See 21 U.S.C. 846 (providing that a conspirator is subject to the penalties proscribed for the substantive offense underlying the conspiracy). Section 841(b)(1)(A)(viii) requires a "term of imprisonment which may not be less than 10 years or more than life and if death or serious bodily injury results from the use of such substance shall not be less than 20 years or more than life." The plea agreement left open for the district court's determination at sentencing whether McIntosh was subject to an enhanced sentence because of Jessica's death. (Plea Agreement, R. at 19, 10.) 6 The district court held a sentencing hearing on December 20, 1999, at which time the government offered evidence to show the enhancement to the mandatory minimum sentence was required pursuant to 841(b)(1)(A). After hearing the evidence, the district court made three factual findings essential to the issue: 1) Jessica's death resulted from the use of methamphetamine; 2) the methamphetamine used by Jessica on September 12, 1998, came from either Amy Cresswell, Jean Cresswell, or McMillan;2 and 3) regardless of which of the three supplied the methamphetamine, it "originally came" from McIntosh. The district court further found that the government failed to prove that McIntosh directly furnished Jessica with methamphetamine nor that he had any knowledge she was being supplied with the drug by the others. Despite the fact that he did not supply the drug directly to Jessica, the district court concluded McIntosh was subject to the enhancement because he played a part in manufacturing the drug she did use. The district court sentenced McIntosh to the statutory 20-year minimum sentence.3 II. 7 McIntosh challenges his sentence on two grounds. He first contends the district court erroneously enhanced his sentence based on Jessica's death. On appeal, McIntosh asks that we interpret 841(b)(1)(A) to permit imposition of the twenty-year mandatory minimum sentence only if a district court finds that death or serious bodily injury was a reasonably foreseeable result of, or was proximately caused by, a defendant's conduct. He argues the government failed to prove that Jessica's death was reasonably foreseeable, and therefore, the district court should not have enhanced his sentence.4 McIntosh also contends his sentence was imposed in violation of the constitutional protections recently recognized by the Supreme Court in Apprendi v. New Jersey, 120 S. Ct. 2348 (2000). A. 8 McIntosh's first argument presents us with a matter of statutory interpretation: whether 841(b)(1)(A)'s language, read in this case in conjunction with 846, requires a district court to find that death or serious bodily injury was reasonably foreseeable to a defendant before imposing the statutory enhancement. The starting point for ascertaining the intended meaning of any statute is the language of the statute itself. See United States v. McAllister, 225 F.3d 982, 986 (8th Cir. 2000) (quoting United States v. S.A., 129 F.3d 995, 998 (8th Cir. 1997)). If the language is unambiguous, the statute should be enforced as written unless there is clear legislative intent to the contrary. See id. "Courts are obligated to refrain from embellishing statutes by inserting language that Congress has opted to omit." Root v. New Liberty Hosp. Dist., 209 F.3d 1068, 1070 (8th Cir. 2000). In its review of the statutory language, the district court concluded that foreseeability was irrelevant to the enhancement inquiry and that its factual findings warranted an enhancement under 841(b)(1)(A). We review the conclusions de novo. See United States v. Brummels, 15 F.3d 769, 771 (8th Cir. 1994) ("As to application of facts to the legal interpretation of [a criminal statute], the standard of review is de novo."). 9 We begin our analysis with the language of 841(b)(1)(A)--the applicable penalty provision because McIntosh admitted responsibility for more than 500 grams of methamphetamine mixture. Under 841(b)(1)(A), a "person shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life and if death or serious bodily injury results from the use of such substance shall be not less than 20 years or more than life." We hold that this language is unambiguous and that giving effect to its plain meaning prohibits us from superimposing upon the statute a foreseeability or proximate cause requirement. From the statute's language, it is clear Congress intended to expose a defendant to a more severe minimum sentence whenever death or serious injury is a consequence of the victim's use of a controlled substance that has been manufactured or distributed by that defendant. We decline to hinder Congress's will, apparent from the face of the statute, through a judicial pronouncement that the statute requires more than it says. See Burlington N., Santa Fe Ry. Co. v. Lohman, 193 F.3d 984, 985 (8th Cir. 1999) (recognizing that rules of statutory construction prohibit courts from supplying words that "would defeat the purpose of the statute"), cert. denied, 120 S. Ct. 1832 (2000). 10 Our reading of 841(b)(1)(A) is consistent with decisions of both the Third and Fourth Circuits. The Fourth Circuit was the first to address the statutory enhancement for death or serious bodily injury. See United States v. Patterson, 38 F.3d 139 (4th Cir. 1994), cert. denied, 514 U.S. 1113 (1995). It, too, agreed that Congress's intent is clear from the plain language of the statute. 11 Quite simply, the plain language of [the statute] does not require, nor does it indicate, that prior to applying the enhanced sentence, the district court must find that death resulting from the use of a drug distributed by a defendant was a reasonably foreseeable event. . . . [Instead,] [t]he statute puts drug dealers and users on clear notice that their sentences will be enhanced if people die from using the drugs they distribute. . . . Where serious bodily injury or death results from the distribution of certain drugs, Congress has elected to enhance a defendant's sentence regardless of whether the defendant knew or should have known that death would result. We will not second-guess this unequivocal choice. 12 Id. at 145 (footnote omitted). The Third Circuit followed Patterson, concluding that "Congress recognized that the risk is inherent in [a controlled substance] and thus it provided that persons who distribute it do so at their peril." United States v. Robinson, 167 F.3d 824, 831 (3d Cir. 1999); see also 13 United States v. Rebmann, 226 F.3d 521, 525 (6th Cir. 2000) ("On its face, the statute is, in effect, a strict liability statute with respect to the injury or death of another arising out of the distribution of drugs. It is, of course, within the power of Congress to create a strict liability crime in some situations." (in dictum)).5 We agree with these courts' recognition that Congress intended 841(b)(1)(A)'s enhancement to apply without regard to the principles of proximate cause or the foreseeability of death or serious bodily injury. 14 The enhancement inquiry is not altered merely because McIntosh pleaded guilty to conspiracy to manufacture methamphetamine (rather than to a substantive violation of 841 itself) nor because Jessica obtained the drug directly from someone other than McIntosh. Section 846 provides that a defendant convicted of conspiracy "shall be subject to the same penalties as those prescribed for the [underlying] offense." In this case, the district court found that McIntosh played a direct part in manufacturing the drug ingested by Jessica.6 The underlying offense holds those who manufacture a drug strictly liable when death results from the manufactured drug. Accordingly, the district court was not required to find that Jessica's death was reasonably foreseeable to McIntosh before enhancing his sentence. In sum, when a conspiracy defendant plays a direct role in manufacturing or distributing a drug that results in death, Congress's intent under 846 is clear that the defendant is strictly liable under 841(b)(1)(A)'s enhancement scheme. 15 We are not faced in this case with a situation in which the government seeks to vicariously enhance a defendant's sentence based solely on the actions of a coconspirator or coconspirators, i.e., where a defendant has played no part in the underlying offense conduct to which the death or serious bodily injury can be attributed. The Sixth Circuit recently faced such a situation in United States v. Swiney, 203 F.3d 397 (6th Cir.), cert. denied, 120 S. Ct. 2678 (2000), a decision McIntosh urges us to adopt. In Swiney, the government appealed the sentences of nine defendants convicted of conspiracy to distribute heroin. It argued that under the Pinkerton doctrine, all were subject to the statutory enhancement because an individual died from an overdose of heroin purchased from a non-defendant member of the conspiracy.7 See id. at 399. The Swiney court rejected the argument as contrary to the Sentencing Guidelines treatment of conspiracy, U.S.S.G. 1B1.3(a)(1)(B) specifically.8 See id. at 402. The court reasoned that U.S.S.G. 1B1.3(a)(1)(B) prohibits consideration of a coconspirator's actions in sentencing a defendant unless the coconspirator's actions were in furtherance of the conspiracy and were reasonably foreseeable by the defendant. See id. at 403 (quoting United States v. Lanni, 970 F.2d 1092, 1093 (2d Cir. 1992)). Relying on numerous circuit decisions that apply U.S.S.G. 1B1.3(a)(1)(B) for purposes of determining whether drugs distributed by a coconspirator are attributable to a defendant under 841(b)'s quantity-dependent sentencing scheme, see, e.g., United States v. Jones, 965 F.2d 1507, 1517 (8th Cir.), cert. denied, 506 U.S. 924 (1992), the court remanded the case to the district court to conduct the Guidelines' foreseeability analysis to ascertain whether the nine defendants were subject to the enhancement. See id. at 405-06. 16 We find Swiney's reasoning applicable only in those cases in which a conspiracy defendant played no direct part in manufacturing the drug or in immediately distributing the drug that caused the death or serious bodily injury. If the government seeks to enhance a conspiracy defendant's sentence, as it did in Swiney, based solely on conduct of a coconspirator, a foreseeability analysis may be required in determining whether Congress intended, under 846, that the defendant be held accountable for the conduct of a coconspirator. See United States v. Martinez, 987 F.2d 920, 924 (2d Cir. 1993) ("Section 846 does not subject the defendant to liability for any crimes committed by any other members of the conspiracy, regardless of the defendant's knowledge about those crimes. To allow [such an] interpretation would be to expand dangerously the scope of conspiratorial culpability."); cf. Jones, 965 F.2d at 1517 (holding that a conspiracy defendant may only be sentenced based on drug quantities possessed and sold by coconspirators if their conduct was "(1) in furtherance of the conspiracy and (2) were either known to [the defendant] or were reasonably foreseeable to [him]"). This case, however, does not require us to decide whether we would adopt the Sixth Circuit's approach in Swiney if we were faced with analogous facts--McIntosh is subject to the enhancement based on his direct role in manufacturing the drug ingested by Jessica and is therefore strictly liable for her death. This case is not Swiney. 17 We turn briefly to two other non-meritorious arguments raised by McIntosh. First, he asks us to recognize that an intervening cause of death or serious bodily injury resulting from a controlled substance forecloses application of the statutory enhancement. We decline to reach the issue because McIntosh presents no facts establishing an intervening cause of Jessica's death. See Patterson, 38 F.3d at 146 (refusing to reach the same question). He argues Jessica's death resulted from methamphetamine derived from a source other than the conspiracy. His argument flies in the face of the district court's fact-finding to the contrary. As we have already said, see supra, at 973 n.6, there was ample evidence to support the district court's fact-finding that the drug Jessica ingested originated with McIntosh. Second, McIntosh asks us to hold that the enhancement applies only if a defendant intended to cause death or knowingly risked death. Our conclusion that the statute imposes strict liability upon McIntosh for Jessica's death vitiates that argument. B. Apprendi 18 We turn next to McIntosh's contention that his sentence was imposed in violation of Apprendi, an issue raised by McIntosh's counsel during oral argument. In Apprendi, the Supreme Court announced a newly-recognized, constitutional principle: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 120 S. Ct. at 2362-63. These constitutional protections are, according to the Court, afforded by the due process protections of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment. See id. at 2355 (discussing the principle as foreshadowed in Jones v. United States, 526 U.S. 227, 243 n.6 (1999)).9 McIntosh argues, in light of Apprendi, that his sentence was improperly enhanced because the district court employed a preponderance of the evidence standard, rather than a reasonable doubt standard, in ascertaining whether Jessica's death resulted from the use of methamphetamine for which McIntosh was responsible. 19 Because McIntosh entered a plea of guilty, he waived his right to a jury determination on all issues related to his prosecution. See United States v. Martinez-Cruz, 186 F.3d 1102, 1104 (8th Cir. 1999) (guilty plea constitutes a waiver of the constitutional right to a jury trial). By leaving open the issue of Jessica's death for determination by the district court at sentencing, however, he may have been entitled to hold the government to its constitutionally-required reasonable doubt burden of proof on the question, assuming Apprendi applies. See, e.g., Rebmann, 226 F.3d at 524-25 (although plea of guilty waives the right to a jury trial, a defendant does not waive the right to have the sentencing court determine factual issues beyond a reasonable doubt). But that is an issue we need not and do not decide because we conclude that Apprendi is inapplicable on two independent and alternative grounds. First and foremost, an enhancement based on a finding of death or serious bodily injury does not increase the statutory maximum sentence authorized by Congress under 841(b)(1)(A). Alternatively, the sentence McIntosh received did not exceed the maximum sentence authorized under 841(b)(1)(C), the penalty provision for the "offense simpliciter." 20 When a defendant is subject to 841(b)(1)(A)'s penalties because of the quantity of drug admitted by him, as is the case with McIntosh,10 the maximum statutory term of imprisonment authorized by Congress is life, regardless of whether death or serious injury results from use of the drug. See 21 U.S.C. 841(b)(1)(A). Because the finding as to death does not increase the statutory maximum already authorized by Congress based on the admitted drug quantity, Apprendi's protections are not implicated. See United States v. Chavez, 230 F.3d 1089, 1091(8th Cir.2000) (Apprendi does not apply when the statutory maximum is life, regardless of the challenged finding); United States v. Smith, 223 F.3d 554, 565-66 (7th Cir. 2000) (Apprendi is inapplicable where defendants faced a life sentence irrespective of the challenged factual finding made by the sentencing court); see also United States v. Aguayo-Delgado, 220 F.3d 926, 933 (8th Cir. 2000) (stating that Apprendi applies only if the challenged, non-jury sentencing finding increases the maximum sentence beyond the statutory range authorized by the offense of conviction), cert. denied, U.S., 121 S.Ct. 600, L.Ed.2d (2000). The death finding McIntosh challenges only increases the statutorily-required minimum term of imprisonment from 10 to 20 years. Although the Supreme Court may, and likely will, revisit the issue, the Court was careful to note in Apprendi that a fact which increases a mandatory minimum sentence (but not beyond the authorized statutory maximum) remains a sentencing factor and may be found by the sentencing court by a preponderance of the evidence. See Apprendi, 120 S. Ct. at 2361 n.13 (reserving for "another day" whether the Court's prior holding in McMillan v. Pennsylvania, 477 U.S. 79 (1986), runs afoul of the protections recognized in Apprendi); see also Aguayo-Delgado, 220 F.3d at 934 ("McMillan allows the legislature to raise the minimum penalty associated with a crime based on non-jury factual findings, as long as the penalty is within the range specified for the crime for which the defendant was convicted by the jury."). 21 As we indicated above, an alternative ground exists for our conclusion that Apprendi affords no further constitutional protections to which McIntosh was entitled. Congress has authorized a maximum sentence of 20 years imprisonment under 841(b)(1)(C), the penalty provision for the "offense simpliciter" (that is, the offense in its simplest form with no enhancements of any kind) as our brethren refer to it in Aguayo-Delgado, 220 F.3d at 933. However, as in Aguayo-Delgado, the district court's finding in this case did not increase McIntosh's sentence beyond 841(b)(1)(C)'s unenhanced ceiling, see id. at 934, hence, as in Aguayo-Delgado, Apprendi's protections are not implicated. III. 22 For the foregoing reasons, we affirm the judgment of the district court. Notes: 1 The Honorable Ronald E. Longstaff, Chief Judge, United States District Court for the Southern District of Iowa. 2 Amy testified that McIntosh gave her the filter containing the methamphetamine residue that she and Jessica used in the Diet Coke but that she had also received filters from Jean and McMillan in the past. Amy also testified that Jessica may have used, unbeknownst to her, methamphetamine from a stash kept in Amy's home on the same day the two ingested the methamphetamine from the filter. 3 The court arrived at a Sentencing Guidelines range of 240 to 262 months, based on a total offense level 37 and a criminal history category I. Although the sentencing range is 210 to 262 months at the relevant sentencing table intersection, the court determined that U.S.S.G. 5G1.1(c)(2) imposed a 240-month floor on McIntosh's range because of the applicable 20-year (240-month) statutory minimum sentence. The court computed the total offense level based on a base offense level 38 (required under U.S.S.G. 2D1.1(a)(2) when death results from use of a controlled substance), increased 2 levels because Jessica was a vulnerable victim, less 3 levels for McIntosh's acceptance of responsibility. The enhancement language of U.S.S.G. 2D1.1(a)(2) mirrors 841(b)(1)(A)'s language. 4 McIntosh urges us to interpret U.S.S.G. 2D1.1(a) similarly. Although the Guideline provision has little relevance under the circumstances--the district court determined a guideline range but imposed the 20-year minimum statutory sentence--we fail to see how the provision could be interpreted differently than the statute; the language is identical. 5 Robinson, Patterson, and Rebmann all addressed enhancements for death or serious injury under 841(b)(1)(C). The language in 841(b)(1)(A) is identical. 6 McIntosh challenges the district court's finding that he is responsible for the drug that resulted in Jessica's death. He asserts that he and McMillan had a falling-out in August 1998 (a month before Jessica's death) and ceased manufacturing methamphetamine together. He further asserts that McMillan "completed" the manufacturing process of the drug used by Jessica after the falling-out. In making its ruling, the district court accepted McIntosh's version of the facts, but found the drug was still attributable to him because he prepared, or helped prepare, the methamphetamine up to the point at which McMillan could complete it. There was also evidence presented that McMillan split the final batch with McIntosh after it was complete and that the manufacturing equipment belonged to the both of them. Based on this evidence, we conclude the district court's factual finding is supported by the record and did not amount to clear error. See United States v. Robinson, 217 F.3d 560, 565 (8th Cir.) (standard of review), cert. denied, U.S., 121 S.Ct. 497, L.Ed.2d (2000). 7 Under the Pinkerton doctrine, "each member of a conspiracy may be held criminally liable for any substantive crime committed by a co-conspirator in the course and furtherance of the conspiracy, even though those members did not participate in or agree to the specific criminal act." United States v. Golter, 880 F.2d 91, 93 (8th Cir. 1989) (citing Pinkerton v. United States, 328 U.S. 640 (1946)). 8 U.S.S.G. 1B1.3(a)(1) identifies relevant conduct for which a defendant may be sentenced: (B) in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity. 9 In Jones, the Supreme Court noted that any fact that increases the maximum statutory penalty must also be charged in the indictment. See 526 U.S. at 243 n.6. In Apprendi, the Court declined to reach the indictment question because the defendant did not assert that the indictment returned by the grand jury was constitutionally defective. See 120 S. Ct. at 2355-56 n.3. Because we conclude Apprendi's protections are inapplicable, we find no reason to further address the indictment question left open by the Court. 10 This court has previously held that a defendant cannot later challenge the applicability of a sentencing provision when he "voluntarily and explicitly" bargained for its application in his plea agreement and had full knowledge of the potential sentence he faced under the provision. See United States v. Nguyen, 46 F.3d 781, 783 (8th Cir. 1995); United States v. Fritsch, 891 F.2d 667, 668 (8th Cir. 1989); see also United States v. Barrett, 173 F.3d 682, 684 (8th Cir. 1999) (denying defendant's challenge to drug quantity to which he stipulated in a plea agreement). Here, McIntosh clearly agreed in his plea agreement that he was to be sentenced under 841(b) based on his responsibility for 500 grams or more of a mixture or substance containing methamphetamine and acknowledged that he faced a prison term of 10 years to life, with a mandatory minimum of 20 years if the district court found that Jessica's death resulted from methamphetamine attributable to him. The maximum sentence of life and the death-enhanced mandatory minimum were both explained to McIntosh at his arraignment. (Audio Tape: Arraignment held on Jan. 19, 1999, before Magistrate Judge Thomas J. Shields.) 23 HEANEY, Circuit Judge, concurring separately. 24 I concur fully in Sections I and II.A. of the court's opinion, but I concur with respect to Section II.B. only on the alternate ground set forth in the last paragraph in that section of the opinion.	{ "pile_set_name": "FreeLaw" }
Case: 17-13073 Date Filed: 04/29/2019 Page: 1 of 31 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 17-13073 ________________________ D.C. Docket No. 8:15-cv-00283-JSM-AEP JENNIFER JENKINS, Plaintiff-Appellant, versus S. DAVID ANTON, PA, d.b.a. Anton Legal Group, S. DAVID ANTON, individually, Defendants-Appellees. ________________________ Appeal from the United States District Court for the Middle District of Florida ________________________ (April 29, 2019) Before TJOFLAT, MARCUS, and, NEWSOM, Circuit Judges. TJOFLAT, Circuit Judge: Jennifer Jenkins worked as a paralegal for David Anton for about nine months. She had a flexible work schedule, and records of the hours she worked Case: 17-13073 Date Filed: 04/29/2019 Page: 2 of 31 were not kept. After her employment ended, Jenkins sued Anton and his law firm for unpaid overtime wages under the Fair Labor Standards Act. The case was tried to the District Court, which entered judgment in favor of Anton. Jenkins moved for relief under Rules 59 and Rule 60 of the Federal Rules of Civil Procedure. Her motion was denied, and she appealed. On appeal, she says the District Court abused its discretion by denying relief under Rule 59 and Rule 60. She also argues that the Court misapplied the legal standard in ruling against her, and she claims the Court should have recused. We affirm. We divide our discussion into three parts. First, we set out the evidence that was presented to the District Court during the bench trial. Second, we consider the arguments on appeal. Third, we conclude. I. We refer to Jenkins as “Employee” and Anton as “Employer” for convenience. A. The parties stipulated to a bench trial. Almost two weeks thereafter, Employee filed a notice of disclosure with the District Court. There, she notified the District Court that Employer had represented the District Judge’s ex-wife in the couple’s divorce proceedings. Employee never asked the District Judge to recuse, and he continued to preside over the case. The case proceeded to trial. 2 Case: 17-13073 Date Filed: 04/29/2019 Page: 3 of 31 At trial, the parties told two very different stories. According to Employee, she typically arrived in the office by 8:15 a.m. and left sometime between 6:30 p.m. and midnight. She said she worked about 70 hours a week. Altogether, she claimed that she worked 711 hours of unpaid overtime. (This was a revised calculation; she originally claimed 1078.88 hours but reduced the number at trial after reviewing documents she received in discovery and after subtracting vacation-related time.) To support her claim for overtime, Employee introduced into evidence emails that she sent Employer after normal business hours and on weekends. She also argued that these emails were probably just a subset of all the emails she sent after hours. She didn’t have all of the emails because soon after she left the law firm, her successor deleted many of her emails. Employer told a different story. He said that Employee originally agreed to work a fixed schedule. But the schedule became more flexible, according to Employer, because Employee took a lot of time off and worked later hours to make up the time. He didn’t keep a record of the hours she worked, but he testified that she never worked more than 40 hours a week. He gave a few reasons why he believed that. First, Employer said that Employee’s predecessor never worked “anywhere near 40 hours a week.” (Employee’s predecessor did not testify, and that becomes important later.) Employee’s successor never worked overtime, either. Second, he explained that his practice was slow while Employee worked 3 Case: 17-13073 Date Filed: 04/29/2019 Page: 4 of 31 for him. 1 Third, he noted that he could see her office from his, and he saw her studying—not working—at times. 2 Employer also addressed the emails that Employee sent after hours and on the weekends: he said it would not have taken Employee more than a few minutes to type those emails and to send them to him. They were short emails. Other witnesses echoed Employer’s testimony. For example, the firm’s bookkeeper—who came in two days a week, four hours each day, the entire time Employee worked at the firm—never saw Employee working at a “harried pace.” Nor did the bookkeeper ever notice Employee being pressed for time at work. In the bookkeeper’s opinion, there was not enough work at the firm to fill even 40 hours of Employee’s time each week. And Employee never told the bookkeeper that she was working overtime and should be paid for it, even though the bookkeeper was the one who told the payroll company how many hours each employee should be paid for, which Employee knew. Another witness bolstered Employer’s testimony. This witness worked for a different lawyer, but she shared the same office space as Employee for three months. She said that Employee’s workload was “[n]ot particularly heavy”; most 1 Employer introduced billing records from several years to support this statement. In 2011, his firm billed 1883 hours. In 2012, his firm billed 1809 hours. In 2013—the year Employee worked for him—his firm billed 1342 hours. And in 2014, his firm billed 1851 hours. 2 Employee was taking college classes while working for Employer. 4 Case: 17-13073 Date Filed: 04/29/2019 Page: 5 of 31 of the clients belonged to the lawyer she worked for and not Employer. And Employee did not work on matters related to those clients. The witness explained that her boss eventually left the firm, and Employer kept her on for a while. There was not enough client-related work to keep the witness busy, so Employer asked her to clean the office and to organize rooms. Employer eventually had to let the witness go because there was not enough work for her to do. The same witness also replaced Employee when she left Employer’s law firm. Despite taking over all of Employee’s responsibilities, and despite having less paralegal experience than Employee, the witness did not work overtime for Employer. Finally, Employer’s current paralegal testified. She said that Employer had about 15 active cases that she worked on. With that caseload—which was similar to Employer’s caseload while Employee worked for him—she had never worked overtime. 3 In fact, the witness said, she didn’t even work 40 hours a week. As is apparent from our discussion thus far, much of the testimony was pretty vague and generic. But the parties did testify more specifically about the work Employee did—or didn’t do—during an arbitration that Employer handled and Employee attended. The arbitration lasted four days, Tuesday through Friday. 3 Employer testified that he had 17 active cases when Employee started. He said that he typically has anywhere from 12 or 15 to 20 active cases at one time. 5 Case: 17-13073 Date Filed: 04/29/2019 Page: 6 of 31 The parties agreed that Employee worked the Saturday and Sunday before the arbitration. But Employer said that Employee “took a lot of time off” during the normal workweek (Monday through Friday) that preceded the weekend. (As we explain below, it is important whether the hours Employee worked on Sunday count as part of her workweek for the week of the arbitration, or if they count as part of the prior workweek.) Employee claimed she worked “13 or 14 hours” the Monday before the arbitration. As for the arbitration itself, each day had a three-hour morning session, followed by an hour-and-a-half lunch break, and a three-hour afternoon session. During lunch, Employer and Employee stayed at the facility and ate with their expert witness. Both parties agreed that they talked about the case during lunch. Employee testified that she worked “about 70 hours” or “[a] little over 70 hours”— like she did “most weeks”—the week of the arbitration. B. The District Court resolved the he-said-she-said swearing match in Employer’s favor. It concluded that Employer’s “testimony [was] more credible because it better matche[d] the other evidence . . . , particularly the testimony of other employees.” Based on this credibility determination, the Court found that Employee did not prove that she worked more than 40 hours in any given workweek. 6 Case: 17-13073 Date Filed: 04/29/2019 Page: 7 of 31 The Court explained some of the evidence that supported Employer’s version of events. It noted that the firm billed fewer hours the year that Employee worked there than it did the two years before Employee came on and the year after she left. This was consistent with Employer’s claim that business was slower than normal while Employee worked for him. The Court also found that Employer’s description of his practice was consistent with the bookkeeper’s; the bookkeeper said that Employer’s practice was not busy compared to other lawyers she worked for, and she never noticed Employee rushing or working through lunch. Employer’s version was also consistent with the testimony of Employee’s successor. The Court pointed out that Employer had the successor do “busy work” during the three months that she overlapped with Employee, and this was because Employee needed no help with paralegal work. The successor also said that the workload was light when she took over for Employee, and she never worked through lunch or on a weekend. And finally, Employer’s current paralegal testified that she never came close to working overtime. The Court discounted the emails that Employee sent after normal business hours because many of them would have taken Employee no more than “two or three minutes to draft.” Others were unrelated to work or asked for time off. The Court said the closest Employee came to proving that she worked overtime was the week of the arbitration. It found that the time Employee worked the Saturday 7 Case: 17-13073 Date Filed: 04/29/2019 Page: 8 of 31 before the arbitration did not make up for the time she took off earlier in the week. The Court said Employee’s claim that she worked late the Monday before the arbitration was “conclusory” because she didn’t identify any work she did. It also rejected Employee’s claim that the lunches during the arbitration were working lunches because she didn’t point to any work she did and said only that they talked about what happened during the morning sessions. And finally, Employee’s claim that she worked late nights during the arbitration suffered a similar fate: the Court rejected it because Employee didn’t identify any work she did. Employee moved for relief under Rule 59 and Rule 60 based on several grounds. The District Court denied the motion, and Employee appealed. We explain below why the District Court denied relief under Rule 59 and Rule 60. II. Employee makes four arguments on appeal: (1) the District Court abused its discretion by denying relief under Rule 59, (2) the District Court abused its discretion by denying relief under Rule 60, (3) the District Court misapplied the legal standard when it found that Employee did not prove she worked overtime, and (4) the District Court abused its discretion by not recusing sua sponte. We take up each argument separately. 8 Case: 17-13073 Date Filed: 04/29/2019 Page: 9 of 31 A. Employee moved the District Court to alter or amend the judgment under Rule 59(e).4 Alternatively, she moved to open the judgment under Rule 59(a)(2) or for a new trial under Rule 59(a)(1)(B). 5 We first set out the relevant legal standards and then consider Employee’s arguments. 1. Under Rule 59(e), a district court may “alter or amend a judgment.” Fed. R. Civ. P. 59(e). There are no specific grounds for relief listed in Rule 59(e). But we have said that a district court may alter or amend a judgment that is based on “manifest errors of law or fact.” See Metlife Life & Annuity Co. of Conn. v. Akpele, 886 F.3d 998, 1008 (11th Cir. 2018). The Rule 59(e) motion looks back at 4 Rule 59(e) reads as follows: “(e) Motion to Alter or Amend a Judgment. A motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.” Fed. R. Civ. P. 59(e). 5 Here are the relevant parts of Rule 59(a): Rule 59. New Trial; Altering or Amending a Judgment (a) In General. (1) Grounds for New Trial. The court may, on motion, grant a new trial on all or some of the issues—and to any party—as follows: ... (B) after a nonjury trial, for any reason for which a rehearing has heretofore been granted in a suit in equity in federal court. (2) Further Action After a Nonjury Trial. After a nonjury trial, the court may, on motion for a new trial, open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new ones, and direct the entry of a new judgment. Fed. R. Civ. P. 59(a). 9 Case: 17-13073 Date Filed: 04/29/2019 Page: 10 of 31 what was; it does not look forward at what could have been. For this reason, a district court should not grant relief under Rule 59(e) after a nonjury trial based on newly discovered evidence.6 We review a district court’s decision on a Rule 59(e) motion for abuse of discretion. Jacobs v. Tempur-Pedic Int’l, Inc., 626 F.3d 1327, 1343 n.20 (11th Cir. 2010). Rule 59(a)(2), by contrast, does look forward at what could have been. It says that “[a]fter a nonjury trial, the court may, on motion for a new trial, open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new ones, and direct the entry of a new judgment.” 6 This is not to say a party is out of luck if it wants to present newly discovered evidence after a nonjury trial. Our point is only that Rule 59(e) is the wrong vehicle. Indeed, Rule 59(a)(2) specifically allows a district court to open the judgment, take additional evidence, amend its findings of fact and conclusions of law, and enter a new judgment. Rule 60(b)(2) reinforces this reading of Rule 59(e): Rule 60. Relief from a Judgment or Order (b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: ... (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b)[.] Fed. R. Civ. P. 60(b) (emphasis added). Rule 59(b) simply says how many days—after judgment is entered—that a party has to file a motion for new trial under Rule 59(a). So, Rule 60(b)(2) supports our reading of Rule 59(e) because Rule 60(b)(2) strongly suggests that Rule 59(a) is the proper vehicle for a new motion based on newly discovered evidence. But if the party discovers the new evidence more than 28 days after judgment is entered and misses the Rule 59 cutoff, see Rule 59(b), the party may then move for relief under Rule 60(b). 10 Case: 17-13073 Date Filed: 04/29/2019 Page: 11 of 31 Fed. R. Civ. P. 59(a)(2). A party should use this vehicle if it wants to present newly discovered evidence after a nonjury trial. See supra note 6. And under Rule 59(a)(1)(B), a district court may grant a new trial “after a nonjury trial, for any reason for which a rehearing has heretofore been granted in a suit in equity in federal court.” Fed. R. Civ. P. 59(a)(1)(B). As relevant for our purposes, a district court may grant a new trial if “the verdict . . . will result in a miscarriage of justice.” 7 Hewitt v. B.F. Goodrich Co., 732 F.2d 1554, 1556 (11th Cir. 1984) (quoting United States v. Bucon Constr. Co., 430 F.2d 420, 423 (5th Cir. 1970)). We also review a district court’s decision on a Rule 59(a) motion for abuse of discretion. See id. 2. Employee argued that she was entitled to relief based on three grounds: (1) a previously unavailable witness was now available, (2) a newly discovered email that showed possible spoliation, and (3) errors related to the Court’s finding that she did not work overtime the week of the arbitration. In effect, she argued that relief was appropriate under all three subsections—Rule 59(e), Rule 59(a)(2), and Rule 59(a)(1)(B)—based on each of the three claimed grounds. 8 We consider each 7 A district court may also grant a new trial under Rule 59(a) if “the verdict is against the clear weight of the evidence.” Hewitt v. B.F. Goodrich Co., 732 F.2d 1554, 1556 (11th Cir. 1984) (quoting United States v. Bucon Constr. Co., 430 F.2d 420, 423 (5th Cir. 1970)). 8 We should note that Employee made her arguments to the District Court without tying them to the proper Rules. Instead, she made her arguments and then dumped at the end a cite to 11 Case: 17-13073 Date Filed: 04/29/2019 Page: 12 of 31 ground—and whether it triggers relief under Rule 59(e), Rule 59(a)(2), or Rule 59(a)(1)(B)—separately. i. First, Employee asked the District Court to grant relief because her predecessor, an “impeachment witness,” was unable to testify during the trial. We begin with Rule 59(e) and make quick work of it. The testimony of Employee’s predecessor is additional evidence. Call it evidence from a previously “unavailable witness”—as Employee called it before the District Court—or call it newly discovered evidence—as Employee calls it on appeal. The point is that the testimony is additional evidence; it’s not a mistake in the judgment. Thus, relief under Rule 59(e) is inappropriate. Now for Rule 59(a)(2). According to Employee, the District Court relied on Employer’s testimony in deciding the case in Employer’s favor. And during Employer’s testimony, he said that his office was not busy enough to require overtime, and he said that Employee’s predecessor never worked any overtime. In turn, Employee planned to “attack [Employer’s] credibility” on this issue by calling her predecessor as a witness. Her predecessor, Employee said, would “directly rebut” Employer by testifying that she regularly worked 20 hours of Rule 59(e), Rule 59(a), and Rule 60(b). To impose necessary structure, we pick her arguments that belong under each Rule and analyze them separately. 12 Case: 17-13073 Date Filed: 04/29/2019 Page: 13 of 31 overtime during her employment. Employee coordinated with Court personnel so that her predecessor (who lived in Chicago) could testify by videoconference. But after the trial began, it was continued, 9 and Employee was unable to contact or locate her predecessor when the trial picked back up a month later. As it turned out, her predecessor had been in the hospital and had no access to her phone or email. Oddly, Employee never brought any of this to the District Court’s attention. Nor did she ask for a continuance so that she could locate this important witness. Employee kept the issue to herself apparently because she did not know why her predecessor was unavailable to testify. And because she didn’t know why her predecessor was unavailable, she apparently thought she couldn’t notify the District Court or ask for a continuance. The District Court never raised the issue with the parties because it had no way of knowing that Employee planned to call this witness. Indeed, Employee never listed her predecessor on her trial witness list. And this must have been strategic because Employee knew—more than a year before the trial started—that Employer would say (if asked) that Employee’s predecessor never worked 9 Employee asked for a continuance because her son suffered a traumatic brain injury after the first day of trial. The Court granted the continuance, and things resumed about a month later. 13 Case: 17-13073 Date Filed: 04/29/2019 Page: 14 of 31 overtime. And Employee knew this because Employer said as much in his deposition. To sum up, Employee knew well before trial that, if asked, Employer would say that Employee’s predecessor never worked overtime. So, Employee had her predecessor waiting in the wings, planning to call her to flatly contradict Employer’s sworn testimony. Yet she never tried—at least not on the record before the District Court—to call her predecessor as a potential witness. As we said above, Rule 59(a)(2) is the proper vehicle if a party wants to present newly discovered evidence after a nonjury trial. But this evidence— despite Employee’s label for it—is not newly discovered. Quite the opposite. Employee was making plans and setting up the logistics to call her predecessor as a witness before the trial began. The only thing that is “new” about the testimony from Employee’s predecessor is that she’s finally available to give it. 10 But this 10 There’s one thing we should point out on the topic of newly discovered evidence. On appeal, the parties spend a lot of time arguing about how to label the testimony of Employee’s predecessor. On the one hand, Employee says that her predecessor’s testimony potentially shows that Employer committed perjury. On the other hand, Employer says that the testimony is impeachment only. This perjury-or-impeachment distinction would matter if the testimony from Employee’s predecessor were newly discovered evidence. This is because, as the parties agree, newly discovered evidence does not trigger Rule 59 relief if that evidence simply impeaches other testimony or evidence. See Davis v. Yellow Cab Co. of St. Petersburg, 220 F.2d 790, 792 (5th Cir. 1955) (Davis is binding because in Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), this Court adopted as binding precedent all decisions of the former Fifth Circuit handed down by the close of business on September 30, 1981). But this general rule does not apply when the newly discovered evidence potentially shows perjury. See United States v. Espinosa-Hernandez, 918 F.2d 911, 913–14 (11th Cir. 1990). 14 Case: 17-13073 Date Filed: 04/29/2019 Page: 15 of 31 does not help Employee, either, which takes us to the miscarriage-of-justice argument she made to the District Court. In her motion to the District Court, Employee argued that it would be a “miscarriage of justice” if her predecessor were not allowed to testify. Her predecessor would “directly challenge” the reliability of Employer’s testimony, and the District Court, according to Employee, relied heavily on Employer’s credibility. The District Court rejected the argument: “[T]here is no miscarriage of justice when [Employee’s] inability to present [her predecessor’s] testimony was due to [Employee’s] strategic choices.” The Court noted that Employee was not surprised by Employer’s testimony because he gave the same testimony in his deposition. And the Court pointed out that Employee coordinated with her predecessor “in preparation for trial.” The Court summed up with this: “If [Employee] wanted to ensure that the Court benefitted from [her predecessor’s] testimony, she should have taken [her predecessor’s] deposition and entered it into evidence.” The District Court denied relief under Rule 59(a) because “impeachment evidence is not sufficient to warrant a new trial.” So, the parties understandably devote a good deal of the briefing to this issue. But because we find that the evidence is not newly discovered, we need not wade into the perjury-or-impeachment issue. 15 Case: 17-13073 Date Filed: 04/29/2019 Page: 16 of 31 The District Court did not abuse its discretion by denying relief under Rule 59(a)(2). Specifically, there’s no miscarriage because Employee made a strategic decision—to rest her case without asking for a continuance so that she could call her predecessor—and it backfired. And we know it was a strategic decision because nothing prevented Employee from raising the issue with the District Court and asking for a continuance. She claimed that she could not ask for a continuance because she did not know why her predecessor was unavailable. But the District Court could have granted a continuance if Employee made a showing of “good cause.” M.D. Fla. Local Rule 3.09(a). And nothing in the local rules requires a party to explain why a witness is unavailable when asking for a continuance because an important witness is unavailable. Perhaps the District Court would have denied the request for a continuance—after all, Employee would have needed to explain why she left her predecessor off her witness list—but nothing prevented Employee from at least raising the issue. Now, with the benefit of hindsight, and with the benefit of knowing that the District Court rejected her position at trial, Employee says her predecessor’s testimony is indispensable. Without it, she says, there’s a miscarriage a justice. We disagree. Here, Rule 59(a)(2) relief is inappropriate because Employee (1) knew about the testimony, (2) did not ask for a continuance, (3) hoped for the best, and (4) now, with the benefit of hindsight, asks for a second bite at the apple. 16 Case: 17-13073 Date Filed: 04/29/2019 Page: 17 of 31 * * * We quickly pause to make an obvious observation: when a party asks for relief under Rule 59(a)(2) based on newly discovered evidence, the evidence must in fact be newly discovered. This case shows why. If we endorsed Employee’s theory, parties would be incentivized to strategically manipulate Rule 59(a)(2). They would do so by rolling the dice and trying their case without a witness that they knew about well before trial. Then, they would wait and see if they won. Next, if they lost, they would run to the District Court asking for relief under Rule 59. Conveniently, that witness they chose not to call is—all of sudden—necessary for a full and complete trial. But odds are, if the witness really is necessary for a full and complete trial, the party would have presented the witness at trial. Or, if the witness was unavailable, the party would have at least asked for a continuance. If the party is willing to chance it by going to trial without the witness, we doubt that the witness is really that helpful. Even if the party’s after-the-fact request for relief says otherwise. In any event, Rule 59(a)(2) does not reward parties who roll the dice with this wait-and-see approach. ii. Second, Employee asked the District Court to grant relief because she discovered evidence after the trial that suggests Employer might have intentionally deleted evidence. We again begin with Rule 59(e), and we again make quick work 17 Case: 17-13073 Date Filed: 04/29/2019 Page: 18 of 31 of it. Relief under Rule 59(e) is inappropriate because the ground for relief is newly discovered evidence. Now for Rule 59(a)(1)(B) (new trial) and Rule 59(a)(2) (open the judgment on a motion for new trial). The newly discovered evidence was an email that Employer allegedly sent to his IT specialist two months after Employee filed this lawsuit.11 In the email, Employer asked his IT specialist to “delete all emails from 2014 and earlier” from the server’s deleted items folder. In her brief to the District Court, Employee argued that this evidence looked “like a deliberate attempt by [Employer] to destroy material information.” And because Employer did not turn the email over during discovery, Employee was unable to explore whether Employer engaged in spoliation. The District Court rejected the argument. It concluded that Employee did not “satisfactorily” explain how her approach would have changed if she had seen the email before trial. The Court reasonably guessed that Employee would use the email to impeach Employer, but it explained that impeachment evidence isn’t sufficient grounds for granting a new trial. Next, the Court assumed that the email showed spoliation and asked whether applying an evidentiary presumption—that the deleted emails contained 11 Employee says she received this email via U.S. mail two days after the District Court entered judgment in Employer’s favor. She claims there was no return address or other information on the envelope showing who sent it. 18 Case: 17-13073 Date Filed: 04/29/2019 Page: 19 of 31 information that was unfavorable to Employer—would change the outcome of the trial. It held that the evidentiary presumption wouldn’t change anything. The Court explained that Employee never claimed that the allegedly deleted emails would prove that she worked overtime. It said that, at best, the emails would show that Employee sent or received additional emails outside normal business hours. But the Court said it was aware during trial that additional emails like that might have existed; indeed, the Court heard testimony that Employee’s successor deleted emails soon after Employee was terminated. Plus, there were emails introduced at trial showing that Employee sent or received emails outside normal working hours. Thus, the Court reasoned, additional emails would have been cumulative. Finally, the Court explained that the email evidence would not prove that Employee worked overtime because there was evidence showing that she had a “flexible work schedule” and often took time off during normal hours. Nor could the email evidence overcome “significant testimony” from other witnesses. Two of these witnesses overlapped with Employee’s time at the firm and testified that there was not enough work for Employee to work overtime. And two witnesses who succeeded Employee testified that they never even “came close” to working overtime. Relief under Rule 59(a)(1)(B) and Rule 59(a)(2) is inappropriate because the email would not have affected the outcome of the trial. See, e.g., 11 Charles Alan 19 Case: 17-13073 Date Filed: 04/29/2019 Page: 20 of 31 Wright et al., Federal Practice & Procedure § 2808 (3d ed. Nov. 2018) (“Evidence that will not change the result does not merit a new trial [under Rule 59(a)]. Thus, newly discovered evidence that would merely affect the weight and credibility of the evidence ordinarily is insufficient for a new trial, as is evidence that is cumulative of evidence already offered.” (footnotes omitted)). In light of the entire record, the District Court reasonably concluded that the outcome of the trial would have been the same, even if the email showed spoliation and the Court applied an evidentiary presumption against Employer. Thus, the District Court did not abuse its discretion by denying relief under Rule 59(a)(1)(B) and Rule 59(a)(2) based on the newly discovered email. 12 iii. Third, Employee argued that the District Court should grant relief because the judgment was based on manifest errors of law or facts. We begin with Rule 59(e). The Court erred, Employee argued, by finding that she did not work overtime during the arbitration in May of 2013. In making that finding, the Court overlooked the hours she worked the Sunday before the arbitration. If the Court had considered the hours Employee worked on Sunday, and if the Court had 12 Employee does not seriously argue otherwise. She argues only that Employer’s “actions prevented [her] from exploring whether [Employer] deliberately spoliated evidence or seeking sanctions.” The is the exact argument the District Court rejected, and Employee does not explain why the District Court’s rejection amounts to an abuse of discretion. 20 Case: 17-13073 Date Filed: 04/29/2019 Page: 21 of 31 applied “the most favorable workweek standard” to her,13 it would have concluded that she worked overtime the week of Sunday, May 19, 2013, through Saturday, May 25, 2013. This is a proper Rule 59(e) argument. The District Court agreed that it erred by overlooking the hours that Employee worked the Sunday before the arbitration. But it found that the error was harmless because it concluded Employee’s workweek ran Monday through Sunday, not Sunday through Saturday. The Court found that “[i]t is more reasonable to conclude that the workweek started on Monday, given that the Parties described [Employee’s] weekly work schedule as starting on Monday mornings.”14 Thus, the hours that Employee worked the weekend before the arbitration did not count toward the number of hours she worked the week of the arbitration. Instead, those weekend hours counted toward the number of hours that Employee worked the week before the arbitration. And because Employer testified that Employee took more time off at the beginning of that week than she worked on the weekend, the Court found that Employee did not work overtime the week before the arbitration. 13 A “workweek is a fixed and regularly recurring period of . . . seven consecutive 24– hour periods” that “need not coincide with the calendar week but may begin on any day and at any hour of the day.” 29 C.F.R. § 778.105. Employee did not explain why the Court should apply the workweek standard that was most favorable to her—Sunday to Saturday—instead of the standard that was supported by the evidence. 14 The Court also noted that Employee did not cite any authority to support her argument that the workweek started on Sunday rather than Monday. 21 Case: 17-13073 Date Filed: 04/29/2019 Page: 22 of 31 The District Court’s finding that Employee’s workweek ran Monday to Sunday is a finding of fact that we review for clear error. See Renteria-Marin v. Ag-Mart Produce, Inc., 537 F.3d 1321, 1324 (11th Cir. 2008) (“We review factual findings made by a district court after a bench trial for clear error, which is a highly deferential standard of review.”). Under the Fair Labor Standards Act, overtime is calculated on a workweek basis. See 29 U.S.C. § 207(a)(1); 29 C.F.R. § 778.103. “An employee’s workweek is a fixed and regularly recurring period of . . . seven consecutive 24– hour periods” that “need not coincide with the calendar week but may begin on any day and at any hour of the day.” 29 C.F.R. § 778.105. The District Court did not clearly err in finding that Employee’s workweek ran Monday to Sunday. The parties presented little evidence at trial on this issue. When asked whether he had a regularly recurring period of seven days that would amount to a workweek, Employer said he was “not sure.” Employer said he paid Employee twice a month, but he didn’t know exactly how to classify the workweeks that made up the pay periods. Employee testified that her employment began on a Monday. On balance, the record supports a finding that the workweek began on Monday. Employee argues that it was “more reasonable” to find that the workweek began on Sunday. But even if that were true, given the lack of evidence, we would not be “left with the definite and firm conviction” that the 22 Case: 17-13073 Date Filed: 04/29/2019 Page: 23 of 31 District Court erred. See Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S. Ct. 1504, 1511 (1985) (explaining when a finding of fact is clearly erroneous) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 542 (1948)). Thus, the District Court did not abuse its discretion by denying relief under Rule 59(e) based on its finding that the workweek began on Monday. Finally, the District Court was correct to deny relief under Rule 59(a), because Employee did not make any Rule 59(a) arguments based on the Court’s workweek finding of fact. * * * Employee makes one more argument related to the arbitration.15 The arbitration lasted four days; each day had a three-hour morning session, a break for lunch, and a three-hour afternoon session. In finding that Employee did not work overtime during the week of the arbitration, the District Court found that the breaks for lunch did not count toward overtime. The Court said that Employee’s “contention that lunch each day was a ‘working lunch’ is unsupported” because “[s]he d[id] not identify any work that was performed.” 15 It’s not a Rule 59 argument because Employee didn’t raise it in her Rule 59 motion. But we’ve included it in the Rule 59 section because it fits naturally with our discussion of whether the District Court erred in finding that Employee did not work overtime the week of the arbitration. 23 Case: 17-13073 Date Filed: 04/29/2019 Page: 24 of 31 Employee argues that the District Court erred by excluding the lunches from the overtime calculation because lunches during work count toward overtime unless the employee is “completely relieved from duty for the purposes of eating regular meals.” 29 C.F.R. § 785.19(a). And the “employee is not relieved if [s]he is required to perform any duties, whether active or inactive, while eating.”16 Id. Interpreting 29 C.F.R. § 785.19, we have said that “what matters in meal period cases is whether the employees are subject to real limitations on their personal freedom which inure to the benefit of their employer.” Avery v. City of Talladega, 24 F.3d 1337, 1345 (11th Cir. 1994) (quoting Kohlheim v. Glynn County, 915 F.2d 1473, 1477 n.19 (11th Cir. 1990)). So, unlike the District Court’s Order suggests, Employee was not necessarily required to identify any “work” that she performed during lunch. That said, the District Court’s finding of fact—which we review for clear error, see Renteria-Marin, 537 F.3d at 1324—that the lunches did not count is not clearly erroneous. Again, the parties presented little evidence on this issue at trial. Employee never said whether she was required to perform any duties during the lunch. Nor did she identify any limitations on her freedom. See Avery, 24 F.3d at 1345. She said only that they stayed at the facility through lunch, and they “talked about what [they] were doing.” She also said they 16 That said, the regulation also makes clear that “[b]ona fide meal periods are not worktime.” 29 C.F.R. § 785.19(a). 24 Case: 17-13073 Date Filed: 04/29/2019 Page: 25 of 31 ate with the expert and talked about work “the entire time.” On this record, we’re not definitely and firmly convinced that the District Court made a mistake. See Anderson, 470 U.S. at 573, 105 S. Ct. at 1511. B. In addition to Rule 59, Employee moved for relief under Rule 60(b)(3). 17 We again begin with the legal standards and then take up Employee’s argument. 1. Under Rule 60(b)(3), a district court may “relieve a party . . . from a final judgment” due to “fraud . . . , misrepresentation, or misconduct by an opposing party.” Fed. R. Civ. P. 60(b)(3). To get relief under Rule 60(b)(3), “the moving party must prove by clear and convincing evidence that the adverse party obtained the verdict through fraud, misrepresentations, or other misconduct.” Waddell v. Hendry Cty. Sheriff’s Office, 329 F.3d 1300, 1309 (11th Cir. 2003). “The moving party must also demonstrate that the conduct prevented them from fully presenting his case.” Id. We review the District Court’s decision denying relief under Rule 60(b)(3) for abuse of discretion. See id. 17 She also moved for relief under Rule 60(b)(2). The District Court denied relief, and Employee does not challenge that decision on appeal. 25 Case: 17-13073 Date Filed: 04/29/2019 Page: 26 of 31 2. Employee asked the District Court to grant relief under Rule 60(b)(3) based on the newly discovered email—the same one we discussed above—that she said showed Employer failed to disclose evidence that tended to show spoliation. The District Court denied the request. It found that Employee had not shown the alleged misconduct prevented her from fully presenting her case. 18 The Court noted that, even if Employee had gotten the email during discovery, her litigation strategy would have been “fundamentally similar” to the strategy she adopted without the email. Had Employee known about the email, she might have asked Employer about it is his deposition. And she might have asked to inspect his computer system. She probably would have used the email to impeach Employer at trial. But Employee did question Employer about deleted emails, the Court noted, and she argued that the deleted emails would have helped prove that she worked overtime. The District Court’s finding of fact—that the alleged misconduct did not prevent Employee from fully presenting her case—is not clearly erroneous. See Renteria-Marin, 537 F.3d at 1324 (reviewing finding of fact for clear error). Employee argues that the District Court should have held an evidentiary hearing 18 The District Court also found that Employee failed to show by clear and convincing evidence that Employer engaged in fraud or misconduct. 26 Case: 17-13073 Date Filed: 04/29/2019 Page: 27 of 31 before ruling on the motion. But the Court’s finding of fact is not clearly erroneous simply because it did not hold an evidentiary hearing, especially in light of the reasons the Court gave. Thus, the District Court did not abuse its discretion by denying relief under Rule 60 based on the newly discovered email. C. Employee argues that the District Court misapplied the burden-shifting framework set out in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686–88, 66 S. Ct. 1187, 1192 (1946), superseded on other grounds by statute, 29 U.S.C. § 254(a), as recognized in Integrity Staffing Solutions, Inc. v. Busk, 135 S. Ct. 513, 516–17 (2014). An employer covered by the Fair Labor Standards Act must keep records that show how many hours an employee worked in a workweek. See 29 C.F.R. § 516.2(a)(7). When an employer fails to keep accurate and adequate records, Anderson says that “an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.” 328 U.S. at 687, 66 S. Ct. at 1192 (emphasis added). “The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the 27 Case: 17-13073 Date Filed: 04/29/2019 Page: 28 of 31 reasonableness of the inference to be drawn from the employee’s evidence.” Id. at 687–88, 66 S. Ct. at 1192. Employer admitted that he did not keep records. Rather than apply Anderson’s burden-shifting framework—indeed, the District Court never cited Anderson—Employee says the Court penalized her for Employer’s failure to keep records. In turn, Employee argues, this error infected the Court’s findings of fact. We disagree. The District Court found that Employer’s testimony was more credible than Employee’s “because it better matche[d] the other evidence in the case, particularly the testimony of other employees.” At the end of the trial, it was Employee’s word against the word of four others—Employer, the bookkeeper, Employee’s successor, and Employer’s current paralegal. So, the District Court did not reject Employee’s narrative because it misapplied Anderson’s standard, which is triggered only “if [the employee] proves that he has in fact performed work for which he was improperly compensated.” Anderson, 328 U.S. at 687, 66 S. Ct. at 1192. D. Finally, Employee argues that the District Court abused it discretion when it failed to sua sponte recuse. We set out the legal standard and then turn to Employee’s argument. 28 Case: 17-13073 Date Filed: 04/29/2019 Page: 29 of 31 1. Any district judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). This is an “affirmative, self-enforcing obligation.” United States v. Kelly, 888 F.2d 732, 744 (11th Cir. 1989). “The standard . . . is ‘whether an objective, disinterested, lay observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt about the judge’s impartiality.’” Id. at 744–45 (quoting United States v. Torkington, 874 F.2d 1441, 1446 (11th Cir. 1989)). Typically, “we review a judge’s decision not to recuse him or herself for an abuse of discretion.” United States v. Berger, 375 F.3d 1223, 1227 (11th Cir. 2004). But “because [Employee] failed to seek recusal of the district judge in the proceedings below, we review [her] recusal request for plain error.” Id. This is a civil case, so we apply the “civil plain error rule.” See In re Lett, 632 F.3d 1216, 1220 n.7, 1227 (11th Cir. 2011). Applying that rule here, we will review the issue only if Employee shows that a “miscarriage of justice will result from [our] refusal to” do so. See id. at 1220 n.7. 2. Employee argues that the District Judge should have recused because Employer represented the District Judge’s ex-wife during the couple’s contested 29 Case: 17-13073 Date Filed: 04/29/2019 Page: 30 of 31 divorce proceedings in 1990 and 1991.19 As part of those proceedings, Employee says, Employer deposed the District Judge twice. Based on this, Employee argues that an objective, disinterested lay person would have significant doubt about the District Judge’s impartiality. We disagree. Employer represented the District Judge’s ex-wife roughly 26 years before this bench trial. We do not think an objective, disinterested lay person would question the District Judge’s partiality based on something so remote. And even if an objective, disinterested lay person would question the District Judge’s partiality, that person would expect the bias to benefit Employee. Finally, there is nothing in this Court’s § 455(a) precedent that would have alerted the Judge that he should recuse. There will be no miscarriage of justice if we refuse to review this issue because the District Judge’s failure to recuse is consistent with § 455(a). See Roofing & Sheet Metal Servs., Inc. v. La Quinta Motor Inns, Inc., 689 F.2d 982, 990 (11th Cir. 1982) (“Any wrong result resting on the erroneous application of legal principles is a miscarriage of justice in some degree.”). Thus, the civil plain error rule bars our review. III. Our analysis is always driven by the standard of review. Here, Employee was up against a deferential standard at every turn. This case shows that 19 The case is Moody v. Moody, No. 90-DR-014416 (Fla. Cir. Ct. filed June 29, 1990). 30 Case: 17-13073 Date Filed: 04/29/2019 Page: 31 of 31 overcoming a deferential standard is an uphill battle. The judgment of the District Court is AFFIRMED. 31	{ "pile_set_name": "FreeLaw" }
140 Cal.App.2d 50 (1956) ERNEST V. BERRY, Plaintiff and Appellant, v. BLANCHE BEATRICE BERRY, Defendant and Appellant. Civ. No. 20974. California Court of Appeals. Second Dist., Div. Three. Mar. 20, 1956. Rogan & Rogan, Raymond R. Farrell and Frederick I. Frischling for Plaintiff and Appellant. Jerry Giesler and Harold C. Holland for Defendant and Appellant. 53 VALLEE, J. These are cross-appeals. Defendant appeals from a final decree of divorce; from an order adjudging plaintiff not to be in contempt; and from orders directing that an accounting be taken to determine half the net earnings of plaintiff from his personal services from January 1, 1950, to December 31, 1951, and other gains of his attributable to his energy, ability, and capacity from the operation of his business for the period from January 8, 1951, to July 7, 1953, to determine the community property, if any, appointing an auditor, fixing his fees, and awarding attorney's fees. Plaintiff appeals from part of the order directing that an accounting be taken. On January 8, 1951, an interlocutory decree was entered granting defendant, as cross-complainant, a divorce from plaintiff. The decree ordered plaintiff to pay defendant for her support and maintenance $150 a month for 12 months only. It ordered plaintiff to pay defendant $39,410, described as community property, in 36 equal monthly installments "without interest, and in addition thereto cross-complainant shall be and is awarded 1/2 of plaintiffs net earnings from his personal services from January 1st, 1950 to December 31, 1951." Defendant appealed from the property provisions of the interlocutory decree. The decree was affirmed. (Berry v. Berry, 117 Cal.App.2d 624 [256 P.2d 646].) The remittitur was filed in the superior court on July 7, 1953. On May 12, 1954, on application of defendant, two orders to show cause issued: one directing plaintiff to show cause why he should not be adjudged in contempt for failing to pay $660, the balance of the $39,410 he was ordered to pay defendant by the interlocutory decree, and for failing to render an accounting of his net earnings from his personal services for the period from January 1, 1950, to December 31, 1951, and for attorney's fees incident to a hearing on that order; the other directing plaintiff to show cause why he should not render an accounting "to determine the community property, if any, attributable to the personal character, energy, ability and capacity of Mr. Berry, where he has contributed his personal services to the operation of the business" for the period from January 1, 1950, to the entry of the final decree, which had not then been entered, and for attorney's fees and costs incident to that order. On July 7, 1954, plaintiff filed a notice of motion to enter a final decree nunc pro tunc as of January 9, 1952, which date was just one year after 54 entry of the interlocutory decree. The ground of the motion was that the interlocutory decree was entered January 8, 1951, that all the provisions of the decree had been executed save one, and that a hearing to enforce that provision was pending. Prior to the hearing of the orders to show cause plaintiff paid defendant the $660. The orders to show cause and the motion were heard together commencing on July 20, 1954. The minutes of July 20, 1954, say, "On the courts own motion the matter of the payment of $660.00 as related to the contempt action is dismissed." Plaintiff withdrew his motion for the entry of a final decree nunc pro tunc as of January 9, 1952, and moved that it be entered as of July 7, 1953, the date the remittitur on the appeal from the interlocutory decree was filed in the superior court. On July 21, 1954, the court, by minute order, granted plaintiff's motion to enter the final decree nunc pro tunc as of July 7, 1953, and ordered "that an accounting be taken to determine 1/2 the net earnings of the plaintiff for personal services from January 1, 1950, till December 31, 1951, and the gains attributable to the energy, ability and capacity of Mr. Berry from the operation of the business from January 8, 1951, to July 7, 1953, to determine the community property, if any." On July 22, 1954, by minute order, the court granted defendant's motion for an audit of plaintiff's books from January 1, 1950, until July 7, 1953, appointed an auditor "to make the accounting," ordered plaintiff to pay the auditor $1,875, and ordered plaintiff to pay defendant's attorney $1,000 for his services in the proceeding. On July 28, 1954, the final decree was entered as previously ordered. It assigns the property of the parties in accord with the interlocutory decree and contains this provision: "It is further ordered and adjudged that pursuant to paragraph VIII of said interlocutory judgment, plaintiff pay to defendant one-half of plaintiff's net earnings, if any, from his personal services from January 1, 1950, to December 31, 1951, and it is further ordered that an accounting be had to determine the amount due, if any, under this provision of this judgment." No mention is made in the final decree of that part of the minute order of July 21 requiring plaintiff to account for gains attributable to his energy, ability, and capacity from the operation of his business for the period from January 8, 1951, the date of entry of the interlocutory decree, to July 55 7, 1953, the retroactive date of entry of the final decree, nor is mention made of the order of July 22 granting defendant's motion for an audit and appointing an auditor. Appeal of Defendant Defendant's claim is that it was error to enter the final decree nunc pro tunc in the absence of a showing of mistake, negligence, or inadvertence; that the final decree should have been entered at the time of the determination of the accounting for determination of community property, if any, accumulated after the interlocutory decree. Plaintiff replies that the court properly entered the final decree nunc pro tunc as of the date the remittitur was filed in the superior court, namely, July 7, 1953, and that the period of accounting should have been confined to the period set out in the interlocutory and final decrees, namely, from January 1, 1950, to December 31, 1951. It is not contended the final decree was entered pursuant to the inherent power of a court to antedate a judgment under certain circumstances. (See Mather v. Mather, 22 Cal.2d 713, 719 [140 P.2d 808]; Phillips v. Phillips, 41 Cal.2d 869, 875 [264 P.2d 926]; Corbett v. Corbett, 113 Cal.App. 595, 600 [298 P. 819].) Civil Code, section 132, provides: "When one year has expired after the entry of such interlocutory judgment, the court on motion of either party, or upon its own motion, may enter the final judgment granting the divorce ... and such other and further relief as may be necessary to complete disposition of the action, but if any appeal is taken from the interlocutory judgment or motion for a new trial made, final judgment shall not be entered until such motion or appeal has been finally disposed of, nor then, if the motion has been granted or judgment reversed." Civil Code, section 133, provides: "Whenever either of the parties in a divorce action is, under the law, entitled to a final judgment, but by mistake, negligence or inadvertence the same has not been signed, filed and entered, if no appeal has been taken from the interlocutory judgment ... the court, on the motion of either party thereto or upon its own motion, may cause a final judgment to be signed, dated, filed and entered therein granting the divorce as of the date when the same could have been given or made by the court if applied for." Nolte v. Nolte, 29 Cal.App. 126 [154 P. 873], and Harris v. Superior Court, 10 Cal.App.2d 586 [52 P.2d 605], held the 56 court had no power to enter an interlocutory decree nunc pro tunc as of a prior date. [fn. 1] In Corbett v. Corbett, 113 Cal.App. 595 [298 P. 819], decided prior to the enactment of section 133 in 1935, the interlocutory decree was entered June 29, 1926. There was no appeal. The final decree was rendered February 6, 1928. It directed that it be entered nunc pro tunc as of July 2, 1927. It was held the trial court had no authority to make the nunc pro tunc order and that it was void. A marriage of one of the spouses between entry of the interlocutory decree and actual entry of the final decree was held void. It would appear that section 133 was enacted to avoid recurrence of the result in the Corbett case. (Estate of Hughes, 80 Cal.App.2d 550, 553 [182 P.2d 253]; Macedo v. Macedo, 29 Cal.App.2d 387, 390 [84 P.2d 552].) Speaking of section 133, the court, in Macedo v. Macedo, supra, 29 Cal.App.2d 387, said (p. 391): "The act is both curative and remedial, and the retroactive operation of such statute should be given effect unless it disturbs some vested right or impairs the obligation of some contract." [1] When an interlocutory decree of divorce becomes final it is res judicata on all questions determined thereby including, generally, the rights of the parties in community property then existing. (Dupont v. Dupont, 4 Cal.2d 227, 228 [48 P.2d 677]; Leupe v. Leupe, 21 Cal.2d 145, 148 [130 P.2d 697].) [2] An interlocutory decree does not terminate the marriage relation. [3] The interest of the wife in community property during continuance of the marriage relation is a present, existing interest. (Civ. Code, 161a.) It is a vested interest. (Cooke v. Cooke, 65 Cal.App.2d 260, 265-266 [150 P.2d 514]; Wissner v. Wissner, 89 Cal.App.2d 759, 764 [201 P.2d 837]; Horton v. Horton, 115 Cal.App.2d 360, 363-364 [252 P.2d 397]; Estate of Kelley, 122 Cal.App.2d 42 [264 P.2d 210].) [4] Hence property acquired by one of the spouses in the interim between the interlocutory and final decrees may be community property when it is not acquired as the separate property of either. (Civ. Code, 687; Brown v. Brown, 170 Cal. 1, 4 [147 P. 1168]; Hiltbrand v. Hiltbrand, 13 Cal.App.2d 330, 334-335 [56 P.2d 1292]; Babcock v. Babcock, 63 Cal.App.2d 94, 101 [146 P.2d 279]; Franklin v. Franklin, 67 Cal.App.2d 717, 720-721 [155 P.2d 637].) [5] In the present 57 case the interlocutory decree made a complete disposal of the property rights of the parties then existing. An appeal was taken from that decree and it was affirmed. When affirmed, it constituted a conclusive adjudication of all rights of the parties in all community property existing on the date of its entry. (Wilson v. Wilson, 76 Cal.App.2d 119, 130 [172 P.2d 568]; see 16 Cal.Jur.2d 408, 119, 120.) The interlocutory decree did not purport to adjudicate property rights that might be acquired after its entry, and it should not be so construed. (Webster v. Webster, 216 Cal. 485, 493 [14 P.2d 522]; Davis v. Davis, 123 Cal.App.2d 753, 756-757 [267 P.2d 403].) Both parties rely on Harrold v. Harrold, 43 Cal.2d 77 [271 P.2d 489]. In Harrold the interlocutory decree was entered on February 15, 1949. An appeal was taken from the financial provisions of the decree only. The judgment on appeal was "the interlocutory judgment is affirmed, except ... as to that portion relating to a division of the community estate, which is remanded to the trial court with instructions to determine the division of the amount of the community estate as indicated herein." (Harrold v. Harrold, 100 Cal.App.2d 601, 609 [224 P.2d 66].) Following retrial of the issue specified, the court ordered that the final decree be entered on November 1, 1951, the day of the judgment on the retrial. It was entered accordingly. It divided the community property acquired by the parties prior to the date thereof. The plaintiff appealed from that part of the final decree awarding her part of the community property. The Supreme Court said it was held on the prior appeal "that the trial court should have considered the earnings of the defendant accruing prior to the entry of the final decree in determining the community estate." (Harrold v. Harrold, 43 Cal.2d 77, 79 [271 P.2d 489].) One of the contentions on the second appeal was "that under the mandate on the prior appeal the trial court erred in not entering a new interlocutory decree, and in entering the final decree on November 1, 1951." The court declared (p. 83): "Section 132, as interpreted by the Webster and other cases, provides that the final decree cannot be entered at certain designated times but it does not specify when it may be entered following a reversal on appeal. Here it was entered on the same day as the judgment on retrial of the designated financial issues. Neither section 132 nor the cases construing it expressly prohibit the entry at that time. The 58 question is whether the Legislature intended by implication or otherwise to delay the entry of the final judgment beyond such a time, when it enacted the section. ..." "[P. 84.] We are not concerned in the present case with an appeal from the interlocutory decree as such. That decree, insofar as it ordered the dissolution of the bonds of matrimony, was affirmed and became the law of the case. Any question in connection therewith was and is no longer open, including the right to the final decree as affected by property matters. Such matters, involving items of the additional accounting period and the pro rata division of the community property, were adjudicated on the subsequent hearing as directed by the District Court of Appeal. This appeal from that adjudication does not in any proper sense constitute an appeal as contemplated by the Legislature in enacting section 132 such as would stay the entry of the final decree, since none of the stated purposes of such a stay are here applicable. [Citations.]" "From the foregoing it is apparent that there is no sufficient reason why the trial court should delay the entry of the final decree beyond the express prohibitions of section 132. Furthermore there appears to be good reason for its entry at the time of judgment in the accounting determination. If, as the plaintiff seeks to accomplish, the prohibitions of section 132 are applied to the present appeal in the same manner as to the interlocutory decree heretofore affirmed, the final decree could not be entered until any appeal taken herefrom had been determined or the time for appeal had expired. ..." "[P. 85.] There is nothing in section 132 of the Civil Code, nor in the cases dealing with the problem, which indicates that under the circumstances here presented a new interlocutory decree should be entered." As we read the Harrold case (43 Cal.2d 77), it holds that a final decree may be entered at any time when one year has expired after the interlocutory decree has become final, and indicates there is good reason for its entry at the time of judgment in an accounting determination after the year has expired. It does not pass on when a final decree may be entered nunc pro tunc. [6] The remittitur on the appeal from the interlocutory decree in the present case was filed in the superior court on July 7, 1953. The final decree could not have been entered prior to that date. (Civ. Code, 132.) No application for entry of the final decree was made until July 20, 1954. In support of his motion for a final decree nunc pro tunc, plaintiff 59 filed an affidavit substantially in the form provided by Rule 20 of the Rules for Superior Courts. (33 Cal.2d 9, 10.) Rule 20 provides that an affidavit for a final decree of divorce shall state that all the requirements of the interlocutory decree have been fully complied with on the part of the moving party and he is not in default in any thereof. The rule also provides that the affidavit shall contain substantially the information in the form prescribed "or so much thereof as the court under the circumstances may require." The affidavit of plaintiff stated he had not complied with that part of the interlocutory decree awarding defendant half of his net earnings from his personal services from January 1, 1950, to December 31, 1951, "it being contended by affiant that there were no earnings from personal services during said period and affiant therefore having fully complied with the interlocutory judgment." There was nothing in the affidavit, nor was there any evidence introduced at the hearing, showing that the final decree had not been signed, filed and entered "by mistake, negligence or inadvertence" during the interim between July 7, 1953, and July 20, 1954. Unless it may be held that the mere failure to have the final decree signed, filed and entered within that interim constitutes "mistake, negligence or inadvertence," it was error to enter it nunc pro tunc as of July 7, 1953. Civil Code, section 133, is the sole authority for the entry of a final decree nunc pro tunc where on the facts the court is without inherent power to enter such a decree. It may be that it is the only authority--a question we need not decide. [7] There must be a showing of mistake, negligence, or inadvertence. (Cf. Hull v. Hull, 102 Cal.App.2d 382 [227 P.2d 546]; Nemer v. Nemer, 117 Cal.App.2d 35 [254 P.2d 661].) In the absence of such a showing the court is without power to enter the final decree nunc pro tunc. [8, 9] "A mistake of fact is when a person understands the facts to be other than they are; a mistake of law is when a person knows the facts as they really are but has a mistaken belief as to the legal consequences of those facts. (People v. Kelly, 35 Cal.App.2d 571, 574 [96 P.2d 372].) [10] Inadvertence is defined as lack of heedfulness or attentiveness, inattention, fault from negligence. (Webster's New Inter. Dict., 2d ed.; Greene v. Montana Brewing Co., 32 Mont. 102 [79 P. 693, 694].)" (Baratti v. Baratti, 109 Cal.App.2d 917, 921 [242 P.2d 22].) [11] Negligence may be passive in character: it may consist in heedlessly refraining from doing 60 the proper thing. When the circumstances call for activity, one who does not do what he should is negligent. (Basler v. Sacramento Gas & Elec. Co., 158 Cal. 514, 518 [111 P. 530, Ann.Cas. 1912A 642].) [12] Negligence is sometimes defined as the failure to use ordinary care in the management of one's person or property. (Jolley v. Clemens, 28 Cal.App.2d 55, 66 [82 P.2d 51].) [13] The essence of negligence is the failure to exercise due care and take proper precaution in a particular case. (Davidson v. American Liquid Gas Corp., 32 Cal.App.2d 382, 386 [89 P.2d 1103].) [14] In determining the presence or absence of negligence the test is: what would a reasonably prudent person do under similar circumstances? (Martin v. Fox West Coast Theatres Corp., 41 Cal.App.2d 925, 930 [108 P.2d 29].) [15] Negligence always relates to some circumstance of time, place, or person. (Spear v. Leuenberger, 44 Cal.App.2d 236, 246 [112 P.2d 43].) [16] There is no rule of law which compels a party to apply for a final decree and the circumstances may be such that a party does not wish to apply for one. Many factors may prompt inaction, i.e., there may have been a reconciliation or there may be hope of one. There was no showing in the present case of any mistake or inadvertence; or of any circumstances which called for activity on the part of plaintiff between July 7, 1953, and July 20, 1954; or of failure on his part to exercise ordinary care; or that a reasonably prudent person would have applied for the final decree within that period. In short, there was no showing of "mistake, negligence or inadvertence." [17] The mere failure of a party to apply for a final decree does not constitute mistake, negligence, or inadvertence. [18] Defendant had a vested right in community property acquired subsequent to the entry of the interlocutory decree and such right could not be divested by entry of the final decree nunc pro tunc without a showing of mistake, negligence, or inadvertence. The court erred in entering the final decree nunc pro tunc as of July 7, 1953. [19] The order adjudging plaintiff not to be in contempt is nonappealable and the appeal therefrom will be dismissed. (John Breuner Co. v. Bryant, 36 Cal.2d 877 [229 P.2d 356].) As we have noted, defendant also appealed from the order which she describes as requiring "an accounting to be taken of the net earnings of plaintiff and cross-defendant from his personal services and other gains attributable to his energy, ability and capacity from the operation of his business for 61 the period January 1, 1950 to July 7, 1953." No complaint is made insofar as the order required plaintiff to account for his net earnings from his personal services for the period from January 1, 1950, to December 31, 1951. By that proceeding defendant merely sought to enforce the interlocutory decree which had then become final. (See Becker v. Becker, 36 Cal.2d 324, 326 [223 P.2d 479].) [20a] Insofar as the order requires an accounting of the gains attributable to the energy, ability and capacity of plaintiff from the operation of his business from January 8, 1951, to July 7, 1953, to determine the community property, if any, it is nonappealable and the appeal therefrom must be dismissed. [21] It has long been settled that no appeal lies from an interlocutory or intermediate order unless the order be designated by statute as one of those from which an appeal may be taken. (Title Ins. & Trust Co. v. California Dev. Co., 159 Cal. 484, 486 [114 P. 838].) There is no statute authorizing an appeal from an order of the nature of that requiring an accounting of gains attributable to plaintiff's energy, ability, and capacity from the operation of his business. [22] Where the order requires the payment of money by the party complaining, or the doing of an act by or against him, the order is in effect final as against such party and may be appealed from by him. If on the other hand the order be in its nature such as to be subject, before enforcement or execution, to the further action of the court, either by decree or later order, the order complained of is not final and review must be sought by appeal from the decree or order subsequently entered. (Id 491.) [23] When an order directs an accounting, fixes no rights of the parties, contemplates that the accounting shall be returned to the court, and when further judicial action is necessary even though not specified in the order, the determination is not a final judgment and the order is not appealable. The foregoing is true whether the order for an accounting is proper or erroneous. (Doudell v. Shoo, 159 Cal. 448, 453 [114 P. 579]; Clement v. Duncan, 191 Cal. 209, 215 [215 P. 1025]; Gunder v. Gunder, 208 Cal. 559, 561 [282 P. 794]; Di Blasi v. Di Blasi, 209 Cal. 753 [290 P. 7]; Middleton v. Finney, 214 Cal. 523, 525-526 [6 P.2d 938, 78 A.L.R. 1104]; Sjoberg v. Hastorf, 33 Cal.2d 116, 119 [199 P.2d 668]; Lacey v. Bertone, 33 Cal.2d 649, 653 [203 P.2d 755]; In re Los Angeles County Pioneer Soc., 40 Cal.2d 852, 857-858 [257 P.2d 1]; Shirley v. Cook, 119 Cal.App.2d 62 220, 222 [259 P.2d 25]; 15 So.Cal.L.Rev. 504; anno.: 3 A.L.R.2d 342.) The order complained of did not direct the payment of any money by plaintiff (cf. Grant v. Superior Court, 106 Cal. 324 [39 P. 604]; Grant v. Los Angeles etc. Ry. Co., 116 Cal. 71 [47 P. 872]), nor did it direct the performance of any act by or against him. It did not finally determine any rights. It required further judicial action. It contemplated a future determination of whether any community property had been acquired in the interim between the interlocutory and the final decrees and, if there was any, how it should be divided. If the order is erroneous, as defendant contends, she may assert it on appeal from the final order after the accounting. (See Clement v. Duncan, 191 Cal. 209, 215 [215 P. 1025].) Appeal of Plaintiff [20b] Plaintiff only appealed from that part of the minute order of July 21, 1954, requiring an accounting of "the gains attributable to the energy, ability and capacity of Mr. Berry from the operation of the business from January 8, 1951, to July 7, 1953, to determine the community property, if any." For the reasons we have stated on defendant's appeal from that order, it is nonappealable and the appeal therefrom must be dismissed. The appeal from the order adjudging plaintiff not to be in contempt is dismissed; the appeals of plaintiff and defendant from the order directing an accounting of the gains attributable to the energy, ability and capacity of plaintiff from the operation of his business from January 8, 1951, to July 7, 1953, to determine the community property, if any, are dismissed; the order directing that an accounting be taken to determine half the net earnings of plaintiff from his personal services from January 1, 1950, to December 31, 1951, is affirmed; the final decree is reversed. Plaintiff shall bear defendant's costs on appeal. Shinn, P. J., and Wood (Parker), J., concurred. NOTES [fn. 1] 1. These cases were decided before section 131.5 was added to the Civil Code in 1939 authorizing the granting of an interlocutory decree nunc pro tunc under certain circumstances.	{ "pile_set_name": "FreeLaw" }
101 F.3d 1393 NOTICE: THIS SUMMARY ORDER MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY, BUT MAY BE CALLED TO THE ATTENTION OF THE COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA. SEE SECOND CIRCUIT RULE 0.23.Ernie BUCKMAN, Plaintiff-Appellant,v.CITICORP., Defendant-Appellee. No. 96-7236. United States Court of Appeals, Second Circuit. Aug. 14, 1996. Ernie Buckman appeals from an order dated January 29, 1996, in the United States District Court for the Southern District of New York (Mukasey, J.), dismissing his claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. 1 Appearing for Appellant: ERNIE BUCKMAN, pro se, Mt. Vernon, NY. 2 Appearing for Appellee: J. KELLEY NEVLING, JR., Citibank Legal Affairs Office, New York, NY. 3 S.D.N.Y. 4 AFFIRMED. 5 Present MESKILL, CALABRESI, PARKER, Circuit Judges. 6 In this action, Buckman alleges copyright and trademark violations by defendant Citicorp, and requests damages of $5 billion and a preliminary injunction. Buckman claims that Citicorp has stolen "Buckmans' Theory" and other ideas involving photographic identification cards. Finding no merit in Buckman's claims, the district court dismissed the complaint for failure to state a claim upon which relief could be granted. 7 Buckman's principal argument on appeal is that the district court erred in concluding that Buckman's "theories" are not copyrightable. This argument is untenable. Section 102(b) of the Copyright Act states: 8 In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. 9 17 U.S.C. § 102(b); see also Feist Publications, Inc. v. Rural Telephone Serv. Co., 499 U.S. 340, 344-45 (1991) ("The most fundamental axiom of copyright law is that '[n]o author may copyright his ideas or the facts he narrates.' ") (citation omitted). Buckman's "theories" about photographic identification cards are nothing if not ideas, and thus beyond the reach of copyright protection. 10 Buckman raises several other claims on appeal. Many of these claims were not raised before the district court below, and are therefore not cognizable on appeal. See, e.g., Hill v. City of New York, 45 F.3d 653, 663 (2d Cir.1995). In any event, all of these claims are meritless. 11 We have examined all of Buckman's contentions, and find them to be without merit. The district court's judgment is therefore affirmed.	{ "pile_set_name": "FreeLaw" }
708 So.2d 890 (1997) Ex parte Billie Jean WATLEY and John S. Watley. (Re Billie Jean WATLEY and John S. Watley v. TRANSAMERICA FINANCIAL SERVICES, INC.). 1961331. Supreme Court of Alabama. November 7, 1997. 891 J. Gusty Yearout, William R. Myers, and John G. Watts of Yearout, Myers & Traylor, P.C., Birmingham; and A. Dwight Blair III of Blair, Holladay & Parsons, P.C., Pell City, for petitioners. Charles E. Robinson of Charles E. Robinson, P.C., Ashville; and Andrew J. Noble III and Stewart M. Cox of Bradley, Arant, Rose & White, L.L.P., Birmingham, for respondent. George W. Finkbohner III and Royce A. Ray III of Finkbohner & Lawler, L.L.C., Mobile, for amicus curiae plaintiff class members in Autrey v. UCLC (Mobile Circuit Court, CV-94-1316), in support of the petition. H. Hampton Boles and Gregory C. Cook of Balch & Bingham, L.L.P., Birmingham, for amicus curiae Alabama Bankers Ass'n, in opposition to the petition. PER CURIAM. This Court has granted Billie Jean Watley and John S. Watley's petition for certiorari review of the judgment of the Court of Civil Appeals in Watley v. Transamerica Financial Services, Inc., 708 So.2d 889 (Ala.Civ. App.1997). The Court of Civil Appeals affirmed a summary judgment for Transamerica Financial Services, Inc., in the Watleys' action against Transamerica alleging a violation of the cap on discount points imposed by § 5-19-4(g), Ala.Code 1975. This Court granted the petition to review the Watleys' argument that the affirmance conflicts with United Companies Lending Corp. v. McGehee, 686 So.2d 1171 (Ala.1996) cert. denied, ___ U.S. ___, 117 S.Ct. 1555, 137 L.Ed.2d 703 (1997), and Smith v. First Family Financial Services, Inc., 626 So.2d 1266 (Ala.1993). The question is whether the points cap imposed by § 5-19-4(g) applies to mortgage loans for amounts of $2,000 or more, notwithstanding the provision of § 8-8-5(a), Ala.Code 1975, that allows parties to agree to such an interest rate as they may determine, provided that the loan is for an amount not less than $2,000. Subsection (g) was added to § 5-19-4 on March 11, 1988, effective "from and after June 30, 1988," by Act No. 88-87, 1988 Ala. Acts p. 112. Subsection (g), as set out in the Act, read as follows:[1] "(g) Notwithstanding the provisions of this or any other section of this chapter, a creditor may, pursuant to contract, in a consumer loan or consumer credit sale secured by an interest in real property, charge and collect points in an amount not to exceed five percent of the original principal balance in the case of a closed-end loan or credit sale, or five percent of the total line of credit in the case of an open-end credit plan. Points may be paid in cash at the time of the loan or credit sale, or may be deducted from the proceeds and included in the original principal balance. Points shall be in addition to all other charges and are fully earned on the date of the loan or credit sale and may be excluded from the finance charge for the purpose of computing the finance charge refund." Thus, § 5-19-4(g) prohibits the charging or collecting of points in excess of 5% of the original principal balance of a consumer loan secured by an interest in real property. The Court of Civil Appeals held, however, that this prohibition does not apply to loans of $2,000 or more, because of the operation of § 8-8-5(a), which reads, in pertinent part: 892 "Any person or persons, [or] corporations... may agree to pay such rate or rates of interest for the loan or forbearance of money and for any credit sales as such person [or] corporation ... may determine, notwithstanding any law of this state otherwise prescribing or limiting such rate or rates of interest; provided, that the original principal balance of the loan or forbearance of money or credit sales is not less than $2,000; provided further, that all laws relating to unconscionability in consumer transactions including but not limited to the provisions of Chapter 19 of Title 5, known as the Mini-Code, shall apply to transactions covered by this section." The Court of Civil Appeals also quoted the last sentence of § 8-8-5(c), which provides: "The term `interest' as used herein shall include all direct or indirect charges imposed as an incident to a loan, forbearance of money, or credit sales." That court concluded: "Therefore, because the loan in this case was greater than $2,000, the Mini-Code provisions relating to the points charged on this loan do not apply; rather, § 8-8-5 applies." 708 So.2d at 890. As we understand its opinion, the Court of Civil Appeals held that the points limitation of § 5-19-4(g) is superseded by § 8-8-5(a) because discount points are "interest," defined in § 8-8-5(c) as "direct or indirect charges imposed as an incident to a loan." However, even the assumption that points are includable among the "direct or indirect charges" contemplated by § 8-8-5(c) does not put § 5-19-4(g) into conflict with § 8-8-5(a), because the two statutes can be reconciled simply by interpreting them to mean that discount points cannot constitute the entire interest on a loan, but may only be a component of the total finance charge, not to exceed five percent. This is the only reasonable construction of the two statutes' operation in pari materia, as we shall explain below. Section 8-8-5 was last amended in 1984, by Act No. 84-308, 1984 Ala. Acts p. 683, which "reduce[d] the amount on which interest may be negotiated" from $5,000 to $2,000.[2] Thus, § 8-8-5(a) appeared in its present form when the legislature adopted § 5-19-4(g) in 1988. The construction by the Court of Civil Appeals would mean that the legislature, when it adopted a cap of 5% on points, intended for that cap to apply to loans "secured by an interest in real property," but only to loans of amounts less than $2,000. This amounts to saying that the legislature intended for § 5-19-4(g) to have virtually no application at all. Virtually no purchase-money mortgages for residential property would be for such small amounts. The median cost of a house and land in Alabama in 1990, just two years after § 5-19-4(g) was enacted, was $53,700, according to the U.S. Bureau of the Census, County and City Data Book: 1994, p. 8. Even a second mortgage or other consumer loan would not ordinarily be made for an amount less than $2,000. Loans secured by an interest in real property require payment of expenses for such items as title searches or abstract updates, title insurance, recording of mortgages, appraisals, surveys, attorney fees, mortgage preparation, and other such costs. A charge for these costs is specifically allowed by § 5-19-4(f). These costs would be prohibitively high in relation to the amount financed if the loan amount is less than $2,000. The legislature will not be presumed to have done a futile thing in enacting a statute. "[I]t is presumed that the legislature does not enact meaningless, vain or futile statutes." Druid City Hospital Bd. v. Epperson, 378 So.2d 696, 699 (Ala.1979). Indeed, in one of the earliest cases interpreting the Mini-Code, this Court said: "There is a strong presumption that the legislature did not do a futile thing when it expressly brought real estate mortgage loans within the regulatory purview of the Mini-Code." Fletcher v. Tuscaloosa Federal Savings & 893 Loan Ass'n, 294 Ala. 173, 176, 314 So.2d 51, 53 (1975). "`It has been called a golden rule of statutory interpretation that unreasonableness of the result produced by one among alternative possible interpretations of a statute is reason for rejecting that interpretation in favor of another which would produce a reasonable result.... It is fundamental ... that departure from the literal construction of a statute is justified when such a construction would produce an absurd and unjust result and would clearly be inconsistent with the purposes and policies of the act in question. A construction resulting in absurd consequences as well as unreasonableness will be avoided.' "Norman J. Singer, Sutherland Statutory Construction § 45.11, p. 61 (5th ed.1993)." Ex parte Meeks, 682 So.2d 423, 428 (Ala. 1996). No departure from the literal language of § 5-19-4(g) is needed. It may be given full effect, and § 8-8-5(a) may be given full effect, without any deviation from the terms of either Code section. Section 8-8-5(a) applies to the total amount of interest on a loan; § 5-19-4(g) applies only to points, which are simply one example of a "finance charge" as defined by § 5-19-1(1).[3] They presumably may be one component of a permissible rate of "interest" as defined by § 8-8-5(c). Thus, although the total "interest" may be at such a rate as the parties may determine, § 8-8-5(a), the points included in a "finance charge" may not exceed 5% of the original principal balance or the total line of credit, § 5-19-4(g). Statutes should be construed to operate in harmony with each other, if possible. "In determining legislative intent, statutes are, where possible, construed in harmony with statutes existing at the time of enactment, so that each is afforded a field of operation. Waters v. City of Birmingham, 282 Ala. 104, 209 So.2d 388 (1968)." Sullivan v. State ex rel. Attorney General, 472 So.2d 970, 973 (Ala.1985). Sections 8-8-5 and 5-19-4(g) can be construed together without limiting or modifying either. The enactment of Act No. 88-87 in 1988 should be looked at in light of the facts and circumstances shown in Williams v. E.F. Hutton Mortgage Corp., 555 So.2d 158 (Ala. 1989). Before 1986, First American Mortgage Company had been making mortgage loans that included nonrefundable prepaid finance charges of 40%. E.F. Hutton had purchased these loans. On February 17, 1986, a class action, Murphree v. E.F. Hutton, was filed against E.F. Hutton in the Jefferson County Circuit Court. On May 21, 1987, Brenda Williams and others filed a similar action, which was the subject of the opinion in Williams v. E.F. Hutton. Both of these actions alleged "that First American had imposed excessive, prepaid finance charges." 555 So.2d at 161. For reasons we will not repeat here, this Court in Williams affirmed a summary judgment for E.F. Hutton. Our point here is that Williams and Murphree both concerned allegations that nonrefundable prepaid charges of 40% were excessive and unconscionable. After those two actions were filed, and before this Court decided the appeal in Williams, the Legislature enacted Act No. 88-87, amending § 5-19-4 to expressly allow mortgage lenders to charge and collect points, but to limit those points at 5%. Any allegation, such as was made in Williams, that points are unconscionable simply because they are nonrefundable, is precluded by the enactment of Act No. 88-87. However, if this Court were to hold that § 5-19-4(g) does not apply to loans of $2,000 or more because of the operation of § 8-8-5, would that mean that there is no express provision allowing mortgage lenders to charge and collect points? A creditor could answer this question by arguing that § 5-19-4(g) allows a creditor to charge and collect points on all mortgage loans but, by reference to § 8-8-5, caps those points only as to loans of less than $2,000. This would be a strained and unnatural reading of § 5-19-4(g), requiring the first part of the sentence to apply to all loans and the second part, with 894 no qualifying language, to apply only to mortgage loans of less than $2,000. We will not attribute such a deceptive drafting technique to the legislature. Section 2 of Act No. 88-87 is also instructive: "The provisions of this section are cumulative to, and not in derogation of, rights under other provisions of state and federal law and shall not in any way repeal, amend or modify the provisions of Section 8-8-5, Code of Alabama 1975, as amended." (Emphasis added.) As explained above, this Act may be read in pari materia with § 8-8-5 so as to give effect to both provisions, without repealing, amending, or modifying § 8-8-5. As the legislature said, Act No. 88-87 was merely cumulative to § 8-8-5, providing for and limiting the charging and collecting of points, as to which § 8-8-5 is silent. Moreover, the last sentence of § 5-19-4(g), as adopted by Act 88-87, § 1, states that "Points shall be in addition to all other charges and are fully earned on the date of the loan or credit sale and may be excluded from the finance charge for the purpose of computing the finance charge refund." Thus, the prohibition against denominating more than 5% of the total finance charge or interest as points is a reasonable purpose for the legislature to have intended, because of the fact that points are "fully earned on the date of the loan or credit sale," § 5-19-4(g), and therefore are not refundable if the loan is paid before its due date. Even though § 8-8-5 allows the interest rate to be as high as the market will bear and as high as the doctrine of unconscionability will allow, § 5-19-4(g) prevents a creditor from charging an excessive portion of that rate as "points" and thereby making the "interest" nonrefundable. The Mini-Code is a consumer protection statute, and is due to be construed with consumer protection in mind. "The Mini-Code, § 5-19-1 through § 5-19-31, was enacted by the legislature to provide a comprehensive consumer finance law.... The aim is to protect the consumer." McCullar v. Universal Underwriters Life Ins. Co., 687 So.2d 156, 163 (Ala.1996) (citations omitted). Construction of the Mini-Code "must be made with the protection of the consumer in mind." Spears v. Colonial Bank of Alabama, 514 So.2d 814, 816 (Ala. 1987). Allowing § 5-19-4(g) to have the application that it appears on its face to have (i.e., an application to all loans secured by an interest in real property, not just to those that are for less than $2,000) will provide the protection to consumers that the legislature intended for the Mini-Code to provide. For the foregoing reasons, the Court of Civil Appeals erred in holding that § 8-8-5(a) precludes § 5-19-4(g) from applying to loans of $2,000 or more that are secured by an interest in real property. We make no decision whether Cantrell v. Walker Builders, Inc., 678 So.2d 169 (Ala. Civ.App.1996), on which the Court of Civil Appeals relied in affirming the circuit court's judgment for Transamerica, was correctly decided. Cantrell concerned the limitation imposed by § 5-19-4(a) on late fees. It is distinguishable if only because § 5-19-4(a) reads essentially as it did before § 8-8-5 was amended to reduce the amount on which interest rates were negotiable from $100,000 to $5,000 and then to $2,000. The application of § 5-19-4(a) could therefore be governed by the subsequent amendment of § 8-8-5, whereas § 5-19-4(g) was enacted after those amendments to § 8-8-5. Furthermore, the Court of Civil Appeals relied in Cantrell on an attorney general's opinion, which that court quoted as stating, in part: "The late payment is provided for by Section 5-19-4, Code, supra. Sections 5-19-3(g) and 5-19-4(f) together with the legislative history of these sections make it clear that the late charge allowed under Section 5-19-4(a) relates only to loans made pursuant to Section 5-19-3(a) which are split-rate, pre-computed transactions." Cantrell, 678 So.2d at 173, quoting "Banks and BankingInterest RatesDelinquent, Op. Att'y Gen. of Alabama (Aug. 31, 1987)."[4]895 The attorney general concluded that interest-bearing loans could not be assessed a late charge pursuant to § 5-19-4(a), but that such a late charge could be negotiated pursuant to § 8-8-5. These questions are beyond the scope of the issues presented by the Watleys' certiorari petition, and we do not decide them. Because it ruled as a matter of law that § 5-19-4(g) does not apply to the Watleys' loan, the Court of Civil Appeals did not rule on the merits of their claim that the points charged by Transamerica exceeded the 5% limit imposed by § 5-19-4(g). The circuit court entered a summary judgment for Transamerica, based on a holding that the loan does not in fact violate § 5-19-4(g): "Plaintiffs borrowed points in this instance. Therefore, points were included in the original principal balance of $41,061.05, which is shown on the promissory note as the total amount of the loan. The amount of the point charges was $2,053.05. $2,053.05 divided by $41,061.05 is .0499999. Therefore, the points charged did not exceed the 5% limit contained in Section 5-19-4(g). "Although the foregoing is clear from the plain language of the statute, the Court notes that it is also consistent with the State Banking Department's interpretation of the statute as evidenced by the Affidavit of Robert K. Floyd which provides in part as follows: "`A lender can determine whether it has complied with the statute by taking the amount of points charged and dividing that amount by the total amount of the loan, which would include the points, if they are loaned to the borrower. If the resulting quotient is .05 or less the lender has complied with Section 5-19-4(g), because the points would not exceed five percent of the original principal balance of the loan.'" Section 5-19-4(g), as it applied to the Watleys' loan, read: "(g) Notwithstanding the provisions of this or any other section of this chapter, a creditor may, pursuant to contract, in a consumer loan or consumer credit sale secured by an interest in real property, charge and collect points in an amount not to exceed five percent of the original principal balance .... Points ... may be deducted from the proceeds and included in the original principal balance." Act No. 88-87, 1988 Ala. Acts pp. 113-14 (emphasis added). This language allowed the points to be included as part of the "original principal balance," meaning that the "proceeds" plus the points equaled the original principal balance. The amount of allowable points was to be calculated on the basis of this total, not simply on the proceeds or some other smaller amount. Section 5-19-4(g), as it applied to the Watleys' loan, therefore expressly provided that the 5% maximum amount of points was 5% of the total amount borrowed, including the points. If a creditor wished to collect the maximum allowable amount of points, the calculation of the amount of points would require a formula that took into account the creditor's intention that the proceeds would be 95% of the original principal balance of the loan, and the points would be the other 5%. Once an "original principal balance" and an amount to be charged and collected as points were established, the question of whether the points exceeded the 5% maximum would be answered by the calculation provided by Mr. Floyd as quoted by the circuit court. In short, the circuit court correctly interpreted § 5-19-4(g) as it applied to this case. The Watleys argue that this impermissibly allows the creditor to collect "points on points," but the plain language of the statute permitted this, if the debtor borrowed the amount that was charged and collected as points. The above analysis may have been modified by an amendment to § 5-19-4(g). Act No. 96-576, 1996 Ala. Acts p. 887, adopted a comprehensive amendment to the Mini-Code. It reenacted § 5-19-4(g) to read: "A creditor may, pursuant to a consumer credit transaction contract secured by an interest in real property, charge and collect points in an amount not to exceed five percent of the original principal balance in the case of a closed-end consumer credit 896 transaction, or five percent of the total line of credit in the case of an open-end credit plan. Points may be paid in cash at the time of the consumer credit transaction, or may be deducted from the proceeds and included in the original amount financed for the purposes of Section 5-19-3 or financed under the open-end credit plan. Points shall be in addition to all other charges, are fully earned on the date of the consumer credit transaction, and may be excluded from the finance charge for the purpose of computing any finance charge credit or refund." (Emphasis added.) The first sentence still allows the creditor to charge points "in an amount not to exceed five percent of the original principal balance in the case of a closed-end consumer credit transaction." The next sentence now allows the creditor to deduct the points from the proceeds of the loan and to include the amount of the points "in the original amount financed." We do not decide in this case whether the term "original principal balance" has a meaning different from the term "original amount financed," but it appears that this use of different terms may mean that for loans after the effective date of Act No. 96-576, points may be included in the amount financed, but may be calculated so as not to exceed 5% of a smaller amount, the original principal balance, which presumably would not include the points. However, the prior version of § 5-19-4(g) clearly supports the circuit court's judgment holding that the points charged on the Watleys' loan did not exceed the 5% maximum. For that reason, the judgment of the Court of Civil Appeals is due to be affirmed. For the reasons stated earlier in this opinion, however, we disapprove and overrule the rationale given by the Court of Civil Appeals in its opinion affirming the judgment. AFFIRMED. ALMON,[] SHORES, KENNEDY,[] COOK, and BUTTS, JJ., concur. HOOPER, C.J., and MADDOX, HOUSTON, and SEE, JJ., concur in the result, but disagree with part of the rationale, with opinions by HOOPER, C.J., and HOUSTON, J. HOOPER, Chief Justice (concurring in the result, but disagreeing with part of the rationale): The majority's opinion purports to harmonize § 8-8-5 and § 5-19-4, Ala.Code 1975. In truth, this "harmony" eviscerates portions of § 8-8-5 and very well may permanently scar Alabama's consumer loan industry. Section 8-8-5 specifically defines "interest" as including "all direct or indirect charges imposed as an incident to a loan," and allows unlimited interest rates on loans of amounts "not less than $2,000." Ala.Code 1975, § 8-8-5(a), (c). Loan "points" are obviously charges incident to a loan and, under this statute, are limited only by consumer preference in the loan market and the laws of unconscionability. Because consumers may freely negotiate charges on loans of amounts over $2,000, they may freely negotiate loan points. Such a reading comports with the bedrock principle of statutory interpretation that "[w]ords used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says." IMED Corp. v. Systems Engineering Associates Corp., 602 So.2d 344, 346 (Ala.1992) (emphasis added). The per curiam opinion purports to effectuate the "literal language" of both statutes by allowing unlimited interest, while capping loan points. Clearly, however, this reading is not borne out by the "literal language" of § 8-8-5. As Justice Houston points out in his special writing, § 5-19-4(g) has no effect on the provisions of § 8-8-5. The plain language of § 5-19-31(b) states that the Mini-Code "shall not be construed to amend or repeal, without limitation, ... Section 8-8-5." Yet the majority deletes from § 8-8-5 the Legislature's clear mandate that charges incident to a loan of an amount over $2,000 are to 897 remain freely negotiable. The per curiam opinion states that by construing the statutes in pari materia, the majority has managed to "give effect to both provisions, without repealing, amending, or modifying § 8-8-5." 708 So.2d at 894. In reality, the opinion modifies the provisions of § 8-8-5 to say that charges incident to a real estate loan over $2,000 are not freely negotiable. This reading conflicts not only with the clear statutory language of § 5-19-4(g), but with Justice Almon's conclusion in Williams v. E.F. Hutton Mortgage Corp., 555 So.2d 158, 160 (Ala.1989), that "§ 8-8-5 exempts such loans [of $2,000 or more] from the application of `any law of this state otherwise prescribing or limiting [the] rate or rates of interest' paid on such loans." There can be no reasonable doubt that § 8-8-5 is the exclusive authority in this case. The per curiam opinion not only violates the fundamental principle of statutory construction that words are to be given their plain meaning; it also disregards the principle of expressio unis est exclusio alterius. This long-standing principle holds that in statutes the expression of one specific thing implies the exclusion of other specific things. Section 8-8-5 allows parties to negotiate the rates of interest in a transaction, with the caveat: "[P]rovided further, that all laws relating to unconscionability in consumer transactions including but not limited to the provisions of Chapter 19 of Title 5, known as the Mini-Code, shall apply to transactions covered by this section." Ala.Code 1975, § 8-8-5(a). The Legislature specified that the only law that could control § 8-8-5 is the unconscionability law of the Mini-Code. The other provisions of the Mini-Code, including § 5-19-4(g), are thereby excluded. The construction of § 8-8-5 and § 5-19-4(g) adopted by the Court of Civil Appeals is the correct one. However, this Court's per curiam opinion refuses to adopt this most natural construction. Instead, the majority makes loan points out to be some sort of bizarre creature reminiscent of the Minotaur, the half-man, half-bull of Greek mythology. According to the per curiam opinion, loan points are at once a finance charge and an interest rate. The opinion states: "Section 8-8-5(a) applies to the total amount of interest on a loan; § 5-19-4(g) applies only to points, which are simply one example of a `finance charge' as defined by § 5-19-1(1). They presumably may be one component of a permissible rate of `interest' as defined by § 8-8-5(c)." 708 So.2d at 893. If loan points are "one component of a permissible rate of `interest' as defined by § 8-8-5(c)," then the natural assumption is that they are also controlled by § 8-8-5(a). But the majority then reads them to be "one example of a `finance charge'" subject to the restrictions of § 5-19-4(g). Such an interpretation is convoluted at best and disregards the plain meaning rule.[5] The per curiam opinion's justification for this interpretation is that the interpretation by the Court of Civil Appeals would leave § 5-19-4(g) without application. On the contrary, § 5-19-4(g) is left to operate in the territory for which the Legislature created itsmall consumer loans. I would contend that every day in this state consumers borrow amounts under $2,000 with the loans being secured by mortgages on real property. One example of such a mortgage would be one given when a person borrows money to pay for home repairs; the consumer may not have the necessary cash but borrows a small amount of money with the loan being secured by a mortgage on his home. Consumers who do not have even a relatively small amount of ready cash are often forced to borrow amounts under $2,000. These are the consumers the Legislature intended to protect with the points cap of § 5-19-4(g). They will still be protected by § 5-19-4(g). The per curiam opinion, though, seems unable to accept the idea that the Legislature might pass a statute of limited scope. The 898 Justices concurring with that opinion would rather substitute their own judgment and expand § 5-19-4(g) into the areas they deem proper rather than follow the Legislature's own statute. While consumers borrowing less than $2,000 are protected by § 5-19-4(g), consumers like the Watleys, who borrow more than $2,000, are protected under § 8-8-5 by our free market system. In our laissez-faire economy, creditors respond to the demands of their customers. Quite simply, a creditor who charges excessive loan points will not have customers. This Court's opinion, however, prefers government intervention in the mortgage loan marketplace to the operation of the free market. In a very cogent amicus curiae brief, the Alabama Bankers Association, which consists of 168 banks doing business in Alabama, highlighted the practical impact a reversal of the Court of Civil Appeals judgment would have on the mortgage-loan marketplace. These banks know better than anyone else the need for clarity in the application of § 8-8-5 and § 5-19-4(g). As their brief stated: "Every day, banks rely on the clear scope and operation of Section 8-8-5 in numerous transactions. It is of utmost importance that the law related to charges on credit transactions provide clear and unambiguous instruction to both creditors and consumers." The confused reading this Court has given those Code sections today will not provide the guidance the banks seek.[6] With a ruling that loan points, while a "component" of interest, are excluded from the operation of § 8-8-5(a), the obvious question becomes: What other loan charges are excluded as well? The amicus brief further elaborates on the daily implications of the majority's decision, stating: "The stability and certainty offered by Section 8-8-5 is crucial for the sale of Alabama loans in the secondary market. Injection of uncertainty and ambiguity would be detrimental to these sales and would adversely affect the flow of money to, and availability of credit in, this state." I fear that the majority's ruling will injure all concernedharming not just our loan industry, but also the consumers of this state who will find it much more difficult to obtain credit. This Court today has taken upon itself the job of amending the clear language of § 8-8-5. The majority feels that this is necessary under the "golden rule of statutory interpretation that unreasonableness of the result produced by one among alternative possible interpretations of a statute is reason for rejecting that interpretation in favor of another which would produce a reasonable result." Fletcher v. Tuscaloosa Federal Savings & Loan Ass'n, 294 Ala. 173, 176, 314 So.2d 51, 53 (Ala.1975). What is reasonable to this Court may be very unreasonable to the banking and mortgage lending industry. And in following a court-made rule of statutory interpretation, the majority has violated a fundamental principle of our state government that the power to legislate lies with the Legislature, not this Court. In sum, I would affirm the Court of Civil Appeals' holding that the points cap of § 5-19-4(g) has no application to loans over $2,000 secured by real property. Section 8-8-5 is the exclusive authority for such loans. This Court is bound to adopt such a construction because it comports with the plain meaning of the statutes. Any change to this plain meaning must be made by the Legislature, not by this Court. I disagree with the rationale of the per curiam opinion because it disregards this plain meaning and clearly modifies § 8-8-5 by applying § 5-19-4(g), in violation of § 5-19-31(b). SEE, J., concurs. HOUSTON, Justice (concurring in the result, but disagreeing with part of the rationale). Section 5-19-31(b), Ala.Code 1975, provides in pertinent part: 899 "(b) This chapter [Chapter 19] shall not be construed to amend or repeal, without limitation, ... Section 8-8-5 ...." Section 5-19-4, Ala.Code 1975, is part of Chapter 19; therefore, § 8-8-5 is not "amended" by § 5-19-4. The per curiam opinion has § 5-19-4 amend § 8-8-5, in violation of the Legislature's plain, unambiguous language. When language is ambiguous and must be construed to ascertain its meaning, we should construe; but, whether the statute's language is plain or ambiguous, we should never legislate. The Legislature has more than once said what it meant. See 1989 Acts of Alabama, Act No. 89-541, § 2 ("Nothing in this chapter [Chapter 19] shall be construed to amend or repeal ... § 8-8-5...."); 1988 Acts of Alabama, Act No. 88-87, § 2 ("The provisions of this section ... shall not in any way repeal, amend or modify the provisions of Section 8-8-5, Code of Alabama 1975, as amended."). In Williams v. E.F. Hutton Mortgage Corp., 555 So.2d 158, 160 (Ala.1989), Justice Almon wrote for the Court: "Alabama Code 1975, § 8-8-5(a), allows persons to agree to pay such a rate of interest as they may determine, provided that the original principal balance of the loan is not less than $2,000...." Excepting only the application of unconscionability law (which was not applicable in Williams and is not applicable in the present case), "§ 8-8-5 exempts such loans from the application of `any law of this state otherwise prescribing or limiting [the] rate or rates of interest' paid on such loans." Id. Section 8-8-5(c) provides: "The term `interest' as used herein shall include all direct or indirect charges imposed as an incident to a loan, forbearance of money, or credit sales." MADDOX, J., concurs. NOTES [1] Subsection (g) now reads differently, because of a 1996 amendment by Act No. 96-576, 1996 Ala. Acts. See the discussion near the end of this opinion. [2] When the Mini-Code was enacted in 1971, the amount of a loan on which interest was unlimited stood at $100,000. Act No. 27, 1970 Extraordinary Session, 1969-70 Ala. Acts p. 2628. This amount was reduced to $5,000 in 1980. Act No. 80-435, 1980 Ala. Acts p. 659. Thus, the interest rate limitation imposed by § 5-19-3 on loans above $2,000 was superseded by § 8-8-5 from 1980 until 1996, when § 5-19-3 was amended by Act No. 96-576, 1996 Ala. Acts p. 887. [3] See Smith v. First Family Financial Services, Inc., 626 So.2d 1266, 1271 (Ala.1993). [4] This Court has obtained a copy of this informal opinion bearing the number 87-00293. [] Although Justice Almon and Justice Kennedy were not present at oral argument, they have reviewed the videotape of the oral argument. [5] The per curiam opinion characterizes loan points as being one more example of a § 5-19-1(1) "finance charge." I would note that § 5-19-3(e) limits the maximum finance charge allowed, but also clearly states that its limitation does not apply to loans over $2,000 because those loans are controlled by § 8-8-5. [6] I question how the banking industry can find any guidance at all in an opinion that states, "[D]iscount points cannot constitute the entire interest on a loan, but may only be a component of the total finance charge, not to exceed five percent." 708 So.2d at 892. (emphasis original).	{ "pile_set_name": "FreeLaw" }
182 B.R. 284 (1995) In re Raymond Jay STEELE and Judith Ann Steele, Debtors. Bankruptcy No. BK-94-15673-LN. United States Bankruptcy Court, W.D. Oklahoma. May 12, 1995. 285 Kenneth C. McCoy, Oklahoma City, OK, for debtors. Don J. Timberlake, Oklahoma City, OK, for Liberty Mortg. Co. ORDER ON MOTION FOR RELIEF FROM AUTOMATIC STAY, FOR ABANDONMENT OF PROPERTY, OR ALTERNATIVELY SEEKING ADEQUATE PROTECTION PAUL B. LINDSEY, Chief Judge. BACKGROUND Debtors commenced this case on October 11, 1994, by filing their voluntary petition under Chapter 13 of the Bankruptcy Code.[1] In their original Chapter 13 plan, filed with their petition, debtors proposed to make 36 monthly plan payments of $700, and to make monthly payments of $370 to Liberty Mortgage Company ("Liberty") on their home mortgage outside the plan, rather than through the Chapter 13 Trustee ("Trustee"). The plan reflected no pre-petition arrearages to be cured pursuant to § 1322(b)(5).[2] On November 1, 1994, Liberty filed its Objection to Amended Chapter 13 Plan of Debtors.[3] In the objection, Liberty set out the amount required for payoff of the mortgage loan, as shown in its proof of claim. Liberty also asserted that, while the plan reflected no pre-petition arrearage, such an arrearage did in fact exist, in the amount of approximately $1,000, and that the same was shown in Liberty's proof of claim. Subsequently, on November 16, 1994, debtors filed their first amended Chapter 13 plan. In it, as in the original plan, debtors proposed to make 36 payments of $700 per month. The amended plan stated that the first plan payment would be made in December 1994. Debtors proposed to pay the ongoing mortgage payments of $370 per month through the Trustee, rather than outside the plan, as originally proposed, and to cure arrearages through November 1994, said to be in the approximate amount of $990, with interest at 8% per annum, by monthly payments of $54.09 while administrative claims were being paid, and $93.52 thereafter until paid in full. Debtors' first amended plan was unusual, to say the least, in several particulars. In Chapter 13, if a plan is not filed with the petition, one must be filed within 15 days thereafter.[4] Debtors are required to commence making plan payments within 30 days after their plan is filed, unless the court orders otherwise.[5] Debtors' plan was filed with their petition, on October 11, 1994. Their plan payments to the Trustee, therefore, should have commenced no later than November 10, 1994. Debtors did not seek the entry of an order permitting a delayed commencement of plan payments. Absent such a preconfirmation order, only a confirmed plan which called for the first plan payment to be made in December 286 1994 could support an exception to the rule prescribed by the statute. No objection to the proposed deferral of the first plan payment was interposed, by Liberty or any other party in interest, and it ultimately became a part of debtors' confirmed plan. Debtors' first amended plan contained no explanation of how the ongoing $370 monthly mortgage payments could be made through the Trustee, rather than outside the plan, since the total number of plan payments, 36, and amount of each payment, $700, were unchanged. The amount of arrearages proposed to be paid under the first amended plan is approximately the same as the amount set out in Liberty's proof of claim. The first amended plan, however, specifies that the arrearages to be paid are those incurred "thru November 1994." The arrearages contained in Liberty's proof of claim were accrued prepetition. Under the terms of the mortgage, payments were due on the first of the month and became delinquent on the 10th. Liberty, in its proof of claim, includes interest accrued from August 1 to October 11, 1994. This indicates that the two missed payments included in its arrearage claim were the September and October 1994 payments. In debtors' first amended plan, however, the first post-petition payment, that which became due in November 1994, was included in the amount of arrearages proposed to be cured through the plan. Thus, debtors' first amended plan proposed to include one missed post-petition payment in the arrearage to be cured. Liberty's arrearage proof of claim included only payments which had been missed prepetition. The plan contains no explanation of how, in the circumstances, the amount proposed to be paid during the term of the plan to cure the arrearage could remain approximately the same as the amount claimed by Liberty.[6] As is discussed above, debtors proposed in their first amended plan to combine arrearages arising out of prepetition and post-petition defaults into a single unit, and to cure them in their entirety under § 1322(b)(5). Until recently, this court knew of no authority specifically permitting the cure of post-petition defaults under § 1322(b)(5).[7] On November 23, 1994, the Trustee filed her objection to confirmation of debtors' first amended plan, asserting that the plan was not feasible and that the attorney fees provided for exceeded a reasonable amount,[8] and the Oklahoma Tax Commission ("OTC") filed its objection to confirmation, based upon debtors' failure to file certain income tax returns and to provide for payment in full for certain priority tax liabilities.[9] Also on November 23, 1994, debtors filed their second amended plan. The treatment of the Liberty claims, including the arrearage, remained as in the first amended plan, but the discrepancy in the plan payment amount was resolved by providing for an increase in the amount of the 36 monthly plan payments to $1,070. The proposal to commence plan payments in December 1994 remained unchanged. On December 5, 1994, the Trustee objected to confirmation of the second amended plan, alleging unreasonable attorney fees and debtors' failure to account for all funds being paid into the plan. On December 19, 1994, a hearing was held on confirmation of the debtors' second amended plan. Debtors, OTC and the Trustee appeared by counsel, OTC and the Trustee withdrew their objections to confirmation and the plan was conditionally confirmed, reserving the issue of the reasonableness of counsel's attorney fees and expenses. There was no appearance on behalf of Liberty at the confirmation hearing. Pursuant to an application, appropriate notice and a hearing held December 20, 1994, 287 the court entered an order awarding compensation and expenses to counsel for debtors in the total amount of $1,515.78. An order confirming debtors' Chapter 13 plan was signed by the court on January 6, 1995 and filed January 12, 1995. This order provided for 36 monthly plan payments of $1,070, a "base amount" of $38,520. Attorney fees awarded to debtor's counsel were to be paid $593 out of the first plan payment and $250 out of each succeeding payment until paid in full. Liberty's first mortgage claim, shown as "fully secured," was to be paid at $363 per month, the amount required pursuant to the mortgage note. Liberty's arrearage claim, also shown as "fully secured," was to be paid, with interest at 8% per annum, at $93.52 per month.[10] THE CURRENT MOTION On February 28, 1995, Liberty filed its Motion for Relief from Automatic Stay and Abandonment of Property, or Alternatively Seeking Adequate Protection, with supporting brief. Liberty asserts that there have been post-petition defaults in debtors' mortgage obligation, that the $363 monthly payments for November and December 1994, and January and February 1995, a total of $1,452, have not been made, that attorney fees and bankruptcy court costs of $310 have been incurred, and that the only payment received by Liberty has been $198.64 received from the Trustee on February 1, 1995. In response, debtors simply assert that there is equity in the property, that it is debtors' principal residence, that it is necessary for their effective reorganization, and that debtors have made all plan payments required of them. It appears clear that under their second amended plan, debtors did not propose to make a plan payment in the month of November 1994, and that therefore no payments would be made to creditors by the Trustee for that month.[11] Similarly, that plan plainly provided that administrative expenses, consisting of the attorney fees and expenses awarded to counsel, estimated at $1,500, would be paid $593 from the first plan payment and $250 from each subsequent payment until the entire amount was paid in full. Those fees and expenses would therefore be paid out of the first five monthly plan payments. As is discussed above, the second amended plan also provided that Liberty's arrearage claim would be paid at $54.09 per month "while administrative fees are being paid" and $93.52 per month thereafter until paid in full. Except for the reference to the reduced payment on Liberty's arrearage claim, the plan contained no reference to or explanation of how other claims would be paid in the early months of the plan, when a significant portion of the total plan payments would be diverted to pay administrative expenses. Neither did the plan contain any indication that debtors wished to prefer or favor Liberty over the holders of other secured claims, or any direction to or authority for the Trustee to do so. In the absence of any such indication or direction, the Trustee had no authority to take any action beyond simply withholding the appropriate Trustee fee, making the prescribed payments to the administrative claim of counsel for debtors, making the prescribed payment on Liberty's arrearage claim, and distributing whatever remained of each plan payment to the holders of secured claims, pro rata.[12] Necessarily in these circumstances, each such holder would receive less than a full payment out of each of the first five plan payments. At the hearing on Liberty's motion, the following statement was made by counsel for Liberty: 288 Our position, I reiterate one more time, is that first of all, this is an unusual district. No other districts allow this type of a, in our opinion, impressible modification of the terms of the note and mortgage; that is, that the payments on a post-petition basis are due on the 1st of the month, delinquent on the 10th. The Code means what it says, that you have to make the ongoing payments on a timely basis. DISCUSSION This court, to which all Chapter 13 cases in this judicial district are now assigned, has previously faced and addressed the issues raised by Liberty, in In re Rogers, No. BK-92-13424-LN, 1993 WL 773862, Order dated April 14, 1993 (Bankr.W.D.Okla.). The issues raised in that case are virtually identical to those raised here. In this court's view, the solutions suggested are entirely appropriate to the circumstances here presented. Since Rogers was not published, its holding and dictum are not familiar to many members of the bar of this court. It is therefore appropriate that the court quote extensively from Rogers in this order. In Rogers, the holder of debtors' home mortgage moved to dismiss debtors' bankruptcy case after confirmation of debtors' plan, claiming that debtors had failed to make the required payments under the plan. In fact, all plan payments had been made, but debtors had not made the mortgage payment which became due after the filing of the petition but before the first plan payment was required to be made. It is not clear whether, as here, payments to the creditor had been reduced due to payment of administrative expenses in the early months of the plan. In any event, the movant alleged that he had been "shorted" by an amount equal to approximately one and one-half monthly payments over an eight month period. In Rogers, this court first determined that in the circumstances present in that case, movant was bound, under principles of res judicata, by the provisions of the confirmed plan, and that therefore the motion to dismiss could not be granted.[13] It also determined, however, that while certain of the contentions of movant were without support in the law, other contentions, with regard to the effect of post-petition defaults, had merit. It was therefore concluded that a thorough discussion of the issues raised, and of possible solutions which could be employed in future cases, was warranted. This court's discussion in Rogers, in material part, was as follows: It should first be noted that while [Creditor] contends that Debtors have violated § 1322(b)(2) by modifying [Creditor's] rights, Debtors' plan proposes to cure arrearages and maintain regular post-petition payments under § 1322(b)(5), which by its own terms may be employed "notwithstanding paragraph (2) of this subsection." Thus, Debtors' plan, if it complies with § 1322(b)(5), does not violate § 1322(b)(2). [Footnote omitted.] The crux of [Creditor's] argument is that the first post-petition payment was not made and that it will be made up by the Trustee, but over the entire term of the Chapter 13 plan in this case, 57 months. Thus, [Creditor] apparently contends that regular post-petition payments are not being maintained and that therefore § 1322(b)(5) is not complied with. Debtors' counsel, at the hearing and in his brief, conceded that the first post-petition mortgage payment is frequently not made, and that the Trustee is relied upon to make up the amount of the payment over the term of the plan from funds earmarked for other purposes. He asserted, however, that this failure is the fault of the Congress and not of Debtors, and stated that the ability to skip the first post-petition payment is simply 289 another benefit that the Bankruptcy Code confers upon Chapter 13 debtors. This court does not agree. The fact that the Code does not require the first plan payment to be made to the Trustee until 30 days after the filing of the plan does not relieve Debtors of their ongoing contractual obligation to [Creditor] during that period. Counsel for Debtors would treat that period as though it did not exist, and would depend upon the Trustee to "cure" any arrearage which arose during that time. This court knows of no authority in the Code which specifically addresses post-petition arrearages. Similarly, no provision in Debtors' plan appears to address the issue. Counsel simply assumes that the Trustee will automatically take on responsibility for "curing" Debtors' failure to make the first post-petition payment required by their note and mortgage instruments, and that she will somehow find the funds within subsequent plan payments with which to effect this "cure." Apparently, the Trustee also assumes that she is responsible for this "cure," and in the past, without any specific authority or direction, over the life of the plan, she has simply done so, from whatever funds could be found for that purpose. The result has been that secured creditors have been required to wait for as long as five years to receive the full amount of a payment which should have been made to them within the first month of bankruptcy. This practice appears to be inconsistent with, and impermissible under, the provisions of § 1322(b)(5), under which debtors must propose to cure any pre-petition defaults within a reasonable time while maintaining regular payments during the pendency of the case, where the last payment would be due after the last payment under the plan. Counsel for debtors appears to contend that since the Code does not require Debtors to make their first plan payment to the Trustee until 30 days after the filing of a plan, Debtors are somehow either prohibited from or permitted to forego making payments on ongoing obligations which are to be dealt with under the plan. This contention may most charitably be characterized as specious. If Debtors expect to convince their creditors, the Chapter 13 Trustee, and ultimately this court, that they will be able to make all payments proposed under their plan, i.e., to establish the feasibility of their plan under § 1325(a)(6), they should make contractual payments coming due between the petition date and the date of the first payment to the Trustee under the proposed plan, either directly to the creditor as before bankruptcy, or to the Trustee in anticipation of the provision for future payments under the plan. If, for whatever reason, such payment is not made, the post-petition default should be promptly disclosed and specific provision should be made in the plan for its cure during the early months of the plan. Post-petition default in regular payments and failure to provide for an early cure under the plan, in cases where Debtors propose to proceed under § 1322(b)(5), may constitute grounds for denial of confirmation to the plan, when a timely objection has been filed and served. Post-petition default in regular payments will often result in the affected creditor seeking relief from the automatic stay in order to enforce its rights, or alternatively, seeking adequate protection. In such instances, if relief from the stay is denied, the court should require, as adequate protection, inter alia, that debtors make payments, in amounts over and above the amount provided for by the plan or by the mortgage documents, until the post-petition arrearage has been cured. As an example, Debtors could be required to make payments equal to one and one-half or two times the contractual mortgage payment until the post-petition arrearage is cured. Such payments should be designed to cure the arrearage within a very few months. Any argument that debtors can not afford additional payments would be unpersuasive in most cases, since the arrearage will have been created in the first instance by debtors having retained, or expended elsewhere, the funds which should have been 290 paid either to the creditor or to the Trustee. In addition, adequate protection for the creditor in such instances should include, at the least, reasonable access to the property for inspection, proof of appropriate insurance coverage, and provision for immediate relief from the automatic stay in the event of any subsequent default, if not cured within 72 hours after telephonic notice thereof. Rogers, supra, pages 4-7. As in Rogers, the creditor in this case, Liberty, must be held to be bound by the provisions of the confirmed plan. While Liberty objected to confirmation of debtors' original plan, that objection consisted solely of asserting the amount owed to it and that debtors had failed to schedule Liberty's arrearage claim. Liberty has been at all times treated by debtors as fully secured, and the failure of debtors to schedule the arrearage claim was corrected by the listing and treatment of the claim in debtors' first and second amended plans. Liberty filed no objection to the confirmation of either debtors' first or second amended plan and, as is noted above, did not appear at the hearing at which conditional confirmation of debtors' second amended plan was ordered. Liberty did not seek reconsideration of the court's subsequent order confirming debtors' plan, nor did it prosecute an appeal from that action. As a result, it may not now be heard to complain that it has been disadvantaged by actions which were clearly contemplated in the plan which was ultimately confirmed. In Nobelman v. American Savings Bank, ___ U.S. ___, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993), it was held that § 1322(b)(2) protected from plan modification all of the prepetition state law rights of the holder of a claim secured only by a security interest in the debtor's principal residence, rather than only its rights with respect to its allowed secured claim, as determined under § 506(a).[14] Although counsel for Liberty did not specifically cite Nobelman in his above-quoted verbal attack upon this court's administration of this portion of the Bankruptcy Code, it appears that he believes that case's prohibition on modification of the rights of a secured creditor are applicable to the facts of this case. Such is simply not the case. As this court pointed out in Rogers, the provision under which debtors' plan in this case treats the claims of Liberty, § 1322(b)(5), operates notwithstanding the provisions of § 1322(b)(2).[15] Thus, a plan which proposes to maintain payments postpetition on debtors' home mortgage, while curing defaults in a reasonable time, as required by § 1322(b)(5), does not propose a modification of the creditor's rights such as is prohibited by Nobelman. Counsel for Liberty is simply wrong if he seeks to impress the holding in Nobelman upon the operation of § 1322(b)(5). This court is confident that he is equally wrong when he asserts that this court is the only adherent to the position that the application of § 1322(b)(5) is not affected by Nobelman. It is difficult to envision statutory language which would be any clearer than "notwithstanding paragraph (2) of this subsection." If counsel's argument is limited to the "reasonable time" and "maintenance of payments" language of § 1322(b)(5), further discussion is appropriate. This further discussion, however, does not change the conclusion 291 already stated, that Liberty is bound by the terms of the confirmed plan. In Green Tree Acceptance, Inc. v. Hoggle (In re Hoggle), supra, 12 F.3d 1008 (11th Cir.1994), decided more than six months after Nobelman, the relatively narrow holding of the court was that the district court had authority to modify a confirmed Chapter 13 plan to allow the debtor to cure, under § 1322(b)(5), a postconfirmation default with reference to a secured claim on the debtor's house. The opinion in Hoggle contains no citation or reference whatever to Nobelman. It must be assumed, therefore, that the creditor in that case made no claim of its applicability in the circumstances of that case. In construing §§ 1322 and 1329,[16] the Hoggle court applies the rule of statutory construction which dictates that the plain meaning of a statutory provision is in most instances conclusive.[17] The court also relies upon a leading bankruptcy treatise, in which it is concluded that § 1322(b)(5) "may be utilized to cure postpetition defaults as well as prepetition defaults."[18] The creditor in Hoggle argued that a § 1329 modification could not comply with § 1322, because § 1322 would not permit a provision in an original plan for curing postconfirmation defaults. The court rejects that argument, stating that it sees no logical reason why an original plan could not contain such a provision. The court gives as an example a provision authorizing the cure of a subsequent failure to make payment by the default date in a mortgage by making such payment within five days after the default date. The creditor in Hoggle also argued that such a provision in an original plan, permitting in effect an anticipatory modification to cure a postconfirmation default, would violate the dual requirements of § 1322(b)(5) for "maintenance of payments" and cure within a "reasonable time." The court rejects the argument, again citing the example of an automatic five day cure period after default. The court, however, at that point in its opinion, makes clear the limited scope of its holding, as follows: [Creditor] does not contend that the particular modifications in the instant case constitute an abuse of discretion. Nor does [creditor] argue that the amortization scheme approved in this case the missed confirmation payment was amortized over the balance of the term of the plan constituted a waiver of a payment and thus failed to satisfy the required "maintenance of payments." Rather, [creditor] argues that in no case could a cure of a postconfirmation default satisfy § 1322(b)(5)'s "maintenance of payments" and "reasonable time" requirements. Thus, we do not address the issue of whether the district court abused its discretion in approving the instant modification. Nor do we address the issue of whether the "maintenance of payments" requirement is satisfied by allowing a payment to be deferred and amortized over the balance of the term of the plan; that issue was not fairly presented either in the district court or on appeal. Hoggle, 12 F.3d at 1011, n. 4. The Hoggle court then determines that "[r]eading the statutory scheme to permit the cure of any defaults, even those occurring postconfirmation, falls within the letter and spirit of the statutory scheme, according the flexibility Congress intended for homeowners 292 in proposing and modifying their Chapter 13 plans." Hoggle, 12 F.3d at 1011. The court goes further, however, in explaining its ruling, as follows: This solution does not, as [creditor] urges, deprive the home lender of protection. The Bankruptcy Court possesses ample powers to prevent successive or abusive attempted modifications. See, e.g., 11 U.S.C. § 105(a). Further, each modification must comply with the requirements outlined in § 1329, including adherence to § 1322(b)(5). Therefore, in each instance where the debtor proposes a postconfirmation modification, a judicial inquiry should be undertaken to determine whether a proposed modification to cure a default will comport with § 1322(b)(5)'s requirements that such a cure be effected within a reasonable time and simultaneously maintain payments on the long term loan. Hoggle, 12 F.3d at 1011-12. This court is in complete agreement with the analysis and conclusions of the Hoggle court, including its determinations regarding protection of home lenders from successive or abusive modifications. It is not altogether clear, however, whether the Hoggle court would require that a judicial inquiry into adherence with the requirements of § 1322(b)(5) be undertaken in cases where proper notice of the proposed action was given and no party in interest raised an objection. This court does not believe that a hearing should be required in such a case. The home lender may not stand idly by and rely upon the trustee or the court to protect its rights. If it does so, and the proposed modification is ultimately approved, whether or not after hearing and over objection, it will be bound, as was the creditor in Rogers, and as is Liberty in this case, by the provisions of the plan as modified, under principles of res judicata. The court should not be expected or required to hold a hearing on and fully adjudicate each request for modification in order to cure a postpetition default under § 1322(b)(5), if proper notice of the nature and extent of what is proposed pursuant to the modification has been given to all parties in interest and no objection is heard. To require otherwise would constitute an inappropriate and wasteful use of judicial resources, and would be unnecessarily contrary to § 102(1).[19] This court has set out, in Rogers, what it believes constitute appropriate solutions to the problem of postpetition defaults in most of the cases in which the problem addressed in this case exists. That is not to say that the court countenances postpetition defaults by debtors upon their obligations, including those which they have undertaken in connection with a Chapter 13 plan. Unless a debtor can establish that a postconfirmation default was due to circumstances unforeseen and reasonably unforeseeable at the time of confirmation, modification of the confirmed plan to cure that default should not be granted over the objection of a party in interest who has been or will be adversely affected. Similarly, if debtors are unable to explain and justify postpetition defaults which occur prior to confirmation, the court may consider such defaults as evidence that the plan may not be feasible; i.e., that the debtor may not be able to make all payments required by the plan, at least in instances where an objection to confirmation has been filed.[20] After a hearing in a contested request for modification, the court may determine that modification should be permitted, but that the circumstances require that the order *293 condition the grant of authority, provide protections for the creditor, or both. In that event, the court possesses ample authority to fashion appropriate remedies under virtually any set of circumstances, as necessary, in order to grant relief to debtors and afford protection to creditors.[21] For the reasons set forth herein, the motion of Liberty for relief from the automatic stay, for abandonment of property, and alternatively for adequate protection, will be denied. IT IS SO ORDERED. NOTES [1] References herein to statutory provisions by section number only will be to provisions of the Bankruptcy Code, 11 U.S.C. §§ 101 et seq., unless the context requires otherwise. [2] Section 1322(b)(5), in material part, permits a plan to provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any secured claim on which the last payment is due after the date on which the final payment under the plan is due. [3] In fact, no amended plan had been filed at that time, and it is assumed that reference to an amended plan in the caption of the objection was in error. [4] Rule 3015(b), Fed.R.Bankr.P. [5] Section 1326(a)(1). [6] The court will grant to Liberty the right to file an amended arrearage claim to include the November payment. [7] See Green Tree Acceptance, Inc. v. Hoggle (In re Hoggle), 12 F.3d 1008 (11th Cir.1994), and discussion, infra. [8] See Sections 1325(a)(6), 503(b)(2) and 330(a)(1). [9] See Section 1322(a)(2). [10] As is noted above, both the first and second amended plans provide that the arrearage claim would be paid at $54.09 per month "while administrative fees are being paid," then at $93.52 per month until paid in full. [11] It is the practice of the Trustee to make distributions to creditors pursuant to confirmed plans only on the first business day of each month. Thus, a plan payment made to the Trustee at any time during one month will ordinarily not be distributed until the following month. [12] The record does not reflect whether payments on the arrearage claim in the early months of the plan were made in the reduced amount provided for in the second amended plan or in the greater amount provided for in the order confirming the plan. [13] Section 1327(a) is as follows: "(a) The provisions of a confirmed plan bind the debtor and each creditor, whether or not the claim of such creditor is provided for by the plan, and whether or not such creditor has objected to, has accepted, or has rejected the plan." Upon becoming final, the order confirming a chapter 13 plan represents a binding determination of the rights and liabilities of the parties as ordained by the plan. Absent timely appeal, the confirmed plan is res judicata and its terms are not subject to collateral attack. See 5 Collier on Bankruptcy, ¶ 1327.01[1], 1327-2 (15th Ed.1995). See In re Szostek, 886 F.2d 1405 (3rd Cir.1989); Commonwealth of Pennsylvania v. Flick (In re Flick), 5 C.B.C.2d 494, 14 B.R. 912 (Bankr.E.D.Pa.1981). [14] Section 1322(b)(2) provides that a Chapter 13 plan may: "(2) modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor's principal residence, or of holders of unsecured claims, or leave unaffected the rights of holders of any class of claims." Section 506(a) generally provides, insofar as is applicable here, that an allowed claim which is secured by property in which the estate has an interest is a secured claim to the extent of the value of the creditor's interest in the estate's interest in the property, and is an unsecured claim to the extent that such value is less than the amount of the claim. [15] Section 1322(b)(5) provides that a Chapter 13 plan may: "(5) notwithstanding paragraph (2) of this subsection, provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due." [16] Section 1329, in material part, permits modification of a confirmed Chapter 13 plan before completion of payments upon request of the debtor, the trustee, or the holder of an allowed unsecured claim: To increase or reduce the amount of payments on claims of a particular class provided for by the plan; to extend or reduce the time for such payments; or to alter the amount of the distribution to a creditor whose claim is provided for by the plan to the extent necessary to take account of any payment of such claim other than under the plan. [17] Citing United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989) and Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982). [18] See 5 Collier on Bankruptcy, ¶ 1322.09[1], at 1322-19 (15th Ed.1993). [19] Section 102 provides rules of construction for terms used in the Bankruptcy Code. Section 102(1) is as follows: (1) "after notice and a hearing", or a similar phrase (A) means after such notice as is appropriate in the particular circumstances, and such opportunity for a hearing as is appropriate in the particular circumstances; but (B) authorizes an act without an actual hearing if such notice is given properly and if (I) such a hearing is not requested timely by a party in interest; or (Ii) there is insufficient time for a hearing to be commenced before such act must be done, and the court authorizes such act. [20] See § 1325(a)(6). [21] See, e.g., § 105(a).	{ "pile_set_name": "FreeLaw" }
476 U.S. 253 (1986) BROCK, SECRETARY OF LABOR v. PIERCE COUNTY No. 85-385. Supreme Court of United States. Argued April 1, 1986 Decided May 19, 1986 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT 254 Andrew J. Pincus argued the cause for petitioner. With him on the briefs were Solicitor General Fried, Deputy Solicitor General Geller, Allen H. Feldman, Mary-Helen Mautner, and Steven J. Mandel. Joseph F. Quinn argued the cause for respondent. With him on the brief was William H. Griffies.[] JUSTICE MARSHALL delivered the opinion of the Court. Section 106(b) of the Comprehensive Employment and Training Act (CETA), 92 Stat. 1926, 29 U. S. C. § 816(b) (1976 ed., Supp. V), provides that the Secretary of Labor 255 (Secretary) "shall" issue a final determination as to the misuse of CETA funds by a grant recipient within 120 days after receiving a complaint alleging such misuse. The question presented in this case is whether the Secretary loses the power to recover misused CETA funds after that 120-day period has expired. I Before its repeal in 1982,[1] CETA provided for grants of federal funds to certain qualified entities known as "prime sponsors," principally state and local governments, for programs "provid[ing] job training and employment opportunities for economically disadvantaged, unemployed, or underemployed persons," 29 U. S. C. § 801 (1976 ed., Supp. V).[2] The statute contains detailed requirements concerning the operation of a CETA program and the training, pay, and terms of employment of participants in a program, see §§ 823-827. A prime sponsor must submit to the Secretary a plan detailing the operation of the proposed program and containing assurances that the program will comply with the statute and with the Secretary's regulations, § 813. CETA grants the Secretary broad authority to ensure that CETA funds are used in accordance with the statute and regulations. The Secretary may audit a grant recipient, and in connection with such an audit may inspect records, question employees, and enter any premises upon which the program is conducted. § 835(a)(2). Any interested person, such as a participating employee, may file a complaint with the Secretary alleging that a grant recipient is failing to comply with the applicable standards. § 816. Section 106(b), 29 U. S. C. § 816(b), which is the provision at issue in this lawsuit, requires that whenever the Secretary 256 has reason to believe, through a complaint, an audit, or otherwise, that any grant recipient is misusing CETA funds or violating any statutory or regulatory standards, the Secretary "shall investigate the matter."[3] The same section goes on to require that the Secretary "shall" determine "the truth of the allegation or belief involved, not later than 120 days after receiving the complaint." II Respondent is a county in the State of Washington that received CETA funds from 1974 through 1977 pursuant to two separate grants. On September 19, 1978, the Labor Department's Office of Special Investigations filed an audit report concerning respondent's first grant. That Department's Grant Officer issued a final determination on February 13, 1981, disallowing approximately $110,000 in costs incurred by respondent on the grounds that those costs related to employees who were not eligible to participate in a CETA program. On December 11, 1978, the Department's Office of the Inspector General filed an audit report with respect to the second grant, again raising questions concerning ineligible 257 participants. On April 22, 1981, the Grant Officer issued a final determination which he corrected on May 22, 1981, finally disallowing $373,000 in costs arising out of the second grant. Respondent sought review of both final determinations before an Administrative Law Judge (ALJ) of the Labor Department. The ALJ disallowed the smaller sums of $108,000 and $265,000, respectively, in the two cases. In both cases, respondent argued that the Secretary could not order respondent to repay these sums because the Grant Officer's final determination had been issued considerably more than 120 days after submission of the initial audit report. While conceding that the Secretary did not lose jurisdiction to make a determination after 120 days had passed, respondent argued that it had suffered prejudice because of the lengthy delay. The ALJ rejected this claim in both cases, finding no specific instances of prejudice. The Court of Appeals for the Ninth Circuit reversed. Pierce County v. United States, By and Through Dept. of Labor, 759 F. 2d 1398 (1985). That court had previously decided, in City of Edmonds v. United States Dept. of Labor, 749 F. 2d 1419 (1985), that Congress, in enacting § 106(b), had intended to prevent the Secretary from acting on a complaint unless the Secretary's final determination was issued within 120 days from his receipt of the complaint. In the present case, the Court of Appeals decided that the statutory command to the Secretary to issue a final determination "not later than 120 days after receiving the complaint" also required the Secretary to make a determination within 120 days when the allegation or belief is a result of the Secretary's own audit rather than a third-party complaint.[4] This 258 decision conflicts with decisions of the Second, Seventh, and Eighth Circuits.[5] We granted certiorari to resolve the conflict, 474 U. S. 944 (1985), and we now reverse. III As Judge Friendly noted in a case raising the identical issue, the proposition that Congress intended the Secretary to lose the authority to recover misspent funds 120 days after learning of the misuse "is not, to say the least, of the sort that commands instant assent." St. Regis Mohawk Tribe, New York v. Brock, 769 F. 2d 37, 41 (CA2 1985) (footnote omitted), cert. pending, No. 85-949. We must therefore examine carefully the statutory language and legislative history to determine whether Congress did indeed desire this somewhat incongruous result. A The Ninth Circuit held that the plain meaning of the statutory command that the Secretary "shall" take action within 120 days was sufficient to demonstrate that Congress meant to bar further action after that period had expired. City of Edmonds, 749 F. 2d, at 1421. Noting that "[s]tatutory language is generally construed according to the plain meaning of the words used by Congress `absent a clearly expressed 259 legislative intention to the contrary,' " ibid. (quoting Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U. S. 102, 108 (1980)), and finding no such contrary legislative intent, the Ninth Circuit held that the 120-day limit was jurisdictional. The Secretary, however, notes that while § 106(b) speaks in mandatory language, it nowhere specifies the consequences of a failure to make a final determination within 120 days. The Secretary relies on a line of precedent in the Courts of Appeals to the effect that Government agencies do not lose jurisdiction for failure to comply with statutory time limits unless the statute " `both expressly requires an agency or public official to act within a particular time period and specifies a consequence for failure to comply with the provision.' " St. Regis Mohawk Tribe, supra, at 41 (quoting Fort Worth National Corp. v. Federal Savings & Loan Ins. Corp., 469 F. 2d 47, 58 (CA5 1972)).[6] Having specified no consequences for the failure to make the determination required by § 106(b) within 120 days, the Secretary argues, the courts should not impute to Congress the desire to remedy such a failure by preventing the Secretary from protecting both the public fisc and the integrity of a Government program. This Court has never expressly adopted the Circuit precedent upon which the Secretary relies. However, our 260 decisions supply at least the underpinnings of those precedents. This Court has frequently articulated the "great principle of public policy, applicable to all governments alike, which forbids that the public interests should be prejudiced by the negligence of the officers or agents to whose care they are confided." United States v. Nashville, C. & St. L. R. Co., 118 U. S. 120, 125 (1886). See also Guaranty Trust Co. v. United States, 304 U. S. 126 (1938); Stanley v. Schwalby, 147 U. S. 508, 515 (1893). We would be most reluctant to conclude that every failure of an agency to observe a procedural requirement voids subsequent agency action, especially when important public rights are at stake. When, as here, there are less drastic remedies available for failure to meet a statutory deadline,[7] courts should not assume that Congress intended the agency to lose its power to act. 261 The Ninth Circuit rejected the Fort Worth National line of precedent as being inconsistent with this Court's decision in Mohasco Corp. v. Silver, 447 U. S. 807 (1980). In Mohasco, we held that an action filed by a private plaintiff after the expiration of the 300-day time period provided in § 706(e) of the Civil Rights Act of 1964, 42 U. S. C. § 2000e-5(e), was jurisdictionally barred. In so holding, we gave controlling weight to the literal meaning of the statutory provisions, which stated that "a charge under this section shall be filed" within the specified time limits. See 447 U. S., at 815-817. However, there are two clear differences between the present case and Mohasco. First, legislatures routinely create statutes of limitations for the filing of complaints, and Congress' intention to create a statute of limitations in § 706(e) was certainly unexceptional. Indeed, the plaintiff in Mohasco nowhere alleged that § 706(e) was not a statute of limitations, but rather contended that the word "filed" should be defined in a way that would render his action timely. 447 U. S., at 818. Section 106(b), by contrast, does not merely command the Secretary to file a complaint within a specified time, but requires him to resolve the entire dispute within that time. This is a more substantial task than filing a complaint, and the Secretary's ability to complete it within 120 days is subject to factors beyond his control. There is less reason, therefore, to believe that Congress intended such drastic consequences to follow from the Secretary's failure to meet the 120-day deadline. Second, Mohasco involved a private right of action, and the plaintiff's failure to file a complaint prejudiced only that plaintiff. In the present case, by contrast, public rights are at stake, and the Secretary's delay, under respondent's theory, would prejudice the rights of the taxpaying public. Respondent suggests that statutes setting deadlines for agency action should be interpreted to permit the agency to proceed after the deadline has expired only when agency inaction would prejudice a private citizen seeking some sort of 262 redress. When, as in this case, agency inaction will injure only the Federal Treasury, courts should read a command like that of § 106(b) as a statute of limitations or jurisdictional bar. We disagree with this argument for two reasons. First, the protection of the public fisc is a matter that is of interest to every citizen, and we have no evidence that Congress wanted to permit the Secretary's inaction to harm that interest any more than it would permit such inaction to injure an individual claimant. Second, the 120-day deadline clearly applies to investigations triggered by private complaints alleging that the individual complainant, perhaps a program participant or subcontractor, has been injured by a grant recipient's failure to comply with CETA's requirements. Indeed, the federal courts have uniformly held that the statutory complaint mechanism is the sole means of redress for a private party injured by a grant recipient's violation of CETA.[8] Thus, even under respondent's theory, § 106(b) cannot be jurisdictional, because it would then permit the Secretary's inaction to prejudice individual complaints seeking to enforce their rights under CETA. We hold, therefore, that the mere use of the word "shall" in § 106(b), standing alone, is not enough to remove the Secretary's power to act after 120 days.[9] B Looking to other sources of congressional intent, we have found nothing in the history of the 1978 amendments to CETA, which added the 120-day deadline, to suggest that Congress intended to impose a jurisdictional limitation on 263 agency action. The only explicit discussion of the jurisdictional effect of the 120-day provision was a brief colloquy on the House floor between Representative Hawkins, one of the bill's sponsors, and Representative Obey, who offered the amendment that added the 120-day deadline: "Mr. HAWKINS. Mr. Chairman, we have seen the amendment. We accept the amendment. "If the gentleman would further yield, do I understand. . . that if the determination is not made in a specified time it shall not affect the Secretary's jurisdiction in the matter? "Mr. OBEY. That is correct. "Mr. HAWKINS. With that understanding we do accept the amendment." 124 Cong. Rec. 25230-25231 (1978). Such statements by individual legislators should not be given controlling effect, but when they are consistent with the statutory language and other legislative history, they provide evidence of Congress' intent. Grove City College v. Bell, 465 U. S. 555, 567 (1984). In this case, the legislative history fully supports Representative Hawkins' interpretation of § 106(b). One of the principal concerns underlying the 1978 amendments was the growing incidence of fraud and misuse of CETA funds by state and local governments. See H. R. Rep. No. 95-1124, pp. 3, 5, 13 (1978) (noting "widespread concern that there has been substantial fraud and abuse in the CETA program and insufficient staff devoted to monitoring and supervising the program"); S. Rep. No. 95-891, pp. 42-44 (1978). A primary purpose of the amendments was to strengthen the Secretary's hand in dealing with illegal practices. Thus the amendments contained numerous antifraud measures, including a provision for criminal sanctions, 18 U. S. C. § 665(a) (1976 ed., Supp. V), bonding requirements for grant recipients, 29 U. S. C. § 836, and authorization for the Secretary to terminate or suspend funding or to 264 take other corrective measures, § 816. In a separate bill, Congress created an Office of the Inspector General in the Labor Department. See Inspector General Act of 1978, Pub. L. 95-452, 92 Stat. 1101 (now codified as amended at 5 U. S. C. App. §§ 1-12. The Conference Report for the 1978 CETA amendments made it clear that Congress expected the Secretary "to provide, within the new Office of Inspector General, for a unit whose sole responsibility will be that of monitoring the CETA program." H. R. Conf. Rep. No. 95-1765, p. 123 (1978). Congress was particularly concerned about the ability of program participants such as contractors, subgrantees, and employees to voice grievances and receive a prompt resolution. See St. Regis Mohawk Tribe, New York v. Brock, 769 F. 2d, at 43 (citing House and Senate hearings on 1978 amendments). The Senate noted that "[i]n some cases grievances have been either ignored, or there has been interminable delay in their resolution." S. Rep. No. 95-891, supra, at 42. In response to this problem, Congress required, in § 106(a), that each prime sponsor establish a grievance procedure that would provide for hearings and require a decision within 60 days after the filing of the grievance. After exhausting the prime sponsor's grievance machinery, an interested party could, pursuant to § 106(b), file a complaint with the Secretary. The legislative history makes it clear that Congress intended the 120-day deadline of § 106(b) to assure program participants the opportunity for a prompt resolution of grievances. Senate Report No. 95-891, supra, at 16, for example, states: "A party who wishes to appeal to the Secretary either the formal or the informal decision of the prime sponsor has the right to a due process hearing and a determination on the merits of the case within 120 days." Conspicuously absent is any reference to the possibility that the 120-day provision might convey rights upon the prime sponsor. 265 There is no indication in the legislative history that Congress was concerned that the Secretary was treating prime sponsors too harshly; to the contrary, the House and Senate Reports consistently voice Congress' belief that the Secretary had not been aggressive enough in discovering and rectifying abuses. The 120-day provision was clearly intended to spur the Secretary to action, not to limit the scope of his authority. Congress intended that "the Secretary should have maximum authority to protect the integrity of the program." S. Rep. No. 95-891, supra, at 21. It would be very odd if Congress had implemented that intent by cutting off the Secretary's authority to correct abuses just 120 days after learning of them. C Respondent provides additional arguments, which we find unpersuasive, in support of the Ninth Circuit's decision. Respondent contends that even if the statute does not establish a jurisdictional bar to the Secretary's recovery of funds, the Secretary's own regulations do so. The Secretary's regulations, however, merely provide a timetable for the resolution of complaints and audits. See n. 3, supra. While they arguably go beyond the statute in applying the 120-day limit to investigations triggered by audits as well as those triggered by complaints, they do not specify any consequences of a failure to meet that deadline in the event of either an audit or a complaint. Thus, even if it were possible for the Secretary to create a jurisdictional limitation not contained in the statute, the language of the regulations cannot support respondent's contention that the 120-day provision is jurisdictional with respect to audits. Respondent urges, if we do not find § 106(b) to affect the Secretary's jurisdiction, that we treat it like a statute of limitations that can vary depending on the complexity of the dispute or the culpability of the grant recipient. There is simply no authority in the statute or legislative history for the 266 courts to create such a remedy. The balancing of interests that respondent proposes is a task for Congress. IV We hold that CETA's requirement that the Secretary "shall" take action within 120 days does not, standing alone, divest the Secretary of jurisdiction to act after that time. There is simply no indication in the statute or its legislative history that Congress intended to remove the Secretary's enforcement powers if he fails to issue a final determination on a complaint or audit within 120 days. Accordingly, the judgment of the Court of Appeals is Reversed. NOTES [*] Briefs of amici curiae urging affirmance were filed for the St. Regis Mohawk Tribe by Jeanne S. Whiteing; for the county of Oakland by Charles G. Preston; for the city of Detroit by David H. Fink and Martin A. Scott; for the city of Chicago by James D. Montgomery, Mary K. Rochford, and Maureen Jeannette Kelly; and for the National Association of Counties et al. by Benna Ruth Solomon, Joyce Holmes Benjamin, and James L. Feldesman. [1] Effective October 13, 1982, CETA was replaced by the Job Training Partnership Act, Pub. L. 97-300, 96 Stat. 1324 (now codified at 29 U. S. C. § 1501 et seq. (1982 ed., and Supp. II)). [2] Hereafter all citations to Title 29 of the United States Code will be to Supplement V of the 1976 edition, unless otherwise specified. [3] The Secretary has promulgated regulations implementing § 106(b). See 20 CFR §§ 676.86, 676.88 (1982). Those regulations provide that a Labor Department Grant Officer shall receive the complaint or audit report and conduct the investigation. §§ 676.86(c), (d), (e). The Grant Officer then makes an initial determination of the truth of the allegation or belief, § 676.88(a). The Grant Officer must provide the recipient with an opportunity to resolve informally the matters contained in the initial determination, § 676.88(d), and if such informal resolution fails, the Grant Officer issues a final determination, § 676.88(e). The regulations provide that the Grant Officer's final determination shall be the "final determination" required of the Secretary by § 106(b), even though that determination is subject to further review by an administrative law judge and the Secretary. § 676.86(a). Respondent does not contest the Secretary's interpretation of § 106(b)'s "final determination" requirement. In the present case both the Grant Officer's final determination and the Secretary's final action took place after the 120-day deadline had expired. [4] Because § 106(b) states that the deadline for the Secretary's final determination is "120 days after receiving the complaint," the Secretary argued before the Ninth Circuit that the deadline applies only to investigations triggered by third-party complaints, and not those triggered by the Secretary's own audit. This reading, in the Secretary's view, also comports with the statutory purpose of protecting program participants and other interested parties who may be injured by a prime sponsor's misuse of funds. The Ninth Circuit rejected this argument, in part because the Secretary's own regulations establish a 120-day deadline for issuing determinations after an internal audit, see 20 CFR § 676.88(e) (1982). While the Secretary contends that those regulations simply constitute a selfimposed deadline, he does not challenge this aspect of the Ninth Circuit's decision. We therefore assume without deciding that the 120-day deadline was intended to apply to audit investigations. [5] St. Regis Mohawk Tribe, New York v. Brock, 769 F. 2d 37 (CA2 1985), cert. pending, No. 85-949; Milwaukee County v. Donovan, 771 F. 2d 983 (CA7 1985), cert. pending, No. 85-1109; City of St. Louis v. United States Dept. of Labor, 787 F. 2d 342 (CA8 1986); but see Lehigh Valley Manpower Program v. Donovan, 718 F. 2d 99 (CA3 1983) (failure to comply with 120-day provision bars recovery of misspent funds). [6] See also National Cable Television Assn., Inc. v. Copyright Royalty Tribunal, 233 U. S. App. D. C. 44, 57, n. 23, 724 F. 2d 176, 189, n. 23 (1983) (requirement in 17 U. S. C. § 804(e) that tribunal "shall" render decision within one year does not make later decision void); Marshall v. N. L. Industries, Inc., 618 F. 2d 1220, 1224-1225 (CA7 1980) (failure to meet requirement in 29 U. S. C. § 660(c)(3) that Secretary of Labor "shall" make determination on employee's complaint within 90 days does not bar subsequent enforcement action); Marshall v. Local Union 1374, Int'l Assn. of Machinists and Aerospace Workers, AFL-CIO, 558 F. 2d 1354 (CA9 1977) (requirement of 29 U. S. C. § 482(b) that Secretary of Labor "shall" bring suit within 60 days of receiving complaint does not bar later suit). [7] The Administrative Procedure Act (APA), 5 U. S. C. §§ 701-706, entitles any person "adversely affected or aggrieved by agency action" to judicial review, § 702, unless the relevant statute precludes judicial review or "agency action is committed to agency discretion by law," § 701(a)(2). Clearly the statutory command that the Secretary "shall" act within 120 days does not commit such action to the Secretary's discretion. Moreover, nothing in CETA appears to bar an action to enforce the 120-day deadline. Cf. CETA Workers Organizing Comm. v. City of New York, 617 F. 2d 926, 934-936 (CA2 1980) (APA may not be used to circumvent § 106(b) complaint mechanism). Thus, it would appear that a complainant adversely affected by the Secretary's failure to act on a complaint could bring an action in the district court. The court would have the authority to "compel agency action unlawfully withheld or unreasonably delayed," § 706(1). If respondent is correct in arguing that Congress, in enacting § 106(b), intended to protect grant recipients from lengthy delays in audits, grant recipients such as respondent would be within the zone of interests protected by § 106(b), and would therefore have standing to bring an action under the APA to the same extent as a complainant. Cf. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U. S. 150, 153 (1970). On the other hand, were § 106(b) intended only to protect complainants, there would be no need to provide grant recipients with any remedy at all much less the drastic remedy respondent seeks in this case for the Secretary's failure to meet the 120-day deadline. [8] See Uniformed Firefighters Assn., Local 94, IAFF, AFL-CIO v. City of New York, 676 F. 2d 20 (CA2 1982); Kolman v. Milwaukee Area Technical College, 548 F. Supp. 684 (ED Wis. 1982). [9] We need not, and do not, hold that a statutory deadline for agency action can never bar later action unless that consequence is stated explicitly in the statute. In this case, we need not go beyond the normal indicia of congressional intent to conclude that § 106(b) permits the Secretary to recover misspent funds after the 120-day deadline has expired.	{ "pile_set_name": "FreeLaw" }
837 F.2d 1098 Unpublished DispositionNOTICE: Federal Circuit Local Rule 47.8(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.In re Ole K. NILSSEN. No. 87-1625. United States Court of Appeals, Federal Circuit. Dec. 24, 1987. Before DAVIS, Circuit Judge, BENNETT, Senior Circuit Judge, and MAYER, Circuit Judge. DECISION PER CURIAM. 1 The decision of the Board of Patent Appeals and Interferences affirming the Examiner's rejection of claims 48 through 51 of Patent Application No. 541,489, as obvious and unpatentable over Nilssen, No. 4,008,414, in view of Agnew, No. 4,184,128, is affirmed. OPINION 2 Appellant does not disagree that appropriate modification and combination of Nilssen and Agnew might yield the claimed invention. His only argument is that there is insufficient motivation to combine them. Obviousness, of course, is a question of law, and the Examiner's underlying factual determinations may only be reversed if they are "clearly erroneous." In re De Blauwe, 736 F.2d 699, 703, 222 USPQ 191, 195 (Fed.Cir.1984). 3 Appellant argues that one of ordinary skill in the inverter art would recognize that the amount of power dissipated by the trigger means is so minuscule as to be substantially negligible. Therefore, one of ordinary skill would not have been motivated to modify Nilssen by incorporating the teachings of Agnew, especially when the cost of adding an additional resistor, necessary because of the added power that would be dissipated from that connection, is factored in. This, he says, is "apt" to be "about" three times the amount of savings. 4 The Commissioner's argument that this is a hindsight rationalization for a lack of economic incentive to combine, even if appellant's figures are correct, is persuasive. In any event, it does not go to technical reasons why the combination would not have been obvious. Those, not business reasons, control the obviousness determination. Orthopedic Equipment Co., Inc. v. United States, 702 F.2d 1005, 1013, 217 USPQ 193, 200 (Fed.Cir.1983), says that "the fact that the two disclosed apparatus would not be combined by businessmen for economic reasons is not the same as saying that it could not be done because skilled persons in the art felt that there was some technological incompatibility that prevented their combination. Only the latter fact is telling on the issue of nonobviousness." 5 We are also persuaded by the sufficiency of the Examiner's observation that "good engineering practice dictates against useless power dissipation whenever it can be avoided." This is a valid motivation which, when combined with the teaching in Agnew of how to disable an inverter when the load is removed, would have been sufficient to suggest to one of ordinary skill in the art to disable the trigger means in Nilssen upon removal of the load. Appellant disagrees that a person of ordinary skill in the art would have known in advance that the potential energy savings would have been minuscule, and now disavows any motivation based on energy savings. But our task is to look for clear error in the record, and we find none. 6 Contrary to the Commissioner's argument that it was an afterthought, it appears a reason for the modification may have been to eliminate radio frequency interference. The application said, "A third object is that of providing an electronic ballasting means that exhibits a particularly low level of electromagnetic radiated interference." But even if appellant did have reasons different from energy conservation for making the combination, it is sufficient that the prior art provides motivation to arrive at the claimed combination. See In re Kronig, 539 F.2d 1300, 1304, 190 USPQ 425, 427 (CCPA 1976). Accordingly, we find no clear error and affirm.	{ "pile_set_name": "FreeLaw" }
183 F.2d 650 GROVER,v.UNITED STATES. No. 12256. United States Court of Appeals Ninth Circuit. July 24, 1950.Rehearing Denied Aug. 18, 1950. John W. Bonner, Las Vegas, Nev., for appellant. Miles N. Pike, U.S. Atty., Bruce R. Thompson, and William J. Kane, Asst. U.S. Attys., Reno, Nev., for appellee. Before MATHEWS, BONE and LINDSEY,1 Circuit Judges. MATHEWS, Circuit Judge. 1 Appellant, James Mason Grover, alias Jimmy Williams, alias J. B. Hall, was indicted under 18 U.S.C.A.,1946 Edition, 415.2 The indictment charged that on or about November 1, 1947, appellant 'transported and caused to be transported in interstate commerce, from Beverly Hills, California, to Las Vegas, Clark County, State and District of Nevada, a man's diamond ring, composed of a large 4.06 carat center diamond, with a .75 carat diamond on each side, set in a platinum ring, said ring having a value in excess of $5,000, to-wit, approximately $7,500, and said ring having been stolen at Beverly Hills, California, from one Nathan Sherry', and that appellant 'knew that said ring had been stolen at the time of the transportation thereof as aforesaid.' Appellant was arraigned, pleaded not guilty, was tried and found guilty, was sentenced and has appealed. 2 At the close of the Government's evidence, a motion for acquittal was made by appellant and was denied. The motion was renewed at the close of all the evidence and was again denied. Appellant contends that its denial was error. The stated ground of the motion was 'that the Government has failed to establish the material allegations required under their indictment', meaning, we suppose, that the evidence was insufficient. There was evidence to the following effect: 3 The ring described in the indictment- a ring of the value of more than $5,000- was stolen from Nathan Sherry at Beverly Hills, California, on November 1, 1947, and was in appellant's possession at Las Vegas, Nevada, on November 2, 1947, at which time appellant showed the ring to Frank C. Kernan, a jeweler, and asked if Kernan could sell it for him. Kernan asked appellant how much he wanted for the ring. Appellant said $1,500. Kernan asked how much time he would have to dispose of the ring. Appellant said one hour. Within that hour, Kernan took the ring to Vern Ovist, another jeweler, Ovist sold it to Julian Goldman for $2,800 and paid Kernan $2,650, retainint $150 for himself, and Kernan paid appellant $1,500, retaining $1,150 for himself. Later, upon learning that the ring was stolen, Goldman surrendered it to Las Vegas police, Kernan refunded $2,800 to Goldman, and Ovist refunded $150 to Kernan. Appellant never refunded the $1,500, or any part thereof. 4 Appellant's possession of the ring was wholly unexplained.3 Therefore the jury could properly infer that appellant transported it or caused it to be transported from Beverly Hills to Las Vegas, knowing it to have been stolen.4 That being so, the motion for acquittal was properly denied. 5 The charge to the jury consisted of 23 number instructions. An objection to instruction No. 8 was made by appellant and was overruled. Appellant contends that the overruling of the objection was error. Instruction No. 8 was as follows: 6 'If you believe from the evidence beyond a reasonable doubt the following: That the retail market value of the ring in evidence exceeds the sum of $5,000, lawful money of the United States; that said ring was stolen in Beverly Hills, California, in the early morning hours of the first day of November, 1947; that the said ring was in the possession of the defendant (appellant) at Las Vegas, Nevada, on November 2, 1947, without explanation of such possession on the part of the defendant; the jury may infer that the defendant had transported and caused said ring to be transported from Beverly Hills, California, into Las Vegas, Nevada, knowing said ring to have been stolen, and should find that the defendant is guilty of the crime charged.' 7 The objection to instruction No. 8 was as follows: 8 'If your Honor please, I would like to object to instruction No. 8 upon the grounds that we contend that for the reason the Government has alleged that the defendant transported the alleged stolen ring from Beverly Hills, California, to Las Vegas, Nevada, that they must prove by actual evidence that the defendant was actually, physically and corporeally at Beverly Hills, California, on November 1, 1947, and that he actually and personally transported such ring from Beverly Hills, California, to Las Vegas, Nevada. On the further grounds that the statute referring to principals and accessories cannot be relied upon in giving this instruction, because in that case it would require that more than one defendant be charged, and in the absence of the joinder of defendants, or in the absence of a charge of conspiracy, the Government must actually prove that the defendant was personally present in Beverly Hills, California, and personally transported said ring to Las Vegas, Nevada.' 9 Actually, the Government was not required to prove that appellant was at Beverly Hills on November 1, 1947, or that he personally transported the ring from Beverly Hills to Las Vegas. Proof that he transported it or caused it to be transported from Beverly Hills to Las Vegas, knowing it to have been stolen, was sufficient. Hence the grounds stated in the objection to instruction No. 8 was not valid grounds. Whether instruction No. 8 was objectionable on some other ground need not be considered, for it was not objected to on any other ground. The objection made was properly overruled. 10 Two motions for a new trial were made by appellant and were denied. Appellant contends that their denial was error. Motions for a new trial are addressed to the trial court's discretion,5 and their denial, if reviewable at all, is reviewable only for an abuse of discretion.6 Here no abuse is shown. 11 Other contentions of appellant are so obviously lacking in merit as not to require discussion. 12 Affirmed. 1 Circuit Judge, Seventh Circuit, sitting by special designation 2 Section 415 provided: 'Whoever shall transport or cause to be transported in interstate or foreign commerce any goods, wares, or merchandise, securities, or money, of the value of $5,000 or more theretofore stolen * * * or taken feloniously by fraud or with intent to steal or purloin, * * * knowing the same to have been so stolen * * * or taken, * * * shall be punished by a fine of not more than $10,000 or by imprisonment for not more than ten years, or both.' 3 Appellant testified as a witness for himself, but, instead of explaining his possession of the ring, denied such possession and denied having any connection with or knowledge of the ring 4 Morandy v. United States, 9 Cir., 170 F.2d 5. Here, as in the Morandy case, we hold that an inference was warranted, not that a presumption was raised. Cf. Bollenbach v. United States, 326 U.S. 607, 66 S.Ct. 402, 90 L.Ed. 350 5 Allred v. United States, 9 Cir., 146 F.2d 193; Banks v. United States, 9 Cir., 147 F.2d 628; Gage v. United States, 9 Cir., 167 F.2d 122; Eagleston v. United States, 9 Cir., 172 F.2d 194. See, also, United States v. Johnson, 327 U.S. 106, 66 S.Ct. 464, 90 L.Ed. 562 6 See cases cited in footnote 5	{ "pile_set_name": "FreeLaw" }
Filed 8/20/19; on transfer CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin) ---- DARREN WILLIAMS, C083126 Petitioner, (Super. Ct. No. STKCRFE20160006123) v. THE SUPERIOR COURT OF SAN JOAQUIN COUNTY, Respondent; THE PEOPLE, Real Party in Interest. ORIGINAL PROCEEDING in mandate. Petition granted. Stephen G. Demetras, Judge. Miriam T. Lyell, Public Defender, Robert G. Remlinger, Nelson C. Lu, Sarah L. White, and Jonathan W. Fattarsi, Deputy Public Defenders for Petitioner. No appearance for Respondent. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon, Paul E. O’Connor, and Darren K. Indermill, Deputy Attorneys General for Real Party in Interest. 1 On October 5, 2016, petitioner Darren Williams sought extraordinary writ relief in this court from the superior court’s order denying his Penal Code section 995 motion to dismiss an indictment issued by a grand jury charging him with a series of cell phone store robberies.1 Petitioner moved to dismiss the indictment on the basis that the deputy district attorney’s excusal of a juror for hardship violated the grand jury’s independence and rendered it improperly constituted. Petitioner also challenged the sufficiency of the evidence with respect to the gang allegations and counts regarding a March 10, 2014, robbery. In a published opinion, we concluded the superior court should have granted the motion to dismiss the indictment because the deputy district attorney’s exercise of authority he did not have over the grand jury, in front of the grand jurors, substantially impaired the independence and impartiality of the grand jury. As such, we did not reach the sufficiency of the evidence claims. We issued a peremptory writ of mandate vacating the superior court’s order denying petitioner’s motion to dismiss the indictment and directing the court to enter a new order granting the motion. The Supreme Court granted review and deferred the matter pending consideration and disposition of a related issue in Avitia v. Superior Court, S242030, or pending further order of the court. In December 2018, our Supreme Court issued Avitia v. Superior Court (2018) 6 Cal.5th 486 (Avitia), a case that discussed whether an indictment must be set aside because of a prosecutor’s dismissal of a juror during grand jury proceedings. The court held that “a defendant may seek dismissal of an indictment on the ground that the prosecutor violated section 939.5 by filing a pretrial motion under section 995, subdivision (a)(1)(A). In order to prevail on such a motion, the defendant must show that 1 Undesignated statutory references are to the Penal Code. 2 the error reasonably might have had an adverse effect on the impartiality or independence of the grand jury.” (Id. at pp. 488-489.) On April 24, 2019, the California Supreme Court transferred the matter back to this court, with directions to vacate our decision and reconsider the cause in light of Avitia. We vacated our opinion on April 26, 2019. The parties have filed supplemental briefs. After consideration of Avitia, we will again issue a peremptory writ of mandate vacating the superior court’s order denying petitioner’s motion to dismiss the indictment and directing the court to enter a new order granting the motion. I. BACKGROUND A. Grand Jury Proceedings On August 6, 2015, the San Joaquin County District Attorney’s Office filed a complaint charging petitioner and codefendants Jordan Ferguson and William Mayfield with multiple counts of robbery and other charges. The People filed an amended complaint on April 15, 2016, that included 26 charges and additional factual allegations. Petitioner in particular was charged with 15 counts of robbery, two counts of attempted robbery, one count of conspiracy to commit a crime, one count of kidnapping to commit robbery, and one count of possession of an assault weapon. The transcript of the grand jury proceedings provided by petitioner begins on April 25, 2016, with the deputy district attorney introducing himself to the jurors. Next, the deputy district attorney excused Juror No. 15 from service: “Before I get any further, I have been informed that one of our potential jurors who was designated as Juror Number 15 learned over the break that she will not get paid for the full five days and that she has informed us that that will cause her an economic hardship as stated in the statute. [¶] So I’m going to release her from her service at this time. [¶] And that was—and just for the record, Juror Number 15; is that correct? “THE JURORS: Yes. 3 “[Deputy District Attorney]: Thank you. [¶] You can leave your materials there and I will pick them up again.” (Italics added.) The proceedings continued with 18 jurors, and witness testimony began the following day. At the beginning of the second day of testimony, the deputy district attorney made the following record: “Grand Juror Number 10 approached me yesterday at the conclusion of testimony for the day and let me know that one of the witnesses she recognized. She did not recognize that person when we read the witness list. They’re not a close relationship of any real kind, and she assured me that that relationship wouldn’t affect her ability to be impartial and impartially judge the facts of this case and deliberate. “Is that correct? “JUROR NO. 10: Yes. “[Deputy District Attorney]: Thank you.” After that, testimony continued. The last witness testified and jury instructions were read on April 29, 2016. The prosecutor finished reading the jury instructions sometime after 1:30 p.m. and then gave a closing argument. The grand jury deliberated and returned a 68-page indictment later that same day. At least 12 of the grand jurors concurred in the finding of the indictment. With respect to petitioner, the indictment included all the offenses and allegations that appeared in the amended complaint. B. Motion to Dismiss the Indictment On July 15, 2016, petitioner filed a motion to dismiss the indictment against him under section 995. He argued that, by dismissing a previously qualified grand juror for hardship, the prosecutor exceeded his authority, “usurped a judicial branch function,” and “invaded the independent role of the grand jury.” This, he argues, left an improperly constituted jury of less than the required 19 grand jurors and rendered the indictment fatally defective. Petitioner argued these allegations were “compounded by other actions of the Deputy District Attorney” but did not specify any. Additionally, petitioner raised 4 challenges to the sufficiency of the evidence with regard to the gang allegations and his involvement in the March 10, 2014, robbery. The People’s opposition attached as an exhibit a ruling by the Honorable Brett H. Morgan denying a motion to dismiss an indictment in an unrelated grand jury proceeding in which a different San Joaquin County deputy district attorney exceeded his authority by excusing a biased juror outside the presence of the other jurors.2 As discussed below, this action violated sections 910 and 939.5. Borrowing from this earlier ruling, the court denied petitioner’s motion. With respect to the excusal of Juror No. 15, the court explained, “[E]verybody agrees [the deputy district attorney] kicked off a juror improperly, although, [the juror] probably would have been excused by a judicial officer in some fashion. But it’s not clear what the remedy is here. Judge Morgan felt, I think, his cases that he cites are correct, that there is no automatic prejudice by having 18 versus 19 when you have the declaration that 12 or more returned the indictment. That’s what you are entitled to. So what’s the best that could have happened here? This 19th juror could have voted against a voting order or the indictment. Still would have had 12 or more. “So with that state, I don’t think there is any automatic prejudice, and I don’t see that the defendant has shown any actual prejudice here. Twelve or more grand jurors voted for the indictment and that’s all that’s required. “So while there was a technical violation of that statute, I don’t think it rises to a due process violation and its displayed prejudice here on behalf of any of the defendants. So I would overrule the 995 on those grounds.” Petitioner sought review in this court by filing a petition for writ of mandate or prohibition. We requested that the People file an opposition, and they did. 2 This was the proceeding that would give rise to Avitia. 5 On December 1, 2016, we issued an order to show cause why the relief prayed for in this proceeding should not be granted and issued a stay of all further proceedings, including the trial. The People subsequently indicated their earlier opposition to the petition may be deemed their return. II. DISCUSSION A. The Grand Jury Process In the prosecution of a felony, the People may proceed either by indictment or information. (Cal. Const., art. I, § 14; §§ 682, 737.) “An indictment is an accusation in writing, presented by the grand jury to a competent court, charging a person with a public offense.” (§ 889.) “Thus, under the statutory scheme, it is the grand jury’s function to determine whether probable cause exists to accuse a defendant of a particular crime.” (Cummiskey v. Superior Court (1992) 3 Cal.4th 1018, 1026.) “Prior to the authorization of informations, the chief function of the grand jury was to hear evidence of felonies and to bring indictments.” (4 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Introduction to Criminal Procedure, § 33, p. 58.) While this is no longer so (ibid.), in determining whether probable cause exists to accuse a defendant of a particular crime, “[t]he grand jury’s ‘historic role as a protective bulwark standing solidly between the ordinary citizen and an overzealous prosecutor’ [citation] is as well-established in California as it is in the federal system.” (Johnson v. Superior Court of San Joaquin County (1975) 15 Cal.3d 248, 253-254.) A grand jury is “ ‘ “a constitutional fixture in its own right.” ’ [Citations.] In fact the whole theory of its function is that it belongs to no branch of the institutional Government, serving as a kind of buffer or referee between the Government and the people. [Citations.] Although the grand jury normally operates, of course, in the courthouse and under judicial auspices, its institutional relationship with the Judicial Branch has traditionally been, so to speak, at arm’s length.” (United States v. Williams (1992) 504 U.S. 36, 47 [118 L.Ed. 2d 352].) 6 The grand jury originates from the common law, but “the California Legislature has codified extensive rules defining it and governing its formation and proceedings, including provisions for implementing the long-established tradition of grand jury secrecy.” (Daily Journal Corp. v. Superior Court (1999) 20 Cal.4th 1117, 1122.) For instance, “[d]eliberations of the grand jury are completely private; no person other than the grand jurors themselves may be present during ‘the expression of the opinions of the grand jurors, or the giving of their votes’ on any criminal matter before them. (§ 939.)” (People v. Superior Court (Mouchaourab) (2000) 78 Cal.App.4th 403, 415.) “A grand jury is a body of the required number of persons returned from the citizens of the county before a court of competent jurisdiction, and sworn to inquire of public offenses committed or triable within the county.” (§ 888.) At least one grand jury is impaneled in each county every year.3 (§ 905; Cummiskey v. Superior Court, supra, 3 Cal.4th at p. 1024.) It is undisputed that the “required number” of jurors in San Joaquin County is 19. (§ 888.2, subd. (c).) Of these, at least 12 must concur in an indictment. (§ 940.) “When so found it shall be endorsed, ‘A true bill.’ ” (Ibid.) “The qualifications for service as a grand juror in California are prescribed by statute and relate to matters such as citizenship, age, mental competency, intelligence, and character. [Citation.] The trial court determines these qualifications by personal interview and examination.” (Packer v. Superior Court (2011) 201 Cal.App.4th 152, 163, fn. omitted (Packer).) Of particular relevance to this petition, “When a person is drawn and found qualified he shall be accepted unless the court, on the application of the juror and before he is sworn, excuses him from such service for any of the reasons prescribed in this title or in Chapter 1 (commencing with Section 190), Title 3, Part 1 of 3 It appears this case involves the impanelment of an “additional grand jury” under section 904.6 specifically impaneled to hear criminal matters. 7 the Code of Civil Procedure.” (§ 909.) Included in this chapter is an excusal for “undue hardship.” (Code Civ. Proc, § 204, subd. (b).) “No challenge shall be made or allowed to the panel from which the grand jury is drawn, nor to an individual grand juror, except when made by the court for want of qualification, as prescribed in Section 909.” (§ 910.) “After selection, section 939.5 authorizes ‘the foreman of the grand jury’ to ‘direct any member of the grand jury who has a state of mind in reference to the case or to either party which will prevent him from acting impartially and without prejudice to the substantial rights of the party to retire.’ Section 935 authorizes the prosecutor to ‘giv[e] information or advice relative to any matter cognizable by the grand jury.’ But no provision authorizes a prosecutor to dismiss a grand juror . . . .” (Avitia, supra, 6 Cal.5th at p. 492.) The Penal Code also provides a mechanism, not utilized here, by which vacancies on the grand jury may be filled by the jury commissioner in the presence of the court. (§ 908.1.) B. Grand Juror No. 10 In this original proceeding, petitioner claims broadly that the deputy district attorney violated the grand jury’s independence and rendered it improperly constituted by choosing who to excuse. Specifically, petitioner’s expanded claim now encompasses the assertion that the deputy district attorney “elected not to remove Grand Juror [No.] 10.” The People argue this issue was forfeited because petitioner did not raise it earlier. They rely on Packer, in which the defendant argued his indictment should have been dismissed because of grand juror bias (Packer, supra, 201 Cal.App.4th at pp. 156-157) and also, for the first time in the court of appeal, “that the prosecutor ‘may have violated the separation of powers’ by deciding that Juror No. 2 was unbiased instead of allowing the court to do so” (id. at p. 171). The appellate court held that it did not need to address the separation of powers claim because it was not raised in the superior court. (Ibid.) Petitioner argues that here the issue regarding Juror No. 10 was not forfeited because it was part of his 8 claim in his motion to dismiss, and also because it is a constitutional claim. On the question of forfeiture, the People have the better argument. Packer also involved a constitutional claim, and here the petitioner’s claim in the superior court was limited to the excusal of Juror No. 15. Even if we were to reach this issue, the allegations regarding Juror No. 10 do not add meaningfully to petitioner’s writ petition. While the deputy district attorney discussed the possible bias of Juror No. 10, he did not dismiss her. While we are troubled by the implication he had authority over this issue, his actions did not technically go beyond making a record of the facts relevant to whether the foreman had a duty to direct Juror No. 10 to retire. (§ 939.5.) We will therefore decide this petition based solely on the deputy district attorney’s erroneous excusal of Juror No. 15. C. Prosecutor’s Excusal of Juror No. 15 We now address petitioner’s claim that the deputy district attorney’s excusal of Juror No. 15 violated the grand jury’s independence.4 Section 995, subdivision (a)(1) sets forth two categories of error that can provide a basis for granting a motion to set aside an indictment: “(A) Where it is not found, endorsed, and presented as prescribed in [the Penal] code. “(B) That the defendant has been indicted without reasonable or probable cause.” In Avitia, our Supreme Court held that “a defendant can proceed by a section 995[, subdivision ](a)(1)(A) motion to set aside an indictment on the ground that a section 939.5 violation substantially impaired the impartiality and independence of the grand jury.” (Avitia, supra, 6 Cal.5th at p. 495.) We conclude this is also true of a similar 4 In light of the recent guidance from our Supreme Court and our conclusions in this opinion, we need not address petitioner’s claim that the excusal of Juror No. 15 also rendered the grand jury improperly constituted. 9 claim based on a prosecutor’s improper excusal of a juror for hardship. As relevant to this appeal, the court explained that “a defendant seeking to set aside an indictment before trial must show that an error ‘reasonably might have affected the outcome.’ [Citation.] This showing is less onerous than the ‘reasonably probable’ showing required to prevail on a similar motion after trial, when interests in finality are greater.” (Id. at p. 497.) It also held when a defendant seeks to set aside an indictment before trial on the ground that the prosecutor violated section 939.5, “the indictment must be set aside only when the defendant has shown that the violation reasonably might have had an adverse effect on the independence or impartiality of the grand jury.” (Avitia, supra, at p. 498.) This is the standard we now apply to the prosecutor’s improper excusal of Juror No. 15. Petitioner argues the prosecutor’s interference with the grand jury’s independence requires dismissal. In Avitia, the court held the petitioner did not show that the prosecutor’s improper dismissal of a juror outside the presence of the other grand jurors after he had expressed concern about his own bias reasonably might have affected the impartiality or independence of the grand jury in an adverse manner. (Id. at pp. 498- 499.) The court referred to our vacated opinion in this case to explain, “The facts [in Avitia] are different from cases where the prosecutor was actively involved in the selection of grand jurors or excused a grand juror in the presence of other grand jurors. In those cases, the prosecutor’s actions could have led grand jurors to believe they were beholden to the prosecutor during the decision[-]making process.” (Id. at p. 498.) Here, as Avitia noted, the prosecutor’s actions could have led grand jurors to believe they were beholden to the prosecutor during the decision-making process. In our previous opinion, we stated that by deciding that Juror No. 15 should be excused for hardship, the deputy district attorney used authority of the judicial branch. In their supplemental brief, the People challenge this conclusion. The People note that the Court has authority to rule on a hardship request before the grand jury is sworn, and no statute addresses hardship requests made after the grand jurors are sworn. After the grand jury is 10 sworn and charged, it retires to a private room and the court is not present during the grand jury’s sessions unless the grand jury requests its advice as provided by section 934. (§ 915.) The People conclude from this statutory scheme that it is not error for the prosecutor to respond to hardship requests if a grand juror asks for assistance. As our Supreme Court explained in Avitia, “mere influence over the composition of the grand jury is not impermissible; section 935 provides that the prosecutor may ‘giv[e] information or advice relative to any matter cognizable by the grand jury.’ ” (Avitia, supra, 6 Cal.5th at p. 498.) However, “no provision authorizes a prosecutor to dismiss a grand juror.” (Id. at p. 492.) Here, the prosecutor did more than give information or advice. He ruled on a hardship request in a way that the grand jury would have only previously seen the court do: “I’m going to release her from her service at this time.” In Avitia, the prosecutor dismissed a grand juror outside the presence of other jurors. (Id. at p. 498.) This “reduced the likelihood that the independence of the remaining grand jury was impaired.” (Id. at p. 499.) Here, unlike Avitia, the prosecutorial overreach occurred in the presence of the grand jurors and allowed the remaining jurors to mistakenly believe the prosecutor had legal authority to approve a hardship request. The prosecutor asserted direct control over the composition of the grand jury. Another difference between this case and Avitia is that the juror who was removed in that case had stated unequivocally he would not be able to fairly review the case, and his dismissal helped ensure the grand jury’s impartiality. (Id. at p. 498.) It is unclear from the limited record before us whether Juror No. 15 should have been excused for “undue hardship,” assuming that was a permissible result at this stage in the proceedings. (See Code Civ. Proc., § 204, subd. (b).) The fact the excused juror was not replaced suggests the court was not made aware of what happened, effectively preventing the drawing of another grand juror who might have impacted deliberations. If this case involved a petit jury instead of a grand jury, we are confident these same facts would produce justifiable outrage by the court and opposing counsel. But 11 here, the possibility of an objection was structurally foreclosed: The court was not present and grand jury proceedings necessarily exclude defense counsel. In denying petitioner’s motion to dismiss the indictment, the superior court focused its analysis on the missing 19th juror, but our concern is with the impact the deputy district attorney’s actions had on the grand jurors that remained. “[I]rregularities at grand jury proceedings should be closely scrutinized because protection of the defendant’s rights is entirely under the control of the prosecution without participation by the defense.” (Berardi v. Superior Court (2007) 149 Cal.App.4th 476, 495-496.) The deputy district attorney’s improper display of authority over the grand jury went to the very structure the Legislature has provided to keep these constitutional fixtures necessarily independent. (Cf. De Leon v. Hartley (N.M. 2013) 2014-NMSC 005 [316 P.3d 896, 899] [holding that permitting district attorney to take over the court’s role of deciding who shall serve as grand jurors “is to sacrifice any perception that the grand jury is an entity distinct from the prosecutor that is capable of serving as a barrier against unwarranted accusations”].) We must, therefore, conclude that the deputy district attorney’s improper excusal of Juror No. 15 and corresponding reduction of the required number of jurors reasonably might have had an adverse effect on the impartiality or independence of the jury. The prosecutor’s actions could have led grand jurors to believe they were beholden to the prosecutor generally and during the decision-making process. For these reasons, petitioner’s motion to dismiss the indictment against him based on the improper excusal of Juror No. 15 should have been granted. 12 III. DISPOSITION Let a peremptory writ of mandate issue vacating respondent court’s order denying petitioner’s motion to dismiss the indictment and directing the superior court to enter a new order granting the motion as to the charges and allegations against petitioner. The writ shall issue without prejudice to the People continuing to prosecute these charges by seeking another indictment free of the charged defects or by filing another complaint. This court’s stay order is vacated upon finality of this opinion. /S/ RENNER, J. We concur: /S/ BUTZ, Acting P.J. /S/ DUARTE, J. 13	{ "pile_set_name": "FreeLaw" }
398 F.Supp.2d 563 (2005) In re SILICA PRODUCTS LIABILITY LITIGATION. No. MDL 1553. United States District Court, S.D. Texas, Corpus Christi Division. June 30, 2005. 564 565 566 John R. Fabry, Liaison Counsel, for all plaintiffs. Darrell Lee Barger, Liaison Counsel, for all defendants. ORDER NO. 29: ADDRESSING SUBJECT-MATTER JURISDICTION, EXPERT TESTIMONY AND SANCTIONS JACK, District Judge. Twenty months of pre-trial proceedings and coordinated discovery in the above-styled multidistrict litigation ("MDL") 567 have culminated in three issues becoming ripe for decision: (1) whether federal subject-matter jurisdiction exists in this MDL's 111 cases (totaling over 10,000 individual Plaintiffs); (2) whether the doctors who diagnosed Plaintiffs with silicosis employed a sufficiently reliable methodology for their testimony to be admissible; and, (3) whether Plaintiffs' counsel should be sanctioned for submitting unreliable diagnoses and failing to fully comply with discovery orders. The rulings contained herein are summarized as follows. The claims of every Plaintiff in each of the 90 cases listed in "Appendix A" (attached hereto) will be REMANDED for lack of subject-matter jurisdiction. In order to allow the parties an opportunity to petition the Mississippi Supreme Court for consideration of how Mississippi's judicial system can best absorb the return of these cases, the Motion to Stay the effective date of remand will be GRANTED. The Court will STAY the effective date of the remand of the cases listed in "Appendix A" for a period of 30 days from the date of this Order, after which time remand will issue. Kirkland v. 3M Co., S.D. Tex. Cause No. 04-639, will be sent to the Judicial Panel on Multidistrict Litigation ("Panel") with a recommendation that, for the convenience of the parties and to promote the just and efficient conduct of the case, Kirkland be remanded to the United States District Court for the Northern District of Georgia. After the implementation of the above-stated rulings, only the 19 recently-transferred cases listed in "Appendix B," as well as Alexander v. Air Liquide America Corp., S.D. Tex. Cause No. 03-533 (originally filed in this Court), will remain in this MDL. An in-person status conference will be conducted on August 22, 2005 at 9:00 a.m., concerning the appropriate procedure for expediting jurisdictional discovery in the case listed in "Appendix B," as well as in any later-transferred cases. As to the "Appendix B" cases, the stay of discovery entered on February 22, 2005 (see Order No. 26) will be lifted. As set out in Order No. 4, all Plaintiffs in recently-transferred actions must submit sworn Fact Sheets within 60 days from the date of transfer by the Panel (excluding the period during which discovery was stayed). (Order No. 4, ¶ 20.) In Alexander, Plaintiffs have 30 days from the date of this Order to cure the jurisdictional allegation concerning American Optical's principal place of business. Should Plaintiffs fail to cure the allegation within 30 days, American Optical will be dismissed without prejudice. As to Alexander, Defendants' Motion to Exclude will be GRANTED: the testimony of Dr. Harron and the testimony of Dr. Levy (as well as their accompanying diagnoses) are inadmissible. Immediately following the August 22, 2005 status conference addressing the "Appendix B" cases, the Court will conduct an in-person status conference in Alexander, to address whether (and, if so, under what conditions) the Plaintiffs' claims may proceed. Defendants' Motions for Sanctions will be GRANTED as to Alexander. The law firm of O'Quinn, Laminack & Pirtle ("O'Quinn") has multiplied the proceedings unreasonably and vexatiously, and will be required to satisfy personally Alexander's proportionate share (i.e., one percent) of Defendants' reasonably incurred costs, expenses and attorneys' fees for the Daubert hearings conducted on February 16-18, 2005. The Court does not yet fix the amount of this sanction. Instead, within seven days from the date of this Order, O'Quinn must file a statement with the 568 Court either admitting or denying the Court's estimate of $825,000 as the total amount of fees, costs and expenses Defendants reasonably incurred due to the three-day Daubert hearings. Should O'Quinn deny the $825,000 figure, the Court first will allow Defendants to prove their actual fees, expenses and costs for the Daubert hearings, and then will allow O'Quinn to challenge those amounts and their reasonableness; finally, the Court will sanction O'Quinn for Alexander's proportionate share of the actual fees, expenses and costs Defendants reasonably incurred. Regardless of whether O'Quinn admits or denies the $825,000 figure, the amount of the sanction will be set in a later order. As to all MDL cases transferred by the Panel before December 5, 2004 (i.e., the "Appendix A" cases, over which the Court has no subject-matter jurisdiction), the Motion to Exclude Expert Testimony, the Motions for Sanctions, and all other pending motions not otherwise addressed in this Order are reserved for consideration by the appropriate state court after remand. As to those MDL cases transferred by the Panel after December 5, 2004 (i.e., the "Appendix B" cases), the Motion to Exclude Expert Testimony, the Motions for Sanctions, and all other pending motions not otherwise addressed in this Order are STAYED pending this Court's ruling on subject-matter jurisdiction. Table of Contents I. Background .............................................................569 A. Silica and Silicosis ...............................................569 B. MDL 1553 ...........................................................573 II. Daubert Hearings/Court Depositions .....................................580 A. Need for the Daubert Hearings ......................................580 1. Dr. Martindale's Deposition ....................................581 2. December Hearings ..............................................584 a. December 2 Telephonic Conference ...........................584 b. December 17 Status Conference ..............................584 3. Dr. Hilbun's & Dr. Cooper's Depositions ........................587 B. Medically-Accepted Method for Diagnosing Silicosis .................589 C. Comparison to Asbestosis ...........................................594 D. Screening Companies ................................................596 E. Dr. Ray Harron .....................................................603 F. Dr. Andrew Harron ..................................................608 G. Dr. Ballard ........................................................609 H. Dr. Levy ...........................................................611 I. Dr. Coulter ........................................................616 J. Dr. Oaks ...........................................................618 K. Daubert Analysis ...................................................620 1. Legal Standard .................................................620 2. Criterion 1: Sufficient Exposure ...............................622 3. Criterion 2: Radiographic Findings .............................625 4. Criterion 3: Differential Diagnosis ............................629 5. Lawyers Practicing Medicine and Doctors Practicing Law .........632 6. Effects of Mass Over-Diagnosing ................................636 7. Alexander Ruling ...............................................637 L. Independent Medical Advisors/Technical Advisory Panel ..............640 M. Kirkland Deposition ................................................642 III. Subject-Matter Jurisdiction ............................................644 569 A. Priority of Subject-Matter Jurisdiction ............................644 B. Removal ............................................................645 C. Diversity Jurisdiction .............................................645 1. Amount in Controversy ..........................................646 2. Complete Diversity .............................................647 a. Improper Joinder ...........................................648 i. Joinder of Plaintiffs .................................651 ii. Joinder of Defendants by Each Individual Plaintiff.....655 b. Procedural Issues ..........................................657 c. Analysis ...................................................658 D. Motion to Stay the Effective Date of Remand ........................666 E. Cases Transferred After December 5, 2004 ...........................666 F. Kirkland ...........................................................667 G. Alexander ..........................................................668 IV. Sanctions ..............................................................670 A. In the Absence of Subject-Matter Jurisdiction ......................671 B. Alexander ..........................................................673 V. Conclusion .............................................................679 I. Background A. Silica and Silicosis[1] The mineral that lies at the heart of this litigation silica appears benign at first glance. Silica, also known as silicon dioxide, is the second most common mineral in the earth's crust and is the primary ingredient of sand and 95 percent of the earth's rocks. But if sand or rocks are chipped, cut, drilled or ground, respirable-sized particles of silica may be produced, and the mineral becomes potentially dangerous. Inhaled silica particles may be trapped in the lungs, causing areas of swelling and scarring. Over time, these swollen areas can grow larger, breathing can become increasingly difficult, and eventually, the lungs may fail completely, resulting in death. This disease is called "silicosis." Silicosis is classified into three types: chronic/classic, accelerated and acute. Chronic or classic silicosis, the most common form, typically requires at least 15-20 years of moderate to low exposure of respirable silica. Accelerated silicosis can occur after 5-10 years of high exposure. Acute silicosis occurs after a few months or as long as two years of exposure to extremely high concentrations of respirable silica. The symptoms associated with silicosis include shortness of breath, fatigue, chest pain, weight loss, fever and/or respiratory failure. The only effective treatment for silicosis is a lung transplant. (Feb. 18, 2005 Trans. at 308.) Otherwise, the disease is incurable, progressive, and irreversible. Because people with silicosis have a high risk of developing tuberculosis ("TB"), they should undergo frequent TB tests and in some cases may be prescribed a TB medication as a prophylactic measure. (Feb. 18, 2005 Trans. at 308-09.) Silicosis also can lead to cancer and autoimmune disease, so silicotics should be frequently tested for those associated diseases. In addition, a silicotic who has difficulty breathing may be treated with drug therapy to keep the airways open and free of mucus. A 570 silicotic should also receive any available pneumonia vaccines and should be encouraged to cease smoking. (Feb. 18, 2005 Trans. at 308.) And, of course, anyone with silicosis should avoid further exposure to respirable silica, to prevent the disease from worsening. Silicosis is one of the oldest recognized occupational diseases, with cases recorded as far back as the 16th century. In the early 1930's, the Tennessee Valley Authority built the "Hawk's Nest Tunnel" through Gauley Mountain in West Virginia to build a hydroelectric facility. In order to accomplish this, the workers drilled though one mile of almost pure silica. Five thousand people worked on this project; no safety precautions were taken to prevent respirable-silica exposure. Approximately 1,200 workers developed silicosis, and approximately 400-600 of these workers perished from the disease. This is known as the "Hawk's Nest incident," and it is considered America's worst industrial disaster.[2] But despite the fact that the dangers of respirable silica have been known for many years, more than a million U.S. workers continue to be exposed to respirable silica. Exposure is most prevalent in occupations such as abrasive blasting (i.e., "sandblasting"), mining, quarrying, and rock drilling. This continued exposure is tragic, because while silicosis is incurable, it is also 100 percent preventable. There are well-known steps employers, workers, and/or government regulators could take to drastically reduce worker exposure to respirable silica. Indeed, the use of crystalline silica was banned in abrasive blasting operations in Great Britain in 1950 and in other European nations in 1966. In the United States, in 1974, NIOSH recommended that silica sand be prohibited for use as an abrasive blasting material in favor of less hazardous substances.[3] While this recommendation was not adopted, beginning in the 1970's, OSHA implemented regulations requiring the use of respirators, as well as other measures designed to reduce workers' exposure to respirable silica. In 2001, OSHA reported: Although OSHA currently has a permissible exposure limit for crystalline silica ..., more than 30 percent of OSHA-collected silica samples from 1982 through 1991 exceeded this limit. Additionally recent studies suggest that the current OSHA standard is insufficient to protect against silicosis. 66 Fed.Reg. 25724, 25727 (May 14, 2001). Steps employers and workers can take to prevent exposure include engineering controls, such as ventilation systems, automated equipment operated from an enclosed booth, and "wet methods" (e.g., while cutting masonry or concrete, using water to prevent silica dust clouds), as well as the proper use of appropriate respirators. Yet, while even a single silicosis death is one death too many, progress is being made. The Centers for Disease Control ("CDC") has found that the number of U.S. workers exposed to silica dust has declined steadily from 1970 to 2002. Correspondingly, 571 silicosis deaths have also steadily declined.[4] The National Institute for Occupational Safety and Health ("NIOSH"), in its most recent estimates, reports that deaths attributable to silicosis in the United States have declined steadily each year from 1,157 deaths in 1968 to 187 deaths in 1999. According to NIOSH, the state with the highest silicosis mortality rate is West Virginia, with an age-adjusted mortality rate of 4.74 deaths per million population over the 10-year period from 1990-1999.[5] Mississippi ranks 43rd in the United States, with an age-adjusted silicosis mortality rate of 0.64 deaths per million, equating to 1.3 silicosis deaths per year.[6] A recent peer-reviewed study of the incidence of silicosis in Michigan found that from 1987 to 1996, the ratio of the number of living to deceased silicosis cases was 6.44.[7] Applying this ratio to NIOSH's silicosis mortality statistics between 1990 and 1999 (during which time Mississippi had 13 silicosis deaths), one would anticipate approximately eight new silicosis cases per year in Mississippi. Applying the 6.44 multiplier to the 1999 U.S. mortality rate, one would anticipate approximately 1,204 new silicosis cases per year throughout the entire United States. This information provides the backdrop for the issue of immediate concern to this Court: silicosis lawsuits, especially in Mississippi. In 2000, approximately 40 Plaintiffs filed silicosis claims in Mississippi courts. In 2001, approximately 76 Plaintiffs filed silicosis claims in Mississippi courts. These numbers are considerably higher than what one might expect given the Michigan study, but they are not outside the realm of what an epidemiologist would say is possible in Mississippi.[8] However, in 2002, the number of new Mississippi silicosis claims skyrocketed to approximately 10,642. In 2003 and 2004, the number of new silicosis claims in Mississippi continued to be shockingly high, at 7,228 claims in 2003 and 2,609 claims in 2004. By way of comparison, in 2002, on 572 average, more silicosis claims were filed per day in Mississippi courts than had been filed for the entire year only two years earlier. And during 2002-2004, the 20,479 new silicosis claims in Mississippi are over five times greater than the total number of silicosis cases one would expect over the same period in the entire United States. This explosion in the number of silicosis claims in Mississippi suggests a silicosis epidemic 20 times worse than the Hawk's Nest incident. Indeed, these claims suggest perhaps the worst industrial disaster in recorded world history. And yet, these claims do not look anything like what one would expect from an industrial disaster. One would expect an industrial disaster to look like the Hawk's Nest incident: presenting cases of acute silicosis (with relatively brief incubation periods), emanating from a single worksite or geographic area with an extremely high concentration of silica. To the contrary, virtually all of these silicosis claims are for chronic or classic silicosis (with incubation periods in excess of 15 years). The claims do not involve a single worksite or area, but instead represent hundreds of worksites scattered throughout the state of Mississippi, a state whose silicosis mortality rate is among the lowest in the nation.[9] Moreover, given the sheer volume of claims each supported by a silicosis diagnosis from a physician one would expect the CDC or NIOSH to be involved, examining and responding to this enormous epidemic. One would expect local health departments and physician groups to be mobilized. One would expect a flurry of articles and attention from the media, such as what occurred in 2003 with SARS.[10] But none of these things have happened. There has been no response from OSHA, the CDC, NIOSH or the American Medical Association to this sudden, unprecedented onslaught of silicosis cases. By contrast, the CDC and NIOSH issued an outbreak alert in 1988 for 10 cases of silicosis in Ector County, Texas, and for a single death from acute silicosis in Ohio in 1992. (Feb. 18, 2005 Trans. at 234.) The OSHA field office in Jackson, Mississippi has had no reports of any silica problems in recent years and has had no requests for any silica-related investigations. (Feb. 18, 2005 Trans. at 237.) Officials from the Mississippi State Department of Health, the Mississippi Medical Association, the Mississippi Board of Licensure, and the University of Mississippi Medical School all were unaware of any increase in silicosis cases in Mississippi. (Feb. 18, 2005 Trans. at 237-41.) Likewise, Mississippi's apparent silicosis epidemic has been greeted with silence by the media, the public, Congress and the scientific communities. In short, this appears to be a phantom epidemic, unnoticed by everyone other 573 than those enmeshed in the legal system: the defendants, who have already spent millions of dollars defending these suits; the plaintiffs, who have been told that they are suffering from an incurable, irreversible and potentially fatal disease; and the courts, who must determine whether they are being faced with the effects of an industrial disaster of unprecedented proportion or something else entirely. B. MDL Over 10,000 of the silicosis claims recently filed in Mississippi (as well as claims filed in Kentucky, Texas and Missouri) are now pending in the above-styled MDL. The MDL began on September 4, 2003, when the Judicial Panel on Multidistrict Litigation centralized 22 actions into this Court pursuant to 28 U.S.C. § 1407, for coordinated or consolidated pretrial proceedings.[11]See In re Silica Prods. Liab. Litig., 280 F.Supp.2d 1381 (Jud.Pan.Mult.Lit.2003). Since that time, 85 additional actions have been conditionally transferred to this MDL.[12] Cumulatively, these cases involve over 10,000 individual Plaintiffs, each alleging injuries from silica exposure caused by over 250 corporate Defendants.[13] The majority of Plaintiffs are individuals who were at one point employed as sandblasters, foundry workers, or in other trades which required them to work in an environment that exposed them to silica dust. Plaintiffs have sued Defendants who made a product which contains silica, made a product used to protect workers from exposure to silica, and/or made a product used to work with silica. Plaintiffs assert the following causes of action under state law: negligence, gross negligence, breach of warranty, products liability, premises liability, civil conspiracy, and fraud. Plaintiffs seek compensatory and punitive damages. One-hundred-seven of the 111 cases in this MDL were originally filed in Mississippi state court.[14] The vast majority of 574 Plaintiffs in the MDL cases are citizens of Mississippi, Alabama and Texas, although the Plaintiffs also include a scattering of residents of other states (Arkansas, California, Florida, Georgia, Illinois, Indiana, Kentucky, Louisiana, Michigan, Missouri, North Carolina, Ohio, Tennessee, and West Virginia). The number of Plaintiffs in the cases range from 1 to 4,280. The number of Defendants in the cases range from 6 to 134, all corporations, some of which are incorporated in, or have their principal place of business in, Mississippi.[15] Defendants removed each of the 104 Mississippi cases to federal court, alleging diversity jurisdiction.[16] The removing Defendants asserted that while complete diversity did not exist on the face of the Complaints, in each case, the Plaintiffs had been improperly joined because no two Plaintiffs had similar exposure histories to silica. Defendants argued that in deciding jurisdiction, the Court should sever each Plaintiff's claim and focus solely on the citizenship of the specific Defendants who allegedly caused that Plaintiff's specific injury. Defendants argued that once this is done, some Plaintiffs' claims would be remanded to state court, but the vast majority of severed claims would be within the diversity jurisdiction of federal court. At the time of removal, Defendants provided no proof for its assertions; they merely asserted "[o]n information and belief, few, if any, plaintiffs were exposed to the Mississippi Defendants' products. Therefore, the Mississippi Defendants were fraudulently joined as to [the] overwhelming majority of plaintiffs." (See, e.g., Notice of Removal, Sullivan v. Aearo, S.D. Tex. Cause No. 03-369, ¶ 6.) The notices of removal also alleged that, "[a]lthough the complaint is silent, it is facially apparent that the amount in controversy exceeds $75,000, exclusive of costs." (Id. ¶ 8.) When the cases were initially transferred to this Court, a number of remand motions filed by Plaintiffs were pending. More remand motions followed. On December 12, 2003, at the outset of the first in-person conference in this MDL, the Court raised the issue of its subject-matter jurisdiction. The Court stated its opinion that, based upon the relevant law and the submissions of the parties up to 575 that point, it did not appear that the Court had jurisdiction over the MDL cases. (Dec. 12, 2003 Hearing Trans. at 12-13, 18 ("I'm not closing down your jurisdictional issue. But if I have to [decide] it right now, ... I would remand all the cases to State Court.").) The Court proposed giving the Defendants "all the discovery [they] want on fraudulent misjoinder."[17] (Id. at 13.) However, the Defendants asked if, prior to any discovery, they could further brief the jurisdictional issue. (Id. at 14-15.) The Court agreed, but also noted the benefit of coordinated discovery: "[I]f I end up remanding ... all [the cases] to State Court a year from now, you will at least have had the opportunity to have one forum to do discovery, one forum to prepare your case." (Id. at 15.) In mid-January 2004, at the direction of the Court, the parties submitted briefs on the issue of the Court's subject matter jurisdiction. Defendants proposed a process whereby the Court would apply the doctrines of "fraudulent joinder" and "fraudulent misjoinder" to scrutinize the claims of each Plaintiff in order to determine precisely against whom that Plaintiff has a legitimate claim. Only after parsing the pleadings in this way did the Defendants propose the Court look to the citizenship of the "legitimate `plaintiff vs. defendant' groupings" in order to determine whether complete diversity exists. (Martin Materials' Separate Mem. Opposing Remand, MDL docket entry 83, at 7.) Defendants' proposed process entailed conducting "remand-related discovery" (designed to pierce the generalized complaints and determine the precise nature of each Plaintiff's claim). Plaintiffs maintained their position that the Court lacked subject-matter jurisdiction. They further argued that if discovery was permitted, it should not be limited to jurisdictional issues. On January 23, 2004, after the second status conference, the Court denied all pending motions to remand without prejudice to reurge at a later date. (Order No. 4 ¶ 1.) At the request of the parties, the Court issued Paragraph 19 of Order No. 4, designed to aid the Court in determining its subject-matter jurisdiction by "develop[ing] the factual basis for the claims of each Plaintiff." (Order No. 4, ¶ 19.)[18] In 576 compliance with this Order, the parties agreed to the form of sworn "Fact Sheets" to be submitted by each Plaintiff and each Defendant. The Plaintiff's Fact Sheet required each Plaintiff to submit specific information about when, where and how each Plaintiff alleged he or she was exposed to silica dust. The Plaintiff's Fact Sheet also required detailed medical information concerning each Plaintiff's silica-related injury. Defendant's Fact Sheet required each Defendant to provide information (including photographs) of each silica-related product that the Defendant designed, manufactured, marketed, sold, and/or distributed from 1930 to the present. (According to Plaintiffs, this information was necessary for them to determine precisely against which Defendants each Plaintiff had a claim.) Blank examples of each Fact Sheet are attached to Order No. 6, issued February 5, 2004; six examples of completed Plaintiff's Fact Sheets are attached hereto as Exhibits 32-37.[19] The Court did not limit discovery to the completion of the Fact Sheets, but instead allowed discovery to proceed at the discretion of the parties. In addition, the Court established a method for handling discovery disputes quickly and efficiently. (Order No. 4, ¶ 21 ("Each party is ordered to bring any discovery issue to the Court's attention immediately. At first sign of a discovery problem, all parties shall make a joint telephone call to the case manager who will schedule a joint conference call with the Court that same day.").) At the same time, the Court directed the establishment of a document depository for all documents produced in these cases, as well as a website, www.mdl1553.com, to serve as the electronic bulletin board for this litigation. (Order No. 4 ¶ 17; Order No. 5A.) Over the course of the next year, the Court conducted in-person status conferences approximately every 5-8 weeks. At these conferences, the Court addressed scores of pending motions, discovery disputes and administrative matters. The Court also repeatedly returned to the issue of its subject-matter jurisdiction. Invariably, this issue boiled down to Defendants' objections that Plaintiffs' Fact Sheets were too generalized to allow the Defendants to identify precisely which Defendant(s) each Plaintiff was alleging caused his or her injury. These objections would typically 577 be followed by counter-objections from Plaintiffs that Defendants' deficient disclosures were hampering their efforts to develop the factual bases for their claims.[20] For example, after the May 17, 2004 status conference, the Court issued Order No. 10, which states, in part: 5. The Court notes that Plaintiffs' disclosures in their Fact Sheets appear deficient. Additionally, Plaintiffs challenge the adequacy of Defendants' disclosures. The Parties have until the next hearing to cure any deficiencies. The Court will address the adequacy of the disclosures by both sides at the next hearing. 6. Defendants are ordered to disclose any machines or products that they manufacture that produce respirable crystalline silica dust as previously explained in Order No. 6, as well as products and applications that are included in the list identified by National Institute for Occupational Safety and Health ("NIOSH") as containing respirable crystalline silica dust. Defendants are also ordered to disclose as "silica related products" any product that contains a Material Safety Data Sheet ("MSDS"), or other warning, that warns of silicosis or silica exposure from using the product. (Order No. 10 ¶¶ 5-6.) After the June 28, 2004 status conference, the Court issued Order No. 12, which provides in part: 12. Plaintiffs have two weeks to supplement their fact sheets with regards to the types of products used and any identifying product information. The Court finds that products listed on Plaintiffs' fact sheets represent regular use only by Plaintiffs. If a specific product name or identifying information is not included on the fact sheets then the Court finds that neither the product name nor identifying information is known by Plaintiffs at this time. 13. Plaintiffs have two weeks to supplement their fact sheets to include the names, dates, and locations of specific work sites where Plaintiffs allege exposure to silica. Once a particular work site is identified by relevant dates of employment, location, and types of products, Defendants have 30 days to produce any sales records for that work site encompassing the products described by Plaintiff. (Order No. 12 ¶¶ 12-13.) After the August 22, 2004 status conference, the Court issued Order No. 13, which addressed a number of deficiencies in the Defendants' disclosures of sales records and distributor lists. (Order No. 13 ¶¶ 2-4, 8-9.) The objections about each side's disclosures continued. After the October 14, 2004 status conference, the Court issued Amended Order No. 14, which provides in part: 1. Within 90 days after receiving Defendants' sales receipts (as ordered by the Court to be due on October 15, 2004) Plaintiffs are required to dismiss without prejudice all Defendants not identified by name in said receipts unless a Defendant's product has been specifically identified in a Plaintiff's previously filed affidavit. 2. To the extent not already done, Plaintiffs are ordered thirty days from today to supplement their initial affidavits with the identity of worksites, including address and employer name, at 578 which injuries occurred, and the date range of said exposure. . . . . . 8. At least 30 days prior to any Plaintiff's deposition, Plaintiffs will notify all Defendants against whom that Plaintiff has a cause of action. All other Defendants will be dismissed without prejudice as to that Plaintiff. Failure to adequately notify the Defendants may result in sanctions against the Plaintiff of up to five hundred dollars for each Defendant who appears unnecessarily. (Am. Order No. 14 ¶¶ 1-2, 8.) Between each status conference, the Court ruled on a multitude of motions, conducted a number of phone conferences to resolve discovery disputes, entered protective orders, and otherwise implemented a number of administrative measures designed to move these cases forward. However, one thing that the Court did not do was enter a case management plan. The Court urged the parties to jointly construct and agree to a plan governing the discovery process. But the parties proved unwilling to agree. Instead, Plaintiffs and Defendants submitted competing proposed case management plans. Plaintiffs' proposed plan would establish four "representative worksite tracks for case-specific pretrial preparation." Each track (representing four of the larger worksites at issue) would consist of 60 Plaintiffs (20 selected by Plaintiffs, 20 selected by Defendants and 20 randomly selected by the Court). Under this plan, discovery on the 240 representative Plaintiffs would be concluded by the beginning of 2006, with the entire MDL set to conclude January 31, 2006. The Defendants objected that this provision would allow them to depose only 2.4 percent of the Plaintiffs (while Plaintiffs would have been free to depose all of the Defendants), leaving the vast majority of the discovery and pre-trial motions against Plaintiffs to be handled after the cases were returned to the transferor courts. The Defendants also objected that allowing Plaintiffs to select one-third of the representatives would create an unrepresentative sample of Plaintiffs, since the initial disclosures showed that 93 percent of Plaintiffs had minimal radiographic findings. By contrast, the Defendants' proposed case management plan had much grander aspirations it provided for discovery on every one of the 10,000 Plaintiffs' claims. It would accomplish this by "staging" the discovery of the claims: a schedule would be established for discovery of each claim once a Plaintiff is selected to a monthly grouping of claims. Forty Plaintiffs would be randomly chosen for each monthly grouping, and eleven groupings would be selected each year, with no monthly grouping for December. For the first grouping of forty Plaintiffs, discovery would be completed and dispositive motions would be fully briefed on October 15, 2005. Defendants envisioned that this process would continue at a rate of 440 Plaintiffs per year until all Plaintiffs' claims had been exhausted. Thus, Defendants envisioned that discovery in this MDL would continue for over twenty years (and possibly much longer, judging by the rate at which new cases have been transferred to the MDL). While such interminable discovery might guarantee lifetime employment for defense counsel, it also calls to mind the saying that "justice delayed is justice denied."[21] 579 After hearing arguments on the issue, the Court declined to order that either plan be implemented. Instead, the Court made clear at the October 14 status conference that there were no orders (other than agreed protective orders) limiting discovery at all. (Am. Order No. 14 ¶ 5.) However, for the second time (the first being in May 2004), the Court ordered that the Plaintiffs who are most ill be deposed first. (Am. Order No. 14 ¶¶ 6-7; Order No. 10 ¶ 7.) To this end, Plaintiffs were ordered "to identify and provide to Defendants a list of grouped Plaintiffs arranged seriatim with the highest number b-read to the lowest. Plaintiffs will identify in this list those Plaintiffs who do not have a high number b-read but whom they believe to be seriously ill with silica related disease." (Am. Order No. 14 ¶ 6.) Finally, by the December 2004 status conference, it was clear that a decision on the issue of subject-matter jurisdiction could no longer be delayed. In Order No. 19, issued after the December 17, 2004 status conference (wherein Plaintiffs represented that all Fact Sheets had been filed), the Court ordered "[b]riefing (and any designation of evidence) on the issue of this Court's subject matter jurisdiction (as affected by recent Mississippi Supreme Court caselaw and the inability to determine what cause of action each Plaintiff has against each Defendant)." (Order No. 19 ¶ 2.) Also in Order No. 19, the Court noted that an agreement had been reached between a number of Plaintiffs and Defendants whereby the Plaintiffs who failed to specifically identify a particular Defendant's product on a Fact Sheet or product identification chart would dismiss that Defendant without prejudice, subject to the parties entering into a tolling agreement. (Order No. 19 ¶ 12.) As directed by Order No. 19, Defendants filed their final submissions on the issue of federal jurisdiction on February 4, 2005. Two groupings of Defendants submitted briefs arguing that the Court should sever each Plaintiff's claims, then require each Plaintiff contesting jurisdiction to refile motions for remand accompanied by complaints plead with specificity (as well as jurisdictional evidence in some cases) to support the assertion that the Court lacks jurisdiction. Another Defendant, 3M Company ("3M"), filed a motion to remand, arguing that virtually all Plaintiffs still assert claims against non-diverse Defendants, and therefore the cases should be remanded to state court. Of these submissions, only 3M supported it with evidence, submitting Plaintiffs' Fact Sheets and medical submissions. At the same time, 3M, as well as other Defendants, moved for sanctions against Plaintiffs on the grounds that the diagnoses on which these cases are based were made fraudulently. Before addressing the remand motions, the Court conducted Daubert[22] hearings/Court depositions of the Plaintiffs' diagnosing experts and the "screening companies" that hired them. (Order No. 19 ¶ 4.) As discussed below, the Court conducted these hearings prior to deciding the issue of subject-matter jurisdiction for two reasons: (1) because they were potentially relevant to the issue of the Court's subject-matter jurisdiction, and (2) because they were warranted by Defendants' motion for sanctions, which is a matter a court without subject-matter jurisdiction 580 may consider, see Willy v. Coastal Corp., 503 U.S. 131, 112 S.Ct. 1076, 117 L.Ed.2d 280 (1992). These hearings spanned three days, from February 16, 2005 to February 18, 2005. II. Daubert Hearings/Court Depositions A. The Need for the Hearings Prior to turning to the evidence adduced at the hearings, it is helpful first to summarize the facts that warranted them. As the Plaintiffs' Fact Sheets came pouring into the document depository, something remarkable became apparent. As required by this Court's orders, the Fact Sheets list all of the Plaintiffs' physicians not just the physicians who diagnosed the Plaintiffs with silicosis. In total, the more than 9,000 Plaintiffs who submitted Fact Sheets[23] listed the names of approximately 8,000 different doctors. And yet, when it came to isolating the doctors who diagnosed Plaintiffs with silicosis, the same handful of names kept repeating. All told, the over 9,000 Plaintiffs who submitted Fact Sheets were diagnosed with silicosis by only 12 doctors.[24] In virtually every case, these doctors were not the Plaintiffs' treating physicians,[25] did not work in the same city or even state as the Plaintiffs, and did not otherwise have any obvious connection to the Plaintiffs. Rather than being connected to the Plaintiffs, these doctors instead were affiliated with a handful of law firms and mobile x-ray screening companies. Defendants sought discovery from nine of these diagnosing doctors, as well as three screening companies.[26] Two of the screening companies (M & M and RTS) fought the Defendants' document subpoenas in the United States District Court for the Southern District of Mississippi. In this Court, Plaintiffs filed motions to quash the document subpoenas issued to the other screening company and all nine doctors. With respect to each doctor, Plaintiffs asserted that they had standing to object to the discovery because each doctor "is a Plaintiffs' expert." (MDL 03-1553, Docket Entries 1077, 1079, 1081, 1083, 1084-87, 1188.) Plaintiffs objected, among other reasons, on the grounds that asking the doctors to search their records and produce documents for 10,000 individuals 581 would subject the doctors to an undue burden and expense. Nine of the ten motions to quash were filed on October 25, 2004. Four days later and before the Defendants responded or the Court ruled the Defendants deposed one of these diagnosing doctors. 1. Dr. Martindale's Deposition On October 29, 2004, Defendants deposed Dr. George H. Martindale, a radiologist in private practice in Mobile, Alabama. Contrary to Plaintiffs' assertion in their motion to quash the subpoena issued to Dr. Martindale (filed four days earlier), Dr. Martindale testified that he was not Plaintiffs' expert and had specifically refused Plaintiffs' lawyers' requests to serve as their expert. (Martindale Dep. at 13, 141, 152-53.) Notwithstanding this, Dr. Martindale is listed on the Fact Sheets as diagnosing 3,617 Plaintiffs with silicosis. Each of Dr. Martindale's reports for each of these 3,617 Plaintiffs contain the following sentence: On the basis of the medical history review, which is inclusive of a significant occupational exposure to silica dust, physical exam and the chest radiograph, the diagnosis of silicosis is established within a reasonable degree of medical certainty. (Martindale Dep. Ex. D-2.) An example of one of these reports is attached as Exhibit 1.[27] Despite this language in his reports, during his deposition Dr. Martindale admitted that he did not diagnose any Plaintiff with silicosis. He admitted that he did not speak to a single Plaintiff; he only prepared "B-readings" of Plaintiffs' chest x-rays.[28] (Martindale Dep. at 73.) Indeed, he testified that he did not even know the criteria for making a diagnosis of silicosis. (Martindale Dep. at 70.) Specifically, Dr. Martindale testified as follows: Q. The impression states ... that on the basis of the medical history review, which is inclusive of a significant occupational exposure to silica dust, physical exam and the chest radiograph, the diagnosis of silicosis is established within a reasonable degree of medical certainty. Now, Doctor, that's simply inaccurate, isn't it? A. I can't yes, sir I can't diagnose silicosis on the basis of the chest x-ray and ILO [i.e., International Labour Office B-read form], and I didn't intend to.... [N]otwithstanding whatever is said here, I did not intend to make a diagnosis of silicosis or asbestosis based on the ILO, chest x-ray that I had, and/or the information that I was sent. I assumed that the physician who did the physical, did the history, took the 582 occupational exposure would be making the diagnosis. Q. Okay, let's break this up into a couple of pieces. Would it be fair to say that in your opinion this impression that's listed on [Dr. Martindale's report] is an overstatement of what you did? A. I think yes, I think it's an overstatement. Q. Would it be fair to say that this appears to state a clinical diagnosis of silicosis when, in fact, that's not what you did? A. Correct. (Martindale Dep. at 101-03.) Dr. Martindale further testified: Q. Doctor, as you sit here today, will you withdraw from all of your reports that have the [diagnosing] language under "impression" ... as incorrect and overstated? A. I would say that if there wasn't an established if another physician hadn't established a diagnosis of silicosis slash asbestosis, I would withdraw that. I would I would say that I am personally not making a diagnosis of asbestosis or silicosis on any report that whose ILO I filled out and whose chest x-ray I looked at, that it was not my diagnosis of asbestosis or silicosis, notwithstanding how I worded that paragraph. . . . . . Q. [W]e can pull out all thirty-five hundred of these if we need to, but it would be fair to say that the impression paragraph such as the one listed in [Dr. Martindale's report] that anywhere that occurs in your thirty-five hundred diagnoses, that that's overstated? A. As far as I'm concerned, yes.... I'm not diagnosing silicosis myself, correct. (Martindale Dep. at 120, 132.) In early 2001, Dr. Martindale decided to get a B-reader certification in order to supplement his income. (Martindale Dep. at 51-52 ("I'd heard there was a physician here in Mobile named Jim Ballard who had read a number of B-read films and ... I thought that ... it would be something that could supplement my income.")) All of Dr. Martindale's reports and B-reads were works hired by N & M, Inc., the screening company that orchestrated the majority of silicosis diagnoses for Plaintiffs in this MDL. (Martindale Dep. at 52.) Between March 2001 and June 2002, Dr. Martindale read approximately 4,000 B-reads for N & M, for both silicosis and asbestosis litigation. (Martindale Dep. at 16-17, 20, 113.) As noted above, 3,617 of these came to be labeled "diagnoses" by Dr. Martindale for Plaintiffs in this MDL. These 3,617 diagnoses were issued on only 48 days, at an average rate of 75 diagnoses per day. According to his testimony, the reason Dr. Martindale moved so quickly is that he did not believe he was diagnosing silicosis; he believed he was simply providing a "second check" of another physician's thorough diagnosis: A. [I]t was my understanding that another physician had done a physical and history occupational history, medical history had supervised some PFTs [i.e., pulmonary function tests] and had evaluated the chest x-rays, and only those patients that they had deemed had positive chest x-rays were sent to me to evaluate. . . . . . Q. And do you have an understanding of why N & M wanted you to do a second read of these x-rays? A. The only explanation that I was given was that for case for settlement of cases, the second reading was being required. 583 I guess as a second check, you know. Q. And who gave you that explanation? A. Heath Mason, who I guess is one of the owners of N & M. (Dr. Martindale Dep. at 21-24, 60.)[29] The process operated as follows: for each person, N & M mailed Dr. Martindale a chest x-ray in a jacket, a single sheet of paper that contained an abbreviated history and physical, and an ILO form (i.e., a B-read form) with the person's and Dr. Martindale's identifying information already filled in.[30] (Dr. Martindale Dep. at 19, 34-36, 91-92.) Dr. Martindale was told by Heath Mason, co-owner of N & M, that the abbreviated history and physical had been performed by a radiologist named Dr. Ray Harron. (Id. at 16, 36-37.) Dr. Martindale testified that he did not rely on this form in any way in performing his B-read. (Id. at 106.) But in making his B-reads, Dr. Martindale was "influenced" by the B-read notation written on each x-ray jacket, which Dr. Martindale understood (based on what Mr. Mason told him) had been written by Dr. Harron. (Id. at 36-37, 45-46.) Dr. Martindale was a novice "I had read no films other than my [B-reader certification] test" and Dr. Martindale "was under the impression... Dr. Harron has read thousands and thousands of films." (Id. at 46.) Thus, Dr. Martindale was "probably affected by [Dr. Harron's B-read notation] to some extent." (Id. at 45.) After noting Dr. Harron's B-read, Dr. Martindale would look at the x-ray, complete the ILO form and dictate a report for each file sent to him by N & M. Dr. Martindale completed as many as 159 B-reads a day, often in the evenings, after returning home from a normal workday. (Id. at 126.) Dr. Martindale then mailed the completed ILO forms and dictation tapes, along with everything he had received from N & M, to a transcriptionist who had been referred to Dr. Martindale by N & M. (Id. at 24-25, 29-31.) The transcriptionist typed the written reports which have been used in this litigation and which included the "diagnosis of silicosis" language. (Martindale Dep. Ex. D-2; see Exhibit 1, attached.) Mr. Mason asked Dr. Martindale to allow this language to be inserted in the reports, and, despite the fact that Dr. Martindale knew the language to be false, Dr. Martindale acquiesced. (Martindale Dep. at 31-32, 101-03.) After the transcriptionist typed the reports, she sent them to N & M, who stamped them with Dr. Martindale's signature. (Id. at 24-25, 29-30.) Under this process, Dr. Martindale did not sign, review or even see his reports after they were transcribed. (Id. at 29-31, 106.) Indeed, Dr. Martindale was not even sure that he had ever seen one of his diagnosing reports prior to the date of his deposition. (Id. at 102.) Specifically, he testified: Q. [Y]ou've never seen this form [i.e., Dr. Martindale's report with the "Impression" of a diagnosis of silicosis, see Exhibit 1] before today; right? A. I haven't seen this form. I don't know whether I ever saw the impression 584 I feel like I did probably see the impression and approved it probably or acquiesced to it, whatever, but I don't know exactly how when he [i.e., Mr. Mason] wanted to include "within a reasonable degree of medical certainty," I don't I don't remember the exact wording of what it said, whether it said it's you know the diagnosis is established within a reasonable degree of medical certainty or whether it said within a reasonable degree of medical certainty the patient has silicosis or asbestosis or but notwithstanding whatever is said here, I did not intend to make a diagnosis of silicosis or asbestosis based on the ILO, chest x-ray that I had, and/or the information that I was sent. I assumed that the physician who did the physical, did the history, took the occupational exposure would be making the diagnosis. . . . . . Q. And if you had it to do over again, you wouldn't use that [diagnosing] language? A. I wouldn't use that language, no, sir. (Martindale Dep. at 101-02, 103-04.) N & M paid Dr. Martindale $35 for each of his 3,617 reports which purport to diagnose a Plaintiff with silicosis. (Id. at 20.) 2. December Hearings a. December 2 Telephonic Hearing On December 2, 2004, the Court conducted a telephone hearing on Plaintiffs' motions to quash the document subpoenas for their diagnosing doctors. By this time, five of the doctors (including Dr. Martindale) had indicated that they had no responsive documents, making the motions moot as to them. With respect to the remainder of the doctors, the Court rejected Plaintiffs' argument that discovery should be quashed because the doctors might be non-testifying experts.[31] The Plaintiffs refused to affirmatively state that any particular doctor was, in fact, a non-testifying expert for any Plaintiff.[32] Moreover, the Court ruled that "so long as Plaintiffs are proffering the doctors and their diagnoses to fulfill this Court's requirement under Order No. 6 that Plaintiffs produce diagnoses of silica-related disease, Plaintiffs cannot claim the doctors are non-testifying." (Order No. 17 at 3.) b. December 17 Status Conference At the next in-person status conference after Dr. Martindale's deposition, on December 17, 2004, the Court expressed concern about Dr. Martindale's withdrawal of his diagnoses, and thereafter proposed Daubert hearings/Court depositions for all of the remaining diagnosing doctors, as well as the screening companies (such as N & M) that hired most of them. (Dec. 17, 2004 Status Conf. Trans. at 17-18, 24.) When the Court proposed these hearings, Plaintiffs' liaison counsel readily agreed. Plaintiffs' liaison counsel emphasized that the Plaintiffs' lawyers were "caught ... by 585 great surprise" by Dr. Martindale's testimony, and he indicated that the testimony of the other diagnosing doctors would be different. For example, the following exchanges occurred at the December 17 status conference: COURT: I'm not blaming anybody about Martindale.... But Martindale, if he's a symptom of a bigger problem, I need to know about it now and everybody else does too. PLAINTIFFS' LIAISON COUNSEL: I certainly agree with your Honor.... [W]ith respect to the Martindale issue, it came as a great surprise to the member of our team that used him.... It caught us by great surprise. We don't think it is indicative of what you're going to see with respect to the other [diagnosing physicians].... We are willing, ready, and able to bring the rest of these guys here to show to show their stripes. . . . . . COURT: Now, we all know, ... that silicosis is a very bad disease, and you get it from a workplace in admitted instances. It's very bad. And you get it from certain products, from long-term exposure, and there are people that are very sick with that. But what happens is, as we all know, is that sometimes the good is thrown in with the bad and it prevents people who really need to go forward with their case from being heard and getting their discovery. And that's why something like this is so crucial ... to lay to rest. PLAINTIFFS' LIAISON COUNSEL: I'm not disagreeing with you.... [A]ll I am saying is ... that the Martindale deal caught everybody by surprise on our side. (Dec. 17, 2004 Status Conf. Trans. at 18, 19, 21, 23-24, 35.) Plaintiffs' liaison counsel also spoke repeatedly of the Plaintiffs' lawyers' "grave concerns as to how [Dr. Martindale] got flipped." (Id. at 45; see also id. at 18-20, 39.) In light of these concerns, Plaintiffs' liaison counsel asked for an order that defense counsel would not be allowed to contact any of Plaintiffs' experts without first obtaining permission of Plaintiffs' counsel. (Id. at 41, 45-46.) The Court's orders related to the Daubert hearings/Court depositions were memorialized in Order No. 19, the same order which established the final briefing schedule on the issue of subject-matter jurisdiction. The Court ordered that on February 16-18, 2005, "[e]very physician who has diagnosed silicosis in any of the Plaintiffs, regardless of whether any Plaintiff relied on the diagnosis on a fact sheet, shall attend in person and testify." (Order No. 19 at 2.) In addition, the Court ordered representatives of the two primary screening companies, RTS and N & M, to attend and testify. (Id.) The Court granted Plaintiffs' request to prohibit Defendants from having any further contact with Plaintiffs' diagnosing physicians, other than to conduct the previously-scheduled depositions of Dr. Glynn Hilbun (on December 20, 2004) and Dr. Kevin Cooper (on January 4, 2005). (Id.) The Court also ordered Defendants to pay the reasonable fees and travel expenses for the attendance of the Plaintiffs' diagnosing physicians. (Id. at 3.) Finally, the Court denied Defendants' motion for a stay of all discovery except discovery into Plaintiffs' doctors and screeners; instead, all discovery was allowed to continue. (Id. at 5.) It is worth remarking why the Court conceived of the for lack of a better phrase "Daubert hearings/Court depositions."[33]586 These were the most efficient and effective way to allow the Defendants to depose the doctors (as is their right under the Federal Rules of Civil Procedure), while providing direct Court supervision over the proceedings which seemed advisable in light of the allegations (or at least, intimations) of misconduct made by both sides.[34] The Court's direct supervision also was advisable in light of a quartet of motions filed by Defendants in the wake of Dr. Martindale's deposition: Defendants' Motion to Exclude Plaintiffs' Experts (based upon Daubert considerations); Defendants' Motion to Appoint Independent Expert Medical Advisors/Technical Advisory Panel (pursuant to Federal Rule of Evidence 706);[35] Defendants' Motion for Physical Examinations; and Defendants' Motion for Partial Summary Judgment and/or Dismissal (regarding Cause Nos. 03-387 and 03-392, arguing that those Plaintiffs relying on Dr. Martindale for their silicosis diagnoses no longer had competent diagnoses on which to base their claims, in violation of Mississippi law[36] and this Court's Order No. 6). The Court deferred ruling upon these motions until after the Daubert hearings. However, in Order No. 19, the Court did state, "[t]he parties are urged to agree on a panel of four experts for the purpose of excluding, if possible, any plaintiff that does not presently have silicosis or is not in fear of future illness as related to silicosis, and to prioritize the degree of severity of silicosis in any other plaintiff." (Order No. 19 ¶ 5.) 587 Finally, it bears repeating that the Court conducted these hearings prior to deciding the issue of subject-matter jurisdiction for two reasons. First, the hearings were warranted by Defendants' motion for sanctions, which is a matter a court without subject-matter jurisdiction may consider, see Willy v. Coastal Corp., 503 U.S. 131, 112 S.Ct. 1076, 117 L.Ed.2d 280 (1992). Second, the hearings were potentially relevant to the issue of the Court's subject-matter jurisdiction. As discussed below, one method of establishing subject-matter jurisdiction is through the doctrine of improper joinder, which can be shown with evidence of "actual fraud in the pleading of jurisdictional facts." Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 573 (5th Cir.2004) (en banc), cert. denied, ___ U.S. ___, 125 S.Ct. 1825, 161 L.Ed.2d 755 (2005); see also Travis v. Irby, 326 F.3d 644, 646-47 (5th Cir.2003). In light of Dr. Martindale's deposition, Defendants alleged actual fraud in the pleading of Plaintiffs' claims of silica-related injuries.[37] Finally, as a more practical matter, the parties were in agreement as to the advisability of the hearings: the Defendants were eager to have this forum to depose the doctors, and the Plaintiffs, in the words of Plaintiffs' liaison counsel, were "willing, ready, and able to bring the rest of these [diagnosing doctors] here ... to show their stripes." (Dec. 17, 2004 Status Conf. Trans. at 23.) 3. Dr. Hilbun's and Dr. Cooper's Depositions As noted above, despite the impending February Daubert hearings, the Court allowed Defendants to conduct their previously-scheduled depositions of Dr. Hilbun and Dr. Cooper on December 20, 2004 and January 4, 2005, respectively. Dr. Hilbun (a general surgeon) and Dr. Cooper (a general practitioner) each performed abbreviated physical examinations on individuals who attended screening events held by N & M for the law firm of Campbell, Cherry, Harrison, Davis & Dove ("Campbell Cherry"). (Hilbun Dep. at 28-29, 32-34, 38; Cooper Dep. at 22-23.) Dr. Hilbun was paid $5,000 per day for performing abbreviated exams for five days of screenings in Columbus, Mississippi, on April 22-26, 2002. (Hilbun Dep. at 28-29, 32-34, 38.) Lured by what he considered to be "easy money," Dr. Cooper performed abbreviated exams in Pascagoula, Mississippi on April 15-16 and May 15, 2002. (Cooper Dep. at 22-23, 83.) The exams consisted of asking two questions (whether the person has (1) shortness of breath and/or (2) connective tissue disease), listening to each person's lungs, and checking them for cyanosis, clubbing, and ankle edema. Pursuant to N & M's instructions, Dr. Hilbun or Dr. Cooper completed a simple, single-page form for each of the Plaintiffs, signed the handwritten form, and left it in N & M's custody at the conclusion of the screening. (Hilbun Dep. at 34, 37-38, 53, 78; Cooper Dep. at 23-25, 28-31.) An example of this form, which was so simple, "any first grader could read [it]" (Hilbun Dep. at 34), is attached hereto as Exhibit 4. The shaded portion of the form was filled out by Dr. Hilbun or Dr. Cooper; the remainder of the form was completed by others. (Hilbun 588 Dep. at 41-43.) N & M provided Dr. Hilbun and Dr. Cooper with this form the doctors had no input in drafting it or the prepared questions they asked during the exams. (Hilbun Dep. at 35; Cooper Dep. at 23-25, 28-31.) Dr. Cooper testified that it was "easy work" because his role was exceedingly limited "compared to what I do in my normal practice." (Cooper Dep. at 83.) He stated: "not having to make a call about anything whatsoever, not having to make a diagnosis, write a prescription, do anything like that, that's easy work." (Cooper Dep. at 83.) Both doctors emphasized that they did not diagnose any of the Plaintiffs with silicosis. (Hilbun Dep. at 19; Cooper Dep. at 20.) Indeed, both doctors testified that they had never diagnosed anyone with silicosis. (Hilbun Dep. at 19; Cooper Dep. at 114.) Sometime after the screenings, N & M presented both doctors with typed forms for their signature. Both doctors testified that they believed these forms were typed versions of their physical examination reports. A sample of these N & M-prepared typed forms is attached as Exhibit 5 (Dr. Hilbun) and Exhibit 6 (Dr. Cooper). All of the forms contained the following language: On the basis of this client's history of occupational exposure to silica and a B reading of the clients chest x-ray, then within a reasonable degree of medical certainty, [Plaintiff] has silicosis. Exposure to silica is associated with an increased incidence of lung cancer, connective tissue diseases and autoimmune diseases. Therefore, this client should consult with his or her physician. (Exs. 5 & 6.) Both doctors testified that, contrary to the language in the typed forms, they did not see any x-rays, x-ray reports or pulmonary function tests, and they did not diagnose any Plaintiff with silicosis. (Hilbun Dep. at 19-22, 52, 56-62, 84, 89-90, 94; Cooper Dep. at 19-21, 40, 47-51.) Despite the false information on the forms, Dr. Cooper personally signed and dated 249 typed forms. (Cooper Dep. at 60.) Dr. Cooper testified that he failed to read any of the forms as he signed them, because he was "very, very busy." (Cooper Dep. at 20, 60, 66.) Dr. Hilbun testified that he never reviewed the typed forms, but simply instructed his assistant to stamp his name on the forms. (Hilbun Dep. at 22, 61-62.) N & M then presented the signed forms to Campbell Cherry, who placed them in the document depository pursuant to this Court's Order No. 6.[38] Despite Plaintiffs' assertions to the contrary in the motions to quash, Dr. Hilbun and Dr. Cooper each testified that they had not agreed to be a Plaintiffs' expert in this matter. (Hilbun Dep. at 23; Cooper Dep. at 15.) Also, Dr. Hilbun testified that he first learned of the diagnosis language in his reports in December 2004. (Hilbun Dep. at 85-88.) He testified that he informed Billy Davis, an attorney with Campbell Cherry, of the false language five days prior to the December 17, 2004 status conference (and eight days prior to Dr. Hilbun's December 20 deposition). (Hilbun Dep. at 85, 88; see also Feb. 17, 2005 Trans. at 204.) Thus, Mr. Davis knew that Dr. Hilbun's diagnosing reports were false but apparently did not know Dr. Cooper's diagnoses were false when he argued before the Court that Dr. Hilbun and Dr. Cooper should not be required to 589 testify because they did not diagnose any Plaintiffs with silicosis. Specifically, the following exchange occurred: DAVIS: A couple of doctors that [Defendants] mentioned are doctors that have not been identified on fact sheets as diagnosing physicians; they have not been relied upon as diagnosing physicians... COURT: Who are those? DAVIS: Dr. Kevin Cooper and Dr. Glen Hilbun. They performed physical exams on approximately 600 of our clients. COURT: Did they diagnose them? DAVIS: They are they COURT: Are they diagnosing physicians? DAVIS: No, sir, we have not identified them as diagnosing physicians. COURT: Well, who made the diagnosis on those 600? DAVIS: Dr. Martindale. They are part of the Dr. Martindale group. We have relied on those doctors' reports as it relates to taking a physical exam and a medical history. COURT: Were you going to who are you going to now want to substitute in for Martindale for those 600? . . . . . DAVIS: Your Honor, we have ... gotten substitute diagnoses on a large number of those COURT: By whom? DAVIS: By Dr. Harron.... COURT: I want every single doctor who has diagnosed silicosis in any of the ... Plaintiffs to show up for that [Daubert hearings/Court] deposition. . . . . . DAVIS: If it's a diagnosis that we have relied on, your Honor, or that we've submitted under our fact sheet. COURT: No, anybody that's diagnosed silicosis in any of these people needs to show up. You're supposed to have disclosed those names. It doesn't matter what you're relying on. That was not what was back in the affidavit months ago. You were supposed to have disclosed the diagnosing physician. If you've got them and you haven't disclosed them, ... there are going to be sanctions.... This is not a hide the ball with the silicosis. These are people who need DAVIS: Your Honor, we're not trying to hide the ball. (Dec. 17, 2004 Status Conf. Trans. at 41-44.) It was then that Plaintiffs' liaison counsel interjected, for the third time, his "grave concerns as to how [Dr. Martindale] got flipped." (Id. at 45.) B. Medically-Accepted Method for Diagnosing Silicosis At this point, it would be helpful to summarize the generally-accepted standards in the medical community for diagnosing silicosis. As the Plaintiffs wrote in a brief filed prior to the Daubert hearings: The basic mechanism for diagnosing silicosis is not controversial. A diagnosis requires a history of exposure to silica dust, radiographic evidence of silicosis, and "the absence of any good reason to believe that the radiographic findings are the result of some other condition." It is also important that the time between exposure and the onset of disease is consistent with the latency period typical of silicosis. (Pls.' Informational Br. Regarding Diagnosis Silicosis at 2) (citing Hans Weill, et al., Silicosis and Related Diseases, in OCCUPATIONAL LUNG DISORDERS 286 (3rd ed.1994); Daniel E. Banks, Silicosis, in TEXTBOOK OF OCCUPATIONAL 590 AND ENVIRONMENTAL MEDICINE 380-81 (2nd ed.2005).) The testimony of the diagnosing doctors was in accord with the above summary. For instance, one of the Plaintiffs' diagnosing doctors, Dr. Jay Segarra, a pulmonologist and NIOSH-certified B-reader practicing in Biloxi, Mississippi, elaborated as follows about the generally-accepted methodology for diagnosing silicosis: [T]he diagnosis of [silicosis] rests on, basically, three factors. One is an appropriate chest X-ray and I'll tell you what that means in a minute. An adequate exposure history which I'll explain in a minute. And finally, the absence of any other disease that would be more likely to explain the radiographic findings or clinical symptoms or whatever than Silicosis. An appropriate chest X-ray for a B-reader means, at least, primarily small, rounded opacities. They don't all have to be rounded but they should, at least, be primarily rounded. And involving, at least, one of the upper lung zones of an alveoli profusion of 1/0 or greater. This is in the absence of some superior medical data that you generally don't have such as a high resolution chest CT scan or a tissue sample where you can look under the microscope. Most of the time, you don't have that available. So, that's the chest X-ray. What an adequate exposure history means is that the physician or an agent of the physician has just got taken from the patient a history of exposure to potentially toxic, environmental substances including organic dust and inorganic dust. And determine that the level of exposure the intensity and duration was sufficient to explain the abnormalities on the chest X-ray, or at least potentially. And then ruling out the other diseases that can often be done by [past medical] history. The physical exam plays usually a small role in that regard. The history is more important. (Feb. 16, 2005 Trans. at 353-54; see also Feb. 16, 2005 Trans. at 22 (Dr. Levy); Feb. 17, 2005 Trans. at 42 (Dr. Coulter); Feb. 18, 2005 Trans. at 146 (Dr. Andrew Harron); Feb. 18, 2005 Trans. at 107 (Dr. Parker).)[39] Dr. Segarra further testified that generally it is not appropriate for anyone other than the physician or an agent of the physician to take the exposure and past medical history. The exception to this would be if the patient is unavailable, in which case a doctor could rely on "an extensive medical questionnaire" for the medical history, or, in the case of a work history, if the doctor has "not just a couple of words or a couple of sentences but [the doctor] ha[s] the entire deposition of the patient who explained what he did for work." (Feb. 16, 2005 Trans. at 355.) Dr. Segarra testified that he will also have Pulmonary Function Tests ("PFTs") performed on the patient, in order to further 591 aid in the diagnosis.[40] (Feb. 16, 2005 Trans. at 361.) And with respect to reading the chest x-ray, Dr. Segarra testified that "99.9 percent of the time," he does the B-reading himself, rather than relying on another doctor's B-read.[41] (Feb. 16, 2005 Trans. at 360.) In evaluating pneumoconioses,[42] including silicosis, chest x-rays are normally interpreted using the ILO radiograph classification system. An example of the ILO's standardized form, on which B-readers record the results of their reads, is attached as Exhibit 7. For the purpose of the following discussion, box "2B. Small Opacities" is of primary concern. The ILO system standardizes the interpretation of chest x-rays using descriptions of the size, shape, and profusion (i.e., degree or severity) of radiographic abnormalities (i.e., visible lung markings or scarring).[43] The system is used to describe shape (either regular/rounded or irregular/linear) and size (regular/rounded: "P", "Q", "R"; irregular/linear: "S", "T", "U") characteristics of radiographic abnormalities.[44]See ILO Form, attached as Exhibit 7, at box "2B a." The extent of radiographic abnormalities (i.e., "profusion", located on the ILO form at box "2B c.") is characterized by a number between 0 and 3, and a second number, separated from the first by "/". The first number, preceding the "/", is the final score assigned to that film by the reader. The second number, following the "/", is a qualifier. The numbers 0, 1, 2, and 3 are the main categories, ranging from normal (or 0) to increasingly abnormal (1, 2, and 3). An x-ray read as a category 1 film might be described as 1/0, 1/1, or 1/2. When the reader uses the descriptor "1/1", she is rating the film as a "1", and only considered it as a "1" film. If she uses "1/0", she is saying she rated the film as a "1", but considered calling it a "0" (or normal) film before deciding it was category 1. Finally, when the reader uses "1/2", she is saying she is rating the film as a "1", but considered calling it a "2" film. The ILO classification scheme also addresses which of the six lung zones are involved (upper, middle, and lower, in either the right or left lung), located on the ILO form at "2B b." The ILO guidelines direct the reader to include all the abnormalities that exist.[45] 592 Chronic or classic silicosis (i.e. the type of silicosis at issue in virtually all of the MDL cases) is characterized by tiny round nodules, primarily in the upper lobes of both lungs. On an x-ray, these round nodules show up as small, rounded opacities, which would be rated on the ILO form as "P", "Q", or "R". A diagram of these opacities, which are consistent with silicosis, is attached as Exhibit 8. By way of contrast, asbestosis, which is caused by inhaling asbestos, is characterized by linear scarring, which shows up on an x-ray as small irregular opacities ("S", "T", or "U"), primarily in the lower lobes of both lungs. A diagram of these opacities, which are consistent with asbestosis, is attached as Exhibit 9. If a reader were to read 1,000 x-rays, and then read the same x-rays a year later, there can be expected to be some variation in the findings. (Feb. 18, 2005 Trans. at 21-22.) This phenomenon of the same reader classifying a radiograph differently on different occasions is known as "intra-reader variability." If two different readers read the same x-rays and disagree amongst themselves on a classification, this is known as "inter-reader variability."[46] Concern over reader variability prompted the ILO to develop its classification scheme for the pneumoconioses. Obviously, the goal should be for variability to be as close to zero as possible. Dr. John Parker, who formerly administered NIOSH's B-reader program, testified: "[T]he statistical strength of the ILO classification system is in numbers. And if there are multiple examples of [variability], then it begins to exceed what is plausible an experienced reader might do." (Feb. 18, 2005 Trans. at 141.) Returning to the process of diagnosing silicosis, the final criterion for a diagnosis is ruling out the other potential causes of the radiographic findings. Radiographic findings consistent with silicosis may be caused by a host of other diseases, including: other pneumoconioses, such as coal worker's pneumoconiosis, berylliosis and byssinosis; infectious diseases, such as tuberculosis; collagen vascular diseases, such as rheumatoid arthritis and lupus; fungal diseases, such as histoplasmosis and coccidioidomycosis; as well as sarcoidosis. (Feb. 16, 2005 Trans. at 101-05, 328; Feb. 18, 2005 Trans. at 91-93, 229.) Radiographic findings consistent with silicosis also may be caused by certain infections, drugs, pharmaceutical preparations, congestive heart failure, obesity, or simply inferior quality x-ray equipment or film. (Feb. 18, 2005 Trans. at 91-93, 229.)[47] 593 In order to rule out the multitude of other causes of the radiographic findings, it is vitally important for a physician to take a thorough occupational/exposure history and medical history. (Feb. 16, 2005 Trans. at 101-06; Feb. 18, 2005 Trans. at 91-93, 229, 353-54.) Indeed, even a travel history may be relevant: certain diseases which mimic silicosis on an x-ray are primarily found in particular geographic regions of the country or the world. (Feb. 16, 2005 Trans. at 101-06; Feb. 17, 2005 Trans. at 43-44.) If the patient has traveled to that region, then those diseases become more likely explanations for the radiographic abnormalities.[48] And, of course, given the wide variety of possible causes for x-ray findings consistent with silicosis, the occupational, medical and travel histories must be directed by someone with sufficient medical training and knowledge to guide the questioning through all of the areas necessary to exclude each of the other possible causes for the findings.[49] This is why it is imperative that the diagnosing physician take at least some portion of the histories. (Feb. 16, 2005 Trans. at 355, 366; Feb. 17, 2005 Trans. at 43-45; Feb. 18, 2005 Trans. at 92, 134, 244-45, 255.) Finally, at the conclusion of a patient's visit, Dr. Segarra tells the patient "the results of all of what [he] did in trying to come up with whether this person has silicosis or not." (Feb. 16, 2005 Trans. at 362.) If Dr. Segarra diagnoses a patient with silicosis, he will "sit down and explain the diagnosis to [the patient]. And [he] recommend[s] to that patient or plaintiff that he get a follow up examination with his treating doctors no later than six months after [the] diagnosis." (Feb. 16, 2005 Trans. at 362-63.) Dr. Segarra also tells the patient or plaintiff that although the risk of getting lung cancer or other pulmonary diseases is increased with silicosis, it is nonetheless unlikely that they will contract those associated diseases: I want them to understand that they have a progressive disease. But, that the other diseases for which they're at an increased risk, doesn't mean that they will get these other diseases. And, in fact, they probably won't. It's simply that they're at greater risk than the average person. And I try to quantify that risk and put that in perspective for them. (Feb. 16, 2005 Trans. at 363.) After Dr. Segarra finishes discussing his findings with the patient, he dictates his 594 report, has it typed, reviews it, signs it, and then, in the litigation context, he sends it to the lawyer. (Feb. 16, 2005 Trans. at 362.) Dr. Segarra does not use form letters or signature stamps in his practice. (Feb. 16, 2005 Trans. at 371.) In addition to mailing the report to counsel, he will also either mail the report directly to the patient or insist that the plaintiff's counsel mail the report to the patient. (Feb. 16, 2005 Trans. at 362.) The reason for this is that "[p]eople need reinforcement of what you tell them. Studies have shown that you talk to patients and tell them something, but you really need to repeat it several times in different ways for it to sink in completely." (Feb. 16, 2005 Trans. at 362.) According to Dr. Segarra, the entire process of determining whether an individual has silicosis takes between 60-90 minutes.[50] (Feb. 16, 2005 Trans. at 366.) Thirty minutes of this time is devoted to taking the person's occupational, medical and smoking histories, and performing the physical examination. (Id.) Although Dr. Segarra has diagnosed plaintiffs in a number of lawsuits, he has only diagnosed a single Plaintiff in this MDL, Roosevelt Sykes.[51] (Feb. 16, 2005 Trans. at 357-58.) A copy of his report for Mr. Sykes is attached as Exhibit 10. Regardless of whether he sees the patient in a clinical setting or in a medical-legal setting, Dr. Segarra's methodology is the same. (Feb. 16, 2005 Trans. at 371-72.) Based upon the testimony presented at the Daubert hearings, as well as the medical literature and other materials submitted by the parties, the Court finds that the process described above is the standard medical practice for diagnosing silicosis, in both the clinical and the medical-legal context. (See, e.g., Feb. 16, 2005 Trans. at 367, 371-72.) C. Comparison to Asbestosis As will become apparent below, it is helpful to briefly contrast the method for diagnosing silicosis with the method for diagnosing asbestosis.[52] Both diseases are chronic lung diseases caused by the inhalation of dusts found in a variety of workplaces. The diagnostic criteria for both diseases include the examination of chest x-rays. As noted above, on a chest x-ray, silicosis presents with small, rounded opacities, in the upper or mid zones of the lungs. See Exhibit 8. By contrast, on a chest x-ray, asbestosis presents with irregular linear opacities, primarily at the bases and periphery of the lungs. See Exhibit 9. Also, unlike with silicosis, in cases of asbestosis, "pleural thickening" (denoted on boxes "3A" through "3D" on the ILO form) is common. (Feb. 18, 2005 Trans. at 45-46; compare Exhibit 9 with Exhibit 8.) 595 Because asbestosis and silicosis have such different appearances on an x-ray, in a clinical setting, "confusion between silicosis and asbestosis does not occur." Dr. David Weill, Senate Judiciary Committee Testimony, Fed. Doc't Clearinghouse at 4 (Feb. 3, 2005). As Dr. Weill, a pulmonologist with the University of Colorado Respiratory Center, recently stated before the Senate Judiciary Committee: Distinguishing among diseases that fall into the same radiographic categories requires the clinician to consider other factors, most notably a careful history and pulmonary function test. There should not, however, be confusion between diseases that fall into different categories, such as asbestosis and silicosis. Id. at 5; see also Dr. Paul Epstein, Senate Judiciary Committee Testimony, Fed. Doc't Clearinghouse at 2 (Feb. 2, 2005) ("[T]he x-ray appearances of these two dust-related diseases [i.e., silicosis and asbestosis] are vastly different."). While it is theoretically possible for one person to have both silicosis and asbestosis, it would be a clinical rarity. As Dr. Weill testified: Although asbestosis and silicosis are different diseases that look different on x-ray films, it is theoretically possible for one person to have both diseases. A person could be exposed to both silica and asbestos in sufficient quantities to cause either disease, but it would be extremely unusual for one person in a working lifetime to have sufficient exposure to both types of dust to cause both diseases. In my clinical experience in the United States, I have never seen a case like this and colleagues who saw patients in periods where exposure levels were much higher have difficulty recalling an individual worker who had both asbestosis and silicosis. Even in China, where I saw workers with jobs involving high exposure to asbestos and silica (such as sandblasting off asbestos insulation), I did not see anyone or review chest radiographs of anyone who had both silicosis and asbestosis. Dr. David Weill, Senate Judiciary Committee Testimony, Fed. Doc't Clearinghouse at 4 (Feb. 3, 2005); see also Dr. Paul Epstein, Senate Judiciary Committee Testimony, Fed. Doc't Clearinghouse at 3 (Feb. 2, 2005) ("[I]t is my professional opinion that the dual occurrence of asbestosis and silicosis is a clinical rarity."); Dr. Theodore Rodman, Senate Judiciary Committee Testimony, Fed. Doc't Clearinghouse at 2 (Feb. 2, 2005) ("Among the thousands of chest x-rays which I reviewed in asbestos and silica exposed individuals, I cannot remember a single chest x-ray which showed clear-cut findings of both asbestos exposure and silica exposure."). Likewise, Dr. John Parker, former administrator of NIOSH's B-reader program and current revisor of the ILO guidelines, testified before this Court that he has never seen a clinical case of asbestosis and silicosis in the same individual. (Feb. 18, 2005 Trans. at 89-90.)[53] Similarly, Dr. Samuel Hammar, a pathologist who has written the leading pathology textbook on lung disease (and who is frequently a plaintiff's expert in asbestosis cases), has written the following: I have seen the diagnosis [of asbestosis and silicosis in the same patient] several times, and in the cases that I've had pathology to evaluate [i.e., where he has actually looked at the lung tissue], I have never seen cases in which there 596 was both silicosis and asbestosis in the same patient. This does not necessarily mean that this couldn't happen, but in my experience, I have never seen it. Silicosis has a fairly distinct morphology, and at this point in time is a rare disease. I think I have seen about five cases over the last ten years that I thought pathologically represented silicosis. (Feb. 18, 2005 Trans. at 263-64; Friedman Ex. 2.) D. Screening Companies The majority of claims in this MDL rely upon diagnoses given by doctors associated with screening companies. A representative of two such screening companies, N & M and RTS, testified at the Daubert hearings. N & M (short for "Netherland & Mason," the co-owners of the company) helped generate approximately 6,757 claims in this MDL, while RTS (short for "Respiratory Testing Services") helped generate at least 1,444 claims. (Feb. 18, 2005 Trans. at 29-31, 177; Feb. 17, 2005 Trans. at 267; N & M Ex. 38.) Because N & M produced such a large percentage of the claims in this MDL, the Court will focus its discussion on N & M, with occasional references to RTS when appropriate. Also, a third screening company, Occupational Diagnostics, which generated 237 diagnoses, did not testify at the hearings. (Feb. 17, 2005 Trans. at 30, 53-54, 67-68.) This third testing company, which, curiously, shares its office and phone line with a Century 21 real estate business (Feb. 17, 2005 Trans. at 80-81), will be discussed infra, in conjunction with the testimony of Dr. Todd Coulter. In 1994, Heath Mason and Molly Netherland, the co-owners of N & M, and Charles Foster, the owner of RTS, were all employees of another Alabama screening company called "Pulmonary Testing Service." Mr. Foster left Pulmonary Testing Service at that time to form RTS, and Mr. Mason and Ms. Netherland formed their company two years later, after Pulmonary Testing Service went out of business. (Feb. 17, 2005 Trans. at 269; Feb. 18, 2005 Trans. at 169.) At the time he formed N & M, Mr. Mason was 21 years old; he had dropped out of junior college after only a year and had worked at Pulmonary Testing Service for less than two years. (Feb. 17, 2005 Trans. at 268.) Neither Mr. Mason nor Ms. Netherland had (or currently have) any medical training and N & M has never had a medical director.[54] (Feb. 17, 2005 Trans. at 271-72, 276.) What Mr. Mason did possess was contacts with paralegals at law firms. (Feb. 17, 2005 Trans. at 274.) Ms. Netherland had the seed money for the business and access to x-ray equipment from her husband's chiropractic office. (Feb. 17, 2005 Trans. at 271, 275.) At the outset, N & M simply provided x-rays to law firms. But the law firms quickly began asking N & M to also provide doctors to read the x-rays, perform physical examinations and provide finalized diagnostic reports, ready for litigation. (Feb. 17, 2005 Trans. at 272.) In late 1996 or early 1997, N & M hired Dr. Ray Harron, a radiologist and certified B-reader, to read chest x-rays as well as make diagnoses. (Feb. 17, 2005 Trans. at 270.) N & M paid Dr. Harron $125 per person for the process which included some combination of the following three steps: (1) reading the x-ray, (2) conducting an abbreviated physical exam, and (3) making a 597 diagnosis.[55] (Feb. 17, 2005 Trans. at 280.) At first, Dr. Harron stipulated that he would receive a minimum payment of $10,000 per day, but Dr. Harron did not insist on this if less than 80 people attended a screening. (Feb. 17, 2005 Trans. at 280.) Over time, N & M sent x-rays to in Mr. Mason's words "multitudes of B-readers," including Dr. Harron, Dr. Andrew Harron (Dr. Harron's son),[56] Dr. James Ballard, and Dr. Allen Oaks, all of whom testified at the Daubert hearing. (Feb. 17, 2005 Trans. at 284.) The screening companies were established initially to meet law firm demand for asbestos cases. But sometime around 2001, law firms began asking the companies to screen people for silicosis. (Feb. 17, 2005 Trans. at 287.) The initial lists of people to be screened were the law firms' "existing inventory" of asbestos plaintiffs. (Feb. 17, 2005 Trans. at 281, 286.) Law firms also placed advertisements in the media asking people to attend screenings. One such law firm advertisement is attached as Exhibit 11. Screening companies, in turn, advertised for law firm business, as well as for members of the public to attend the screenings. An N & M marketing brochure is attached as Exhibit 12, and an RTS brochure is attached as Exhibit 13. The public advertisements appealed to a broad range of individuals for instance, one law firm advertisement begins: Attention all contract, union, non-union, and retired plant and factory workers, painters, sandblasters, glaziers/glassworkers, construction workers, quarrymen, boilermakers, bricklayers, plasterers, carpenters, welders, cement finishers, laborers, electricians, insulators, machinists, maintenance, operators, pipefitters, paperworkers, sheetmetal workers, steelworkers, sheetrock hangers, drywallers, and other trades: You may have been exposed to asbestos or silica sand for a period of time, and be eligible to be screened for ASBESTOSIS, MESOTHELIOMA CANCER, LUNG CANCER, OR SILICOSIS. (Exhibit 11 (emphasis in original).) The RTS brochure features an even longer list of trades, as well as details as minor as, "[t]he mobile units are not only functional but very appealing to the eye."[57] (Exhibit 13.) N & M produced a television commercial listing many job titles and inviting viewers to call a toll-free number to make an appointment to be screened. (Feb. 17, 2005 Trans. at 366-67.) When N & M received responses to its public advertising, N & M then would solicit this client list to law firms. (Feb. 17, 2005 Trans. at 367-68.) Generally, the first stages of the screening process operated as follows: (a) the law firm provided the screening company with a list of people (for instance, existing asbestos plaintiffs or workers at industrial sites); (b) either the law firm or the screening company sent out a mass mailing asking the recipient to call the screening company's toll-free phone number; (c) the staff answering the phone would ask if the caller had been exposed to silica; and, (d) for those who "showed some form of being exposed to silica," the caller would 598 be encouraged to attend a mass screening. (Feb. 17, 2005 Trans. at 281-82, 286, 289.) The screening company would tailor this process to the wishes of the law firm. In the words of Mr. Mason, "basically, [the screening company is] a service; whatever [the law firm] asked us to do is what we did." (Feb. 17, 2005 Trans. at 281.) Some law firms would simply ask the screening company to x-ray a group of people and send the x-rays to the firm, who would then pass the x-rays on to a B-reader hired directly by the firm. (Feb. 17, 2005 Trans. at 283.) Then the law firm might ask the screening company to set up physical examinations and PFTs on those with positive B-reads. (Feb. 17, 2005 Trans. at 283.) Also, rather than using the screening company's receptionists, some law firms would hire a "temp service" to take "a brief work history" and decide if the person "had adequate exposure" to silica to justify the cost of the x-ray. (Feb. 17, 2005 Trans. at 284.) In either case, there is no evidence that anyone answering the phones, whether employed by a screening company or a law firm, had any medical training or had been instructed by any medical professional what questions would be appropriate in taking an occupational history. (Feb. 17, 2005 Trans. at 293-94; Feb. 18, 2005 Trans. at 180.) Indeed, it is clear that the law firms, rather than any medical professionals, established the criteria for the screening company to use when taking the occupational history. (Feb. 18, 2005 Trans. at 194-95.) For example, Mr. Foster of RTS testified that the Barton & Williams law firm asked for a client to have at least five years exposure history to silica to qualify for a screening. (Feb. 18, 2005 Trans. at 195.) Mr. Foster said that other law firms required "a lot less" exposure. (Feb. 18, 2005 Trans. at 195.) Perhaps most telling was when the Court asked Mr. Foster, "What is your training on this, on [diagnosing] silicosis?", to which Mr. Foster replied: "Whatever the criteria the law firm sets." (Feb. 18, 2005 Trans. at 183.) On the day of a screening, the screening company parked its van or truck (carrying a mobile x-ray machine) in the parking lot of a hotel or a retail establishment, such as a K-Mart or a Sizzler restaurant.[58] (Feb. 17, 2005 Trans. at 54.) As each client arrived in front of the van or trailer, a receptionist greeted the client, and using a standard form prepared by the screening company or law firm, verified that the client had an appointment and the information previously given by the client over the telephone.[59] (Feb. 17, 2005 Trans. at 306.) The client then underwent a chest x-ray. (Feb. 17, 2005 Trans. at 307.) N & M's x-ray equipment was operated by a technician and was periodically inspected by the appropriate state certification board. Inspectors in both Mississippi and Texas have issued violations to N & M for failing to comply with state standards. (Feb. 17, 2005 Trans. at 308-09, 312, 316-17.) In addition, N & M did not have a policy of having a medical professional supervise the x-rays and the equipment during the screens. (Feb. 17, 2005 Trans. at 308-09.) Moreover, no medical professional actually ordered the x-rays; Mr. Foster testified that he viewed the client as "requesting" the x-ray for him or herself. 599 (Feb. 18, 2005 Trans. at 42, 176; RTS Ex. 1.) This is despite the fact that, according to Dr. Ballard (an RTS B-reader), in normal medical practice, a doctor orders an x-ray before it is performed on a patient. (Feb. 18, 2005 Trans. at 42-43.) At this point, it is worth noting that there is nothing inherently wrong about performing x-rays in a van or trailer. For instance, NIOSH uses a mobile x-ray unit. (Feb. 18, 2005 Trans. at 100.) However, mobile units must have rigorous medical oversight, to ensure that proper safety standards are observed. Moreover, mobile x-ray units often are not as heavy as ones in offices and do not always have a consistent power source, which can lead to inferior quality films. (Feb. 18, 2005 Trans. at 292-93, 305-06.) With respect to the units used by the screening companies at issue here, there is no evidence of medical oversight (rigorous or otherwise), sufficiently heavy x-ray units, or a consistent power source. (See, e.g., Feb. 17, 2005 Trans. at 87-88.) Indeed, there is no evidence any medical professional supervised the extent to which the Plaintiffs were irradiated. (See, e.g., Feb. 17, 2005 Trans. at 88.) Returning to the screening process in these cases, the Court will focus on, by way of example, the Campbell Cherry cases.[60] In those cases, after the x-ray was taken, Dr. Harron (on behalf of N & M) read the film using a view box, and decided whether the patient should have PFTs. (Feb. 17, 2005 Trans. at 317-21.) As noted above, PFTs are a broad range of tests that measure how well the lungs take in and exhale air and how efficiently they transfer oxygen into the blood.[61] While PFTs by themselves cannot determine the cause of any abnormality, they can be used in combination with a chest x-ray and other tests to help determine what type of lung disease a person has. Mr. Mason, after attending a three-day training course, performed the most common PFT, spirometry.[62] (Feb. 17, 2005 Trans. at 271-72.) Despite the fact that he is not a respiratory therapist and, in his words, "I don't really have any medical qualifications" (Feb. 17, 2005 Trans. at 271-72), he moved beyond spirometry and performed other, more complicated types of PFTs. (Feb. 17, 2005 Trans. at 278, 299-301; Feb. 18, 2005 Trans. at 269-70.) An example of an N & M PFT report belonging to Plaintiff Robert Morgan is attached hereto as Exhibit 17. Listed on pages 1, 4, 5 and 6 of the PFT report are "Error Codes" for the equipment used to perform a particular PFT (page 1 is the spirometry report; page 4 is the single breath diffusing capacity report; page 5 is the flow volume loop report; page 6 is the lung volume report). These Error Codes, listed on the reports as "ECodes", contain between 3 and 6 different categories, each representing a performance requirement established by the American Thoracic Society. 600 (Feb. 18, 2005 Trans. at 271.) If the equipment meets the American Thoracic Society requirement for each category, then each number will be "0". (Feb. 18, 2005 Trans. at 271.) But if the equipment fails a requirement, then the number for that category will be "1". (Feb. 18, 2005 Trans. at 271.) In reviewing "Ecodes" on pages 1, 4, 5 and 6 of Exhibit 17, it is clear that more often than not, the equipment failed to function according to American Thoracic Society requirements. Dr. Friedman looked at page 1 of Mr. Morgan's PFT report and was immediately struck by the spirometry result which indicates that Mr. Morgan had a 43 percent ratio of the volume of air he could exhale in one second to the total volume of air he could exhale with a single breath. (Feb. 18, 2005 Trans. at 272; see Attached Exhibit 17 at 1 (listed as "FEV1/FVC%").) Given Mr. Morgan's age, the ratio should normally be approximately 75 percent. (Feb. 18, 2005 Trans. at 272.) According to Dr. Friedman, What that means is that if you have this [FEV1/FVC%] number reduced, that means there's airway obstruction, and you should use something like albuterol or nebulizer to see if this person has reversible airway disease like asthma. And you customarily would give the treatment, wait 15 minutes, and then repeat the study. (Feb. 18, 2005 Trans. at 272.) However, as indicated by the report, no such treatment was given to Mr. Morgan (i.e., there is nothing listed under "Post Rx"), perhaps because N & M did not have a doctor to prescribe the drug, or perhaps because N & M did not want to slow the stream of clients in the screening process by waiting 15 minutes, or perhaps because the person administering the test simply did not know the proper procedure. (Feb. 18, 2005 Trans. at 273.) In any event, according to Dr. Friedman, the "test [report] doesn't tell us anything." (Feb. 18, 2005 Trans. at 273.) Returning to the screening process, after the PFTs were performed, Dr. Harron performed an abbreviated physical examination (taking about two minutes per client) and completed the ILO form and an "A-sheet" in front of the patient.[63] (Feb. 17, 2005 Trans. at 317-18, 321, 323.) During Dr. Harron's sole meeting with the client, Dr. Harron did not ask the client about his or her work history; instead he simply relied upon the information gathered by the screening company, as written on the A-sheet. (Feb. 17, 2005 Trans. at 328.) After completing the paperwork, Dr. Harron informed the client of his diagnosis. (Feb. 17, 2005 Trans. at 321.) Later, Dr. Harron dictated a narrative from the ILO form, which sometimes would be typed immediately onsite and sometimes would be typed later offsite. (Feb. 17, 2005 Trans. at 318-19.) At some point, Dr. Harron's relationship with N & M grew so close that N & M had a stack of blank ILO forms that had been signed by Dr. Harron. (Feb. 17, 2005 Trans. at 370-71.) A copy of a pre-signed blank ILO form is attached as Exhibit 18. Mr. Mason testified that while N & M would fill in the name and social security number of the patient and the date of the 601 x-ray on the pre-signed ILO form, Dr. Harron himself completed the remainder of the form. (Feb. 17, 2005 Trans. at 371.) He did not explain, however, why the forms were pre-signed if Dr. Harron himself later completed them. In the case of the Campbell Cherry screens, if the patient received a diagnosis of silicosis, a receptionist informed the patient that they could choose any lawyer they wanted, but that a Campbell Cherry lawyer was waiting for them at a nearby offsite location. (Feb. 17, 2005 Trans. at 324-25.) If the patient who was diagnosed with silicosis signed-up with Campbell Cherry to be a plaintiff, then Campbell Cherry paid N & M $750 for screening that patient. (Feb. 17, 2005 Trans. at 301-03, 325.) If the patient was not diagnosed with silicosis or did not sign-up with Campbell Cherry, N & M was paid nothing. (Feb. 17, 2005 Trans. at 301-03, 325.) Campbell Cherry represents approximately 4,256 Plaintiffs in this MDL, meaning N & M likely was paid $3,192,000 for its Campbell Cherry work. (Feb. 17, 2005 Trans. at 363.) For each of the approximately 2,000 Plaintiffs represented by O'Quinn, Laminack & Pirtle, N & M was paid $335 per positive diagnosis. (Feb. 17, 2005 Trans. at 363-64.) Because of this fee structure, Mr. Mason testified that the emphasis was on attracting as many people as possible to the screenings and creating as many positive diagnoses as possible; as he stated, "[F]rom a business standpoint of mine, you had to do large numbers." (Feb. 17, 2005 Trans. at 282.) Sometimes, law firms (especially Campbell Cherry) would ask N & M to have another doctor do re-reads of the x-rays which had been read as positive for silicosis.[64] (Feb. 17, 2005 Trans. at 331-33, 342, N & M Ex. 17.) And if the subsequent B-reader (often Dr. Martindale) did not make a positive silicosis finding, then N & M would send the x-ray to a third B-reader for yet another read. (Feb. 17, 2005 Trans. at 335-37, 375-76, 405.) Mr. Mason thought it was even possible that if the third reader also did not make a positive silicosis finding, then the x-ray would be sent to a fourth reader. (Feb. 17, 2005 Trans. at 337-38.) And while some law firms did not want diagnoses made by Dr. Harron, other law firms (for example, the law firm group of Barton & Williams) would accept the initial Dr. Harron positive B-read even after two subsequent B-readers had read the x-rays as negative for silicosis. (Feb. 17, 2005 Trans. at 338-39, 407-09.) As Mr. Mason stated: You would have different law firms that needed different bases at different times. You may have in your inventory where Dr. Harron read them positive. The people want a lawyer. The people want to be represented. So it's your job that if a [person] calls you and they have a B reader who has said they were positive, it's our job to help them find a lawyer. That's what they want us to do. That's what we told them we were going to do. (Feb. 17, 2005 Trans. at 339.) Meanwhile, if a client was tested and told that he or she did not have silicosis, the client was told to return for retesting at a later date. (Feb. 18, 2005 Trans. at 186-87, 201.) However, Mr. Foster testified that he did not keep track of how often a client returned to be retested (Feb. 18, 2005 Trans. at 188, 201), meaning clients, who sometimes were eager to be 602 retested (Feb. 18, 2005 Trans. at 186), could be exposed to multiple chest x-rays in a brief period of time. Mr. Mason testified that in April 2002, the Campbell Cherry firm asked N & M to find a doctor other than Dr. Harron to do the physical examinations during the screenings. (Feb. 17, 2005 Trans. at 377-78.) N & M recruited Dr. Hilbun and Dr. Cooper for this purpose. (Feb. 17, 2005 Trans. at 378.) N & M passed on the extra charges for these doctors to Campbell Cherry. (Feb. 17, 2005 Trans. at 380.) Mr. Mason testified that he believed the erroneous diagnosing language in Dr. Hilbun's and Dr. Cooper's reports (discussed supra) originated from Dr. Harron's office, where the reports were transcribed. (Feb. 17, 2005 Trans. at 380-81, 391.) In any event, Mr. Mason denied that N & M inserted the improper diagnosing language into the reports. (Feb. 17, 2005 Trans. at 380-81.) While Mr. Mason did not seem distressed about Dr. Hilbun's and Dr. Cooper's false "diagnoses", he seemed quite distressed about Dr. Martindale's retraction of all of his diagnoses. Mr. Mason testified that "[Dr. Martindale] cashed every check that I ever gave to him for this particular purpose [i.e., diagnosing silicosis].... [H]e agreed to the [diagnosing] language...." (Feb. 17, 2005 Trans. at 382.) Mr. Mason explained: [T]he same [diagnosing] language is basically used on all the reports. I mean, Dr. Harron's reports are the same. At the time, Campbell Cherry ... faxed me this particular paragraph and I met with Dr. Martindale to discuss this paragraph. [Dr. Martindale] asked me what I though it was about and I said, "Basically all I know about it is, is that this is the same paragraph that we have on Ray Harron reports when he diagnoses people and they [i.e. Campbell Cherry] need a diagnosing paragraph." And he said, "Well, what do I have to have for that?" And I said, "Well, you've got to have the stuff that I'm going to send to you," which is their history, their latency, their time of exposure, which was all provided to him on the "A" sheet. (Feb. 17, 2005 Trans. at 383-84.) Mr. Mason, while looking at an exhibit which is attached hereto as Exhibit 19, further explained: A: [W]hat [Campbell Cherry] wanted ... was that [diagnosing] language ... because ... [Dr. Martindale] was giving them a normal ILO form I mean, a normal X-ray narrative, basically without the [diagnosing] paragraph. Q: Yeah, which would have just been "consistent with," as opposed to this ... "reasonable degree of medical certainty" language, right? A: Right. And what I explained to [Campbell Cherry] when they showed it to me was, I said [Dr. Martindale] can't do that unless we provide to him their history, exposure, and all the things he needs to do a diagnosing paragraph, which we had not done in the past, but what we did do when we started to insert the paragraph. Q: So this "reasonable degree of medical certainty" language is coming from the lawyers? A: This particular one, but I mean, I would say that it came from most likely Dr. Harron's report because it reads exactly the same. (Feb. 17, 2005 Trans. at 384.) Indeed, in reviewing the reports of the diagnosing doctors who participated in the mass screenings, the diagnosing language is remarkably similar. Not only was Dr. Hilbun's and Dr. Cooper's diagnosing language 603 identical to Dr. Ray Harron's, but Dr. Andrew Harron's diagnosing language was likewise identical. (Exhibit 19, attached.) When Dr. Oaks worked for N & M, his diagnosing language was identical to the language in Dr. Martindale's reports. (Exhibit 19, attached.) For example, Exhibit 20 (attached hereto) contains two reports from Dr. Harron, wherein Dr. Harron diagnosed the same individual, Clarence Odem, on one date with silicosis and on another date with asbestosis (and neither report references the other). On the asbestosis report, Mr. Odem's work history states that he worked for the U.S. Army as a laborer from 1957-1994, during which time he was exposed to asbestos; on the silicosis report, Mr. Odem's work history states only that he worked for Ingalls as a painter from 1965-1968 (i.e., during the same period he claimed to be working for the Army), during which time he was exposed to silica.[65] Most remarkable is that Dr. Harron based these two divergent diagnoses on the same chest x-ray meaning the diagnoses and the inconsistent work histories originated from the same mass screening. Two additional examples of Dr. Harron making divergent diagnoses (one asbestosis and one silicosis) for the same individual arising out of the same mass screening are attached as Exhibit 21.[66] Overall, N & M a small Mississippi company operated without medical oversight managed to generate the diagnoses for approximately 6,757 MDL Plaintiffs. To place this accomplishment in perspective, in just over two years, N & M found 400 times more silicosis cases than the Mayo Clinic (which sees 250,000 patients a year) treated during the same period. (Feb. 18, 2005 Trans. at 230.) Furthermore, when comparing the names of the approximately 6,757 N & M-generated MDL Plaintiffs with the names in the Manville Personal Injury Settlement Trust (a trust established for asbestos claims after the Johns-Manville Corporation bankruptcy[67]), at least 4,031 N & M-generated Plaintiffs have also made asbestosis claims. (N & M Ex. 38.) The magnitude of this feat becomes evident when one considers that many pulmonologists, pathologists and B-readers go their entire careers without encountering a single patient with both silicosis and asbestosis. See Feb. 18, 2005 Trans. at 89-90, 263-64; Friedman Ex. 2; see also Dr. David Weill, Senate Judiciary Committee Testimony, Fed. Doc't Clearinghouse at 4 (Feb. 3, 2005); Dr. Theodore Rodman, Senate Judiciary Committee Testimony, Fed. Doc't Clearinghouse at 2 (Feb. 2, 2005). Stated differently, a golfer is more likely to hit a hole-in-one than an occupational medicine specialist is to find a single case of both silicosis and asbestosis. N & M parked a van in some parking lots and found over 4,000 such cases. E. Dr. Ray Harron In 1995, at the age of 63, Dr. Harron "kind of gave up real medicine and [he has] just been doing this pneumoconiosis 604 work." (Feb. 16, 2005 Trans. at 259-60.) From 1995 until the present, Dr. Harron has worked exclusively for plaintiffs' lawyers, reading x-rays and diagnosing asbestosis and silicosis for use in litigation. (Feb. 16, 2005 Trans. at 258-60.) Specifically, all of Dr. Harron's "pneumoconiosis work" has been for N & M. (Feb. 16, 2005 Trans. at 277.) From 1995 through approximately 2000, Dr. Harron's work for N & M focused on asbestosis cases. (Feb. 16, 2005 Trans. at 279.) Beginning in 2001, his focus shifted to silicosis cases. (Feb. 16, 2005 Trans. at 279-80.) Dr. Harron testified as follows about his diagnosing process: [I]f there's a history of exposure with some latency and then I've got an x-ray, then I can tie it together and say "within a reasonable degree of medical certainty" this individual has whatever pneumoconiosis I think it is. And "within a reasonable degree of medical certainty," it is my understanding that all the lawyers on both sides of this room agree means better than a 50 percent chance that this is what the diagnosis is. It's not a diagnosis the way a treating physician would have to make a diagnosis.... (Feb. 16, 2005 Trans. at 267-68.) Dr. Harron explained that based upon diagnoses "to a reasonable degree of medical certainty," he would not "put [the clients] on drugs, do radiation therapy, put radium in them, [or] refer them to a surgeon for some kind of invasive work." (Feb. 16, 2005 Trans. at 308.) Stated differently, Dr. Harron believes "it's a legal standard and not a real diagnosis."[68] (Feb. 16, 2005 Trans. at 268.) Dr. Harron testified that he did not agree with the language in his reports about him relying upon the results of a physical examination in making his diagnosis; but N & M asked him to place that language in his reports and he "capitulated". (Feb. 16, 2005 Trans. at 281-82.) Dr. Harron also testified that, "I don't take the history; it's given to me...." (Feb. 16, 2005 Trans. at 267, 282.) Instead, Dr. Harron believed that the law firms or N & M took the client's history, or at least he understood that "a medical person is not taking the history." (Feb. 16, 2005 Trans. at 282, 295.) He testified that all he needs to make a diagnosis, in terms of exposure history, is a simple statement, such as, "I was exposed 20 years ago to silica." (Feb. 16, 2005 Trans. at 304-05.) However, he did testify that, "[i]f [the history is] not reliable ... then I have to retract the diagnosis." (Feb. 16, 2005 Trans. at 282-83.) Dr. Harron also testified that he did not agree that one of the criteria for the diagnosis of silicosis is the absence of any good reason to believe that the positive radiographic findings are the result of some other condition. (Feb. 16, 2005 Trans. at 324-25.) This opinion is contradicted by all of the major textbooks in the field, as well as by the testimony of the other physicians 605 at the hearing. (See, e.g., Hans Weill, et al., Silicosis and Related Diseases, in OCCUPATIONAL LUNG DISORDERS 286 (3rd ed.1994); Daniel E. Banks, Silicosis, in TEXTBOOK OF OCCUPATIONAL AND ENVIRONMENTAL MEDICINE 380-81 (2nd ed.2005); Feb. 16, 2005 Trans. at 353-54 (Dr. Segarra).) Indeed, even the Plaintiffs' briefing contradicts Dr. Harron's opinion. (Pls.' Informational Br. Regarding Diagnosis Silicosis at 2.) The importance of excluding other conditions which might have caused the positive radiographic findings can be illustrated by the case of Plaintiff Donald Connell. Dr. Harron testified that based upon his ILO form for Mr. Connell, Mr. Connell displayed radiographic findings consistent with coal worker's pneumoconiosis, silicosis, asbestosis and/or berylliosis. (Feb. 16, 2005 Trans. at 328.) According to Dr. Harron's report which diagnosed silicosis, Mr. Connell worked at Peabody Coal Company. (Feb. 16, 2005 Trans. at 328.) Despite the fact that Mr. Connell presumably would have been exposed to coal while working at a coal company, thus making coal worker's pneumoconiosis an obvious explanation for the positive radiographic findings, Dr. Harron diagnosed only silicosis. Dr. Harron supposed this was because N & M had provided him with an A-sheet indicating exposure to silica. (Feb. 16, 2005 Trans. at 329-30.) However, the N & M A-sheet did not ask about exposure to coal, presumably because the sheet was produced only for silicosis and asbestosis litigation. (Feb. 16, 2005 Trans. at 330.) An example of an A-sheet is attached as Exhibit 16.[69] Dr. Harron testified that his only involvement in these cases was to complete the ILO forms. He trusted his secretaries, a typing company, N & M, and perhaps others, to "prepare [his] reports, stamp [his] name on them and send those reports out without [him] editing or reviewing them." (Feb. 16, 2005 Trans. at 285-87.) Dr. Harron also testified that he did not dictate his reports, but he instead trusted the secretaries/typists to know how to "translate [the ILO form] into English." (Feb. 16, 2005 Trans. at 289-90.) He did this despite the fact that none of them had any medical training, with the exception of one typist who had been an x-ray technician. (Feb. 16, 2005 Trans. at 290.) In other words, in every one of the approximately 6,350 reports (2,600 of which were diagnosing reports and the remainder were B-read reports) purportedly issued by Dr. Harron, Dr. Harron failed to write, read, or personally sign the actual report. (Feb. 16, 2005 Trans. at 285-90, 300, 317.) Dr. Harron testified about the case of Plaintiff Barry Barrett. On August 18, 2001, Dr. Harron read Mr. Barrett's x-ray and completed an ILO form, attached hereto as Exhibit 22. Through some manner that Dr. Harron did not explain, this single ILO form became the basis of two separate diagnosing reports for Mr. Barrett. One of the reports, attached as Exhibit 22, states that "I feel within a reasonable degree of medical certainty, Barry Barrett has asbestosis." The other report, also attached as Exhibit 22, states that "I feel within a reasonable degree of medical certainty, Barry Barrett has silicosis." Neither report references the other report 606 or the other report's diagnosis. Dr. Harron explained that the typist[70] would have seen the "S" primary opacity box checked and would have interpreted this as consistent with asbestosis. (Feb. 16, 2005 Trans. at 292.) This would have prompted the typist to produce the report diagnosing asbestosis. (Feb. 16, 2005 Trans. at 294.) Dr. Harron further explained that the typist would have seen the "P" secondary opacity box checked and interpreted that as consistent with silicosis, prompting the report diagnosing silicosis. (Feb. 16, 2005 Trans. at 292-94.) Dr. Harron testified that other diseases also could have been consistent with these opacities, but the typist selected asbestosis and silicosis, respectively. (Feb. 16, 2005 Trans. at 293-94.) This situation was not confined to the case of Mr. Barrett. (Feb. 16, 2005 Trans. at 320-22 (detailing the identical situation with respect to Plaintiff James Curtis).) Dr. Gary Friedman,[71] an occupational medicine specialist and professor at the University of Texas, testified about Dr. Harron's practice of allowing a secretary to transform the markings on the ILO form into a diagnosing report and then stamp his signature without review. Dr. Friedman said that this does not remotely resemble reasonable medical practice. (Feb. 18, 2005 Trans. at 249.) He continued: "I've been a B-reader. I've taught B-reading. I don't know of anything that implies that the B-reading system can be used by interpreted by people other than physicians." (Feb. 18, 2005 Trans. at 249.) Later, Dr. Friedman called the practice "disgraceful"; Dr. Segarra called it "distressing". (Feb. 16, 2005 Trans. at 365; Feb. 18, 2005 Trans. at 265.) Dr. Harron was involved in the diagnosis of approximately 6,350 Plaintiffs in this MDL (by performing B-reads and/or producing diagnosing reports), and he is listed as the diagnosing physician for approximately 2,600 Plaintiffs.[72] (Feb. 16, 2005 Trans. at 300, 317.) Of all the MDL Plaintiffs who submitted diagnoses, Dr. Harron performed approximately 78 percent of the B-reads. (Defs.' Ray Harron Ex. 19.) When the Defendants cross-referenced the documents produced in this MDL with the documents in the Manville Trust (a trust established for asbestos claims), they discovered instances where Dr. Harron performed a B-read for someone in connection with an asbestosis claim, and then later read the same person in connection with a silicosis claim in this MDL. For example, in 1994, Dr. Harron completed an ILO form for Clarence Kimble in connection with asbestos litigation. On that ILO form, attached as Exhibit 23, Dr. Harron found "S" and "T" opacities or scars on all 607 zones of Mr. Kimble's lungs, consistent with asbestosis.[73] (Feb. 16, 2005 Trans. at 333.) These scars are permanent; according to Dr. Harron, people "with those fibers and scars in their lungs were going to their grave with them." (Feb. 16, 2005 Trans. at 333-34.) In 2002, Mr. Kimble was x-rayed again, this time in connection with the current silicosis litigation. Dr. Harron again read Mr. Kimble's x-ray and completed an ILO form, attached as Exhibit 23. This time, Dr. Harron determined that Mr. Kimble's lungs had uniform "P" opacities or scars, consistent with silicosis. As discussed above, such opacities are rounded, and are unlikely to be confused with the "S" and "T" opacities that Dr. Harron previously reported in Mr. Kimble. When asked about Mr. Kimble's case, Dr. Harron ascribed it to "intra-reader variability."[74] (Feb. 16, 2005 Trans. at 334.) When confronted with another example of a complete reversal on his part, this time in the case of Plaintiff Cora Lee Rodgers (whose 1995 asbestosis ILO form and 2002 silicosis ILO form are attached as Exhibit 24), Dr. Harron again invoked intra-reader variability, and also speculated that the x-ray film could have been shot lighter in the case of the silicosis screens (which apparently might have brought out the opacities in the upper lungs, where silicosis generally is present).[75] (Feb. 16, 2005 Trans. at 337-40.) When presented with his own prior testimony that inter-reader variability (i.e., the variability between two different readers, rather than between the same reader) should be approaching zero, Dr. Harron agreed that his switch in the cases of Ms. Rodgers and Mr. Kimble is "about as wide[][a] variance as you can get." (Feb. 16, 2005 Trans. at 343.) He then stated that the reversals are: "a real problem and I'd like to see the film. Whether I could explain it or not, I don't know."[76] (Feb. 16, 2005 Trans. at 343.) Just as the Defendants prepared to introduce a packet of eight more identical asbestosis/silicosis reversals by Dr. Harron, Dr. Harron stated to the Defendants' attorney, "if you're accusing me of fabricating these things, I think that's a serious charge." (Feb. 16, 2005 Trans. at 344.) When the Court responded that the Defendants seemed to be making that accusation and defense counsel agreed Dr. Harron asked for representation. (Feb. 16, 2005 Trans. at 344-45.) The Court ended his testimony at that point in order to allow Dr. Harron to hire an attorney. (Feb. 16, 2005 Trans. at 344-46.) The eight additional sets of ILO forms showing the same reversals by Dr. Harron were admitted. (Defs.' Ray Harron Exs. 11-18.) Finally, the Defendants offered, and Plaintiffs have not disputed, a chart showing all of the Plaintiffs in this MDL who were read by Dr. Harron for silicosis, and who also have an asbestosis claim in the Manville Trust based upon a prior B-read by Dr. Harron. This chart, attached as Exhibit 25, shows that after December 31, 2000 (when N & M changed its focus from asbestos to silica litigation), Dr. Harron 608 found "P", "Q" and "R" opacities (consistent with silicosis) in 99.69% of the 6,350 B-reads he performed for MDL Plaintiffs.[77] But prior to December 31, 2000 (when N & M was focused on asbestos litigation), Dr. Harron performed B-reads on 1,807 of the same MDL Plaintiffs for asbestos litigation, and he found some combination of only "S", "T" and/or "U" opacities (consistent with asbestosis but not silicosis) 99.11% of the time. In short, when Dr. Harron first examined 1,807 Plaintiffs' x-rays for asbestos litigation (virtually all done prior to 2000, when mass silica litigation was just a gleam in a lawyer's eye), he found them all to be consistent only with asbestosis and not with silicosis. But upon re-examining these 1,807 MDL Plaintiffs' x-rays for silica litigation, Dr. Harron found evidence of silicosis in every case.[78] This volume of reversals, according to Dr. Segarra (another Plaintiffs' expert) and Dr. Friedman, simply cannot be explained as intra-reader variability.[79] (Feb. 17, 2005 Trans. at 15; Feb. 18, 2005 Trans. at 298.) As discussed above, Dr. Harron's testimony during the first day of the Daubert hearings abruptly ended when the Court granted his request for time to obtain counsel. Although the parties said they expected to re-call Dr. Harron the following day, Dr. Harron, now represented by an attorney, did not re-take the witness stand. F. Dr. Andrew Harron Dr. Andrew Harron is a radiologist and certified B-reader who diagnosed approximately 505 MDL Plaintiffs for N & M. (Feb. 18, 2005 Trans. at 146-47, 163-64; A. Harron Ex. 35.) He attended the N & M screenings and acted as the diagnosing doctor on the days when his father, Dr. Ray Harron, was unavailable. (Feb. 18, 2005 Trans. at 147-48.) Dr. Andrew Harron testified that his diagnosing process at the screenings was the same as his father's. (Feb. 18, 2005 Trans. at 148-51.) Like his father, he received his work and exposure history from N & M, then he took an abbreviated medical history and he performed an abbreviated physical examination. (Feb. 18, 2005 Trans. at 151.) 609 Dr. Andrew Harron also followed the same "transcription" process employed by his father whereby secretaries interpreted his marks on the ILO form and drafted diagnosing reports and stamped his signature. (Feb. 18, 2005 Trans. at 154-55.) Like his father, he never saw or read any of the reports purportedly written and signed by him. (Feb. 18, 2005 Trans. at 155-57.) G. Dr. Ballard Dr. James Ballard, a radiologist and certified B-reader practicing in Alabama, performed 1,444 B-reads on Plaintiffs in this MDL, in conjunction with RTS screenings.[80] (Feb. 18, 2005 Trans. at 15, 29-31; Ex. 4.) He actually issued the diagnoses for approximately 120 Plaintiffs. (Feb. 18, 2005 Trans. at 17.) However, he did not perform physical examinations, or take medical or exposure histories, for any of the Plaintiffs. (Feb. 18, 2005 Trans. at 31-32.) Dr. Ballard charged RTS $45 per B-read, and $60 per B-read when he traveled.[81] (Feb. 18, 2005 Trans. at 32.) The Defendants asked Dr. Ballard about the case of Plaintiff Angelean Ball. Dr. Ballard read the same chest x-ray of Ms. Ball on two separate occasions, once in the context of asbestos litigation and once in the context of silica litigation. When he reviewed the x-ray for asbestos litigation, he found the presence of irregular "S" and "T" opacities in the lower lung zones, as well as extensive pleural thickening,[82] all consistent with asbestosis. See ILO form and Report, attached as Exhibit 26. When he reviewed the same x-ray for the present silica litigation, Dr. Ballard found rounded "P" and "Q" opacities in all zones and found no pleural thickening at all. See ILO form and Report, attached as Exhibit 27. When presented with this complete reversal, Dr. Ballard posited that "the films could be mixed up," meaning that he in reality was not reading the same film. (Feb. 18, 2005 Trans. at 49-52.) He further stated that "it would be difficult for [him] to stand by the diagnosis for either one right now." (Feb. 18, 2005 Trans. at 49.) The Defendants then presented twelve additional examples of Dr. Ballard making a similar complete asbestosis/silicosis reversal. (Ballard Exs. 21-44.) The Defendants also presented additional examples of complete asbestosis/silicosis reversals when Dr. Ballard read the film for the silica litigation and another B-reader (usually Dr. Harron) read the film in the asbestos litigation. (Ballard Exs. 45-54.) Dr. Ballard testified that "either ... the testing service or the law firm" provided him with the work history for the clients. (Feb. 18, 2005 Trans. at 56.) This "work history" amounted to a simple statement from the lawyers or RTS that there "is 610 exposure history that's consistent with asbestosis." (Feb. 18, 2005 Trans. at 56.) This meant to Dr. Ballard that the lawyers and/or RTS "want[ed] [Dr. Ballard] to look for asbestosis." (Feb. 18, 2005 Trans. at 56.) Dr. Ballard acknowledged that this "could sway" his reading. (Feb. 18, 2005 Trans. at 58.) Specifically, he explained: [I]f you've got somebody that you have history of exposure to asbestos, or if they say read for asbestosis, and you see S and T size opacities in the lower lung zone, then you would be more prone to see those. And if later you heard that they had silica exposure and you were reading for that, you would look closer for those P size opacities, because they, in the lower profusion, would be more difficult to see than the S/T's. (Feb. 18, 2005 Trans. at 57.) Later, he again tried to explain: [T]hey might send me these films and say these are asbestos cases. And ... when I get the ... same film that might have been sent earlier for asbestosis, and they say this individual has silicosis, or silica exposure, then you might look in those upper lung zones more carefully, because those small P size opacities are much more difficult to see than the S/T size opacities. And you have to specifically be looking for them, particularly in the lower profusions.... (Feb. 18, 2005 Trans. at 64-65.) Moreover, in viewing all of Dr. Ballard's 1,444 positive B-reads in this MDL, one would expect a fairly wide range of profusions between "1" (being the least severe) and "3" (being the most severe). As noted above, and as written on the ILO form, positive profusion findings are written from "1/0" (i.e., the B-reader believes it is a "1" but considered classifying it as a "0", meaning normal) to "3/+" or "3/4" (i.e., the B-reader believes it is a "3" and considered the profusion more severe than a normal "3"). In this MDL, Dr. Ballard classified 1,153 Plaintiffs, or 80% of his positive B-reads, as the least severe reading of "1/0". Additionally, Dr. Ballard classified 273 Plaintiffs, or 19% of his positive B-reads, as the next least severe reading of "1/1". Dr. Ballard classified only 1% of his positive B-reads as more severe than "1/1" (13 Plaintiffs were "½", 3 Plaintiffs were "2/2", 1 Plaintiff was "2/3", and no Plaintiffs were "3/2", "3/3" or "3/4"). Dr. Ballard's consistency is especially remarkable because it is in the area of profusion, which normally is the area where reader variability is most likely to occur (as opposed to in opacity sizes and shapes). (Feb. 18, 2005 Trans. at 137-38.) Dr. Parker, the former administrator of NIOSH's B-reader program had this to say on the subject of this consistency of profusion: What I find most stunning about the information I've seen in the last, yesterday afternoon and this morning, is the lack of reader variability, because the consistency with which these films are read as 1/0 defies all statistical logic and all medical and scientific evidence of what happens to the lung when it's exposed to workplace dust. What again is stunning to me is the lack of variability. This lack of variability suggests to me that readers are not being intellectually and scientifically honest in their classifications. (Feb. 18, 2005 Trans. at 81-82.) Dr. Parker elaborated: If I have a population in which there's general agreement that they have silicosis, I would be stunned to find almost all of the readings to be 1/0. I would expect there to be a range of distributions of profusion. The system would not expect a reader to be that consistent. In fact, that very consistency suggests that 611 people are not being intellectually and scientifically honest. (Feb. 18, 2005 Trans. at 83-84.) H. Dr. Levy Dr. Barry Levy diagnosed approximately 1,389 Plaintiffs in this MDL.[83] (Defs.' Resp. PTO 27, MDL 03-1553 Docket Entry 1826, Ex. C.2.) In making these diagnoses, Dr. Levy exhibited an extraordinary amount of faith: he did not take the occupational or medical histories of any of the Plaintiffs; he did not perform the B-reads on any of the Plaintiffs; he did not perform the physical examination of any of the Plaintiffs; and he did not speak to any of the Plaintiffs or their primary care physicians. (Feb. 16, 2005 Trans. at 24, 69, 72, 111.) Instead, he relied on other physicians' B-reads (primarily Dr. Ballard)[84] and on the work of other "physicians" whom he believed followed "the protocol that I developed for the history and physical." (Feb. 16, 2005 Trans. at 24.) He testified that "the protocol I set up for other physicians to do physicals in this case" should take "[a]bout an hour and a half." (Feb. 16, 2005 Trans. at 72.) Later, Dr. Levy amended this answer by stating that "some of this conceivably could have been done by a nurse or assistant asking some of the history questions in advance, but I would guess the total professional time would be in the range of about an hour, maybe an hour and [a] half." (Feb. 16, 2005 Trans. at 76.) Despite establishing this protocol, Dr. Levy testified that he does not know if the protocol was followed. Indeed, all of Dr. Levy's work in diagnosing the Plaintiffs occurred in his office in Massachusetts without seeing or examining any Plaintiff.[85] (Feb. 16, 2005 Trans. at 56.) Dr. Levy testified: "I don't know anything about the screening that the plaintiffs had. I recognize that people had the B-readings and so forth. I'm not familiar with what actually took place." (Feb. 16, 2005 Trans. at 148.) Dr. Levy testified that for the "vast majority" of Plaintiffs "[he] did a preliminary report and then a supplemental report." (Feb. 16, 2005 Trans. at 23.) This supplemental report was done after the history and physical were performed. (Feb. 16, 2005 Trans. at 25.) In these cases (as in virtually all of the rest), there is no evidence that any of the Plaintiff's histories were taken by a physician or other medically-trained individual, as supposed by Dr. Levy's protocol. Moreover, the claimed thoroughness of Dr. Levy's evaluations is belied by the speed at which he worked. All told, Dr. 612 Levy performed 1,239 diagnostic evaluations in 72 hours. (Feb. 16, 2005 Trans. at 68.) On average, Dr. Levy devoted less than four minutes to each of his diagnostic evaluations in this litigation.[86] (Feb. 16, 2005 Trans. at 68.) Of this time, he spent approximately one minute per report reviewing the report for accuracy. (Feb. 16, 2005 Trans. at 84-85.) The brevity of his mass diagnoses is in stark contrast to Dr. Levy's work in the single-plaintiff state-court case of McBride v. Clark Sand Company, when Dr. Levy devoted 17.6 hours and his assistant spent 46 hours diagnosing the plaintiff with silicosis. (Feb. 16, 2005 Trans. at 70-71.) An example of a report prepared by Dr. Levy is attached as Exhibit 28.[87] The report concerns Plaintiff Samuel Fontaine, who apparently claimed he "was exposed to free crystalline silica from 1967 to 1995 as a teacher who worked around sandblasting for Rosedale Elementary Jr. High in Rosedale, Mississippi." As indicated above, Dr. Levy did not speak to the Plaintiff or supervise the taking of the exposure history, but merely trusted that whomever took the history was a physician who followed his "protocol." This protocol included an explicit instruction that anyone who "worked around sandblasting," as Mr. Fontaine purportedly did for 27 years while teaching elementary school, must have "worked in the immediate proximity of sandblasting." (Feb. 16, 2005 Trans. at 94.) Dr. Levy testified that in the case of Mr. Fontaine, he was able to satisfy the third diagnostic criteria for silicosis (i.e., the absence of any good reason to believe that the radiologic findings are due to some other disease) because: [t]here's no indication on the reading of the B-reading which is shown here or in the there was no plural thickenings, no plural plaques. The B-reader, Dr. Ballard, didn't indicate anything about asbestosis. There's no indication of asbestosis exposure or coal dust or beryllium, for that matter. I excluded those to any reasonable probability; that is, it satisfied the criterion of the absence of any information to conclude that it was a different dust disease of the lung. (Feb. 16, 2005 Trans. at 101; see also Feb. 16, 2005 Trans. at 111 (emphasizing the "B-reading that did not show any evidence of Asbestosis disease").) Unfortunately, Dr. Levy testified prior to Dr. Ballard, and thus could not respond to Dr. Ballard's testimony that he ignored evidence of asbestosis when he was asked to read x-rays for silica litigation. Indeed, Dr. Levy was not aware that any of the Plaintiffs he diagnosed, including the 950 which were based on Dr. Ballard's B-reads, had ever also been diagnosed with asbestosis. (Feb. 16, 2005 Trans. at 180.) In the case of Mr. Fontaine, Dr. Levy testified that he excluded other diseases which might have produced Mr. Fontaine's radiographic findings by looking to statistics about the geographic distribution of different diseases: The next category is infectious diseases and the ones to consider there are Miliary Tuberculosis, as well as fungal 613 diseases, such as histoplasmosis and coccidioidomycosis. It turns out that coccidioidomycosis in this country is a disease primarily in California and Arizona.... And there's just a handful in the most recent year from CDC of 2002 in which they reported 3900 cases nationwide, 3800 of those were from California and Arizona with a scattering of cases elsewhere. No cases were reported from Mississippi.... If he was seen by his treating physician and I'm not a treating physician that physician might have reported [coccidioidomycosis] ... to the public health authorities in the State where the person is resident.... Tuberculosis, Histaplasmosis are unlikely. I considered those diagnoses. Tuberculosis, for example, occurs at the rate of five per 100,000; Mississippi, only one to three percent of Tuberculosis cases are Malarial Tuberculosis.... [As for the rate of occurrence of Histaplasmosis in the Mississippi Delta,] I don't [know] the exact number. I know it's a part of the country where Histaplasmosis does, indeed, occur. So, Histaplasmosis is a possibility but again, weighing the likelihood of; is Silicosis more likely in a person with 20 plus years exposure at least, intermittent sandblasting without evidence of respiratory protection who has a positive B reading versus the possibility of undiagnosed Histaplasmosis; I think and it was my judgment in this case that Silicosis is a much more likely probability. (Feb. 16, 2005 Trans. at 101-05.) Dr. Levy may be correct that it is customary medical practice to exclude certain diseases and conditions based on official statistics about the geographic distribution of a disease. However, as alluded to by the nationwide silicosis statistics set out supra, the same principle virtually mandates the conclusion that the vast majority of silicosis diagnoses in this MDL are erroneous. One obvious problem with these diagnoses (which certainly is not confined to, or even best exemplified by, Dr. Levy's diagnoses) is repeatedly referenced in Dr. Levy's academic writings on the diagnosis of silicosis. Dr. Levy has written that "the proper diagnosis of silicosis ... depends critically on a comprehensive and appropriate patient history that adequately explores the relation of the disease to the occupation." (Feb. 16, 2005 Trans. at 129-30.)[88] Dr. Levy has also written a series 614 of examples of physicians who misdiagnosed "a work-related illness caused by a hazardous substance" despite "a reasonable and considerable evaluation and diagnosis." (Feb. 16, 2005 Trans. at 131-32.) Dr. Levy's text continues: The facts fit together and resulted in a coherent story leading each physician to recommend a specific therapeutic and preventive regimen. In each of these cases, however, the physician made an incorrect diagnosis because of a common oversight; failure to take an occupational history. (Feb. 16, 2005 Trans. at 132.)[89] In virtually all of the cases presented to the Court,[90] the occupational history, to the extent one was taken at all, falls far below the standards set by Dr. Levy's writings. None of the histories Dr. Levy relied upon were taken by a physician or other medically-trained individual instead, they were taken by the law firms or screening companies. The histories fail to include any information about dosage, or the length and intensity of exposure to silica. For example, it would be natural to inquire with Mr. Fontaine the precise circumstances under which he was exposed to airborne crystalline silica for 27 years while working in an elementary school, and, for example, with what frequency and duration "blast equipment" was used in the "immediate proximity" of his classroom. (Ex. 28 at 5, attached.) As another example, it might be natural to inquire with Plaintiff Robert Hart how, at the age of fifteen, he was self-employed, "hanging & finishing sheetrock" and using jack hammers and sanders. (Levy Ex. 6 at 9.) Or a physician might ask Plaintiff Sammie Williams how, and on how many days, he was exposed to crystalline silica while working for 30 years as a piano repairman. (Levy Ex. 7 at 5.) When questioned about three specific cases, Dr. Levy withdrew his diagnoses for each of the cases. In the case of Plaintiff James Hyatt, Dr. Ballard had read the x-ray as consistent with asbestosis and mixed dust disease (finding "S" and "T" opacities in the lower lungs with pleural abnormalities), yet Dr. Levy diagnosed silicosis, erroneously calling the opacities "rounded." (Feb. 16, 2005 Trans. at 188; Dr. Levy's report is attached as Exhibit 29.) When presented with a 2001 report prepared by Dr. Segarra diagnosing Mr. Hyatt with asbestosis (attached as Exhibit 30), Dr. Levy withdrew his diagnosis. (Feb. 16, 2005 Trans. at 199-200.) Likewise, Dr. Levy withdrew his diagnosis of Plaintiff Donny Weaver when he realized he relied upon an erroneous report by the B-reader, Dr. Oaks, which listed the B-read as an "S/P" ("P" being consistent with silicosis), when it was in fact an "S/S". (Feb. 16, 2005 Trans. at 199; Levy Ex. 13.) Dr. Levy also withdrew his diagnosis of Plaintiff Zettie Shields, which was based on a Dr. Ballard B-read consistent with silicosis, when he was presented with another B-read by Dr. Ballard of the same x-ray, this time consistent with asbestosis. (Feb. 16, 2005 Trans. at 200-02; Levy Exs. 14 & 17.) For the same reason (i.e., a Dr. 615 Ballard asbestosis/silicosis reversal), Dr. Levy withdrew his diagnoses of Plaintiffs Effie Coleman and Monroe Lenoir. (Fed. 16, 2005 Trans. at 204-05; Levy Exs. 15 & 18-19.) In summary, the following is clear: the reliability of Dr. Levy's diagnoses are dependant upon the reliability of the B-readers (primarily Dr. Ballard); Dr. Levy worked at a break-neck pace which apparently led to some errors; and his exposure and medical histories were not taken by medically-trained people and were below the standard set by his writings and his "protocol." Finally, it is clear that Dr. Levy had an agenda: diagnose silicosis and nothing else. For instance, the following exchange occurred regarding Plaintiff Sammie Orr, whom Dr. Levy diagnosed with silicosis and nothing else: DR. LEVY: Here's a gentleman like many other people who have both silicosis and asbestosis.... Q: If he had both, why didn't you diagnose him with both? DR. LEVY: My job was not to make diagnoses of asbestosis. . . . . . Q: Okay. THE COURT: [Your] job is not to make diagnosis of anything other than silicosis. DR. LEVY: Well, yes. (Feb. 16, 2005 Trans. at 213.) It is clear that Dr. Levy saw his role with respect to these cases as beginning and ending with litigation. In one of his published articles, Dr. Levy advises a diagnosing physician to inform appropriate entities of the diagnosis for the good of other workers and of society: If a work-related illness is diagnosed, the physician can play a critical role in developing and implementing preventative measures such as educating or advising the patient, reporting the case with the patient's permission to the employer and/or the union if one exists, contacting an appropriate governmental agency if the situation dictates the need, instituting substitutions for or measures to engineer out of work place hazard and conducting further research on the problem. (Feb. 16, 2005 Trans. at 221.) Dr. Levy made this recommendation to physicians who diagnose a single work-related illness. In this MDL, Dr. Levy diagnosed 1,389 cases of silicosis. (Defs.' Resp. PTO 27, MDL 03-1553 Docket Entry 1826, Ex. C.2.) Yet despite the fact that Dr. Levy has provided consulting services to NIOSH, OSHA, the CDC, the Environmental Protection Agency, and the World Health Organization and therefore would know the proper people to call if he felt it was appropriate he chose to notify no one but the lawyers who paid his bills: DR. LEVY: My duty in this context was to assess [whether] people had silicosis and report that information to the attorneys.... Q: You have not called any agencies, Mississippi State Department of Health, OSHA in Mississippi, the Mississippi University of Mississippi Medical School, you've not made contact with any of those people to let them know that you have diagnosed 1200-some-odd cases of silicosis? DR. LEVY: That's correct. (Feb. 16, 2005 Trans. at 222.) Two of Plaintiffs' other diagnosing doctors, Dr. Segarra and Dr. Coulter, testified that they would not employ the methodology employed by Dr. Levy in these cases. (Feb. 16, 2005 Trans. at 365; Feb. 17, 2005 Trans. at 64.) Dr. Friedman testified most cogently about Dr. Levy's diagnoses: 616 Dr. Levy made his diagnoses in about three-and-a-half minutes, never talked to a patient, never looked at an x-ray, never... talked to a treating physician, [and] may have only looked at a few medical records in cases that he linked. And in 72 hours, reviewed something in the range of 1200 cases, and [in] 800 ... diagnosed life-threatening illness.... Dr. Levy... relied on the product identification part of the work history. I don't even think it was a full work history. I mean, ... it came nowhere near meeting what his own methodology was that he spelled out. And I have both the Third and Fourth Edition of his textbooks. And in no way does it relate to that methodology. (Feb. 18, 2005 Trans. at 250-51.) I. Dr. Coulter Dr. Todd Coulter, a general internist practicing in Mississippi, diagnosed 237 MDL Plaintiffs with silicosis. (Feb. 17, 2005 Trans. at 30, 67-68.) Dr. Coulter diagnosed these Plaintiffs as part of a contract with a screening company called Occupational Diagnostics. (Feb. 17, 2005 Trans. at 53-54.) As noted above, this company is run from a Century 21 realty office, even sharing its phone number with the real estate business. (Feb. 17, 2005 Trans. at 80-81.) On weekends, the company parked its trailer in the parking lots of restaurants and hotels. (Feb. 17, 2005 Trans. at 54, 73.) The trailer had a portable x-ray machine and a "physician's suite." (Feb. 17, 2005 Trans. at 55.) Dr. Coulter became involved in the mass screens after being recruited by the owner/operator of Occupational Diagnostics. Dr. Coulter described the recruitment process as follows: So [the owner of the screening company] made an appointment with me and talked to me about would I be willing to do some occupational reports for him. Or more importantly, would I be willing to evaluate some patients? And he explained the scope of it as that "Well, we're going to be taking chest x-rays and we're going to be looking for silicosis or something like that or whatever it was and you'll need to evaluate the patients." And I said to him, "Well, let me spend some time researching and reviewing this and then I'll decide if that's something I can do." So I looked up something in the textbook of Internal Medicine on silicosis and found some basic information and said, well, it doesn't seem like it would be that difficult and that's why I consented. (Feb. 17, 2005 Trans. at 72.) All told, during eleven days of screenings, Dr. Coulter saw approximately 600 people, approximately half of whom he diagnosed with silicosis.[91] (Feb. 17, 2005 Trans. at 75.) By contrast, after ten years of operating his own high-volume clinic,[92] Dr. Coulter has diagnosed approximately six people with silicosis. (Feb. 17, 2005 Trans. at 69.) Dr. Coulter testified that he spent up to 15 minutes with each of the clients although it is difficult to believe this was common, since given the volume of people he saw (between 50 and 60 a day), he would have had to work 15-hour days with no breaks. (Feb. 17, 2005 Trans. at 98.) Dr. Coulter testified that he took thorough histories from the Plaintiffs, although thorough histories are not reflected on his 617 reports. (An example of one of Dr. Coulter's reports is attached as Exhibit 31.) He stated that the exposure histories and occupational histories were written on forms provided by, and then returned to, the screening company.[93] (Feb. 17, 2005 Trans. at 104-08.) Although Dr. Coulter is not a B-reader, he testified that he reads x-rays as a part of his normal practice and he does not feel that he needs to use an ILO form to render a diagnosis. (Feb. 17, 2005 Trans. at 34, 55.) Dr. Coulter does not consider the Plaintiffs his patients. (Feb. 17, 2005 Trans. at 53, 105.) As with all of the other doctors, he diagnosed Plaintiffs "to a reasonable degree of medical certainty," which is a term he would not use for diagnoses in his practice, but instead is a term he uses for litigation. (Feb. 17, 2005 Trans. at 91.) He testified as follows: A: When I utilize the term "reasonable degree of medical certainty," that reflects for me and only for me at the moment in time based upon the information that I have, this is what I come up with.... Not excluding and not considering other potential limitations or conditions. COURT: Why? Why wouldn't you be? A: Perhaps and again, I think your Honor is correct. That is an example where I am trying to think as a lawyer instead of ... consistently thinking as a doctor. COURT: Well, if you were thinking as a doctor, what would you be doing with this [report]? With this information? A: I would confirm the diagnosis of silicosis. COURT: How would you be able to do that? A: Chest x-ray findings and certainly the exposure history. And then considering alternative and ruling out competing other diagnoses. (Feb. 17, 2005 Trans. at 92.) Dr. Coulter's testimony contained a number of examples of how he relaxed his standards for the screening "clients" when compared to his clinic "patients". In contrast to his practice at his clinic, while at the screenings, Dr. Coulter did not supervise the selection of the x-ray equipment, the selection of the x-ray operators, the setting up and operation of the equipment, or the amount of radiation to which the Plaintiffs were exposed. (Feb. 17, 2005 Trans. at 87-88, 125.) Moreover, after working with the screening company for "a couple of months," Dr. Coulter sought out advice from two pulmonologists to give him a "tutorial" on how to read x-rays. (Feb. 17, 2005 Trans. at 100-01.) Notably, he only sought out this training when he was confronted with two patients from his clinic whom he suspected had silicosis. (Feb. 17, 2005 Trans. at 102-03.) Finally, according to Dr. Coulter, in the context of his clinic: [N]o one leaves without at least a tentative diagnosis.... [W]hat people crave in the active practice of medicine, ... they crave the you know what we don't want is we don't want to say, "Gosh, I spent this time with the doctor and I don't know what's going on." People want feedback. They want communication. I think that's what's important. That's what I do. (Feb. 17, 2005 Trans. at 49.) By contrast, in the context of his work in the mass screenings for this litigation, he testified 618 that unless he was specifically asked by the client, "I was not going to give people the diagnosis." (Feb. 17, 2005 Trans. at 128.) But, "[i]f patients asked, I said: it looks like, it may be Silicosis. It looks like Silicosis. But, your lawyers will be in contact with you or whoever sent them to the testing center." (Feb. 17, 2005 Trans. at 128.) However, when it came time to dictate the diagnosing letter to the lawyers, Dr. Coulter expressed a certainty he apparently could not muster when looking the patient in the eye. (See Exhibit 31, attached.) Perhaps most disconcerting about Dr. Coulter's diagnoses is that every one of his 237 reports for Plaintiffs in this MDL contain the identical sentence: "There is increased prepondurance [sic] of interstitial lung tracings in lower lobes bilaterally."[94] (See, e.g., Exhibit 31, attached.) (Not only does every report contain this sentence, but every report contains the identical misspelling of the word, "prepondurance.") As Dr. Coulter conceded, "interstitial lung tracings in lower lobes" is characteristic of asbestosis rather than silicosis. (Feb. 17, 2005 Trans. at 134.) Also, in every one of Dr. Coulter's reports, two other sentences always appeared: "On closer examination of the bilateral lobar markings, there are multiple enhanced lucent circular opacities. These are disparate, and are prominent in both PA and lateral films." (See, e.g., Exhibit 31, attached.) In addition, 221 out of Dr. Coulter's 237 reports mention a physical examination. (Dr. Coulter testified that the remaining 16 reports are "incomplete in that there is no documentation of the physical exam, but the physical exam was performed. I performed the physical exam on all of the patients." (Feb. 17, 2005 Trans. at 96.)) In every one of the 221 reports, this sentence appears: "The physical examination is hallmarked by audible but coarse rhonci with minimum to moderate rales on auscultation."[95] (See, e.g., Exhibit 31, attached.) However, Dr. Coulter could not point to any medical text or article where it states that it is common for silicotics to have rales or rhonci. (Feb. 17, 2005 Trans. at 138.) Finally, at this point, it is hardly surprising that even prior to searching through the records at the Manville Trust, out of Dr. Coulter's 237 silicosis diagnoses, at least 150 of these individuals had previously been diagnosed with asbestosis. (Feb. 17, 2005 Trans. at 148.) J. Dr. Oaks Dr. W. Allen Oaks, a radiologist and NIOSH-certified B-reader practicing part-time in Mobile, Alabama, performed B-reads on 447 Plaintiffs and diagnosed approximately 200 Plaintiffs. (Feb. 17, 2005 Trans. at 162-65, 175, 220; Oaks Ex. 4.) Despite the fact that Dr. Oaks issued 200 diagnoses, he declined to label himself as an "expert in the area of diagnosing silicosis," instead preferring only to say he was "an expert in reading x-rays." (Feb. 17, 2005 Trans. at 190.) When reading x-rays, Dr. Oaks testified if the screening company told him to read 619 for silicosis, that is the only disease he would mention in the report, even if he felt the x-ray was also consistent with asbestosis. (Feb. 17, 2005 Trans. at 235, 246.) Likewise, if the screening company told him to look for asbestosis, that is all he would report. (Feb. 17, 2005 Trans. at 235, 246.) For his diagnosing work, N & M gave Dr. Oaks an x-ray and an exposure history and instructed him, "on the basis of the exposure history and the B-reading, render an opinion as to whether or not these clients these patients had silicosis."[96] (Feb. 17, 2005 Trans. at 168, 190-91.) He was not aware of who took the exposure history or their qualifications, other than that it was provided to him by N & M. The "history" Dr. Oaks relied upon consisted of a bare statement that the person was exposed to silica. The "history" said nothing about the duration of the exposure, the intensity of the exposure, the nature of the exposure or whether the individual was protected (such as by wearing a mask) during that exposure. (Feb. 17, 2005 Trans. at 251.) However, Dr. Oaks testified that "[i]t's my assumption that the doctor who does the history and physical has questioned this patient and then has summarized it [with] this statement [i.e., that the client has been exposed to silica]." (Feb. 17, 2005 Trans. at 254.) He further testified that his "diagnosis of silicosis is based on the assumption that there's an exposure history that meets the basic criteria." (Feb. 17, 2005 Trans. at 256-57.) Dr. Oaks testified that he would expect "some spread" of profusion levels among the 447 Plaintiffs whom he either diagnosed or identified as having x-rays consistent with silicosis. (Feb. 17, 2005 Trans. at 220.) He also testified that among a large group of people with silicosis, one would expect the disease to have progressed further (i.e., have a greater profusion) among the older people. (Feb. 17, 2005 Trans. at 220.) Moreover, Dr. Oaks testified that silicosis usually begins in the upper- to mid-lung zones, although when the disease has progressed, findings can be seen in the lower zones as well.[97] (Feb. 17, 2005 Trans. at 221.) However, when looking at Dr. Oaks' 447 B-reads, his findings do not conform to what he (and generally-accepted medical knowledge of silicosis) would have predicted. In the population of 447 people, Dr. Oaks reported no cases where only the upper-lung zones, or only the upper- and mid-lung zones, showed abnormalities consistent with silicosis. (Feb. 17, 2005 Trans. at 224; Oaks Ex. 4.) And among the 447 people, Dr. Oaks found a "1/0" profusion (the most minimal finding) 408 times and a "1/1" (the second-most minimal finding) 39 times. (Feb. 17, 2005 Trans. at 229; Oaks Ex. 4.) He did not find a single person to have a profusion greater than "1/1". And he made these remarkably uniform findings despite the fact that he examined x-rays from a fairly even distribution of people between 50 and 80 years of age. (Oaks Ex. 4.) As recounted above with respect to Dr. Ballard, Dr. Parker (the former administrator of NIOSH's B-reader program) called this consistency of profusion "stunning", "def[ying] all statistical logic and all medical and scientific evidence of what happens to the lung when it's exposed to workplace dust." (Feb. 18, 2005 Trans. at 81-82.) According to Dr. Parker, "[t]his 620 lack of variability suggests to me that readers are not being intellectually and scientifically honest in their classifications." (Feb. 18, 2005 Trans. at 82.) K. Daubert Analysis As discussed above, on a number of different levels, the claims in this MDL defy all medical knowledge and logic. The United States has enjoyed a steady 30-year decline in silicosis rates and mortality. And yet Mississippi, a State ranked only 43rd in the U.S. in silicosis mortality, recently experienced a crush of new silicosis lawsuits, many of which are now before this Court. As Dr. Friedman testified, there simply is no rational medical explanation for the number of alleged diagnoses of silicosis in this MDL. (Feb. 18, 2005 Trans. at 221.) That, however, does not mean there is no explanation at all for the cases. If searching for an explanation in the legal field, one might focus on the fact that most of the cases were filed just prior to the effective dates of a series of recent legislative "tort reform" measures in Mississippi. One might also focus on the decline in asbestosis lawsuits, leaving a network of plaintiffs' lawyers and screening companies scouting for a new means of support. But the motions and concerns which prompted the Daubert hearings ask the Court to focus on the medical explanation for the cases. Two separate motions[98] ask the Court to examine the reliability of the diagnoses pursuant to Federal Rule of Evidence 702 and the analytical framework established by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and its progeny. Specifically, Defendants challenge the admissibility of the testimony of the following diagnosing physicians: Dr. Ballard, Dr. Cooper, Dr. Coulter, Dr. Andrew Harron, Dr. Ray Harron, Dr. Hilbun, Dr. Levy, Dr. Martindale, and Dr. Oaks. These nine physicians issued 99 percent of the diagnoses submitted in this MDL. (Defs.' Steering Committee's Resp. PTO 27, MDL 03-1553 Docket Entry 1826, Ex. C.2.) 1. Legal Standard "[U]nder the Rules [of Evidence] the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Moore v. Ashland Chem. Inc., 151 F.3d 269, 275 (5th Cir.1998) (en banc); see also Fed.R.Evid. 104(a) ("Preliminary questions concerning ... the admissibility of evidence shall be determined by the court...."). "The primary locus of this obligation is Rule 702, which clearly contemplates some degree of regulation of the subjects and theories about which an expert may testify." Id. Rule 702 provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. Fed.R.Evid. 702. Daubert provides the analytical framework for determining whether expert 621 testimony is admissible under Rule 702 of the Federal Rules of Evidence. See Burleson v. Texas Dep't of Criminal Justice, 393 F.3d 577, 583 (5th Cir.2004). "Under Daubert, trial courts act as gate-keepers overseeing the admission of scientific and non-scientific expert testimony." Id. (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)). The "Daubert analysis governs expert medical testimony." Black v. Food Lion, Inc., 171 F.3d 308, 310 (5th Cir.1999) (citing Moore, 151 F.3d at 275 n. 6); see also Skidmore v. Precision Printing & Pkg., Inc., 188 F.3d 606, 617-18 (5th Cir.1999) ("This so-called `gate-keeping' obligation applies to all types of expert testimony, not just `scientific' testimony.") (citing Kumho Tire Co., 526 U.S. at 147, 119 S.Ct. 1167). For example, in Skidmore, the Fifth Circuit affirmed the admitting of a psychiatrist's testimony that the plaintiff suffered from post-traumatic stress disorder because the doctor satisfactorily "testified to his experience, to the criteria by which he diagnosed [plaintiff], and to standard methods of diagnosis in his field." Skidmore, 188 F.3d at 618. Under Daubert, trial courts must make "a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786. Stated differently, "the trial judge must determine whether the expert testimony is both reliable and relevant." Burleson, 393 F.3d at 584 (citing Daubert, 509 U.S. at 589, 113 S.Ct. 2786). In this MDL, there is no dispute that, as a general matter, silicosis diagnoses are relevant to plaintiffs' claims; the issue is whether the actual proffered diagnoses are reliable. Many factors bear on the inquiry into the reliability of expert testimony, including, but not limited to: (1) whether the technique in question has been tested; (2) whether the technique has been subjected to peer review and publication; (3) the error rate of the technique; (4) the existence and maintenance of standards controlling the technique's operation; and (5) whether the technique has been generally accepted in the scientific community. U.S. v. Hicks, 389 F.3d 514, 525 (5th Cir.2004) (citing Daubert, 509 U.S. at 593-94, 113 S.Ct. 2786). These "factors identified in Daubert form the starting point of the inquiry into the admissibility of expert testimony. However, `the factors identified in Daubert may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert's particular expertise, and the subject of his testimony.'" Burleson, 393 F.3d at 584 (quoting Kumho, 526 U.S. at 150, 119 S.Ct. 1167). In addition, "whether an expert's testimony is reliable is a fact-specific inquiry." Burleson, 393 F.3d at 584 (citing Skidmore, 188 F.3d at 618). "The inquiry authorized by Rule 702 is a flexible one; however, a scientific opinion, to have evidentiary relevance and reliability, must be based on scientifically valid principles." Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir.1998) (en banc). The party proffering the expert testimony has the burden of "demonstrat[ing] that the expert's findings and conclusions are based on the scientific method, and, therefore, are reliable." Id. The issue under Daubert is not whether the expert's opinion is correct; the issue is only whether it is reliable. See id. ("The proponent need not prove to the judge that the expert's testimony is correct, but she must prove by a preponderance of the evidence that the testimony is reliable.") 622 (citations omitted). This reliability inquiry "requires some objective, independent validation of the expert's methodology. The expert's assurances that he has utilized generally accepted scientific methodology is insufficient." Id. (citation omitted). And in making the reliability inquiry, it is the district court's responsibility "to make certain that an expert ... employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho, 526 U.S. at 152, 119 S.Ct. 1167; see also Burleson, 393 F.3d at 584 (same). In applying these standards to the diagnoses in this MDL, the Court will first focus on each of the three accepted criteria for diagnosing silicosis. A diagnosis requires (1) an adequate exposure to silica dust with an appropriate latency period, (2) radiographic evidence of silicosis, and (3) the absence of any good reason to believe that the radiographic findings are the result of some other condition (i.e., a differential diagnosis).[99] (See, e.g., Pls.' Informational Br. Regarding Diagnosis Silicosis at 2 (citing Hans Weill, et al., Silicosis and Related Diseases, in OCCUPATIONAL LUNG DISORDERS 286 (3rd ed.1994); Daniel E. Banks, Silicosis, in TEXTBOOK OF OCCUPATIONAL AND ENVIRONMENTAL MEDICINE 380-81 (2nd ed.2005)); Feb. 16, 2005 Trans. at 353-54.) As discussed above, these three criteria are universally accepted, as demonstrated by learned treatises and experts in the field. It is the implementation of these criteria in these cases which ranged from questionable to abysmal. 2. Criterion 1: Sufficient Exposure The "exposure histories" (or "work histories") were virtually always taken by people with no medical training, who had significant financial incentives to find someone positive for exposure to silica (or asbestos, depending upon which type of suit the employing law firm was seeking to file). See Allen v. Pennsylvania Eng'g Corp. 102 F.3d 194, 197 n. 3 (5th Cir.1996) (citing with approval a case affirming the exclusion of an expert in part because "the expert's testimony `was influenced by litigation-driven financial incentive'") (quoting Lust v. Merrell Dow Pharm., 89 F.3d 594, 597-98 (9th Cir.1996)); see also Allison v. McGhan Med. Corp., 184 F.3d 1300, 1321 (11th Cir.1999) (same). These "histories" were devoid of meaningful details, such as the duration and intensity of exposure, which are critical to determining whether someone has sufficient exposure, dosage and latency to support a reliable diagnosis. Dr. Friedman specifically referenced Dr. Levy and said, "I'm not sure I would consider [what Dr. Levy relied upon] any occupational history at all."[100] (Feb. 18, 2005 Trans. at 261.) Mr. Mason of N & M testified that the doctors who worked for his screening company simply relied upon the abbreviated work histories that N & M supplied them. These histories were taken by receptionists with no medical training. (An example of an N & M "history" is attached as Exhibit 16.) The reason for this, according to Mr. Mason, is that "to ask the doctor to take a work history in our field would be like asking Mr. Setter [the defense attorney questioning him] to wash 623 my car. I mean it's ... very beneath him." (Feb. 17, 2005 Trans. at 328.) With all due respect to Mr. Mason (who has no medical training), experts in the field of occupational medicine do not consider taking an occupational history to be beneath a physician. Dr. Friedman[101] testified: [E]very patient that I see in our office, I take a history from. Now, they may have the initial history taken by my office nurse, who's been with me 12 or 13 years, but I personally review the history with the patient and add to it and make any corrections and go over it and take that history myself. (Feb. 18, 2005 Trans. at 255.) Dr. Friedman further testified that a "detailed" occupational history is necessary for diagnosing silicosis and it should "come from somebody trained medically to take that kind of history." (Feb. 18, 2005 Trans. at 244-45.) Similarly, Dr. Segarra testified that it is not appropriate for anyone other than the physician or an agent of the physician to take the exposure and past medical history. (Feb. 16, 2005 Trans. at 355.) When seeing a suspected silicotic, Dr. Segarra devotes approximately thirty minutes to taking the person's occupational and medical histories, smoking history and physical examination. (Feb. 16, 2005 Trans. at 366.) Likewise, Dr. Parker testified: A. As a pulmonologist, to diagnose silicosis, in addition to the radiographic information, I would, of course, want to examine the patient, understand more about their work exposure history and more about their social and past medical history and current symptoms. . . . . . Q. And what would you want to know about their workplace exposures? A. You would be interested in what was being manufactured, what was being used, what were the potential intensities of exposure, what were the duration of exposure, what types of respiratory protection may have been worn by the individual, as well as what type of engineering controls may have been in place by the company, corporation, employer, manufacturer, to reduce the burden of the dust exposure in employees. You would also be interested in their entire work history, because it's possible that they may have had exposures even before their current job, which may have resulted in exposures that might explain the shadows on the radiograph. Q. And might explain that those shadows indeed represent something other than silicosis. Correct? A. That's correct. (Feb. 18, 2005 Trans. at 92, 134.) Correspondingly, Dr. Coulter testified about the different lines of questioning a physician might follow when taking an occupational history. (Feb. 17, 2005 Trans. at 43-45.) For instance, he testified: A: You ask more questions.... Exactly, where was it located? What exactly is going on? You've got to be very, very specific. The who, the what, the why, the when, the where, the how. Were they wearing a mask? Were they not wearing a mask? Exactly what 624 were they doing?.... [T]here's more to this than meets the eye. The history has to be expansive but it also has to be guided, if you will, by what the patient tells you.... We ask about social history. We ask about family history. I ask about smoking history. Where I live on the Gulf Coast of Mississippi I want to know about their military history. We've got a lot of people who have traveled all over the world. I want to know about their their public health history, such as, inoculations and immunizations.... Q: So in reviewing the ... information that the patient has given you, you then sit down with a patient and flush that out for more information that you consider important? A: History, history, history, yes, sir. (Feb. 17, 2005 Trans. at 43-44.) Finally, Dr. Levy has written that "the proper diagnosis of silicosis ... depends critically on a comprehensive and appropriate patient history that adequately explores the relation of the disease to the occupation." (Feb. 16, 2005 Trans. at 129-30.) This type of thorough, detailed, physician-guided work/exposure history is the kind of history that experts in the field of occupational medicine insist upon when diagnosing silicosis. It is therefore the type of history required by the Federal Rules for these diagnoses to be admissible. Cf. Allen v. Pennsylvania Eng'g Corp., 102 F.3d 194, 198 (5th Cir.1996) ("An additional ground for excluding the opinions lies in Federal Rule of Evidence 703, which requires that the facts on which the expert relies must be reasonably relied on by other experts in the field."). And yet, in these cases, the "histories" are so deficient as to not even merit the label. Some doctors pretended that this was not true, pointing to the cursory "A-sheet" and treating it as an appropriate history in essence, refusing to acknowledge that the emperor has no clothes. Other doctors pretended that the A-sheet was merely a distilled version of an unseen, appropriately-thorough history. For instance, Dr. Levy and Dr. Oaks each testified that they operated on the assumption that some other, unnamed physician conducted an appropriate history. In Dr. Levy's case, he claimed to believe that an unknown physician was following his "protocol", which included spending 90 minutes with each patient taking a history. In reality, no appropriate histories have been produced, and there is no reliable evidence that they ever existed. Cf. Guillory v. Domtar Indus. Inc., 95 F.3d 1320, 1331 (5th Cir.1996) ("Expert evidence based on a fictitious set of facts is just as unreliable as evidence based upon no research at all. Both analyses result in pure speculation."). Instead, the evidence shows that none of the challenged experts took an occupational or exposure history. They all relied upon a history taken by lawyers and clerks with no medical training or supervision. The questions asked were not drafted by physicians, testifying or otherwise; indeed, the challenged physicians were not even aware of what questions were asked. In the absence of an appropriate work/exposure history, there is no way for the diagnosing doctors to have known the potential intensities of respirable silica exposure, the duration of the exposure, information as to dosage (i.e., the types respiratory protection worn by the individual, and/or any engineering controls that were in place by the employer to reduce the amount of exposure), as well as information as to possible alternative causes of the radiographic findings (as discussed in more detail, infra). The following discussion from the Fifth Circuit's opinion in Allen v. Pennsylvania Engineering Corp., 625 102 F.3d 194 (5th Cir.1996) is equally applicable here: Scientific knowledge of the harmful level of exposure to a chemical, plus knowledge that the plaintiff was exposed to such quantities, are minimal facts necessary to sustain the plaintiffs' burden in a toxic tort case. Not only was the scientific knowledge absent, but the experts' background information concerning [plaintiff]'s exposure to [the toxic substance at issue] is so sadly lacking as to be mere guesswork. The experts did not rely on data concerning [plaintiff]'s exposure that suffices to sustain their opinions under R[ule] 703. Id. at 199 (citing, inter alia, Christophersen v. Allied-Signal Corp., 939 F.2d 1106, 1114-15 (5th Cir.1991) (en banc) (holding that the district court did not abuse its discretion in excluding an expert's opinion that was based on insufficient data regarding the dosage of a harmful substance and the duration of exposure to that substance); Viterbo v. Dow Chem. Co., 826 F.2d 420, 423 (5th Cir.1987) (concluding that evidence from animal studies is insufficient based in part on the lack of evidence that the plaintiff was exposed to comparable amounts)). Looking no further than the first criterion, virtually all of the diagnoses fail to satisfy the minimum, medically-acceptable criteria for the diagnosis of silicosis, and therefore, the testimony of the challenged doctors[102] cannot be admissible under the standards set by Rule 702 and Daubert. See Curtis v. M & S Petroleum, Inc., 174 F.3d 661, 670-71 (5th Cir.1999) ("Under Daubert, `any step that renders the analysis unreliable ... renders the expert's testimony inadmissible. This is true whether the step completely changes a reliable methodology or merely misapplies that methodology.'") (quoting In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 745 (3d Cir.1994); citing Moore, 151 F.3d at 279 n. 10). 3. Criterion 2: Radiographic Findings These diagnoses rest predominantly upon a positive B-read. Indeed, some of the Plaintiffs' lawyers and even the doctors seemed to enter the Daubert hearings under the impression that a positive B-read is a talisman that would dispel any doubts about the diagnoses as a whole. As discussed at length in this Order, according to generally-accepted medical principles, a positive B-read simply does not equal a diagnosis. As Dr. Parker stated: "To reach a medical diagnosis certainly requires more than just shadows on a chest x-ray. Because those shadows can be caused by any number of disease processes." (Feb. 18, 2005 Trans. at 91.) Moreover, even assuming that the B-read itself is performed in an unbiased and reliable manner (a highly dubious assumption in these cases), the history and purpose of the B-reader program exposes a more fundamental problem in the Plaintiffs' current use of B-reads. Dr. Parker, who formerly administered NIOSH's B-reader program, explained the origin of the B-reader system: The B reader system was developed by NIOSH, under federal mandate, to apply to the coal workers' x-ray surveillance program. All people who mine underground coal were given the opportunity for a radiograph approximately every four years, to see if they had evidence of disease, which would then give them transfer rights to a low dust exposure. In the early years, recognition 626 of wide variability in both the quality of the film and the quality of the interpretation, NIOSH devised a scheme to certify facilities as qualified to take the x-rays, and then certified readers as qualified to classify the x-ray.... When NIOSH has a film classified as part of their coal workers x-ray surveillance program, they have an initial reader, followed by a second reader. When there's agreement between those two readers, they may stop their reading and accept the concurrence between those two readers. If there's disagreement among the two initial readers, then another reader classifies the film until there's concurrence. Sometimes even two or three readers may not agree, and then they may submit the film to a panel reading. (Feb. 18, 2005 Trans. at 79.) The B-reader system was not established for use in litigation, but as part of a coal workers' surveillance program to determine whether a worker should be transferred to a low-dust environment.[103] And under this surveillance program, the worker is not transferred until at least two B-readers agree on a positive read. But in most of these MDL cases, a single positive B-read was deemed sufficient to establish a diagnosis of silicosis. Moreover, B-readers rely upon the ILO classification system, which "was devised primarily to lead to international harmony and consistency to allow research done in different nations to be compared to epidemiologic research done in other nations." (Feb. 18, 2005 Trans. at 78; 131.) According to Dr. Parker (one of only 15 doctors worldwide who is currently revising the ILO's classification guidelines), the ILO guidelines were never intended to be used in the legal setting: the guidelines, by their express terms, are "not supposed to be used for designation of disease or determining compensation."[104] (Feb. 18, 2005 Trans. at 73-75, 80-81, 131.) Furthermore, the American College of Occupational and Environmental Medicine recently issued a report to NIOSH stating that it no longer supports the use of a B-read for the diagnosis of pneumoconiosis.[105] (Feb. 18, 2005 Trans. at 299.) Furthermore, the methodology followed by these B-readers does not correspond to the ILO's recommended methodology for applying the ILO classification system. According to the ILO guidelines: When classifying radiographs for epidemiological purposes it's essential that the reader does not consider any information about the individuals concerned other than the radiographs themselves. Awareness of supplementary details specific to the individuals can introduce bias into the results. (Feb. 17, 2005 Trans. at 196.) A B-reader is supposed to read the film without any knowledge of the patient or the suspected disease to be, in Dr. Parker's words, "totally unaware of the suspected occupational or environmental exposure of the person 627 whose film you're classifying."[106] (Feb. 18, 2005 Trans. at 82.) As Dr. Harron testified: "That's one of the rules, that the B-reader is supposed to read the film with no knowledge at all about the film, why it's being taken, where the person worked or what the exposure [was]." (Feb. 16, 2005 Trans. at 263-64.) However, in the setting of a mass screening and/or mass B-reading for litigation, the B-reader is acutely aware of the precise disease he is supposed to be finding on the x-rays. In these cases, the doctors repeatedly testified that they were told to look for silicosis, and the doctors did as they were told. It is worth noting at this point that there is nothing inherently wrong with a mass screening, which can be "a mechanism to identify disease in a population at risk for disease." (Feb. 18, 2005 Trans. at 132.)[107] But, as Dr. Parker testified: [T]he screening needs to include readers who are also given films that are known to be, by multiple readers, by multiple readings, as negative, and films that are known by multiple readings to be abnormal, and then allow those readers to recognize the normal and abnormal films that have been read by many other readers as a quality control effort in the reading exercise. (Feb. 18, 2005 Trans. at 132.)[108] No such quality control measures were taken by the challenged experts in the cases before this Court. Cf. U.S. v. Hicks, 389 F.3d 514, 525 (5th Cir.2004) (one of the Daubert reliability factors is "the existence and maintenance of standards controlling the technique's operation") (citing Daubert, 509 U.S. at 593-94, 113 S.Ct. 2786). 628 The reason for this is obvious. Quality control measures would have reduced the number of positive diagnoses. And in the business of mass screenings, a diagnosis, whether accurate or not, is money in the bank. This was quite literally true with the Campbell Cherry firm, who only paid N & M when the firm received a positive diagnosis and a client willing to sign-up to be a plaintiff. (Feb. 17, 2005 Trans. at 301-03, 325.)[109] But even with respect to the other law firms, the screening business was competitive, and without large numbers of positive diagnoses, the screening company would lose money or would lose the law firm account to a competitor. When testifying, the screening company representatives made no pretense that they were helping people or serving the greater good they are businesses, and as Mr. Mason testified, "from a business standpoint of mine, you had to do large numbers." (Feb. 17, 2005 Trans. at 282.) And it is clear that at least some of this pressure to produce positives was transferred to the B-readers/diagnosing doctors despite their testimony to the contrary. Working for mass screeners is "easy work" (according to Dr. Cooper and Dr. Coulter[110]), and reading x-rays for mass screeners is a desirable way for a doctor to supplement his income (according to Dr. Martindale (Feb. 17, 2005 Trans. at 304), Dr. Ballard and Dr. Oaks (Feb. 17, 2005 Trans. at 175)), something to do while living out one's "Golden Years" (according to Dr. Harron, Feb. 16, 2005 Trans. at 259). As demonstrated by Dr. Martindale's overtures to N & M and Occupational Diagnostics' recruitment of Dr. Coulter, this was a buyer's market. While a B-reader/diagnosing doctor is essential to the screening process, the doctor is fungible, and if the screening company or law firm was unhappy with one doctor's rate of positive reads and/or diagnoses, then future business will go to another, more compliant doctor. With respect to the staggering number of silica MDL Plaintiffs who also have made asbestosis claims, the implausibility of this was discussed supra with respect to N & M, who generated in excess of 4,000 silicosis diagnoses on individuals who previously made asbestosis claims. Looking beyond just N & M cases, at least 6,000 MDL Plaintiffs previously made asbestosis claims. It bears repeating that outside of the small cadre of doctors who diagnose for screening companies, even a single case of a dual diagnosis of silicosis and asbestosis is extremely rare. See Feb. 18, 2005 Trans. at 89-90, 263-64 (Dr. Parker testifying that he has never seen a clinical case of asbestosis and silicosis in the same individual); Friedman Ex. 2 (letter from Dr. Hammar: "[I]n the cases that I've had pathology to evaluate, I have never seen cases in which there was both silicosis and asbestosis in the same patient."); see also Dr. David Weill, Senate Judiciary Committee Testimony, Fed. Doc't Clearinghouse at 4 (Feb. 3, 2005) ("Even in China, where I saw workers with jobs involving high exposure to asbestos and silica (such as sandblasting off asbestos insulation), I did not see anyone or review chest radiographs of anyone who had both silicosis and asbestosis."); Dr. Paul Epstein, Senate 629 Judiciary Committee Testimony, Fed. Doc't Clearinghouse at 3 (Feb. 2, 2005) ("[I]t is my professional opinion that the dual occurrence of asbestosis and silicosis is a clinical rarity."); Dr. Theodore Rodman, Senate Judiciary Committee Testimony, Fed. Doc't Clearinghouse at 2 (Feb. 2, 2005) ("Among the thousands of chest x-rays which I reviewed in asbestos and silica exposed individuals, I cannot remember a single chest x-ray which showed clear-cut findings of both asbestos exposure and silica exposure."). When informed that 6,000 silicosis Plaintiffs had previous asbestosis diagnoses, Dr. Parker testified: "I find it stunning and not scientifically plausible." (Feb. 18, 2005 Trans. at 90.) Based upon the evidence presented, the Court agrees. The unsound nature of the diagnoses is betrayed not only by the opportunistic transformations of asbestosis reads into silicosis reads, but also by the improbable consistencies among the silicosis reads. Reader variability is most likely to occur on profusions (Feb. 18, 2005 Trans. at 137-38), and yet this is the one area where the B-readers were implausibly consistent. In reviewing the 6,510 B-reads produced during Plaintiffs' initial disclosures, over 92 percent of the profusions were 1/0 or 1/1, while less than 2 percent were 2/1 or greater (i.e., 2/1, 2/2, 2/3, 3/2, 3/3, or 3/+). (Defendants' Motion to Exclude Plaintiffs' Experts, MDL 03-1553 Docket Entry 1149, at 13.) As recounted above with respect to Dr. Ballard and Dr. Oaks, the consistencies in profusion "defies all statistical logic and all medical and scientific evidence of what happens to the lung when it's exposed to workplace dust." (Feb. 18, 2005 Trans. at 81-82.) Similarly, Dr. Coulter's findings in 237 out of 237 cases that the Plaintiffs' silicotic opacities were found in the lower lobes is "so unlikely as to not be possible." (Feb. 18, 2005 Trans. at 90.) Finally, it is worth noting that this evidence of the unreliability of the B-reads performed for this MDL is matched by evidence of the unreliability of B-reads in asbestos litigation. In a study published in Academic Radiology, the authors set up a blinded panel of B-readers to interpret 492 chest x-rays previously read by physicians employed by plaintiffs' lawyers in asbestos litigation. The plaintiffs' doctors had found that 95.9 percent of the x-rays were positive for changes consistent with asbestos. The blinded panel, however, found that only 4.5 percent of the x-rays had changes consistent with asbestosis.[111]See also Carl B. Rubin & Laura Ringenbach, The Use of Court Experts in Asbestos Litigation, 137 F.R.D. 35, 39, 45 (1991) (recounting that in 65 asbestos cases before U.S. District Judge Carl C. Rubin, court-appointed medical experts found no radiographic evidence of any asbestos-related condition in 42 cases). 4. Criterion 3: Differential Diagnosis In almost all of the MDL cases, the challenged diagnosing doctors simply ignored this final criterion (i.e., the absence of any good reason to believe that the positive radiographic findings are the result 630 of some other condition) altogether. Dr. Harron went so far as to deny that it even is one of the criteria for diagnosing silicosis. (Feb. 16, 2005 Trans. at 324-25.) As set out above, Dr. Harron's opinion is directly contradicted by all of the major textbooks in the field, as well as by the testimony of the other physicians at the hearing and even the briefing of the Plaintiffs in this litigation. See, e.g., Daniel E. Banks, Silicosis, in TEXTBOOK OF OCCUPATIONAL AND ENVIRONMENTAL MEDICINE 380-81 (2nd ed.2005); Hans Weill, et al., Silicosis and Related Diseases, in OCCUPATIONAL LUNG DISORDERS 286 (3rd ed.1994); Feb. 16, 2005 Trans. at 353-54 (Dr. Segarra); Pls.' Informational Br. Regarding Diagnosis Silicosis at 2. One of the reliability factors specifically enunciated in Daubert is whether the expert's technique is generally accepted in the relevant scientific community. See Daubert, 509 U.S. at 593-94, 113 S.Ct. 2786; see also Burleson, 393 F.3d at 584. For example, in Pipitone v. Biomatrix, Inc., 288 F.3d 239 (5th Cir.2002), the Fifth Circuit expressly held in the context of a Daubert ruling that a physician's "elimination of various alternative causes... were based on generally accepted diagnostic principles related to these conditions." Id. at 246. In these MDL cases, by contrast, the doctors' failure to exclude other alternative causes of the radiographic findings clearly is not generally accepted in the field of occupational medicine. Cf. Raymark Indus., Inc. v. Stemple, 1990 WL 72588, 8 (D.Kan.1990) (finding that physicians' asbestosis diagnoses did not "pass muster" because: "It appears that the [physicians] placed much weight on x-ray results in making a diagnosis that a tire worker had an asbestos-related disease. However, they also admitted that the x-rays detect fibrosis [i.e., lung scars] and that there are as many as 150 causes of fibrosis, only one of which is asbestos. In addition, it appears that many of these 150 causes of fibrosis are indistinguishable from asbestosis on x-rays."). Indeed, as Dr. Harron implicitly acknowledged in his testimony, someone did make a de facto differential diagnosis for each of the Plaintiffs he diagnosed with silicosis. Dr. Harron testified that while numerous other diseases could have been consistent with the opacities he noted on the ILO forms, in each case, his typist selected either asbestosis or silicosis. (Feb. 16, 2005 Trans. at 293-94.) Thus, for every Plaintiff purportedly diagnosed by Dr. Ray Harron and Dr. Andrew Harron, an unnamed and untrained member of "a stable of secretarial help" (many of whom are employed by N & M) quite literally made the differential diagnosis. A typist decided that a check of a box on the ILO form translated into a diagnosis of silicosis, implicitly excluding all of the other possible causes of the radiographic findings. By contrast, Dr. Parker explained the appropriate process for making a differential diagnosis: To reach a medical diagnosis certainly requires more than just shadows on a chest x-ray. Because those shadows can be caused by any number of disease processes. You would be quite interested whether the individual, if the shadows were consistent with silicosis, you would be quite interested in their workplace exposures over their lifetime.... [In making t]he differential diagnosis, you're interested in their [occupational and exposure] history, their review of systems, their past medical history. There are drugs that can cause shadows on x-rays, or pharmaceutical preparations that can injure lung and cause shadows on the x-ray. There are organic dust exposures and inorganic dust exposures that can cause shadows on the 631 x-ray. There are collagen vascular diseases such as rheumatoid arthritis, lupus, that can cause shadows on the x-ray. There's this unusual disorder, sarcoidosis, that can cause shadows on the x-ray, and congestive heart failure can cause shadows on the x-ray. Obese patients, as well as patients who take a shallow breath or other technical quality abnormalities with the film may lead to shadows on the x-ray that may be misleading and thought to be abnormal. But if the film is repeated with better technique, may appear more normal. (Feb. 18, 2005 Trans. at 91-93.) Similarly, Dr. Friedman testified about the "infections and [the] host of different diseases" that can look like silicosis on an x-ray, again highlighting the need for a differential diagnosis. (Feb. 18, 2005 Trans. at 229.) Radiographic findings consistent with silicosis may be caused by the following diseases: other pneumoconioses, such as coal worker's pneumoconiosis, berylliosis and byssinosis; infectious diseases, such as tuberculosis; collagen vascular diseases, such as rheumatoid arthritis and lupus; fungal diseases, such as histoplasmosis and coccidioidomycosis; as well as sarcoidosis. (Feb. 16, 2005 Trans. at 101-05, 328; Feb. 18, 2005 Trans. at 91-93, 229.) Radiographic findings consistent with silicosis also may be caused by certain infections, drugs and pharmaceutical preparations, congestive heart failure, obesity or simply inferior quality x-ray equipment or film. (Feb. 18, 2005 Trans. at 91-93, 229.) In order to rule out the multitude of other causes of the radiographic findings, it is vitally important for a physician to take a thorough occupational/exposure history and medical history. (Feb. 16, 2005 Trans. at 101-06; Feb. 18, 2005 Trans. at 91-93, 229, 353-54.)[112] As noted infra, even a travel history may be relevant: certain diseases which mimic silicosis on an x-ray are primarily found in particular geographic regions of the country or the world. (Feb. 16, 2005 Trans. at 101-06; Feb. 17, 2005 Trans. at 43-44.) Given the wide variety of possible causes for x-ray findings consistent with silicosis, the occupational, medical and travel histories must be directed by someone with sufficient medical training and knowledge to guide the questioning through all of the areas necessary to exclude each of the other possible causes for the findings.[113] This is why experts in the field of occupational medicine opine that it is imperative for the diagnosing physician take at least some portion of the histories in order to make a competent differential diagnosis. (Feb. 16, 2005 Trans. at 355, 366; Feb. 17, 2005 Trans. at 43-45; Feb. 18, 2005 Trans. at 92, 134, 244-45, 255.) 632 By contrast, in all of the cases diagnosed by the challenged physicians, the medical histories, physical examinations and other tests were either nonexistent or cursory. The histories that did exist were taken by people without sufficient training (or incentive) to know what questions to ask in order to rule out other possible causes of the radiographic findings. The attitude of the challenged diagnosing doctors toward this final criterion mirrored their overall attitude toward these diagnoses: meeting this criterion correctly simply involved more work than they were willing to devote to the task. Implicit in the doctors' testimony were the questions: Can't you see how many people we had to diagnose? How can you possibly expect us to be any more thorough than we were? These are the same pleas the Court has heard repeatedly from the lawyers throughout this MDL. But these doctors and Plaintiffs' lawyers are not innocent victims of overwhelming numbers. Hordes of Plaintiffs have not been thrust upon them against their will. The doctors undertook the burden of diagnosing each of these Plaintiffs just as the attorneys undertook the burden of representing each one of them and the sheer volume of Plaintiffs does not mean that these professionals' obligations toward each Plaintiff has been lessened. 5. Lawyers Practicing Medicine and Doctors Practicing Law Dr. Friedman posited that the diagnoses were iatrogenic in nature. (Feb. 18, 2005 Trans. at 245.) "Iatrogenic" is defined as "[i]nduced in a patient by a physician's activity, manner, or therapy."[114] Whether this is true, the Court cannot say, but the Court is confident that Dr. Friedman was correct when he testified that the "epidemic" of some 10,000 cases of silicosis "is largely the result of misdiagnosis." (Feb. 18, 2005 Trans. at 246.) Dr. Parker agreed with the following summary of the flaws in the diagnoses: Q: In your opinion, Doctor, is it proper methodology to, for the diagnosis of silicosis, for a B-reader to know, going in, the reason he's looking at the x-ray, he knows he's looking for silicosis, for that doctor to rely on simply a statement of the years someone worked at a job, with a job description, and no other information, to then go ahead and diagnose silicosis? A: I would think that would fall outside the bounds of acceptable medical practice. Q: Would it be proper then for, if that doctor, that B reader, doesn't do the diagnosis, but then sends his read on to someone else, another doctor, a pulmonologist like yourself, who has nothing more than the information I've described, the years that someone worked somewhere, where they worked, what their job was, and now a reading, a B-reading that's been read for the purpose of looking for silicosis, would it be proper methodology for that doctor to then conclude, to diagnose silicosis in that patient? A: I don't believe that's scientifically acceptable. (Feb. 18, 2005 Trans. at 94.) Similarly, Dr. Friedman summarized the problems as follows: I don't think the diagnoses are reliable.... [I]n Texas, we have a saying, all hat and no horse. And I think that they said they used certain diagnoses, but they didn't go beyond the three criteria to really provide the data for the occupational history. I don't know that 633 they fully excluded other more probable causes, from what I've seen. And I don't even want to talk about the x-rays.... (Feb. 18, 2005 Trans. at 260-61; see also Feb. 18, 2005 Trans. at 264.) Dr. Friedman further testified: "[T]he tragedy is that I don't know that the diagnoses are reliable... because of the methodology." (Feb. 18, 2005 Trans. at 313.) The Court has been left with no choice but to agree. A review of all of the submitted Fact Sheets is telling. In the approximately 9,083 Fact Sheets submitted in this MDL as of the date of the Daubert hearings, approximately 8,000 treating doctors are named. (Feb. 18, 2005 Trans. at 257.) But when it comes to the doctors who diagnosed these Plaintiffs with silicosis, 12 names appear. (Feb. 18, 2005 Trans. at 259.) Twelve doctors diagnosed all 9,083 Plaintiffs. This small cadre of non-treating physicians, financially beholden to lawyers and screening companies rather than to patients, managed to notice a disease missed by approximately 8,000 other physicians most of whom had the significant advantage of speaking to, examining, and treating the Plaintiffs. One possible explanation is the fact that in every case involving a screening company, the diagnoses were essentially manufactured on an assembly line. The steps in the diagnosing process were divided among a number of different people, not all of whom were qualified and none of whom assumed overall responsibility and oversight for the entire process. Thus, in many cases, a different person performed each of the following steps: taking the occupational history, performing the physical exam, reading the x-ray, analyzing the pulmonary function tests, taking the medical history, and finally, making a diagnosis. The people performing the steps were so compartmentalized that often they did not know the others' identities, let alone whether they were qualified and were performing their assigned tasks correctly. Hence, for example, Dr. Levy issued 1,389 diagnoses for Plaintiffs he had never met, by relying totally on cursory work and exposure "histories" taken by untrained receptionists he had never met (and whom he was deluded into believing were physicians who spent 90 minutes with each Plaintiff), B-read reports by doctors he had never met (and without even glancing at the x-rays), and cursory "physicals" and "medical histories" performed by other doctors he had never met. Most stunningly, this assembly line structure allowed Dr. Martindale to reconcile his acquiescence in false diagnosing language. Dr. Martindale testified: [M]y interpretation of the whole process was that a physician was taking a good occupational history, a medical history, performing a physical exam, and either he or someone else was overseeing the pulmonary function tests, and there was an interpretation of the chest x-ray at the time all of this was done, and these patients were screened for people who appeared as if they had clinical diagnoses of asbestosis or silicosis and the chest x-ray supported that diagnosis. (Martindale Dep. at 65-66; see also id. at 102 ("I assumed that the physician who did the physical, did the history, took the occupational exposure would be making the diagnosis.").) Because he believed some other physician had taken all of the proper diagnosing steps, he apparently felt he would cause no harm if he failed to do so himself. Repeatedly, the diagnosing doctors testified as to their blind (and, as it happens, unfounded) faith that other physicians had taken the necessary steps to legitimize their diagnoses. By dividing the diagnosing process among multiple people, most of whom had no medical training and 634 none of whom had full knowledge of the entire process, no one was able to take full responsibility over the accuracy of the process. This is assembly line diagnosing. And it is an ingenious method of grossly inflating the number of positive diagnoses. It is important to emphasize that this discussion and this Order should not be taken as a criticism of the right of impaired individuals to seek redress through the courts. This process not only benefits the impaired individual, but also benefits those who otherwise would have been impaired in the future had the defendant's alleged wrongful behavior gone unchecked. What the Court is criticizing is the idea that when doctors step into a courtroom, they can abandon the methodology they practice in the clinic. Dr. Friedman, who devotes a substantial amount of time consulting and testifying for plaintiffs, testified that there should be no distinction between a medical diagnosis and a "legal diagnosis." (Feb. 18, 2005 Trans. at 283.) He testified: Q. [W]hen you're hired by a law firm to render an opinion, do you consider yourself to be the treating physician of that patient? A. I do. I consider myself to have the same level of responsibility as no matter how the patient is sent to me. If I can give you one or two quick examples. There's a patient who's here in the MDL, Mr. Gatlin, has acute silicosis. I personally not only talked to his doctor but attempted to arrange for his lung transplant. So I've gotten involved. And there are many, I'd say a couple of times, at least a couple of times a month, we'll pick up cardiac arrhythmias, PVC's, we'll do an EKG for free, call their family doctor. I had a fellow two weeks ago that I would not let go back home to, up to north Texas. I made him stop at Scott & White clinic in Bryan/College Station on the way because he had cardiac arrhythmias and he wanted to at least go there because I think his family lived there. So I do not consider myself their treating doctor, to the extent that I don't look to them for payment. I treat them as though they were any other patient on whom I was doing a consultation. (Feb. 18, 2005 Trans. at 283-84.) By contrast, most of the diagnosing doctors emphasized that they did not consider the people being screened to be patients. As stated by Dr. Harron: "These people are not patients; it's a different situation." (Feb. 16, 2005 Trans. at 264.) Of course, the doctors need not have been so explicit it is readily apparent from their actions that they did not consider the Plaintiffs to be their patients. It is also readily apparent that the failure of the challenged doctors to observe the same standards for a "legal diagnosis" as they do for a "medical diagnosis" renders their diagnoses in this litigation inadmissible under Rule 702. As both the Supreme Court and the Fifth Circuit have directed: "The district court's responsibility `is to make certain that an expert... employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.'" Skidmore v. Precision Printing & Pkg., Inc., 188 F.3d 606, 618 (5th Cir.1999) (quoting Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)). If nothing else, this MDL illustrates the mess that results when lawyers practice medicine and doctors practice law. In almost all of these cases, one vital requirement for the diagnosis of silicosis the taking of occupational histories was performed absent medical oversight by the lawyers or their agents or contractors. More generally, the lawyers determined 635 first what disease they would search for and then what criteria would be used for diagnosing that disease. The lawyers controlled what information reached the diagnosing physicians, stymying the physician's normal ability to ask targeted follow-up questions and perform follow-up exams.[115] The lawyers also controlled what information reached the patients, stymying the patient's normal ability to learn from a medical professional details about their diagnosis, their prognosis, and what, if any, follow-up care they should receive. Indeed, a lawyer from the Plaintiffs' firm of Barton & Williams summarized the problem most succinctly when he argued that the doctors' B-reads of his clients are attorney work product.[116] (Feb. 18, 2005 Trans. at 9-11.) In the majority of cases, these diagnoses are more the creation of lawyers than of doctors. Conversely, virtually all of the challenged diagnosing doctors seemed to be under the impression they were practicing law rather than medicine. They referred to the Plaintiffs as "clients" rather than "patients", and they utilized shockingly relaxed standards of diagnosing that they would never have employed on themselves, their families or their patients in their clinical practices. Almost uniformly, they phrased their diagnoses with the legal incantation "reasonable degree of medical certainty" or "reasonable degree of medical probability." Dr. Harron summarized it best: "[I]t's a legal standard and not a real diagnosis."[117] (Feb. 16, 2005 Trans. at 268.) And, finally, despite diagnosing a serious and completely preventable disease at unprecedented rates, not a single doctor even bothered to lift a telephone and notify any governmental agency, union, employer, hospital or even media outlet, all of whom conceivably could have taken steps to ensure recognition of currently-undiagnosed silicosis cases and to prevent future cases from developing. One can imagine the outcry that would have resulted had these doctors kept silent after diagnosing thousands of new cases of avian flu or mad-cow disease. Had these doctors been acting as doctors and had they genuinely believed their diagnoses were legitimate they would have taken this simple and humane step. Instead, these diagnoses were about litigation rather than health care. And yet this statement, while true, overestimates the motives of the people who engineered them. The word "litigation" implies (or should imply) the search for truth and the quest for justice. But it is apparent that truth and justice had very little to do with these diagnoses otherwise more effort would have been devoted to ensuring they were accurate. Instead, these diagnoses were driven by neither health nor justice: they were manufactured for money. The record does not reveal who originally devised this scheme, but it is clear that the lawyers, doctors and screening companies were all willing participants. And if the lawyers turned a blind eye to the mechanics 636 of the scheme, each lawyer had to know that Mississippi was not experiencing the worst outbreak of silicosis in recorded history. Each lawyer had to know that he or she was filing at least some claims that falsely alleged silicosis. The fact that some claims are likely legitimate, and the fact that the lawyers could not precisely identify which claims were false, cannot absolve them of responsibility for these mass misdiagnoses which they have dumped into the judicial system. 6. Effects of Mass Over-Diagnosing Many of the effects of the mass misdiagnoses are obvious, but they nonetheless should be noted. Limited judicial resources are consumed weeding out meritless claims, costing the judiciary, costing other litigants whose suits are delayed, and ultimately costing the public, who pays for a judicial system that is supposed to move with some degree of speed and efficiency. Defendant companies pay significant costs litigating meritless claims. And what harms these companies also harms the companies' shareholders, current employees, and ability to create jobs in the future. And, potentially, every meritless claim that is settled takes money away from Plaintiffs whose claims have merit. And not only are those with meritorious claims denied just compensation, they are potentially denied full and meaningful access to the courts. As is apparent simply by a reading of this Order, it is difficult for a court to devote attention to a single case when it is part of a wave of 10,000 other cases many of which are meritless. Then there is the toll taken on the misdiagnosed Plaintiffs. If these Plaintiffs truly have abnormal x-rays, then the radiographic findings may be caused by a number of conditions other than silicosis. And when the diagnosing doctors fail to exclude these other conditions, it leaves the Plaintiffs at risk of having treatable conditions go undiagnosed and untreated. In the case of the Plaintiffs who are healthy, at least some of them can be expected to have taken their diagnoses seriously. They can be expected to have reported the diagnoses when applying for health insurance and life insurance potentially resulting in higher premiums or even the denial of coverage altogether. They can be expected to report the diagnoses to their employers and to the Social Security Administration. And they can be expected to report the diagnoses of this incurable disease to their families and friends. These people have been told that they have a life-threatening condition: but they are not told by a doctor; they are told by a lawyer apparently in most cases through the mail. In most cases, they never saw the doctor who diagnosed them. And in most cases, they never had the opportunity to ask the diagnosing doctor questions about the diagnosis and what it means. When dealing with this MDL and its 10,000 Plaintiffs, it is easy to forget that "statistics are human beings with the tears wiped off." (Feb. 18, 2005 Trans. at 252 (quoting Dr. Irving Selikoff).) But it should not be forgotten that a misdiagnosis potentially imposes an emotional cost on the Plaintiff and the Plaintiff's family that no court can calculate. These misdiagnoses also risk exacting an equally unquantifiable yet equally real cost to society. Dr. Parker testified: I feel passionately about the recognition and prevention of occupational lung disease. I mean, I have committed most of my professional life to that, as well as looking for therapies for pulmonary diseases. But to be looking for disease in 637 people who may have no symptoms is not doing the individual any good, nor is it doing society any good. (Feb. 18, 2005 Trans. at 86.) He further testified, "[a] purported diagnosis in someone who doesn't have this disease ... detract[s] from the person who has the serious and life-threatening disease." (Feb. 18, 2005 Trans. at 87.) Not only does a false diagnosis detract from the person who has silicosis, but it potentially harms future silicosis prevention. There is a risk that governmental entities, employers and the public will learn of this bevy of misdiagnoses and fail to take the steps that need to be taken to further prevent worker exposure to respirable silica. It is evident from the testimony before this Court, as well as studies by NIOSH and others, that silicosis is a continuing tragedy in our country. Those suffering the effects of the disease do not need an inflated number of claims to lend gravitas to their situation. Their tragedy stands on its own. 7. Alexander Ruling The Court has addressed the testimony it has received regarding all of the diagnoses by all of the challenged doctors in this MDL,[118] despite the fact that as discussed infra the Court has ultimately found that the Defendants have failed to meet their burden of establishing that the Court has subject-matter jurisdiction over the vast majority of these cases. Hence, the Court cannot issue a ruling on the admissibility of the testimony related to a majority of these diagnoses pursuant to Rule 702 and Daubert. See Dahiya v. Talmidge Int'l, Ltd., 371 F.3d 207, 210 (5th Cir.2004) ("Unless a federal court possesses subject matter jurisdiction over a dispute, ... any order it makes (other than an order of dismissal or remand) is void.") (citations omitted); Howery v. Allstate Ins. Co., 243 F.3d 912, 916 n. 6 (5th Cir.2001) (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994)). In spite of this, the Court has included its findings concerning all of the testimony it received, in hopes that the state courts that ultimately must shepherd these cases to their conclusion will not have to re-hear Daubert-type challenges to these doctors and their diagnoses.[119] As discussed infra, the Court does possess subject-matter jurisdiction over one MDL case, Alexander v. Air Liquide Corp., Cause No. 03-533. Therefore, the Court has the authority to rule on Defendants' motions to exclude Plaintiffs' diagnosing experts in that case. Alexander which was originally filed in this Court, has 100 Plaintiffs. All but one of the Plaintiffs submitted a silicosis diagnosis from Dr. Ray Harron, while seven Plaintiffs submitted a silicosis diagnosis from Dr. Levy.[120] As discussed above, both doctors relied upon occupational/exposure histories and medical histories which fail to even merit the title, "history", let alone meet the generally-accepted scientific methodology for diagnosing silicosis. (See, e.g., Feb. 18, 638 2005 Trans. at 261 (Dr. Friedman: "I'm not sure I would consider [what Dr. Levy relied upon] any occupational history at all.").) And, as even Dr. Harron conceded, "[i]f [the history is] not reliable ... then I have to retract the diagnosis." (Feb. 16, 2005 Trans. at 282-83.) As discussed above, the reliance of both doctors on inadequate and unreliable histories renders the entire diagnosis and accompanying testimony inadmissible. See Curtis v. M & S Petroleum, Inc., 174 F.3d 661, 670-71 (5th Cir.1999) ("Under Daubert, any step that renders the analysis unreliable ... renders the expert's testimony inadmissible. This is true whether the step completely changes a reliable methodology or merely misapplies that methodology.") (quotation omitted). With respect to Dr. Harron, he simply ignored the third criterion for diagnosing silicosis (i.e., the absence of any good reason to believe that the positive radiographic findings are the result of some other condition). (Feb. 16, 2005 Trans. at 324-25.) As set out above, this "technique" of diagnosing silicosis without even attempting to rule out the myriad of other causes of radiographic findings consistent with silicosis is not generally accepted in the relevant scientific community. Cf. Pipitone v. Biomatrix, Inc., 288 F.3d 239, 246 (5th Cir.2002) (noting in the context of a Daubert ruling that a physician's "elimination of various alternative causes ... were based on generally accepted diagnostic principles related to these conditions"). Perhaps even more stunning was Dr. Harron's reliance on largely untrained secretarial staff to "translate [the ILO form he completed] into English" (Feb. 16, 2005 Trans. at 289-90), "prepare [his] reports, stamp [his] name on them and send those reports out without [him] editing or reviewing them" (Feb. 16, 2005 Trans. at 285-87). Dr. Harron did not read, review or even see any of the 99 diagnosing reports in Alexander bearing his name. This "distressing" and "disgraceful" procedure does not remotely resemble reasonable medical practice. (Feb. 16, 2005 Trans. at 365; Feb. 18, 2005 Trans. at 249, 265.) Not only is this "technique" not generally accepted in the scientific community, but it is utterly lacking in any "standards controlling the technique's operation." U.S. v. Hicks, 389 F.3d 514, 525 (5th Cir.2004) (among the reliability factors are "the existence and maintenance of standards controlling the technique's operation; and ... whether the technique has been generally accepted in the scientific community") (citing Daubert, 509 U.S. at 593-94, 113 S.Ct. 2786). Moreover, as recounted above, the sheer volume of Dr. Harron's asbestosis/silicosis reversals (i.e., reading an x-ray as consistent with asbestosis for asbestos litigation and then reading the same individual's x-ray as consistent with silicosis for silica litigation), simply cannot be explained as intra-reader variability. (Feb. 17, 2005 Trans. at 15.) Instead, it can only be explained as a product of bias that is, of Dr. Harron finding evidence of the disease he was currently being paid to find. And with respect to Dr. Levy, based on his average rate of diagnosing in this MDL, Dr. Levy performed all of his work on all the seven diagnoses he issued in Alexander in less than 30 minutes which is less than half the time a normal expert in the field of occupational medicine would spend issuing a single diagnosis. (Feb. 16, 2005 Trans. at 366; Feb. 18, 2005 Trans. at 253.) Dr. Levy based his diagnoses entirely upon the cursory "histories" in Plaintiffs' Fact Sheets (taken by lawyers or untrained clerks) and upon the unreliable B-reads performed by Dr. Harron or Dr. Ballard. He never examined the Plaintiffs 639 or took a history from them.[121] And given the extremely limited and biased information he had available to him, he had no reliable way to rule out alternative causes for the radiographic findings. From the Plaintiffs' lawyers' point-of-view, it appears Dr. Levy's primary purpose was to provide a veneer of glossy credentials over a patently unreliable collection of materials (i.e., cursory histories and biased B-reads). The flaws in Dr. Levy's diagnoses here are similar to those noted by the court in Castellow v. Chevron USA, 97 F.Supp.2d 780 (S.D.Tex.2000). In Castellow, the court granted a motion to exclude Dr. Levy's testimony on Daubert grounds because his opinion on the medical cause of plaintiff's illness was founded almost entirely upon the flawed report of another doctor. See id. at 794, 798 ("Dr. Levy stressed that Dr. Rose's calculations were very important to him in forming his opinion about the quantitative exposure to which the deceased had been subject.... Dr. Levy acknowledged that if Dr. Rose's calculations were inaccurate, so that Mr. Castellow was never, in fact, exposed to benzene at the levels calculated, then he could not offer an opinion as to causation.") (excluding Dr. Levy's opinion along with other experts because, inter alia, "the result driven methodology ... is rife with error and speculation"). As set out above, two of Plaintiffs' diagnosing doctors in other MDL cases, Dr. Segarra and Dr. Coulter, testified that they would not employ the methodology employed by Dr. Levy in these cases. (Feb. 16, 2005 Trans. at 365; Feb. 17, 2005 Trans. at 64.) And Dr. Friedman testified as follows: Dr. Levy made his diagnoses in about three-and-a-half minutes, never talked to a patient, never looked at an x-ray, never... talked to a treating physician, [and] may have only looked at a few medical records in cases that he linked. And in 72 hours, reviewed something in the range of 1200 cases, and [in] 800 ... diagnosed life-threatening illness.... Dr. Levy... relied on the product identification part of the work history. I don't even think it was a full work history. I mean, ... it came nowhere near meeting what his own methodology was that he spelled out. And I have both the Third and Fourth Edition of his textbooks. And in no way does it relate to that methodology. (Feb. 18, 2005 Trans. at 250-51.) Indeed, the gulf between the methodology Dr. Levy employed for this litigation and the methodology Dr. Levy advocates in his academic work starkly contravenes the Supreme Court's requirement that "an expert... employ[] in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).[122] 640 Similarly, Dr. Harron's testimony that he was applying "a legal standard and not a real diagnosis" (Feb. 16, 2005 Trans. at 268), along with Dr. Levy's testimony that "I was not practicing medicine, ... I was providing diagnostic information in the context of medical/legal consultation" (Feb. 16, 2005 Trans. at 56-57), echo the following passage from Allen v. Pennsylvania Engineering Corp., 102 F.3d 194 (5th Cir.1996): Dr. LaMontagne, in fact, inadvertently described exactly the problem this court faced in evaluating his and appellants' other expert testimony: "This is not a scientific study. This is a legal opinion." Pace Dr. LaMontagne, the goal of Daubert and this court's previous cases has been to bring more rigorous scientific study into the expression of legal opinions offered in court by scientific and medical professionals. In the absence of scientifically valid reasoning, methodology and evidence supporting these experts' opinions, the district court properly excluded them. Id. at 198. In short, Plaintiffs have failed to sustain their burden of showing that Dr. Harron's and Dr. Levy's testimony related to any of the diagnoses proffered in Alexander is sufficiently reliable to be admissible. Therefore, as to Alexander, Defendants' Motion to Exclude is GRANTED: the testimony of Dr. Harron and Dr. Levy (as well as their accompanying diagnoses) are inadmissible. As discussed infra, the Court will schedule a status conference in the Alexander case, to address whether (and, if so, under what conditions) the Plaintiffs' claims will proceed.[123] L. Independent Medical Advisors/Technical Advisory Panel During a phone conference with liaison counsel in October 2004, the Court raised the issue of appointing independent medical advisors to determine which of the Plaintiffs has a competent diagnosis. The Plaintiffs were not amenable to this proposal, and the Court was not prepared to order it in the absence of an agreement between the parties. A month later, on November 11, 2004, a number of Defendants moved the Court to appoint a panel of B-readers under the auspices of the American College of Radiology Committee on Pneumoconiosis to review the x-rays of the Plaintiffs and the reports used to diagnose the Plaintiffs with silicosis. Under Defendants' proposal, the Court would dismiss any Plaintiff whose x-ray the panel determines is not consistent with silicosis. (See MDL 03-1553 Docket Entry 1145, 1149.) On December 14, 2004, Plaintiffs filed their objection to this motion, arguing that their diagnosing doctors utilized "the appropriate scientific methodology for determining whether an injury exists." (MDL 03-1553 Docket Entry 1295 at 7.) The doctors, according to Plaintiffs, simply "[c]onduct[ed] such methodology on a large scale." (MDL 03-1553 Docket Entry 1295 at 7.) Therefore, Plaintiffs argued, even if an expert panel disagreed with the conclusions reached by the diagnosing doctors, this would be a difference of opinion 641 and not a Daubert issue. (MDL 03-1553 Docket Entry 1295 at 12.) In Order No. 19, the Court carried forward Defendants' motion pending the upcoming Daubert hearings. Notwithstanding this, in Order No. 19, the Court stated: "The parties are urged to agree on a panel of four experts for the purpose of excluding, if possible, any plaintiff that does not presently have silicosis or is not in fear of future illness as related to silicosis, and to prioritize the degree of severity of silicosis in any other plaintiff." (Order No. 19 ¶ 5.) The parties once again declined the Court's suggestion to agree on a panel. After the ensuing depositions of Dr. Hilbun and Dr. Cooper, and after nearly two days of testimony at the February 2005 Daubert hearings, Mr. Davis, of Campbell Cherry (the firm representing approximately 4,256 Plaintiffs), addressed the Court: DAVIS: Every single plaintiff with exception of a few that people have tried to get out of this case on some basis, have a diagnosis by doctors, all of whom we believe were capable of making the diagnosis and follow the proper methodology. Again, I'm going to speak to my firm, but I think I can speak for everybody on the plaintiff's side. We have not committed any improper acts. I and my firm makes no apology for representing these people and for filing the cases on their behalf; however, as I said a moment ago, as facts in a case develop, we determined it is time to do something new or different to help our cases along. And your Honor, what we are willing to propose or what we are going to do and I think this is true for most of the plaintiff lawyers, we are going to establish an independent medical panel to review every one of these X-rays to determine if this independent panel believes that the radiographic findings support the diagnosis for silicosis. THE COURT: I told you this months ago after the Martindale fiasco that you had to come up with something to help your clients stay in this litigation.... Because it's your clients that are going to suffer. MR. DAVIS: Yes, ma'am. As you mentioned earlier today, there are sick people in this litigation and these people THE COURT: They're not being well served by this testimony. MR. DAVIS: And we acknowledge that, your Honor, and what we're saying is, with your help we'll create an independent panel. We'll be glad to work jointly with Defendants, but if none of that works out, we as a group are going to do that and we are going to be in a position to determine which of these plaintiffs, based on this independent medical panel deserve to have their cases remain in this court and those that do not, deserve to be dismissed without prejudice and without any running of their statute of limitations so that if they subsequently develop this disease, they are not barred by anything that has gone on here. These people don't need to be victims by having good cases thrown out or by having cases that don't have the appropriate radiographic readings at this time, but do at a later date from being able to come back into the system. It is fair to our clients. We are content and heartfelt THE COURT: How far what are we? Three years into this litigation now? Three years into this litigation and now you say you're going to come up with a doctor that can actually diagnose whether they've got this or not.... And I can understand if the 642 Defendants don't jump up and say, "We join you in this process." MR. DAVIS: And your Honor, quite frankly, if they don't join with us, we're going to do it anyway because we have got to protect the ability of these clients . . . . . THE COURT: I can't help but over this last day and half think, "Is there one member of the plaintiff's bar that would have gone to one of these screening companies for their own pulmonary problems and relied on this kind of diagnosis from anyone other than Dr. Segarra." I have to ask you this. I don't want an answer, but I have to posit that in my mind. (Feb. 17, 2005 Trans. at 206-09.) On February 17, 2005, Mr. Davis made this declaration of the Plaintiffs' intent to establish unilaterally, if necessary "an independent medical panel to review every one of these X-rays to determine if this independent panel believes that the radiographic findings support the diagnosis for silicosis." (Feb. 17, 2005 Trans. at 206.) Over four months later, Plaintiffs have not informed the Court of any steps they have taken toward establishing this medical review panel. M. Kirkland Deposition Other than the single Plaintiff diagnosed by Dr. Segarra, there is only one of the 10,000 Plaintiffs whom the Court can say with confidence is genuinely injured.[124] His name is Clark C. Kirkland, and just prior to undergoing a lung transplant, he testified at the February Court depositions.[125] Yet, despite his being genuinely sick, despite his having two attorneys of record, and despite his being in a courtroom full of lawyers, he had no one to represent his interests. On December 22, 2004, Mr. Kirkland sent a letter to this Court (as well as to a United States District Judge in Atlanta, Georgia and the United States Attorney's Office in Atlanta), alleging that one of his two attorneys of record, Michael Martin, committed certain acts of misconduct. Among other things, Mr. Kirkland alleged that his attorney failed to file suit on his behalf within the statute of limitations.[126] January 14, 2005, Defendant 3M reported to the Court that it had received a letter from Mr. Kirkland making similar allegations against Mr. Martin. In light of this, 3M argued that Mr. Kirkland had waived his attorney-client privilege, and 3M asked the Court for permission to serve discovery on Mr. Kirkland directly. 3M also asked for permission to take Mr. Kirkland's deposition at a time when the Court would be available to rule on objections. On January 24, 2005, Mr. Kirkland's attorneys, Mr. Martin and Scott C. Monge, filed motions to withdraw as counsel for Mr. Kirkland. On January 31, 2005, the 643 Court denied these motions, and instead ordered both attorneys to appear in person for a Court-monitored deposition of Mr. Kirkland conducted by 3M on February 16, 2005. 3M was granted permission to contact Mr. Kirkland only to the extent necessary to arrange for the payment of his travel expenses to the deposition. Also, the Court noted that Mr. Kirkland may retain additional counsel. These rulings were made in Order No. 23, a copy of which was sent directly to Mr. Kirkland, as well as all counsel. On February 10, 2005 (six days before Mr. Kirkland's scheduled deposition with 3M), Mr. Martin filed, purportedly on behalf of Mr. Kirkland, a motion to dismiss 3M with prejudice. Mr. Kirkland had sued 3M for producing an allegedly-deficient dust-protection mask. According to the motion, in 2001 and 2002, Mr. Kirkland had made statements indicating that he did not wear a respirator or mask when he was exposed to silica. Therefore, according to the motion, 3M, and another Defendant who manufactured dust-protection masks, should be dismissed with prejudice. Since these 2001 and 2002 statements presumably were known to Mr. Martin long before February 10, 2005, the timing of the motion seemed suspect. (And as became apparent at Mr. Kirkland's deposition, the motion was filed without Mr. Kirkland's knowledge or consent.) On February 16, 2005 (the first day of the Daubert hearings), at the scheduled time of Mr. Kirkland's deposition, Mr. Martin appeared (with counsel of his own) while Mr. Monge did not. (On the same date, the Court issued a written order requiring Mr. Monge to appear on February 17, 2005 and show cause as to why he should not be held in contempt for failing to comply with the Court's order to appear for his client's deposition.) Mr. Martin's attorney first addressed the Court and asked that 3M's deposition not be permitted to go forward in light of the motion to dismiss that Mr. Martin filed on behalf of Mr. Kirkland. (Kirkland Dep. at 10.) The Court reminded counsel that the motion to dismiss had not yet been ruled upon and indicated it would allow the deposition to proceed. (Kirkland Dep. at 10.) Then the Court explained to Mr. Kirkland about the meaning and consequences of waiving attorney-client privilege, and asked Mr. Kirkland if he waived the privilege with respect to Mr. Martin. (Kirkland Dep. at 11, 14.) Mr. Kirkland stated under oath that he wished to waive his attorney-client privilege with respect to Mr. Martin. (Kirkland Dep. at 11, 14.) The Court also explained that because Mr. Kirkland indicated that he has been unable to locate another attorney, the Court would not release Mr. Martin and Mr. Monge from their representation of him until at least after 3M's deposition. (Kirkland Dep. at 12.) The Court also noted that: "[Y]ou do have an attorney here that you may consult with and you may visit with your attorney as long as you need to." (Kirkland Dep. at 12.) During the direct examination, 3M questioned Mr. Kirkland about the statements he made in 2001 and 2002 which were referenced in the motion to dismiss. (Kirkland Dep. at 28-30.) 3M also questioned Mr. Kirkland about the date on which Mr. Kirkland believed his illness was caused by silica exposure. Finally, 3M questioned Mr. Kirkland about his allegations against Mr. Martin, and the materials Mr. Kirkland produced at the deposition (including correspondence and taped recordings of conversations between Mr. Kirkland and Mr. Martin).[127] After 3M finished its questioning, Mr. Martin rose to question his client. Of 644 course it is understandable why Mr. Martin no longer wished to represent Mr. Kirkland. However, Mr. Kirkland's case was under attack by 3M, and if at all possible, Mr. Kirkland needed representation, so Mr. Martin was not permitted to withdraw. Despite this, Mr. Martin succumbed to the urge to torpedo his client's case. In a contentious examination, Mr. Martin and his client argued about whether Mr. Kirkland's statements in 2001 and 2002 precluded a suit against 3M. Then Mr. Martin attempted to show that his client's cause of action accrued for statute of limitations purposes in 1999 meaning that Mr. Kirkland's suit would have been time-barred prior to Mr. Martin's engagement in 2002 and therefore any delays and/or errors Mr. Martin might have made in filing the 2003 suit would not have caused damage. At this point, the Court told Mr. Martin that "[u]nless you have something that would be helpful to your client, then the deposition is concluded." (Kirkland Dep. at 56.) Hearing nothing that would aid Mr. Kirkland's case, the Court ended the deposition. After the Daubert hearings, the Court granted Mr. Martin's motion to withdraw from the case. III. Subject-Matter Jurisdiction[128] A. Priority of Subject-Matter Jurisdiction A federal court's "first inquiry" must be whether it has subject-matter jurisdiction. Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 576 (5th Cir.2004) (en banc), cert. denied, ___ U.S. ___, 125 S.Ct. 1825, 161 L.Ed.2d 755 (2005); see also Union Planters Bank Nat'l Ass'n v. Salih, 369 F.3d 457, 460 (5th Cir.2004) ("[F]ederal courts are duty-bound to examine the basis of subject matter jurisdiction sua sponte."); 28 U.S.C. § 1447(c). This is because "[f]ederal courts are courts of limited jurisdiction." Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir.2001) (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994)). Federal courts "must presume that a suit lies outside this limited jurisdiction, and the burden of establishing federal jurisdiction rests on the party seeking the federal forum." Howery, 243 F.3d at 916 (citations omitted). The reason a federal court's first inquiry must be whether the case falls within its limited jurisdiction is that "[u]nless 645 a federal court possesses subject matter jurisdiction over a dispute, ... any order it makes (other than an order of dismissal or remand) is void." Dahiya v. Talmidge Int'l, Ltd., 371 F.3d 207, 210 (5th Cir.2004) (citing John G. & Marie Stella Kenedy Mem'l Found. v. Mauro, 21 F.3d 667, 674 (5th Cir.1994); Shirley v. Maxicare Tex. Inc., 921 F.2d 565, 568 (5th Cir.1991)). The Fifth Circuit has explained: Where a federal court proceeds in a matter without first establishing that the dispute is within the province of controversies assigned to it by the Constitution and statute, the federal tribunal poaches upon the territory of a coordinate judicial system, and its decisions, opinions, and orders are of no effect. Howery, 243 F.3d at 916 n. 6 (quotation omitted). The fact that these actions are collected in an MDL does not alter the normal jurisdictional rules. "While [28 U.S.C.] § 1407 provides a procedure for transferring cases filed in different districts to a single district court for pretrial proceedings, nowhere does it expand the jurisdiction of either the transferor or the transferee court." In re Showa Denko K.K. L-Tryptophan Prod. Liab. Litig.-II, 953 F.2d 162, 165 (4th Cir.1992) ("The authority for consolidating cases on the order of the judicial panel on multi-district litigation... is merely procedural and does not expand the jurisdiction of the district court to which the cases are transferred."). B. Removal[129] A party may remove an action from state court to federal court if the action is one over which the federal court possesses subject-matter jurisdiction. See 28 U.S.C. § 1441(a). The removing party as the party seeking the federal forum bears the burden of showing that federal jurisdiction exists and that removal was proper. See Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir.2002). "Any ambiguities are construed against removal because the removal statute should be strictly construed in favor of remand." Id. (citing Acuna v. Brown & Root, Inc., 200 F.3d 335, 339 (5th Cir.2000) ("[D]oubts regarding whether removal jurisdiction is proper should be resolved against federal jurisdiction.")). C. Diversity Jurisdiction Defendants removed these cases pursuant to 28 U.S.C. § 1441,[130] asserting diversity subject-matter jurisdiction under 28 U.S.C. § 1332.[131] Therefore, whether this Court has subject-matter jurisdiction depends upon whether the Plaintiffs' claims satisfy the two requirements for diversity jurisdiction: (1) the $75,000 amount-in-controversy requirement, and (2) the complete diversity of citizenship requirement. See 28 U.S.C. § 1332(a). 646 1. Amount in Controversy "Where ... the petition does not include a specific monetary demand, [the defendant] must establish by a preponderance of the evidence that the amount in controversy exceeds $75,000." Manguno, 276 F.3d at 723 (citation omitted). The complaints in this MDL do not include a specific monetary demand. In such an instance, "[t]he district court must first examine the complaint to determine whether it is `facially apparent' that the claims exceed the jurisdictional amount." St. Paul Reinsurance Co. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir.1998) (citing Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir.1995)). "If it is not thus apparent, the court may rely on `summary judgment-type' evidence to ascertain the amount in controversy." St. Paul Reinsurance Co., 134 F.3d at 1253 (citing Allen, 63 F.3d at 1336). As alleged in the Complaints, it is facially apparent that each of the claims exceed the jurisdictional amount of $75,000.[132] For example, the following allegations from Nichols v. Aearo, S.D. Tex. Cause No. 03-391 (one of the cases transferred in this MDL's initial transfer order), are typical: As a direct and proximate cause of the conduct of Defendants, Plaintiffs were injured. The damages Plaintiffs have suffered include, but are not limited to, the following: A. Severe impairment to their lungs and respiratory system; B. Medical Expenses, past and future; C. Pain and Suffering, past and future; D. Mental Anguish, Anxiety, and Discomfort, past and future; E. Lost wages and income, past and future; F. Physical Impairment; G. Physical Disfigurement; H. Loss of Enjoyment; I. Loss of Consortium; J. Pre and post judgment interest; K. Exemplary and Punitive Damages; L. Treble damages; M. Reasonable and necessary attorneys fees; and N. Such other relief to which Plaintiffs may be justly entitled. (Pls.' Orig. Compl. at 64; see also Alexander v. Air Liquide Am. Corp., S.D. Tex. Cause No. 03-533, Pls.' Orig. Compl. at 35 (same).[133]) These are the types of injuries that the Fifth Circuit has held satisfies the "facially apparent" standard. See Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir.2000).[134] 647 Therefore, the Plaintiffs' Complaints satisfy the amount-in- controversy requirement.[135] 2. Complete Diversity With respect to the diversity-of-citizenship requirement, "[i]t is well-established that the diversity statute requires `complete diversity' of citizenship: A district court cannot exercise diversity jurisdiction if one of the plaintiffs shares the same state citizenship as any one of the defendants." Corfield v. Dallas Glen Hills LP, 355 F.3d 853, 857 (5th Cir.2003) (citations omitted). In the case of corporate parties, a corporation is a citizen of both its state of incorporation and the state of its principal place of business for purposes of diversity jurisdiction. See Teal Energy USA, Inc. v. GT, Inc., 369 F.3d 873, 875 (5th Cir.2004); Stafford v. Mobil Oil Corp., 945 F.2d 803, 806 (5th Cir.1991) ("For diversity jurisdiction purposes, a corporation is a citizen of the state in which it was incorporated and the state in which it has its principal place of business.") (quoting Getty Oil Corp. v. Ins. Co. N. Am., 841 F.2d 1254, 1258 (5th Cir.1988)); see also 28 U.S.C. § 1332(a). In these MDL cases, many of the Complaints allege the Defendants' states of incorporation, but none of the Complaints allege any Defendant's principal place of business. However, it is not Plaintiffs' burden to make such allegations. "For diversity jurisdiction, the party asserting federal jurisdiction must `distinctly and affirmatively allege' the citizenship of the parties." Howery v. Allstate Ins. Co., 243 F.3d 912, 919 (5th Cir.2001) (quoting Stafford, 945 F.2d at 806). Here, the Defendants are asserting federal jurisdiction via removal: hence, they "bear[] the burden of establishing diversity; if [they] fail[] to meet that burden, [the court] cannot presume the existence of federal jurisdiction." Howery, 243 F.3d at 919. Therefore, the Defendants must "distinctly and affirmatively allege" the principal place of business of all properly joined Defendants.[136] 648 But even as the Complaints are currently pleaded (i.e., without any allegations concerning the Defendants' principal places of business), all of the removed actions in this MDL lack complete diversity of citizenship that is, at least one Plaintiff is of the same citizenship as at least one Defendant. This, however, does not end the inquiry. Defendants removed these cases alleging that the Plaintiffs had improperly (or, "fraudulently") joined the parties. Defendants argued that in deciding jurisdiction, the Court should sever each Plaintiff's claim and focus solely on the citizenship of the specific Defendants who allegedly caused that Plaintiff's specific injury. Defendants argued that once this is done, some Plaintiffs' claims will need to be remanded to state court for lack of federal jurisdiction, but the vast majority of severed claims will be within the diversity jurisdiction of federal court. At the time of removal, Defendants provided no proof for its assertions; they merely asserted "[o]n information and belief, few, if any, plaintiffs were exposed to the Mississippi Defendants' products. Therefore, the Mississippi Defendants were fraudulently joined as to [the] overwhelming majority of plaintiffs." (See, e.g., Notice of Removal, Sullivan v. Aearo, S.D. Tex. Cause No. 03-369, ¶ 6.)[137] A. Improper Joinder The removal statute, 28 U.S.C. § 1441, specifies that suits arising under federal law are removable without regard to the citizenship of the parties, while all other suits are removable "only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." 28 U.S.C. § 1441(b) (emphasis added). In other words, a court is to disregard the citizenship of parties which have been improperly joined. See Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 572-73 (5th Cir.2004) (en banc) ("The doctrine of improper joinder rests on ... statutory underpinnings, which entitle a defendant to remove to a federal forum unless an in-state defendant has been `properly joined.'"). Smallwood explains: The Federal courts should not sanction devices intended to prevent the removal to a Federal court where one has that right, and should be equally vigilant to protect the right to proceed in the Federal court as to permit the state courts, in proper cases, to retain their own jurisdiction. Id. at 573 (quotation omitted). The Fifth Circuit has recognized that "improper joinder" (also known as "fraudulent joinder")[138] may be established in one of two ways: "(1) actual fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action against the non-diverse party in state court." Id. at 573 (citation omitted). Defendants do not rely on either of these forms of improper joinder here. Although they alleged during the Daubert Hearings that Plaintiffs' diagnoses are "fraudulent", they have pointedly asserted that this "fraud" is irrelevant to jurisdictional issues. (Certain Defs.' Reply in Support of Jurisdiction, MDL 03-1553 Docket Entry 1755 at 5 ("That plaintiffs' `diagnoses' have now been shown to be a 649 sham has nothing to do with the jurisdictional issues now presented to this Court.").) Similarly, while a handful of Defendants have argued that Plaintiffs cannot establish a cause of action against them under state law,[139] they have not contended that this somehow relates to jurisdiction (such as that the dismissal of those particular Defendants would result in the existence of diversity of citizenship between the remaining Plaintiffs and Defendants). Instead, the Defendants here rely upon a third type of improper joinder which is known as "fraudulent misjoinder," and which exists "where a diverse defendant is joined with a nondiverse defendant as to whom there is no joint, several or alternative liability and where the claim against the diverse defendant has no real connection to the claim against the nondiverse defendant." Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir.1998) (citing Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1360 (11th Cir.1996), abrogated on other grounds by Cohen v. Office Depot, Inc., 204 F.3d 1069 (11th Cir.2000)). The Fifth Circuit has not explicitly adopted this rule, but it has spoken in dicta of "the Tapscott principle that fraudulent misjoinder of plaintiffs is no more permissible than fraudulent misjoinder of defendants to circumvent diversity jurisdiction." In re Benjamin Moore & Co., 318 F.3d 626, 630-31 (5th Cir.2002) (holding that the Court of Appeals lacked jurisdiction to review the district court's rejection of defendants' fraudulent misjoinder claim); see also In re Benjamin Moore & Co., 309 F.3d 296, 298 (5th Cir.2002) ("[I]t might be concluded that misjoinder of plaintiffs should not be allowed to defeat diversity jurisdiction.") (citing Tapscott). The Court will assume for the sake of argument that the Fifth Circuit would explicitly adopt the Tapscott principle in an appropriate case. Tapscott involved an interpretation of Federal Rule of Civil Procedure 20(a) to determine whether the joinder of certain claims in a class action was proper. Rule 20(a) governs the "permissive joinder of parties," and it provides, in pertinent part: All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action. All persons ... may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action. Fed.R.Civ.P. 20(a). The first sentence of Rule 20 sets out the criteria as to when plaintiffs may be joined together in one action. The second sentence of Rule 20 sets out the criteria as to when defendants may be joined in one action. Plaintiffs may join together if they allege a claim "arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action." Fed.R.Civ.P. 20(a); see also 650 Applewhite v. Reichhold Chems., Inc., 67 F.3d 571, 574 n. 11 (5th Cir.1995). Defendants may be joined together only if there is an alleged claim against the defendants "arising out of the same transaction, occurrence, or series of transactions or occurrences, and if any question of law or fact common to all defendants will arise in the action." Fed.R.Civ.P. 20(a). "Under the [Federal] Rules [of Civil Procedure], the impulse is toward entertaining the broadest possible scope of action consistent with fairness to the parties; joinder of claims, parties and remedies is strongly encouraged." United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 724, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) (citing, inter alia, Fed.R.Civ.P. 20); see also Alexander v. Fulton County, Ga., 207 F.3d 1303, 1323 (11th Cir.2000) ("Plainly, the central purpose of Rule 20 is to promote trial convenience and expedite the resolution of disputes, thereby eliminating unnecessary lawsuits.") (citation omitted). As used in the Federal Rules: "Transaction" is a word of flexible meaning. It may comprehend a series of many occurrences, depending not so much upon the immediateness of their connection as upon their logical relationship. Accordingly, all "logically related" events entitling a person to institute a legal action against another generally are regarded as comprising a transaction or occurrence. Alexander, 207 F.3d at 1323 (quoting Moore v. New York Cotton Exch., 270 U.S. 593, 610, 46 S.Ct. 367, 70 L.Ed. 750 (1926); Mosley v. Gen. Motors Corp., 497 F.2d 1330, 1333 (8th Cir.1974)); cf. H.L. Peterson Co. v. Applewhite, 383 F.2d 430, 433 n. 4 (5th Cir.1967) (noting that the "same transaction or occurrence" language in Federal Rule of Civil Procedure 13(a) (governing compulsory counterclaims) "has been broadly interpreted not to require absolute identity of factual backgrounds for the two claims but only a logical relationship between them") (citation omitted). As stated by a commentator: [L]anguage in a number of decisions suggests that the courts are inclined to find that claims arise out of the same transaction or occurrence when the likelihood of overlapping proof and duplication in testimony indicates that separate trials would result in delay, inconvenience, and added expense to the parties and to the court. 7 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1653 (citations omitted). In Tapscott, one group of plaintiffs sued a set of defendants in state court for fraud arising from the sale of automobile service contracts. See Tapscott, 77 F.3d at 1355. In the same lawsuit, another group of plaintiffs sued an entirely separate set of defendants for fraud arising from the sale of service contracts covering retail products, as opposed to automobiles. See id. The retail products defendants were of diverse citizenship from the plaintiffs, while the automobile defendants were non-diverse. See id. at 1359-60. After removal to federal court, the Eleventh Circuit affirmed the district court's denial of the plaintiffs' motion to remand, stating that because the two sets of defendants were unrelated, the plaintiffs'"attempt to join these parties [was] so egregious as to constitute fraudulent joinder." Id. at 1360. In so holding, the court expressly "d[id] not hold that mere misjoinder is fraudulent joinder," but rather held that "egregious" misjoinder was necessary to constitute fraudulent joinder. See id. As another MDL court has summarized: "[U]nder Tapscott, something more than `mere misjoinder' of parties may be required to find fraudulent misjoinder. Precisely what the `something more' is was not clearly established 651 in Tapscott and has not been established since." In re Bridgestone/Firestone, Inc., 260 F.Supp.2d 722, 728 (S.D.Ind.2003); see also In re Rezulin Prods. Liab. Litig., 168 F.Supp.2d 136, 146-47 (S.D.N.Y.2001) (same); In re Diet Drugs, No. 98-20478, 1999 WL 554584, 3 (E.D.Pa., July 16, 1999) ("[A] finding of mere misjoinder does not itself warrant a finding of fraudulent misjoinder.") (citing Tapscott, 77 F.3d at 1360).[140] Here, it is not necessary for the Court to precisely define the parameters of "mere misjoinder" versus "egregious misjoinder." Instead, it is sufficient to explain why, for jurisdictional purposes, the joinder of the disparate Plaintiffs' claims constitutes egregious misjoinder, while each Plaintiffs' joinder of his or her claims against multiple Defendants does not constitute egregious misjoinder. i. Joinder of Plaintiffs The MDL Plaintiffs are alleging individual damages resulting from exposure to respirable silica over the course of each particular Plaintiff's work life. These exposures and any resulting illnesses will vary depending upon where each Plaintiff worked, for how long, and with what equipment. In reviewing the Plaintiffs' Fact Sheets, it is clear that the Plaintiffs who have been joined together have no relevant connection to each other, outside of the fact that all are alleged to have been exposed to respirable silica. The majority of the joined Plaintiffs worked in different locations, for different lengths of time, at different occupations, using different products. It is worth noting that the joinder of the Plaintiffs in each case is not entirely haphazard. Instead, it appears that the true reason for the joinders is that the collection of Plaintiffs in each case were all part of a certain law firm's existing asbestos "inventory" and/or they were screened within the same time-period by the same screening company. Of course, while these reasons might explain the joinders, they do not make the joinders proper under Rule 20. Instead, joinder among plaintiffs is only proper if they allege a claim "arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action." Fed.R.Civ.P. 20(a).[141] Here, it is evident from 652 the Plaintiffs' Fact Sheets that this test for joinder has not been met. This point can be illustrated by a random selection of the Fact Sheets of two out of the 4,280 Plaintiffs joined in Prince v. Pearl River Sand & Gravel Co., S.D. Tex. Cause No. 03-392. The two Fact Sheets are attached hereto as Exhibits 32 & 33. Plaintiff Raymond Eugene Goodwin alleges silica exposure while working during the following years at the following jobs: from 1958-59 as a grinder at U.S. Steel Company in Gary, Indiana; from 1969-1970 as a truck driver at Ingall Iron in Birmingham, Alabama; and from 1994-1995 as a mechanic at United Gunite in Florence, Alabama. (Exhibit 32 at 3.) Plaintiff James Earl King alleges silica exposure while working as a mechanic at Tractor & Equipment Company in Anniston, Alabama from 1971-1990. (Exhibit 33 at 3.) The only "transaction, occurrence, or series of transactions or occurrences" that links these two Plaintiffs is that they were each "diagnosed" with silicosis by Dr. Martindale, they are each represented by the Campbell Cherry firm (located in Waco, Texas), and they each sued the same collection of 134 Defendants in Mississippi state court. However, these are not the types of transactions or occurrences which are relevant under Rule 20. See Fed.R.Civ.P. 20(a) ("All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences....") (emphasis added). By way of further illustration (and to illustrate the variations or lack thereof in the Fact Sheet submissions), two Fact Sheets also have been randomly selected from both Clark v. Air Liquide America Corp., S.D. Tex. Cause No. 03-376 (a case purporting to join 1,566 Plaintiffs), and Woods v. Pulmosan Safety Equipment Corp., S.D. Tex. Cause No. 04-025 (a case purporting to join 25 Plaintiffs).[142]See Exhibits 34 & 35 and 36 & 37, attached hereto.[143] These Fact Sheets show what is apparent from all of the Fact Sheets that these Plaintiffs have no relevant connection to each other. As stated by another MDL court: The joinder of several plaintiffs who have no connection to each other in no way promotes trial convenience or expedites the adjudication of the asserted claims. Rather, the joinder of such unconnected, geographically diverse plaintiffs that present individual circumstances 653 material to the final outcome of their respective claims would obstruct and delay the adjudication process. Given Plaintiffs' vast geographic diversity and lack of reasonable connection to each other, the court finds that the attempted joinder of the nonresident Plaintiffs wrongfully deprives Defendants of their right of removal. In re Diet Drugs, No. 98-20478, 1999 WL 554584, at 3 (E.D.Pa., July 16, 1999) (applying Tapscott and finding egregious misjoinder where plaintiffs attempted to join persons from seven different states who had no connection with one another except that each ingested diet drugs); see also Coleman v. Conseco, Inc., 238 F.Supp.2d 804, 818 (S.D.Miss.2002) (finding egregious misjoinder and dismissing 45 out-of-state plaintiffs because "the out-of-state Plaintiffs' claims ... `occurred in complete factual, temporal and geographic isolation' from the claims of the three Mississippi Plaintiffs") (quoting Rudder v. Kmart Corp., No. 97-0272, 1997 WL 907916 at 6 (S.D.Ala., Oct.15, 1997));[144]cf. Abdullah v. Acands, Inc., 30 F.3d 264, 269 n. 5 (1st Cir.1994) ("Appellants' Complaint fails to satisfy the threshold requirement of Fed.R.Civ.P. 20 that the plaintiffs' claim for relief arise out of `the same transaction, occurrence, or series of transactions or occurrences.' The Complaint is bereft of factual allegations indicating why 1000 plaintiffs and 93 defendants belong in the same action. It gives no indication of whether plaintiffs were injured while serving on the same vessels or during the same time periods; no indication of whether they were injured by exposure to the same asbestos-containing products or equipment, nor any specification of the products or equipment to which they were exposed.") (citing Aaberg v. ACandS, Inc., 152 F.R.D. 498, 500 (D.Md.1994) (same)); In re Asbestos II Consol. Pretrial, No. 86-C-1739, 1989 WL 56181, at 1 (N.D.Ill., May 10, 1989) (same). Therefore, while the Fifth Circuit has not expressly adopted the Tapscott theory of improper joinder, the Court assumes, arguendo, that the misjoinder of the Plaintiffs' 654 claims so fails to meet the requirements of Federal Rule of Civil Procedure 20(a) as to constitute "egregious misjoinder" under Tapscott. Thus, when considering the issue of diversity of citizenship, the Court will view each Plaintiff's claim in isolation, as if all Plaintiffs' claims were severed from each other. Prior to addressing the issue of each Plaintiff's joinder of Defendants, two issues related to the joinder of Plaintiffs should noted. First, at the time the Complaints were filed in state court, Plaintiffs had at least a colorable basis to believe the joinders of these disparate Plaintiffs were proper under Mississippi Rule 20 despite the fact that the text of Mississippi Rule 20 is, in essence, the same as Federal Rule 20. For example, in 2002, the Mississippi Supreme Court stated: "The general philosophy of the joinder provisions of these Rules is to allow virtually unlimited joinder at the pleading stage, but to give the Court discretion to shape the trial to the necessities of the particular case." Ill. Cent. R.R. v. Travis, 808 So.2d 928, 931 (Miss.2002) (emphasis added). But more recently, the Mississippi Supreme Court has clarified that Mississippi Rule 20 would not permit joinder in situations such as those presented by the cases in this MDL. In Janssen Pharmaceutica, Inc. v. Armond, 866 So.2d 1092 (Miss.2004), the court held that Mississippi Rule 20 did not allow the joinder of 56 different plaintiffs who were prescribed an allegedly defective drug (Propulsid) by 42 different doctors. The court explained: [E]ach plaintiff/doctor combination has its own set of facts and evidence surrounding the prescribing of Propulsid, the transaction or occurrence which is the basis for each claim. Thus, there is no single transaction or occurrence or series of transactions or occurrences connecting all 56 plaintiffs and 42 physician defendants. Janssen, 866 So.2d at 1102.[145] The Mississippi Supreme Court reaffirmed this holding in the context of an asbestos case which attempted to join over 150 plaintiffs: [T]he plaintiffs ... were improperly joined ..., as the only similar trait shared by the plaintiffs is the alleged exposure to asbestos at some point in their work history. The plaintiffs worked in different occupations, for different employers, at different times, were exposed to different products and used different respiratory protection equipment or no respiratory protection equipment at all. 3M Co. v. Johnson, 895 So.2d 151, 158 (Miss.2005). Thus, the Court assumes, arguendo, that in these MDL cases, the Plaintiffs' attempted joinders would fare no better under Mississippi Rule 20 than they do under Federal Rule 20. 655 The second issue the Court notes is why it has refrained from considering Plaintiffs' civil conspiracy allegations. The Plaintiffs rely upon these allegations to link their disparate claims together. However, as originally plead, the conspiracy allegations were too conclusory to state a claim for civil conspiracy. See, e.g., S. Christian Leadership Conference v. Supreme Court of State of La., 252 F.3d 781, 786 (5th Cir.2001) ("`[C]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent [a] motion to dismiss.'") (quoting Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir.1993)). At the December 17, 2004 Status Conference, the Court asked Plaintiffs' liaison counsel to select the date by which Plaintiffs could replead the conspiracy claims with particularity. He selected January 3, 2005, and then stated, "And we will stand by that." (Dec. 17, 2004 Status Conf. Trans. at 72.) The Court memorialized the January 3 deadline in Order No. 19. (Order No. 19 ¶ 3.) On January 3, Plaintiffs moved for a three-week extension of time to replead the conspiracy claims. The Court denied the motion for extension of time. (MDL 1553 Docket Entry 1485.) On January 18, 2005, Plaintiffs filed a motion to reconsider the denial of the extension of time, and attached their proposed repleaded conspiracy claims. As repleaded, the claims allege that 28 Defendants were members of two organizations (the Air Industrial Hygiene Foundation and the Silica Safety Association) that conspired to misrepresent to the public the dangers of silica exposure and to prevent the strengthening of OSHA's regulations on silica exposure, including a proposed ban on the use of silica in abrasive blasting. (MDL 1553 Docket Entry 1514, Ex. A at 1-9.) This Court denied Plaintiffs' motion to reconsider (see Order No. 23), and leaves the decision of whether to accept the belated allegations, as well as whether the new conspiracy allegations state a cognizable claim under applicable state law, to the state courts to decide in the first instance. As discussed below, these decisions are not necessary to the resolution of federal jurisdiction; remand is required even without considering the conspiracy claims. ii. Joinder of Defendants by Each Individual Plaintiff Defendants also invite the Court to consider separately (i.e., sever) the claims of each individual plaintiff against each individual defendant for purposes of determining jurisdiction. Apparently it is never spelled out Defendants propose that each Plaintiff's claims against multiple Defendants will proceed simultaneously in two separate venues: all claims against diverse Defendants will proceed in federal court, while all claims against non-diverse Defendants will proceed in state court.[146] In their brief, "Defendants recognize that severing down to the level of claims against individual defendants is not the conventional response." (Certain Defs.' Br. on Jurisdiction, MDL 03-1553 Docket Entry 1583 at 24.) Indeed, Defendants fail to cite a single case where a federal court took such a step in determining its jurisdiction after removal.[147] 656 Returning to the requirements of Rule 20, it is easy to see why Defendants' suggestion is so unconventional. According to the Rule, defendants may be joined together if there is an alleged claim against the defendants "arising out of the same transaction, occurrence, or series of transactions or occurrences, and if any question of law or fact common to all defendants will arise in the action." Fed.R.Civ.P. 20(a). When viewing each Plaintiff's case in isolation, whether each Plaintiff is injured (e.g., has silicosis) is a question of fact common to all Defendants being sued by that Plaintiff. The various silica exposures which allegedly caused that Plaintiff's injury is a series of occurrences, as well as a mixed question of law and fact, common to all Defendants. See Jones v. Nastech Pharm., 319 F.Supp.2d 720, 727-28 (S.D.Miss.2004) ("Plaintiff['s] claim against her treating physician and the pharmaceutical Defendants have a common transaction or occurrence, that is the injury which she allegedly sustained as a result of ingesting Stadol. There are common issues of law and fact relating to the cause of these injuries and the extent of these injuries."). As the Judicial Panel on Multidistrict Litigation found (at the urging of Defendants) at the outset of this MDL: On the basis of the papers filed and hearing session held, the Panel finds that the actions in this litigation involve common questions of fact.... These actions share questions of fact arising from alleged injuries and/or exposure to respirable silica and plaintiffs' similar allegations that defendants knew or should have known of the danger to persons exposed to silica products and failed to warn, or inadequately warned, of this danger. In re Silica Prods. Liab. Litig., 280 F.Supp.2d 1381, 1382-83 (Jud.Pan.Mult.Lit.2003); see also In re Norplant Contraceptive Prods. Liab. Litig., 168 F.R.D. 579, 581 (E.D.Tex.1996) ("[T]he Defendants' liability under theories of negligence, misrepresentation, and fraud arises out of the same series of occurrences wherein Defendants failed to adequately warn Plaintiffs, thus satisfying Rule 20(a). Further, Plaintiffs satisfy the `common question' prong of Rule 20(a) given that common questions of law or fact exist in Plaintiffs' allegations of negligence, misrepresentation, and fraud arising out of the alleged series of acts and omissions committed by Defendants."). It is worth noting that in this jurisdictional analysis, the Court need not and does not find that the joinder of all Defendants who allegedly caused a Plaintiff's silicosis is proper pursuant to Rule 20.[148]657 Instead, as discussed above, it is sufficient under the Tapscott analysis for the Court to find that the joinder does not constitute an "egregious" misjoinder. Cf. Tapscott, 77 F.3d at 1360 ("We do not hold that mere misjoinder is fraudulent joinder, but we do agree with the district court that Appellants' attempt to join these parties is so egregious as to constitute fraudulent joinder."). Of course, those Defendants who have no connection to a particular Plaintiff (i.e., where the Plaintiff did not use or was not exposed to the Defendant's product or worksite) should be disregarded during the jurisdictional analysis. Thus, in determining whether complete diversity exists, the Court will focus upon each Plaintiff's sworn Fact Sheets, wherein each Plaintiff clarified the factual basis for his or her individual claim, including listing the precise Defendants against whom that Plaintiff alleges caused his or her alleged injury. But prior to looking at the Fact Sheets to determine if the Defendants have met their burden of showing that complete diversity exists, the Court takes a detour to consider two procedural issues which potentially complicate this analysis. B. Procedural Issues The removal statute, 28 U.S.C. § 1446, in conjunction with relevant caselaw, establish a number of procedural hurdles that a defendant must clear in order to remove an action to federal court. While these requirements may be waived, see, e.g., Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 457 (5th Cir.1998), in the majority of these cases, Plaintiffs filed a motion to remand (complaining of, inter alia, procedural defects in the removal) within 30 days of the notice of removal. See 28 U.S.C. § 1447(c) ("A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal...."). Therefore, in those cases, Defendants were required to obey the proper removal procedure. For the purposes of those cases, there are two relevant procedural hurdles. First, "in order to comply with the requirements of § 1446, all served defendants must join in the removal petition filed prior to the expiration of the removal period." Gillis v. Louisiana, 294 F.3d 755, 759 (5th Cir.2002) (citing Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d 1254, 1262 n. 9 (5th Cir.1988)). This is known as the "rule of unanimity." See Tedford v. Warner-Lambert Co., 327 F.3d 423, 428 n. 15 (5th Cir.2003). The "removal period" is thirty days after receipt of the complaint by the first-served defendant.[149] "[A]ll served defendants must join in the [removal] petition no later than thirty days from the day on which the first defendant was served." Getty Oil Corp., 841 F.2d at 1263. An attempt to join in the removal petition outside of this thirty-day window is ineffective. See id. at 1262-63. In order to "join" in the removal petition, "there [must] be `some timely filed written indication from each served defendant, or from some person or entity purporting to formally act on its behalf in 658 this respect and to have the authority to do so, that it has actually consented to such action.'" Gillis, 294 F.3d at 759 (quoting Getty Oil, 841 F.2d at 1262 n. 11). A blanket statement by the removing defendant(s) that other defendants join (or consent) in the removal is insufficient to meet this requirement. See Getty Oil, 841 F.2d at 1262 n. 11. In looking at the removals in this MDL, it is clear that many Defendants in almost every case failed to timely join in the removal. One exception to the rule of unanimity is that there is no requirement that an improperly-joined party consent to the removal. See Jernigan v. Ashland Oil Inc., 989 F.2d 812, 815 (5th Cir.1993) (consent of defendants who have been "fraudulently joined" not needed for removal); Farias v. Bexar County Mental Health Mental Retardation Servs., 925 F.2d 866, 871 (5th Cir.1991) ("All defendants who are properly joined and served must join in the removal petition and ... failure to do so renders the petition defective.") (emphasis added).[150] The second requirement at issue is that "[u]nder 28 U.S.C. § 1441(b), even where an action could have been originally brought in federal court, the defendant may not remove the state action to federal court if the defendant is a citizen of the state in which the action was filed." Hartford Accident & Indem. Co. v. Costa Lines Cargo Servs., Inc., 903 F.2d 352, 358 n. 6 (5th Cir.1990); see also Caterpillar, Inc. v. Lewis, 519 U.S. 61, 68, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996) (same).[151] In other words, if a Plaintiff is asserting a claim against a properly joined citizen of the state in which the action was originally brought (in most of these cases, Mississippi), then removal was procedurally improper. Therefore, in order to conduct a complete analysis of the motions to remand, the Court must look not only at whether complete diversity exists (i.e., the jurisdictional inquiry), but also must grant any motions to remand timely filed by Plaintiffs who: (1) are suing a properly-joined Defendant that did not timely join in the removal petition, and/or (2) are suing a properly-joined Defendant that is a citizen of the state where the action was originally filed. C. Analysis The issue of this Court's subject-matter jurisdiction was raised within five minutes of the first conference in this MDL and it has been raised at every subsequent status conference. As set out above, Defendants bear the burden of showing that removal was proper. See Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir.2002). When the removing party alleges improper joinder, this burden is "heavy". See Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 574 (5th Cir.2004) (en banc) ("The party seeking removal bears a heavy burden of proving that the joinder of the instate party was improper."); see also Hart v. Bayer Corp., 199 F.3d 239, 246 (5th Cir.2000) ("The burden of persuasion 659 placed upon those who cry `fraudulent joinder' is indeed a heavy one.") (quotation omitted). In order to allow the removing Defendants an opportunity to discharge this heavy burden, the Court granted the Defendants' request "to pierce the pleadings" and "consider summary judgment-type evidence." Ross v. Citifinancial, Inc., 344 F.3d 458, 462-63 (5th Cir.2003) ("For fraudulent joinder vel non, it is well established that the district court may `pierce the pleadings' and consider summary judgment-type evidence.") (citing, inter alia, Travis v. Irby, 326 F.3d 644, 648-49 (5th Cir.2003)). Jurisdictional discovery (in the form of Plaintiffs' and Defendants' Fact Sheets) commenced in January 2004. (Order No. 4.) Unfettered discovery has been available to Defendants (and Plaintiffs) for many months.[152] When the Court set the schedule for the parties to present their final submissions on the issue of subject-matter jurisdiction, the Court stated that the schedule applied to "[b]riefing (and any designation of evidence)." (Order No. 19 ¶ 2 (emphasis added).) It should have been clear that if Defendants were seeking to pierce the pleadings and support its removal with evidence, this was the time to do it. Despite all of the above, the removing Defendants failed to designate any evidence in support of their position that federal subject-matter jurisdiction exists over these cases. Defendants failed to show that complete diversity exists in any of the MDL cases. Defendants failed to pierce the pleadings and show that any Defendant was fraudulently joined. Defendants failed to show that all properly-joined Defendants had timely consented to the removal. Defendants failed to show that no properly-joined Defendant is a citizen of the state where the action was originally filed. In short, Defendants failed to take any of the steps necessary to meet their burden of showing that federal jurisdiction exists over these cases. Instead, the sole Defendant that designated evidence with its jurisdictional submission is 3M, who joined the Plaintiffs (and two other Defendants)[153] in moving 660 for remand. 3M attached CD-ROMs containing each of the Plaintiffs' Fact Sheets submitted as of November 20, 2004 (the last date given by the Court for Plaintiffs to supplement their Fact Sheets under Amended Order No. 14). As discussed above, on January 26, 2004, at the urging of the parties, the Court ordered both Plaintiffs and Defendants to submit Fact Sheets "that can be used to develop the factual basis for the claims of each Plaintiff." (Order No. 4, ¶ 19; Order No. 6.) The Court ordered that "[a]t a minimum, the Plaintiffs must disclose where they believe they were exposed to silica including the date and location, state their particularized claims against each Defendant, provide medical release authorization, and provide IRS release authorization."[154] (Order No. 4, ¶ 19.) The Defendants agreed to the form of these Fact Sheets. (Order No. 6 ¶ 3 ("The parties have agreed to a sworn declaration form that shall by used by Plaintiffs to identify the factual basis of their claims as contemplated by Order 4 Paragraphs 19-20.").) Subsequently, the Plaintiffs have been ordered to cure deficiencies and refine their Fact Sheets and provide additional information. (Order No. 10 ¶ 5; Order No. 12 ¶¶ 12-14; Order No. 14 ¶ 2.) The primary motivating purpose behind these orders was to clarify the particular Defendants against whom each Plaintiff asserts a claim. After all of these orders, virtually every Plaintiff's verified Fact Sheet states that he or she asserts a claim against at least one Defendant who is a citizen of that Plaintiff's state of residence. Thus, based upon the Fact Sheets, even when deeming every Plaintiff severed from the other Plaintiffs, complete diversity does not exist in most of the thousands of individual Plaintiff's cases. According to 3M (the only Defendant who reports having thoroughly reviewed every Plaintiff's Fact Sheet), only 71 Plaintiffs might have complete diversity based upon the Fact Sheets: "[I]t appears that there could be 71 Plaintiffs in a total of 5 lawsuits [who are not asserting a claim against a non-diverse Defendant]. Even this number may be too high because it does not account for a Defendant's citizenship based on its principal place of business." (3M Co.'s Br. Regarding Subject Matter Juris., MDL 03-1553 Docket Entry 1585 at 15.) The reason 3M "does not account for a Defendant's citizenship based on its principal place of business," is that in the Plaintiffs' Complaints (which were all filed in state court), only the place of incorporation is alleged. As permitted under state court rules of procedure, see, e.g., Miss. R. Civ. P. 10, the Plaintiffs did not allege the state in which any Defendant has its principal place of business. By contrast, in federal court, "[f]or diversity jurisdiction, the party asserting federal jurisdiction must `distinctly and affirmatively allege' the citizenship of the parties." Howery v. Allstate Ins. Co., 243 F.3d 912, 919 (5th Cir.2001); see also Stafford 661 v. Mobil Oil Corp., 945 F.2d 803, 804 (5th Cir.1991). "For diversity jurisdiction purposes, a corporation is a citizen of the state in which it was incorporated and the state in which it has its principal place of business." Stafford, 945 F.2d at 805 (quoting Getty Oil Corp. v. Ins. Co. N. Am., 841 F.2d 1254, 1258 (5th Cir.1988)) (citing 28 U.S.C. § 1332(c)). As in Stafford, "[p]laintiffs have stated facts alleging only one of these two possible states of corporate citizenship with respect to each defendant, which is not enough to establish diversity jurisdiction." Stafford, 945 F.2d at 805. Therefore, the removing Defendants, as the parties asserting federal jurisdiction, had the burden of "distinctly and affirmatively" alleging the principal places of business of each Defendant. And yet the Defendants did not even attempt to meet this seemingly minor burden. So even as to the 71 Plaintiffs whose Fact Sheets might point to the existence of complete diversity, because Defendants have failed to meet their burden, the Court cannot assume that jurisdiction exists. See Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir.2002) ("Any ambiguities are construed against removal because the removal statute should be strictly construed in favor of remand.") (citing Acuna v. Brown & Root, Inc., 200 F.3d 335, 339 (5th Cir.2000) ("[D]oubts regarding whether removal jurisdiction is proper should be resolved against federal jurisdiction.")); Howery, 243 F.3d at 916, 921 ("[Federal courts] must presume that a suit lies outside [their] limited jurisdiction...."); Stafford, 945 F.2d at 806 (same).[155] Tellingly, the removing Defendants fail to acknowledge in their briefs that they bear the burden of establishing federal jurisdiction. Instead, they propose: "Motions for remand would only be possible for those plaintiffs that previously complied with the Court's orders (by properly describing claims against non-diverse defendants) and can meet the additional requirements discussed below in connection with a remand motion." (Certain Defs.' Br. on Jurisdiction, MDL 03-1553 Docket Entry 1583 at 9.) Among the additional requirements that Defendants seek to impose is allowing each Defendant the option of "tak[ing] the deposition of the plaintiff [seeking remand], any affiant supporting the motion [to remand], or any other party with knowledge." (Certain Defs.' Br. on Jurisdiction, MDL 03-1553 Docket Entry 1583 at 33.) As discussed above, virtually all (if not all) of the over 9,000 Plaintiffs who submitted Fact Sheets still assert claims against non-diverse Defendants. And since Defendants are of the opinion that the majority of these Plaintiffs were not truthful in those sworn Fact Sheets, it can be assumed that Defendants would seek to depose those Plaintiffs in an effort to prove that their claims against the non-diverse Defendants are not bona fide. Thus, using the Defendants' process, it could take two 662 decades to finally settle the matter of federal subject-matter jurisdiction.[156] There are two fatal flaws in the Defendants' proposed process for determining the Court's subject-matter jurisdiction. First, Defendants' plan envisions the Plaintiffs bearing a burden in order to "obtain remand." (Certain Defs.' Br. on Jurisdiction, MDL 03-1553 Docket Entry 1583 at 25 ("To obtain remand... a plaintiff would have to demonstrate that he or she had asserted a bona fide claim against a non-diverse defendant (or a properly joined Mississippi defendant) at the time of removal."). (emphasis added)) However, the law is clear that "[i]t is to be presumed that a cause lies outside [a federal court's] limited jurisdiction ..., and the burden of establishing the contrary rests upon the party asserting jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (citations omitted); see also Manguno, 276 F.3d at 723 ("The removing party bears the burden of showing that federal jurisdiction exists and that removal was proper.... Any ambiguities are construed against removal because the removal statute should be strictly construed in favor of remand.") (citing Acuna, 200 F.3d at 339). Implicit in Defendants' briefing is the idea that the normal burden of proof should be reversed (i.e., that Plaintiffs should be required to affirmatively prove the absence of federal jurisdiction) because Plaintiffs lack credibility due to their submission of "wholly unreliable" diagnoses. For instance, Defendants state: There is absolutely no reason to presumptively credit any plaintiff's assertions in a "fact sheet" of a claim against a jurisdiction-defeating defendant non-diverse, Mississippi-resident, or non-consenting in this case: Plaintiffs have themselves shown (in connection with the diagnosis issue) that their factual assertions in this case are wholly unreliable indeed fanciful. (Certain Defs.' Reply Supp. Jurisdiction, MDL 03-1553 Docket Entry 1755 at 2-3.) Regardless of how understandable the Defendants' suspicions might be, Defendants have pointed to no legal authority indicating that the usual burden of proof in removals can be shifted as a sanction for other improper litigation tactics/assertions. Instead, the proper course of action is for the Defendants to ask a court of competent jurisdiction here the state courts to issue sanctions for "wholly unreliable" factual assertions. The Mississippi Supreme Court recently indicated that a complaint similar to the ones in these MDL cases "is sanctionable." Harold's Auto Parts, Inc. v. Mangialardi, 889 So.2d 493 (Miss.2004). Mangialardi arrived to Mississippi's highest court via an interlocutory appeal of a denial of defendants' motion to sever 264 plaintiffs' claims in an asbestos case. The following discussion from the Mangialardi court's opinion is especially relevant to these MDL cases: In essence, we are told that 264 plaintiffs were exposed over a 75-year period of time to asbestos products associated with 137 manufacturers in approximately 600 workplaces. We are not told which plaintiff was exposed to which product manufactured by which defendant in which workplace at any particular time. We do not suggest that this lack of basic information is the result of recalcitrance on the part of plaintiffs' 663 counsel; perhaps plaintiffs' counsel has not [been] furnished the information. Defendants have strenuously objected to the failure and/or refusal of plaintiffs[] to provide the information. They point out that it is impossible to argue to the trial court that joinder was improper, because they aren't provided basic information about each of the plaintiffs. Curiously, rather than filing a motion for more definite statement, or to dismiss, defendants [] simply seek the information "as soon as practicable." The defendants further argue that [Mississippi] Rule [of Civil Procedure] 20 requires the disclosure to be made. The position stated by plaintiffs is that defendant[]s do not need the information right now, since there apparently is a plan to try the cases[] one at a time. We find that all have missed the mark. This matter should not be before us because of a failure to comply with Rule 20, but rather because of an abuse of, and failure to comply with, [Mississippi] Rules [of Civil Procedure] 8, 9, 10 and 11. What is referred to as "core information" and "disclosure" is basic information which should be known to plaintiffs' counsel prior to filing the complaint, not information to be developed in discovery or disclosure. The information should have been included in the complaint. Complaints should not be filed in matters where plaintiffs intend to find out in discovery whether or not, and against whom, they have a cause of action. Absent exigent circumstances, plaintiffs' counsel should not file a complaint until sufficient information is obtained, and plaintiffs' counsel believes in good faith that each plaintiff has an appropriate cause of action to assert against a defendant in the jurisdiction where the complaint is to be filed. To do otherwise is an abuse of the system, and is sanctionable. Mangialardi, 889 So.2d at 494 (emphasis in original) (citing Miss. R. Civ. P. 11);[157]cf. Hale v. Harney, 786 F.2d 688, 692 (5th Cir.1986) ("The day is past when our notice pleading practice circumscribed only by a requirement of subjective good faith 664 on the pleader's part plus liberal discovery rules invited the federal practitioner to file suit first and find out later whether he had a case or not.") (affirming imposition of federal Rule 11 sanctions). In short, it is clear that Mississippi trial courts have the authority to adequately address abuses of the pleading rules. See Mangialardi, 889 So.2d at 494-96; see also 3M v. Hinton, 910 So.2d 526, 527-28 (Miss.2005) (same). A second flaw in the Defendants' jurisdictional proposal is that it seems to envision a never-ending process for determining jurisdiction. Defendants may believe that over time, Plaintiffs will crumble and admit that they do not have claims against any non-diverse Defendants, but this would be pure speculation. The Defendants exhibited the same belief in the effect of the Fact Sheets (the form and content of which was agreed to by the parties). Defendants now are unhappy that the jurisdictional discovery failed to unveil the situation that they continue to believe exists. But if further substantive discovery and ultimately trial proves that Plaintiffs lied in the sworn Fact Sheets, and/or violated state pleading rules or court orders, then that behavior would be sanctionable by a court of competent jurisdiction. Regardless of whether Defendants' suspicions are correct, it should be in all litigants' best interests to have these cases in a court with jurisdiction as soon as possible, so that substantive discovery may be completed, potentially dispositive motions may be considered, and the truth might emerge. In Smallwood, the Fifth Circuit "emphasize[d] that any piercing of the pleadings should not entail substantial hearings." Smallwood, 385 F.3d at 574. The court continued: "Indeed, the inability to make the requisite decision [as to jurisdiction] in a summary manner itself points to an inability of the removing party to carry its burden." Id. Presumably the term, "summary manner," is a relative one: what would be considered "summary" in a 10,000-plaintiff, 100-case MDL should be different than what would be considered "summary" in a single-plaintiff, two-defendant case such as Smallwood. But by any definition, a year and a half of proceedings must test the outer limits of the term, "summary manner." And for these proceedings to be considered merely the beginning of a significantly more substantial process stretches the term well beyond its breaking point. Moreover, as a practical matter, there now are pending motions to dismiss and motions for summary judgment, in addition to the Daubert motions and sanctions motions discussed elsewhere in this Order. If any of these motions have merit, then the Defendants deserve to have them considered sooner rather than later by a court confident in its jurisdiction. Likewise, if any of the Plaintiffs' claims have merit, then the Plaintiffs deserve to have their claims adjudicated sooner rather than later. In short, the Court rejects the Defendants' proposal to allow these proceedings to spiral toward infinity. For the reasons discussed above, the claims of every Plaintiff who submitted a Fact Sheet in the "Appendix A" cases must be remanded for lack of subject-matter jurisdiction. But there remains the issue of those Plaintiffs who did not submit a Fact Sheet in the "Appendix A" cases. Defendants have listed more than 1,000 Plaintiffs who, Defendants contend, failed to submit any Fact Sheets whatsoever. If, in the face of three separate written Orders, these Plaintiffs have indeed failed to submit a Fact Sheet, then this Court would not hesitate to dismiss the claims of those Plaintiffs without or with prejudice.[158]665 See Bluitt v. Arco Chem. Co., 777 F.2d 188, 190-91 (5th Cir.1985) ("[W]e do not find that the district court abused its discretion in dismissing plaintiff's case. Three times the court ordered plaintiff to more fully answer defendant's interrogatories. Neither plaintiff nor plaintiff's attorney argued that they were confused by the court's orders or that they were unable, for whatever reason, to comply fully with the court's requests."); see also Larson v. Scott, 157 F.3d 1030 (5th Cir.1998) (upholding district court's dismissal without prejudice for failure to prosecute where magistrate explicitly warned plaintiff that failure to comply with court order might so result and plaintiff was given four months to comply); Truck Treads, Inc. v. Armstrong Rubber Co., 818 F.2d 427 (5th Cir.1987) (upholding dismissal with prejudice where counsel acted with bad faith and contumacious conduct in failing to respond to court's order to comply with discovery requests); Kabbe v. Rotan Mosle, Inc., 752 F.2d 1083 (5th Cir.1985) (upholding dismissal with prejudice where plaintiff received notice of deposition on three occasions and failed to appear). However, in the absence of subject-matter jurisdiction, this arrow is not in the Court's quiver.[159]See U.S. Catholic Conference v. Abortion Rights Mobilization, Inc., 487 U.S. 72, 80, 108 S.Ct. 2268, 101 L.Ed.2d 69 (1988) (holding that civil contempt sanction for failure to comply with district court order must fail if district court lacks subject-matter jurisdiction); Hernandez v. Conriv Realty Assoc., 182 F.3d 121, 123 (2d Cir.1999) ("[W]here a court lacks subject matter jurisdiction, it also lacks the power to dismiss with prejudice. It is true that such an order, if imposed as a procedural sanction, does not involve an assessment of the merits of the case. Nevertheless, we believe that Article III's limits on federal jurisdiction are designed not only to prevent federal courts from assessing the merits of certain disputes, but also to prevent federal courts from interfering through such assessments or otherwise with the jurisdiction of state courts over certain cases, such as this one, that do not implicate federal interests.") (emphasis in original); In re Orthopedic "Bone Screw" Prods. Liab. Litig., 132 F.3d 152, 157 (3d Cir.1997) ("Where ... the district court lacked subject matter jurisdiction, it could not impose a sanction that has the effect of adjudicating the merits of the case."); but see In re Exxon Valdez, 102 F.3d 429 (9th Cir.1996) (court later determined to be without subject-matter jurisdiction may dismiss claims pursuant to Rule 37 for a plaintiff's repeated failure to respond to any discovery request). Instead, the final disposition of these Plaintiffs' claims must await a court of competent jurisdiction.[160] Therefore, the claims of every Plaintiff in each of the cases listed in "Appendix A" (attached hereto) must be remanded for lack of subject-matter jurisdiction.[161] All pending motions in those cases are stayed 666 pending consideration by the appropriate state court. D. Motion to Stay the Effective Date of Remand On March 29, 2005, during a telephonic conference, the Court solicited the parties' proposals for the best procedure for implementing the remand of the MDL cases, in the event the Court determined remand was required. (See Order No. 27 at 5.) In response, certain Defendants filed a motion for the Court to stay the effective date of any remand order for 30 days following its entry. (MDL 03-1553 Docket Entry 1882, filed May 26, 2005.) Defendants seek this stay in order to petition the Mississippi Supreme Court for an order consolidating the remanded cases before a single judge. According to Defendants, this consolidation would not only prolong the beneficial aspects of the federal MDL efficiency, convenience and consistency but would actually enhance those aspects because the state judge would be unhampered by jurisdictional concerns. The Court finds this motion to be well-taken. This Court's Order remanding the "Appendix A" cases will result in 90 cases, totaling nearly 10,000 Plaintiffs, being returned en masse to state courts in approximately 19 Mississippi counties. It is quite possible that at least 19 more cases will follow. (See discussion of "Appendix B" cases, infra.) The parties should have the opportunity to petition the state's highest court for consideration of how Mississippi's judicial system can best absorb the influx of cases. Therefore, the Court will stay the effective date of the remand of the cases listed in "Appendix A" for a period of 30 days from the date of this Order, after which time remand will issue. E. Cases Transferred After December 5, 2004 An MDL such as this is not a stagnant creature. Since the initial Conditional Transfer Order on September 4, 2003 (which sent 22 cases), the Judicial Panel on Multidistrict Litigation has issued 14 subsequent Conditional Transfer Orders, sending 95 additional cases to this Court for coordinated or consolidated pretrial proceedings. The most recent Conditional Transfer Order was filed on June 13, 2005, transferring 6 cases. The Defendants are entitled to have an opportunity to meet their burden of proving that jurisdiction exists in the newly-transferred cases. Therefore, this Order does not remand those cases transferred so recently that the Plaintiffs were not yet required to submit Fact Sheets at the time of the February 4, 2005 deadline for Defendants to submit evidence supporting jurisdiction.[162] All actions transferred after December 5, 2004 (60 days prior to the February 4, 2005 deadline) will remain in this Court and a part of this MDL. Therefore, after the implementation of this Order remanding the 90 cases listed in "Appendix A," only the 19 recently-transferred cases listed in "Appendix B,"[163] as well as Alexander v. Air Liquide America Corp., S.D. Tex. Cause No. 03-533 (originally filed in this Court), will remain in this MDL.[164] The Court's paramount concern 667 with respect to the "Appendix B" cases will be determining whether federal subject-matter jurisdiction exists. An in-person status conference will be conducted on August 22, 2005 at 9:00 a.m., concerning the appropriate procedure for expediting jurisdictional discovery in the cases listed in "Appendix B," as well as in any later-transferred cases. As to the "Appendix B" cases, the stay of discovery entered on February 22, 2005 (see Order No. 26) is hereby lifted. As set out in Order No. 4, all Plaintiffs in recently-transferred actions must submit sworn Fact Sheets within 60 days from the date of transfer by the Panel (excluding the period during which discovery was stayed). (Order No. 4, ¶ 20.) F. Kirkland Kirkland v. 3M Co., S.D. Tex. Cause No. 04-639, was originally filed on January 29, 2004 in the State Court of Fulton County, Georgia. On July 23, 2004, 3M removed the case to the United States District Court for the Northern District of Georgia, where it was assigned Cause No. 1:04-cv-2152. 3M's Notice of Removal, in contrast to the notices of removal filed in the cases listed in "Appendix A," distinctly and affirmatively alleges both the place of incorporation and principal places of business each of the Defendants. Cf. Howery v. Allstate Ins. Co., 243 F.3d 912, 919 (5th Cir.2001) ("For diversity jurisdiction, the party asserting federal jurisdiction must `distinctly and affirmatively allege' the citizenship of the parties.") (quoting Stafford v. Mobil Oil Corp., 945 F.2d 803, 804 (5th Cir.1991)). Based upon these allegations and the allegations in the Complaint, the two Plaintiffs, Clark C. Kirkland and Sharon S. Kirkland (husband and wife), have a different citizenship than each of the seven Defendants. Furthermore, it is facially apparent from the Complaint that Plaintiffs claim damages in excess of $75,000. Therefore, diversity jurisdiction exists. See 28 U.S.C. § 1332(a).[165] Having found that subject-matter jurisdiction exists, the next issue is whether, in light of the remand of the majority of cases in this MDL, the Court should retain Kirkland or recommend that it be remanded to the transferor court (i.e., the U.S. District Court for the Northern District of Georgia). The power to remand a case to the transferor court lies solely with the Judicial Panel on Multidistrict Litigation. See 28 U.S.C. § 1407(a) ("Each action ... transferred [by the Panel] shall be remanded by the panel at or before the conclusion of such pretrial proceedings to the district from which it was transferred 668....") (emphasis added); In re Roberts, 178 F.3d 181, 183 (3d Cir.1999). In determining whether to issue a suggestion for remand to the Panel, a transferor court should be guided by the standards for remand employed by the Panel. See In re Bridgestone/Firestone, Inc., 128 F.Supp.2d 1196, 1197 (S.D.Ind.2001). "The exercise of that discretion [to remand] generally turns on the question of whether the case will benefit from further coordinated proceedings as part of the MDL." Id. (citing In re Air Crash Disaster, 461 F.Supp. 671, 672-73 (Jud.Pan.Mult.Lit.1978)). Remand is inappropriate, for example, when continued consolidation will "eliminate duplicative discovery, prevent inconsistent pretrial rulings, and conserve the resources of the parties, their counsel and the judiciary." In re Heritage Bonds Litig., 217 F.Supp.2d 1369, 1370 (Jud.Pan.Mult.Lit.2002) (citing 28 U.S.C. § 1407). By contrast, the Panel has discretion to remand when everything that remains to be done is case-specific. See In re Patenaude, 210 F.3d 135, 145 (3d Cir.2000); In re Bridgestone/Firestone, Inc., 128 F.Supp.2d at 1197. In Kirkland, the remaining issues are different than those in every other case remaining in this MDL. All of the cases listed in "Appendix B" are at a stage in which subject-matter jurisdiction has yet to be determined and is in significant doubt. The Court's "first inquiry" in those cases must be the issue of jurisdiction. Smallwood, 385 F.3d at 576. The only other case associated with this MDL, Alexander (discussed infra), involves 100 Plaintiffs whose experts have been struck on Daubert grounds. In Kirkland, by contrast, there is no issue concerning federal jurisdiction, or whether Mr. Kirkland is injured (he is scheduled to have a lung transplant). Instead, the issues in Kirkland involve whether Plaintiffs' sole remaining attorney may withdraw, whether Plaintiffs' claims are barred on statute-of-limitations grounds, and whether certain prior statements by Mr. Kirkland bar his claim against 3M.[166] Also, Plaintiffs' sole remaining attorney, Scott Monge (a Georgia lawyer who seeks to withdraw from the case), has complained of the imposition of prosecuting the case in Texas. Should Mr. Monge be permitted to withdraw, Plaintiffs, both Georgia residents, would be left to proceed pro se. Requiring pro se litigants to prosecute a case in a court over a thousand miles from their residence would be a significant imposition, and seemingly a needless one considering how case-specific the remaining issues are. Therefore, because the Court believes remand will serve the convenience of the parties and will promote the just and efficient conduct of the case, the Court will recommend to the Judicial Panel on Multidistrict Litigation that Kirkland be remanded to the United States District Court for the Northern District of Georgia, where it was assigned Cause No. 1:04-cv-2152. The Court refrains from ruling on the pending motions, reserving them for consideration by the transferor court, should the case be remanded. G. Alexander Alexander v. Air Liquide America Corp., S.D. Tex. Cause No. 03-533, was originally filed in this Court. The 100 Plaintiffs allege and the 41 Defendants do not dispute that this Court has diversity jurisdiction over this action. 669 However, in conducting its own review of federal subject-matter jurisdiction,[167] the Court found that the jurisdictional allegations in the Complaint were deficient. Specifically, the principal places of business of most of the corporate Defendants had not been alleged. As set out below, "[w]hen jurisdiction depends on citizenship, citizenship should be distinctly and affirmatively alleged." Stafford v. Mobil Oil Corp., 945 F.2d 803, 804 (5th Cir.1991) (quotation omitted); see also Howery v. Allstate Ins. Co., 243 F.3d 912, 919 (5th Cir.2001) (same). "For diversity jurisdiction purposes, a corporation is a citizen of the state in which it was incorporated and the state in which it has its principal place of business." Stafford, 945 F.2d at 805 (quoting Getty Oil Corp. v. Ins. Co. N. Am., 841 F.2d 1254, 1258 (5th Cir.1988)) (citing 28 U.S.C. § 1332(c)). As in Stafford, the Alexander "Plaintiffs have stated facts alleging only one of these two possible states of corporate citizenship with respect to each defendant, which is not enough to establish diversity jurisdiction." Stafford, 945 F.2d at 805. In contrast to the "Appendix A" cases, because the parties have not questioned the subject-matter jurisdiction of this Court in this case, the defective jurisdictional allegations could be cured pursuant to 28 U.S.C. § 1653.[168]See Stafford, 945 F.2d at 806 ("[A] party shall be allowed to amend its complaint in order to make a complete statement of the basis for federal diversity jurisdiction where diversity jurisdiction was not questioned by the parties and there is no suggestion in the record that it does not in fact exist.") (citing Leigh v. Nat'l Aeronautics & Space Admin., 860 F.2d 652, 653 (5th Cir.1988)). Therefore, on May 16, 2005, the Court ordered Plaintiffs, as the parties seeking to invoke the federal jurisdiction in this case,[169] to amend their jurisdictional allegations. On May 24, 2005, Plaintiffs filed their First Amended Complaint, distinctly and affirmatively alleging both the place of incorporation and the principal places of business of 40 of the 41 Defendants. With respect to the 41st Defendant, American Optical Corporation ("American Optical"), Plaintiffs state: "Plaintiff has been unable to locate this Defendant[']s principal place of business at the time of this filing." (Pls.' First Am. Compl., Docket Entry 119, at 11.) Once again, since the parties have not questioned federal subject-matter jurisdiction in this case, this jurisdictional allegation concerning American Optical's principal place of business may be cured pursuant to 28 U.S.C. § 1653. Plaintiffs have 30 days from the date of this Order to learn through discovery or otherwise the principal place of business of American Optical and again amend the Complaint to adequately allege jurisdiction.[170] Should Plaintiffs again fail to adequately allege jurisdiction within 30 days, American 670 Optical will be dismissed without prejudice. As discussed above, the Motion to Exclude the expert testimony of Dr. Harron and Dr. Levy on Daubert grounds has been granted. Immediately following the August 22, 2005 status conference addressing the "Appendix B" cases, the Court will conduct an in-person status conference in Alexander, to address whether (and, if so, under what conditions) the Plaintiffs' claims may proceed. IV. Sanctions On February 4, 2005, Defendants accompanied their submissions on subject-matter jurisdiction with requests for sanctions, arguing that "Plaintiffs affirmatively, and repeatedly, misled Defendants and the Court with respect to whether they had diagnoses in hand to support their claims." (Certain Defs.' Br. on Juris., MDL 03-1553 Docket Entry 1583, at 35; see also 3M Co.'s Br. Regarding Subject Matter Juris., MDL 03-1553 Docket Entry 1585, at 17.) Defendants explained that they expected "the record being developed in connection with the `Daubert' hearings will provide further proof that plaintiffs engaged in conduct amounting to fraud." (Certain Defs.' Br. on Juris., MDL 03-1553 Docket Entry 1583, at 35.) At the conclusion of the Daubert hearings, the Court allowed Defendants until February 23, 2005 to supplement their request for sanctions, allowed Plaintiffs until March 10, 2005 to respond, and set a sanctions hearing for March 14, 2005. (Order No. 26 ¶ 2.) In their supplemental briefing, Defendants specified that they seek monetary sanctions pursuant to Federal Rules of Civil Procedure 11, 16, 26 and 37, 28 U.S.C. § 1927, and the Court's inherent authority.[171] They argued that "[t]he Court should sanction plaintiffs for knowingly submitting and advocating bogus diagnoses." (Supplemental Mot. Sanctions, MDL 03-1553 Docket Entry 1678 at 4.) They further argued that Plaintiffs had violated a number of the Court's orders, including those requiring the submission of fully completed Fact Sheets and those requiring disclosure of Plaintiffs' previous asbestosis claims/diagnoses. At the March 14 sanctions hearing, Defendants reiterated their arguments, while Plaintiffs argued that: (1) the Court did not have subject-matter jurisdiction and thus did not have the authority to award sanctions; and, (2) Plaintiffs attempted in good faith to fully comply with the Court's orders. Because the Defendants' briefing was long on argument and short on evidence, the Court ordered Defendants to supplement their motions with additional evidence, and provided for Plaintiffs to have an opportunity to respond. (Order No. 27 ¶¶ 1-2.) On March 29, 2005, the Court conducted a telephone conference with the parties, during which the Defendants stated that the Plaintiffs had recently produced a large volume of additional documents responsive to the Court's previous discovery orders. In order to allow the Defendants time to process these documents, the parties jointly requested that any order on jurisdiction, Daubert, and/or sanctions not be issued until late-May or June. 671 A. In the Absence of Subject-Matter Jurisdiction As discussed above, Defendants have not met their burden of establishing that the Court possesses subject-matter jurisdiction over any of the cases listed in "Appendix A." Therefore, prior to addressing whether sanctions are warranted, the Court must consider whether it has the ability to levy sanctions at all. Many times, the Fifth Circuit has stated flatly, "[u]nless a federal court possesses subject matter jurisdiction over a dispute, ... any order it makes (other than an order of dismissal or remand) is void." Dahiya v. Talmidge Int'l, Ltd., 371 F.3d 207, 210 (5th Cir.2004); see also, e.g., John G. & Marie Stella Kennedy Mem'l Found. v. Mauro, 21 F.3d 667, 674 (5th Cir.1994) (same); Shirley v. Maxicare Tex. Inc., 921 F.2d 565, 568 (5th Cir.1991) (same); see also Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) ("Without jurisdiction the court cannot proceed at all in any cause.") (quoting Ex parte McCardle, 74 U.S. 506, 7 Wall. 506, 514, 19 L.Ed. 264 (1868)); Howery v. Allstate Ins. Co., 243 F.3d 912, 916 n. 6 (5th Cir.2001) ("Where a federal court proceeds in a matter without first establishing that the dispute is within the province of controversies assigned to it by the Constitution and statute, the federal tribunal poaches upon the territory of a coordinate judicial system, and its decisions, opinions, and orders are of no effect.") (quotation omitted). However, the situation is not as straightforward as these quotes might indicate. In Willy v. Coastal Corp., 503 U.S. 131, 112 S.Ct. 1076, 117 L.Ed.2d 280 (1992), the Supreme Court held that a district court may impose Rule 11 sanctions in a case in which the court is later determined to be without subject-matter jurisdiction. Specifically, the district court awarded Rule 11 sanctions in the form of $19,000 in attorney's fees for the plaintiffs' counsel's filing of "a 1,200-page, unindexed, unnumbered pile of materials" with the district court and "reliance on a non-existent Federal Rule of Evidence." Id. at 133, 112 S.Ct. 1076. In so holding, the Willy Court distinguished another case wherein the Supreme Court held that a district court's civil contempt order cannot stand if the court did not have subject-matter jurisdiction. See id. at 138, 112 S.Ct. 1076 (distinguishing U.S. Catholic Conference v. Abortion Rights Mobilization, Inc., 487 U.S. 72, 108 S.Ct. 2268, 101 L.Ed.2d 69 (1988) (reversing a district court's award of fees for two nonparty witnesses' failure to comply with a district court subpoena)). The Court explained the difference between the situation in Catholic Conference and that in Willy: Given that civil contempt is designed to coerce compliance with the court's decree, it is logical that the order itself should fall with a showing that the court was without authority to enter the decree. The interest in having rules of procedure obeyed, by contrast, does not disappear upon a subsequent determination that the court was without subject-matter jurisdiction. Courts do make mistakes; in cases such as Catholic Conference it may be possible immediately to seek relief in an appellate tribunal. But where such an immediate appeal is not authorized, there is no constitutional infirmity under Article III in requiring those practicing before the courts to conduct themselves in compliance with the applicable procedural rules in the interim, and to allow the courts to impose Rule 11 sanctions in the event of their failure to do so. Id. at 139, 112 S.Ct. 1076. The Court further explained that permitting a court to impose Rule 11 sanctions in the absence 672 of subject-matter jurisdiction "implicates no constitutional concern because it does not signify a district court's assessment of the legal merits of the complaint." Id. at 138, 112 S.Ct. 1076 (quotation omitted). The lesson from Willy is that a district court which is later determined to be without subject-matter jurisdiction may sanction a party for violating Rule 11, but may not sanction a party to coerce compliance with a court order. However, there are two characteristics of these MDL cases which distinguish them from Willy. First, in Willy, the court issuing sanctions did so under the belief later determined to be mistaken that it had subject-matter jurisdiction over the action. See id. at 137, 112 S.Ct. 1076 ("A final determination of lack of subject-matter jurisdiction of a case in a federal court ... does not automatically wipe out all proceedings had in the district court at a time when the district court operated under the misapprehension that it had jurisdiction."); see also In re Exxon Valdez, 102 F.3d 429, 431 (9th Cir.1996) (same). Here, by contrast, this Court has determined that it lacks subject-matter jurisdiction over all of the MDL cases transferred by the Panel prior to December 5, 2004. This Court is under no misapprehension that it has jurisdiction. Also, Willy dealt only with a district court's ability to levy Rule 11 sanctions. In these MDL cases, by contrast, Rule 11 sanctions are not available because 3M[172] failed to comply with Rule 11's procedural "safe harbor" requirements.[173] And even had 3M complied with the procedural requirements, the basis for the motion filing claims based on fraudulent diagnoses cannot be the subject of Federal Rule 11 sanctions because the claims were filed in state court.[174] Therefore, with Rule 11 unavailable to the "Appendix A" cases, Defendants are only left with their alternate grounds for the sanctions motions. But Defendants have pointed to no Supreme Court or Fifth Circuit authority indicating that any of these alternate 673 grounds may support sanctions in the absence of subject-matter jurisdiction. And here, as noted above, there is the added fact that the Court would be attempting to issue sanctions knowing it has no subject-matter jurisdiction. In short, in the absence of specific authority to the contrary, the Court will not deviate from the admonition that "[u]nless a federal court possesses subject matter jurisdiction over a dispute, ... any order it makes (other than an order of dismissal or remand) is void." Dahiya, 371 F.3d at 210. Therefore, as to all MDL cases transferred by the Panel before December 5, 2004 (i.e., the "Appendix A" cases), the motions for sanctions are reserved for consideration by the appropriate state court after remand. As to those MDL cases transferred by the Panel after December 5, 2004 (i.e., the "Appendix B" cases), the motions for sanctions are STAYED pending this Court's ruling on subject-matter jurisdiction. B. Alexander As discussed above, the Court is not constrained by a lack of subject-matter jurisdiction in Alexander v. Air Liquide America Corp., S.D. Tex. Cause No. 03-533. Yet, even with jurisdiction, Rule 11 sanctions are inappropriate because Rule 11's procedural prerequisites have not been satisfied in this case.[175] This does not mean, however, that sanctions are not warranted. In addition to Rule 11, Defendants have moved for sanctions pursuant to 28 U.S.C. § 1927. Section 1927 provides that "[a]ny attorney ... who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct." 28 U.S.C. § 1927. "[S]anctions under § 1927 must be predicated on actions that are both `unreasonable' and `vexatious.'" Edwards v. Gen. Motors Corp., 153 F.3d 242, 246 (5th Cir.1998) (emphasis in original) (citing Travelers Ins. Co. v. St. Jude Hosp. of Kenner, Inc., 38 F.3d 1414, 1416-17 (5th Cir.1994)). "This requires that there be evidence of bad faith, improper motive, or reckless disregard of the duty owed to the court." Id. (citing Travelers Ins. Co., 38 F.3d at 1416-17; Baulch v. Johns, 70 F.3d 813, 817 (5th Cir.1995)); see also Mercury Air Group, Inc. v. Mansour, 237 F.3d 542, 549 (5th Cir.2001) (same). Under § 1927, "attorneys have been held accountable for decisions that reflect a reckless indifference to the merits of a claim." Coghlan v. Starkey, 852 F.2d 806, 814 (5th Cir.1988) (quoting Reliance Ins. Co. v. Sweeney Corp., 792 F.2d 1137, 1139 (D.C.Cir.1986)). "Because of the punitive nature of § 1927 sanctions, and in order not to chill legitimate advocacy, the provision must be strictly construed." Edwards, 153 F.3d at 246 (citing Travelers Ins. Co., 38 F.3d at 1416-17). However, the decision whether to impose § 1927 sanctions is discretionary with this Court. See id. Alexander was filed by the law firm of O'Quinn, Laminack & Pirtle, L.L.P. 674 ("O'Quinn"), a firm based in Houston, Texas.[176] O'Quinn represents over 2,000 Plaintiffs in this MDL. As discussed above in reference to the Daubert ruling, 99 of the 100 Plaintiffs in Alexander submitted a silicosis diagnosis from Dr. Ray Harron, while seven Alexander Plaintiffs submitted a silicosis diagnosis from Dr. Levy.[177] As an initial matter, it should have been apparent to O'Quinn in late-2003, as it was preparing to file a case with 100 Plaintiffs, all Mississippi or Alabama residents, that it was medically implausible for the Plaintiffs' silicosis diagnoses to have been accurate. Using the statistics from the CDC cited at the outset of this Order, one would expect a total of approximately 33 new silicosis cases per year in Alabama and Mississippi combined. When considering the fact that O'Quinn not only filed the 100-Plaintiff Alexander case, but also was in the process of filing silicosis cases for over 1,900 other Plaintiffs (almost all of whom were Mississippi or Alabama residents), then the implausibility should have been even more starkly apparent. Of course, O'Quinn also knew about the existence of the MDL (hence the reason Alexander was filed originally in this Court), which eventually grew to over 10,000 Plaintiffs, the majority of whom are Mississippi or Alabama residents. At this point, medical implausibility had become a virtual impossibility.[178] Thus, even at the time of Alexander's filing, O'Quinn exhibited a "reckless disregard of the duty owed to the court." Edwards, 153 F.3d at 246 (citation omitted); see also Coghlan, 852 F.2d at 814 (under § 1927, "attorneys have been held accountable for decisions that reflect a reckless indifference to the merits of a claim") (quotation omitted). Even if O'Quinn cannot be charged with knowledge of silicosis statistics at the time of the filing of their claims, they certainly can be charged with such knowledge when Defendants raised the issue in their briefing in this MDL. For instance, on November 11, 2004, 3M presented evidence showing that it is "scientifically virtually impossible" for all of the MDL Plaintiffs to have silicosis. (Mot. Appointment Technical Advisory Panel, MDL 03-1553 Docket Entry 1145, at 6 & Ex. C.) As detailed above, on October 29, 2004, Defendants deposed Dr. Martindale, which revealed that his 3,617 "diagnoses" were not diagnoses at all. It also revealed that Dr. Martindale had been told by N & M that "another physician had done a physical and history occupational history, medical history had supervised some PFTs and had evaluated the chest x-rays." (Dr. Martindale Dep. at 23-24.) As detailed above, this was false. Despite this testimony (and despite the additional testimony of Dr. Hilbun and Dr. Cooper, described above), which Defendants trumpeted to the Court (so O'Quinn cannot claim to be ignorant of it), Plaintiffs 675 opposed the motion to exclude their experts, opposed the use of independent experts to test the diagnoses, and instead insinuated (apparently with no factual basis) that Defendants had illicitly "flipped" Dr. Martindale and stated that they were "willing, ready, and able to bring the rest of these [diagnosing doctors] here... to show their stripes." (Dec. 17, 2004 Status Conference Trans. at 18-20, 23, 39, 45.) At this point at the latest O'Quinn's continued prosecution of its claims, and continued insistence that the N & M-produced diagnoses would be proven legitimate at the Daubert hearings, crossed the rubicon established by § 1927. Stated differently, Plaintiffs' (including O'Quinn's) insistence upon the Daubert hearings multiplied the proceedings unreasonably and vexatiously. This conclusion is supported by the active role O'Quinn played in making its Plaintiffs' diagnoses. As discussed above, the first essential step in diagnosing silicosis involves the taking of a thorough and appropriate occupational and exposure history. Unlike many of the other Plaintiffs' firms, O'Quinn did not ask the screening company (here, N & M) to take the histories; instead, O'Quinn (or a "temp service" hired by O'Quinn) took the occupational and exposure histories. (Feb. 17, 2005 Trans. at 284, 342, 400.) O'Quinn only used N & M to take x-rays and perform PFTs; O'Quinn took responsibility for the histories and for coordinating the diagnostic process. (Feb. 17, 2005 Trans. at 342, 374.) As detailed above, both Dr. Harron and Dr. Levy relied totally upon the exposure histories provided to them by the lawyers. Dr. Levy was told that a physician had spent 90 minutes with each Plaintiff performing a detailed history and physical. (Fed. 16, 2005 Trans. at 24, 72, 76.) This was shown to be false at the Daubert hearings, and O'Quinn, at least, should have known it was false from the outset, since the lawyers or their employees had taken the histories themselves. Of course, saying that the Plaintiffs do not have diagnoses is not to say that none of the Alexander Plaintiffs have silicosis. Perhaps a handful of them do. The point is that because the lawyers short-circuited the appropriate diagnostic process, O'Quinn at minimum recklessly disregarded the fact that there is no reliable basis for believing that every Plaintiff has silicosis. And this basic information regarding the nature of each Plaintiff's injuries is information O'Quinn should have known before filing their claims in this Court. See Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir.2000) (citing Fed.R.Civ.P. 11(b)(3)). It is important to emphasize that this is not a normal circumstance where a plaintiff's expert is disqualified after a Daubert hearing. Simply proffering an expert who fails Daubert is not enough to warrant sanctions. But requiring a court and the defendants to undergo a Daubert hearing when the plaintiff has no reasonable basis to believe that the expert can pass muster under Daubert can result in plaintiff's counsel being liable for the defendant's Daubert hearing fees and expenses. Cf. Edwards v. Gen. Motors Corp., 153 F.3d 242, 246-47 (5th Cir.1998) (affirming § 1927 award for defendant's fees incurred after the date on which plaintiff's attorney knew her case was unwinnable but refused to disclose that fact to the court and to the defendant in hopes of extorting a nuisance-value settlement). Here, O'Quinn should have realized its diagnoses were fatally unreliable based upon the statistics referenced above, as well as the Martindale, Hilbun and Cooper depositions. This is especially true because O'Quinn itself provided the inadequate occupational and exposure histories 676 underlying the purported diagnoses. Once O'Quinn donned a lab coat and injected itself into the diagnostic process, it is reasonable to charge them with knowledge both of what is required for a medically-acceptable diagnosis,[179] and of how far their diagnoses strayed from that standard. Moreover, the clear motivation for O'Quinn's micro-management of the diagnostic process was to inflate the number of Plaintiffs and claims in order to overwhelm the Defendants and the judicial system. This is apparently done in hopes of extracting mass nuisance-value settlements because the Defendants and the judicial system are financially incapable of examining the merits of each individual claim in the usual manner. The Court finds that filing and then persisting in the prosecution of silicosis claims while recklessly disregarding the fact that there is no reliable basis for believing that every Plaintiff has silicosis constitutes an unreasonable multiplication of the proceedings. When factoring in the obvious motivation overwhelming the system to prevent examination of each individual claim and to extract mass settlements the behavior becomes vexatious as well. Therefore, the Court finds that in Alexander,[180] O'Quinn has "multiplie[d] the proceedings ... unreasonably and vexatiously," and the firm will be required "to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct." 28 U.S.C. § 1927.[181] Prior to turning to the amount of O'Quinn's sanction, the Court notes that Defendants also moved for sanctions pursuant to Federal Rules of Civil Procedure 16, 26 and 37, which allow the Court to sanction a party who fails to comply with scheduling orders, improperly certifies discovery responses, or fails to cooperate with discovery. The factual bases for sanctions grounded in those Rules have been documented and debated at length in the parties' filings in response to Order No. 27. Defendants have noted numerous instances in which Plaintiffs have failed to comply with the Court's discovery orders, some of which Plaintiffs dispute. In general, Plaintiffs' counsel, including O'Quinn, argue that they, "in good faith, made every attempt to comply with the Court's discovery orders." (O'Quinn's Resp. Opp'n Defs.' Mots. Sanctions, MDL 03-1553 Docket Entry 1775, at 12.) Implicit (and sometimes explicit) in their "good faith" arguments is that Plaintiffs' counsel did the best it could considering the large volume of Plaintiffs. For example, in the 677 introductory section of O'Quinn's brief in opposition to the sanctions motions, O'Quinn offers a brief tutorial in the differences between "mass torts" and "traditional personal injury lawsuits": As with most mass torts, there are thousands of [silica] cases filed nationwide. Unlike traditional personal injury lawsuits, these [mass tort] cases are unique and prosecuted in a non-traditional yet judicially efficient manner. The unique nature of mass torts is especially relevant in this instance due to the fact that silica litigation has been ongoing for many years and, therefore, [has] taken on certain characteristics all its own. The fact is counsel for Plaintiffs and Defendants have been dealing with the issues currently before the Court for many years. Although the "diagnoses" issues that the Court is now grappling with are relatively new in this arena, they are issues that have successfully been dealt with before. (O'Quinn's Resp. Opp'n Defs.' Mots. Sanctions, MDL 03-1553 Docket Entry 1775, at 2.) Although O'Quinn does not support its statement with any examples of the "`diagnoses' issues" being "successfully ... dealt with," O'Quinn does explain the "dynamics and functioning of [O'Quinn]'s silica docket," which includes over 2,000 claims in this MDL. (O'Quinn's Resp. Opp'n Defs.' Mots. Sanctions, MDL 03-1553 Docket Entry 1775, at 13.) O'Quinn then describes the "painstaking procedures" the firm implemented to attempt to comply with the Court's order to disclose which of its 2,000 Plaintiffs had previously been diagnosed with asbestosis. (O'Quinn's Resp. Opp'n Defs.' Mots. Sanctions, MDL 03-1553 Docket Entry 1775, at 13-15.) The Court does not doubt that complying with discovery orders related to thousands of Plaintiffs can be an overwhelming undertaking. But the reason it is overwhelming is that Plaintiffs' counsel, and the screening companies and physicians they employ, have taken steps to inflate the number of silicosis claims beyond the true number of people with silicosis. In other words, at the root of the unwieldy nature of this MDL, including the difficulty in responding fully to discovery, is the fact that Plaintiffs' counsel such as O'Quinn filed scores of claims without a reliable basis for believing that their clients had a compensable injury, thereby "multipl[ying] the proceedings... unreasonably and vexatiously." 28 U.S.C. § 1927. Thus, even though the Alexander Plaintiffs may have failed to fully comply with all of the Court's discovery orders, the underlying cause of this is addressed by § 1927, and that is why § 1927 forms the basis of the Court's sanction. In determining the amount of the § 1927 sanction, the Court considers three factors: (1) whether there is a connection between the amount of monetary sanctions imposed and the sanctionable conduct by the violating party; (2) whether the costs or expenses claimed by the aggrieved party are "reasonable," as opposed to self-imposed, mitigable, or the result of delay in seeking court intervention; and, (3) whether the sanction is the least severe sanction adequate to achieve the purpose of § 1927. See Topalian v. Ehrman, 3 F.3d 931, 936-37 (5th Cir.1993) (citations omitted).[182] Applying these factors to this situation, the Court finds that O'Quinn should be required to pay Alexander's proportionate share of Defendants'"reasonably incurred" costs, expenses and attorneys' 678 fees for the three-day Daubert hearings. As discussed above, by the date of Daubert hearings, the patent unreliability of the diagnoses underlying each of the claims in Alexander (as well as most of the other cases) should have been readily apparent to O'Quinn (as well as the other Plaintiffs' counsel). Yet neither O'Quinn, nor any of the other Plaintiffs' counsel, attempted to stop the hearings or withdraw their claims or acknowledge that they did not have legitimate diagnoses; instead, Plaintiffs (after implying that Dr. Martindale's retractions were caused by Defendants' malfeasance) told the Court that they welcomed the opportunity to allow their diagnosing doctors and screening companies "to show their stripes." (Dec. 17, 2004 Status Conference Trans. at 23.) This forced Defendants to marshal evidence, question Plaintiffs' doctors and screeners, and present two experts of their own (Dr. Friedman and Dr. Parker), all requiring Defendants to incur fees, costs and expenses.[183] Furthermore, the Court finds that Defendants' efforts, as displayed during the three-day hearings, were reasonably necessary to place Plaintiffs' diagnoses in their proper light. Defendants have not proffered an accounting of the fees, costs and expenses they expended during the three-day Daubert hearings. However, a large group of Defendants have stated that for the purposes of the sanctions motions, they "will accept the Court's estimate [made during the Daubert hearings] that the attorney costs (including fees) of such [Daubert] proceedings amounted to approximately $275,000 per day."[184] (Supplemental Mot. Sanctions, MDL 03-1553 Docket Entry 1678, at 8.) Thus, for the three-day Daubert hearings,[185] the Court will begin with the assumption that the total amount of fees, costs and expenses Defendants incurred was $825,000. The Court also operates under the assumption that the proportionate share of the total fees, costs and expenses attributable to Alexander a case with 100 Plaintiffs in a 10,000-Plaintiff MDL is one percent (i.e., 100 divided by 10,000). Hence, at this stage, the Court assumes that Alexander's proportionate share of the total amount is $8,250. However, prior to the Court issuing an order requiring O'Quinn to pay $8,250 to Defendants pursuant to § 1927, O'Quinn should have the opportunity to require Defendants to prove their fees, costs and expenses, as well as challenge whether they were reasonable (as opposed to being "self-imposed, mitigable, or the result of delay in seeking court intervention," Topalian, 3 F.3d at 937). Therefore, while the Court determines herein that O'Quinn 679 should be liable for Alexander's proportionate share of Defendants' reasonable fees, expenses and costs for the Daubert hearings, the Court does not yet fix the amount of the sanction in this Order. See Travelers Ins. Co. v. St. Jude Hosp. of Kenner, Inc., 38 F.3d 1414, 1416 (5th Cir.1994) (noting that a district court may award sanctions in one order, and set the amount of the award in a later order; also noting that the sanctions award only becomes appealable when "the award is reduced to a sum certain") (citing S. Travel Club, Inc. v. Carnival Air Lines, Inc., 986 F.2d 125, 131 (5th Cir.1993)). Instead, within seven days from the date of this Order, O'Quinn must file a statement with the Court either admitting or denying the Court's estimate of $825,000 as the total amount of fees, costs and expenses Defendants reasonably incurred due to the three-day Daubert hearings.[186] Should O'Quinn deny the $825,000 figure, the Court first will allow Defendants to prove their actual fees, expenses and costs for the Daubert hearings, and then will allow O'Quinn to challenge those amounts and their reasonableness; finally, the Court will sanction O'Quinn for Alexander's proportionate share of the actual fees, expenses and costs Defendants reasonably incurred. Regardless of whether O'Quinn admits or denies the $825,000 figure, the Court will set the amount of the sanction in a later order. It is worth noting that the amount of the sanction this Court ultimately orders (whether $8,250 or a percentage of an amount to be proven by Defendants), while not insignificant, will be substantially less than the total amount of damages some calculable and some not Plaintiffs' counsel have caused by their filing of thousands of claims without a reliable basis for believing that every Plaintiff has been injured. However, the Court must confine itself to "the least severe sanction adequate to achieve the purpose of the rule under which it was imposed." See Topalian v. Ehrman, 3 F.3d 931, 937 (5th Cir.1993). The Court trusts that this relatively minor sanction will nonetheless be sufficient to serve notice to counsel that truth matters in a courtroom no less than in a doctor's office. V. Conclusion The claims of every Plaintiff in each of the 90 cases listed in "Appendix A" (attached hereto) will be REMANDED for lack of subject-matter jurisdiction. In order to allow the parties an opportunity to petition the Mississippi Supreme Court for consideration of how Mississippi's judicial system can best absorb the return of these cases, the Motion to Stay the effective date of remand is GRANTED. The Court hereby STAYS the effective date of the remand of the cases listed in "Appendix A" for a period of 30 days from the date of this Order, after which time remand will issue. Kirkland v. 3M Co., S.D. Tex. Cause No. 04-639, will be sent to the Judicial Panel on Multidistrict Litigation ("Panel") with a recommendation that, for the convenience of the parties and to promote the just and efficient conduct of the case, Kirkland be remanded to the United States District Court for the Northern District of Georgia. After the implementation of the above-stated rulings, only the 19 recently-transferred cases listed in "Appendix B," as well as Alexander v. Air Liquide America 680 Corp., S.D. Tex. Cause No. 03-533 (originally filed in this Court), will remain in this MDL. An in-person status conference will be conducted on August 22, 2005 at 9:00 a.m., concerning the appropriate procedure for expediting jurisdictional discovery in the cases listed in "Appendix B," as well as in any later-transferred cases. As to the "Appendix B" cases, the stay of discovery entered on February 22, 2005 (see Order No. 26) is hereby lifted. As set out in Order No. 4, all Plaintiffs in recently-transferred actions must submit sworn Fact Sheets within 60 days from the date of transfer by the Panel (excluding the period during which discovery was stayed). (Order No. 4, ¶ 20.) In Alexander, Plaintiffs have 30 days from the date of this Order to cure the jurisdictional allegation concerning American Optical's principal place of business. Should Plaintiffs fail to cure the allegation within 30 days, American Optical will be dismissed without prejudice. As to Alexander, Defendants' Motion to Exclude is GRANTED: the testimony of Dr. Harron and the testimony of Dr. Levy (as well as their accompanying diagnoses) are inadmissible. Immediately following the August 22, 2005 status conference addressing the "Appendix B" cases, the Court will conduct an in-person status conference in Alexander, to address whether (and, if so, under what conditions) the Plaintiffs' claims may proceed. Defendants' Motions for Sanctions will be GRANTED as to Alexander. The law firm of O'Quinn, Laminack & Pirtle ("O'Quinn") has multiplied the proceedings unreasonably and vexatiously, and will be required to satisfy personally Alexander's proportionate share (i.e., one percent) of Defendants' reasonably incurred costs, expenses and attorneys' fees for the Daubert hearings conducted on February 16-18, 2005. The Court does not yet fix the amount of this sanction. Instead, within seven days from the date of this Order, O'Quinn must file a statement with the Court either admitting or denying the Court's estimate of $825,000 as the total amount of fees, costs and expenses Defendants reasonably incurred due to the three-day Daubert hearings. Should O'Quinn deny the $825,000 figure, the Court first will allow Defendants to prove their actual fees, expenses and costs for the Daubert hearings, and then will allow O'Quinn to challenge those amounts and their reasonableness; finally, the Court will sanction O'Quinn for Alexander' s proportionate share of the actual fees, expenses and costs Defendants reasonably incurred. Regardless of whether O'Quinn admits or denies the $825,000 figure, the amount of the sanction will be set in a later order. As to all MDL cases transferred by the Panel before December 5, 2004 (i.e., the "Appendix A" cases, over which the Court has no subject-matter jurisdiction), the Motion to Exclude Expert Testimony, the Motions for Sanctions, and all other pending motions not otherwise addressed in this Order are reserved for consideration by the appropriate state court after remand. As to those MDL cases transferred by the Panel after December 5, 2004 (i.e., the "Appendix B" cases), the Motion to Exclude Expert Testimony, the Motions for Sanctions, and all other pending motions not otherwise addressed in this Order are STAYED pending this Court's ruling on subject-matter jurisdiction. 681 MDL 1553 APPENDIX A The following cases will be remanded for lack of subject-matter jurisdiction to the state courts in which they were originally filed. S.D. Original Tex. Transferor State Court Case Cause Transferor Cause (All in State Court Date of Name No. Court No. Mississippi) Cause No. Transfer Fortney v. Aearo 2:03-408 N.D. 2:03-160 Circuit Court 2002-153 09/05/03 Miss. Bolivar County Gary v. Air 2:03-381 N.D. 4:03-224 Circuit Court XXXX-XXXXCICI 09/05/03 Liquide America Miss. Leflore Corp. County King v. Air 2:03-383 N.D. 4:03-225 Circuit Court XXXX-XXXXCICI 09/05/03 Liquide America Miss. Leflore Corp. County Holt v. Air 2:03-384 N.D. 4:03-226 Circuit Court XXXX-XXXXCICI 09/05/03 Liquide America Miss. Leflore Corp. County Nash. v. Aearo 2:03-382 N.D. 4:03-234 Circuit Court CI 2002-469 09/05/03 Miss. Washington County McGee v. Aearo 2:03-462 S.D. 2:03-261 Circuit Court 2002-249C 09/05/03 Miss. Covington County Weathersby v. 2:03-404 S.D. 2:03-262 Circuit Court 2002-247C 09/05/03 Aearo Miss. Covington County Byrne v. Aearo 2:03-368 S.D. 3:03-613 Circuit Court 2002-456 09/05/03 Miss. Smith County Sullivan v. Aearo 2:03-369 S.D. 3:03-614 Circuit Court 2002-451 09/05/03 Miss. Smith County Dent v. Aearo 2:03-377 S.D. 3:03-615 Circuit Court 2002-488 09/05/03 Miss. Holmes County Baldwin v. Graco 2:03-387 S.D. 4:03-159 Circuit Court 2002-429 09/05/03 Enterprises Miss. Noxubee County Prince v. Pearl 2:03-392 S.D. 4:03-160 Circuit Court 2002-430 09/05/03 River Sand & Miss. Noxubee Gravel Co. County Ulmer v. Aearo 2:03-388 S.D. 4:03-169 Circuit Court XXXX-XXXXX 09/05/03 Miss. Jasper County McLaurin v. 2:03-389 S.D. 4:03-170 Circuit Court 12-0185 09/05/03 Aearo Miss. Jasper County Nichols v. Aearo 2:03-391 S.D. 4:03-171 Circuit Court 2002-399 09/05/03 Miss. Noxubee County 682 Clark v. Air 2:03-376 S.D. 5:03-238 Circuit Court 02-0019 09/05/03 Liquide America Miss. Issaquena Corp. County Braxton v. Aearo 2:03-374 S.D. 5:03-250 Circuit Court 02-0016 09/05/03 Miss. Issaquena County Robinson v. 2:03-378 S.D. 5:03-251 Circuit Court 2002-100 09/05/03 Aearo Miss. Sharkey County Irons v. Aearo 2:03-379 S.D. 5:03-252 Circuit Court 2002-307 09/05/03 Miss. Claiborne County McDuff v. Aearo 2:03-380 S.D. 5:03-253 Circuit Court 2002-101 09/05/03 Miss. Sharkey County Shows v. Aearo 2:03-375 S.D. 5:03-254 Circuit Court 2002-0236-S 09/05/03 Miss. Adams County Roberts v. Aearo 2:03-390 S.D. 5:03-255 Circuit Court 2002-252 09/05/03 Miss. Jefferson County Barnes v. 2:03-511 N.D. 2:03-167 Circuit Court 2002-38 11/04/03 Alabama Miss. Bolivar Carbonates, LP County Martin v. Air 2:03-471 S.D. 3:03-653 Circuit Court 2002-602 11/04/03 Liquide America Miss. Holmes Corp. County Patton v. Air 2:03-472 S.D. 5:03-336 Circuit Court 2002-346 11/04/03 Center of Miss. Claiborne Mississippi, Inc. County Houston v. Clark 2:03-475 S.D. 5:03-338 Circuit Court 2002-298 11/04/03 Sand Co. Miss. Jefferson County McClain v. Air 2:03-473 S.D. 3:03-714 Circuit Court 2002-603 11/04/03 Liquide America Miss. Holmes Corp. County Westrope v. 2:03-474 S.D. 3:03-748 Circuit Court XXXX-XXXX 11/04/03 Pulmosan Safety Miss. Copiah Equipment Corp. County Clayton v. Clark 2:03-485 S.D. 4:03-187 Circuit Court 12-00136 11/04/03 Sand Co. Miss. Jasper County Wyatt v. Clark 2:03-486 S.D. 5:03-288 Circuit Court 2002-297 11/04/03 Sand Co. Miss. Jefferson County Wilson v. 2:03-488 S.D. 5:03-307 Circuit Court 2002-353 11/04/03 Pulmosan Safety Miss. Claiborne Equipment Corp. County Williams v. 2:03-482 S.D. 5:03-308 Circuit Court 2002-354 11/04/03 Pulmosan Safety Miss. Claiborne Equipment Corp. County Keller v. 2:03-487 S.D. 5:03-309 Circuit Court 2002-352 11/04/03 Pulmosan Safety Miss. Claiborne Equipment Corp. County 683 Hargo v. 2:03-489 S.D. 5:03-312 Circuit Court 2002-289 11/04/03 Pulmosan Safety Miss. Jefferson Equipment Corp. County Keys v. 2:03-484 S.D. 5:03-313 Circuit Court 2002-287 11/04/03 Pulmosan Safety Miss. Jefferson Equipment Corp. County Pree v. 2:03-483 S.D. 5:03-315 Circuit Court 2002-291 11/04/03 Pulmosan Safety Miss. Jefferson Equipment Corp. County Morgan v. 2:03-494 S.D. 5:03-316 Circuit Court 2002-285 11/04/03 Pulmosan Safety Miss. Jefferson Equipment Corp. County Norton v. 2:03-493 S.D. CA No. Circuit Court 2002-286 11/04/03 Pulmosan Safety Miss. 5:03-321 Jefferson Equipment Corp. County Rollins v. 2:03-491 S.D. CA No. Circuit Court 2002-284 11/04/03 Pulmosan Safety Miss. 5:03-322 Jefferson Equipment Corp. County Harrington v. 2:03-492 S.D. 5:03-323 Circuit Court 2002-288 11/04/03 Pulmosan Safety Miss. Jefferson Equipment Corp. County Harried v. 2:03-495 S.D. 5:03-324 Circuit Court 2002-283 11/04/03 Pulmosan Safety Miss. Jefferson Equipment Corp. County Jackson v. 2:03-496 S.D. CA No. Circuit Court 2002-333 11/04/03 Pulmosan Safety Miss. 5:03-325 Jefferson Equipment Corp. County Odom v. 2:03-531 S.D. CA No. Circuit Court 2002-282 12/01/03 Pulmosan Safety Miss. 5:03-314 Jefferson Equipment Corp. County McComb v. 2:03-532 N.D. 4:03-377 Circuit Court 02-0213 12/05/03 Pulmosan Safety Miss. Humphreys Equipment Corp. County Colenburg v. Air 2:03-539 S.D. 3:03-1141 Circuit Court 02-CV109 12/05/03 Liquide America Miss. Franklin Corp. County Ellis v. Air 2:03-538 S.D. 3:03-1142 Circuit Court 2002-526 12/05/03 Liquide America Miss. Holmes Corp. County Sewell v. Air 2:03-552 S.D. 5:03-471 Circuit Court 02-KV-0292-S 12/05/03 Liquide America Miss. Adams Corp. County Brown v. Air 2:03-544 S.D. 5:03-472 Circuit Court 02-KV-0282-S 12/05/03 Liquide America Miss. Adams Corp. County Stewart v. Air 2:03-547 S.D. 5:03-473 Circuit Court 02-KV-0277-S 12/05/03 Liquide America Miss. Adams Corp. County Robb v. Air 2:03-550 S.D. 5:03-474 Circuit Court 02-KV-0290-S 12/05/03 Liquide America Miss. Adams Corp. County 684 Dyer v. Air 2:03-546 S.D. 5:03-475 Circuit Court 02-KV-0278-S 12/05/03 Liquide America Miss. Adams Corp. County Lawrence v. Air 2:03-548 S.D. 5:03-476 Circuit Court 02-KV-0254-S 12/05/03 Liquide America Miss. Adams Corp. County Dixon v. Air 2:03-545 S.D. 5:03-477 Circuit Court 02-KV-0286-S 12/05/03 Liquide America Miss. Adams Corp. County Bostic v. Air 2:03-543 S.D. 5:03-478 Circuit Court 02-KV-0279-S 12/05/03 Liquide America Miss. Adams Corp. County Oliver v. Air 2:03-553 S.D. 5:03-479 Circuit Court 02-KV-0298-S 12/05/03 Liquide America Miss. Adams Corp. County McDaniel v. Air 2:03-542 S.D. 5:03-480 Circuit Court 02-KV-0288-S 12/05/03 Liquide America Miss. Adams Corp. County Ikard v. Air 2:03-562 S.D. 5:03-481 Circuit Court 02-KV-0284-S 12/05/03 Liquide America Miss. Adams Corp. County Bradley v. Air 2:03-549 S.D. 5:03-482 Circuit Court 02-KV-0302-S 12/05/03 Liquide America Miss. Adams Corp. County Carradine v. Air 2:03-551 S.D. 5:03-483 Circuit Court 02-KV-0304-S 12/05/03 Liquide America Miss. Adams Corp. County Fleming v. Air 2:03-560 S.D. 5:03-484 Circuit Court 02-KV-0294-S 12/05/03 Liquide America Miss. Adams Corp. County King v. Air 2:03-559 S.D. 5:03-485 Circuit Court 02-KV-0276-S 12/05/03 Liquide America Miss. Adams Corp. County Cook v. Air 2:03-558 S.D. 5:03-486 Circuit Court 02-KV-0296-S 12/05/03 Liquide America Miss. Adams Corp. County Bland v. Lone 2:04-002 S.D. 5:03-457 Circuit Court 2003-49 12/15/03 Star Industries, Miss. Jefferson Inc. County Woods v. 2:04-025 N.D. 4:03-398 Circuit Court 2003-117 01/12/04 Pulmosan Safety Miss. Washington Equipment Corp. County Armstead v. 2:04-024 S.D. 2:03-523 Circuit Court XXXX-XXX-XX 01/12/04 American Optical Miss. Jones County Corp. Andrews v. Clark 2:04-121 S.D. 2:03-293 Circuit Court XXXX-XXX-X 03/23/04 Sand Co. Miss. Jones County Spencer v. 2:04-218 N.D. 4:03-437 Circuit Court 02-0214 04/05/04 Pulmosan Safety Miss. Humphreys Equipment Corp. County Hicks v. 2:04-219 N.D. 4:03-438 Circuit Court CI 2002-490 04/05/04 Pulmosan Safety Miss. Washington Equipment Corp. County 685 Pittman v. 2:04-220 N.D. 4:04-439 Circuit Court CI 2002-491 04/05/04 Pulmosan Safety Miss. Washington Equipment Corp. County Williams v. 2:04-221 N.D. 4:03-440 Circuit Court CI 2002-333 04/05/04 Pulmosan Safety Miss. Washington Equipment Corp. County McClain v. 2:04-222 N.D. 4:03-441 Circuit Court 2002-332 04/05/04 Pulmosan Safety Miss. Washington Equipment Corp. County Williams v. 2:04-223 S.D. 3:04-01 Circuit Court 2003-45 04/05/04 Pulmosan Safety Miss. Hinds County Woods v. American 2:04-235 S.D. 5:03-562 Circuit Court 03-KV-0131-J 04/05/04 Optical Corp. Miss. Adams County Carter v. 2:04-336 S.D. 2:03-578 Circuit Court XXXX-XXX-X 04/05/04 Pulmosan Safety Miss. Jones County Equipment Corp. Clark v. 2:04-337 S.D. 2:03-579 Circuit Court XXXX-XXX-X 04/05/04 Pulmosan Safety Miss. Jones County Equipment Corp. Chancellor v. 2:04-338 S.D. 2:03-580 Circuit Court XXXX-XXX-X 04/05/04 Pulmosan Safety Miss. Jones County Equipment Corp. Parker v. 2:04-339 S.D. 2:03-51 Circuit Court XXXX-XXX-X 04/05/04 Pulmosan Safety Miss. Jones County Equipment Corp. Shedd v. 2:04-340 S.D. 2:03-582 Circuit Court XXXX-XXX-XX 04/05/04 Pulmosan Safety Miss. Jones County Equipment Corp. Overland v. 2:04-341 S.D. 2:03-583 Circuit Court XXXX-XXX-XX 04/05/04 Pulmosan Safety Miss. Jones County Equipment Corp. Hutto v. 2:04-342 S.D. 2:03-584 Circuit Court XXXX-XX-XX 04/05/04 Pulmosan Safety Miss. Jones County Equipment Corp. Watkins v. 2:04-343 S.D. 2:03-585 Circuit Court XXXX-XXX-XX 04/05/04 Pulmosan Safety Miss. Jones County Equipment Corp. Reeves v. 2:04-344 S.D. 2:03-586 Circuit Court XXXX-XXX-X 04/05/04 Pulmosan Safety Miss. Jones County Equipment Corp. Polson v. 2:04-345 S.D. 2:03-587 Circuit Court XXXX-XXX-XX 04/05/04 Pulmosan Safety Miss. Jones County Equipment Corp. Rowzee v. 2:04-346 S.D. 2:03-588 Circuit Court XXXX-XXX-XX 04/05/04 Pulmosan Safety Miss. Jones County Equipment Corp. Arthur v. 2:04-347 S.D. 2:03-589 Circuit Court XXXX-XXX-X 04/05/04 Pulmosan Safety Miss. Jones County Equipment Corp. Washington v. 2:04-348 S.D. 5:04-27 Circuit Court 04-0002 06/15/04 Clark Sand Co. Miss. Issaquena County 686 Givens v. Air 2:04-409 N.D. 1:04-82 Circuit Court XXXX-XXXX 07/16/04 Liquide America Miss. Lowndes Corp. County Anderson v. Air 2:04-408 S.D. 4:04-47 Circuit Court 04-004 07/16/04 Liquide America Miss. Noxubee Corp. County Robinson v. 2:05-307 S.D. 3:04-419 Circuit Court XXX-XX-XXXX 09/13/04 Pulmosan Safety Miss. Hinds County Equipment Corp. Gatlin v. Ash 2:04-638 S.D. 3:04-753 Circuit Court XXX-XX-XXXX 11/05/04 Grove Cement Miss. Hinds County Co. MDL 1553 APPENDIX B The following cases will remain before this Court, in MDL 1553. S.D. Tex. Transferor Transferor Transfer Case Name Cause No. Court Cause No. Date Thirsty v. 3M Company 2:04-688 N.D. Mississippi 4:04-145 12/13/05 Greer v. Clark Sand Co. 2:05-16 S.D. Mississippi 2:04-174 12/13/05 Moore v. Clark Sand Co. 2:05-17 S.D. Mississippi 5:04-138 12/13/05 Large v. 3M Company 2:05-18 S.D. Mississippi 3:04-377 12/13/05 Crowe v. Clark Sand Co. 2:05-215 S.D. Mississippi 2:04-175 12/13/05 McManus v. Dependable 2:05-121 S.D. Mississippi 5:04-128 12/13/05 Abrasives Cole v. A-Bec Industries 2:05-122 S.D. Mississippi 5:04-155 12/13/05 Covey v. Union Pacific Railroad 2:05-93 E.D. Missouri 4:03-168 1/11/05 Co. Adams v. Pulmosan Safety 2:05-183 W.D. Kentucky 5:04-123 2/22/05 Equipment Corp. Thirsty v. Clark Sand Co. [Not received] N.D. Mississippi 4:05-5 6/13/05 Crowe v. Clark Sand Co. [Not received] S.D. Mississippi 2:05-7 6/13/05 Greer v. Clark Sand Co. [Not received] S.D. Mississippi 2:05-8 6/13/05 Large v. Clark Sand Co. [Not received] S.D. Mississippi 3:05-7 6/13/05 Wilson v. 3M Co. [Not received] S.D. Mississippi 3:05-185 6/13/05 Moore v. Clark Sand Co. [Not received] S.D. Mississippi 5:05-7 6/13/05 Nix v. Pulmosan Safety [Not received] S.D. Mississippi 1:05-162 6/27/05 Equipment Co. Knight v. Pulmosan Safety [Not received] S.D. Mississippi 1:05-163 6/27/05 Equipment Co. Clay v. Pulmosan Safety [Not received] S.D. Mississippi 5:05-51 6/27/05 Equipment Co. 687 Exhibit 1 DATE: 2-15-02 RE: PARKER, R. E. The medical records, work history, physical exam, and chest radiograph were reviewed. CHEST: There are increased parenchymal opacities throughout all six lung zones consistent with ILO classification s/p, 1/0. The cardiac silhouette and mediastinal contours are unremarkable. IMPRESSION: On the basis of the medical history review, which is inclusive of a significant occupational exposure to silica dust, physical exam and the chest radiograph, the diagnosis of silicosis is established within a reasonable degree of medical certainty. George H. Martindale, M.D. GHM/mts Date film read: 3-10-02 Exhibit 2 02/15/02 R.E. Parker DOB: 12/25/34 Records dated 02/15/02 and physical exam report that this person has or is: DATES OF EXPOSURE: 66-88 UAB Hospital/GAB Birmingham, AL. 58-59 Jimmy Allidrige Birmingham, AL. 62-63 Bankhead Railway Eng. Birmingham, AL. 64-65 Sears Birmingham, AL. CHIEF COMPLAINT: A white male 67 years of age, 76 inches tall, weighing 285 lbs., complains of shortness of breath with walking or on one flight of stairs. PRESENT ILLNESS: He has a cough. His present medication is fluid pill. PHYSICAL EXAM: Negative for clubbing or cyanosis. Negative for rales or crackles. Positive for grade I ankle edemn. OCCUPATIONAL EXPOSURE HISTORY: He states that he worked for the companies listed in Dates of Exposure during which time he had occupational exposure to silica. Job type: jackhammer, sandblast, furnace, maintance, brickman PAST HISTORY: No history of tuberculosis or cancer. SOCIAL HISTORY: He is married with 1 child. He smoked 2 packs per day for 30 years; quit in 1984. REVIEW OF SYSTEMS: No history of connective tissue disense, cancer chemotherapy or lung irradiation. PULMONARY FUNCTION TESTS: Pulmonary function test performed, results are attached. CHEST X-RAY: see attached sheets. Ray A. Harron, M.D. 688 689 690 Exhibit 5 Dr. Glyn Hilbun, M.D. 4105 Hospital St., Ste. 109 Pascagoula, MS 39581 (228) 762-7868 Name: Joseph A. Anders DOB: 9/15/1932 Age: 69 Phone: (205) 752-2937 Address: 3509 13th Street Northport, AL 35476 Family: Married Number of Legal Children: 2 Smoking History: How many years: 1 or 2 cigars a day for 10 years. The client was advised to stop smoking for their health and the health of those with whom they live. Work History: The client claims exposure to silica while working as a Coater Operator (Asphalt-on Fiberglass Roofing) at: FROM/TO NAME OF EMPLOYER CITY, STATE/SUB-CONTRACTOR 1971-1999 Elk Roofing Tuscaloosa, AL Complaints: Shortness of Breath: Yes Has or Had Cancer: No TB: Yes, 1974 the client indicated that it was bone TB and took medicine for 1 year. Has or Had Connective Tissue Disease: No Surgery in the last 6 months: No Exam: Height: 70 Weight: 250 Enlarged Heart: No Possible Cancer: Yes Comments: RLZ. The client was advised to see their doctor. Ankle Edema: No Fingernails: Clubbing: Yes Cyanosis: No Breath Sounds: Normal Signature: Glyn R. Hilbun, MD Date 04/23/02 691 Exhibit 6 Dr. Kevin Cooper, M.D., M.P.H. 4305 Denny Ave. Pascagoula, MS 39581 (228) 762-2044 Name: Abe E. Collins DOB: 4/27/1945 Age: 57 Phone: (251) 452-1620 Address: 627 Gehrig Ave. Prichard, AL 36610 Family: Married Number of Legal Children: 4 Smoking History: Cigarette ¾ ppd How many years 6 Quit 1987 Work History: The client claims exposure to silica while working at: 1) Alabama Dry Docks, Mobile AL as a Welder, Sandblaster, Start: 1971 Grinder Finish: 1973 2) JB Const., Mobile AL as a Sandblaster, Grinder Start: 1973 Finish: 1975 3) Allied Steel Corp., Saraland AL as a Sandblaster, Grinder Start: 1975 Finish: 2002 Complaints: Shortness of Breath: No Has or Had Cancer: No TB: No Has or Had Connective Tissue Disease: No Surgery in the last 6 months: No Exam: Height: 72 inches Weight: 198 lbs Ankle Edema: No Fingernails: Clubbing Yes Cyanosis No Breath Sounds: Abnormal Comments: Mild Rhonchi Kevin Cooper, M.D., M.P.H. Date: 4/15/02 692 693 694 Exhibit 10 Jay T. Segarra M.D., FACP Board certified in Internal Medicine, Pulmonary Diseases, & Critical Care Camellia Place 2123 Government Street 695 Ocean Springs, Mississippi 39564 Phone/Fax (228) 872-2411 OCCUPATIONAL LUNG DISEASE EVALUATION August 6, 2001 Sykes, Roosevelt DOB: 05/06/47 HISTORY: This is a 54 year old man whose occupational history is as follows: He worked in a foundry from 1965-1993 as a molder, sandblaster, chipper, and grinder. He spent the first five years as a molder. He then spent four years as a sandblaster, and the last 20 years as a molder. In addition to exposure to silica dust he has some exposure to asbestos dust, from firebricks and asbestos-protective clothing. He has smoked one pack of cigarettes weekly for the past 20 years. Family history is non-contributory. He has a personal past medical history limited to hypertension for which he takes Norvasc, potassium supplements, Furosemide, and Cozaar. On systems review he denies significant dyspnea upon exertion, hemoptysis or chest pain. He does have a nonproductive cough especially in the early morning. PHYSICAL EXAM: This is an African-American man in no respiratory distress at rest. Head and neck: No adenopathy or jugular venous distention. Chest: Symmetric expansion. No obvious chest wall deformities. Lungs: Normal palpation and percussion. Clear to auscultation anteriorly and posteriorly to the bases. No rales, wheezes or rhonchi are heard. Heart: Regular rhythm, without murmurs, clicks, rubs, or gallops. Extremities: NO clubbing, cyanosis, or edema. CHEST X-RAY: PA and lateral views of the chest dated 08/06/01 are reviewed for the presence of and classification of pneumoconiosis according to the ILO (1980) classification. Film quality is grade 1. Inspection of the lung parenchyma reveals rounded small opacities in the upper and mid lung zone bilaterally of size and shape Q/Q, ILO profusion 1/1. There are no irregular small opacities in lower lung zones to suggest the presence of asbestosis. Examination of the pleural surfaces demonstrates no pleural plaques, pleural thickening, or pleural calcifications. No parenchymal infiltrates, nodules or masses are present. The trachea is midline. The heart size is normal and the hilar structures are unremarkable. There are no other significant intrathoracic findings. No earlier films are available for comparison. PULMONARY FUNCTION TESTING: Performed in Racine, WI on 08/06/01 using Crapo/Hsu predicted values. Forced vital capacity (FVC) is 3.56 liters (l.), or 78% predicted (pred.). FEV1 is 3.00 1. (82% pred.). FEV1/FVC ratio is 84%. FEF 25%-75% is 3.37 l./sec. (93% pred.). TLC is 5.90 l. (90% pred.). DICO is 86% pred., based on an IVC of 3.48 l. Inspection of the volume-time curves, flow-volume loops and diffusion graphs reveals good performance and reproducibility during those portions of the test. These pulmonary function tests, after race correction, are within normal limits. DIAGNOSIS/IMPRESSION:12345 1. Pulmonary silicosis, based on the appearance of the chest x-ray and the exposure history. The radiographic pattern indicates uncomplicated simple silicosis. 2. No clinical and radiographic evidence for pulmonary asbestosis at this time. PROGNOSIS/RECOMMENDATION: Mr. Sykes Is At Increased Risk For Developing Tuberculosis And Lung Cancer And Should Be Monitored For These Conditions. 696 Recommend Immediate Smoking Cessation. Jay T. Segarra, M.D. 1. Morgan, WKC and GEF, JBL "Asbestos-Related Diseases" in Occupational Lung Diseases, Morgan and Seaton, ed., Third Edition, W B Saunders, Philadelphia 1995 2. "DIAGNOSIS OF NON-MALIGNANT DISEASES RELATED TO ASBESTOS", (Official Statement of the American Thoracic Society), American Review of Respiratory Disease 1986: 134, 363-368. 3. "Asbestos-related Disorders" in Occupational Lung Disorders, W Raymond Parkes, ed., Third Edition; Buttersworth-Heinemann Ltd., London 1994 4. Rom, William N, "Asbestos-Related Diseases" in Environmental & Occupational Medicine, pps. 72-77.2d.Ed., Little Brown & Co.1992. 5. Ernst XX Bourthean J. and Becklake M.R. "Pleural Abnormality as a Cause of Impairment and Disability" in The Third Wave of Asbestos Disease Annals of the New York Academy of Sciences, Volume 643, New York, NY. Exhibit 11 697 Exhibit 12 N & M Testing, Inc. N & M Testing, Inc. has been conducting asbestosis and silicosis screenings for over five years. Our company uses up-to-date technology to ensure the best and quickest screening services available. Our testing is performed by board certified, fully licensed, and NIOSH (National Institute for Occupational Safety and Health) / ATS (American Thoracic Society) approved medical personnel. Our staff consists of qualified professionals possessing extensive training arid experience. We sincerely believe in our company and in our ability to provide you with quality testing services at a very competitive price. Thank you for allowing us to introduce our company and our services to you. We look forward to working with you. 2810 Andrew Avenue Pascagouia, Mississippi 39567 Asbestosis Phone 800.334.2327 Local 228.762.5553 Silicosis Phone 866.745.4221 Local 228.474.7773 Fax 228.762.3330 ASBESTOSIS & SILICOSIS TESTING PERFORMED THROUGHOUT THE UNITED STATES We specialize in providing all of your occupational testing needs. ASBESTOSIS TESTING 1.800.334.2327 SILICOSIS TESTING 1.866.745.4221 Asbestosis Health hazards from asbestos dust have been recognized among workers exposed in a variety of trades, such as boilermakers, paperworkers, laborers, electricians, ironworkers, automotive brake repair workers, and many other trades. Exposure to asbestos may increase the risk of these serious diseases: Asbestosis a chronic lung ailment that can cause shortness of breath, permanent lung damage; and an increased risk of dangerous lung infections. Lung Cancer and various other types of cancer. Mesothelloma a critical lung cancer of the thin membranes lining the chest and abdomen, caused solely by exposure to asbestos. Asbestosis screening is performed by administering chest x-ray, pulmonary function resting, and physical examination. Silicosis Silicosis is a lung disease caused by the inhalation of crystalline silica. Workers in various trades can be exposed to silica, including sandblasters, rock cutters, foundry workers, glass workers and miners. There are three types of silicosis, depending on the concentration of crystalline silica to which the worker is exposed: Chronic Silicosis usually occurs after ten or more years of exposure. Accelerated Silicosis usually occurs from a higher concentration of exposure and develops over five to ten years. Acute Silicosis usually occurs where exposure is the highest and can cause symptoms to develop almost immediately or up to five years. Silicosis screening is performed much like asbestosis screening, using chest x-ray, 698 pulmonary function testing and physical examination. N & M Testing, Inc. Procedures We have various equipment options available that enable us to meet your local and your out-of-town screening needs. We have mobile x-ray units, allowing us to travel to your clients no matter where they may be. If need be, we also have the capability to set up our x-ray units inside of any facility. Our x-rays are performed by registered x-ray technicians. Our company also offers pulmonary function testing. Our pulmonary function tests, or P.F.T.s are performed to meet NIOSH (National Institute for Occupational Safety and Health) qualifications and ATS (American Thoracic Society) standards. Our P.F.T.'s are performed by respiratory therapists and NIOSH certified pulmonary function technicians. In addition to x-rays and P.F.T. tests, we can also provide a reading of the x-ray by a certified B-reader, as well as a physician's hands-on physical examination. This reading and examination, along with the x-ray and P.F.T., will provide you with a full and comprehensive medical report. The results of this entire testing process can be provided to you the same day of the testing. Exhibit 13 SELF SUPPORT R.T.S. mobile clinics are completely self contained and supportive. The units are powered by a 50 kw generator to ensure ample electrical power in all situations. The mobile units are not only functional but very appealing to the eye. Your clients will be impressed not only with the service, but also the comforts such as central air and heat and modern design of our clinics. RESPONSIVENESS R.T.S. is dedicated to the quickest possible service to both our clients and our patients. We maintain 3 complete mobile medical facilities complete with Pulmonary Function machines with ges diffusion, Radiological equipment, audiometry equipment, to mention a few, as well as a 699 complete, licensed, certified and NIOSH (National Institute for Occupational Safety and Health) approved. Physicians and medical staff. You might have been exposed to asbestos if you worked at one of the following plants or in the trade with at least 3 years exposure prior to 1973: 1. Aluminum Plant 2. Auto Mechanic Shop (Asbestos Brakes & Clutches) 3. Boilermakers 4. Carpet Mills w/boilers 5. Carpenters 6. Chemical Plant 7. Electricians 8. Fertilizer Plant, Protochemical Plant 9. Glass Foundries 10. Insulators 11. Ironworkers 12. Laborers 13. Machinists/Millwrights 14. Mine Workers 15. Navy Ships in boiler room 16. Oil Refinery 17. Painters 18. Papermill 19. Pipefitters 20. Power Houses 21. Power Plant 22. Railroad 23. Rubber Plants 24. Shipyard 25. Steel Foundry 26. Steel Mill RESPIRATORY TESTING SERVICES, INC. TESTING FOR ASBESTOSIS DONE LOCALLY CALL FOR APPOINTMENT 1-800-997-8378 700 Thank you for allowing me the time to present Respiratory Testing Services to you. Working as a pipefitter in the building trades for many years. I was exposed to products containing asbestos. I was tested for an asbestos related lueg disense in 1988. The results were positive with an ILO reading of 1/0 which progressed to a reading of 1/1 within 3 years. My ILO reading, which is a measurement of the degree of lung damage, is a perfect example of the progressive nature of this disease. Asbestosis may take approximately 701 25 to 30 years before it is evident on a chest x-ray. Our mobile clinic provides complete medical evaluations by Board Certified. NIOSH (National Board of Occupational Safety and Health) approved Physicians, Radiologic Technologists, Respiratory Therapists and/or Technicians. The screening includes a complete work history, followed by a chest x-ray consisting of 2-4 films which is performed by a registered Radiologic Technologist. Once the x-rays are completed a Pulmonologist. (Lung Specialist) evaluates them. If there is no radiographic evidence of disease after the x-ray has been evaluated, the testing procedure is over and the patient is notified that asbestosis is a progressive disease, and with their exposure history should be re-tested every year and a half to two years. For the patients with positive results, a board certified Respiratory Therapist/Technician will perform a Pulmonary Function Test which will include Spirometry, Lung Volumes, and a Diffusion Test. That are performed by the American Thoracic Society standards. To finish the test a physical exam is done by a Certified Pulmonologist experienced in occupational lung diseases. The Physician then consults with the patient to make a complete medical interpretation. This provides the patient with a thorough understanding of their test results and lung condition. There is no out of pocket expenses to the patient. For those who are diagnosed positive, the cost of the test will be deducted from any recovery made from the manufacturers of asbestos products. When the medical aspect of the testing is over, an attorney or their representative will discuss with the patient their rights, under the law, for compensation due to occupational exposure to asbestos. They will also answer any questions related. Sincerely, Charles E. Foster, Sr. EXPERIENCE AND PERFORMANCE Respiratory Testing Services, Inc. was formed in 1994 to fill a void in the South East. United States. R.T.S. offers local service in our facility at 4362 Midmost. Drive, in Mobile, AL as well as being entirely mobile with all of our diagnostic testing services. We retain on our staff, full time, the following board certified and NIOSH (National Institute for Occupational Safety and Health) approved physicians: Pulmonologist Internal Medicine Pulmonary Disease Critical Care Medicine NIOSH approved B-Reader Internal Medicine Specialist Emergency Medicine Hyperbaric Medicine Audiology Diving Medicine We also maintain board certified and NIOSH approved, CRTTs, RTs, Med Techs, as well as other technical staff with a combined 180+ years of medical experience and expertise. PROFESSIONAL SUPPORT R.T.S. works with state and federal agencies so that at all times, R.T.S. not only meets, but exceeds those standards set forth by government agencies. BACKED BY TECHNOLOGY R.T.S. has spared no expense in equipping the mobile units with state of the art equipment. This all but eliminates equipment break down or flawed test results. All equipment is maintained and calibrated 702 according to NIOSH (National Institute for Occupational Safety and Health) and ATS (American Thoracic Society) standards. 703 704 705 Exhibit 17 N & M, INC. Date: 06/23/97 PULMONARY FUNCTION LAB REPORT First Name: ROBERT E. Last Name: MORGAN Id: C2624 Height(in): 71 Weight(lb): 186 Physician: HARRON Age: 56 Gender: Male Technician: Rhonda Mason Niosh BSA: 2.04 Race: Caucasian Temp: 22 Bar: 761 Diagnosis: Spirometry Ref Cl Pre Rx Pre Rx Post Rx Post Rx Post Rx Meas % Ref Meas % Ref % Chg FVC Liters 4.95 1.12 4.51 91 FEV1 Liters 3.90 0.84 (1.94) (50) FEV1/FVC % 79 8 (43) FEF75-85% L/sec 0.09 FET100% Sec 22.94 FEF25-75% L/sec 3.68 1.67 (0.41) (11) IsoFEF25-75 L/sec 3.68 1.67 (0.41) (11) PEF L/sec 5.08 FEF50% L/sec 0.62 FEF75% L/sec 0.16 Ref Cl Pre Rx Pre Rx Post Rx Post Rx Post Rx Meas % Ref Meas % Ref % Chg PEF L/sec 5.08 FET25-75% Sec 5.53 FET100% Sec 22.94 FIVC Liters 4.95 1.12 (0) PIF L/sec FIV1/FIVC % Vol Extrap Liters 0.17 FEF50/FIF50 FVL ECode 000010 Lung Volumes: (Nitrogen Method) Ref Cl Pre Rx Pre Rx Post Rx Post Rx Post Rx Meas % Ref Meas % Ref % Chg VC Liters 4.95 1.12 4.51 91 TLC Liters 7.16 1.61 8.54 119 RV Liters 2.21 0.76 (4.03) (183) RV/TLC % 31 10 (47) FRC Dit Liters 3.71 1.46 (5.40) (146) VE L/min 8.0 13.8 173 ERV Liters 0.49 IC Liters 3.14 Vt Liters 1.18 f BPM 12 Pulmonary Diffusing Capacity for Carbon Monoxide: Hb: CO Hb: Ref Cl Pre Rx Pre Rx Post Rx Post Rx Meas % Ref Meas % Ref DLCO mL/min/mmHg 36.3 8.2 (14.4) (40) DLCO/VA 1/min/mmHg 5.18 1.40 (2.78) (54) Kroghs K 1/min 2.19 IVC Liters 3.37 FI CH4 % 0.300 706 FE CH4 % 0.188 FI CO % 0.300 FE CO % 0.129 BHT Sec 11.10 CO T.C. Sec 31.2 707 708 709 710 711 712 713 Exhibit 20 RAY A. HARRON, M.D. Diplomate American Board of Radiology Diplomate American Board of Nuclear Medicine 714 2437 Bay Area Blvd. #47 Houston, TX 77058 (409) 933-1264 7 North Flamingo La Marque, TX 77568 (409) 789-1319 O'Quinn, Laminack & Pirtle 440 Louisiana Avenue Houston, TX 77002 RE: Clarence Odom SSN: DOB: 12-16-34 At your request, I have reviewed the occupational history, exposure and medical history as provided to me and a B-reading of a chest x-ray dated 08/07/01 on Mr. Odom. His work history reveals an occupational exposure to silica while he was working as a painter for Ingalls from 1965-1968. My B-reading of the chest x-ray dated 07/27/01, reveals bilateral interstitial fibrosis consistent with silicosis. On the basis of this individual's history of occupational exposure to silica and my reading of his chest x-ray, I feel within a reasonable degree of medical certainty, Clarence Odom has silicosis. Since silica exposure is associated with an increased incident of corpulmonale, progressive pulmonary fibrosis, spontaneous pneumothorax, autoimmune connective tissue diseases such as scleroderma, rheumatoid arthritis, systemic lupus erythematosus and others, tuberculosis, renal complications and lung cancer, this person should be examined frequently by a physician for possible early detection and treatment of these processes. Sincerely, Ray A. Harron, M.D. Ray A. Harron, M.D. DIPLOMATE AMERICAN BOARD OF RADIOLOGY DIPLOMATE AMERICAN BOARD OF NUCLEAR MEDICINE P.O. Box 400 Bridgeport, WV 26330 Wednesday, June 20, 2002 Foster & Harsema 440 Louisiana Ave. Houston, TX 77002 POC 721726 RE: Clarence W. Odom DOB: 12/16/1934 I certify that on 04/12/2002 I examined the above client in Hattlesburg, MS and reviewed a B-reading of the chest x-ray dated 08/07/2001. The client's work history reveals an occupational exposure to various asbestos containing products from 1957-1994, while working for the U.S. Army as a Laborer. This individual complains of abortness of breath. My physical exam reveals there is no clubbing or cyanosis of the fingers. There is no ankle edema. There are abnormal breath sounds, described as; exploratory wheezes in both bases. The client has cancer and the type is car. The client denies having tuberculosis. The client denies having connective tissue disease. The B-reading of this client's chest x-ray reveals findings consistent with asbestosis. On the basis of this client's history of occupational exposure to asbestos and the B-reading of the client's chest x-ray, within a reasonable degree of medical certainty, Clarence Odom has asbestosis. Since asbestos exposure leads to increased incidence of lung cancer, upper 715 respiratory tract cancer, stomach cancer, colon cancer, upper GI tract cancer, lymphoma, pleural and peritoneal mesothelioms, kidney cancer, pancreatic canner as well as other types of cancer, this person should be examined frequently for possible early detection and treatment of these cancers. Sincerely, Ray A. Harron, M.D. Exhibit 21 Ray A. Harron, M.D. DIPLOMATE AMERICAN BOARD OF RADIOLOGY DIPLOMATE AMERICAN BOARD OF NUCLEAR MEDICINE (304) 622-3900 P.O. Box 400 Bridgeport, WV 26330 Wednesday, December 4, 2002 O'Quinn, Laminack & Pirtle 440 Louisiana Ave. Houston, TX 77002 RE: Clyde Ely DOB: 11/01/45 I certify that on 11/08/02 I examined the above client in Pascagoula, MS. The work history provided to me indicates that the client had an occupational exposure to silica from 1972-1991, and two of his job sites were Ingalls and Grigsby and two of his job trades were sandblaster and rigger. The client's chest x-ray reveals the possibility of cancer low and anteriorly, for which the client was advised to see his doctor. The client complains of shortness of breath. My physical exam reveals there is no clubbing or cyanosis of the fingers. There is no ankle edema. There are no abnormal breath sounds. The client denies having cancer. The client denies having tuberculosis. The client denies having connective tissue disease. On the basis of this client's history of occupational exposure to silica and my reading of the client's chest x-ray showing findings consistent with silicosis, within a reasonable degree of medical certainty, Clyde Ely has silicosis. Since silica exposure is associated with an increased incident of cor pulmonale, progressive pulmonary fibrosis, spontaneous pneumothorax, autoimmune connective tissue diseases such as scleroderma, rheumatoid arthritis, systemic lupus erythematosus and others, tuberculosis, renal complications and lung cancer, this person should be examined frequently by his physician for possible early detection and treatment of these processes. Pulmonary Function: See attached Sincerely, Ray A. Harron, M.D. Ray A. Harron, M.D. DIPLOMATE AMERICAN BOARD OF RADIOLOGY DIPLOMATE AMERICAN BOARD OF NUCLEAR MEDICINE (304) 622-3900 P.O. Box 400 Bridgeport, WV 26330 Wednesday, December 4, 2002 The Foster Law Firm 440 Louisiana Ave. Houston, TX 77002 POC 720125 RE: Clyde Ely DOB: 11/01/45 I certify that on 11/08/02 I examined the above client in Pascagoula. MS and reviewed a B-reading of the chest x-ray dated 07/27/01. 716 The work history provided to me indicates that the client had an occupational exposure to asbestos from 1963-1975, and one of his job sites was Ingalls in Pascagoula, MS and one of his job trades was laborer. The client's chest x-ray reveals the possibility of cancer low and anteriorly, for which the client was advised to see his doctor. The client complains of shortness of breath. My physical exam reveals there is no clubbing or cyanosis of the fingers. There is no ankle edema. There are no abnormal breath sounds. The client denies having cancer. The client denies having tuberculosis. The client denies having connective tissue disease. The B-reading of this client's chest x-ray reveals findings consistent with asbestosis. On the basis of this client's history of occupational exposure to asbestos and my B-reading of the client's chest x-ray, within a reasonable degree of medical certainty, Clyde Ely has asbestosis. Since asbestos exposure leads to increased incidence of lung cancer, upper respiratory tract cancer, stomach cancer, colon cancer, upper Of tract cancer, lymphoma, pleutal and peritoneal mesolbelloma, kidney cancer, pancreatic cancer as well as other types of cancer, this person should he examined frequently by his physician for possible early detection and treatment of these processes. Pulmonary Function: See attached Sincerely, Ray A. Harron, M.D. Ray A. Harron, M.D. DIPLOMATE AMERICAN BOARD OF RADIOLOGY DIPLOMATE AMERICAN BOARD OF NUCLEAR MEDICINE 2437 Bay Area Blvd. #47 Houston, TX 77058 (409) 933-1264 7 North Flamingo La Marque, TX 77568 (409) 789-1319 O'Quinn, Laminack & Pirtle 440 Louisiana Avenue Houston, TX 77002 RE: Clarence Johnson DOB: 05-31-52 At your request, I have reviewed the occupational history, exposure and medical history as provided to me and a B-reading of a chest x-ray dated 07-27-01 on Mr. Johnson. The work history reveals an occupational exposure to silica while Mr. Johnson was working as a sandblaster and painter at Environmental Construction Company, Avondale, Mid-South Offshore, and other job sites from 1973-2002. My B-reading of the chest x-ray dated 07-27-02, reveals bilateral interstitial fibrosis consistent with silicosis. On the basis of this individual's history of occupational exposure to silica and my reading of his chest x-ray, I feel within a reasonable degree of medical certainty, Clarence Johnson has silicosis. Since silica exposure is associated with an increased incident of cor pulmonale, progressive pulmonary fibrosis, spontaneous pneumothorax, autoimmune connective tissue diseases such as scleroderma, rheumatoid arthritis, systemic lupus erythematosus and others, tuberculosis, renal complications and lung cancer, this person should be examined frequently by a physician for possible early detection and treatment of these processes. Sincerely, Ray A. Harron, M.D. 717 Ray A. Harron, M.D. DIPLOMATE AMERICAN BOARD OF RADIOLOGY DIPLOMATE AMERICAN BOARD OF NUCLEAR MEDICINE P.O. Box 400 Bridgeport, WV 26330 Wednesday, June 26, 2003 Foster & Harsema 440 Louisiana Avenue Houston, TX 77002 RE: Clarence D. Johnson DOB: 5/31/1952 I certify that on 5/17/2002 I examined the above client in Pascagoula, MS and reviewed a B-reading of the chest x-ray dated 7/27/2001. The client's work history reveals an occupational exposure to various asbestos containing products from 1974-1975, one of the job sites was Avondale Shipyard in Avendate, I.A and one of the trades was Laborer, This individual complains of shortness of breath. My physical exam reveals there is no clubbing or cyanosis of the fingers. There is no ankle edema. There are no abnormal breath sounds. The client denies having cancer. The client denies having tuberculosis. The client denies having connective tissue disease. The B-reading of this client's chest x-ray reveals findings consistent with asbestosis. On the basis of this client's history of occupational exposure to asbestos and the B-reading of the client's chest x-ray, within a reasonable degree of medical certainty, Clarence Johnson has asbestosis. Since asbestos exposure leads to increased incidence of lung cancer, upper respiratory tract cancer, stomach cancer, colon cancer, upper GI tract cancer, lymphoma, pleural and peritoneal mesothelioms, kidney cancer, pancreatic cancer as well as other types of cancer, this person should be examined frequently for possible early detection and treatment of these cancers. Sincerely, Ray A. Harron, M.D. 718 719 Ray A. Harron, M.D. DIPLOMATE AMERICAN BOARD OF RADIOLOGY DIPLOMATE AMERICAN BOARD OF NUCLEAR MEDICINE 2437 Bay Area Blvd. #47 Houston, TX 77058 (409) 933-1264 7 North Flamingo La Marque, TX 77568 (409) 789-1319 POC 719279 RE: Barry Barrett DOB: 11/18/52 At your request, I have reviewed the occupational history, exposure and medical history as provided to me and a B-reading of a chest x-ray dated 07/21/01 on Mr. Barrett. His work history reveals an occupational exposure to asbestos containing products while he was working as a seaman while serving in the U.S. NavyUSS L. Mendel Rivers in Newport, VA from 1972-1976, and as a electrician while working for E & D Electric at various residential sites in Jackson, MS in 1976, My B-reading of the chest x-ray dated 07/21/01 reveals bilateral interstitial fibrosis consistent with asbestosis. On the basis of this individual's history of occupational exposure to asbestos and my reading of his chest x-ray, I feel within a reasonable degree of medical certainty. Barry Barrett has asbestosis. Sincerely, Ray A. Harron, M.D. Ray A. Harron, M.D. DIPLOMATE AMERICAN BOARD OF RADIOLOGY DIPLOMATE AMERICAN BOARD OF NUCLEAR MEDICINE 2437 Bay Area Blvd. #47 Houston, TX 77058 (409) 933-1264 7 North Flamingo La Marque, TX 77568 (409) 789-1319 O'Quinn, Laminack & Pirtle 440 Louisiana Avenue Houston, TX 77002 RE: Barry Barrett DOB: 11-18-52 At your request, I have reviewed the occupational history, exposure and medical history as provided to me and a B-reading of a chest x-ray dated 07-21-01 on Mr. Barrett. The work history reveals an occupational exposure to silica while Mr. Barrett was working as an electrician at E & D Electric and while serving in the Navy from 1974-1991. My B-reading of the chest x-ray dated 07-21-01, reveals bilateral interstitial fibrosis consistent with silicosis. On the basis of this individual's history of occupational exposure to silica and my reading of his chest x-ray, I feel within a reasonable degree of medical certainty, Barry Barrett has silicosis. Since silica exposure is associated with an increased incident of cor pulmonale, progressive pulmonary fibrosis, spontaneous pneumothorax, autoimmune connective tissue diseases such as scleroderma, rheumatoid arthritis, systemic lupus erythematosus and others, tuberculosis, renal complications and lung cancer, this person should be examined frequently by a physician for possible early detection and treatment of these processes. 720 Sincerely, Ray A. Harron, M.D. 721 722 723 724 Exhibit 26 James W. Ballard NIOSH Certified B-Reader 725 3932 Knollwood Drive Birmingham, AL 35243 Phone (205) 967-1689 X-BAY EVALUATION February 14, 2000 Ball, Angelean RTSLVM49 PA and lateral views of the chest dated 10/15/99 are reviewed for the presence of, and classification of pneumoconiosis according to the ILO (1980) classification. Film quality is grade 2 due to slight underexposure. Inspection of the lung parenchyma demonstrates interstitial changes in the mid and lower lung zones bilaterally, consisting of small and irregular opacities of size and shape S/T, profusion 1/0. Pleural plaques are seen face on bilaterally, extent of 3 bilaterally. No parenchymal infiltrates, nodules or masses are seen. The heart is of normal size and the mediastinal structures are unremarkable. CONCLUSION: The above parenchymal and pleural changes are consistent with asbestosis provided the subject's exposure history and period of latency are appropriate. James W. Ballard, M.D. 726 Exhibit 27 June 7, 2004 Asbestos Clerk Law Offices of Alwyn H. Luckey P.O. Box 724 2016 Bienville Blvd. Ocean Springs, MS XXXXX-XXXX Re: Ball, Angelean Chest radiograph(s) dated 10/15/99 is reviewed for the presence of and classification of pneumoconiosis (silicosis) according to the ILO 80 classification. 727 Film quality is grade 2 due to slight underexposure. Inspection of lung parenchyma demonstrates interstitial changes in all six lung zones, consisting of small rounded opacities of size and shape p/q, profusion 1/0. There are no pleural plaques, pleural thickenings or pleural calcifications. No parenchymal infiltrates, nodules or masses are seen. The heart is of normal size and the mediastinal structures are unremarkable. CONCLUSION: I have reviewed the occupational history and chest x-ray of the referenced individual. Based upon that history and the chest x-ray findings compatible with bilateral interstitial lung disease, it is my opinion, to a reasonable degree of medical certainty, that the x-ray changes are due to silicosis, acquired through occupational exposure to silica. James W. Ballard, M.D. 728 729 Exhibit 28 BARRY S. LEVY, M.D., M.P.H., P.C. 20 NORTH MAIN STREET, SUITE 200 POST OFFICE BOX 1230 SHERBORN, MASSACHUSETTS 01770 TELEPHONE: (508) 650-1039 FAX: (508) 655-4811 ELECTRONIC MAIL: [email protected] April 26, 2004 Scott A. Hooper Scott Hooper & Associates 1414 West Clay Street Houston, TX 77019-4943 Re: Samuel Fontaine D.O.B.: 9/21/42 Dear Attorney Hooper: The following represents my preliminary report on Samuel Fontaine. My Background and Experience: I have worked as a medical doctor in the field of occupational and environmental health for more than 25 years. My work in occupational and environmental health has included, education, research, clinical work, consulting, and program direction. I have much experience concerning a wide range of workplace hazards, including silica and other dusts, and their adverse health effects. I am Board-certified in Internal Medicine, Preventive Medicine, and Occupational Medicine. I am a physician licensed to practice in the states of Massachusetts and Connecticut. Further details of my background and experience are described in Appendix A. Methodology: I reviewed the plaintiff's work history, including jobs, employers, and starting and ending dates of employment, as well as a B-reading of the plaintiff's chest x-ray. In addition, I reviewed the pertinent medical and scientific literature concerning silica exposure and its adverse health effects. I applied the Bradford Hill principles in reviewing this body of literature. In coming to my opinions in this case concerning this individual, I considered alternative diagnoses and causes. I also considered latency. Case Summary: Mr. Fontaine was exposed to free crystalline silica from 1967 to 1995 as a teacher who worked around sandblasting for Rosedale Elementary Jr. High in Rosedale, Mississippi. A B-reading of a chest x-ray performed on May 27, 2002, by James W. Ballard, M.D., demonstrated interstitial changes in all six lung zones, consisting of small rounded and irregular opacities of size and shape p/s, profusion 1/0. There were no pleural plaques, pleural thickenings, or pleural calcifications. These parenchymal changes were interpreted as being consistent with silicosis/asbestosis (mixed-dust) disease. Illustrative Pertinent Medical and Scientific Literature: The publications in Appendix B: Silicosis represent illustrative pertinent publications in the peer-reviewed medical and scientific literature concerning silica exposure, which includes, but is not limited to, these publications. Opinion: Based on my examination of materials concerning this case, my review of the literature, and my extensive experience in occupational medicine, I believe, to a reasonable degree of medical probability, that Samuel Fontaine developed silicosis as a result of his occupational exposure to free crystalline silica at Rosedale Elementary Jr. High from 1967 to 1995. 730 I reserve the right to modify this report should further pertinent information become available. Sincerely, Barry S. Levy, M.D., M.P.H. Case Name: Sebell Clark, et al vs Air Liquide America Corp. Case ID: 02-0019 SILICA MDL PLAINTIFF'S SWORN FACT SHEET Name: Fontaine, Samuel Street Address: 16 Toliver Lane City: Cleveland State: MS Date of Birth: 9/21/1942 Date of Death (if applicable): Work History See attached ExhibitA Work History Product Identification See attached ExhibitA Work History. I am making a claim for the following injuries (diseases): Silicosis: X Known Complicating Diseases: Lung Cancer: Rheumatoid Arthritis: Scleroderma: Pulmonary Massive Fibrosis: Lupus: Tuberculosis (TB): Kidney Cancer: Enlarged Heart: Fear of Cancer: X Other: My medical providers are on the attached Exhibit B or will be provided in a supplemental disclosure. My medical testing is listed on attached Exhibit C. I have signed and attached the following authorizations: 1. Medical Authorization 2. Social Security Earnings History Authorization 3. Employment Authorization 4. IRS Authorization (if I am making a claim for lost wages) 5. Veterans Administration Authorization III. Claims At this time, I am making the claims stated in Exhibit D. I declare under penalty of perjury subject to 28 U.S.C. S 1746 that all of the information provided in this Fact Sheet is true and correct to the best of my present memory, knowledge, information and belief, that I have completed the List of Medical Providers and Work History appended hereto (or in a supplement), which are true and correct to the best of my knowledge, information and belief, and that I have provided the authorizations stated in Section II above. I reserve the right to modify or supplement the foregoing information during the discovery process of my case. Fontaine, Samuel 731 732 733 James W. Ballard, M.D. NIOSH Certified B-Reader Licensed B-Reader in Alabama and Florida 4012 Greystone Drive Birmingham, AL P.O. Box 381088 Birmingham, AL 35238 X-RAY EVALUATION May 27, 2002 Re: Fontains, Samuel Chest radiograph(s) dated 04/27/02 is reviewed for the presence of and classification of pneumoconiosis according to the ILO 80 classification. Film quality is grade 2 due to slight underexposure and scapular overlay. Inspection of lung parenchyma demonstrates interstitial changes in all six lung zones, consisting of small rounded and irregular opacities of size and shape p/s, profusion 1/0. There are no pleural plaques, pleural thickenings or pleural calcifications. No parenchymal infiltrates, nodules or masses are seen. The heart is of normal size and the mediastinal structures are unremarkable. Bullae are noted in the right upper lobe. CONCLUSION: The above parenchymal changes are consistent with silicosis/asbestosis (mixed-dust) disease provided the subject's exposure history and period of latency are appropriate. James W. Ballard, M.D. 734 735 Exhibit 29 ARRY S. LEVY, M.D., M.P.H., P.C. 20 NORTH MAIN STREET, SUITE 200 POST OFFICE BOX 1230 SHERBORN, MASSACHUSETTS 01770 TELEPHONE: (508) 650-1039 FAX: (508) 655-4811 ELECTRONIC MAIL: [email protected] May 6, 2004 Skip Edward Lynch Barton and Williams, P.A. 3007 Magnolia Street Pascagoula, MS 39567 Re: James H. Hyatt D.O.B.: 1/6/27 Dear Attorney Lynch: The following represents my preliminary report on James H. Hyatt. My Background and Experience: I have worked as a medical doctor in the field of occupational and environmental health for more than 25 years. My work in occupational and environmental health has included education, research, clinical work, consulting, and program direction. I have much experience concerning a wide range of workplace hazards, including silica and other dusts, and their adverse health effects. I am Board-certified in Internal Medicine, Preventive Medicine, and Occupational Medicine. I am a physician licensed to practice in the states of Massachusetts and Connecticut, Further details of my background and experience are described in Appendix A. Methodology: I reviewed the Plaintiff's Sworn Fact Sheet as well as the attached work history (Exhibit A), list of medical providers and diagnosing physicians (Exhibit B), and medical testing consisting of a B-reading of a chest x-ray (Exhibit C). In addition, I reviewed the pertinent medical and scientific literature concerning silica exposure and its adverse health effects. I applied the Bradford Hill principles in reviewing this body of literature. In coming to my opinions in this case concerning this individual, I examined pertinent information and considered alternative diagnoses and causes. I also considered latency. Case Summary: Mr. Hyatt was exposed to free crystalline silica from 1943 to 1974 as a laborer for Ingall's in Pascagoula, Mississippi. A B-reading of a chest x-ray performed on September 10, 2001, by James W. Ballard, M.D., demonstrated interstitial changes in the mid and lower lung zones bilaterally, consisting of small rounded and irregular opacities of size and shape s/t, profusion 1/0, Diaphragmatic pleural plaques were seen bilaterally. Pleural plaques were seen face on bilaterally. Calcified diaphragmatic pleural plaques were seen. Calcified pleural plaques were seen face on, on the right. These parenchymal changes were interpreted as being consistent with asbestosis/mixed-dust disease (asbestosis and silicosis). Illustrative Pertinent Medical and Scientific Literature: The publications in Appendix B: Silicosis represent illustrative pertinent publications in the peer-reviewed medical and scientific literature concerning silica exposure, which includes, but is not limited to, these publications. Opinion: Based on my examination of materials concerning this case, my review of the literature, and my extensive experience in occupational medicine, I believe, to a reasonable 736 degree of medical probability, that James H. Hyatt developed silicosis as a result of his occupational exposure to free crystalline silica at Ingall's from 1943 to 1974. I reserve the right to modify this report should further pertinent information become available. Sincerely, Barro S. Levy, M.D., M.P.H. SILICA MDL PLAINTIFF'S SWORN FACT SHEET Name: Hyatt, James H. SSN: ______ Street Address: 6124 Wildwood Road City: Moss Point State: MS Date of Birth: 1/6/1927 Date of Death (if applicable): N/A Work History See attached ExhibitA Work History Product Identification See attached ExhibitA Work History I am making a claim for the following injuries (diseases): Silicosis: x 9/10/2001 Known Complicating Diseases and Date Diagnosed:: Lung Cancer: Rheumatoid Arthritis: Scleroderma: Pulmonary Massive Fibrosis: Lupus: Tuberculosis: Kidney Cancer: Enlarged Heart: Fear of Cancer: x Other: Fear of other silica related diseases. My medical providers are on the attached Exhibit B or will be provided in a supplemental Disclosure. My medical testing is listed on attached Exhibit C. II. Authorizations I have signed and attached the following authorizations: 1. Medical Authorization 2. Social Security Earnings History Authorization 3. Employment Authorization 4. IRS Authorization (if I am making a claim for lost wages) 5. Veterans Administration Authorization III. Claims At this time, I am making the claims stated in Exhibit D. I declare under penalty of perjury subject to 28 U.S.C. § 1746 that all of the information provided in this Fact Sheet is true and correct to the best of my present memory, knowledge, information and belief, that I have completed the List of Medical Providers and Work History appended hereto (or in a supplement), which are true and correct to the best of my knowledge, information and belief, and that I have provided the authorizations stated in Section II above. I reserve the right to modify or supplement the foregoing information during the discovery process of my case. 737 Hyatt, James, H. Mervin Andrews, Jr et al Exposure Work History (Also list any other activity for which you claim silica exposure) Types of Products Employer and Dates of Job (List all manufacturers or models you Exposure Site Address Exposure Description remember) Ingalls Pascagoula, MS 1943-1974 laborer Numerous Paper Dust Masks (White), Blasting Equipment, Blasting Sand, Grinders, Sandpaper and others to be discovered Exhibit B Medical Providers and Diagnosing Physicians Please list the Diagnosing Physicians, if any, and medical providers that you can remember seeing during the last 20 years. If you know, please provide the address, city, state and dates of treatment. Also, if you remember having a chest x-ray please check the Chest x-ray box. Doctor or other Date of Health care Diagnosis Chest provider Address Diagnosis or Treatment x-ray Dr. McBroom Pascagoula, MS Internal medicine, 1990-1994 NO check ups Dr. Ross Moss Point, MS family doctor, colds, 1995-1999 NO Dr. Dillard Hurley, MS family doctor, 1999 to present NO general check ups, colds Dr. Rosenburg Ocean Springs, MS physicals and 1999 to present YES breathing check ups Dr. James Ballard Birmingham, AL silicosis September 10, 2001 yes Dr. Barry Levy Sherborn, MA silicosis May 6, 2004 no Exhibit C Medical Testing Please list the medical testing, if any. X-rays, other xerography and PFT results, in Plaintiffs' custody are to be produced. Except Documents that are subject to a claim of counseling expert privilege. Type of testing Date of Testing X-RAY 9/10/2001 James W. Ballard, M.D. X-RAY EVALUATION September 10, 2001 Quality Medical Service P.O. Box 91683 Mobile, AL 36691 Re: Hyatt, James H. Chest radiograph(s) dated 08/23/01 is reviewed for the presence of and classification of pneumoconiosis (silicosis) according to the ILO 80 classification. Film quality is grade 1. Inspection of the lung parenchyma demonstrates interstitial changes in the mid and lower lung zones bilaterally, consisting of small and irregular 738 opacities of size and shape s/t, profusion 1/0. Diaphragmatic pleural plaques are seen bilaterally. Pleural plaques are seen face on bilaterally, extent of 2 bilaterally. Calcified diaphragmatic pleural plaques are seen, extent of 2 bilaterally. Calcified pleural plaque seen face on, on the right, is extent of 2, and extent of 3 on the left. Calcified plaque along the left heart border is extent of 1. Septal (Kerley) lines are noted in the bases. There is an oval density overlying the anterior end of the right third rib. This could represent bone island in the rib; however, parenchymal nodule cannot be excluded from this single study. The heart is of normal size. CONCLUSION: The above findings are most consistent with asbestosis but would be consistent with mixed-dust disease. Recommend comparison with old films to rule out parenchymal nodule in the right mid lung field. James W. Ballard, M.D. 739 Exhibit 30 Jay T. Segarra, M.D., FACP NIOSH Certified B-Reader Board certified in Internal Medicine, Pulmonary Diseases, & Critical Care January 25, 2001 Camellia Place 2123 Government Street Ocean Springs, Mississippi 39564 740 Phone/Fax (228) 872-2411 OCCUPATIONAL LUNG DISEASE EVALUATION January 25, 2001 Hyatt, James 6124 Wildwood Rd. Moss Point, MS 39562 RTS/LM23 DOB: 01/06/27 HISTORY: This is a 74 year old retired shipyard electrician who reports direct, ambient and bystander exposure to various asbestos products during his work in the shipyard from 1943-1989. This is excepting two years in the Navy from 1944-1946 where he worked as a fireman on amphibious assault craft. While in the shipyard he worked in new construction of ships and worked around insulated pipes and boilers He had bystander exposure to dust from insulators, boilermakers and pipefitters regularly, with inconsistent respiratory protection. He handled cable insulation, asbestos cloth and some pipe insulation himself He smoked one pack of cigarettes daily for 20 years, between the ages of 26 and 46 He has no significant past medical history. He takes no medication at present. Family history is non-contributory. On systems review he reports a four or five year history of slowly progressive dyspnea upon exertion which now occurs during all activities that require manual labor or climbing stairs He denies chronic cough or hemoptysis. He has occasional dull chest pain when he is fatigued. This is not related to exertion. PHYSICAL EXAM: This is a pleasant elderly man in no respiratory distress at rest. H: 68; W: 186# . Head and neck. No adenopathy or jugular venous distention. Chest: Symmetric expansion. No obvious chest wall deformities. Lungs: Auscultation of the chest reveals dry inspiratory velcro-type crackles at the posterolateral aspects of both lower lung fields, that do not clear with cough or deep breathing. No wheezes or rhonchi are present. Heart: Regular rhythm without murmurs, clicks, rubs, or gallops. Extremities: No clubbing, cyanosis, or edema. CHEST X-RAY: PA and lateral views of the chest dated 01/25/01 are reviewed for the presence of and classification of pneumoconiosis according to the ILO (1980) classification. Film quality is grade 1. Inspection of the lung parenchyma reveals a diffuse interstitial pattern, consisting of small irregular linear opacities, within the lower lung zones bilaterally, of size and shape S/S, profusion 1/1. Examination of the pleural surfaces reveals obvious bilateral calcified pleural plaques in the en face projection within the mid and lower lung zones, extent 2 bilaterally, with calcification of the lateral thoracic walls, extent 2 bilaterally. There is circumscribed pleural thickening, in profile, along the lateral thoracic walls, width C, extent 1 bilaterally. There are bilateral diaphragmatic pleural plaques with obvious calcification, extent 2 bilaterally. The left heart border is indistinct. No parenchymal infiltrates, nodules or masses are present. The trachea is midline. The mediastinal structures are unremarkable There are no other significant intrathoracic findings. No earlier films are available for comparison, but these changes are practically pathopneumonic for pulmonary asbestosis. PULMONARY FUNCTION TESTING: Performed in Mobile, Alabama on 01/25/01 using Crapo/Hsu predicted values. Forced vital capacity (FVC) is 3.89 liters (1.), or 94% predicted (pred.) FEV1 is 2.68 l. (84% pred) FEV1/FVC ratio is 69%. FEF 25%-75% is 1.67 l./sec. (59% pred.) TLC is 6.75 l. (101% pred.) FRC is 377 I. 741 (106% pred.) DICO is 60% pred., based on an IVC of 3.40 I. Inspection of the volume-time curves, flow-volume loops and diffusion graphs reveals good performance and reproducibility during those portions of the test. These pulmonary function tests demonstrate a slight obstructive defect with normal lung volumes and mildly reduced diffusion capacity in an exsmoker DIAGNOSIS/IMPRESSION:1 2 3 4 5 1. Pulmonary asbestosis, based on the radiographic findings and the exposure history The reduced diffusion capacity provides some physiological correlation for the Interstitial radiographic abnormalities. 2. Asbestos-related pleural disease. 3. Mild chronic airflow obstruction, probably due to a combination of mild chronk obstructive pulmonary disease (COPD) and pulmonary asbestosis. PROGNOSIS/RECOMMENDATION: Due to the long latency period between exposure to asbestos and the onset of clinically significant asbestos-related disease, the patient is at increased risk for the development of bronchogenic carcinoma, mesotheliorna, and certain other cancers, as well as for detenoration in pulmonary function, even in the absence of additional asbestos exposure. Since these conditions may occur many years after exposure has terminated, close clinical follow-up, annual pulmonary re-evaluation, and continued avoidance of tobacco consumption are recommended. Jay T Segarra, M.D. 1. Morgan, WKC and GEF, JBL "Asbestos-Related Diseases" in Occupational Lung Diseases, Morgan and Seaton, ed., Third Edition, W B Saunders, Philadelphia 1995 2. "DIAGNOSIS OF NON-MALIGNANT DISEASES RELATED TO ASBESTOS", (Official Statement of the American Thoracic Society), American Review of Respiratory Disease 1986: 134, 363-368. 3. "Asbestos-related Disorders" in Occupational Lung Disorders, W Raymond Parkes, ed., Third Edition; Buttersworth-Heinemann Ltd., London 1994 4. Rom, William N, "Asbestos-Related Diseases" in Environmental & Occupational Medicine, pps 72-77.2d.Ed., Little Brown & Co.1992. 5. Ernst XX Bourthean J. and Becklake M.R. "Pleural Abnormality as a Cause of Impairment and Disability" in The Third Wave of Asbestos Disease Annals of the New York Academy of Sciences, Volume 643, New York, NY. 742 743 744 RESPIRATORY TESTING SERVICES MOBILE, ALABAMA Date. 01/25/01 Pre Flow Volume Loop HYATT, JAMES LM23 Rel Best % Ref 1 2 3 4 5 6 FvC 4.15 3.89 94 3.56 3.65 3.89 3.51 3.06 3.86 FEV1 3.17 2.68 84 2.39 2.53 2.66 2.26 2.21 2.66 FEV1/FVC 77 69 67 63 69 54 72 69 FEV3/FVC 91 86 85 87 86 81 83 85 FET100% 13.14 12.77 13.39 13.14 19.62 15.11 14.57 FEF25-75% 2.85 1.67 59 1.37 1.56 1.67 1.04 1.59 1.65 FEF25% 5.10 3.80 5.18 5.10 3.96 4.54 5.19 FEF50% 2.19 2.13 2.00 2.19 1.57 1.95 2.30 FEF75% 0.48 0.40 0.48 0.48 0.25 0.51 0.49 PEF 6.88 4.66 6.05 6.01 6.26 5.50 6.88 FVL ECode 000000 000 000 000 000 000 000 FIVC 4.15 3.19 77 3.37 3.46 3.18 2.94 2.17 2.31 PIF 2.23 2.41 1.95 2.23 2.21 1.95 2.36 FEF/FIF50 1.21 0.99 1.14 1.21 0.76 1.01 1.12 745 RESPIRATORY TESTING SERVICES MOBILE, ALABAMA Date: 01/25/01 Pre Lung Volumes HYATT, JAMES LM23 Rel Best % Ref 1 2 TLC 6.66 6.76 101 6.05 5.21 VC 4.15 3.89 94 3.30 3.23 FRC M2 3.54 3.77 106 3.56 3.98 IC 2.74 2.38 86 2.49 2.23 FRV 1.37 0.90 66 0.81 1.00 RV 2.43 2.86 118 2.75 2.98 RV/TLC 37 42 45 48 LCI 8.35 7.41 9.28 Wash Time 1.3 1.1 1.6 Lvel ECode 000000 00 00 VE 12.7 13.0 12.5 Vt 0.71 9.76 0.65 18 17 19 LVel Time 14:01 14:01 14:05 LVel Date 01/25 01/25 01/25 746 RESPIRATORY TESTING SERVICES MOBILE, ALABAMA Date. 01/25/01 Pre Single Breath DLCO HYATT JAMES LM23 Rel Best % Ref 2 3 DLCO 29.4 17.8 80 18.1 17.4 DL Adj 29.4 17.8 60 18.1 17.4 DLCO/VA 4.56 3.59 79 3.53 3.66 DL/VA Adj 3.59 3.53 3.66 VC 3.40 3.50 3.31 VA 4.94 5.75 4.74 BHT 10.19 10.04 10.33 FI CH4 0.300 0.300 0.300 FE CH4 0.190 0.187 0.192 FI CO 0.300 0.300 0.300 FE CO 0.112 0.113 0.111 DLCO ECode 0110 110 010 DLCO Date 01/25 01/25 01/25 DLCO Time 14:03 14:10 14:14 747 Exhibit 31 Occupational Diagnostics P.O. Box 331 Ocean Springs, MS XXXXX-XXXX XXX-XXX-XXXX Silicosis Evaluation Summary Wednesday, February 26, 2003 Test Results with hands on Medical Examination Margaret Johnson Test Date: February 22, 2003 PA & lateral views of chest X-rays confirmed the presence of increased pulmonary parenchymal markings. Film quality grade 1. There is increased prepondurance of interstitial lung tracings in lower lobes bilaterally. On closer examination of the bilateral lobar markings, there are multiple enhanced lucent circular opacities. These are disparate, and are prominent in both PA and lateral films. There is moderate presence of bronchial cuffing. Chest X-ray findings in consort with the physical exam and exposure history revealed a diagnosis of primary silicosis. The physical examination is hallmarked by audible but coarse rhonci with minimum to moderate rales on auscultation. Manual examination of the chest revealed both tactile and vocal fremitus. Diagnosis Silicosis This report relates only to the diagnosis of occupational lung diseases including exposure to asbestos or silica asbestos-related diseases, and is not intended to serve as a comprehensive medical evaluation. H. Todd Coulter, M.D. HTC/cjp Exhibit A Exposure Work History (also list any other activity for Plaintiff Johnson, Margaret which you claim silica exposure) Andrew Washington Employer and Dates of Job Types of Products Exposure Site Address Exposure Description (List all manufacturers or models you remember) Spartus Corporation Louisville MS 1964 1994 Inspector paint, fillers, sand, white paper dust masks, sanders, sandpaper, grinders, grinding wheels, grinding pads, air compressors Zenith Chicago IL 1952 1963 Inspector paint, fillers, sand, white paper dust masks, sanders, sandpaper, grinders, grinding wheels, grinding pads, air compressors Exhibit B Medical Providers and Plaintiff Johnson, Margaret Diagnosing Physicians Andrew Washington Doctor or other Health Date of Diagnosis Chest care provider Address Diagnosis or Treatment x-ray Dr. Todd Coulter Ocean Springs MS Silicosis 2/22/2003 Yes Dr. Ard, Louisville, MS Cold/Flu 1980 to present Yes Dr. Whitehead, Meridian, MS Asbestosis 2002 Yes Dr. Plavac, Meridian, MS Heart 2000 to present Yes 748 Exhibit 32 Prince, et al. v. Pearl River Sand & Gravel Co., Inc., et al.; 2:03-392 SILICA MDL PLAINTIFF'S SWORN FACT SHEET Name: Raymond Eugene Goodwin SSN: Street Address: P.O. Box 371 City: Dora State: Alabama Date of Birth: 10/27/33 Date of Death (if applicable): Work History See attached ExhibitA Work History Product Identification See attached ExhibitA Work History. I am making a claim for the following injuries (diseases): Silicosis: X Known Complicating Diseases: Lung Cancer Rheumatoid Arthritis Scleroderma Pulmonary Massive Fibrosis Lupus Tuberculosis (TB) Kidney Cancer Enlarged Heart Fear of Cancer X Other: My medical providers are on the attached Exhibit B or will be provided in a supplemental disclosure. My medical testing is listed on attached Exhibit C. II. Authorizations I have signed and attached the following authorizations: 1. Medical Authorization 2. Social Security Earnings History Authorization 3. Employment Authorization 4. IRS Authorization (if I am making a claim for lost wages) 5. Veterans Administration Authorization III. Claims At this time, I am making the claims stated in Exhibit D. I declare under penalty of perjury subject to 28 U.S.C. S 1746 that all of the information provided in this Fact Sheet is true and correct to the best of my present memory, knowledge, information and belief, that I have completed the List of Medical Providers and Work History appended hereto (or in a supplement), which are true and correct to the best of my knowledge, information and belief, and that I have provided the authorizations stated in Section II above. I reserve the right to modify or supplement the foregoing information during the discovery process of my case. Raymond Eugene Goodwin 749 Exhibit A Exposure Work History (Also list any other activity for which you claim silica exposure) Types of Products Employer and Dates of Job (List all manufacturers or Exposure Site Address Exposure Description models you remember) Ingall Iron Birmingham, AL 1969-1970 In Plant Truck bag sand, (Mfg Unknown) drive blast equipment, (Mfg Unknown) grinders, grinding wheels, grinding pads, (Mfg Unknown) cutting saws, cutting equipment, (Mfg Unknown) air sweeping equipment, (Mfg Unknown) paint products, fillers, (Glidden) sandblasting equipment, (Mfg Unknown) United Gunite Florence, AL 1994-12/1/95 Mechanic, in-house bulk sand, (Mfg Unknown) bag sand, (Mfg and in Unknown) pots, (Mfg Unknown) field compressors, hoses, nozzles, (Ingersoll Rand) blast equipment, (Mfg Unknown) bag/baghouses, (Mfg Unknown) grinders, grinding wheels, grinding pads, (Mfg Unknown) cutting saws, cutting equipment, (Mfg Unknown) jack hammers, (Mfg Unknown) sandblasting equipment, (Mfg Unknown) US Steel Gary, IN 1958-1959 Steel grinder disposable dust mask, (Mfg Unknown) Company cartridge respirator, (Mfg Unknown) non-air fed hood, (Mfg Unknown) compressors, hoses, nozzles, (Mfg Unknown) grinders, grinding wheels, grinding pads, (Mfg Unknown) cutting saws, cutting equipment, (Mfg Unknown) Exhibit B Medical Providers and Diagnosing Physicians Please list the Diagnosing Physician, if any, and medical providers that your can remember seeing during the last 20 years. If you know, please provide the address, city, state and dates of treatment. Also, if you remember having a chest x-ray, please check the Chest x-ray box. Doctor or Date of other Health Diagnosis Chest care provider Address Diagnosis or Treatment X-Ray Thomas Milko, M.D. Main Street; Graysville, Alabama General Care 1993 present Yes Douglas Modlin, M.D. Princeton Medical Towers; Prostate 2002 present Yes Birmingham, Alabama George H. Martindale, M.D. 65 Kingsway, Mobile, AL 36608 Silicosis 3/19/02 No 750 Exhibit C Medical Testing Please list the medical testing, if any. X-rays, other xerographs and PFT results, in Plaintiffs' custody or control are to be produced. Except documents that are subject to a claim of consulting expert privilege. Type of testing Date of Testing Results Pulmonary Function Test 3/19/02 FVC: 113%; TLC: 108%; DLCO: 69%; FEV1FVC: 56%; FVC Score: 4.84; FEV1 Score: 2.72; FEV1: 82% Exhibit D Claims I am making the following claims, at this time, against the following Defendants. Defendant Type of Claim Air Liquide America Corporation, Successor to design defect, marketing defect, negligence, gross negligence and Big Three Industries, Inc. d/b/a Sanstorm Delaware civil conspiracy Corporation American Optical Corporation design defect, marketing defect, negligence, gross negligence and civil conspiracy Ameron International Corporation design defect, marketing defect, negligence, gross negligence and civil conspiracy Ameron, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Ash Grove Cement Company, d/b/a Quickcrete design defect, marketing defect, negligence, gross negligence and of Jackson, d/b/a Quickcrete, d/b/a Quickcrete civil conspiracy 751 Material Company, d/b/a Precision Packaging Inc. of Jackson Atlas Copco Compressors, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Bacou USA Safety, Inc. f/k/a Survivair, Inc. design defect, marketing defect, negligence, gross negligence and d/b/a Survivair civil conspiracy Better Minerals & Aggregate Company design defect, marketing defect, negligence, gross negligence and civil conspiracy Big Three Industries, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Binks Manufacturing Company design defect, marketing defect, negligence, gross negligence and civil conspiracy Blast/Coast Systems, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Blue Ridge Sand & Gravel, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Bob Schmidt, Inc. and Schmidt Manufacturing design defect, marketing defect, negligence, gross negligence and Company civil conspiracy Bowen Tools, Inc. and its division Sanstrom design defect, marketing defect, negligence, gross negligence and Company civil conspiracy Bowto, Inc. f/k/a Bowen Tools, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Briggs-Weaver Company design defect, marketing defect, negligence, gross negligence and civil conspiracy Buckner Rentals Service, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy C & S Transportation, Inc., f/k/a C & S Trucking, design defect, marketing defect, negligence, gross negligence and Inc. d/b/a Dependable Abrasives civil conspiracy Cataphote, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Cesco Corp. design defect, marketing defect, negligence, gross negligence and civil conspiracy Clark Sales and Rentals, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Clark Sand Company, Inc. and Clark Sales and design defect, marketing defect, negligence, gross negligence and Rentals, Inc. civil conspiracy Clemco Industries, Corp. design defect, marketing defect, negligence, gross negligence and civil conspiracy Complete Abrasive Blasting Systems, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Consolidated Materials, Inc. formerly Jahnke design defect, marketing defect, negligence, gross negligence and Services, Inc. civil conspiracy Conway Industrial Supply, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Custom Aggregates & Grinding, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Custom Crete design defect, marketing defect, negligence, gross negligence and civil conspiracy 752 Dalloz Safety, Inc. f/k/a WGM Safety Corporation design defect, marketing defect, negligence, gross negligence and d/b/a Willson Safety Products civil conspiracy Dee-Blast Industries, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Dependable Abrasives, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Devilbliss Air Power Co. f/k/a Devilbliss Corporation design defect, marketing defect, negligence, gross negligence and civil conspiracy Dyckerhoff, Inc. civil conspiracy E.D. Bullard Company design defect, marketing defect, negligence, gross negligence and civil conspiracy Eastern Safety Equipment Company, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Empire Abrasive Equipment Company, L.P. design defect, marketing defect, negligence, gross negligence and civil conspiracy Empire Abrasive Equipment Corporation design defect, marketing defect, negligence, gross negligence and civil conspiracy F & S Abrasive Company, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Figgie International, Inc., individually and f/k/a design defect, marketing defect, negligence, gross negligence and and/or successor in interest to Safety Supply civil conspiracy America Corporation dba Scott Technology, Inc. Flexo Products, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy General Refractories Company civil conspiracy Glendale Protective Technologies, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Graco Enterprises, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Grefco, Inc. civil conspiracy Gulf Coast Industrial & Supply Co. design defect, marketing defect, negligence, gross negligence and civil conspiracy Gulf Coast Industrial Supply, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy H.S. Cover Corporation a/k/a Pro-Tech design defect, marketing defect, negligence, gross negligence and Respirators civil conspiracy Hanson Aggregates Central, Inc. f/k/a Pioneer design defect, marketing defect, negligence, gross negligence and Concrete of Texas, Inc. f/k/a Pioneer South Central, civil conspiracy Inc. Hanson Building Materials America, Inc. civil conspiracy Homes Technical Sand, Inc. a/k/a Technical design defect, marketing defect, negligence, gross negligence and Sands civil conspiracy Humble Sand & Gravel, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Humble Sand Co., Inc. civil conspiracy Ideal Basic Industries, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy 753 Inco Safety Products Company, as parent company design defect, marketing defect, negligence, gross negligence and of WGM Safety Products and as successor civil conspiracy in interest to Willson, a division of Inco Safety Products Independent Gravel, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Ingersoll-Rand Company design defect, marketing defect, negligence, gross negligence and civil conspiracy Inland Manufacturing design defect, marketing defect, negligence, gross negligence and civil conspiracy Jebco Abrasives, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Jet Sands, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy John Barten, individually, and d/b/a John Barten design defect, marketing defect, negligence, gross negligence and Company and JB Industries Sand civil conspiracy Kehm Equipment, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Kelco Sales & Engineering Company, a division design defect, marketing defect, negligence, gross negligence and of Polley, Inc. civil conspiracy Key Houston, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Komp Equipment Company, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Kramer Industries, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Larry Hess & Associates, Inc. d/b/a Blast-It-All design defect, marketing defect, negligence, gross negligence and civil conspiracy Lockheed Martin Corporation, successor in interest design defect, marketing defect, negligence, gross negligence and to Martin Marietta Corporation, successor civil conspiracy to Wedron Silica Company Lone Star Industries, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Louis M. Gerson Co., Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Mine Safety Appliances Company design defect, marketing defect, negligence, gross negligence and civil conspiracy Minnesota Mining & Manufacturing Company design defect, marketing defect, negligence, gross negligence and civil conspiracy Mississippi Valley Silica Company, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy MMLJ, Inc. civil conspiracy Moldex-Metric, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Norton Company (Safety Products Division-USA design defect, marketing defect, negligence, gross negligence and Norton Company), individually and as successor civil conspiracy in interest to Welsh and Welsh, a division of Textron Oglebay Norton Industrial Sands, Inc., f/k/a design defect, marketing defect, negligence, gross negligence and Texas Mining Company civil conspiracy 754 Ottawa Silica Company design defect, marketing defect, negligence, gross negligence and civil conspiracy P.K. Lindsay Company design defect, marketing defect, negligence, gross negligence and civil conspiracy Pangborn Corporation design defect, marketing defect, negligence, gross negligence and civil conspiracy Parmelee Industries, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Pauli & Griffin Company design defect, marketing defect, negligence, gross negligence and civil conspiracy Pauli Systems, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Pearl River Sand & Gravel Co., Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Pearl Sand of Louisiana, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Phillips Building Supply of Laurel, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Pioneer Concrete of Arkansas, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Polley, Inc. d/b/a Kelco Sales & Engineering design defect, marketing defect, negligence, gross negligence and Company and d/b/a Kelco Sales & Engineering civil conspiracy Porter Warner Industries, LLC civil conspiracy Precision Packaging, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Premium Packaging, Ltd. a/k/a Quikrete design defect, marketing defect, negligence, gross negligence and Materials civil conspiracy PTR, Inc. d/b/a H.S. Cover Company design defect, marketing defect, negligence, gross negligence and civil conspiracy Pulmosan Safety Equipment Corporation design defect, marketing defect, negligence, gross negligence and civil conspiracy Ransburg Corporation (formerly Devilbliss Industrial design defect, marketing defect, negligence, gross negligence and Products Corporation, successor to The civil conspiracy Devilbliss Company) Safety Supply American Corporation a/k/a Standard design defect, marketing defect, negligence, gross negligence and Glove & Safety Equipment formerly Se & civil conspiracy SC, formerly Safety Engineering and Supply Sandair MS, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Sanstorm Company design defect, marketing defect, negligence, gross negligence and civil conspiracy Sanstorm, Inc., d/b/a Delware Sanstorm, Inc. (A design defect, marketing defect, negligence, gross negligence and Division of Bowen Tools, Inc.) civil conspiracy Schmidt Manufacturing, Inc. civil conspiracy Schramm, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Scott Aviation, a div. of Scott Technologies, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy 755 Siebe North, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Sly, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Southern Silica of Louisiana, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Specialty Sand Company, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Standard Equipment civil conspiracy Standard Equipment Company, Inc. civil conspiracy Standard Sand & Silica Company design defect, marketing defect, negligence, gross negligence and civil conspiracy Standard Sand Company design defect, marketing defect, negligence, gross negligence and civil conspiracy Sullair Corporation design defect, marketing defect, negligence, gross negligence and civil conspiracy Survivair, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Technical Sand Company design defect, marketing defect, negligence, gross negligence and civil conspiracy Technical Sands, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Textron, Inc., individually and as successor in design defect, marketing defect, negligence, gross negligence and interest to Welsh and Welsh, a division of civil conspiracy Textron The Carborundum Company design defect, marketing defect, negligence, gross negligence and civil conspiracy The Morie Company design defect, marketing defect, negligence, gross negligence and civil conspiracy The Quikrete Companies design defect, marketing defect, negligence, gross negligence and civil conspiracy The Tool Center design defect, marketing defect, negligence, gross negligence and civil conspiracy The Vallen Company design defect, marketing defect, negligence, gross negligence and civil conspiracy Thorstenberg Materials Company, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Truman's Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Tyco International (US), Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy U.S. Silica Company design defect, marketing defect, negligence, gross negligence and civil conspiracy U.S. Silica Company, f/k/a Pennsylvania Glass design defect, marketing defect, negligence, gross negligence and Sand Corporation and Ottawa Silica Company, civil conspiracy and as successor in interest to Texas Industrials Minerals Company Unimin Corporation design defect, marketing defect, negligence, gross negligence and civil conspiracy 756 Vallen Safety Supply Company design defect, marketing defect, negligence, gross negligence and civil conspiracy Vulcan Materials Company design defect, marketing defect, negligence, gross negligence and civil conspiracy Wedron Silica Company design defect, marketing defect, negligence, gross negligence and civil conspiracy WGM Safety Corporation, d/b/a Willson Safety design defect, marketing defect, negligence, gross negligence and Products, and as successor in interest to Willson, civil conspiracy a Division of Inco Safety Products Wheelabrator-Frye, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Wheeler Protective Apparel, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Exhibit 33 Prince, et al. v. Pearl River Sand & Gravel Co., Inc., et al.; 2:03-392 SILICA MDL PLAINTIFF'S SWORN FACT SHEET Name: James Earl King Sr. SSN: Street Address: 2800 Roy Webb Road City: Jacksonville State: Alabama Date of Birth: 1/3/45 Date of Death (if applicable): Work History See attached Exhibit A Work History Product Identification See attached ExhibitA Work History. I am making a claim for the following injuries (diseases): Silicosis: X Known Complicating Diseases: Lung Cancer Rheumatoid Arthritis Scleroderma Pulmonary Massive Fibrosis Lupus Tuberculosis (TB) Kidney Cancer Enlarged Heart Fear of Cancer X Other: My medical providers are on the attached Exhibit B or will be provided in a supplemental disclosure. My medical testing is listed on attached Exhibit C. II. Authorizations I have signed and attached the following authorizations: 1. Medical Authorization 2. Social Security Earnings History Authorization 3. Employment Authorization 4. IRS Authorization (if I am making a claim for lost wages) 5. Veterans Administration Authorization III. Claims At this time, I am making the claims stated in Exhibit D. I declare under penalty of perjury subject to 28 U.S.C. S 1746 that all of the information provided in this Fact Sheet is true and correct to the best of my present memory, knowledge, information and belief, that I have completed the List of Medical Providers and Work History appended hereto (or in a supplement), which 757 are true and correct to the best of my knowledge, information and belief, and that I have provided the authorizations stated in Section II above. I reserve the right to modify or supplement the foregoing information during the discovery process of my case. James Earl King Sr. Exhibit A Exposure Work History (Also list any other activity for which you claim silica exposure) Types of Products Employer and Dates of Job (List all manufacturers Exposure Site Address Exposure Description or models you remember) Tractor & Anniston, AL 1971-1990 Heavy bulk sand, (Mfg Unknown) Equipment Equipment pots, (Mfg Unknown) Company Mechanic compressors, hoses, nozzles, (Mfg Unknown) blast equipment, (Mfg Unknown) sanders, (Mfg Unknown) sandpaper, (Mfg Unknown) grinders, grinding wheels, grinding pads, (Mfg Unknown) shakeout equipment, (Mfg Unknown) cutting saws, cutting equipment, (Mfg Unknown) jack hammers, (Mfg Unknown) brick cutters, (Mfg Unknown) masonry tile, brick or mortar, (Mfg Unknown) paint products, fillers, (Mfg Unknown) sheetrock, (Mfg Unknown) rock drilling equipment, (Mfg Unknown) drills and drill bits, (Mfg Unknown) sandblasting equipment, (Mfg Unknown) mining equipment, (Mfg Unknown) quarry equipment, (Mfg Unknown) Exhibit B Medical Providers and Diagnosing Physicians Please list the Diagnosing Physician, if any, and medical providers that your can remember seeing during the last 20 years. If you know, please provide the address, city, state and dates of treatment. Also, if you remember having a chest x-ray, please check the Chest x-ray box. Doctor or other Date of Health care Diagnosis or Chest provider Address Diagnosis Treatment X-Ray George P. LaFleur, M.D. 1465 5th Avenue; General Care 2000 present No Jacksonville, Alabama George H. Martindale, M.D. 65 Kingsway, Mobile, AL 36608 Silicosis 4/23/02 No 758 Exhibit C Medical Testing Please list the medical testing, if any, X-rays, other xerographs and PFT results, in Plaintiffs' custody or control are to be produced. Except documents that are subject to a claim of consulting expert privilege. Type of testing Date of Testing Results Pulmonary Function Test 4/23/02 FVC: 69%; TLC: 83%; DLCO: 64%; FEV1FVC: 78%; FVC Score: 3.52; FEV1 Score: 2.75; FEV1: 69% Exhibit D Claims I am making the following claims, at this time, against the following Defendants. Defendant Type of Claim Air Liquide America Corporation, Successor to design defect, marketing defect, negligence, gross negligence and Big Three Industries, Inc. d/b/a Sanstorm Delaware civil conspiracy Corporation American Optical Corporation civil conspiracy Ameron International Corporation civil conspiracy 759 Ameron, Inc. civil conspiracy Ash Grove Cement Company, d/b/a Quickcrete design defect, marketing defect, negligence, gross negligence and of Jackson, d/b/a Quickcrete, d/b/a Quickcrete civil conspiracy Material Company, d/b/a Precision Packaging Inc. of Jackson Atlas Copco Compressors, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Bacou USA Safety, Inc. f/k/a Survivair, Inc. civil conspiracy d/b/a Survivair Better Minerals & Aggregate Company design defect, marketing defect, negligence, gross negligence and civil conspiracy Big Three Industries, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Binks Manufacturing Company civil conspiracy Blast/Coast Systems, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Blue Ridge Sand & Gravel, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Bob Schmidt, Inc. and Schmidt Manufacturing design defect, marketing defect, negligence, gross negligence and Company civil conspiracy Bowen Tools, Inc. and its division Sanstrom design defect, marketing defect, negligence, gross negligence and Company civil conspiracy Bowto, Inc. f/k/a Bowen Tools, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Briggs-Weaver Company civil conspiracy Buckner Rentals Service, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy C & S Transportation, Inc., f/k/a C & S Trucking, design defect, marketing defect, negligence, gross negligence and Inc. d/b/a Dependable Abrasives civil conspiracy Cataphote, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Cesco Corp. design defect, marketing defect, negligence, gross negligence and civil conspiracy Clark Sales and Rentals, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Clark Sand Company, Inc. and Clark Sales and design defect, marketing defect, negligence, gross negligence and Rentals, Inc. civil conspiracy Clemco Industries, Corp. design defect, marketing defect, negligence, gross negligence and civil conspiracy Complete Abrasive Blasting Systems, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Consolidated Materials, Inc. formerly Jahnke design defect, marketing defect, negligence, gross negligence and Services, Inc. civil conspiracy Conway Industrial Supply, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Custom Aggregates & Grinding, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Custom Crete design defect, marketing defect, negligence, gross negligence and civil conspiracy 760 Dalloz Safety, Inc. f/k/a WGM Safety Corporation civil conspiracy d/b/a Willson Safety Products Dee-Blast Industries, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Dependable Abrasives, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Devilbliss Air Power Co. f/k/a Devilbliss design defect, marketing defect, negligence, gross negligence and Corporation civil conspiracy Dyckerhoff, Inc. civil conspiracy E.D. Bullard Company civil conspiracy Eastern Safety Equipment Company, Inc. civil conspiracy Empire Abrasive Equipment Company, L.P. design defect, marketing defect, negligence, gross negligence and civil conspiracy Empire Abrasive Equipment Corporation design defect, marketing defect, negligence, gross negligence and civil conspiracy F & S Abrasive Company, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Figgie International, Inc., individually and f/k/a civil conspiracy and/or successor in interest to Safety Supply America Corporation dba Scott Technology, Inc. Flexo Products, Inc. civil conspiracy General Refractories Company civil conspiracy Glendale Protective Technologies, Inc. civil conspiracy Graco Enterprises, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Grefco, Inc. civil conspiracy Gulf Coast Industrial & Supply Co. design defect, marketing defect, negligence, gross negligence and civil conspiracy Gulf Coast Industrial Supply, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy H.S. Cover Corporation a/k/a Pro-Tech civil conspiracy Respirators Hanson Aggregates Central, Inc. f/k/a Pioneer design defect, marketing defect, negligence, gross negligence and Concrete of Texas, Inc. f/k/a Pioneer South Central, civil conspiracy Inc. Hanson Building Materials America, Inc. civil conspiracy Homes Technical Sand, Inc. a/k/a Technical design defect, marketing defect, negligence, gross negligence and Sands civil conspiracy Humble Sand & Gravel, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Humble Sand Co., Inc. civil conspiracy Ideal Basic Industries, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Inco Safety Products Company, as parent company civil conspiracy of WGM Safety Products and as successor in interest to Willson, a division of Inco Safety Products 761 Independent Gravel, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Ingersoll-Rand Company design defect, marketing defect, negligence, gross negligence and civil conspiracy Inland Manufacturing design defect, marketing defect, negligence, gross negligence and civil conspiracy Jebco Abrasives, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Jet Sands, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy John Barten, individually, and d/b/a John Barten design defect, marketing defect, negligence, gross negligence and Company and JB Industries Sand civil conspiracy Kehm Equipment, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Kelco Sales & Engineering Company, a division design defect, marketing defect, negligence, gross negligence and of Polley, Inc. civil conspiracy Key Houston, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Komp Equipment Company, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Kramer Industries, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Larry Hess & Associates, Inc. d/b/a Blast-It-All design defect, marketing defect, negligence, gross negligence and civil conspiracy Lockheed Martin Corporation, successor in interest design defect, marketing defect, negligence, gross negligence and to Martin Marietta Corporation, successor civil conspiracy to Wedron Sillca Company Lone Star Industries, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Louis M. Gerson Co., Inc. civil conspiracy Mine Safety Appliances Company civil conspiracy Minnesota Mining & Manufacturing Company design defect, marketing defect, negligence, gross negligence and civil conspiracy Mississippi Valley Silica Company, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy MMLJ, Inc. civil conspiracy Moldex-Metric, Inc. civil conspiracy Norton Company (Safety Products Division-USA design defect, marketing defect, negligence, gross negligence and Norton Company), individually and as successor civil conspiracy in interest to Welsh and Welsh, a division of Textron Oglebay Norton Industrial Sands, Inc., f/k/a design defect, marketing defect, negligence, gross negligence and Texas Mining Company civil conspiracy Ottawa Silica Company design defect, marketing defect, negligence, gross negligence and civil conspiracy P.K. Lindsay Company design defect, marketing defect, negligence, gross negligence and civil conspiracy Pangborn Corporation design defect, marketing defect, negligence, gross negligence and civil conspiracy 762 Parmelee Industries, Inc. civil conspiracy Pauli & Griffin Company design defect, marketing defect, negligence, gross negligence and civil conspiracy Pauli Systems, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Pearl River Sand & Gravel Co., Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Pearl Sand of Louisiana, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Phillips Building Supply of Laurel, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Pioneer Concrete of Arkansas, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Polley, Inc. d/b/a Kelco Sales & Engineering design defect, marketing defect, negligence, gross negligence and Company and d/b/a Kelco Sales & Engineering civil conspiracy Porter Warner Industries, LLC civil conspiracy Precision Packaging, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Premium Packaging, Ltd. a/k/a Quikrete design defect, marketing defect, negligence, gross negligence and Materials civil conspiracy PTR, Inc. d/b/a H.S. Cover Company civil conspiracy Pulmosan Safety Equipment Corporation design defect, marketing defect, negligence, gross negligence and civil conspiracy Ransburg Corporation (formerty Devilbliss Industrial design defect, marketing defect, negligence, gross negligence and Products Corporation, successor to The civil conspiracy Devilbliss Company) Safety Supply American Corporation a/k/a Standard civil conspiracy Glove & Safety Equipment formerty Se & SC, formerty Safety Engineering and Supply Sandair MS, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Sanstorm Company design defect, marketing defect, negligence, gross negligence and civil conspiracy Sanstorm, Inc., d/b/a Delware Sanstorm, Inc. (A design defect, marketing defect, negligence, gross negligence and Division of Bowen Tools, Inc.) civil conspiracy Schmidt Manufacturing, Inc. civil conspiracy Schramm, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Scott Aviation, a div. of Scott Technologies, Inc. civil conspiracy Siebe North, Inc. civil conspiracy Sly, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Southern Silica of Louisiana, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Specialty Sand Company, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Standard Equipment civil conspiracy 763 Standard Equipment Company, Inc. civil conspiracy Standard Sand & Silica Company design defect, marketing defect, negligence, gross negligence and civil conspiracy Standard Sand Company design defect, marketing defect, negligence, gross negligence and civil conspiracy Sullair Corporation design defect, marketing defect, negligence, gross negligence and civil conspiracy Survivair, Inc. civil conspiracy Technical Sand Company design defect, marketing defect, negligence, gross negligence and civil conspiracy Technical Sands, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Textron, Inc., Individually and as successor design defect, marketing defect, negligence, gross negligence and in interest to Welsh end Welsh, a division of civil conspiracy Textron The Carborundum Company design defect, marketing defect, negligence, gross negligence and civil conspiracy The Morie Company design defect, marketing defect, negligence, gross negligence and civil conspiracy The Quikrete Companies design defect, marketing defect, negligence, gross negligence and civil conspiracy The Tool Center design defect, marketing defect, negligence, gross negligence and civil conspiracy The Vallen Company design defect, marketing defect, negligence, gross negligence and civil conspiracy Thorstenberg Materials Company, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Truman's Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Tyco International (US), Inc. civil conspiracy U.S. Silica Company design defect, marketing defect, negligence, gross negligence and civil conspiracy U.S. Silica Company, f/k/a Pennsylvania Glass design defect, marketing defect, negligence, gross negligence and Sand Corporation and Ottawa Silica Company, civil conspiracy and as successor in interest to Texas Industrials Minerals Company Unimin Corporation design defect, marketing defect, negligence, gross negligence and civil conspiracy Vallen Safety Supply Company civil conspiracy Vulcan Materials Company design defect, marketing defect, negligence, gross negligence and civil conspiracy Wedron Silica Company design defect, marketing defect, negligence, gross negligence and civil conspiracy WGM Safety Corporation, d/b/a Willson Safety civil conspiracy Products, and as successor in interest to Willson, a Division of Inco Safety Products Wheelabrator-Frye, Inc. design defect, marketing defect, negligence, gross negligence and civil conspiracy Wheeler Protective Apparel, Inc. civil conspiracy 764 Exhibit 34 Case Name: Sebell Clark, et al vs Air Liquide America Corp. Case ID: 02-0019 SILICA MDL PLAINTIFF'S SWORN FACT SHEET Name: Alexander, Ola SSN: Street Address: 324 Ohio City: Greenville State: MS Date of Birth: 7/10/1957 Date of Death (if applicable): Work History See attached Exhibit A Work History Product Identification See attached Exhibit A Work History. I am making a claim for the following injuries (diseases): Silicosis: X Known Complicating Diseases: Lung Cancer: Rheumatoid Arthritis: Scleroderma: Pulmonary Massive Fibrosis: Lupus: Tuberculosis (TB): Kidney Cancer: Enlarged Heart: Fear of Cancer: X Other: My medical providers are on the attached Exhibit B or will be provided in a supplemental disclosure. My medical testing is listed on attached Exhibit C. I have signed and attached the following authorizations: 1. Medical Authorization 2. Social Security Earnings History Authorization 3. Employment Authorization 4. IRS Authorization (if I am making a claim for lost wages) 5. Veterans Administration Authorization III. Claims At this time, I am making the claims stated in Exhibit D. I declare under penalty of perjury subject to 28 U.S.C. S 1746 that all of the information provided in this Fact Sheet is true and correct to the best of my present memory, knowledge, information and belief, that I have completed the List of Medical Providers and Work History appended hereto (or in a supplement), which are true and correct to the best of my knowledge, information and belief, and that I have provided the authorizations stated in Section II above. I reserve the right to modify or supplement the foregoing information during the discovery process of my case. Ola Alexander 765 766 Exhibit C Medical Testing Please list the medical testing, if any. X-rays, other xerographs and PFT results, in Plaintiffs' custody or control are to be produced. Except documents that are subject to a claim of consulting expert privilege. Type of Testing Date of Diagnosis Silicosis/Mixed Dust (asbestosis) 1/14/2002 Pulmonary Function Test 7/10/2003 767 768 769 770 771 772 773 Exhibit D Claims I am making the following claims, at this time, against the following Defendants. Defendant Type of Claim Air Liquide America Corporation, Individually, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and And As Successor By Merger Of Big Three Abetting other Defendants and other Parties in the tortuous acts Industries, Inc., D/B/A Sanstorm committed against the Plaintiffs. American Sand and Gravel Company, Individually Strict Products Liability, Design Defect, Marketing Defect, Negligence, and as Successor By Merger Of Hattiesburg Breach of Express and Implied Warranties, Conspiracy, Brick Works Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Baroid Drilling Fluids, Inc. Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortuous acts committed against the Plaintiffs. Big Three Industries, Inc. Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortuous acts committed against the Plaintiffs. Binks Manufacturing Company Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortuous acts committed against the Plaintiffs. Blain Sand & Gravel, Inc. Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Bowen Tools, Inc., And Its Division, Sanstorm Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Company Abetting other Defendants and other Parties in the tortuous acts committed against the Plaintiffs. Bowto, Inc., F/K/A Bowen Tools, Inc. Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortuous acts committed against the Plaintiffs. Briggs-Weaver Company Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Clark Sales And Rentals, Inc. Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Clark Sand Company, Inc. Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Clemco Industries, Inc. Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortuous acts committed against the Plaintiffs. Custom Aggregates and Grinding, Inc. Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. D & B Sand & Gravel Company, Inc. Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. 774 Dependable Abrasives, Inc. Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Devilbiss Air Power Co., F/K/A Devilbiss Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Corporation Abetting other Defendants and other Parties in the tortuous acts committed against the Plaintiffs. Eastern Safety Equipment Company, Inc. Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortuous acts committed against the Plaintiffs. E.D. Bullard Company Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortuous acts committed against the Plaintiffs. Empire Abrasive Equipment Company Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortuous acts committed against the Plaintiffs. Envirotech Corporation Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortuous acts committed against the Plaintiffs. Feltus Brothers, Ltd., Individually and as Successor Strict Products Liability, Design Defect, Marketing Defect, Negligence, By Merger Of Feltus Brothers Hardware Breach of Express and Implied Warranties, Conspiracy, Company Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Flex-Kleen Corporation Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortuous acts committed against the Plaintiffs. Flexo Products, Inc. Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortuous acts committed against the Plaintiffs. Gardner Denver, Inc. Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortuous acts committed against the Plaintiffs. Glendale Optical Company, Inc. Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortuous acts committed against the Plaintiffs. Green Brothers Gravel Company Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Hanson Aggregates Central, Inc., F/K/A Pioneer Strict Products Liability, Design Defect, Marketing Defect, Negligence, Concrete Of Texas, Inc. Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Humble Sand & Gravel, Inc. Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Ideal Basic Industries, Inc. Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. 775 Illinois Tool Works, Inc., Individually And As Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Successor By Merger Of Ransburg Corporation, Abetting other Defendants and other Parties in the tortuous acts (Formerly Devilbiss Industries Products committed against the Plaintiffs. Corporation Ingersoll-Rand Company Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. J.J. Ferguson Sand & Gravel, Inc. Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Jebco Abrasives, Inc. Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. John Barton, Individually, And d/b/a John Barton Strict Products Liability, Design Defect, Marketing Defect, Negligence, Company And JB Industries Sand Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Kelco Sales & Engineering Company Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortuous acts committed against the Plaintiffs. Kelco Sales Associates, Inc. Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortuous acts committed against the Plaintiffs. Key Houston (A Division Of Jacksonville Shipyards, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Inc.) Abetting other Defendants and other Parties in the tortuous acts committed against the Plaintiffs. Lockheed Martin Corporation, Successor In Interest Strict Products Liability, Design Defect, Marketing Defect, Negligence, To Martin Marietta Corporation (Successor Breach of Express and Implied Warranties, Conspiracy, To Wedron Silica Company) Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Lone Star Industries Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Louis M. Gerson, Inc. Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortuous acts committed against the Plaintiffs. Lowery Sand & Gravel, Inc. Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Martin Marietta Materials, Inc., Individually Strict Products Liability, Design Defect, Marketing Defect, Negligence, And As Successor In Interest To R & S Haulers Breach of Express and Implied Warranties, Conspiracy, And Distributors, Inc. Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Metropolitan Life Insurance Company (Metlife) Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortuous acts committed against the Plaintiffs. 776 Mine Safety Appliances Company (MSA) Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortuous acts committed against the Plaintiffs. 3M Company, f/k/a Minnesota Mining & Manufacturing Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Company (3m) Abetting other Defendants and other Parties in the tortuous acts committed against the Plaintiffs. MMLJ, Inc. D/B/A Sanstorm Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Moldex-Metric, Inc. Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortuous acts committed against the Plaintiffs. Norton Company (Safety Products Division-USA Strict Products Liability, Design Defect, Marketing Defect, Negligence, Norton Company) Individually, And As Breach of Express and Implied Warranties, Conspiracy, Successor In Interest To Welsh And Welsh, A Fraud, Negligent Misrepresentation, and/or Aiding and Abetting Division Of Textron other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Oglebay Norton Industrial Sands, Inc., f/k/a Strict Products Liability, Design Defect, Marketing Defect, Negligence, Texas Mining Company Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Ottawa Silica Company Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Pangborn Corporation Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Parmelee Industries, Inc. d/b/a Cesco Safety Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Products Company Abetting other Defendants and other Parties in the tortuous acts committed against the Plaintiffs. P.K. Lindsey Company Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortuous acts committed against the Plaintiffs. Pearl Sands, Inc. Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Pioneer Cement Company Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Pioneer Concrete Of America, Inc., d/b/a Pioneer Strict Products Liability, Design Defect, Marketing Defect, Negligence, Concrete Of Texas, Inc. Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Pulmosan Safety Equipment Corporation Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortuous acts committed against the Plaintiffs. 777 PTR, Inc., d/b/a H.S. Cover Company Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Quickrete Materials, Inc. Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Rental Service Corporation, a/k/a and/or f/k/a Strict Products Liability, Design Defect, Marketing Defect, Negligence, Rental Service Corporation, USA, Inc., Individually Breach of Express and Implied Warranties, Conspiracy, And As Successor By Merger Of Walker Fraud, Negligent Misrepresentation, and/or Aiding and Abetting Jones Equipment, Inc. other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Sanstorm, Inc., d/b/a Delaware Sanstorm, Inc., Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and (A Division Of Bowen Tools, Inc.) Abetting other Defendants and other Parties in the tortuous acts committed against the Plaintiffs. Schmidt Manufacturing, Inc. Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortuous acts committed against the Plaintiffs. Schramm, Inc. Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortuous acts committed against the Plaintiffs. Scott Aviation, A Division Of Scott Technologies Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortuous acts committed against the Plaintiffs. Scott Technologies, Inc., Individually and f/k/a Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Figgie International, Inc., Individually And f/k/a Abetting other Defendants and other Parties in the tortuous acts and/or as Successor in Interest to Safety Supply committed against the Plaintiffs. America Corporation Sherwin-Williams Company Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Siebe North, Inc., n/k/a North Safety Products, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Inc. Abetting other Defendants and other Parties in the tortuous acts committed against the Plaintiffs. Southern Silica Of Louisiana Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Specialty Sand Company Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Sullair Corporation Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortuous acts committed against the Plaintiffs. Survivair, Inc. Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortuous acts committed against the Plaintiffs. Technical Sands, Inc., f/k/a Homes Technical Strict Products Liability, Design Defect, Marketing Defect, Negligence, Sands, Inc. Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting 778 other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Textron, Inc. Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortuous acts committed against the Plaintiffs. Thorstenberg Materials Company, Inc. Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortuous acts committed against the Plaintiffs. Truman's, Inc. Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortuous acts committed against the Plaintiffs. U.S. Silica Company, f/k/a Pennsylvania Glass Strict Products Liability, Design Defect, Marketing Defect, Negligence, Sand Corporation And Ottawa Silica Company, Breach of Express and Implied Warranties, Conspiracy, And As Successor in Interest To Texas Industrials Fraud, Negligent Misrepresentation, and/or Aiding and Abetting Minerals Company other Defendants and other Parties in the tortious acts committed against the Plaintiffs. The Vallen Corporation Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortuous acts committed against the Plaintiffs. Vallen Safety Supply Company Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortuous acts committed against the Plaintiffs. Vulcan Materials Company Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. W.G.M. Safety Products, Doing Business As Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Willson Safety Products Abetting other Defendants and other Parties in the tortuous acts committed against the Plaintiffs. Wedron Silica Company Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Wheelabrator-Frye, Inc. Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortuous acts committed against the Plaintiffs. Wheeler Protective Apparel, Inc. Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortuous acts committed against the Plaintiffs. W.J. Runyon & Son, Inc. Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Bacou-Dalloz a/k/a Dalloz Safety Inc., f/k/a Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Wgm Safety Corporation, d/b/a Willson Safety Abetting other Defendants and other Parties in the tortuous acts Products committed against the Plaintiffs. USF Surface Preparation Group, A Division Of Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and U.S. Filter Abetting other Defendants and other Parties in the tortuous acts committed against the Plaintiffs. Aero Corporation, Individually And As Successor-In-Interest Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and To American Optical Corporation, Abetting other Defendants and other Parties in the tortuous acts And As Successor-In-Interest To Cabot committed against the Plaintiffs. Safety Corporation 779 American Optical Corporation d/b/a Aero Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Corporation Abetting other Defendants and other Parties in the tortuous acts committed against the Plaintiffs. U.S. Safety Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortuous acts committed against the Plaintiffs. John Doe Defendants 1-50 Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Exhibit 35 Case Name: Sebell Clark, et al -vs- Air Liquide America Corp. Case ID: 02-0019 SILICA MDL PLAINTIFF'S SWORN FACT SHEET Name: Andrews, Quinton SSN: Street Address: 13024 State Highway Y City: Kennett State: MO Date of Birth: 2/23/1934 Date of Death (if applicable): Work History See attached Exhibit A Work History Product Identification See attached Exhibit A Work History. I am making a claim for the following injuries (diseases): Silicosis: X Known Complicating Diseases: Lung Cancer: Rheumatoid Arthritis: Scleroderma: Pulmonary Massive Fibrosis: Lupus: Tuberculosis (TB): Kidney Cancer: Enlarged Heart: Fear of Cancer: X Other: My medical providers are on the attached Exhibit B or will be provided in a supplemental disclosure. My medical testing is listed on attached Exhibit C. I have signed and attached the following authorizations: 1. Medical Authorization 2. Social Security Earnings History Authorization 3. Employment Authorization 4. IRS Authorization (if I am making a claim for lost wages) 5. Veterans Administration Authorization III. Claims At this time, I am making the claims stated in Exhibit D. I declare under penalty of perjury subject to 28 U.S.C. § 1746 that all of the information provided in this Fact Sheet is true and correct to the best of my present memory, knowledge, information and belief, that I have completed the List of Medical Providers and Work History appended hereto (or in a supplement), which are true and correct to the best of my knowledge, information and belief, and that I have provided the authorizations 780 stated in Section II above. I reserve the right to modify or supplement the foregoing information during the discovery process of my case. Quinton Andrews 781 Exhibit C Medical Testing Please list the medical testing, if any. X-rays, other xerographs and PFT results, in Plaintiffs' custody or control are to be produced. Except documents that are subject to a claim of consulting expert privilege. Type of Testing Date of Diagnosis Silicosis/Asbestosis (Mixed Dust) 7/2/2002 782 783 784 785 786 Exhibit D Claims I am making the following claims, at this time, against the following Defendants. Defendant Type of Claim Air Liquide America Corporation, Individually, Strict Products Liability, Design Defect, Marketing Defect, Negligence, And As Successor By Merger Of Big Three Breach of Express and Implied Warranties, Conspiracy, Industries, Inc., D/B/A Sanstorm Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortuous acts committed against the Plaintiffs. American Sand and Gravel Company, Individually Strict Products Liability, Design Defect, Marketing Defect, Negligence, and as Successor By Merger Of Hattiesburg Breach of Express and Implied Warranties, Conspiracy, Brick Works Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Baroid Drilling Fluids, Inc. Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Big Three Industries, Inc. Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Binks Manufacturing Company Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Blain Sand & Gravel, Inc. Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Bowen Tools, Inc., And Its Division, Sanstorm Strict Products Liability, Design Defect, Marketing Defect, Negligence, Company Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Bowto, Inc., F/K/A Bowen Tools, Inc. Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Briggs-Weaver Company Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Clark Sales And Rentals, Inc. Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Clark Sand Company, Inc. Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Clemco Industries, Inc. Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. 787 Custom Aggregates and Grinding, Inc. Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. D & B Sand & Gravel Company, Inc. Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Dependable Abrasives, Inc. Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Devilbiss Air Power Co., F/K/A Devilbiss Corporation Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Eastern Safety Equipment Company, Inc. Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. E.D. Bullard Company Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Empire Abrasive Equipment Company Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Envirotech Corporation Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Feltus Brothers, Ltd., Individually and as Successor Strict Products Liability, Design Defect, Marketing Defect, Negligence, By Merger Of Feltus Brothers Hardware Breach of Express and Implied Warranties, Conspiracy, Company Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Flex-Kleen Corporation Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Flexo Products, Inc. Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Gardner Denver, Inc. Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Glendale Optical Company, Inc. Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Green Brothers Gravel Company Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. 788 Hanson Aggregates Central, Inc., F/K/A Pioneer Strict Products Liability, Design Defect, Marketing Defect, Negligence, Concrete Of Texas, Inc. Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Humble Sand & Gravel, Inc. Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Ideal Basic Industries, Inc. Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Illinois Tool Works, Inc., Individually And As Strict Products Liability, Design Defect, Marketing Defect, Negligence, Successor By Merger Of Ransburg Corporation, Breach of Express and Implied Warranties, Conspiracy, (Formerly Devilbiss Industries Products Corporation Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Ingersoll-Rand Company Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. J.J. Ferguson Sand & Gravel, Inc. Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Jebco Abrasives, Inc. Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. John Barton, Individually, And d/b/a John Barton Strict Products Liability, Design Defect, Marketing Defect, Negligence, Company And JB Industries Sand Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Kelco Sales & Engineering Company Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Kelco Sales Associates, Inc. Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Key Houston (A Division Of Jacksonville Shipyards, Strict Products Liability, Design Defect, Marketing Defect, Negligence, Inc.) Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Lockheed Martin Corporation, Successor In Interest Strict Products Liability, Design Defect, Marketing Defect, Negligence, To Martin Marietta Corporation (Successor Breach of Express and implied Warranties, Conspiracy, To Wedron Sillca Company) Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. 789 Lone Star Industries Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Louis M. Gerson, Inc. Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Lowery Sand & Gravel, Inc. Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Martin Marietta Materials, Inc., Individually And Strict Products Liability, Design Defect, Marketing Defect, Negligence, As Successor In Interest To R & S Haulers And Breach of Express and Implied Warranties, Conspiracy, Distributors, Inc. Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Metropolitan Life Insurance Company (Metlife) Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Mine Safety Appliances Company (MSA) Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. 3M Company, f/k/a Minnesota Mining & Manufacturing Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Company (3m) Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. MMLJ, Inc. D/B/A Sanstorm Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Moldex-Metric, Inc. Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Norton Company (Safety Products Division-USA Strict Products Liability, Design Defect, Marketing Defect, Negligence, Norton Company) Individually, And As Successor Breach of Express and Implied Warranties, Conspiracy, In Interest To Welsh And Welsh, A Division Fraud, Negligent Misrepresentation, and/or Aiding and Abetting Of Textron other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Oglebay Norton Industrial Sands, Inc., f/k/a Texas Strict Products Liability, Design Defect, Marketing Defect, Negligence, Mining Company Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Ottawa Silica Company Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Pangborn Corporation Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Parmelee Industries, Inc. d/b/a Cesco Safety Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Products Company Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. 790 P.K. Lindsey Company Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Pearl Sands, Inc. Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Pioneer Cement Company Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Pioneer Concrete Of America, Inc., d/b/a Pioneer Strict Products Liability, Design Defect, Marketing Defect, Negligence, Concrete Of Texas, Inc. Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Pulmosan Safety Equipment Corporation Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. PTR, Inc., d/b/a H.S. Cover Company Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Quickrete Materials, Inc. Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Impiled Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Rental Service Corporation, a/k/a and/or f/k/a Strict Products Liability, Design Defect, Marketing Defect, Negligence, Rental Service Corporation, USA, Inc., individually Breach of Express and Implied Warranties, Conspiracy, And As Successor By Merger Of Walker Fraud, Negligent Misrepresentation, and/or Aiding and Abetting Jones Equipment, Inc. other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Sanstorm, Inc., d/b/a Delaware Sanstorm, Inc., Strict Products Liability, Design Defect, Marketing Defect, Negligence, (A Division Of Bowen Tools, Inc.) Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Schmidt Manufacturing, Inc. Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Schramm, Inc. Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Scott Aviation, A Division Of Scott Technologies Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Scott Technologies, Inc., Individually and f/k/a Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Figgie International, Inc., Individually And f/k/a Abetting other Defendants and other Parties in the tortious acts 791 and/or Successor In Interest to Safety Supply committed against the Plaintiffs. America Corporation Sherwin-Williams Company Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Slebe North, Inc., n/k/a North Safety Products, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Inc. Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Southern Silica Of Louisiana Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Specialty Sand Company Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Sullair Corporation Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Survivair, Inc. Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Technical Sands, Inc., f/k/a Homes Technical Strict Products Liability, Design Defect, Marketing Defect, Negligence, Sands, Inc. Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Textron, Inc. Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Thorstenberg Materials Company, Inc. Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Truman's, Inc. Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. U.S. Silica Company, f/k/a Pennsylvania Glass Strict Products Liability, Design Defect, Marketing Defect, Negligence, Sand Corporation And Ottawa Silica Company, Breach of Express and Implied Warranties, Conspiracy, And As Successor In Interest To Texas Industrials Fraud, Negligent Misrepresentation, and/or Aiding and Abetting Minerals Company other Defendants and other Parties in the tortious acts committed against the Plaintiffs. The Vallen Corporation Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Vallen Safety Supply Company Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. 792 Vulcan Materials Company Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. W.G.M. Safety Products, Doing Business As Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Willson Safety Products Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Wedron Silica Company Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Wheelabrator-Frye, Inc. Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Wheeler Protective Apparel, Inc. Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. W.J. Runyon & Son, Inc. Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Bacou-Dalloz a/k/a Dalloz Safety Inc., f/k/a Wgm Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Safety Corporation, d/b/a Willson Safety Products Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. USF Surface Preparation Group, A Division Of Strict Products Liability, Design Defect, Marketing Defect, Negligence, U.S. Filter Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Aero Corporation, Individually And As Successor-In-Interest Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and To American Optical Corporation, Abetting other Defendants and other Parties in the tortious acts And As Successor-In-Interest To Cabot committed against the Plaintiffs. Safety Corporation American Optical Corporation d/b/a Aero Corporation Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. U.S. Safety Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. John Doe Defendants 1-50 Strict Products Liability, Design Defect, Marketing Defect, Negligence, Breach of Express and Implied Warranties, Conspiracy, Fraud, Negligent Misrepresentation, and/or Aiding and Abetting other Defendants and other Parties in the tortious acts committed against the Plaintiffs. Exhibit 36 CASE NAME AND CASE NUMBER: MDL 1553; In Re Silica Products Liability Litigation This document applies to: Maxine Woods, et al. v. Pulmosan Safety Equipment Company, et al. MDL number 04-025 793 SILICA MDL PLAINTIFF'S SUPPLEMENTAL SWORN FACT SHEET Name: David Brewer Street Address: 10471 Road 315 City: Union State: Mississippi ZIP: 39365 Date of Birth: 09-28-59 Date of Death (if applicable): Not-applicable. Work History See attached Exhibit A Work History Product Identification See attached Exhibit A Work History. I am making a claim for the following injuries (diseases): Silicosis: Yes Known Complicating Diseases: Lung Cancer: Rheumatoid Arthritis: Scleroderma: Pulmonary Massive Fibrosis: Lupus: Tuberculosis (TB): Kidney Cancer: Enlarged Heart: Fear of Cancer: Other: My medical providers are on the attached Exhibit B or will be provided in a supplemental disclosure. Copies of my B-read and diagnosis report are attached hereto as Exhibit C. II. Authorizations I have signed and attached the following authorizations: 1. Medical Authorization 2. Social Security Earnings History Authorization 3. Employment Authorization 4. IRS Authorization (if I am making a claim for lost wages) 5. Veterans Administration Authorization III. Claims At this time, I am making the claims stated in Exhibit D. I declare under penalty of perjury subject to 28 U.S.C. § 1746 that all of the information provided in this Fact Sheet is true and correct to the best of my present memory, knowledge, information and belief, that I have completed the List of Medical Providers and Work History appended hereto (or in a supplement), which are true and correct to the best of my knowledge, information and belief, and that I have provided the authorizations stated in Section II above. I reserve the right to modify or supplement the foregoing information during the discovery process of my case. David Brewer Exhibit A Exposure Work History (Also list any other activity for which you claim silica exposure) Types of Products Employer and Dates of Job (List all manufacturers 794 Exposure Site Address Exposure Description or models you remember) See Attached See Attached See Attached See Attached See Attached Exposure Work History Client: David Brewer Employer and Exposure Site: Brewer Tile (Self Employed) Beg Date: 1/1/2000 End Date: 12/31/2001 Present? 0 Presently Employed "0"=no "1"=yes Contracted to: Address: 1119 Donnybrook Street, Jackson, MS Title/Trade: Flooring installation & Ceiling Additional Duties: Types of Products (check all manufacturers or models you remember using at this job) ″ Air Fed Hood ″ Air Sweeping Equip ″ Bag Sand ″ Bag/Baghouses ″ Blast Equip ″ Brick Cutter ″ Bulk Sand ″ Cartridge Respirator ″ Ceramic Equip ″ Compressors, Hoses, Nozzles ″ Cutting Saws, Cutting Equip ″ Disposable Dust Masks ″ Drills, Drill Bits ″ Jack Hammer ″ Grinders, Grinding Wheels, Grinding Pads ″ Mining Equip 795 ″ Masonry Tile, Brick, Mortar ″ Non-Air Fed Hoods ″ Pots ″ Paint Products, Fillers ″ Quarry Equip ″ Sandpaper ″ Refractory Products & Brick ″ Rock Drilling Equip ″ Sanders ″ Shakeout Equip ″ Sheetrock ″ Silica Flour ″ Other Products Various Floor patches List other activity for which you claim silica exposure Activity: Demolition Work Year of this activity: Activity: Year of this activity: Activity: Year of this activity: Sanding & sweeping floors in prep. for new floors Exposure Work History Client: David Brewer Employer and Exposure Site: Kassel Tile Beg Date: 1/1/1999 End Date: 12/31/2001 Present? 0 Presently Employed "0"=no "1"=yes Contracted to: Address: PO Box 225, Ridgeland, MS 39158 Title/Trade: Flooring installation & Ceiling Additional Duties: Types of Products (check all manufacturers or models you remember using at this job) ″ Air Fed Hood ″ Air Sweeping Equip ″ Bag Sand ″ Bag/Baghouses ″ Blast Equip ″ Brick Cutter ″ Bulk Sand ″ Cartridge Respirator ″ Ceramic Equip ″ Compressors, Hoses, Nozzles ″ Cutting Saws, Cutting Equip ″ Disposable Dust Masks ″ Drills, Drill Bits ″ Jack Hammer ″ Grinders, Grinding Wheels, Grinding Pads ″ Mining Equip ″ Masonry Tile, Brick, Mortar ″ Non-Air Fed Hoods ″ Pots ″ Paint Products, Fillers ″ Quarry Equip ″ Sandpaper ″ Refractory Products & Brick ″ Rock Drilling Equip ″ Sanders ″ Shakeout Equip ″ Sheetrock ″ Silica Flour ″ Other Products Various Floor patches 796 List other activity for which you claim silica exposure Activity: Demolition Work Year of this activity: Activity: Year of this activity: Activity: Year of this activity: Sanding & sweeping floors in prep. for new floors. Exposure Work History Client: David Brewer Employer and Exposure Site: Kassel Tile Beg Date: 1/1/1983 End Date: 12/31/1995 Present? 0 Presently Employed "0"=no "1"=yes Contracted to: Address: PO Box 225, Ridgeland, MS 39158 Title/Trade: Flooring installation & Ceiling Additional Duties: Types of Products (check all manufacturers or models you remember using at this job) ″ Air Fed Hood ″ Air Sweeping Equip ″ Bag Sand ″ Bag/Baghouses ″ Blast Equip ″ Brick Cutter ″ Bulk Sand ″ Cartridge Respirator ″ Ceramic Equip ″ Compressors, Hoses, Nozzles ″ Cutting Saws, Cutting Equip ″ Disposable Dust Masks ″ Drills, Drill Bits ″ Jack Hammer ″ Grinders, Grinding Wheels, Grinding Pads ″ Mining Equip ″ Masonry Tile, Brick, Mortar ″ Non-Air Fed Hoods ″ Pots ″ Paint Products, Fillers ″ Quarry Equip ″ Sandpaper ″ Refractory Products & Brick ″ Rock Drilling Equip ″ Sanders ″ Shakeout Equip ″ Sheetrock ″ Silica Flour ″ Other Products Various floor patches List other activity for which you claim silica exposure Activity: Demolition Work Year of this activity: Activity: Year of this activity: Activity: Year of this activity: Sanding & sweeping floors in prep for new floors Exposure Work History Client: David Brewer Employer and Exposure Site: Branton Flooring Installations, Inc. Beg Date: 1/1/2001 797 End Date: 12/31/2001 Present? 0 Presently Employed "0"=no "1"=yes Contracted to: Address: PO Box 720938, Byram, MS 39272 Title/Trade: Carpet & Flooring Additional Duties: Types of Products (check all manufacturers or models you remember using at this job) ″ Air Fed Hood ″ Air Sweeping Equip ″ Bag Sand ″ Bag/Baghouses ″ Blast Equip ″ Brick Cutter ″ Bulk Sand ″ Cartridge Respirator ″ Ceramic Equip ″ Compressors, Hoses, Nozzles ″ Cutting Saws, Cutting Equip ″ Disposable Dust Masks ″ Drills, Drill Bits ″ Jack Hammer ″ Grinders, Grinding Wheels, Grinding Pads ″ Mining Equip ″ Masonry Tile, Brick, Mortar ″ Non-Air Fed Hoods ″ Pots ″ Paint Products, Fillers ″ Quarry Equip ″ Sandpaper ″ Refractory Products & Brick ″ Rock Drilling Equip ″ Sanders ″ Shakeout Equip ″ Sheetrock ″ Silica Flour ″ Other Products Various floor patches List other activity for which you claim silica exposure Activity: Demolition Work Year of this activity: Activity: Year of this activity: Activity: Year of this activity: Sanding & sweeping floors in prep for new floors Exposure Work History Client: David Brewer Employer and Exposure Site: Engle Inc. Beg Date: 1/1/1998 End Date: 12/31/1999 Present? 0 Presently Employed "0"=no "1"=yes* Contracted to: Address: PO Box 4622, Jackson, MS 39296 Title/Trade: Flooring installation & Ceilings Additional Duties: Types of Products (check all manufacturers or models you remember using at this job) ″ Air Fed Hood ″ Air Sweeping Equip ″ Bag Sand ″ Bag/Baghouses ″ Blast Equip 798 ″ Brick Cutter ″ Bulk Sand ″ Cartridge Respirator ″ Ceramic Equip ″ Compressors, Hoses, Nozzles ″ Cutting Saws, Cutting Equip ″ Disposable Dust Masks ″ Drills, Drill Bits ″ Jack Hammer ″ Grinders, Grinding Wheels, Grinding Pads ″ Mining Equip ″ Masonry Tile, Brick, Mortar ″ Non-Air Fed Hoods ″ Pots ″ Paint Products, Fillers ″ Quarry Equip ″ Sandpaper ″ Refractory Products & Brick ″ Rock Drilling Equip ″ Sanders ″ Shakeout Equip ″ Sheetrock ″ Silica Flour ″ Other Products Various floor patches List other activity for which you claim silica exposure Activity: Demolition Work Year of this activity: Activity: Year of this activity: Activity: Year of this activity: Sanding & sweeping floors in prep for new floors Exposure Work History Client: David Brewer Employer and Exposure Site: Fulton Inc. Beg Date: 1/1/2000 End Date: 12/31/2000 Present? 0 Presently Employed "0"=no "1"=yes Contracted to: Address: 533 Gulf Line Road, Pearl, MS 39208 Title/Trade: Flooring installation Additional Duties: Types of Products (check all manufacturers or models you remember using at this job) ″ Air Fed Hood ″ Air Sweeping Equip ″ Bag Sand ″ Bag/Baghouses ″ Blast Equip ″ Brick Cutter ″ Bulk Sand ″ Cartridge Respirator ″ Ceramic Equip ″ Compressors, Hoses, Nozzles ″ Cutting Saws, Cutting Equip ″ Disposable Dust Masks ″ Drills, Drill Bits ″ Jack Hammer ″ Grinders, Grinding Wheels, Grinding Pads ″ Mining Equip ″ Masonry Tile, Brick, Mortar ″ Non-Air Fed Hoods ″ Pots ″ Paint Products, Fillers 799 Quarry Equip ″ Sandpaper ″ Refractory Products & Brick ″ Rock Drilling Equip ″ Sanders ″ Shakeout Equip ″ Sheetrock ″ Silica Flour ″ Other Products Various floor patches List other activity for which you claim silica exposure Activity: Demolition Work Year of this activity: Activity: Year of this activity: Activity: Year of this activity: Sanding & sweeping floors in prep for new floors Exposure Work History Client: David Brewer Employer and Exposure Site: Brewer Tile (Self Employed) Beg Date: 1/1/1995 End Date: 12/31/1998 Present? 0 Presently Employed "0"=no "1"=yes Contracted to: Address: 1119 Donnybrook Street, Jackson, MS Title/Trade: Flooring installation & Ceiling Additional Duties: Types of Products (check all manufacturers or models you remember using at this job) ″ Air Fed Hood ″ Air Sweeping Equip ″ Bag Sand ″ Bag/Baghouses ″ Blast Equip ″ Brick Cutter ″ Bulk Sand ″ Cartridge Respirator ″ Ceramic Equip ″ Compressors, Hoses, Nozzles ″ Cutting Saws, Cutting Equip ″ Disposable Dust Masks ″ Drills, Drill Bits ″ Jack Hammer ″ Grinders, Grinding Wheels, Grinding Pads ″ Mining Equip ″ Masonry Tile, Brick, Mortar ″ Non-Air Fed Hoods ″ Pots ″ Paint Products, Fillers ″ Quarry Equip ″ Sandpaper ″ Refractory Products & Brick ″ Rock Drilling Equip ″ Sanders ″ Shakeout Equip ″ Sheetrock ″ Silica Flour ″ Other Products Various floor patches List other activity for which you claim silica exposure Activity: Demolition Work Year of this activity: 800 Activity: Year of this activity: Activity: Year of this activity: Sanding & sweeping floors in prep for new floors Exposure Work History Client: David Brewer Employer and Exposure Site: H & H Floors & Specialties Beg Date: 2/1/2002 End Date: Present? 1 Presently Employed "0"=no "1"=yes Contracted to: Address: Title/Trade: Construction Additional Duties: Installing flooring, asbestos abatement remodeling Types of Products (check all manufacturers or models you remember using at this job) ″ Air Fed Hood ″ Air Sweeping Equip ″ Bag Sand ″ Bag/Baghouses ″ Blast Equip ″ Brick Cutter ″ Bulk Sand ″ Cartridge Respirator ″ Ceramic Equip ″ Compressors, Hoses, Nozzles ″ Cutting Saws, Cutting Equip ″ Disposable Dust Masks ″ Drills, Drill Bits ″ Jack Hammer ″ Grinders, Grinding Wheels, Grinding Pads ″ Mining Equip ″ Masonry Tile, Brick, Mortar ″ Non-Air Fed Hoods ″ Pots ″ Paint Products, Fillers Quarry Equip ″ Sandpaper ″ Refractory Products & Brick ″ Rock Drilling Equip ″ Sanders ″ Shakeout Equip ″ Sheetrock ″ Silica Flour ″ Other Products Various floor patches List other activity for which you claim silica exposure Activity: Demolition Work Year of this activity: Activity: Year of this activity: Activity: Year of this activity: Sanding & sweeping floors in prep for new floors Exposure Work History Client: David Brewer Employer and Exposure Site: Diberville Apts Inc. Beg Date: 1/1/1981 End Date: 12/31/1983 Present? 0 Presently Employed "0"=no "1"=yes* Contracted to: 801 Address: 2000 Springhill, Mobile, AL 36607 Title/Trade: Painter Additional Duties: Types of Products (check all manufacturers or models you remember using at this job) ″ Air Fed Hood ″ Air Sweeping Equip ″ Bag Sand ″ Bag/Baghouses ″ Blast Equip ″ Brick Cutter ″ Bulk Sand ″ Cartridge Respirator ″ Ceramic Equip ″ Compressors, Hoses, Nozzles ″ Cutting Saws, Cutting Equip ″ Disposable Dust Masks ″ Drills, Drill Bits ″ Jack Hammer ″ Grinders, Grinding Wheels, Grinding Pads ″ Mining Equip ″ Masonry Tile, Brick, Mortar ″ Non-Air Fed Hoods ″ Pots ″ Paint Products, Fillers ″ Quarry Equip ″ Sandpaper ″ Refractory Products & Brick ″ Rock Drilling Equip ″ Sanders ″ Shakeout Equip ″ Sheetrock ″ Silica Flour ″ Other Products List other activity for which you claim silica exposure Activity: Year of this activity: Activity: Year of this activity: Activity: Year of this activity: Exhibit B Medical Providers and Diagnosing Physicians Please list the Diagnosing Physician, if any, and medical providers that your can remember seeing during the last 20 years. If you know, please provide the address, city, state and dates of treatment. Also, if you remember having a chest x-ray, please check the Chest x-ray box. Date of Doctor or other Diagnosis Chest Health care provider Address Diagnosis or Treatment X-Ray JG Alexander Union, MS Breaching X Problems Dr. Brill Byram, MS COPD X Baptist Hospital Jackson, MS COPD X 802 Exhibit C Medical Testing Please list the medical testing, if any. X-rays, other xerographs and PFT results, in Plaintiffs' custody or control are to be produced. Except documents that are subject to a claim of consulting expert privilege. Type of testing Date of Testing X-Ray 4/19/2001 Cat Scan 2003 803 BARRY S. LEVY, M.D., M.P.H., P.C. 20 NORTH MAIN STREET, SUITE 200 POST OFFICE BOX 1230 SHERBORN, MASSACHUSETTS 01770 TELEPHONE: (508) 650-1039 FAX: (508) 655-4811 ELECTRONIC MAIL: [email protected] May 8, 2004 Jim M. Zadeh Law Office of Jim Zadeh, P.C. 115 West 2nd Street, Suite 501 Fort Worth, TX 76102 Re: Cause No.CI2003-17; Maxine Woods, Ind. & As Rep. Of the Estate of John Woods, et al vs. Pulmosan Safety Equipment, et al PLAINTIFF: David Brewer Dear Attorney Zadeh: The following represents my preliminary report on David Brewer. My Background and Experience: I have worked as a medical doctor in the field of occupational and environmental health for more than 25 years. My work in occupational and environmental health has included education, research, clinical work, consulting, and program direction. I have much experience concerning a wide range of workplace hazards, including silica and other dusts, and their adverse health effects. I am Board-certified in Internal Medicine, Preventive Medicine, and Occupational Medicine. I am a physician licensed to practice in the states of Massachusetts and Connecticut. Further details of my background and experience are described in Appendix A. Methodology: I reviewed the following documents: (1) Report of Richard B. Levine, M.D. in connection with the chest x-rays taken 10/14/2002; and (2) The Detailed Earnings Record from Social Security Administration. In addition, I reviewed the pertinent medical and scientific literature concerning silica exposure and its adverse health effects. I applied the Bradford Hill principles in reviewing this body of literature. In coming to my opinions in this case concerning this individual, I examined all pertinent information and considered alternative diagnoses and causes for his medical conditions. I also considered latency. Case Summary: Mr. Brewer was exposed to free crystalline silica in his work with silica-containing products in his vocation as a floor and ceiling installer. His exposure to these products has been for a period of 22 years while employed at various jobs and locations, including Diberville Apartments, Inc. from 1981 to 1983; Kassel Tile, Inc. from 1983 to 2001; Smith Brothers Ceiling Specialties in 1989; Brewer Tile from 1996 to 1998; Engle, Inc. in 1998 and 1999; Fulton, Inc. in 2000; Branton Flooring Installations in 2001; M & S Construction in 2001; and H & H Specialities, Inc. in 2002. A B-reading of a chest x-ray dated October 14, 2002, by Richard B. Levine, M.D., demonstrated bilateral interstitial fibrosis with rounded interstitial markings, ILO classification q/q, 1/2. These changes were interpreted as being typical of previous occupational exposure to silica dust and diagnostic of silicosis. 804 Illustrative Pertinent Medical and Scientific Literature: The publications in Appendix B: Silicosis represent illustrative pertinent publications in the peer-reviewed medical and scientific literature concerning silica exposure, which includes but is not limited to these publications. Opinion: Based on my examination of materials relevant to this case, my review of the pertinent medical and scientific literature, and my extensive experience in occupational medicine, I believe to a reasonable degree of medical probability that David Brewer developed silicosis as a result of his occupational exposure to free crystalline silica at the various jobs listed above for a period of 22 years. I reserve the right to modify this report should further pertinent information become available. Sincerely, Barry S. Levy, M.D., M.P.H. APPENDIX A Barry S. Levy, M.D., M.P.H. Additional Information on Background and Experience I received a Bachelor of Science degree summa cum laude (highest honors) from Tufts College of Liberal Arts, in Medford, Massachusetts; a Doctor of Medicine degree from Cornell University Medical College, in New York City; and a Master of Public Health degree from the Harvard School of Public Health, in Boston. I completed residency training in Internal Medicine at University Hospital and the Beth Israel Hospital, both in Boston, and in Preventive Medicine at the Centers for Disease Control. I founded and directed the Occupational Health Program at the University of Massachusetts Medical School, where I was a tenured Professor of Family and Community Medicine and practiced occupational and environmental medicine for 10 years. I have taught environmental and occupational health at other academic institutions in medicine and public health. As an epidemiologist, I worked for three years for the Centers for Disease Control and, over the years, I have conducted epidemiological studies on a number of occupational and environmental health issues. I developed and directed a program in environment and health at Management Sciences for Health, a nonprofit international health organization. I have worked in 20 countries, as a consultant and educator, on environmental and occupational health matters. I have authored 16 books and monographs and over 100 other publications. I am senior co-editor of the leading textbook Occupational Health: Recognizing and Preventing Work-related Disease and Injury, the fourth edition of which was published three years ago, and co-editor of the books Preventing Occupational Disease and Injury and International Perspectives in Environment, Development and Health. I have received a number of honors and awards, including leading awards of the Association of Teachers of Preventive Medicine, the American College of Preventive Medicine, and the New England College of Occupational and Environmental Medicine, all three for career-long achievement. I am an Adjunct Professor of Family Medicine and Community Health at Tufts University School of Medicine, and an adjunct faculty member at the Harvard School of Public Health. In 1997, I served as president of the 30,000-member American Public Health Association, the 805 oldest and largest organization of public health professionals in the world. APPENDIX B: SILICOSIS Banks DE, Morring KL, Boehlecke BA, et al. Silicosis in silica flour workers. The American Review of Respiratory Disease 1981; 124: 445-450. Zambon R, Simonato L, Mastrangelo G, et al. A mortality study of workers compensated for silicosis during 1959 to 1963 in the Veneto Region of Italy. In: Goldsmith DF, Winn DM, Shy CM (eds). Silica, Silicosis and Cancer. New York: Praeger, 1986, pp. 367-374. Muir DCF, Julian JA, Shannon HS, et al. Silica exposure and silicosis among Ontario hardrock miners: III. Analysis and risk estimates. American Journal of Industrial Medicine 1989; 16: 29-43. Chia KS, Ng TP, Jeyaratnam J. Small airways function of silica-exposed workers. American Journal of Industrial Medicine 1992; 22: 155-162. Balaan MR, Weber SL, Banks DE. Clinical aspects of coal workers' pneumoconiosis and silicosis. Occupational Medicine: State of the Art Reviews 1993; 8: 19-34. Hnizdo E, Murray J, Sluis-Cremer GK, et al. Correlation between radiological and pathological diagnosis of silicosis: an autopsy population based study. American Journal of Industrial Medicine 1993; 24: 427-445. Honma K, Chiyotani K. Diffuse interstitial fibrosis in nonasbestos pneumoconiosis a pathological study. Respiration 1993; 60: 120-126. Weber SL, Banks DE. Silicosis. In: Rosenstock L, Cullen MR (eds.) Textbook of Clinical Occupational and Environmental Medicine. Philadelphia: W.B. Saunders Company, 1994, pp. 264-274. Weill H, Jones RN, Parkes WR. Silicosis and related diseases. In: Parkes WR. Occupational Lung Disorders, 3rd edition. Oxford: Butterworth Heinemann, 1994, pp. 285-339. Rice FL, Stayner LT. Assessment of silicosis risk for occupational exposure to crystalline silica. Scandinavian Journal of Work, Environment and Health 1995; 21 (suppl. 2): 87-90. Wang X, Yano E, Nonaka K, et al. Respiratory impairments due to dust exposure: a comparative study among workers exposed to silica, asbestos, and coalmine dust. American Journal of Industrial Medicine 1997; 31: 495-502. Balaan MR, Banks DE. Silicosis. In: Rom WN (ed.). Environmental and Occupational Medicine, 3rd edition. Philadelphia: Lippincott-Raven Publishers, 1998, pp. 435-448. Graham WGB. Quartz and silicosis. In: Banks DE, Parker JE. (eds.). Occupational Lung Disease: An International Perspective. London: Chapman & Hall Medical, 1998, pp. 191-212. Walsh SJ. Effects of non-mining occupational silica exposure on proportional mortality from silicosis and systemic sclerosis. Journal of Rheumatology 1999; 26: 2179-2185. Wang X, Yano E. Pulmonary dysfunction in silica-exposed workers: a relationship to radiographic signs of silicosis and emphysema. American Journal of Industrial Medicine 1999; 36: 299-306. Sanderson WT, Steenland K, Deddens JA. Historical respirable quartz exposures of industrial sand workers: 1946-1996. American Journal of Industrial Medicine 2000; 38: 389-398. Wang X-R, Christiani DC. Respiratory symptoms and functional status in workers exposed to silica, asbestos, and coal mine 806 dusts. Journal of Occupational and Environmental Medicine 2000; 42: 1076-1084. Chen W, Zhuang Z, Attfield MD, et al. Exposure to silica and silicosis among tin miners in China: exposure-response analyses and risk assessment. Occupational and Environmental Medicine 2001; 58: 31-37. Graham WGB, Vacek PM, Morgan WKC, et al. Radiographic abnormalities in long-tenure Vermont granite workers and the permissible exposure limit for crystalline silica. Journal of Occupational and Environmental Medicine 2001; 43: 412-417. Ulvestad B, Bakke B, Eduard W, et al. Cumulative exposure to dust causes accelerated decline in lung function in tunnel workers. Occupational and Environmental Medicine 2001; 58: 663-669. Department of Health and Human Services. NIOSH Hazard Review: Health Effects of Occupational Exposure to Respirable Crystalline Silica. Publication No.2002-129. Washington, DC: NIOSH, 2002. Ding M, Chen F, Shi X, et al. Diseases caused by silica: mechanisms of injury and disease development. International Immunopharmacology 2002; 2: 173-182. Mannetje A XXt, Steenland K, Attfield M, et al. Exposure-response analysis and risk assessment for silica and silicosis mortality in a pooled analysis of six cohorts. Occupational and Environmental Medicine 2002; 59: 723-728. Sherson D. Silicosis in the twenty first century. (Editorial) Occupational and Environmental Medicine 2002; 59: 721-722. Calvert GM, Rice FL, Boiano JM, et al. Occupational silica exposure and risk of various diseases: an analysis using death certificates from 27 states of the United States. Occupational and Environmental Medicine 2003; 60: 122-129. RICHARD B. LEVINE, M.D. Practice Limited to Radiology 304 Dogwood Lane Elkins Park, PA 19027 (215) 884-1523 10/14/02 RE: BREWER, DAVID CHEST: The chest in two projections demonstrates the trachea, mediastinal structures and cardiac silhouette to be intact. No mass is observed within the lungs. There is definite bilateral interstitial fibrosis noted with rounded interstitial markings delineated. These findings are typical of previous occupational exposure to silica dust and indicate silicosis. No pleural plaque, calcified plaque, pleural thickening or hemidiaphragmatic plaque is observed. The ILO classification is Q-Q, 1-2. SUMMARY: Interstitial fibrosis typical of previous occupational exposure to silica dust diagnostic of silicosis. The ILO classification is Q-Q, 1-2. RICHARD B. LEVINE, M.D. RBL/fph 11/15/02 807 Exhibit D Claims I am making the following claims, at this time, against the following Defendants. Defendants Type of Claim 3M Corporation Design defect, marketing defect, negligence and civil conspiracy Air Liquide America Corporation Design defect, marketing defect, negligence and civil conspiracy American Optical Design defect, marketing defect, negligence and civil conspiracy American Sand & Gravel Company Design defect, marketing defect, negligence and civil conspiracy Baroid Drilling Fields, Inc. Design defect, marketing defect, negligence and civil conspiracy Big Three Industries, Inc. Design defect, marketing defect, negligence and civil conspiracy Binks Manufacturing Company Design defect, marketing defect, negligence and civil conspiracy Blain Sand & Gravel, Inc. Design defect, marketing defect, negligence and civil conspiracy Blue Ridge Sand & Gravel, Inc. Design defect, marketing defect, negligence and civil conspiracy Bowen Tools, Inc., Bowto, Inc. f/k/a Bowen Tools, Design defect, marketing defect, negligence and civil conspiracy Inc. Briggs Weaver, Inc. Design defect, marketing defect, negligence and civil conspiracy Bush Construction Company, Inc. Design defect, marketing defect, negligence and civil conspiracy Clark Sales and Rentals, Inc. Design defect, marketing defect, negligence and civil conspiracy Clark Sand Company, Inc. Design defect, marketing defect, negligence and civil conspiracy Cooper Turbocompresser Design defect, marketing defect, negligence and civil conspiracy Clemco Industries, Inc. Design defect, marketing defect, negligence and civil conspiracy Custom Aggregates and Grinding, Inc. Design defect, marketing defect, negligence and civil conspiracy D & B Sand & Gravel Company, Inc. Design defect, marketing defect, negligence and civil conspiracy DFM Equipment Company, Inc. Design defect, marketing defect, negligence and civil conspiracy Dalloz Safety, Inc., f/k/a WGM Safety Corporation, Design defect, marketing defect, negligence and civil conspiracy d/b/a Wilson Safety Products Dependable Abrasives, Inc. Design defect, marketing defect, negligence and civil conspiracy Devilbiss Air Power Co. f/k/a Devilbiss Corporation Design defect, marketing defect, negligence and civil conspiracy Eastern Safety Equipment Company, Inc. Design defect, marketing defect, negligence and civil conspiracy E.D. Bullard Company Civil Conspiracy Empire Abrasive Equipment Company Design defect, marketing defect, negligence and civil conspiracy Flexco Products, Inc. Design defect, marketing defect, negligence and civil conspiracy Glendale Protective Technologies, Inc. Design defect, marketing defect, negligence and civil conspiracy Green Brothers Gravel Company Design defect, marketing defect, negligence and civil conspiracy Gulf Coast Marine Supply Design defect, marketing defect, negligence and civil conspiracy Gulf States Supply Company Design defect, marketing defect, negligence and civil conspiracy Halliburton Energy Services, Inc. f/k/a Halliburton Design defect, marketing defect, negligence and civil conspiracy Company Hanson Aggregates Central, Inc. Design defect, marketing defect, negligence and civil conspiracy Hertz Equipment Rental Corporation Design defect, marketing defect, negligence and civil conspiracy 808 Huey Stocksill Design defect, marketing defect, negligence and civil conspiracy Humble Sand & Gravel, Inc. Design defect, marketing defect, negligence and civil conspiracy Illinois Tool Works, Inc. Individually and as Successor Design defect, marketing defect, negligence and civil conspiracy By Merger of Ransburg Corporation (Formerly Devilbiss Industries Products Corporation, Successor to the Devilbiss Company) Inco Safety Products Civil Conspiracy Ingersoll-Rand Company Design defect, marketing defect, negligence and civil conspiracy JB Industries Sand Design defect, marketing defect, negligence and civil conspiracy JJ Ferguson Sand and Gravel Design defect, marketing defect, negligence and civil conspiracy JEBCO Abrasives, Inc. Design defect, marketing defect, negligence and civil conspiracy John Barten, Individually and d/b/a John Barten Design defect, marketing defect, negligence and civil conspiracy Company Kelco Sales Associates, Inc. Design defect, marketing defect, negligence and civil conspiracy Kelco Sales & Engineering Company A Division of Design defect, marketing defect, negligence and civil conspiracy Polley, Inc. Key Houston Design defect, marketing defect, negligence and civil conspiracy Laurel Machine & Foundry Design defect, marketing defect, negligence and civil conspiracy Lockheed Martin Corporation Design defect, marketing defect, negligence and civil conspiracy Lone Star Industries Design defect, marketing defect, negligence and civil conspiracy Louis M. Gerson Co., Inc. Design defect, marketing defect, negligence and civil conspiracy Lowry Sand & Gravel, Inc. Design defect, marketing defect, negligence and civil conspiracy Martin Marietta Materials, Inc. Design defect, marketing defect, negligence and civil conspiracy Mine Safety Appliances Company (MSA) Design defect, marketing defect, negligence and civil conspiracy Moldex-Metric, Inc. Design defect, marketing defect, negligence and civil conspiracy Norton Company f/k/a San Gobain Abrasives, Inc. Design defect, marketing defect, negligence and civil conspiracy North Safety Products, Inc. Design defect, marketing defect, negligence and civil conspiracy Ogleby Norton Industrial Sands, Inc. Design defect, marketing defect, negligence and civil conspiracy Ottawa Silica Company Design defect, marketing defect, negligence and civil conspiracy Pangborn Corporation Design defect, marketing defect, negligence and civil conspiracy Parmalee Industries d/b/a Chicago Eye Shield Company Design defect, marketing defect, negligence and civil conspiracy (CESCO) Pearl Sands, Inc. Design defect, marketing defect, negligence and civil conspiracy Louisiana Partnership Pearl/James Joint Venture Design defect, marketing defect, negligence and civil conspiracy Pine Belt Ready-Mix Concrete, Inc. Design defect, marketing defect, negligence and civil conspiracy Pine Creek Ready Mix Concrete, Inc. Design defect, marketing defect, negligence and civil conspiracy P.K. Lindsey Company Design defect, marketing defect, negligence and civil conspiracy Ptr. Inc., d/b/a H.S. Cover Company Design defect, marketing defect, negligence and civil conspiracy Pulmosan Safety Equipment Corporation Design defect, marketing defect, negligence and civil conspiracy Quickrete Materials, Inc. Design defect, marketing defect, negligence and civil conspiracy 809 Rent All of Laurel County Design defect, marketing defect, negligence and civil conspiracy Rental Service Corporation Design defect, marketing defect, negligence and civil conspiracy Saint Gobain Abrasives Design defect, marketing defect, negligence and civil conspiracy Sanstorm, Inc. d/b/a Delaware Sanstrom, Inc. Design defect, marketing defect, negligence and civil conspiracy Schmidt Manufacturing, Inc. Civil Conspiracy Schramm, Inc. Design defect, marketing defect, negligence and civil conspiracy Scott Aviation, Inc. Design defect, marketing defect, negligence and civil conspiracy Scott Technologies, Inc. f/k/a Figgle international, Design defect, marketing defect, negligence and civil conspiracy Inc., Individually and on behalf of his Sherwin-Williams Company Design defect, marketing defect, negligence and civil conspiracy Siebe North, Inc. Design defect, marketing defect, negligence and civil conspiracy Southern Silica Of Louisiana Design defect, marketing defect, negligence and civil conspiracy Specialty Sand Company Design defect, marketing defect, negligence and civil conspiracy Specialty Sand Company Design defect, marketing defect, negligence and civil conspiracy Sullair Corporation Design defect, marketing defect, negligence and civil conspiracy Survuvair, Inc. Design defect, marketing defect, negligence and civil conspiracy T.L. James and Company, Inc. Design defect, marketing defect, negligence and civil conspiracy Textron, Inc. Design defect, marketing defect, negligence and civil conspiracy Truman's Inc. Design defect, marketing defect, negligence and civil conspiracy Unimin Corporation Individually and on behalf of its Design defect, marketing defect, negligence and civil conspiracy division Unimen Specialty Materials Inc. U.S. Silica Company f/k/a Pennsylvania Glass Sand Design defect, marketing defect, negligence and civil conspiracy Corporation and Ottawa Silica Company and as Successor in Interest to Texas Industries Minerals Company Vailen Corporation Design defect, marketing defect, negligence and civil conspiracy Vulcan Materials Company Design defect, marketing defect, negligence and civil conspiracy W.J. Runyon & Son, Inc. Design defect, marketing defect, negligence and civil conspiracy Wedron Silica Company Design defect, marketing defect, negligence and civil conspiracy Wheelabrator-Frye, Inc. Design defect, marketing defect, negligence and civil conspiracy Wheeler Protective Apparel, Inc. Design defect, marketing defect, negligence and civil conspiracy CASE NAME AND CASE NUMBER: MDL 1553; In Re Silica Products Liability Litigation This document applies to: Maxine Woods, et al. v. Pulmoson Safety Equipment Company, et al. MDL number 04-025 SILICA MDL PLAINTIFF'S SECOND SUPPLEMENTAL SWORN FACT SHEET Name: David Brewer 810 To the best of my knowledge during my working career, I worked with or around the following silica related products: Willson 780A and Box Flexo Unidentified Flexo Type Dust Mask Scott 66L Dual Cartridge Respirator American Optical Dual Cartridge Respirator 50119 M Eastern Safety Equipment Company Dual Cartridge Re Wilson AR 700 Double Cartridge Respirator 3M 8710 Dust Mask American Optical Dual Cartridge Respirator with AO AOSafety Dual Cartridge Respirator with Cabot Safe AOSafety R8210N95 Dust Mask (Aearo Eastern) DeVilbiss Dual Cartridge Paint Spray Respirator in Eastern Safety 9200 Dual Cartridge Respirator MSA Comfo Classic Dual Cartridge Respirator MSA Comfo Dual Cartridge Respirator with silver me ProTech Dual Cartridge Respirator w/3100 chemical American Optical 4-1050 Accordian Style Paper Dust American Optical R-6057L Half Mask Dual Cartridge American Optical 50305SM Half Mask, Dual Cartridge American Optical 500809M Half Mask Dual Cartridge Cabot Safety Corp. R1010 (AO-1010) Paper DstMask Eastern Safety Equipment Co 810 Paper Dust Gerson 1710 Paper Dust Mist Respirator in Box of 2 Gerson 1501 Nulsance Paper Dust Mask in Box of 50 MSA Comfo II Half Mask Dual Cartridge Respirator North 7700-30M, Half Mask Dual Cartridge Facepiece North 770030L, Half Mask Dual Cartridge Respirator North 7176N95 Disposable Particulate Respirator in North 7175N95 Disposable Particulate Repirator in Norton 7200 Bantarn Nuisance Dust Respirator in Box Norton 7400-30M Half Mask Single Cartridge Respira Norton 65306 Nuisance Dust Mask in Bag Norton 65076 Nuisance Dust Masks in Package Oxwall DM5 Nuisance Paper Dust Mask in Plastic Bag 3M 6200-M, Half Mask, Dual Cartridge Face Piece in 3M 8715 Paper Dust and Mist Respirator in Box of 2 3M 8500 Nuisance Paper Dust Mask in Box of 20 3M 8710 Paper Dust and Mist Respirator in Box of 2 3M 8651ES Nuisance Paper Dust Mask in Package Welsh 7300 Bantam Nuisance Dust Respirator Willson 6000M Half Mask Dual Cartridge Facepiece Willson 6100L Half Mask Dual Cartridge Facepiece 811 Survivair "Blue" Dual Cartridge Respirator American Optical AO1010 Disposable Respirator AO Safety Products R5091 P Dual Cartridge Respirat American Optical R5000 Sure-Guard Dual Cartridge R American Optical R2000 Sure-Guard Respirator Eastern Safety Filter-Mask Code 335 with facelet Bondo Dust Masks, reorder number 947 (unopened) Eastern Safety Dust Mask labeled Gerson Post 1991 Eastern Safety Comfort Masks Code 348-2 Eastern Safety KA Kleen Airriask w Sanitary Face Eastern Safety Nuisance Dust Masks Code 928-X in b Eastern Safety ALLPRO Dust Masks in box of 50 American Optical R2000 Respirator (w Facelet) North Dual Cartridge 7700 Series Respirator Survivair Dual Cartridge Respirator ("Blue") AO Safety Sanding drywall fiberglass respirator American Optical R-6057A Dual Cartridge Respirator U.S. Safety IOOM Comfort Air Dual Cartridge Resp Survivair Dual Cartridge Respirator MSA Affinity Dust Mask Lot No. 0596 P-N 815769 Ferro DeVilbiss MSE-502 Dual Cartridge DeVilbiss Misc. Cartridge Respirators Willson Respirators "Dustite" and "Dustguard" Survivair Cartridge Respirator Glendale GR-500 (photo A) and Glendale GR-555 (photo B) Welsh Manufacturing Company GB5O (photo B) Gerson 1501 Martindale 3M 8710 American Optical Three Dual Cartridge Respirators American Optical Logos 760-771 I declare under penalty of perjury subject to 28 USC Section 1746 that all of the information provided in this product identification sheet is true and correct to the best of my present memory, knowledge, info and belief. I reserve the right to modify or supplement the foregoing information during the discovery process of my case. Exhibit 37 CASE NAME AND CASE NUMBER: MDL 1553; In Re Silica Products Liability Litigation This document applies to: Maxine Woods, et al. v. Pulmason Safety Equipment Company, et al. MDL number 04-025 SILICA MDL PLAINTIFF'S SUPPLEMENTAL SWORN FACT SHEET Name: Gordon Travis Street Address: 15546 Parkwood Drive South 812 City: Gulfport State: Mississippi ZIP: 39503 Date of Birth: 04/01/57 Date of Death (if applicable): Not-applicable. Work History See attached ExhibitA Work History Product Identification See attached ExhibitA Work History. I am making a claim for the following injuries (diseases): Silicosis: Yes Known Complicating Diseases: Lung Cancer: Rheumatold Arthritis: Scleroderma: Pulmonary Massive Fibrosis: Lupus: Tuberculosis (TB): Kidney Cancer: Enlarged Heart: Fear of Cancer: Other: My medical providers are on the attached Exhibit B or will be provided in a supplemental disclosure. Copies of my B-read and diagnosis report are attached hereto as Exhibit C. II. Authorizations I have signed and attached the following authorizations: 1. Medical Authorization 2. Social Security Earnings History Authorization 3. Employment Authorization 4. IRS Authorization (if I am making a claim for lost wages) 5. Veterans Administration Authorization III. Claims At this time, I am making the claims stated in Exhibit D. I declare under penalty of perjury subject to 28 U.S.C. S 1746 that all of the information provided in this Fact Sheet is true and correct to the best of my present memory, knowledge, information and belief, that I have completed the List of Medical Providers and Work History appended hereto (or in a supplement), which are true and correct to the best of my knowledge, information and belief, and that I have provided the authorizations stated in Section II above. I reserve the right to modify or supplement the foregoing information during the discovery process of my case. Gordon Travis Exhibit A Exposure Work History (Also list any other activity for which you claim silica exposure) Types of Products Employer and Dates of Job (List all manufacturers Exposure Site Address Exposure Description or models you remember) See Attached See Attached See Attached See Attached See Attached 813 Exposure Work History Client: Gordon Travis Employer and Exposure Site: H Gordon Myrick Inc. Beg Date: 1/1/1988 End Date: 12/31/1988 Present? 0 Presently Employed "0"=no "1"=yes Contracted to: Address: 3207 D Ave, Gulfport, MS 39507 Title/Trade: Laborer Additional Duties: Types of Products (check all manufacturers or models you remember using at this job) ″ Air Fed Hood ″ Air Sweeping Equip ″ Bag Sand ″ Bag/Baghouses ″ Blast Equip ″ Brick Cutter ″ Bulk Sand ″ Cartridge Respirator ″ Ceramic Equip ″ Compressors, Hoses, Nozzles ″ Cutting Saws, Cutting Equip ″ Disposable Dust Masks ″ Drills, Drill Bits ″ Jack Hammer ″ Grinders, Grinding Wheels, Grinding Pads ″ Mining Equip ″ Masonry Tile, Brick, Mortar ″ Non-Air Fed Hoods ″ Pots ″ Paint Products, Fillers ″ Quarry Equip ″ Sandpaper 814 ″ Refractory Products & Brick ″ Rock Drilling Equip ″ Sanders ″ Shakeout Equip ″ Sheetrock ″ Silica Flour ″ Other Products List other activity for which you claim silica exposure Activity: Year of this activity: Activity: Year of this activity: Activity: Year of this activity: Exposure Work History Client: Gordon Travis Employer and Exposure Site: H Gordon Myrick Inc. Beg Date: 1/1/1984 End Date: 12/31/1985 Presently Employed "0"=no "1"=yes* Contracted to: Address: 3207 D Ave, Gulfport, MS 39507 Title/Trade: Laborer Additional Duties: Types of Products (check all manufacturers or models you remember using at this job) ″ Air Fed Hood ″ Air Sweeping Equip ″ Bag Sand ″ Bag/Baghouses ″ Blast Equip ″ Brick Cutter ″ Bulk Sand ″ Cartridge Respirator ″ Ceramic Equip ″ Compressors, Hoses, Nozzles ″ Cutting Saws, Cutting Equip ″ Disposable Dust Masks ″ Drills, Drill Bits ″ Jack Hammer ″ Grinders, Grinding Wheels, Grinding Pads ″ Mining Equip ″ Masonry Tile, Brick, Mortar ″ Non-Air Fed Hoods ″ Pots ″ Paint Products, Fillers ″ Quarry Equip ″ Sandpaper ″ Refractory Products & Brick ″ Rock Drilling Equip ″ Sanders ″ Shakeout Equip ″ Sheetrock ″ Silica Flour ″ Other Products List other activity for which you claim silica exposure Activity: Year of this activity: Activity: Year of this activity: Activity: Year of this activity: Exposure Work History Client: Gordon Travis Employer and Exposure Site: Centex Simpson Construction Company 815 Beg Date: 1/1/1981 End Date: 12/31/1983 Present? 0 Presently Employed "0"=no "1"=yes Contracted to: Address: PO Box 427, Merrifield, VA 22116 Title/Trade: Sandblaster Additional Duties: Types of Products (check all manufacturers or models you remember using at this job) ″ Air Fed Hood ″ Air Sweeping Equip ″ Bag Sand ″ Bag/Baghouses ″ Blast Equip ″ Brick Cutter ″ Bulk Sand ″ Cartridge Respirator ″ Ceramic Equip ″ Compressors, Hoses, Nozzles ″ Cutting Saws, Cutting Equip ″ Disposable Dust Masks ″ Drills, Drill Bits ″ Jack Hammer ″ Grinders, Grinding Wheels, Grinding Pads ″ Mining Equip ″ Masonry Tile, Brick, Mortar ″ Non-Air Fed Hoods ″ Pots ″ Paint Products, Fillers ″ Quarry Equip ″ Sandpaper ″ Refractory Products & Brick ″ Rock Drilling Equip ″ Sanders ″ Shakeout Equip ″ Sheetrock ″ Silica Flour ″ Other Products List other activity for which you claim silica exposure Activity: Year of this activity: Activity: Year of this activity: Activity: Year of this activity: Exposure Work History Client: Gordon Travis Employer and Exposure Site: JE Merit Constructors Inc Beg Date: 1/1/1986 End Date: 12/31/1986 Present? 0 Presently Employed "0"=no "1"=yes* Contracted to: Address: PO Box 7084, Pasadena, CA 91109 Title/Trade: Laborer Additional Duties: Types of Products (check all manufacturers or models you remember using at this job) ″ Air Fed Hood ″ Air Sweeping Equip ″ Bag Sand ″ Bag/Baghouses ″ Blast Equip 816 ″ Brick Cutter ″ Bulk Sand ″ Cartridge Respirator ″ Ceramic Equip ″ Compressors, Hoses, Nozzles ″ Cutting Saws, Cutting Equip ″ Disposable Dust Masks ″ Drills, Drill Bits ″ Jack Hammer ″ Grinders, Grinding Wheels, Grinding Pads ″ Mining Equip ″ Masonry Tile, Brick, Mortar ″ Non-Air Fed Hoods ″ Pots ″ Paint Products, Fillers ″ Quarry Equip ″ Sandpaper ″ Refractory Products & Brick ″ Rock Drilling Equip ′ Sanders ″ Shakeout Equip ″ Sheetrock ″ Silica Flour ″ Other Products List other activity for which you claim silica exposure Activity: Year of this activity: Activity: Year of this activity: Activity: Year of this activity: Exposure Work History Client: Gordon Travis Employer and Exposure Site: Northrop Grumman Ship Systems, Inc. Beg Date: 1/1/1990 End Date: 12/31/1996 Present? 0 Presently Employed "0"=no "1"=yes Contracted to: Address: PO Box 149, Pascagoula, MS 39568 Title/Trade: Laborer Additional Duties: Types of Products (check all manufacturers or models you remember using at this job) ″ Air Fed Hood ″ Air Sweeping Equip ″ Bag Sand ″ Bag/Baghouses ″ Blast Equip ″ Brick Cutter ″ Bulk Sand ″ Cartridge Respirator ″ Ceramic Equip ″ Compressors, Hoses, Nozzles ″ Cutting Saws, Cutting Equip ″ Disposable Dust Masks ″ Drills, Drill Bits ″ Jack Hammer ″ Grinders, Grinding Wheels, Grinding Pads ″ Mining Equip ″ Masonry Tile, Brick, Mortar ″ Non-Air Fed Hoods ″ Pots ″ Paint Products, Fillers ″ Quarry Equip 817 ″ Sandpaper ″ Refractory Products & Brick ″ Rock Drilling Equip ″ Sanders ″ Shakeout Equip ″ Sheetrock ″ Silica Flour ″ Other Products List other activity for which you claim silica exposure Activity: Year of this activity: Activity: Year of this activity: Activity: Year of this activity: Exposure Work History Client: Gordon Travis Employer and Exposure Site: Gervais Favrot Co. Inc. Beg Date: 1/1/1982 End Date: 12/31/1987 Present? 0 Presently Employed "0"=no "1"=yes Contracted to: Address: Box 19905, New Orleans, LA 70179 Title/Trade: Construction Additional Duties: Demolition Crew/Hospital over 50 years old Types of Products (check all manufacturers or models you remember using at this job) ″ Air Fed Hood ″ Air Sweeping Equip ″ Bag Sand ″ Bag/Baghouses ″ Blast Equip ″ Brick Cutter ″ Bulk Sand ″ Cartridge Respirator ″ Ceramic Equip ″ Compressors, Hoses, Nozzles ″ Cutting Saws, Cutting Equip ″ Disposable Dust Masks ″ Drills, Drill Bits ″ Jack Hammer ″ Grinders, Grinding Wheels, Grinding Pads ″ Mining Equip ″ Masonry Tile, Brick, Mortar ″ Non-Air Fed Hoods ″ Pots ″ Paint Products, Fillers ″ Quarry Equip ″ Sandpaper ″ Refractory Products & Brick ″ Rock Drilling Equip Sanders ″ Shakeout Equip ″ Sheetrock ″ Silica Flour ″ Other Products List other activity for which you claim silica exposure Activity: Year of this activity: Activity: Year of this activity: Activity: Year of this activity: 818 Exposure Work History Client: Gordon Travis Employer and Exposure Site: Hermitage Contractors Inc. Beg Date: 1/1/1983 End Date: 12/31/1984 Present? 0 Presently Employed "0"=no "1"=yes Contracted to: Address: Title/Trade: Laborer Additional Duties: Types of Products (check all manufacturers or models you remember using at this job) ″ Air Fed Hood ″ Air Sweeping Equip ″ Bag Sand ″ Bag/Baghouses ″ Blast Equip ″ Brick Cutter ″ Bulk Sand ″ Cartridge Respirator ″ Ceramic Equip ″ Compressors, Hoses, Nozzles ″ Cutting Saws, Cutting Equip ″ Disposable Dust Masks ″ Drills, Drill Bits ″ Jack Hammer ″ Grinders, Grinding Wheels, Grinding Pads ″ Mining Equip ″ Masonry Tile, Brick, Mortar ″ Non-Air Fed Hoods ″ Pots″ Paint Products, Fillers ″ Quarry Equip ″ Sandpaper ″ Refractory Products & Brick ″ Rock Drilling Equip ″ Sanders ″ Shakeout Equip ″ Sheetrock ″ Silica Flour ″ Other Products List other activity for which you claim silica exposure Activity: Year of this activity: Activity: Year of this activity: Activity: Year of this activity: 819 Exhibit B Medical Providers and Diagnosing Physicians Please list the Diagnosing Physician, if any, and medical providers that your can remember seeing during the last 20 years. If you know, please provide the address, city, state and dates of treatment. Also, if you remember having a chest x-ray, please check the Chest x-ray box. Date of Doctor or other Diagnosis Chest Health care provider Address Diagnosis or Treatment X-Ray Dr. Winter Gulport, MS Back Pain Dr. Schabli Gulport, MS Headaches Dr. Longnecker Biloxi, MS Rotor Cup Exhibit C Medical Testing Please list the medical testing, if any. X-rays, other xerographs and PFT results, in Plaintiffs' custody or control are to be produced. Except documents that are subject to a claim of consulting expert privilege. Type of testing Date of Testing X-ray 1/18/2002 PFT 12/12/2003 820 James W. Ballard, M.D. X-RAY EVALUATION February 23, 2002 Law Office of Jim Zadeh, P.C. 115 W. 2nd St., Suite 201 Ft. Worth, TX 76102 Re: Travis, Gordon Chest radiograph(s) of the chest dated 01/18/02 is reviewed for the presence of and classification of pneumoconiosis according to the ILO 80 classification. Film quality is grade I. Inspection of lung parenchyma demonstrates interstitial changes in all six lung zones, consisting of small rounded and irregular opacities of size and shape XX/t, profusion 1/0. There are no pleural plaques, pleural thickenings or pleural calcifications. No parenchymal infiltrates, nodules or masses are seen. The heart is of normal size and the mediastinal structures are unremarkable. CONCLUSION: The above parenchymal changes are consistent with silicosis provided the subject's exposure history and period of latency are appropriate. James W. Ballard, M.D. RAY A. HARRON, M.D. Diplomate American Board of Radiology Diplomate American Board of Nuclear Medicine RE: Gordon Travis DOB: 04/01/57 I certify that on 12/12/03, I examined the above client in Pascagoula, MS, and reviewed a reading of the chest x-ray dated 01/18/02. The work history provided to me indicates that Mr. Travis had an occupational exposure to silica from 1973 to 2002, while working at various locations. My physical exam reveals there is no clubbing or cyanosis of the fingers. There is no ankle edema. There are no abnormal breath sounds. The client denies having cancer. The client denies having tuberculosis. The client denies having connective tissue disease. This individual reports smoking one-half pack of cigarettes per day for three years, and quit in 1993. The reading of the chest x-ray reveals bilateral interstitial fibrosis consistent with silicosis. On the basis of this individual's history of occupational exposure to silica and the reading of his chest x-ray by Dr. Ballard, within a reasonable degree of medical certainty, Gordon Travis has silicosis. Since silica exposure is associated with an increased incident of cor pulmonale, progressive pulmonary fibrosis, spontaneous pneumothorax, autoimmune connective tissue disease such as scleroderma, rheumatoid arthritis, systemic lupus erythematosus and others, tuberculosis, renal complications and lung cancer, this person should be examined frequently by a physician for possible early detection and treatment of these processes. Pulmonary Function: See attached. Ray A. Harron, M.D. 821 822 823 824 Exhibit D Claims I am making the following claims, at this time, against the following Defendants. Defendants Type of Claim 3M Corporation Design defect, marketing defect, negligence and civil conspiracy Air Liquide America Corporation Design defect, marketing defect, negligence and civil conspiracy American Optical Design defect, marketing defect, negligence and civil conspiracy American Sand & Gravel Company Design defect, marketing defect, negligence and civil conspiracy Baroid Drilling Fields, Inc. Design defect, marketing defect, negligence and civil conspiracy Big Three Industries, Inc. Design defect, marketing defect, negligence and civil conspiracy Binks Manufacturing Company Design defect, marketing defect, negligence and civil conspiracy Blain Sand & Gravel, Inc. Design defect, marketing defect, negligence and civil conspiracy Blue Ridge Sand & Gravel, Inc. Design defect, marketing defect, negligence and civil conspiracy Bowen Tools, Inc., Bowto, Inc. f/k/a Bowen Tools, Design defect, marketing defect, negligence and civil conspiracy Inc. Briggs Weaver, Inc. Design defect, marketing defect, negligence and civil conspiracy Bush Construction Company, Inc. Design defect, marketing defect, negligence and civil conspiracy Clark Sales and Rentals, Inc. Design defect, marketing defect, negligence and civil conspiracy Clark Sand Company, Inc. Design defect, marketing defect, negligence and civil conspiracy 825 Cooper Turbocomprsser Design defect, marketing defect, negligence and civil conspiracy Clemco Industries, Inc Design defect, marketing defect, negligence and civil conspiracy Custom Aggregates and Grinding, Inc. Design defect, marketing defect, negligence and civil conspiracy D & B Sand & Gravel Company, Inc. Design defect, marketing defect, negligence and civil conspiracy DFM Equipment Company, Inc. Design defect, marketing defect, negligence and civil conspiracy Dalloz Safety, Inc., f/k/a WGM Safety Corporation, Design defect, marketing defect, negligence and civil conspiracy d/b/a Wilson Safety Products Dependable Abrasives, Inc. Design defect, marketing defect, negligence and civil conspiracy Devilbiss Air Power Co. f/k/a Devilbiss Corporation Design defect, marketing defect, negligence and civil conspiracy Eastern Safety Equipment Company, Inc. Design defect, marketing defect, negligence and civil conspiracy E.D. Bullard Company Civil Conspiracy Empire Abrasive Equipment Company Design defect, marketing defect, negligence and civil conspiracy Flexco Products, Inc. Design defect, marketing defect, negligence and civil conspiracy Glendale Protective Technologies, Inc. Design defect, marketing defect, negligence and civil conspiracy Green Brothers Gravel Company Design defect, marketing defect, negligence and civil conspiracy Gulf Coast Marine Supply Design defect, marketing defect, negligence and civil conspiracy Gulf States Supply Company Design defect, marketing defect, negligence and civil conspiracy Halliburton Energy Services, Inc. f/k/a Halliburton Design defect, marketing defect, negligence and civil conspiracy Company Hanson Aggregates Central, Inc. Design defect, marketing defect, negligence and civil conspiracy Hertz Equipment Rental Corporation Design defect, marketing defect, negligence and civil conspiracy Huey Stocksill Design defect, marketing defect, negligence and civil conspiracy Humble Sand & Gravel, Inc. Design defect, marketing defect, negligence and civil conspiracy Illinois Tool Works, Inc. Individually and as Successor Design defect, marketing defect, negligence and civil conspiracy By Merger of Ransburg Corporation (Formerly Devilbiss Industries Products Corporation, Successor to the Devilbiss Company) Inco Safety Products Civil Conspiracy Ingersoll-Rand Company Design defect, marketing defect, negligence and civil conspiracy JB Industries Sand Design defect, marketing defect, negligence and civil conspiracy JJ Ferguson Sand and Gravel Design defect, marketing defect, negligence and civil conspiracy JEBCO Abrasives, Inc. Design defect, marketing defect, negligence and civil conspiracy John Barten, Individually and d/b/a John Barten Design defect, marketing defect, negligence and civil conspiracy Company Kelco Sales Associates, Inc. Design defect, marketing defect, negligence and civil conspiracy Kelco Sales & Engineering Company A Division of Design defect, marketing defect, negligence and civil conspiracy Polley, Inc. Key Houston Design defect, marketing defect, negligence and civil conspiracy Laurel Machine & Foundry Design defect, marketing defect, negligence and civil conspiracy Lockheed Martin Corporation Design defect, marketing defect, negligence and civil conspiracy 826 Lone Star Industries Design defect, marketing defect, negligence and civil conspiracy Louis M. Gerson Co., Inc. Design defect, marketing defect, negligence and civil conspiracy Lowry Sand & Gravel, Inc. Design defect, marketing defect, negligence and civil conspiracy Martin Marietta Materials, Inc. Design defect, marketing defect, negligence and civil conspiracy Mine Safety Appliances Company (MSA) Design defect, marketing defect, negligence and civil conspiracy Moldex-Metric, Inc. Design defect, marketing defect, negligence and civil conspiracy Norton Company f/k/a San Gobain Abrasives, Inc. Design defect, marketing defect, negligence and civil conspiracy North Safety Products, Inc. Design defect, marketing defect, negligence and civil conspiracy Ogleby Norton Industrial Sands, Inc. Design defect, marketing defect, negligence and civil conspiracy Ottawa Silica Company Design defect, marketing defect, negligence and civil conspiracy Pangborn Corporation Design defect, marketing defect, negligence and civil conspiracy Parmalee Industries d/b/a Chicago Eye Shield Company Design defect, marketing defect, negligence and civil conspiracy (CESCO) Pearl Sands, Inc. Design defect, marketing defect, negligence and civil conspiracy Louisiana Partnership Pearl/James Joint Venture Design defect, marketing defect, negligence and civil conspiracy Pine Belt Ready-Mix Concrete, Inc. Design defect, marketing defect, negligence and civil conspiracy Pine Creek Ready Mix Concrete, Inc. Design defect, marketing defect, negligence and civil conspiracy P.K. Lindsey Company Design defect, marketing defect, negligence and civil conspiracy Ptr. Inc., d/b/a H.S. Cover Company Design defect, marketing defect, negligence and civil conspiracy Pulmosan Safety Equipment Corporation Design defect, marketing defect, negligence and civil conspiracy Quickrete Materials, Inc. Design defect, marketing defect, negligence and civil conspiracy Rent All of Laurel County Design defect, marketing defect, negligence and civil conspiracy Rental Service Corporation Design defect, marketing defect, negligence and civil conspiracy Saint Gobain Abrasives Design defect, marketing defect, negligence and civil conspiracy Sanstorm, Inc. d/b/a Delaware Sanstrom, Inc. Design defect, marketing defect, negligence and civil conspiracy Schmidt Manufacturing, Inc. Civil Conspiracy Schramm, Inc. Design defect, marketing defect, negligence and civil conspiracy Scott Aviation, Inc. Design defect, marketing defect, negligence and civil conspiracy Scott Technologies, Inc f/k/a Figgle International, Design defect, marketing defect, negligence and civil conspiracy Inc., Individually and on behalf of his Sherwin-Williams Company Design defect, marketing defect, negligence and civil conspiracy Siebe North, Inc. Design defect, marketing defect, negligence and civil conspiracy Southern Silica Of Louisiana Design defect, marketing defect, negligence and civil conspiracy Specialty Sand Company Design defect, marketing defect, negligence and civil conspiracy Specialty Sand Company Design defect, marketing defect, negligence and civil conspiracy Sullair Corporation Design defect, marketing defect, negligence and civil conspiracy Survuvair, Inc. Design defect, marketing defect, negligence and civil conspiracy T.L. James and Company, Inc. Design defect, marketing defect, negligence and civil conspiracy 827 Textron, Inc. Design defect, marketing defect, negligence and civil conspiracy Truman's Inc. Design defect, marketing defect, negligence and civil conspiracy Unimin Corporation Individually and on behalf of its Design defect, marketing defect, negligence and civil conspiracy division Unimen Specialty Materials Inc. U.S. Silica Company f/k/a Pennsylvania Glass Sand Design defect, marketing defect, negligence and civil conspiracy Corporation and Ottawa Silica Company and as Successor in interest to Texas Industries Minerals Company Vallen Corporation Design defect, marketing defect, negligence and civil conspiracy Vulcan Materials Company Design defect, marketing defect, negligence and civil conspiracy W J Runyon & Son, Inc. Design defect, marketing defect, negligence and civil conspiracy Wedron Silica Company Design defect, marketing defect, negligence and civil conspiracy Wheelabrator-Frye, Inc. Design defect, marketing defect, negligence and civil conspiracy Wheeler Protective Apparel, Inc. Design defect, marketing defect, negligence and civil conspiracy NOTES [1] Unless otherwise noted, the background information on silica and silicosis contained herein was gathered from the websites of the Centers for Disease Control (www.cdc.gov & www.cdc.gov/niosh/) and the World Health Organization (www.who.int). [2] See generally Martin Cherniak, THE HAWK'S NEST INCIDENT: AMERICA'S WORST INDUSTRIAL DISASTER (Yale Univ. Press 1986). [3] NIOSH has studied several abrasive agents that might be used as substitutes for silica sand during sandblasting. Some of the abrasives studied are steel grit, specular hematite, nickel slag, copper slag, crushed glass, garnet, staurolite, olivine, and coal slag. Most of these abrasives work as well as silica sand and cost about the same or even less. However, the use of a substitute may have other adverse effects. See generally http://www.cdc.gov/elcosh/docs/d0100/d000048/d000048.html. [4] The CDC estimates that this decline in silicosis mortality is due to (1) the loss of jobs in heavy industry, and (2) dust limits in the U.S., which have been increased steadily for approximately thirty years. (Feb. 18, 2005 Trans. at 226.) [5] See www.cdc.gov/niosh/docs/2003-111/pdfs/2003-111d.pdf. [6] See id.; Feb. 18, 2005 Trans. at 228. Alabama ranks 19th, with an age-adjusted mortality rate of 1.20 deaths per million, and Texas ranks 33rd, with an age-adjusted mortality rate of 0.83 deaths per million. See www.cdc.gov/niosh/docs/2003-111/ pdfs/2003-111d.pdf. [7] (Feb. 18, 2005 Trans. at 229.) The researchers compared the number of silicosis deaths on death certificates with the number of silicosis cases reported by doctors, hospitals and worker's compensation agencies in Michigan. (Feb. 18, 2005 Trans. at 231.) In Michigan, silicosis is "reportable", meaning that any diagnosis must be reported to the appropriate agency by law. (By contrast, silicosis is not a reportable disease in Mississippi.) According to occupational medicine expert Dr. Gary Friedman, some experts feel the 6.44 multiplier is too high. (Feb. 18, 2005 Trans. at 231.) The issue is whether the multiplier accurately compensates for the likelihood that silicosis cases are sometimes missed or misdiagnosed by physicians. (Feb. 18, 2005 Trans. at 118.) [8] Dr. Howard William Ory, an epidemiologist who worked for the CDC for 23 years, estimated that based on data from NIOSH's silicosis surveillance system (which actively solicits case reports from pulmonary and occupational medicine physicians and "B-readers" (discussed infra)) and from the Michigan study (referenced supra), there would be between 36 and 73 cases of silicosis diagnosed in Mississippi per year. (Ory Aff. at 3 (attached to MDL 03-1553 Docket Entry 1145).) [9] According to the CDC, Mississippi's silicosis mortality rate ranks 43rd out of the 50 states. See www.cdc.gov/niosh/docs/2003- 111/pdfs/2003-111d.pdf. Outside of Mississippi, the majority of the remainder of Plaintiffs in this MDL reside in Alabama (which ranks 19th in silicosis mortality), Texas (which ranks 33rd), and Kentucky (which ranks 14th). The states with the highest silicosis mortality rates (West Virginia, Vermont, Colorado, Pennsylvania and New Mexico being the top five) are not represented. According to the most recent statistics from the CDC's Morbidity and Mortality Weekly Report, during the years of 1968-2002, "[b]y county, the greatest age-adjusted [silicosis] mortality rates were clustered in western states, northeastern states, and north Atlantic states." http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5416a2.htm. [10] There has been 27 SARS cases in the United States, 251 in Canada, and approximately 8,000 worldwide, mostly in Asia. (Feb. 18, 2005 Trans. at 235.) [11] Title 28 U.S.C. § 1407, the MDL statute, provides in relevant part: When civil actions involving one or more common questions of fact are pending in different districts, such actions may be transferred to any district for coordinated or consolidated pretrial proceedings. Such transfers shall be made by the judicial panel on multidistrict litigation authorized by this section upon its determination that transfers for such proceedings will be for the convenience of parties and witnesses and will promote the just and efficient conduct of such actions. Each action so transferred shall be remanded by the panel at or before the conclusion of such pretrial proceedings to the district from which it was transferred unless it shall have been previously terminated.... 28 U.S.C. § 1407(a). [12] An additional action in this MDL was originally filed in this Court, Alexander v. Air Liquide America Corp., S.D. Tex. Cause No. 03-533. [13] The exact numbers of Plaintiffs and Defendants change on an almost daily basis. This is because claims are either subtracted from this MDL (usually via unopposed motions to dismiss occasioned by settlement or agreement of the parties) or added to this MDL (via conditional transfer orders from the Judicial Panel on Multidistrict Litigation). [14] The four current MDL cases filed outside of Mississippi are: Alexander v. Air Liquide America Corp., S.D. Tex. Cause No. 03-533 (filed originally in this Court on the basis of diversity jurisdiction); Kirkland v. 3M, S.D. Tex. Cause No. 04-639 (filed originally in Georgia state court and subsequently removed to the Northern District of Georgia, where it was assigned cause number 1:04-2152); Covey v. Union Pacific R.R., S.D. Tex. Cause No. 05-93 (filed originally in Missouri state court and removed to the Eastern District of Missouri, where it was assigned cause number 4:03-1686); and, Adams v. Pulmosan Safety Equip. Corp., S.D. Tex. Cause No. 05-183 (filed originally in Kentucky state court and removed to the Western District of Kentucky, where it was assigned cause number 5:04-123). [15] In many cases, the number of Defendants bear no apparent relationship to the number of Plaintiffs. Instead, the number of Defendants (and the identity of the Defendants) seem to be contingent on the identity of the Plaintiffs' law firms rather than the identity of the Plaintiffs. For instance, O'Quinn, Laminack & Pirtle is Plaintiffs' counsel in 18 MDL cases, 16 of which are brought against the same 73 Defendants, despite the fact that the Plaintiffs in those 16 cases range in number from 9 to 410. Likewise, Campbell, Cherry, Harrison, Davis & Dove is Plaintiffs' counsel in two MDL cases, one with 247 Plaintiffs and one with 4,280 Plaintiffs, but both against the same 134 Defendants. [16] At the time of removal, Defendants also argued that federal bankruptcy jurisdiction existed due to the fact that some Plaintiffs had filed bankruptcy. Defendants asserted that "[s]ome or all of the claims in this action are core proceedings or are related to the above-referenced bankruptcy cases, and are within the Court's original jurisdiction." (See, e.g., Notice of Removal, Sullivan v. Aearo, 03-369, ¶ 12.) Defendants did not specify which Plaintiffs had filed for bankruptcy protection or when, instead stating in the removal notices that "defendants cannot without remand-related discovery identify every plaintiff with a bankruptcy case." (Id. ¶ 10.) However, this argument was quickly abandoned by Defendants and has not been reasserted. Since the removing party bears the burden of showing that removal was proper, see Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir.2002), and since Defendants have failed to even attempt to make this showing, the Court will not dwell on the issue of bankruptcy jurisdiction. [17] As discussed infra, fraudulent misjoinder is a doctrine relevant to a federal court's subject-matter jurisdiction specifically, diversity jurisdiction. [18] Order No. 4 provides, in relevant part: 19. The Parties have two weeks to create an affidavit that can be used to develop the factual basis for the claims of each Plaintiff. At a minimum, the Plaintiffs must disclose where they believe they were exposed to silica including the date and location, state their particularized claims against each Defendant, provide medical release authorization, and provide IRS release authorization. The Parties have two weeks to agree on a definition of "silica-related products" that will govern the products claims in this litigation. If an agreement can not be reached on these matters, the Parties are instructed to contact the Court's case manager and a hearing will be held on Thursday, February 5, 2004 at 8:30 a.m. 20. Initial Disclosures must be made by April 5, 2004. Plaintiffs must provide completed affidavits of the factual basis of their claims. In all later transferred cases, Plaintiffs' affidavits must be disclosed within 60 days from the date of transfer by the Judicial Panel on Multidistrict Litigation. Defendants must disclose all silica-related products they manufactured or distributed from the year 1930 forward and include the relevant time frame of production/distribution for each product, pursuant to the agreed definition of "silica-related products." (Order No. 4, ¶¶ 19-20.) This Court entered these Orders, as well as those discussed infra, as an exercise of its "wide discretion" over the management of pretrial discovery, especially when "handl[ing] the complex issues and potential burdens on defendants and the court in mass tort litigation." Acuna v. Brown & Root Inc., 200 F.3d 335, 340 (5th Cir.2000) ("[T]here are approximately one thousand six hundred plaintiffs suing over one hundred defendants for a range of injuries occurring over a span of up to forty years. Neither the defendants nor the court was on notice from plaintiffs' pleadings as to how many instances of which diseases were being claimed as injuries or which facilities were alleged to have caused those injuries. It was within the court's discretion to take steps to manage the complex and potentially very burdensome discovery that the cases would require.") (citing Landry v. Air Line Pilots Ass'n Int'l AFL-CIO, 901 F.2d 404, 436 (5th Cir.1990); Fournier v. Textron, Inc., 776 F.2d 532, 534 (5th Cir.1985) (noting district court's authority to manage and develop complex litigation discovery)). In Acuna, the Fifth Circuit affirmed the district court's dismissal of plaintiffs' claims prior to the commencement of discovery when plaintiffs failed to obey district court's order requiring plaintiffs to submit expert affidavits that "had to specify, for each plaintiff, the injuries or illnesses suffered by the plaintiff that were caused by the alleged uranium exposure, the materials or substances causing the injury and the facility thought to be their source, the dates or circumstances and means of exposure to the injurious materials, and the scientific and medical bases for the expert's opinions." Acuna, 200 F.3d at 338, 340. [19] Certain portions of the Fact Sheets have been omitted from these Exhibits. Specifically, the signed authorizations to release medical and financial records have been omitted, as well as all Social Security earnings statements. [20] More specifically, Plaintiffs have repeatedly argued that in order to aid Plaintiffs in narrowing their claims, they need (1) photos of each silica-related product manufactured, sold or distributed by each Defendant, and (2) sales receipts showing the ultimate destinations of each Defendant's silica-related products. [21] The saying is attributed to William Gladstone. See http://bartleby.school.aol.com/73/954.html. [22] See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Under Daubert and its progeny, the trial court makes a "preliminary assessment of whether the reasoning or methodology underlying the [expert] testimony is scientifically valid and of whether that reasoning or methodology can be applied to the facts at issue." Id. at 592-93, 113 S.Ct. 2786. [23] Many of the Plaintiffs simply failed to obey the Court's repeated orders to submit Fact Sheets. These Plaintiffs will be addressed, infra. [24] The twelve doctors are: Dr. Robert Altmeyer, Dr. James Ballard, Dr. Kevin Cooper, Dr. Todd Coulter, Dr. Andrew Harron, Dr. Ray Harron, Dr. Glynn Hilbun, Dr. Richard Levine, Dr. Barry Levy, Dr. George Martindale, Dr. W. Allen Oaks, and Dr. Jay Segarra. The diagnoses and underlying methodology of Dr. Altmeyer and Dr. Levine are not discussed in this Order. By agreement of the parties (because of the relatively small number of diagnoses Dr. Altmeyer and Dr. Levine issued), neither doctor testified at the Daubert hearings/Court depositions. Throughout this Order, the Court refers to these physicians as the "diagnosing doctors." This is not meant to imply that any of the physicians are fact witnesses. Plaintiffs have made no such claim; instead, Plaintiffs have consistently maintained that the "diagnosing doctors" are "experts" (although, as discussed infra, they have intimated that some of the doctors may be non-testifying experts). [25] Approximately 85 percent of the Plaintiffs who submitted Fact Sheets reported having a treating physician. (Feb. 18, 2005 Trans. at 243.) As a general matter, these Plaintiffs do not appear to be indigent individuals who do not otherwise have access to health care. [26] The nine doctors are: Dr. Robert Altmeyer, Dr. James Ballard, Dr. Kevin Cooper, Dr. Todd Coulter, Dr. Glynn Hilbun, Dr. Richard Levine, Dr. Barry Levy, Dr. George Martindale and Dr. Jay Segarra. The three screening companies are: N & M Inc., RTS Inc., and Innervisions Inc. [27] The Court selected this Plaintiff's report at random from a large number of similar choices. The selection of this Plaintiff, or of any other Plaintiff specifically named in this Order or named in an exhibit attached to this Order, should not be interpreted as a finding that the named Plaintiff does not have silicosis or is a malingerer. The social security number which originally appeared on Exhibit 1 has been redacted. Likewise, all social security numbers on all other Exhibits attached to this Order have been redacted. [28] A "B-reading" is a physician's report of findings from a patient's chest radiograph (i.e., an "x-ray"). This report is entered on a standardized form using a classification system devised by the International Labour Office ("ILO"). NIOSH issues "B-reader" certifications for physicians in the United States. There are approximately 500-700 certified B-readers currently practicing in the United States. (Feb. 18, 2005 Trans. at 76-77.) [29] See also Martindale Dep. at 65-66 ("[M]y interpretation of the whole process was that a physician was taking a good occupational history, a medical history, performing a physical exam, and either he or someone else was overseeing the pulmonary function tests, and there was an interpretation of the chest x-ray at the time all of this was done, and these patients were screened for people who appeared as if they had clinical diagnoses of asbestosis or silicosis and the chest x-ray supported that diagnosis."); 102 ("I assumed that the physician who did the physical, did the history, took the occupational exposure would be making the diagnosis."). [30] A copy of this abbreviated "physical and history" is attached as Exhibit 2. A copy of a pre-printed ILO form is attached as Exhibit 3. [31] Most discovery against non-testifying experts is prohibited by Federal Rule of Civil Procedure 26(b)(4)(B). [32] Instead of affirmatively stating that the doctors have been retained as non-testifying experts, Plaintiffs only vaguely asserted: "Plaintiffs ... object to the extent that Dr. Cooper is a consulting-only expert for any of the 10,000 [Plaintiffs]." (Mot. Quash Cooper Subpoena, MDL 03-1553 Docket Entry 1084, at 3 (emphasis added) (each of the motions to quash contained the same language).) But as set out above, Plaintiffs did affirmatively state in each motion to quash that each doctor was a "Plaintiffs' expert." (See, e.g., Mot. Quash Cooper Subpoena, MDL 03-1553 Docket Entry 1084, at 1.) [33] For ease of reference, hereinafter the Court will refer to the "Daubert hearings/Court depositions" as simply, "Daubert hearings." [34] Specifically, the Defendants had charged that all of Dr. Martindale's diagnoses were "fraudulent", while Plaintiffs intimated that the Defendants exerted some type of improper influence in order to "flip" Dr. Martindale. [35] Rule 706 provides, in part: The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. Fed.R.Evid. 706(a). [36] In this motion, and at other times during the MDL proceedings, Defendants have argued that Mississippi law does not recognize a cause of action for fear of contracting a disease or illness in the future, no matter how reasonable the fear. However, it is worth noting that the pronouncements from the Mississippi Supreme Court have not been so clear. Most recently, the Court stated: We have before found that emotional distress inflicted either negligently or intentionally is compensable. However, emotional distress based on the fear of a future illness must await a manifestation of that illness or be supported by substantial exposure to the danger, and be supported by medical or scientific evidence so that there is a rational basis for the emotional fear. We do not harm and, in fact, preserve a recovery for emotional distress when the same is based on such a foundation. S. Cent. Reg'l Med. Ctr. v. Pickering, 749 So.2d 95, 99 (Miss.1999) (emphasis added) (quoting Leaf River Forest Prods., Inc. v. Ferguson, 662 So.2d 648, 650 (Miss.1995)); see also Jackson v. Johns-Manville Sales Corp., 781 F.2d 394, 414 (5th Cir.1986) ("Jackson's claim is not merely that he might get cancer, or that there is a remote possibility that he will. Jackson has established that there is a greater than fifty percent chance that he will get cancer. Who can gainsay that this knowledge causes him anguish, or that this anguish is reasonable? Certainly not this court and, in our view, not the Mississippi Supreme Court.") (emphasis in original) (citation omitted). Thus, it appears that a claim for fear of a future illness may be compensable in the absence of manifestation of that illness, so long as the claim is "supported by substantial exposure to the danger, and ... supported by medical or scientific evidence so that there is a rational basis for the emotional fear." S. Cent. Reg'l Med. Ctr., 749 So.2d at 99. [37] In addition, at least according to Defendant 3M, whether the Plaintiffs have sustained an injury is relevant to the issue of whether the jurisdictional amount-in-controversy requirement has been met. As alleged in the Complaint and the Fact Sheets, Plaintiffs' claims of injuries largely hinge on the experts' diagnoses of silica-related disease. In light of Dr. Martindale's deposition, the validity of at least 3,617 Plaintiffs' diagnoses was in question. [38] These reports are not mentioned on Plaintiffs' Fact Sheets. Instead, according to the Fact Sheets, all of the Plaintiffs who were examined by Dr. Hilbun or Dr. Cooper were diagnosed with silicosis by Dr. Martindale. [39] Dr. Levy stated that a physical examination is not necessary to diagnose silicosis. (Feb. 16, 2005 Trans. at 23.) However, Dr. Levy has previously testified in another silicosis case that the taking of a physical, as well as a history, are "standard methodologies" in diagnosing silicosis. Specifically, he testified: The methodologies I've used [in diagnosing plaintiff with silicosis], including differential diagnosis, including reviewing the soundness of the X-rays and the literature, as well as the body of the literature as a whole, including use of Bradford Hill principles, all of those methodologies, the methodologies I've used in reviewing his past medical history, taking a history from him, performing a physical examination, all of those are standard methodologies used by physicians and by epidemiologists. (Feb. 16, 2005 Trans. at 155.) [40] PFTs, which will be discussed infra, are a broad range of physiological tests that measure how well the lungs take in and exhale air and how efficiently they transfer oxygen into the blood. [41] Moreover, Dr. Segarra testified that on the rare times he has relied upon another doctor's B-read, he refuses to make a final diagnosis until he sees the patient's x-ray himself. (Feb. 16, 2005 Trans. at 360-61.) And on one of those occasions, when he looked at the film, he changed his diagnosis. (Id.) [42] "Pneumoconiosis" is the general term for a disease of the lungs, such as asbestosis or silicosis, caused by long-continued inhalation of dusts or fibers or other extrinsic materials. [43] The discussion of the ILO classification system contained herein, see infra, is based on the ILO Guidelines (1980 and 2000 Editions), from testimony during the Daubert hearing, see Feb. 16, 2005 Trans. at 333, 340 & Feb. 18, 2005 Trans. at 44, and from the testimony of Dr. Laura Welch and Dr. David Weill before the Senate Judiciary Committee on February 2-3, 2005, see 2005 WLNR 2777131. [44] "P", "Q" and "R" mean that rounded opacities are present, with "P" representing diameters up to 1.5 mm, "Q" diameters from 1.5 mm to 3 mm, and "R" diameters from 3 mm to 10 mm. (Opacities over 10 mm are described as large opacities in box "2C." of the ILO form.) Small irregular/linear opacities in the same size ranges are classified as "S", "T" and "U". [45] See International Labour Office, Guidelines for the Use of the ILO International Classification of Radiographs of Pneumoconioses at 2 (2000). [46] Reader variability is most likely to occur on profusions (i.e., "1/0" versus "0/1") rather than in zones or opacity sizes and shapes. (Feb. 18, 2005 Trans. at 137-38.) [47] Dr. Parker explained: To reach a medical diagnosis certainly requires more than just shadows on a chest x-ray. Because those shadows can be caused by any number of disease processes. You would be quite interested whether the individual, if the shadows were consistent with silicosis, you would be quite interested in their workplace exposures over their lifetime.... [In making t]he differential diagnosis, you're interested in their [occupational and exposure] history, their review of systems, their past medical history. There are drugs that can cause shadows on x-rays, or pharmaceutical preparations that can injure lung and cause shadows on the x-ray. There are organic dust exposures and inorganic dust exposures that can cause shadows on the x-ray. There are collagen vascular diseases such as rheumatoid arthritis, lupus, that can cause shadows on the x-ray. There's this unusual disorder, sarcoidosis, that can cause shadows on the x-ray, and congestive heart failure can cause shadows on the x-ray. Obese patients, as well as patients who take a shallow breath or other technical quality abnormalities with the film may lead to shadows on the x-ray that may be misleading and thought to be abnormal. But if the film is repeated with better technique, may appear more normal. (Feb. 18, 2005 Trans. at 91-93.) Similarly, Dr. Friedman testified about the "infections and [the] host of different diseases" that can look like silicosis on an x-ray, again highlighting the need for a differential diagnosis. (Feb. 18, 2005 Trans. at 229.) [48] For example, if the patient had traveled in, or previously lived in, certain areas of California and Arizona, then coccidioidomycosis would need to be ruled out as a cause of the x-ray findings prior to making a diagnosis of silicosis. (Feb. 16, 2005 Trans. at 101-02.) [49] As Dr. Todd Coulter, one of Plaintiffs' diagnosing physicians, testified: A: [T]here's more to this than meets the eye. The history has to be expansive but it also has to be guided, if you will, by what the patient tells you.... We ask about social history. We ask about family history. I ask about smoking history. Where I live on the Gulf Coast of Mississippi I want to know about their military history. We've got a lot of people who have traveled all over the world. I want to know about their their public health history, such as, inoculations and immunizations.... Q: So in reviewing the ... information that the patient has given you, you then sit down with a patient and flush that out for more information that you consider important? A: History, history, history, yes, sir. (Feb. 17, 2005 Trans. at 43-47.) [50] Similarly, Dr. Gary Friedman, whose testimony will be discussed infra, testified that he usually spends between an hour and an hour and a half with the patient. (Feb. 18, 2005 Trans. at 253.) He continued: "And then after that, I read the x-rays, go over pulmonary function tests, review the medical records, frequently contact the treating doctor. So the total time [to diagnose] is longer." (Feb. 18, 2005 Trans. at 253.) [51] It is worth noting that because Dr. Segarra only diagnosed a single Plaintiff in this MDL, the Defendants suggested that he not be required to testify at the hearing. However, the Plaintiffs insisted that Dr. Segarra be permitted to testify, and the Court granted Plaintiffs' request. (Feb. 16, 2005 Trans. at 357-58.) Defendants have not challenged Dr. Segarra's testimony under Daubert. [52] The information presented in this section comparing silicosis and asbestosis was derived from "Asbestosis and Silicosis," 349 The Lancet 1311, 1997 WL 9330702 (May 3, 1997). [53] Dr. Parker did testify that he has seen pathologic evidence (i.e., after an autopsy or biopsy) of both diseases being present. (Feb. 18, 2005 Trans. at 89.) But he called such pathologic findings "distinctly unusual." (Feb. 18, 2005 Trans. at 90.) [54] Mr. Mason has attended a three-day course in administering Pulmonary Function Tests. (Feb. 17, 2005 Trans. at 272, 300.) [55] For instance, sometimes another B-reader would read the x-ray, while Dr. Harron would perform the physical examination and make the diagnosis. (Feb. 17, 2005 Trans. at 283.) [56] Throughout this Order, Dr. Ray Harron will be referred to either as "Dr. Harron" or "Dr. Ray Harron," while his son will always be referred to as "Dr. Andrew Harron." [57] A photo of a screening truck used by RTS is attached as Exhibit 14. [58] A photo of a screening van used by N & M is attached as Exhibit 15, and a photo of a screening truck used by RTS is attached as Exhibit 14. [59] An example of a form used in an N & M screening is attached as Exhibit 16. (Feb. 17, 2005 Trans. at 291-92, 306-07.) The client did not fill out the form between "Doctor Comments:" and "Pulmonary Function Test Results:". [60] Campbell Cherry represents approximately 4,256 Plaintiffs in this MDL. [61] The most common PFTs are spirometry (often repeated after the administration of a bronchodilator such as albuterol), flow-volume loops, single breathing diffusing capacity (known as "DLCO"), helium dilution lung volumes, arterial blood gas analysis, pulse oximetry and sputum induction. See generally http://www.hopkinsmedicine.org/pftlab/pftests.html. [62] Spirometry is a measurement of forced expiration. The patient inhales maximally, filling his or her lungs to "Total Lung Capacity," and then exhales forcefully into a device called a spirometer. The spirometer measures the volume and time of expiration, which allows the calculation of a number of parameters of lung functioning. See http://www.hopkinsmedicine.org/ pftlab/pftests.html. [63] A copy of an ILO form is attached as Exhibit 18. A copy of the "A-sheet" is attached as Exhibit 16. (Feb. 17, 2005 Trans. at 319.) As is apparent by the "Doctor Comments" section of the A-sheet, the physical examination was very circumscribed and very brief. (Feb. 17, 2005 Trans. at 323.) For instance, the patient did not change into a gown or lie down. (Feb. 17, 2005 Trans. at 321-22.) The notation "⊕ 1/0" at the bottom of Exhibit 16 indicates Dr. Harron's profusion level reading. (Feb. 17, 2005 Trans. at 319-20.) [64] In some of these cases, the initial silicosis B-reader also had read that Plaintiff's x-ray as consistent with asbestosis for asbestos litigation. (Feb. 17, 2005 Trans. at 331-33, N & M Ex. 17.) [65] These reports were produced for the O'Quinn firm, which, in most instances, took the work histories of the clients. N & M, according to Mr. Mason, "would just verify that information with the client." (Feb. 17, 2005 Trans. at 400.) [66] All of the silicosis reports were addressed to the O'Quinn firm at 440 Louisiana Ave. in Houston, while all of the asbestosis reports were addressed to Foster & Harssema, also at 440 Louisiana Ave. in Houston. Mr. Mason explained that the same law firm "had two sets of lawyers ... for this particular thing one to handle their silica exposure, one to handle their asbestos exposure." (Feb. 17, 2005 Trans. at 400.) [67] See generally http://www.mantrust.org. [68] Dr. Harron is correct that it is a legal standard. The Mississippi Supreme Court has stated that "[a] medical expert need not testify with absolute certainty." Stratton v. Webb, 513 So.2d 587, 590 (Miss.1987). In Stratton, the defendants argued that the plaintiff had not provided the appropriate medical expert testimony to satisfy causation requirements because the medical expert had testified that he could not positively state the cause of the plaintiff's medical condition. See id. at 589. However, the expert testified that the plaintiff had back problems following her accident and felt the injury was related to the accident. See id. at 590. In finding that there was sufficient causation evidence to sustain the verdict, the court stated that the expert's "testimony, taken as a whole, sufficiently established a reasonable medical certainty that the accident caused the injuries." Id.; see also Blake v. Clein, 903 So.2d 710, 731 (Miss.2005) (same). [69] Unfortunately, Mr. Connell's A-sheet was missing. Dr. Harron repeatedly was constrained in answering questions about his diagnoses because he kept no records for his litigation work. All of the materials he used and produced were sent to N & M. (Feb. 16, 2005 Trans. at 299, 318.) N & M and/or the Plaintiffs' lawyers involved only produced a handful of the A-sheets for the 6,350 Plaintiffs that Dr. Harron diagnosed in this MDL. (Feb. 16, 2005 Trans. at 300.) [70] Based upon the initials at the bottom of the diagnosing reports, the typist was not Dr. Harron's long-time secretary or the former x-ray technician on his staff, but he supposed it was "translate[d]" by an unidentified member of "a stable of ... secretarial help [on the second floor of his office building]... that is always looking for extra work." (Feb. 16, 2005 Trans. at 289-90, 322.) [71] Dr. Friedman was hired by the Defendants to testify at the Daubert hearings. However, it is worth noting that in the 23 years Dr. Friedman has consulted in medical/legal matters, 90-95 percent of his work has been for plaintiffs' lawyers. (Feb. 18, 2005 Trans. at 216-17.) Indeed, Dr. Friedman is currently employed in other cases by many of the Plaintiffs' lawyers in this MDL. (Feb. 18, 2005 Trans. at 216-17.) [72] After Dr. Martindale withdrew his 3,617 diagnoses, Plaintiffs proposed to substitute each of Dr. Martindale's diagnoses with one from Dr. Harron. (Feb. 16, 2005 Trans. at 317.) Whether these were cases where Dr. Harron had already produced diagnosing reports which just had not been used, or whether Plaintiffs were proposing that Dr. Harron would perform the diagnoses anew, was not made clear. [73] As discussed supra, "S" and "T" opacities are linear or irregular opacities. See generally Exhibit 9, attached hereto. [74] As discussed supra, "intra-reader variability" is the phenomenon of the same reader reading the same film differently on different occasions. (Feb. 16, 2005 Trans. at 334.) [75] Dr. Harron testified that he does not supervise the protocol for shooting the x-rays, so he does not know how any of the x-rays were shot. (Feb. 16, 2005 Trans. at 341.) [76] Unfortunately, since the x-rays had not been produced, the x-rays could not be examined. [77] Most of Dr. Harron's "consistent with silicocis" B-reads (i.e., finding "P", "Q" or "R" as the primary and/or secondary opacity), contain a primary or secondary opacity reading which may also be consistent with asbestosis (i.e., an "S", "T" or "U" reading). However, none of his silicosis reports mention asbestosis. [78] Most of Dr. Harron's "consistent with silicocis" B-reads (i.e., finding "P", "Q" or "R" as the primary and/or secondary opacity), contain a primary or secondary opacity reading which may also be consistent with asbestosis (i.e., an "S", "T" or "U" reading). Therefore, because it is possible that some of Dr. Harron's B-reads for this silicosis litigation may have been consistent with both silicosis and asbestosis, some of these B-reads may have not been complete reversals, or, "about as wide[] [a] variance as you can get" (Feb. 16, 2005 Trans. at 343), but they are nonetheless major reversals; this is because, in the words of Dr. Segarra, "you're crossing over on the ... small opacity from an irregular to a rounded one." (Feb. 17, 2005 Trans. at 13.) Moreover, none of his silicosis reports mention asbestosis. [79] Specifically, Dr. Segarra testified that acceptable intra-reader variability is having the same reader read the same film identically 75-80 percent of the time. (Feb. 17, 2005 Trans. at 14.) And "of the 20 to 25 percent that are different most of the changes should be minor. You can have a couple that are totally different, that happens because medicine is not an exact science and people are human, but they shouldn't all be complete changes from irregular to rounded or rounded to irregular." (Feb. 17, 2005 Trans. at 14.) Meanwhile, Dr. Friedman testified that a 10 percent intra-reader variability rate can be expected. (Feb. 18, 2005 Trans. at 298.) [80] Although Dr. Ballard was not licensed to practice medicine in Mississippi, he traveled with RTS to Mississippi and read x-rays in the course of screens. (Feb. 18, 2005 Trans. at 37-38.) The issue of whether Dr. Ballard's or RTS's activities constituted the unauthorized practice of medicine for the purpose of the State of Mississippi is not before this Court. However, upon remand, if Plaintiffs persist in basing their silicosis claims on diagnoses founded on Dr. Ballard's B-reads, then this issue may be relevant. (See generally Feb. 18, 2005 Trans. at 37-43.) [81] Thus, for the B-reads Dr. Ballard performed for cases in this MDL, he was paid approximately $66,000. He testified that in 2002 and 2001, he was paid approximately $1 million for performing B-reads in asbestos litigation. (Feb. 18, 2005 Trans. at 33.) [82] Dr. Ballard found her pleural thickening to be the most extensive category on the ILO form a category "3", meaning the pleural plaques were visible on more than half of the length of the chest. (Feb. 18, 2005 Trans. at 45-46.) [83] For the past 18 years, Dr. Levy has not been a treating physician, but instead earns his income through consulting in litigation on behalf of plaintiffs. (Feb. 16, 2005 Trans. at 37, 41-42, 52.) His standard billing rate is $600 per hour, and he has the option of charging $900 per hour for weekend and after-hours work. (Feb. 16, 2005 Trans. at 42-43.) For example, excluding his travel time, Dr. Levy billed approximately $34,000 simply to prepare for his testimony at the Daubert hearings. (Feb. 16, 2005 Trans. at 49-51.) [84] Dr. Levy is not a B-reader and did not see any of the Plaintiffs' x-rays. (Feb. 16, 2005 Trans. at 38, 71.) Of Dr. Levy's approximately 1,389 diagnoses, Dr. Ballard performed the B-read on 950 and Dr. Allen Oaks (whose testimony is discussed infra) performed the B-read on 145, and numerous other physicians performed the remainder of B-reads. (Feb. 16, 2005 Trans. at 176.) [85] As was the case with Dr. Ballard, the Court need not delve into the issue of whether Dr. Levy's diagnosing of Plaintiffs who were examined in Mississippi, Texas and Alabama constitutes the unlicensed practice of medicine in those states. It is worth noting that Dr. Levy has considered the issue, and his "conclusion was that I was not practicing medicine, that I was providing diagnostic information in the context of medical/legal consultation." (Feb. 16, 2005 Trans. at 56-57.) [86] Dr. Levy testified that excluding the 379 people who did not have a sufficient exposure to silica (and therefore could be evaluated quickly), he spent an average of about five minutes on his diagnostic evaluations. (Feb. 16, 2005 Trans. at 67-69.) By comparison, Dr. Segarra and Dr. Friedman each testified that they spend in excess of an hour to diagnose a patient with silicosis. (Feb. 16, 2005 Trans. at 366; Feb. 18, 2005 Trans. at 253.) [87] The information contained in Exhibit 28 represents all of the information Dr. Levy had when he made his diagnosis. (Feb. 16, 2005 Trans. at 111.) [88] According to Dr. Levy's writings: The occupational history has five key parts: (A) description of all the patient's pertinent jobs, both past and present; (B) a review of exposures based by the patient in these jobs; (C) information on the timing of symptoms in relation to work; (D) data on similar problems among coal workers; and (E) information on non-work factors such as smoking and hobbies that may cause or contribute to disease or injury. (Feb. 16, 2005 Trans. at 134-35.) Dr. Levy has also explained that in taking an occupational history, "[t]he number of hours per day and days per year [of exposure to silica] is an important piece of information." (Feb. 16, 2005 Trans. at 144.) Moreover, an occupational history is important not only to determine the exposure of an individual to silica, but also to attempt to determine the dose. "Exposure" means to be in close proximity or contact with a hazardous substance, whereas "dose" means the amount of that hazardous substance in this case, silica that gets into the body. (Feb. 16, 2005 Trans. at 146.) If a worker is exposed to silica, but does not get any silica into his or her body, then it is not a hazardous situation. (Feb. 16, 2005 Trans. at 146.) Hence, questions about dosage are also important. As Dr. Levy has written: Equally pertinent, when asking about exposures ..., the physician should ask questions such as: Does the ventilation system always work adequately? Is it usually turned off, especially in the winter? Do workers follow instructions when performing certain work tasks or when using personal protective equipment? Some physicians might be surprised at how aware workers are of such matters. (Feb. 16, 2005 Trans. at 145-46.) [89] In response to these and other quotations from his writings about the importance of taking a history, Dr. Levy responded that "[i]t is impossible to obtain a detailed occupational history on every patient seen." (Feb. 16, 2005 Trans. at 130.) While that statement may be true, that does not mean it is reasonable medical practice to not even attempt to take a detailed history from a patient who is available and willing to give one. [90] One notable exception is Roosevelt Sykes, the Plaintiff diagnosed by Dr. Segarra. [91] Some of the people Dr. Coulter diagnosed are not Plaintiffs in this MDL, but are plaintiffs in cases pending in state court. [92] He currently averages 40-45 patients a day in his clinic. (Feb. 17, 2005 Trans. at 69.) [93] These purportedly thorough histories have never been produced, despite the Court's admonition to Plaintiffs' counsel that if Plaintiffs wished to rely on those histories, they needed to be produced. (Feb. 17, 2005 Trans. at 107-09, 117-19.) [94] Dr. Coulter is not a B-reader, and did not complete an ILO form for any of the Plaintiffs. [95] According to Dr. Coulter, in laymen's terms, this means that "[t]he lungs sounded rather junky." (Feb. 17, 2005 Trans. at 136.) More specifically, "[r]honchi are sounds that resemble snoring. They are produced when air movement through the large airways is obstructed or turbulent." See www.nlm.nih.gov/medlineplus/ ency/article/003323.htm. By contrast, "[r]ales (crackles or crepitations) are small clicking, bubbling, or rattling sounds in the lung. They are believed to occur when air opens closed alveoli (air spaces)." Id. [96] As was the case with most of the other diagnosing doctors, Dr. Oaks did not consider the Plaintiffs his patients. (Feb. 17, 2005 Trans. at 186-87.) [97] If the disease advances to the lower lobes, it will also remain evidence in the upper- and midlobes. [98] See Defendants' Motion to Exclude Plaintiffs' Experts, MDL 03-1553 Docket Entry 1149; and, Defendant 3M Co.'s Mot. for Appointment of a Technical Advisory Panel and Joinder in Defs.' Mot. to Exclude Pls.' Experts' Testimony, MDL 03-1553 Docket Entry 1145. [99] All three of these steps may be bypassed with a biopsy of the patient's lung tissue which shows silicosis. Except for Plaintiff Clark Kirkland, discussed infra, no Plaintiff alleges a biopsy diagnosis. [100] Although Dr. Levy is not the worst offender among these screening company doctors, because of his sterling credentials and voluminous scholarly works, his participation in this enterprise is perhaps the most disappointing. [101] As noted supra, while Dr. Friedman was hired by the Defendants to testify at the Daubert hearings, in the 23 years Dr. Friedman has consulted in medical/legal matters, 90-95 percent of his work has been for plaintiffs' lawyers. (Feb. 18, 2005 Trans. at 216-17.) Indeed, Dr. Friedman is currently employed in other cases by many of the Plaintiffs' lawyers in this MDL. (Feb. 18, 2005 Trans. at 216-17.) [102] The challenged doctors are: Dr. Ballard, Dr. Cooper, Dr. Coulter, Dr. Andrew Harron, Dr. Ray Harron, Dr. Hilbun, Dr. Levy, Dr. Martindale, and Dr. Oaks. [103] Coal workers' pneumoconiosis and silicosis are different diseases. [104] The latest version of the Guidelines state that the ILO Classification System "does not imply legal definitions of pneumoconioses for compensation purposes and does not set or imply a level at which compensation is payable." International Labour Office, Guidelines for the Use of the ILO International Classification of Radiographs of Pneumoconioses at 1 (2000). [105] The American College of Occupational and Environmental Medicine did state that it would support the use of a B-read for the diagnosis of pneumoconiosis in epidemiological studies, an application which is not relevant to this MDL. (Feb. 18, 2005 Trans. at 299.) [106] NIOSH calls this "blinding readers" i.e., hiding the work history of the person who was x-rayed. According to NIOSH's website: [o]verall bias can occur when readers know the nature of the workplace exposure of the radiographs being classified. Knowledge of exposures can bias readers to recording more or fewer abnormalities or preferentially selecting certain types of abnormality (e.g., rounded opacities for silica-exposed workers versus irregular for asbestos-exposed workers). See http://www.cdc.gov/niosh/ topics/chestradiography/ interpretation.html. [107] Dr. Friedman gave an example of how screenings can be helpful: [U]nder OSHA, the requirement for asbestos is a yearly chest x-ray over age 40, with exposure ten years prior. And if you have contractors who go from employer to employer, none of the employers want to perform the yearly chest x-ray, because... the employee ... may only be there for a limited number of months. And so they kind of fall through the cracks, and so they get the screening through their union. And it is those trades, like boilermakers, pipe fitters, insulators, that have recognizable levels of exposure, I think it's appropriate for their unions to provide the screening. If that's done with the aid of lawyers and that's the way it's done, I see no problem with that. Personally, I have more of a problem with the mass media advertising to the general public, where you're not targeting known exposed trades. (Feb. 18, 2005 Trans. at 303.) Even the mass screenings conducted in this litigation had some tangential benefits. Dr. Harron and Dr. Coulter each testified that one benefit of these mass screenings was that on a couple of occasions, the doctor examining the x-ray found evidence of cancer or an enlarged heart. (Feb. 16, 2005 Trans. at 264; Feb. 17, 2005 Trans. at 58.) Also, two of the people Dr. Coulter first saw during a screening became patients at his clinic, although not for treatment related to silicosis. (Feb. 17, 2005 Trans. at 56, 61.) [108] Dr. Parker elaborated: So to give someone a batch of 100 films, it's ideal to spike that set with some known positives and some known negatives as a quality control on your readers, to see how successful they are at identifying the absence of abnormality or the presence of abnormality on those films. (Feb. 18, 2005 Trans. at 132.) [109] More specifically, Campbell Cherry paid N & M $750 for each of the firm's 4,256 Plaintiffs in this MDL, and nothing for anyone who did have a positive diagnosis or did not engage the firm. (Feb. 17, 2005 Trans. at 301-03, 325, 363.) [110] Specifically, Dr. Coulter testified that "I looked up something in the textbook of Internal Medicine on silicosis and found some basic information and said, well, it doesn't seem like it would be that difficult and that's why I consented [to perform the screenings]." (Feb. 17, 2005 Trans. at 72.) [111] See Gitlin, et al., Comparison of "B" Readers' Interpretations of Chest Radiographs for Asbestos Related Changes, 11 Acad. Radiol. 843 (Aug.2004). Prior to the Daubert Hearing, the Court granted a motion to quash the deposition subpeonas that Plaintiffs had issued to the authors of this study. Among the reasons the Court quashed the subpeonas was that all parties stipulated that this asbestosis study was irrelevant to this MDL. After the Daubert hearings, while the Court finds the results of this study to be unsurprising, the Court will not rely upon the study in making any Daubert rulings. [112] For instance, Dr. Segarra testified that "ruling out the other diseases ... can often be done by history. The physical exam plays usually a small role in that regard. The history is more important." (Feb. 16, 2005 Trans. at 353-54.) [113] As Dr. Todd Coulter, one of Plaintiffs' diagnosing doctors, testified: A: [T]here's more to this than meets the eye. The history has to be expansive but it also has to be guided, if you will, by what the patient tells you.... We ask about social history. We ask about family history. I ask about smoking history. Where I live on the Gulf Coast of Mississippi I want to know about their military history. We've got a lot of people who have traveled all over the world. I want to know about their their public health history, such as, inoculations and immunizations.... Q: So in reviewing the ... information that the patient has given you, you then sit down with a patient and flush that out for more information that you consider important? A: History, history, history, yes, sir. (Feb. 17, 2005 Trans. at 43-44.) [114] See http://dictionary.reference.com/ search?q=iatrogenic. [115] This is not to say that the challenged physicians did not willingly abdicate their role in the usual physician-patient relationship. [116] The attorney was arguing that he should not be required to place in the MDL document depository the silicosis B-reads of his non-MDL state-court clients. (Feb. 18, 2005 Trans. at 9-11.) [117] The Court is mindful of the following advice, stated in a different context by the court in Holbrook v. Lykes Bros. S.S. Co., Inc., 80 F.3d 777, 785 (3d Cir.1996): "We have not required that when medical experts give their opinion, they recite the talismanic phrase that their opinion is given to `a reasonable degree of medical certainty,' because care must be taken to see that the incantation does not become a semantic trap...." [118] The challenged doctors are: Dr. Ballard, Dr. Cooper, Dr. Coulter, Dr. Andrew Harron, Dr. Ray Harron, Dr. Hilbun, Dr. Levy, Dr. Martindale, and Dr. Oaks. [119] The Mississippi Supreme Court has adopted the Federal Rule 702/Daubert standard for determining the admissibility of expert testimony. See Mississippi Transp. Comm'n v. McLemore, 863 So.2d 31, 39 (Miss.2003) ("[T]his Court today adopts the federal standards and applies our amended Rule 702 for assessing the reliability and admissibility of expert testimony."). Hence, the legal standards discussed herein should be applicable in Mississippi state courts. [120] Six of the Plaintiffs submitted diagnoses from both Dr. Harron and Dr. Levy. [121] Dr. Levy explained: "I don't know anything about the screening that the plaintiffs had. I recognize that people had the B-readings and so forth. I'm not familiar with what actually took place." (Feb. 16, 2005 Trans. at 148.) [122] Another area where Dr. Levy fails to "employ[] in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field," Kumho Tire, 526 U.S. at 152, 119 S.Ct. 1167, is illustrated by the following exchange: DR. LEVY: Here's a gentleman like many other people who have both silicosis and asbestosis.... Q: If he had both, why didn't you diagnose him with both? DR. LEVY: My job was not to make diagnoses of asbestosis. . . . . . Q: Okay. THE COURT: [Your] job is not to make diagnosis of anything other than silicosis. DR. LEVY: Well, yes. (Feb. 16, 2005 Trans. at 213.) In contrast to Dr. Levy's litigation reports, "[a] treating physician, of course, would have noted all potential abnormalities on the first report." Dr. David Weill, Senate Judiciary Committee Testimony, Fed. Doc't Clearinghouse at 8 (Feb. 3, 2005). [123] The deadline for the designation of experts has past. [124] The Court makes no finding as to the extent of Mr. Kirkland's injury, or whether it was caused in whole or in part by the inhalation of silica. [125] Mr. Kirkland and his wife are the only Plaintiffs in Kirkland v. 3M Company, cause number 04-639. [126] Mr. Kirkland was a plaintiff in a suit filed in Georgia state court on April 11, 2003, and then voluntarily dismissed on April 17.2003. On January 28, 2004, the same case was refiled in a different Georgia state court by Scott C. Monge as lead counsel. This subsequent action was removed to federal court and, on November 24, 2004, the case was conditionally transferred to this MDL. Mr. Kirkland alleges that he has developed silicosis as a result of exposure to silica dust while a rock driller for the U.S. Army in the 1970's. (Kirkland Dep. at 18.) [127] The specifics of Mr. Kirkland's allegations are matters for another forum. [128] When considering the issue of federal subject-matter jurisdiction, the Court will apply the law of the Fifth Circuit. See In re Temporomandibular Joint Implants Prods. Liab. Litig., 97 F.3d 1050, 1055 (8th Cir.1996) ("When analyzing questions of federal law, the [MDL] transferee court should apply the law of the circuit in which it is located.") (citing In re Korean Air Lines Disaster, 829 F.2d 1171, 1176 (D.C.Cir.1987), aff'd, 490 U.S. 122, 109 S.Ct. 1676, 104 L.Ed.2d 113 (1989)); see also Murphy v. F.D.I.C., 208 F.3d 959, 965-66 (11th Cir.2000) (same); Menowitz v. Brown, 991 F.2d 36, 40 (2d Cir.1993) (same). Jurisdiction is "arguably the area where the need for uniformity in federal law is most compelling." In re StarLink Corn Prods. Liab. Litig., 211 F.Supp.2d 1060, 1063-64 (D.C.Ill.2002). "The diversity jurisdiction law of the [MDL] transferee court should be applied because `applying the law of the transferor circuit could yield a situation where we would find federal jurisdiction exists over claims from some parts of the country, but not from others. This is an untenable result.'" In re Mastercard Int'l, Inc. Internet Gambling Litig., 2004 WL 287344, 2 (E.D.La. Feb.12, 2004) (quoting In re StarLink Corn Prods. Liab. Litig., 211 F.Supp.2d at 1063-64); see also In re Bridgestone/Firestone, Inc., Tires Prods. Liab. Litig., 256 F.Supp.2d 884, 888 (S.D.Ind.2003) (same); In re Diet Drugs Prods. Liab. Litig., 220 F.Supp.2d 414, 423 (E.D.Pa.2002) ("As an MDL Court sitting within the Third Circuit, we must apply our Court of Appeals' fraudulent joinder standard."). [129] Unless specifically referenced infra, the following discussion of the Court's subject-matter jurisdiction applies to the removed cases listed in "Appendix A," attached hereto. [130] The federal removal statute, 28 U.S.C. § 1441(a), allows for the removal of "any civil action brought in a State court of which the district courts of the United States have original jurisdiction." [131] As previously discussed, at the time of removal, Defendants also argued that the Court possessed bankruptcy jurisdiction due to the fact that some Plaintiffs had filed bankruptcy. However, this argument has been abandoned. See footnote 16, supra. [132] "The Supreme Court has long interpreted § 1332's phrase `matter in controversy' not to allow multiple plaintiffs to add together separate and distinct demands, united for convenience and economy in a single suit, to meet the requisite jurisdictional level." Allen, 63 F.3d at 1330 ("The general rule is that each plaintiff who invokes diversity of citizenship jurisdiction must allege damages that meet the dollar requirement of § 1332.") (quotation and citations omitted). [133] As discussed infra, Alexander was originally filed in this Court. [134] In Gebbia, the Fifth Circuit held that it was "facially apparent" that the following allegations made a claim for damages in excess of $75,000: Plaintiff alleged in her original state court petition that she sustained injuries to her right wrist, left knee and patella, and upper and lower back. Plaintiff alleged damages for medical expenses, physical pain and suffering, mental anguish and suffering, loss of enjoyment of life, loss of wages and earning capacity, and permanent disability and disfigurement. Gebbia, 233 F.3d at 883. [135] In its Motion to Remand, 3M argues that the evidence presented during the Daubert hearings constitutes "summary judgment-type evidence" showing that most Plaintiffs do not satisfy the amount-in-controversy requirement. However, in the Fifth Circuit, a court looks to "summary judgment-type evidence" only if it is not "facially apparent" that the claims exceed the jurisdictional minimum. See St. Paul Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1250, 1253-54 (5th Cir.1998) ("The district court must first examine the complaint to determine whether it is `facially apparent' that the claims exceed the jurisdictional amount. If it is not thus apparent, the court may rely on `summary judgment-type' evidence to ascertain the amount in controversy.") (emphasis added); cf. H & D Tire and Automotive-Hardware, Inc. v. Pitney Bowes Inc., 227 F.3d 326, 329 (5th Cir.2000) ("Because it is not facially apparent from the complaint that the jurisdictional amount is satisfied, we will look elsewhere in the record to determine the amount in controversy.") (emphasis added); Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1336 (5th Cir.1995) ("In situations where the facially apparent test is not met, the district court can then require parties to submit summary-judgment-type evidence, relevant to the amount in controversy at the time of removal.") (emphasis added). In a footnote, the Allen court continued: "The efficient procedure is to not require such `summary judgment' proof until after the initial consideration of the face of the complaint." Allen, 63 F.3d at 1336 n. 16. Therefore, in these MDL cases, because it is "facially apparent" from the Complaints that the amount-in-controversy requirement is satisfied, the evidence adduced at the Daubert Hearings may not be used to subsequently show that the amount-in-controversy requirement is not satisfied. [136] The requirement that a Defendant be "properly joined" is discussed infra. [137] The pertinent allegations in all of the Notices of Removal are identical. [138] The term, "improper joinder," was recently adopted by the Fifth Circuit. See Smallwood, 385 F.3d at 571 n. 1 ("We adopt the term `improper joinder' as being more consistent with the statutory language than the term `fraudulent joinder,' which has been used in the past. Although there is no substantive difference between the two terms, `improper joinder' is preferred."). [139] For example, in all but one of the MDL cases, the Defendants who manufacture air compressors have argued that, as a matter of law, they had no duty to warn Plaintiffs of the health hazards associated with respirable silica and abrasive blasting. (See MDL 03-1553 Docket Entries 1107 & 1108; see also Barnes v. Alabama Carbonates LP, S.D. Tex. Cause No. 03-511, Docket Entry 86.) [140] In the Rezulin Products MDL, the court stated: Although misjoinder is a ground for dismissal or severance of an improperly joined party, the vast majority of courts confronting the issue on remand motions have found that misjoinder of a party with a unique claim against a non-diverse adversary is not alone a basis for remand. One treatise suggests that this is because improper joinder does not defeat the possibility of a claim against the misjoined party, as is required to satisfy the traditional standard for fraudulent joinder in discounting the citizenship of non-diverse parties. Thus, courts considering the issue generally have looked for the additional element of a bad faith attempt to defeat diversity, defining misjoinder of this type as a third species of fraudulent joinder. In re Rezulin Prods. Liab. Litig., 168 F.Supp.2d at 146-47 (citing inter alia, Tapscott, 77 F.3d at 1360). [141] As discussed more fully infra, following the lead of the Eleventh Circuit in Tapscott, this Court will apply Federal Rule of Civil Procedure 20, rather than an analogous state-law joinder rule, in determining the jurisdictional issue of "egregious misjoinder." See Tapscott, 77 F.3d at 1360; see also Edwards v. E.I. Du Pont De Nemours & Co., 183 F.2d 165, 168 (5th Cir.1950) ("[I]n procedural matters we are controlled by the Federal Rules of Civil Procedure, 28 U.S.C.A.... [W]e look to the federal statutes as construed by ... federal decisions to determine whether the case is removable in whole or in part, all questions of joinder, non-joinder, and misjoinder being for the federal court.") (citations omitted). Moreover, as discussed infra, in these cases, the result would be no different if the Court analyzed the "egregious misjoinder" issue using Mississippi Rule of Civil Procedure 20. [142] Prince, with 4,280 Plaintiffs, and Clark, with 1,566 Plaintiffs, are the largest cases in this MDL. Because of this, the egregiousness of the misjoinder of the Plaintiffs in those cases seems especially pronounced. But even as to the other cases which purport to join lesser numbers of Plaintiffs, each with disparate work and exposure histories, this "egregious misjoinder" discussion is applicable. The are, however, two notable exceptions: Kirkland v. 3M Co., S.D. Tex. Cause No. 04-639 and Gatlin v. Ash Grove Cement Co., S.D. Tex. Cause No. 04-638. Kirkland (a case with only two Plaintiffs, husband and wife) will be addressed separately, infra. Gatlin is a single-Plaintiff case with 6 Defendants. The portion of this Order addressing the joinder of Plaintiffs is not applicable to Gatlin. The case nonetheless has been included with the other cases listed on "Appendix A" because the discussion related to the "Appendix A" cases in the other jurisdictional portions of this Order are applicable to Gatlin. [143] Certain portions of the Fact Sheets have been omitted from these Exhibits. Specifically, the signed authorizations to release medical and financial records have been omitted, as well as all Social Security earnings statements. [144] Rudder was initially filed in Alabama state court by three plaintiffs, two of which were Alabama residents, and one of which was a resident of Michigan. The sole defendant was Kmart Corporation, a resident of Michigan. The suit was based on the alleged fraudulent sale by Kmart of used auto batteries as new batteries. The Michigan plaintiff purchased batteries at Kmart stores in Michigan and Alabama. However, the Alabama purchase occurred after he initiated suit against Kmart. The Alabama plaintiffs purchased their batteries at Kmart stores in Alabama. Kmart removed the case to Alabama federal court on the jurisdictional basis of diversity of citizenship. Kmart alleged that the Michigan plaintiff was fraudulently misjoined to destroy diversity of citizenship jurisdiction. Finding that the Michigan plaintiff was fraudulently misjoined under Rule 20, the Rudder court held: Clearly, McGuire [the Michigan Plaintiff] and the other plaintiffs do not "assert a right to relief arising out of the same transaction or occurrence, or series of transactions or occurrences." McGuire's Alabama purchase assuming arguendo that it could possibly form the predicate for a valid cause of action occurred in complete factual, temporal and geographic isolation from Rudder's and Soleman's [the Alabama plaintiffs]. The record contains no evidence of any connection whatsoever between the plaintiffs or their respective transactions. Indeed, McGuire testifies in essence that he has never spoken to either William Rudder or Cissy Soleman. The record reflects no reason why the joinder of McGuire, a Michigan resident, to the other two plaintiffs, Alabama residents, would serve any legitimate purpose of fairness or judicial efficiency. In short, the claims of McGuire, and Rudder and Soleman, are not claims that a reasonable person would normally expect to be tried together. Rudder, 1997 WL 907916 at *5 (citations and footnotes omitted). [145] After holding that the joinder of the plaintiffs' claims were improper, the court remanded the case for severance of all plaintiffs' claims and "also instruct[ed] the trial court to transfer the severed cases to those jurisdictions in which each plaintiff could have brought his or her claims without reliance on another of the improperly joined plaintiffs." Janssen, 866 So.2d at 1102; see also Dillard's, Inc. v. Scott, 908 So.2d 93, 98 (Miss.2005) ("[T]he out-of-state plaintiffs with no connection to Mississippi and whose causes of action accrued out of state shall be dismissed without prejudice and all remaining cases without an independent basis for venue in Hinds County shall be severed and transferred to the appropriate jurisdiction where each plaintiff could have brought his or her claim without reliance on an improperly joined plaintiff."). Although this Court makes no finding on this issue of state-court procedure, the holdings of Janssen and Dillard's appear to be applicable to these MDL cases. [146] The alternative, apparently, is for one plaintiff to be forced to maintain separate actions against each defendant he claims caused his alleged illness. Hence, under this alternative, if a plaintiff claims 20 defendants' products combined to cause his silicosis, he would be forced to prosecute 20 separate actions (some in state court and some in federal court), which ultimately could culminate in 20 separate jury trials. [147] To be fair, the impetus for Defendants' unorthodox suggestion was a comment made by this Court during the December 17, 2005 Status Conference: "Well it could be that I don't have to sever each Plaintiff from each case, but that I can just look at it as each Plaintiff having a separate cause of action against each Defendant for diversity purposes." (Dec. 17, 2004 Status Conf. Trans. at 16.) [148] While the Court has (at Defendants' urging) applied Federal Rule 20 in the improper joinder analysis, it is worth noting that the Mississippi Supreme Court's latest decision on the issue indicates that under Mississippi Rule 20, each Plaintiff's joinder of the Defendants (or at least different classes of Defendants) was improper: [T]he plaintiffs sued multiple defendants based on multiple theories of causation. These defendants were required to defend themselves alongside unrelated defendants. From 3M's perspective, it was the only defendant in the suit which did not manufacture or distribute a product containing asbestos. Therefore, not only were the plaintiffs' claims lacking in a similar transaction or occurrence, but the defendants were improperly joined as well pursuant to Miss. R. Civ. P. 20(a). 3M Co. v. Johnson, 895 So.2d 151, 158-59 (Miss.2005). But even if this Court were applying Mississippi Rule 20, the Court would not find "egregious" misjoinder. [149] Section 1446(b) of the removal statute states, in relevant part: The petition for removal of a civil action ... shall be filed within thirty days after the receipt by the defendant ... of a copy of the initial pleading setting forth the claim for relief upon which such action ... is based. 28 U.S.C. § 1446(b). [150] The Fifth Circuit in Jernigan explained: [A]s a general rule, removal requires the consent of all co-defendants. In cases involving alleged improper or fraudulent joinder of parties, however, application of this requirement to improperly or fraudulently joined parties would be nonsensical, as removal in those cases is based on the contention that no other proper defendant exists. Jernigan, 989 F.2d at 815. [151] The removal statute provides: "Any [diversity] action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." 28 U.S.C. § 1441(b). [152] In September 2004, after this MDL had been pending for a year, the Fifth Circuit issued its en banc Smallwood decision. Among other things, the decision states: "We emphasize that any piercing of the pleadings should not entail substantial hearings. Discovery by the parties should not be allowed except on a tight judicial tether, sharply tailored to the question at hand, and only after a showing of its necessity." Smallwood, 385 F.3d at 574. At the time the opinion was issued, discovery had been permitted for approximately five months, and continued to be available during and after the briefing process on subject-matter jurisdiction. Indeed, on June 1, 2005, the Court conducted a phone conference on a discovery dispute in this MDL. Although Smallwood and a host of other cases establish without equivocation that a court's initial inquiry must be determining its own subject-matter jurisdiction, see id. at 576, this Court was also mindful of its role as an MDL transferee court, a role designed "to avoid duplication of discovery, prevent inconsistent or repetitive pretrial rulings, and conserve the resources of the parties, their counsel and the judiciary." In re Silica Prods. Liab. Litig., 280 F.Supp.2d 1381, 1383 (Jud.Pan.Mult.Lit.2003). From the outset, the Court ordered the Plaintiffs' and Defendants' Fact Sheets, which were directly related to jurisdiction. But in simultaneously allowing other discovery, the Court almost certainly moved beyond the "sharply tailored" discovery envisioned by Smallwood. [153] Other than 3M, Defendant ITW Vortec moved for remand on the basis of lack of subject-matter jurisdiction. (See Clark v. Air Liquide Am. Corp., S.D. Tex. Cause No. 03-376, Docket Entry 293.) Also, Defendant Bacou-Dalloz Safety, Inc. joined in and adopted 3M's Motion to Remand. (See MDL 03-1553, Docket Entry 1631.) In addition, a large number of Defendants did not join in the removals and have not filed anything in support of or in opposition to federal jurisdiction. Throughout the discussion of subject-matter jurisdiction contained herein, general references to "Defendants" or "the removing Defendants" refers only to those Defendants who actively advocated federal jurisdiction during the final briefing in February and March 2005. [154] In addition, the Defendants were required, inter alia, to list (and include photos if possible) of "all silica-related products they manufactured or distributed from the year 1930 forward and include the relevant time frame of production/distribution for each product." (Order No. 4, ¶ 19.) Plaintiffs argued that this information was necessary for them to determine precisely against which Defendants each Plaintiff had a claim. [155] Under certain circumstances, when the party bearing the burden of establishing jurisdiction initially fails to adequately allege complete diversity, a court may allow that party to amend its allegations. Specifically, "a party shall be allowed to amend its complaint in order to make a complete statement of the basis for federal diversity jurisdiction where diversity jurisdiction was not questioned by the parties and there is no suggestion in the record that it does not in fact exist." Stafford, 945 F.2d at 806 (emphasis added) (citing Leigh v. Nat'l Aeronautics & Space Admin., 860 F.2d 652, 653 (5th Cir.1988); 28 U.S.C. § 1653). However, in these cases, jurisdiction has been questioned and there is a suggestion in the record that diversity does not exist. Moreover, Defendants have failed to even request the opportunity to amend any of their jurisdictional submissions (ranging from the notices of removal, which began in 2002, to their final jurisdictional submission in 2005). [156] As was the case with their proposed case management plan, Defendants do not posit a timetable for completing the deposition process. Instead, it is a process with no apparent end. [157] Mississippi Rules of Civil Procedure 8, 9, and 10 govern the rules and form of pleading. Mississippi Rule of Civil Procedure 11 provides in part: (a) Signature Required. Every pleading or motion of a party represented by an attorney shall be signed by at least one attorney of record.... The signature of an attorney constitutes a certificate that the attorney has read the pleading or motion; that to the best of the attorney's knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay.... (b) Sanctions. If a pleading or motion is not signed or is signed with intent to defeat the purpose of this rule, it may be stricken as sham and false and the action may proceed as though the pleading or motion had not been served. For wilful violation of this rule an attorney may be subjected to appropriate disciplinary action.... If any party files a motion or pleading which, in the opinion of the court, is frivolous or is filed for the purpose of harassment or delay, the court may order such a party, or his attorney, or both, to pay to the opposing party or parties the reasonable expenses incurred by such other parties and by their attorneys, including reasonable attorneys' fees. Miss. R. Civ. P. 11. In addition to referencing Rule 11 sanctions, the Mangialardi court decried the plaintiffs' failure to meet the requirements of Mississippi's joinder rule (Mississippi Rule 20), and then stated: [Plaintiffs] don't appear to know when they were exposed [to asbestos], where they were exposed, by whom they were exposed, or even if they were exposed. Presumably, when they learn this information, plaintiffs' counsel intends to dismiss those who should not have been joined. This is a perversion of the judicial system unknown prior to the filing of mass-tort cases. Mangialardi, 889 So.2d at 495. [158] Although this issue has not been fully briefed, the parties have noted in passing that, in the absence of a tolling agreement, the dismissal of these claims without prejudice would have the effect of a dismissal with prejudice due to the running of the statute of limitations. The Court makes no findings as to this issue. [159] This result might be different if the absence of the Plaintiffs who failed to submit a Fact Sheet would result in the Court having subject-matter jurisdiction over any of the other Plaintiffs' claims. However, there is no suggestion that this is the case. [160] Because of this, the Court refrains from finding as a fact that any particular Plaintiff failed to submit a Fact Sheet. [161] The MDL cases not listed in "Appendix A" will be discussed infra. [162] All Plaintiffs in actions transferred after January 26, 2004 were required to submit their sworn Fact Sheets within 60 days from the date of transfer by the Judicial Panel on Multidistrict Litigation. (Order No. 4, ¶ 20.) [163] Three additional cases were scheduled to be transferred via Conditional Transfer Order 13, but transfer in those cases was opposed. Therefore, those cases likely will be set for a hearing before the Panel. See R. Proc. Jud. Panel Multidistrict Litig. 7.4(c)-(d). [164] As discussed infra, another MDL case, Kirkland v. 3M Co., S.D. Tex. Cause No. 04-639, will be sent to the Judicial Panel on Multidistrict Litigation with a recommendation that it be returned to the transferor court. [165] The Notice of Removal also alleges that federal subject-matter jurisdiction exists independent of diversity by virtue of federal enclave jurisdiction, see Lord v. Local Union No.2088, 646 F.2d 1057, 1059 (5th Cir.1981), because Mr. Kirkland claims injury from silica exposure at Fort Benning, Georgia. Since diversity jurisdiction exists, the Court need not address this issue. Also, it is worth noting that the removal was not timely because it was filed more than 30 days after service of the Complaint. See 28 U.S.C. § 1446(b). However, during the over three months the case was pending in the transferor court, no motion to remand was filed. (Kirkland was removed to federal court on July 23, 2004, and was transferred to this MDL via Conditional Transfer Order 10, filed November 5, 2004.) Therefore, any objection to a procedural defect in the removal has been waived. See 28 U.S.C. § 1447(c) ("A motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of removal under section 1446(a)."); see also Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 457-58 (5th Cir.1998). [166] No Defendant has yet filed a motion addressing the statute-of-limitations issue or the issue of the whether 3M should be dismissed. As noted supra, Plaintiffs' previous attorney, Mr. Martin, filed a motion to dismiss 3M, apparently against the wishes of Mr. Kirkland. [167] "[F]ederal courts are duty-bound to examine the basis of subject matter jurisdiction sua sponte." Union Planters Bank Nat'l Ass'n v. Salih, 369 F.3d 457, 460 (5th Cir.2004); see also Fed.R.Civ.P. 12(h)(3). [168] Section 1653 states that "[d]efective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts." 28 U.S.C. § 1653. [169] "The burden of proving that complete diversity exists rests upon the party who seeks to invoke the court's diversity jurisdiction." Stafford, 945 F.2d at 804 (quoting Getty Oil, 841 F.2d at 1259). [170] It is worth noting that in the Notice of Removal in Kirkland, 3M alleges that American Optical's principal place of business is in Connecticut. (See Kirkland v. 3M, S.D. Tex. Cause No. 04-639, Notice of Removal, Docket Entry 1, ¶ 15.) [171] Specifically, 39 Defendants moved for sanctions pursuant to Rules 16 and 37, § 1927 and the Court's inherent authority, while 3M moved for sanctions pursuant to Rules 11 and 37, § 1927 and the Court's inherent authority. (Supplemental Mot. Sanctions, MDL 03-1553 Docket Entry 1678; Mot. 3M Co. Sanctions, MDL 03-1553 Docket Entry 1679.) Numerous additional Defendants joined in each motion. [172] Only 3M moves for sanctions pursuant to Rule 11. The other Defendants move for sanctions on other grounds. [173] Rule 11 provides, in relevant part: A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). It shall be served as provided in Rule 5, but shall not be filed with or presented to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. Fed.R.Civ.P. 11(c)(1)(A). This is known as the "safe harbor" provision, and it contemplates service of the Rule 11 motion at least 21 days prior to filing the motion with the court in order to give the parties at whom the motion is directed an opportunity to withdraw or correct the offending contention. See Elliott v. Tilton, 64 F.3d 213, 216 (5th Cir.1995). "The plain language of the rule indicates that this notice and opportunity prior to filing is mandatory." Id. In Elliott, the Fifth Circuit held that when the moving party fails to comply with this "safe harbor" provision, a Rule 11 sanction cannot be upheld. See id. [174] "Rule 11 does not apply to conduct in state court prior to removal." Foval v. First Nat'l Bank of Commerce, 841 F.2d 126, 130 (5th Cir.1988). Hence, Rule 11 sanctions "cannot apply to the petition [a plaintiff] filed in state court that thereafter was removed." Edwards v. Gen. Motors Corp., 153 F.3d 242, 245 (5th Cir.1998). "Moreover, rule 11 does not impart a continuing duty, but requires only that each filing comply with its terms as of the time the paper is signed. Consequently, [a plaintiff] cannot be sanctioned simply for her failure to withdraw pleadings filed in state court that would have violated rule 11 had they been filed in federal court." Id. (citing Thomas v. Capital Sec. Servs., Inc., 836 F.2d 866, 874 (5th Cir.1988) (en banc)). [175] As noted above, Defendants failed to comply with the "safe harbor" requirement of Rule 11(c)(1)(A). Rule 11 also provides for the imposition of sanctions sua sponte by a court. This provision contains no "safe harbor" requirement, but it requires, prior to the imposition of sanctions, the court to "enter an order describing the specific conduct that appears to violate subdivision (b) and directing an attorney, law firm, or party to show cause why it has not violated subdivision (b) with respect thereto." Fed.R.Civ.P. 11(c)(1)(B); see also Elliott v. Tilton, 64 F.3d 213, 216 (5th Cir.1995). The Court has entered no such show cause order in this case. [176] The Watts Law Firm also signed the Alexander Complaint, but Defendants do not seek sanctions against that firm because it has acted only as local, or "liaison", counsel. (Supplemental Mot. Sanctions, MDL 03-1553 Docket Entry 1678, at 1; see also Mar. 14, 2005 Sanctions Hearing Trans. at 16.) Therefore, the Court only considers whether O'Quinn's conduct warrants sanctions. [177] Six of the Plaintiffs submitted diagnoses from both Dr. Harron and Dr. Levy. [178] Adding to the facially-implausible nature of these diagnoses is that fact that by mid-2004, O'Quinn knew about the large number of MDL Plaintiffs who had previously been diagnosed with asbestosis. (Order No. 12 ¶ 14; O'Quinn's Resp. Opp'n Defs.' Mots. Sanctions, MDL 03-1553 Docket Entry 1775, at 13-14.) All told, over half of O'Quinn's 2,000 MDL Plaintiffs previously filed asbestosis claims. (Defs.' Steering Committee's Resp. PTO 27, MDL 03-1553 Docket Entry 1826, Ex. B.2.) [179] Regardless, O'Quinn can be charged with knowing the accepted method for diagnosing silicosis since, prior to the Daubert hearings, Dr. Friedman testified on the subject (see generally May 17, 2004 Status Conference Transcript at 19-109), and Plaintiffs themselves cited textbooks and other materials containing that information in "Plaintiffs' Informational Brief Regarding the Diagnosis of Silicosis" (MDL 03-1553 Docket Entry 1618). [180] The conduct that forms the basis of O'Quinn's § 1927 liability is not confined to Alexander or to O'Quinn. However, O'Quinn will not be insulated from liability simply because the Court does not have jurisdiction to sanction Plaintiffs' counsel in the other cases. Instead, as discussed infra, O'Quinn will only be sanctioned for Alexander's proportionate share of "the excess costs, expenses, and attorneys' fees reasonably incurred because of [the sanctionable] conduct." 28 U.S.C. § 1927. It will be left to the respective state courts after remand to address counsel's conduct in the remanded cases. [181] In making this finding, the Court as it must strictly construes § 1927. See Edwards, 153 F.3d at 246. Strictly construing the statute, the Court finds that the § 1927 liability arose at the time of the Daubert hearings. Absent strict construction, the Court likely would find that liability arose with the filing of the Complaint. [182] The fourth factor discussed in Topalian, "that the [district] court must announce the sanctionable conduct giving rise to its [sanctions] order," Topalian, 3 F.3d at 937, has already been addressed. [183] Indeed, assuming any of the Alexander Plaintiffs procure alternate diagnoses, the Daubert process may have to be repeated. [184] The Court's estimate of $275,000 per day was based on the number of defense attorneys present at the hearings multiplied by a "low count" of the number of hours of in-court time at an average rate of $200 per hour. (See Feb. 16, 2005 Trans. at 235; see also Mar. 14, 2005 Sanctions Hearing Trans. at 27-28.) Defendants indicate that if so ordered, they will prepare evidence of their actual fees and expenses, "which defendants expect will far exceed the Court's $275,000 per day estimate." (Supplemental Mot. Sanctions, MDL 03-1553 Docket Entry 1678, at 8 n. 7.) [185] The Daubert hearings spanned February 16-18, 2005. Defendants also ask for reimbursement for the fees they expended for the in-person hearing on February 15, 2005. (Supplemental Mot. Sanctions, MDL 03-1553 Docket Entry 1678, at 8.) However, the February 15 hearing was a status conference which would have occurred even had the Daubert hearings been cancelled. Therefore, Defendants' fees for the February 15 hearing cannot be recovered via § 1927. [186] O'Quinn's admitting of this figure will not be construed as admitting any other finding in this Order, including whether O'Quinn should be liable for sanctions pursuant to § 1927.	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 04-1483 VESTER KAY SCURLOCK-FERGUSON, Plaintiff - Appellant, versus CITY OF DURHAM, Defendant - Appellee. On Remand from the Supreme Court of the United States. (S. Ct. No. 05-10032) Submitted: February 28, 2007 Decided: March 15, 2007 Before SHEDD, Circuit Judge, HAMILTON, Senior Circuit Judge, and Joseph R. GOODWIN, United States District Judge for the Southern District of West Virginia, sitting by designation. Vacated and remanded by unpublished per curiam opinion. Vester Kay Scurlock-Ferguson, Appellant Pro Se. Joel M. Craig, Erin M. Locklear, KENNON, CRAVER, BELO, CRAIG & MCKEE, PLLC, Durham, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Vester Kay Scurlock-Ferguson sued her former employer alleging, among other things, employment discrimination in violation of Title VII of the Civil Rights Act of 1964. The district court, adopting the magistrate judge’s recommendation, denied relief. In particular, the district court found that Scurlock-Ferguson’s claim that she was transferred in retaliation for filing an Equal Employment Opportunity Commission charge failed because the transfer position involved the same pay and benefits and thus she had suffered no adverse employment action. We affirmed on appeal concluding “that Scurlock-Ferguson’s transfer to the Budget Department is not a cognizable adverse employment action because she did not lose any salary or benefits.” Scurlock-Ferguson v. City of Durham, 154 F. App’x 390, 394 (4th Cir. 2005) (unpublished). We relied on James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375-76 (4th Cir. 2004), for this finding. Id. The James case, in turn, relied on the reasoning of our earlier opinion in Von Gunten v. Maryland, 243 F.3d 858 (4th Cir. 2001). Scurlock-Ferguson filed a petition for writ of certiorari with the Supreme Court, which granted the petition, vacated our opinion, and remanded for further consideration in light of Burlington N. & S.R.R. Co. v. White, 548 U.S. __, 126 S. Ct. 2405 (2006). See Scurlock-Ferguson v. City of Durham, 126 S. Ct. 2985 - 2 - (U.S. June 30, 2006) (No. 05-10032). The Burlington opinion rejected “the standards applied in the Courts of Appeals that have . . . limited actionable retaliation to so-called ‘ultimate employment decisions.’” 126 S. Ct. at 2414. Rather, the Court held a plaintiff could show actionable retaliation if she showed “that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Id. (internal quotation and citation omitted). The Burlington opinion specifically rejected our approach in Von Gunten. Id. at 2410-11. Accordingly, we vacate and remand this matter to the district court in light of the Supreme Court’s opinion in Burlington.* We decline to address any other issues on appeal, as the Supreme Court’s remand only addresses the Burlington opinion, which in the facts of the instant case is limited to the question of whether Scurlock-Ferguson’s transfer to the Budget Department could be considered an actionable adverse employment action. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. VACATED AND REMANDED * We offer no criticism of the district court which followed then-current circuit precedent in denying the retaliation claim. - 3 -	{ "pile_set_name": "FreeLaw" }
598 S.E.2d 480 (2004) 278 Ga. 128 EARL v. MILLS. No. S04A0181. Supreme Court of Georgia. June 28, 2004. 481 Luann M. Evans, Woodstock, for appellant. Thurbert E. Baker, Atty. Gen., Kathryn L. Allen, Sr. Asst. Atty. Gen., for appellee. BENHAM, Justice. Appellant John R. Earl is a resident of Cherokee County. In June 2001, he filed a complaint for declaratory judgment and injunctive relief in which he took issue with the legality of the creation of a "Family Court" in Cherokee County by a standing order of the chief judges of the superior and state courts and the presiding judge of the juvenile court of the Blue Ridge Judicial Circuit. Earl also contended the appointment of two judges to preside over the "Family Court" was illegal and unconstitutional. The trial court dismissed the portions of the complaint seeking declaratory and injunctive relief for failure to state a claim and, after applying the doctrine of judicial immunity, dismissed the claims seeking damages from the chief judge of the superior court. On appeal, this Court affirmed the application of judicial immunity, but reversed the dismissal of that part of the complaint seeking declaratory and injunctive relief and remanded the case to the trial court. Earl v. Mills, 275 Ga. 503, 570 S.E.2d 282 (2002). After this Court's decision, the chief judges of the superior and state courts and the presiding judge of the juvenile court of the Blue Ridge Circuit entered a second "standing order" superseding the original standing order that precipitated the lawsuit.[1] The second standing order is the focus of this appeal and was entered pursuant to OCGA § 15-1-9.1(b)(2), which governs the means by which a court seeks judicial assistance from another court in the county of the requesting court. The order embodied the superior court's intra-county request for judicial assistance from the juvenile court and the response thereto, and outlined the matters the assisting judges would handle. In the order, the judges of the superior court requested judicial assistance from the juvenile court judges "in certain matters of domestic conflict" and the juvenile court judges agreed to provide the assistance, and the state court judges asked that certain classes of cases be reassigned to superior court,[2] to 482 which the superior court judges agreed.[3] The judges took the action "[i]n order to promote efficiency, minimize duplication of effort, and reduce consequent trauma to victims; to address increased and increasing caseload, and [to] adjust caseload assignment made pursuant to previous order." The second standing order began with the January 2003 term of court and was to remain in effect through that term of court or until further order, whichever came first. It stated it was subject to renewal at the commencement of each term of court[4] and would lapse if not renewed, and provided that the judges of an affected court could withdraw from the request and order with one month's notice to the judges of the other affected courts. On remand, appellant Earl reiterated against the second standing order the challenges he had asserted against the first standing order: the judicial action taken to establish a "Family Division" of superior court violated Article VI, Sec. I, Par. VII of the Georgia Constitution which gives to the legislature the authority to "abolish, create, consolidate, or modify judicial circuits and courts and judgeships ...;" the "Family Division" of superior court was unconstitutional since it is not among the classes of courts listed in the Georgia Constitution as those in which the judicial power of the State is vested exclusively (Ga. Const. 1983, Art. VI, Sec. I, Par. I);[5] and OCGA § 15-1-9.1(b)(2)(D), which authorizes an intra-county request for permanent judicial assistance and which appellant contends appellee relied upon to form the Family Division of superior court, is unconstitutional in that it authorizes members of the judicial branch to create and staff permanent judgeships, powers constitutionally reserved to the legislative branch in Ga. Const. 1983, Art. VI, Sec. VII, Par. I, to the Governor in Ga. Const. 1983 Art. V, Sec. II, Par. VIII, and to the voters in Ga. Const. 1983, Art. VI, Sec. VII, Par. I. Appellant sought injunctive relief to restrain and enjoin the existence and practice of the "Family Division" and to restrain and enjoin the juvenile court judges sitting as superior court judges from exercising any authority as judges. After examining the second standing order against appellant's challenges, the trial court granted summary judgment to appellee Judge Mills. The trial court found the second standing order was an intra-county request for judicial assistance governed by OCGA § 15-1-9.1(b)(2)(D); the use of juvenile court judges in the superior court pursuant to an intra-county request for judicial assistance did not violate the constitutional requirement that superior court judges be elected; the Blue Ridge courts had not created a separate new court but a division of superior court staffed by judges handling certain types of cases at the request of the superior court judges; the second standing order had not created additional judgeships; the judicial assignments were not unconstitutional since they were temporary and in furtherance of assisting the functions of the superior court; and the provisions of OCGA § 15-1-9.1(b)(2)(D) "are not unconstitutional as creating permanent judicial assisting positions." This appeal followed. 483 1. Earl contends the intra-county request and response regarding judicial assistance resulted in the unconstitutional creation of judgeships by the judicial branch (see 1983 Ga. Const., Art. VI, Sec. I, Par. VII, giving authority to the General Assembly to create judgeships), and the use of two juvenile court judges to assist the superior court was an unconstitutional violation of the Governor's constitutional authority to make judicial appointments. See 1983 Ga. Const., Art. V, Sec. II, Par. IX. After examining both the statute and the constitutional provision from which the statute springs, we conclude that requesting intra-county judicial assistance and receiving that assistance does not constitute the creation of a judgeship. The Georgia Constitution authorizes a judge to exercise judicial power in another court when otherwise qualified to do so, when asked by the other court, and when both the requesting court and the assisting judge's court consent. 1983 Ga. Const., Art. VI, Sec. I, Par. III ("Provided the judge is otherwise qualified, a judge may exercise judicial power in any court upon the request and with the consent of the judges of that court and of the judge's own court under rules prescribed by law."). OCGA § 15-1-9.1(b)-(m) contain the constitutionally-required "rules prescribed by law." The statute "recognizes that our courts, faced with ever-increasing demands on the judiciary, must be given flexibility to effectively utilize members of the judiciary in mutual assistance." Massey v. State, 265 Ga. 632, 634(3), 458 S.E.2d 818 (1995), disapproved on other grounds in Lewis v. McDougal, 276 Ga. 861, fn. 1, 583 S.E.2d 859 (2003). The juvenile court judges who agreed to assist the superior court did not become superior court judges; rather, they were juvenile court judges who were qualified to sit on the superior court and were requested to do so by the superior court in time of need. Massey v. State, supra, 265 Ga. 632(2), 458 S.E.2d 818. Since assisting judges do not become judges of the court to which they lend assistance, no judicial position constitutionally required to be filled by election (1983 Ga. Const., Art. VI, § VII, Par. I) or by gubernatorial appointment until election (1983 Ga. Const., Art. V, § II, Par. VIII) is created by the exercise of the authority given in § 15-1-9.1(b)(2) to request intra-county judicial assistance. Furthermore, OCGA § 15-1-9.1(b)(2) does not authorize the judiciary to make appointments to the bench; instead it provides the means to do that which is authorized by the Georgia Constitution it permits a judicial officer from one court to exercise the power of a requesting court in an effort to assist the requesting court in limited circumstances. See Massey v. State, supra, 265 Ga. 632(2), 458 S.E.2d 818. 2. Appellant Earl also contends appellee Mills and the other judges who participated in the intra-county request and response regarding judicial assistance created a "Family Court," the existence of which is allegedly unconstitutional because such a court is not among those listed in the Georgia Constitution as exclusively vested with the judicial power of the State. See footnote 3, supra. Earl also asserts the creation of a court not set forth in Article VI, § I, Par. I of the Georgia Constitution is a violation of Article VI, § I, Par. VII of the state constitution, which assigns to the General Assembly the power to create courts. In its order, the trial court concluded the intra-county request and response regarding judicial assistance did not create a separate court. We agree. The intra-county request and response did not establish a separate judicial forum (see Smith v. Langford, 271 Ga. 221, 224, 518 S.E.2d 884 (1999)); rather, it was a constitutionally permitted request for intra-county judicial assistance and the response thereto, and it set out the matters to be handled by the two juvenile court judges who had agreed to assist the superior court.[6] Accordingly, the intra-county request and response was neither an unconstitutional creation of a class of court nor an unconstitutional usurpation of legislative authority by members of the judiciary. 3. Earl takes issue with the trial court's determination upholding the constitutionality 484 of OCGA § 15-1-9.1(b)(2)(D), which authorizes an intra-county request for judicial assistance when "[a] majority of the judges of the requesting court determines that the business of the court requires the permanent assistance of an additional judge or additional judges." (Emphasis supplied). Compare OCGA § 15-1-9.1(b)(2)(C), which authorizes an intra-county request for judicial assistance when "[a] majority of the judges of the requesting court determines that the business of the court requires the temporary assistance of an additional judge or additional judges." The trial court made conflicting findings on this issue, finding the standing order's assignments to be temporary, and then concluding that OCGA § 15-1-9.1(b)(2)(D) was not unconstitutional "as creating permanent judicial assisting positions." Because we agree with the trial court's assessment that the request for judicial assistance and the response thereto provided for temporary assistance pursuant to subsection (b)(2)(C), we conclude the trial court erred in assuming the request for judicial assistance and response was a request for permanent judicial assistance pursuant to subsection (b)(2)(D) and ruling on the constitutionality of that subsection. The judicial order setting forth the request and response for judicial assistance was of limited duration, beginning on the second Monday of January and running through the Sunday before the second Monday of May, the end of the January 2003 term of court. It was subject to termination at any time, upon receipt of 30 days' notice from the superior, state, or juvenile court announcing that court's withdrawal. If the superior and state courts continued to find themselves in need of judicial assistance after the January 2003 term, they had to take affirmative action to renew their request for judicial assistance and the courts providing assistance had to agree to again provide the requested assistance. Because the request and response for judicial assistance is for a specified time of limited duration and any court may withdraw from participation after giving 30 days' notice, it is temporary in nature and, accordingly, the subject of OCGA § 15-1-9.1(b)(2)(C). Therefore, the trial court's ruling on the constitutionality of subsection (b) (2)(D) was inappropriate and we vacate that portion of the trial court's order. In the same vein, we decline to address the constitutionality of subsection (D) since to do so would result in the issuance of an advisory opinion. Appellant Earl asserts that the superior, state, and juvenile courts have taken permanent action by renewing the order setting forth the request and response for judicial assistance for the May and September 2003 terms of court in the Blue Ridge Circuit. The appellate record contains no renewal orders. However, the trial court's order, entered August 28, 2003, refers to the order "currently in effect," and thereby gives credence to the assertion a request for judicial assistance and response order was entered for the May 2003 term of court. We decline to hold that a request for judicial assistance that spans two terms of court constitutes a request for permanent judicial assistance. See Massey v. State, supra, 265 Ga. at 635, 458 S.E.2d 818 (Fletcher, P.J., concurring specially). In the absence of evidence of a judicial request for permanent judicial assistance, we decline to decide whether successive requests for judicial assistance and responses thereto violates the constitutional requirement that superior court judges shall be elected. Ga. Const.1983, Art. VI, Sec. VII, Par. I.[7] Judgment affirmed in part and vacated in part. All the Justices concur, except FLETCHER, C.J., who concurs in judgment only. NOTES [1] "A chief judge of a requesting court or assisting court shall be presumed to act with the consent of all judges of the court." OCGA § 15-1-9.1(c). [2] State courts have jurisdiction concurrent with the superior courts over matters not within the exclusive jurisdiction of the superior court. OCGA § 15-7-4. [3] In essence, in the criminal arena, all misdemeanor cases involving family violence (see OCGA §§ 19-13-1 and 16-5-94) were to be filed in superior court and all misdemeanor and felony cases, except murder, in which the defendant and victim have children together were to be assigned to the juvenile court judges responding to the request for judicial assistance. Insofar as civil cases were concerned, all petitions to legitimate and petitions to establish paternity (except those initiated by the Georgia Department of Human Resources), and "all divorce, custody, modification, `TPO' and any other domestic cases related thereto in which there is the coincidence of mutual children of the parties and allegations of violence" were to be assigned to the juvenile court judges responding to the request for judicial assistance. The order noted that, while the responding juvenile court judges and the "described caseload" could be referred to as "Family Division," there was no jurisdictional separation from superior court. [4] The Blue Ridge Judicial Circuit, made up of Cherokee County, has three terms of court a year, January, May, and September, with each term beginning on the second Monday of that month. [5] "The judicial power of the state shall be vested exclusively in the following classes of courts: magistrate courts, probate courts, juvenile courts, state courts, superior courts, Court of Appeals and Supreme Court." Ga. Const. 1983, Art. VI, Sec. I, Par. I. [6] Since OCGA § 15-1-9.1(f), which requires a written designation identifying the time period covered and the cases for which assistance is sought, is not applicable to an intra-county response to a request for judicial assistance (Lewis v. McDougal, supra, 276 Ga. 861(1), 583 S.E.2d 859 (2003)), it was not necessary to include the matters to be handled by the two assisting juvenile court judges in the response to the request for judicial assistance. [7] While we do not address the tension between Ga. Const.1983, Art. VI, Sec. VII, Par. I, which requires superior court judges to be elected, and Ga. Const.1983, Art. VI, Sec. I, Par. III, which sets no temporal limitation on its authorization of a qualified judge to exercise judicial power in a court that requests assistance, we note that the 1998 amendment to OCGA § 15-1-9.1(b), adding subsection (D), provides the statutory authority to request permanent judicial assistance that was missing when Massey v. State, supra, 265 Ga. at 634, 458 S.E.2d 818, Cramer v. Spalding County, 261 Ga. 570, 575, 409 S.E.2d 30 (1991), and Hicks v. State, 231 Ga.App. 552, 499 S.E.2d 341 (1998), overruled in part in Lewis v. McDougal, supra, 276 Ga. 861(1), 583 S.E.2d 859, were decided.	{ "pile_set_name": "FreeLaw" }
MEMORANDUM DECISION FILED Aug 17 2016, 9:16 am Pursuant to Ind. Appellate Rule 65(D), this CLERK Memorandum Decision shall not be regarded as Indiana Supreme Court Court of Appeals precedent or cited before any court except for the and Tax Court purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. APPELLANT PRO SE ATTORNEYS FOR APPELLEES Edward Niksich Carol A. Dillon Carlisle, Indiana Bryan D. Stoffel Bleeke Dillon Crandall, P.C. Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA Edward Niksich, August 17, 2016 Appellant-Plaintiff, Court of Appeals Case No. 49A02-1601-CT-102 v. Appeal from the Marion Superior Court. The Honorable Gary L. Miller, Dr. Malak Hermina, et al., Judge. Appellees-Defendants. Cause No. 49D03-1506-CT-019239 Darden, Senior Judge Statement of the Case [1] Edward Niksich appeals the trial court’s denial of his Motion for Relief from Judgment, alleging he did not receive timely notice of the court’s final judgment, and also appeals the trial court’s order granting the Appellees’ Court of Appeals of Indiana \| Memorandum Decision 49A02-1601-CT-102 \| August 17, 2016 Page 1 of 12 “Motion for Preliminary Determination of Law and Motion for Summary 1 Judgment.” We affirm. Issue [2] We consolidate and restate the following to be dispositive to the resolution of this case: Whether the trial court abused its discretion by denying Niksich’s Motion for Relief from Judgment. Facts and Procedural History [3] Drs. Malak Hermina, Richard Carr, and Alfred Talens (collectively, the “Doctors”) were at differing times employed as physicians by Corizon, Inc., a private company that contracted with the Indiana Department of Correction (“DOC”) to provide healthcare to inmates in certain DOC facilities. Dr. Hermina worked for the DOC from September 2005 until April 2012; Dr. Carr worked for the DOC from May 2007 until June 2009; and, Dr. Talens worked for the DOC from February 2006 until May 2011. Niksich has been incarcerated in the DOC since 1991. [4] When Niksich was processed for entry into the DOC, he tested positive for hepatitis and was referred to the Indiana State Prison medical facility for tests and monitoring. In April of 1994, Niksich tested positive for hepatitis C. For 1 Niksich also seeks to appeal the denial of his Motion to Compel Discovery. However, because Niksich did not make this argument to the trial court, we will not consider it. See Babinchak v. Town of Chesterton, 598 N.E.2d 1099, 1103 (Ind. Ct. App. 1992) (noting that we will not consider arguments raised for the first time on appeal). Court of Appeals of Indiana \| Memorandum Decision 49A02-1601-CT-102 \| August 17, 2016 Page 2 of 12 the remainder of the time Niksich was housed at the Indiana State Prison, until 1999, prison doctors monitored his liver profiles. [5] In 1999, Niksich was transferred to the Pendleton Correctional Facility and was housed there until 2009. Dr. Hermina worked at the Pendleton Correctional Facility until January 2006 and administered care to Niksich. In January 2008, Niksich lost consciousness at his prison job and was sent to the Pendleton Correctional Facility infirmary where he was treated by Dr. Carr. According to Niksich, he explained to Dr. Carr that he had “tested positive for Hepatitis C and that [Dr. Carr] may want to check [his] liver enzymes and liver function.” Appellant’s App. p. 53. [6] Sometime in 2009, Niksich was moved to the Wabash Valley Correctional Facility. Dr. Talens administered care to Niksich while he was housed at that facility. According to Niksich, he informed Dr. Talens that his liver enzymes should be monitored and treated if they became elevated above normal levels. [7] By 2012, Niksich was residing at the Westville Correctional Facility. On November 29, 2012, Niksich was found unconscious in his cell and was transferred to a hospital for treatment. While in the hospital, Niksich slipped into a coma. On December 5, 2012, Niksich regained consciousness and was informed by hospital staff that he had experienced an upper gastrointestinal bleed, liver and kidney failure, anemia due to blood loss, and hepatic encephalopathy cirrhosis. Court of Appeals of Indiana \| Memorandum Decision 49A02-1601-CT-102 \| August 17, 2016 Page 3 of 12 [8] Approximately twenty months later, on August 14, 2014, Niksich filed a Proposed Complaint of medical malpractice with the Indiana Department of Insurance. In his complaint, he alleged that the Doctors failed to provide him appropriate medical care while he was an inmate in the DOC. Niksich claimed he repeatedly informed Drs. Hermina, Carr, and Talens of his elevated liver enzyme levels but the doctors “fail[ed] to review medical information and/or documentation within [Niksich’s] medical file . . . which indicate[d] and establishe[d] a serious medical illness . . . [,]and the progression thereof[,] from mild liver inflammation and Hepatitis to late stage cirrhosis[.]” Id. at 138. [9] On June 11, 2015, the Doctors filed their joint Motion for Preliminary Determination of Law and Motion for Summary Judgment (hereinafter, the “Doctors’ Motion”), arguing Niksich’s complaint was time-barred by the Indiana Medical Malpractice Act’s two-year statute of limitations. On July 7, 2015, Niksich filed a Motion for Continuance, requesting additional time to respond to the Doctors’ Motion. The trial court granted the motion on July 13, 2015, and set a deadline of August 14, 2015, for the response. [10] Niksich filed his response to the Doctors’ Motion on July 21, 2015. On that same date, he filed a Motion to Compel Discovery. On July 22, 2015, the trial court granted the Doctors’ Motion and dismissed with prejudice Niksich’s complaint. Although, the chronological case summary (CCS) contains a notation indicating the court order was distributed to the parties; however, arguably, there is evidence in the record indicating the parties did not immediately receive copies of the court order. Court of Appeals of Indiana \| Memorandum Decision 49A02-1601-CT-102 \| August 17, 2016 Page 4 of 12 [11] On July 24, 2015, the trial court denied Niksich’s Motion to Compel Discovery as moot, in light of the court’s July 22, 2015 ruling. On August 6, 2015, the Doctors filed a reply to Niksich’s response to the Doctors’ Motion. Niksich filed a response to the reply on August 17, 2015. [12] On October 20, 2015, Niksich sent a letter to the trial court inquiring as to whether the court had issued a ruling on the Doctors’ Motion. On October 30, 2015, the Doctors’ counsel sent a letter to Niksich, informing him of the court’s ruling and enclosing a copy of the ruling. Counsel stated in the letter: “When we did not receive an Order, we called the Court and they informed us they never sent the Order out because my office failed to send an envelope. We therefore picked the Order up in person yesterday from the Court.” Id. at 24. Niksich received the letter on November 10, 2015. On that same day, Niksich sent a second letter to the trial court, requesting information on the status of the court’s ruling on the Doctors’ Motion. Niksich received a copy of the trial court’s July 22, 2015 order sometime between November 16 and 20, 2015. [13] On December 2, 2015, Niksich filed a Motion for Relief from Judgment under Indiana Trial Rule 60(B)(8), alleging he did not receive timely notice of the court’s ruling. In his motion, he asked the trial court to “vacate the [j]udgment of July 22, 2015 and re-enter the judgment to reflect the date of the Granting [sic] of this motion, and direct the clerk of the Court to notify the parties of the new entry date.” Id. at 13. Niksich maintained the “lack of notice . . . [violated his] right to appeal from an adverse final judgment . . . .” Id. The trial court Court of Appeals of Indiana \| Memorandum Decision 49A02-1601-CT-102 \| August 17, 2016 Page 5 of 12 treated Niksich’s motion as a Motion to Correct Error and denied the motion on December 14, 2015, without a hearing. Niksich now appeals. Discussion and Decision [14] Although Niksich raises several issues on appeal, we consolidate and restate the issue for disposition as follows: Whether the trial court abused its discretion by denying Niksich’s Motion for Relief from Judgment. [15] Niksich’s motion for relief from judgment was premised on Indiana Trial Rule 72. Trial Rule 72(D) imposes two duties on clerks of court. First, immediately upon the entry of a ruling upon a motion, an order or judgment, the clerk must serve a copy of the entry to each of the parties. Second, the clerk must make a record of such service. The CCS constitutes that record. See Collins v. Covenant Mut. Ins. Co., 644 N.E.2d 116, 117 (Ind. 1994). Trial Rule 72(E) provides for relief under certain circumstances for lack of notice, and states: Lack of notice, or the lack of the actual receipt of a copy of the entry from the Clerk shall not affect the time within which to contest the ruling, order or judgment, or authorize the Court to relieve a party of the failure to initiate proceedings to contest such ruling, order or judgment, except as provided in this section. When service of a copy of the entry by the Clerk is not evidenced by a note made by the Clerk upon the Chronological Case Summary, the Court, upon application for good cause shown, may grant an extension of any time limitation within which to contest such ruling, order or judgment to any party who was without actual knowledge, or who relied upon incorrect representations by Court personnel. Such extension shall commence when the party first obtained actual knowledge and Court of Appeals of Indiana \| Memorandum Decision 49A02-1601-CT-102 \| August 17, 2016 Page 6 of 12 not exceed the original time limitation. [16] Notably, Niksich filed a Trial Rule 60(B) motion for relief from judgment – not a Trial Rule 72(E) motion for extension of time. Our courts have held that Trial Rule 72(E) is the exclusive method by which a litigant may seek to extend the time to file a notice of appeal. See Goodrich v. Dearborn County (In re Sale of Real Prop.), 822 N.E.2d 1063, 1068-70 (Ind. Ct. App. 2005) (citing Collins, 644 N.E.2d at 116), trans. denied. But where a Trial Rule 60(B) motion clearly indicates that the basis for the motion is lack of notice under Trial Rule 72(E), we have treated the motion as a Trial Rule 72(E) motion, noting our preference for substance over form. See id. [17] Here, although captioned as a Motion for Relief from Judgment under Trial Rule 60(B), Niksich clearly requested that the trial court extend the time to appeal due to his lack of notice of the court’s July 22, 2015 order. See Appellant’s App. p. 13. Therefore, we will treat Niksich’s motion as a Trial Rule 72(E) motion for extension of time. [18] Trial Rule 72(E) applies where the CCS does not contain evidence that a copy of the trial court’s order was distributed to each party. Collins, 644 N.E.2d at 117-18. We review a trial court’s ruling concerning Trial Rule 72(E) for an abuse of discretion. Atkins v. Veolia Water Indianapolis, LLC, 994 N.E.2d 1287, 1288 (Ind. Ct. App. 2013). A trial court abuses its discretion when its decision is clearly against the logic and effect of the facts and circumstances or when the trial court has misinterpreted the law. Id. Court of Appeals of Indiana \| Memorandum Decision 49A02-1601-CT-102 \| August 17, 2016 Page 7 of 12 [19] In this case, the CCS entry corresponding to the order granting the Doctors’ Motion reads: 07/23/2015 Order Granting Motion for Summary Judgment (Judicial Officer: Miller, Gary L) Order Signed: 07/22/2015 Distribution to parties Appellant’s App. p. 1. The entry indicates the trial court’s order was distributed to the parties. Because Rule 72(E) clearly states that relief may only be obtained if the chronological case summary does not show that a copy of the entry was made and distributed to the parties, hence, Niksich cannot prevail given the facts of his case. [20] We reach this decision although there exists evidence that neither party received notice of the trial court’s July 22, 2015 order pursuant to Indiana Trial Rule 5(B). After the order was issued, on August 6, 2015, the Doctors filed a reply to Niksich’s response to their motion. Niksich then filed a response to the Doctors’ Motion on August 17, 2015. Later, counsel for the Doctors sent a letter to Niksich, dated October 30, 2015, informing him that because counsel failed to provide court staff with mailing envelopes, the July 22, 2015 order was not distributed to the parties. Nevertheless, we, like the panel in Lodge of the 2 Wabash, Ltd. v. Sullivan, 654 N.E.2d 40 (Ind. Ct. App. 1995), trans. denied, are 2 See Lodge of the Wabash, Ltd., 654 N.E.2d 40 (despite the Lodge’s claim it did not receive notice of court’s ruling and evidence court staff provided misleading information regarding issuance of the ruling, the Lodge Court of Appeals of Indiana \| Memorandum Decision 49A02-1601-CT-102 \| August 17, 2016 Page 8 of 12 constrained to follow our Supreme Court’s pronouncement as set forth in Collins. Collins, 644 N.E.2d 116. As such, we conclude the trial court did not abuse its discretion when it denied Niksich’s request for relief. [21] Even if we were to reach the question of whether the trial court erred in granting the Doctors’ “Motion for Preliminary Determination of Law and Motion for Summary Judgment,” Niksich would not prevail. [22] A trial court should grant summary judgment if the pleadings and designated evidence demonstrate “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Ind. Trial Rule 56(C). Our review of a trial court’s decision is limited to the evidence designated by the parties to the trial court. Perdue v. Gargano, 964 N.E.2d 825, 831 (Ind. 2012). [23] The Medical Malpractice Act’s statute of limitations is found in Indiana Code section 34-18-7-1(b), which provides: “A claim, whether in contract or tort, may not be brought against a health care provider based upon professional services or health care that was provided or that should have been provided unless the claim is filed within two (2) years after the date of the alleged act, omission, or neglect. . . .” This is an occurrence-based statute of limitations, “meaning that an action for medical malpractice generally must be filed within was precluded from challenging receipt of notice because the CCS contained a specific reference to notice having been sent). Court of Appeals of Indiana \| Memorandum Decision 49A02-1601-CT-102 \| August 17, 2016 Page 9 of 12 two years from the date the alleged negligent act occurred rather than from the date it was discovered.” Houser v. Kaufman, 972 N.E.2d 927, 933 (Ind. Ct. App. 2012) (quotation omitted), trans. denied. “[I]n determining whether a medical malpractice claim has been commenced within the medical malpractice statute of limitations, the discovery or trigger date is the point when a claimant either knows of the malpractice and resulting injury, or learns of facts that, in the exercise of reasonable diligence, should lead to the discovery of the malpractice and the resulting injury. . . . The issue to be determined is the point at which a particular claimant either knew of the malpractice and resulting injury, or learned of facts that would have led a person of reasonable diligence to have discovered the malpractice and resulting injury. If this date is less than two years after the occurrence of the alleged malpractice, the statute of limitations bars the claim unless it is not reasonably possible for the claimant to present the claim in the remaining time, in which case the claimant must do so within a reasonable time after the discovery or trigger date. If such date is more than two years after the occurrence of the malpractice, the claimant has two years within which to commence the action.” David v. Kleckner, 9 N.E.3d 147, 152-53 (Ind. 2014) (citation omitted). [24] “When a defendant in a medical malpractice action asserts the statute of limitation as an affirmative defense, the defendant bears the burden of establishing that the action was commenced outside that statutory period.” Manley v. Sherer, 992 N.E.2d 670, 674 (Ind. 2013). If this is done, the burden shifts to the plaintiff to establish “an issue of fact material to a theory that avoids the defense.” Herron v. Anigbo, 897 N.E.2d 444, 448 (Ind. 2008) (quoting Court of Appeals of Indiana \| Memorandum Decision 49A02-1601-CT-102 \| August 17, 2016 Page 10 of 12 Boggs v. Tri-State Radiology, Inc., 730 N.E.2d 692, 695 (Ind. 2000)). When the sole claim of medical malpractice is a failure to diagnose, the omission cannot as a matter of law extend beyond the time the physician last rendered a diagnosis. Havens v. Ritchey, 582 N.E.2d 792, 795 (Ind. 1991). [25] The designated evidence established that Drs. Hermina, Carr, and Talens last treated Niksich in January of 2006, June of 2009, and May of 2011, respectively. These dates would have been the last opportunity the doctors had to diagnose Niksich, and the dates upon which the respective two-year periods under the statute of limitations began to run. It is undisputed that Niksich learned of his diagnosis on December 5, 2012, but did not file his complaint with the Indiana Department of Insurance until August 14, 2014, some twenty months later, and, more than a year after the statute of limitations ran on any medical malpractice claim Niksich could have filed against Dr. Talens, the latter of the three treating doctors. [26] Niksich argues the doctrine of continuing wrong, as well as fraudulent concealment apply to his case and tolled the running of the statute of limitations. However, for the doctrine of continuing wrong to apply, a physician’s conduct must be more than a single act. See Gradus-Pizlo v. Acton, 964 N.E.2d 865, 871 (Ind. Ct. App. 2012) (the doctrine of continuing wrong applies where an entire course of conduct combines to produce an injury; doctrine applies when plaintiff demonstrates alleged injury-producing conduct was of a continuous nature). Fraudulent concealment tolls the statute of limitations in an action under the Medical Malpractice Act until (a) the end of Court of Appeals of Indiana \| Memorandum Decision 49A02-1601-CT-102 \| August 17, 2016 Page 11 of 12 the physician-patient relationship, (b) the discovery by the patient of the malpractice, or (c) the discovery of information which in the exercise of reasonable diligence would lead to the discovery of the malpractice. Spoljaric v. Pangan, 466 N.E.2d 37, 40 (Ind. Ct. App. 1984), trans. denied. Conclusion [27] For the reasons stated above, the judgment of the trial court is affirmed. [28] Affirmed. Baker, J., and Riley, J., concur. Court of Appeals of Indiana \| Memorandum Decision 49A02-1601-CT-102 \| August 17, 2016 Page 12 of 12	{ "pile_set_name": "FreeLaw" }
United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 98-1089 ___________ Ronald G. Farkas, doing business * as Tuxedos; Tina Bryson, doing * business as Blondies; Vaunetta * Washington, doing business as Big * Earl's Goldmine; Tracy Bedford, * * Appellants, * * Appeal from the United States v. * District Court for the * Southern District of Iowa. Thomas J. Miller, Attorney * General for the State of Iowa; * William E. Davis, Scott County * Attorney's Office; Mary Richards, * Story County Attorney's Office; * John P. Sarcone, Polk County * Attorney's Office, * * Appellees. * ________________ * * American Association for Nude * Recreation, * * Amicus on Behalf of * the Appellant. * ___________ Submitted: June 10, 1998 Filed: August 13, 1998 ___________ Before BOWMAN, Chief Judge, BEAM, Circuit Judge, and GAITAN,1 District Judge. ___________ BEAM, Circuit Judge. The plaintiffs own, operate, or perform at three Iowa establishments that feature nude dancing. They appeal the district court's2 decision upholding an Iowa public nudity law against First Amendment challenges. We affirm. I. BACKGROUND Ronald Farkas, Tina Bryson, and Vaunetta Washington are the respective owners and operators of Tuxedos, Blondies, and Big Earl's Goldmine, all of which feature live, nude dance performances. Tracy Bedford is one of the dancers who regularly performs at Big Earl's Goldmine. These individuals (collectively, "the plaintiffs") filed this action in federal district court, challenging the constitutionality of recent amendments to section 728.5 of the Iowa Code. As amended, the statute provides: An owner, manager, or person who exercises direct control over a place of business required to obtain a sales tax permit shall be guilty of a serious misdemeanor under any of the following circumstances: 1. If such person allows or permits the actual or simulated public performance of any sex act upon or in such place of business. 1 The Honorable Fernando J. Gaitan, Jr., United States District Judge for the Western District of Missouri, sitting by designation. 2 The Honorable Harold D. Vietor, United States District Judge for the Southern District of Iowa. -2- 2. If such person allows or permits the exposure of the genitals or buttocks or female breast of any person who acts as a waiter or waitress. 3. If such person allows or permits the exposure of the genitals or female breast nipple of any person who acts as an entertainer, whether or not the owner of the place of business in which the activity is performed employs or pays any compensation to such person to perform such activity. 4. If such person allows or permits any person to remain in or upon the place of business who exposes to public view the person's genitals, pubic hair, or anus. 5. If such person advertises that any activity prohibited by this section is allowed or permitted in such place of business. 6. If such person allows or permits a minor to engage in or otherwise perform in a live act intended to arouse or satisfy the sexual desires or appeal to the prurient interests of patrons. However, if such person allows or permits a minor to participate in any act included in subsections 1 through 4, the person shall be guilty of an aggravated misdemeanor. The provisions of this section shall not apply to a theater, concert hall, art center, museum, or similar establishment which is primarily devoted to the arts or theatrical performances and in which any of the circumstances contained in this section were permitted or allowed as part of such art exhibits or performances. Iowa Code § 728.5. Prior to the amendments, the statute's prohibitions were directed at the "holder of a liquor license or beer permit or any owner, manager, or person who exercises direct control over any [such] licensed premises." Iowa Code § 728.5 (amended 1997). By making its provisions applicable to all "place[s] of business required to obtain a sales tax permit," the new version of the statute forecloses the loophole contained in the old version for so-called "juice bars." -3- Plaintiffs in this action own or control three of the four juice bars currently operating in Iowa. Because none of these three establishments has a liquor license or sells alcoholic beverages to patrons,3 they offer nude dancing without violating the statute as originally written. They argue that the amended statute violates the First Amendment's guarantee of free speech, as applied against the states through the Fourteenth Amendment. The district court granted a temporary restraining order enjoining the enforcement of section 728.5 against all of the plaintiffs. The trial on the merits was consolidated with the hearing on the motion for a preliminary injunction. After a bench trial, the court held that the amended statute survives First Amendment scrutiny. The plaintiffs appeal that decision. II. DISCUSSION By prohibiting "exposure of the genitals or female breast nipple of any person who acts as an entertainer," the Iowa statute essentially requires erotic dancers to wear G-strings and pasties during their performances. The Supreme Court has recognized, however, that totally nude dancing is expressive conduct that is entitled to some measure of First Amendment protection. See Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565-66, 581, 587-88 (1991) (eight of nine Justices taking this position). The state cannot impermissibly infringe on the plaintiffs' right to engage in that constitutionally- protected activity. In Barnes v. Glen Theatre, a fragmented Court found that an Indiana public nudity statute was constitutional as applied to the performance of erotic dances. Id. at 572. The state maintains that Barnes compels us to uphold section 728.5. Before deciding whether Barnes is controlling, we must determine the precedential value of the splintered decision in Barnes. We begin by examining each of the opinions necessary to the judgment in that case. 3 Alcohol is not allowed at Blondies. However, customers of Tuxedos and Big Earl's Goldmine are permitted to bring their own beer and wine, and a separate business entity on the Tuxedos premises has a license to sell beer. -4- Chief Justice Rehnquist delivered a plurality opinion joined by Justices O'Connor and Kennedy. The plurality analyzed the constitutionality of Indiana's statute prohibiting public indecency under the four-part test set forth in United States v. O'Brien, 391 U.S. 367 (1968). Barnes, 501 U.S. at 567. Under O'Brien, a regulation that burdens expressive activity as distinct from pure speech can be justified if (1) the regulation is within the constitutional power of the government; (2) the regulation furthers an important or substantial government interest; (3) the government interest is unrelated to the suppression of free expression; and (4) the incidental restriction on alleged First Amendment rights is no greater than necessary to further that interest. O'Brien, 391 U.S. at 377. First, the plurality found that the Indiana statute was a constitutional exercise of the state's police power to provide for the public health, safety, and morals. Barnes, 501 U.S. at 569. Secondly, they determined that the law furthered a substantial government interest in protecting order and morality. Id. Furthermore, they explained that "while the dancing to which [the statute] was applied had a communicative element, it was not the dancing that was prohibited, but simply its being done in the nude." Id. at 571. The plurality therefore found that the government interest was unrelated to the suppression of free expression. Id. at 570-71. Finally, the statutory requirement that dancers wear pasties and G-strings was, in the plurality's view, "the bare minimum necessary to achieve the State's purpose." Id. at 572. Accordingly, finding the O'Brien test satisfied, the plurality held that Indiana's public nudity law did not unconstitutionally intrude on First Amendment freedoms. Id. Justice Scalia concurred in the judgment upholding the Indiana statute. In his opinion, however, because the law was a general regulation not specifically targeted at expressive conduct, it was not subject to First Amendment scrutiny at all. Id. at 576. Thus, according to Justice Scalia, the applicable standard of review was not the O'Brien test, but merely whether the statute was rationally related to some legitimate government interest. Id. at 580. Applying that test, he found that "[m]oral opposition -5- to nudity supplies a rational basis for its prohibition," and concluded that "no more than that is needed." Id. Justice Souter also filed an opinion concurring in the judgment. He agreed with the plurality and the dissenters4 that nude dancing enjoys at least some degree of protection under the First Amendment. Id. at 581. He also concurred with the plurality's view that the four-part O'Brien test was the proper standard of review. Id. at 582. However, while the plurality found society's moral views sufficient to justify the limitation at issue, Justice Souter relied instead on the state's interest in combating the secondary effects of adult entertainment. Id. Citing cases that had upheld zoning restrictions for adult entertainment establishments, he pointed out that in this context, nude dancing "encourages prostitution, increases sexual assaults, and attracts other criminal activity." Id. at 582 (citation omitted). Therefore, because the state has a substantial interest in eradicating these harmful secondary effects, it could legitimately restrict the type of entertainment with which the effects are commonly associated. Justice Souter's determination that the Indiana law furthered the interest in preventing secondary effects was not dependent on any evidence that the Indiana legislature had acted with that specific intent. Id. at 582-83. He explained, "Our appropriate focus is not an empirical enquiry into the actual intent of the enacting 4 In dissent, Justices White, Marshall, Blackmun, and Stevens stated that "[t]he nudity element of nude dancing performances cannot be neatly pigeonholed as mere 'conduct' independent of the expressive component of the dance." Barnes, 501 U.S. at 592-93. They determined that nude dancing is therefore entitled to the full measure of First Amendment protection. Id. at 593. Accordingly, under the dissent's rationale, the Indiana statute could not pass constitutional muster unless narrowly tailored to serve a compelling government interest. Id. They determined that the state's ban on this entire category of expressive activity was not the least restrictive means of controlling the secondary effects of adult entertainment. Id. at 594-95. Thus, the dissenters concluded that the statute was unconstitutional as applied to nude dance performances. Id. at 596. -6- legislature, but rather the existence or not of a current governmental interest in the service of which the challenged application of the statute may be constitutional." Id. at 582. Additionally, he did not find it necessary for the state to adduce localized evidence that nude adult entertainment was associated with criminal behavior such as prostitution or sexual assault, because the government "'was entitled to rely on the experiences of . . . other [communities].'" Id. at 584 (quoting City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 51 (1986)). In his analysis of whether the state's interest was unrelated to the suppression of free expression, Justice Souter addressed the dissent's contention that the state seeks to suppress nude dancing "only because [it] may generate . . . thoughts and ideas in the minds of the spectators [which] may lead to increased prostitution." Id. at 592. Justice Souter argued that, "[t]o say that pernicious secondary effects are associated with nude dancing establishments is not necessarily to say that such effects result from the persuasive effect of the expression inherent in nude dancing." Id. at 585. From his viewpoint, the correlation between criminal conduct on the one hand and nude dancing on the other could just as easily be due to "the concentration of crowds of men predisposed to such activities, or [] the simple viewing of nude bodies regardless of whether those bodies are engaged in expression or not." Id. at 586. Finally, Justice Souter regarded the requirement of pasties and a G-string as a minor limitation, no greater than essential to further the state's important interest. Id. at 587. For these reasons, he too found that O'Brien was satisfied and concurred in the judgment upholding the Indiana statute. None of the opinions commanded a majority of the Court. We do not regard the view expressed by Justice Scalia as binding on us, in light of the fact that no other Justice concurred with his major premise—that nude dancing is not an expressive activity that warrants constitutional protection. Thus, we must look for guidance in the opinion of either the plurality or Justice Souter. The Court has instructed that, "[w]hen -7- a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, 'the holding of the court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.'" Marks v. United States, 430 U.S. 188, 193 (1977) (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976) (opinion of Stewart, Powell, and Stevens, JJ.)). We find that the opinion of Justice Souter presented the narrowest resolution of the issues in Barnes, as the plurality opinion is broad enough to encompass the standard he articulated. By sanctioning the promotion of society's moral views as a justification for restrictions on expressive activity, the plurality implied that an interest in diluting the criminal element would likewise suffice. The reverse does not hold true. Justice Souter's failure to join the plurality opinion as well as his separate statements express his reluctance to concede that the state's interest in protecting morality would adequately support the restrictions in question. His opinion therefore provides the most common rationale underlying the Court's judgment in Barnes. The plaintiffs advance numerous arguments that seek to refute Justice Souter's reasoning and conclusions. Regardless of their strength or weakness, these arguments are unavailing, because we are not free to disregard Supreme Court precedent. We must apply the Barnes analysis as expounded by Justice Souter unless we find that this case is somehow distinguishable. The plaintiffs argue that Barnes is distinguishable from the instant case because the regulation at issue in Barnes was a general law prohibiting public nudity, while the amendments to section 728.5 specifically target nude dancing in juice bars. We disagree. Justice Souter's formulation in Barnes was not predicated on the general nature of the Indiana statute. He found that the general prohibition on nudity was constitutionally sound as it applied to the specific venue of adult entertainment establishments. Barnes, 501 U.S. at 585 n.2. The plaintiffs cannot distinguish Barnes on the grounds that the Iowa statute does not apply in some broader context. On the -8- contrary, the narrower reach of the statute at issue here counsels in favor of its constitutionality. Justice Souter explained in Barnes that "the secondary effects rationale on which [he relied] would be open to question if the State were to seek to enforce the statute by barring expressive nudity in classes of productions that could not readily be analogized to [adult-type entertainment]." Id. In terms of the explicit purpose of the amendments to section 728.5, Justice Souter's opinion is therefore precisely on point. Applying the O'Brien test, we find that section 728.5 does not violate the First Amendment. As the plaintiffs concede, this regulation is clearly within the constitutional power of the state, satisfying the first prong of O'Brien. Under the second prong, we find that the statute furthers a substantial state interest in preventing deleterious secondary effects of nudity in adult entertainment. See Barnes, 501 U.S. at 584-85. This is true despite the unavailability of legislative history showing that the enacting Iowa legislature specifically intended to further that interest. See id. at 582- 83. A statute that regulates expressive conduct does not fail constitutional scrutiny as long as we can identify "a current governmental interest in the service of which the . . . statute may be constitutional." Id. at 582. Furthermore, for the same reasons given by Justice Souter in Barnes and explained ante at 7, we find that the interest in reducing the secondary effects associated with nude dancing is unrelated to the suppression of free expression. Id. at 585-86. Likewise, the requirement under section 728.5 that dancers in juice bars wear G-strings and pasties restricts expression no more than necessary to achieve the state's purpose. See id. at 587. O'Brien is therefore satisfied, and we conclude that the statute is a constitutional limitation on nude dancing.5 5 This analysis applies with equal force to the statutory ban on public performances of actual or simulated sex acts. -9- The plaintiffs assert an additional challenge to section 728.5 on the grounds that it is unconstitutionally vague and overbroad. According to the overbreadth doctrine, "an individual whose own speech or conduct may be prohibited is permitted to challenge a statute on its face 'because it also threatens others not before the court—those who desire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid.'" Board of Airport Comm'rs v. Jews for Jesus, Inc., 482 U.S. 569, 574 (1987) (quoting Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503 (1985)). Although we have determined that the amendments are constitutional in their prohibition of nude dancing in juice bars, the plaintiffs submit that we must nevertheless strike them down because they may chill speech in other constitutionally protected forums. Specifically, the plaintiffs point to the application of the recent amendments to "place[s] of business required to obtain a sales tax permit," arguing that liability to collect sales tax is not an accurate predictor of criminal secondary effects. A finding of overbreadth is "strong medicine" to be used "sparingly and only as a last resort." Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973). In this case, we find that the statute's exception for "a theater, concert hall, art center, museum, or similar establishment . . . primarily devoted to the arts or theatrical performances" saves it from being overbroad. The statutory exception appropriately limits the reach of the restrictions to the type of adult entertainment that is associated with harmful secondary effects. Cf. Barnes, 501 U.S. at 585 n.2 (Souter, J., concurring in the judgment). We therefore reject the plaintiffs' overbreadth challenge. Likewise, we find that section 728.5 is not unconstitutionally vague. In order to avoid a finding of vagueness, a statute must (1) be clear enough to provide a person of ordinary intelligence with notice of what conduct is prohibited, and (2) provide standards for those who enforce the prohibitions. See Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). None of the phrases the plaintiffs advance as impermissibly vague fails this test. Persons of ordinary intelligence would not be confused as to the -10- coverage of the statute's "theater" exception, or the meaning of the terms "simulated sex act," "public performance," or "allows or permits." Mathematical precision is not required in legislation. See id. at 110. Although there may be issues of interpretation regarding the meaning of a statute, that in itself does not give rise to a finding of unconstitutional vagueness. Moreover, "It will always be true that the fertile legal 'imagination can conjure up hypothetical cases in which the meaning of [disputed] terms will be in nice question.'" Id. at 110 n.15 (quoting American Communications Ass'n v. Douds, 339 U.S. 382, 412 (1950)) (alteration in original). We have carefully considered each of the plaintiffs' other arguments, and we conclude that they are without merit. Accordingly, we uphold the recent amendments to section 728.5. III. CONCLUSION For the foregoing reasons, the decision of the district court is affirmed. A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT. -11-	{ "pile_set_name": "FreeLaw" }
585 F.Supp. 102 (1984) WACO SCAFFOLDING COMPANY v. LOCAL 845, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA and The Metropolitan District Council of Philadelphia and Vicinity of the United Brotherhood of Carpenters and Joiners of America. Civ. A. No. 82-1766. United States District Court, E.D. Pennsylvania, Civil Division. February 15, 1984. 103 104 Kenneth L. Oliver, Jr., Philadelphia, Pa., for plaintiff. William J. Einhorn, Philadelphia, Pa., for defendant. MEMORANDUM OPINION CAHN, District Judge. Waco Scaffolding Company ("Waco"), the plaintiff, seeks money damages from the defendants, two labor organizations, pursuant to Section 303 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 187 ("Section 303").[1] Waco contends that agents of the defendants, acting within the scope of their employment, committed unfair labor practices as defined in the LMRA while plaintiff was engaged in performing a subcontract at the B.P. Oil Refinery in Marcus Hook, Delaware County, Pennsylvania. The matter has been tried before me without a jury. Post trial briefing and argument have been completed. I make the following: FINDINGS OF FACT 1. Waco Scaffolding Company, the plaintiff, is a Pennsylvania corporation with its principal place of business in Philadelphia, 105 Pennsylvania. It is engaged in the business of selling, renting and installing steel scaffolding used in industrial construction. 2. (a) Local 845, United Brotherhood of Carpenters and Joiners of America ("Local 845"), a defendant, is an unincorporated labor organization of "Carpenters of the Vicinity of Delaware County, Pennsylvania". (b) The Metropolitan District Council of Philadelphia and Vicinity of the United Brotherhood of Carpenters and Joiners of America ("MDC"), a defendant, is an unincorporated labor organization of carpenters' "Local Unions in the vicinity of Philadelphia, Pennsylvania, including the counties of Philadelphia, Bucks, Montgomery, Chester and Delaware, ...." 3. Local 8, United Brotherhood of Carpenters and Joiners of America ("Local 8") is an unincorporated labor organization comprised of "the carpenters of the vicinity of Philadelphia, Bucks, Montgomery, Delaware and Chester counties". In the past, Local 8 has regularly supplied carpenters for Waco in the geographical area of the MDC. 4. Local 845 and Local 8 are both local unions within the jurisdiction of the MDC and as such the members of both locals are permitted to work as union carpenters in the five county metropolitan area of Philadelphia. 5. (a) Earl R. Henninger is a member of Local 845; (b) Earl R. Henninger is employed as a business representative of the MDC, having been elected by the membership of Local 845 and assigned to a territory in Delaware County which encompasses the jurisdiction of Local 845; (c) Earl R. Henninger is held out by Local 845 as its business representative; (d) During the performance by Waco of its subcontract at the B.P. Oil Refinery ("Refinery") in Delaware County, Pennsylvania, Earl R. Henninger was specifically authorized by the MDC to act as an employee and agent concerning labor activities at the Refinery work site; (e) During the performance by Waco of its subcontract at the Refinery work site, Earl R. Henninger was impliedly authorized by Local 845 to act as an employee and agent concerning labor activities at the Refinery work site. 6. (a) William F. McGugan is a member of Local 8 and is employed as a business representative of the MDC, although elected from the membership of Local 8; (b) William F. McGugan was authorized to act as an employee of MDC concerning labor activities at the work site where the instant dispute began. 7. Edward Coryell is the president and business manager of the MDC and is considered to be its chief executive officer. He supervises the activities of Earl R. Henninger and William F. McGugan. 8. All of Waco's hourly-paid construction employees are members of a labor union (most are members of Local 8), and are subject to the provisions of collective bargaining agreements to which Waco is a party. 9. Waco is an associate member of the General Building Contractors Association ("GBCA"), and is a party to a collective bargaining agreement entered into by GBCA and MDC. This agreement is hereinafter referred to as the "GBCA Agreement". 10. Waco is also bound by a collective bargaining agreement between United Brotherhood of Carpenters and Joiners of America and the National Erectors' Association which covers work involving the erection of scaffolding. This agreement is hereinafter referred to as the "NEA Agreement". 11. Neither the GBCA Agreement nor the NEA Agreement require the employment of non-working foremen at a work site, and neither agreement mandates that any specific procedure be followed when hiring union carpenters. 12. (a) On or about March 1, 1982, Waco entered into a construction subcontract 106 with Henkels & McCoy, Inc. Waco agreed to provide and erect steel scaffolding needed by Henkels & McCoy to complete maintenance work at the Refinery. Time was of the essence in the performance of this contract because the Refinery had to cease operations while the maintenance work was being performed; (b) The parties agree that the NEA Agreement is applicable to plaintiff's work at the Refinery job site. 13. Earl R. Henninger ("Henninger") knew that Waco's normal practice was to hire union carpenters from Local 8. Beginning in March of 1982, Henninger insisted that Waco not be permitted to follow its normal practice in regard to hiring union carpenters. Instead, Henninger demanded that Waco be required to employ Local 845 carpenters, due to the high unemployment rate for union carpenters in Delaware County. Henninger threatened that labor difficulties would befall Waco unless his demand was met. 14. Beginning in March of 1982 and through completion of Waco's subcontract at the Refinery, Francis Rudolph ("Rudolph") was steward for Local 845 at the job site and was appointed as such by Henninger. During this time period, Rudolph refused to allow Waco foremen to perform carpentry work at the Refinery job site. Rudolph threatened that Local 845 members would engage in work slowdowns if Waco foremen performed carpentry work. 15. Waco complained to Edward Coryell ("Coryell"), president of the MDC, that Waco's foremen were being prevented from performing work at the job site, in violation of both the GBCA and NEA collective bargaining agreements. Coryell agreed that neither contract prevented the foremen from working on the job site and stated that the problem would be resolved in Waco's favor. However, the Waco foremen were never permitted to work at the Refinery work site in other than a supervisory capacity. Testimony to the contrary is not persuasive. 16. During the Refinery construction project, other labor difficulties arose and other threats were made by Henninger, all in an attempt to secure employment for members of Local 845 to the exclusion of members of other carpenter locals within the jurisdiction of the MDC. In addition, racial problems occurred at the job site when white members of Local 845 shouted racial epithets at some of Waco's black employees who were members of Local 8. 17. On March 20, 1982, members of Local 845 whom Henninger referred to the Refinery project walked off the job site, protesting Waco's decision to lay off other Local 845 union carpenters. 18. The hourly rates for carpenter foremen, including base pay, fringes, taxes, insurance, overhead and profit are: $31.57 per hour for regular time; $43.66 per hour for time and one-half time; and $55.72 per hour for double time. 19. The hours foremen worked on the job are: 792 hours of regular time; 430 hours of time and one-half time; and 70 hours of double time. 20. The total cost for foremen time on the job is $47,677.64. 21. The hourly rates for carpenters at the Refinery job site, including base pay, fringes, taxes, insurance, overhead and profit are: $27.00 per hour for regular time; $43.66 per hour for time and one-half time; and $55.72 per hour for double time. 22. Waco budgeted 3,800 hours of regular time and 1,200 hours of time and one-half time as the amount of time union carpenters would be required to work at the Refinery job site. 23. The hours union carpenters worked on the Refinery job site in excess of the hours budgeted for the job site are: 255.5 hours of regular time; 578.5 hours of time and one-half time; and 297.5 hours of double time. 24. The total over-budget cost for carpenter time on the job is $42,583.00. 25. After completion of its maintenance work at the Refinery, Henkels & McCoy informed Waco that Henkels & McCoy had performed additional work on the job site, 107 which work had been originally assigned to Waco. 26. Henkels & McCoy advised Waco that Henkels & McCoy would deduct or "back charge" $77,000.00 from Waco's contract fee. 27. Waco settled the Henkels & McCoy "back charge" claim by paying $15,000.00 to Henkels & McCoy. DISCUSSION A. Arbitrability of Dispute Defendants initially argue that Waco has failed to exhaust the contractual remedy of grievance arbitration. Article VI of the NEA Agreement states, "[a]ll grievances, other than those pertaining to jurisdiction or general wage rate on any work governed by this Agreement, shall be handled in the following [multi-step procedure culminating in binding arbitration]...." Plaintiff urges that its cause of action relates to a jurisdictional dispute between rival classes of union employees. Waco claims that Article VI of the NEA Agreement specifically exempts jurisdictional disputes from contractually-mandated grievance arbitration. Defendants contend that this seemingly broad exclusion must be narrowly construed due to language in Article I(2) of the NEA Agreement referring inter-union jurisdictional disputes to the general presidents for resolution.[2] Relying on the language of Article I(2), defendants argue that the Article VI grievance procedure "excludes from coverage only those jurisdictional disputes that involve competing claims by two "separate and distinct crafts or labor organizations". Defendants' Memorandum of Law in Support of Motion for Dismissal Under Rule 41(b), at 20 (emphasis added). They assert that the instant dispute is covered by the contractual grievance procedure, because Local 8 and Local 845 are engaged in the same trade or craft and are members of the same labor organization (presumably the MDC). I reject defendants' contention that the NEA Agreement required grievance arbitration of Waco's claims against Local 845 and the MDC. Henninger sought to exclude employment of Local 8 carpenters, who were not from Delaware County, while he attempted to secure employment for Local 845 carpenters. In so doing, he involved Waco in a jurisdictional dispute between two local unions, who are clearly, in defendant's words, "separate and distinct ... labor organizations." See id. Such disputes are clearly exempted from contractually established grievance procedures. Therefore, Waco committed no error by eschewing the Article VI grievance remedy in this case. Moreover, the presumption of arbitrability for claims brought under Section 301 of the LMRA, 29 U.S.C. § 185[3] ("Section 301"), is reversed for Section 303 claims. Compare United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 581, 80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409 (1960) (Section 301 claim), with Vulcan Materials Co. v. United Steelworkers, 430 F.2d 446, 458 (5th Cir.1970), cert. denied, 401 U.S. 963, 91 S.Ct. 974, 28 L.Ed.2d 247 (1971) (Section 303 claim); Old Dutch 108 Farms, Inc. v. Milk Drivers' Local Union No. 584, 359 F.2d 598, 603 (2d Cir.1966), cert. denied, 385 U.S. 832, 87 S.Ct. 71, 17 L.Ed.2d 67 (1966) (Section 303 claim). Section 301 claims are private contractual actions arising from an alleged violation of the collective bargaining agreement. The interpretation of a collective bargaining agreement is a function traditionally reserved for arbitrators. Old Dutch Farms, 359 F.2d at 602. Section 303 claims are public tort actions arising from alleged violations of Section 8(b)(4) of the Labor Management Relations Act (LMRA) and are thus appropriate to the expertise and power of courts. Id. The LMRA proscribes strikes, threats, coercion and restraint related to jurisdictional disputes. 29 U.S.C. § 158. It also provides for the recovery in tort of damages proximately caused thereby. 29 U.S.C. § 187(b). Where suit is brought under Section 303 the merits of that action are governed by the statutory standards and remedies of the LMRA, and not by the terms of parties' collective bargaining agreement. Such issues of statutory interpretation and remedies are particularly suited to judicial resolution.[4]Old Dutch Farms, 359 F.2d at 602. In Waco's case, the parties' collective bargaining agreement explicitly omits jurisdictional clashes such as the dispute between Local 8 and Local 845 from the contractual grievance procedure. [A]bsent a clear, explicit statement in the collective bargaining contract directing an arbitrator to hear and determine the validity of tort damage claims by one party against another, it must be assumed that the employer did not intend to forego his rights under Section 303 and that the parties did not intend to withdraw such disputes from judicial scrutiny. Id. at 603. Obviously, defendants can point to no "clear, explicit statement" in the NEA Agreement which confers arbitral jurisdiction over Section 303 tort claims. Therefore, defendants' argument that Waco has failed to exhaust contractual remedies is without merit. B. Waco's Section 303 Cause of Action Section 303 actions are based and directly depend on violations of Section 8(b)(4). The literal statutory requirements of Section 8(b)(4)(D) are clearly met in this case.[5] I find that the MDC and Local 845, through their duly designated agents, Coryell and Henninger, threatened, coerced, or restrained Waco and also induced a work stoppage at the site. The judicially inferred requirements of a Section 8(b)(4)(D) jurisdictional dispute, however, pose a closer question on the facts of this case. To bring a cause of action within Section 8(b)(4)(D), a plaintiff must show the existence of 1) separate employee entities, and 2) rivalry between those two groups, as is more fully explained below. Although the Supreme Court has focused on traditional Section 8(b)(4)(D) jurisdictional disputes between two distinct craft units, the Court has provided a broad definition 109 of such disputes. It is clear that a jurisdictional dispute may arise whenever two groups of employees claim the same work assignment. See, e.g., NLRB v. Plasterers' Local Union No. 79, 404 U.S. 116, 135, 92 S.Ct. 360, 371, 30 L.Ed.2d 312 (1971); NLRB v. Radio Engr's Union, 364 U.S. 573, 584, 81 S.Ct. 330, 337, 5 L.Ed.2d 302 (1961). Further, inasmuch as the above cases were Section 10(k) proceedings,[6] the court left open the potential breadth of Section 8(b)(4)(D) in Section 303 suits by indicating that no "substantive symmetry" between Section 10(k) and Section 303 is necessarily required. Radio Eng'rs, 364 U.S. at 585, 81 S.Ct. at 337. In subsequent Section 10(k) proceedings, the National Labor Relations Board has applied Section 8(b)(4)(D) to employee groups within and beyond unions. See, e.g., ILA Local 1911, 236 NLRB No. 191, 98 L.R.R.M 1593 (1978) (dispute between union and unrepresented group); Bricklayers Local, 188 NLRB No. 15, 76 L.R.R.M. 1280 (1971) (dispute between two groups within same local). While there are no reported Section 303 decisions with facts identical to the instant case, the direction of the case law and the broad sweep of Section 8(b)(4)(D)'s languagespecifically, the reference to "employees in a particular labor organization, or in a particular trade, craft or class" would seem to encompass jurisdictional disputes between two locals of the same craft. Therefore, I find that Local 8 and Local 845 are distinct entities for the purpose of Waco's Section 303 action. The facts demonstrate that Local 8 and Local 845 regard themselves as separate labor organizations, and they shall be treated as such. I now consider whether Local 8 and Local 845 asserted competing claims to the work at the Refinery job site. Defendants argue that an employer may bring a Section 303 action only when the plaintiff is a relatively passive victim and is caught between rival claims. Defendants assert that in this case, Waco was neither passive nor was Waco caught between rival claims by the unions for the carpentry work. I must reject defendants' argument that Local 8 did not claim the carpentry work at the Refinery job site. It is undisputed that, as a matter of practice, Waco regularly utilizes Local 8 to perform carpentry work at job sites in the Philadelphia area. Prior to the commencement of the Refinery project, Waco contacted Local 8's William McGugan, and informed McGugan of Waco's plan for staffing the project using members of Local 8. Once Henninger claimed the carpentry work for Local 845, Local 8, through its designated agent William McGugan, played a fluctuating role. At times it acceded to Local 845's claim, by requiring Waco's agent to obtain carpenters by contacting Henninger. However, at other times, McGugan was more actively cooperative. In the week preceding the work stoppage, at the instance of district council president Earl Coryell, McGugan claimed control of the disputed work. On the basis of these facts, I find that Local 845 asserted a "competing claim" to the carpentry work at the Refinery job site. Courts have evaluated relatively passive conduct by one group of employees as constituting a "competing claim" to the work in question, which work another employee seeks through prohibited means. See, e.g., International Longshoremen's Ass'n v. Juneau Spruce, 342 U.S. 237, 245, 72 S.Ct. 235, 240, 96 L.Ed. 275 (1952); Construction Employers Ass'n v. International Union of Operating Eng'rs Local 450, 427 F.2d 230, 232-33 (5th Cir.1970); cert. denied, 400 U.S. 926, 91 S.Ct. 186, 27 L.Ed.2d 185 (1970); International Bhd. of Carpenters v. C.S. Montag & Sons, 335 F.2d 216, 221 (9th Cir.1964), cert. denied, 379 U.S. 999, 85 S.Ct. 719, 13 L.Ed.2d 701 (1965); Local 978 v. Markwell, 305 F.2d 38, 47 (8th Cir.1962). Though Local 845 may not have constantly asserted its right to the carpentry work at the job site, such assertions are 110 unnecessary to create a cause of action under Section 303. It is clear that Local 845 did not disclaim the right to perform the work in question, and at times actually claimed as its own the work performed by Local 845. Cf. Stromberg-Carlson Communications, Inc. v. NLRB, 580 F.2d 939, 941-2 (9th Cir.1978) (disclaimer of work by union moots employer's Section 8(b)(4)(D) cause of action). Such activity by Local 8 was sufficient to assert a "claim" to the work performed by Local 845.[7] Defendants also argue that Waco does not have valid Section 8(b)(4)(D) claim, because Waco itself presented the only competing "claim" to Local 845, due to Waco's alleged "preference" for Local 8. Defendants' Memorandum of Law in Support of Motion For Dismissal Under Rule 41(b), at 16. I have previously determined, however, that Local 8 did assert a right to perform the work commandeered by Local 845 at the Refinery job site. Moreover, that Waco may have preferred that Local 8 perform the work does not eviscerate Waco's Section 303 cause of action. Federal courts have recognized that the focus of such statutory provisions as Section 8(b)(4)(D) and Section 10(k) is "protecting the employer from the economic havoc of jurisdictional strikes." NLRB v. Plasterers' Local Union, 404 U.S. 116, 127-33, 92 S.Ct. 360, 367-370, 30 L.Ed.2d 312 (1971). And realistically speaking, the employer may at times be more interested in the jurisdictional dispute than the employees in question. In fact, the National Labor Relations Board regularly considers employer preference and economic efficiency when attempting to resolve a Section 10(k) dispute. See, e.g., ILWU, Local 62-B (Alaska Timber Corp.), 261 NLRB No. 153, 110 LRRM 1211 (1982). C. Waco's Entitlement to Money Damages Having determined that Waco's cause of action is properly brought pursuant to Section 303, I now turn to a consideration of causation, agency and damages. The parties agree that the relevant standards of causation and agency for Section 303 actions are set out in Feather v. United Mine Workers of America, 711 F.2d 530 (3d Cir.1983). In Feather, Judge Adams ruled that Section 303(b)[8] requires a "causal nexus between the unlawful secondary activity and the injury suffered by the plaintiff." Id. at 537 (citations omitted). That is, the conduct of the defendant union(s) must be a substantial factor in or materially contribute to the plaintiff's losses. Id. at 538 (citations omitted). In addition, when damages are claimed against a district council and a local, the plaintiff must make a separate showing of agency for each defendant. Id. at 539. Injury caused by a union's violation of Section 8(b)(4)(D) is compensable under Section 303 only if the court finds both causation and agency. Id. at 538-39. Although, as Feather clearly establishes, agency and causation must both be shown to support an award of damages under Section 303, the amount of damages may be determined under the relatively relaxed standard of reasonable approximation, rather than exact certainty. See, e.g., Kerry Coal Co. v. UMW, 637 F.2d 957, 966 (3d Cir.1981), cert. denied, 454 U.S. 823, 102 S.Ct. 109, 70 L.Ed.2d 95 (1981); Mead v. Retail Clerks, 523 F.2d 1371, 1377 (9th Cir.1975). In the instant case, I find that Waco has made out a sufficient showing of agency as to both Local 845 and the MDC. The MDC employed Henninger as its agent in Delaware County. Henninger had both actual and apparent authority to represent the MDC at the Refinery job site. Coryell, too, acted as the MDC's agent, and possessed the actual and apparent authority to do so. McGugan functioned as an MDC agent at the Refinery job site, and was authorized to so function, both actually and apparently. *111 All three men's activities at the Refinery job site were well within the scope of their agency and employment. Henninger, among other individuals, also acted as Local 845's agent at the Refinery job site. Again, Henninger possessed actual and apparent authority to act as such. I also find, however, that Waco has failed to prove that the $15,000 back charge it paid to Henkels & McCoy to settle the $77,000.00 back charge claim was sufficiently connected to any illegal activity attributable to the defendants. Similarly, the evidence in my view is insufficient to establish that the labor overrun on this job (the amount of labor required over and above the estimate) was substantially caused by the illegal activities of the agents of the defendants. There is reasonably persuasive evidence that Waco may have underbid the job and may have failed to anticipate the extent to which labor would be required on the Refinery site scaffolding. On the other hand, I am convinced that the agents of the defendants actively prevented Waco's foremen from working on the job. This activity was in direct violation of both the NEA Agreement and Section 8(b)(4)(D). It was also done, in my estimation, to benefit Local 845 members at the expense of Waco. Both defendants are liable for damages caused by this statutory breach because Henninger was acting as an agent of Local 845, and because both Henninger and Coryell were acting as agents for MDC as employees of MDC. McGugan was also a participant in this matter, albeit to a lesser extent than Henninger and Coryell. As previously stated, Henninger, Coryell and McGugan all acted well within the scope of their agency and employment. Plaintiff claims a total of $47,677.64 which represents the total cost for foremen time on the project. Plaintiff's theory is that all of these foremen hours were non productive, as the relevant collective bargaining agreements permit foremen to work at job sites. I find, however, that only 75 percent of this amount should be compensable. Certain activities of the foremen would have been limited to supervision in any event, and at least two of the foremen were paid while they commuted from the home office of Waco to the job site. This commuting time approximated one and one-half hours per day for two foremen. Consequently, judgment will be entered in favor of the plaintiff in the amount of $35,758.23. I reach the following: CONCLUSIONS OF LAW 1. This court has subject matter jurisdiction over this controversy pursuant to Section 303(b) of the Labor Management Relations Act, 29 U.S.C. § 187(b). 2. This court has in personam jurisdiction over the parties who have appeared here through their agents, employees and counsel. 3. Proper venue lies in this court under 28 U.S.C. § 1391(b). 4. Plaintiff is "an employer" engaged in "commerce" in an industry "affecting commerce" within the meaning of Sections 2(6) and 2(7) of the National Labor Relations Act, 29 U.S.C. § 152(6) and (7). 5. Defendants are "labor organizations" within the meaning of Section 2(5) of the National Labor Relations Act, 29 U.S.C. § 152(5). 6. Both defendants have threatened, coerced and restrained plaintiff and have induced and encouraged persons employed by plaintiff to provide employment for members of Local 845, United Brotherhood of Carpenters and Joiners of America in violation of Section 8(b)(4)(i)(ii)(D) of the National Labor Relations Act, 29 U.S.C. § 158(b)(4)(i)(ii)(D) including the illegal prohibition against work being performed by carpenter foremen. 7. As a direct and substantial result of said violations, plaintiff has been injured in its business and property in the amount of $35,758.23. NOTES [1] 29 U.S.C. § 187 states in pertinent part: "(a) It shall be unlawful ... for any labor organization to engage in any activity or conduct defined as an uunfair labor practice in Section 158(b)(4) of this title. (b) Whoever shall be injured in his business or property by reason or [sic] any violation of subsection (a) of this section may sue therefor ... and shall recover the damages by him outlined and the cost of the suit." 29 U.S.C. § 158 ("Section 8(b)(4)(D)") states in pertinent part: "(b) It shall be an unfair labor practice for a labor organization or its agents (4)(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in any industry affecting commerce, where in either case an object thereof is (D) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class, rather than to employees in another labor organization, or in another trade, craft, or class...." [2] Article I(2) of the NEA Agreement states in pertinent part: It is further agreed that should the plant owner also award work to the Company that is within the recognized and traditional jurisdiction of another union with which the Company has a similar Agreement for the performance of that work, then work assignments shall be made in accordance with the Agreements and Decisions of Record, established trade practice, or prevailing area practice. Since presently established jurisdictional dispute settlement procedures are not applicable to the work covered by this Agreement, then any disputes that arise from such assignments shall be referred to the respective General Presidents for resolution.... [3] 29 U.S.C. § 185(a) reads, in pertinent part: Suits for violation of contracts between an employer and a labor organization .... may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties. [4] Of course, instances will arise in which Section 301 and Section 303 damages will overlap. Where such overlap occurs, the preferable approach is to assess the relative weights of the two actions on a case-by-case basis to determine the respective roles of arbitration and litigation. See, e.g., Note, Tort Damages under Section 303 of the Labor Management Relations Act: Arbitration or Litigation, 52 CORNELL L.Q. 1002, 1010 (1967). The most that is doneand then only in the marked minority of casesis to stay, not dismiss, the Section 303 litigation pending the Section 301 arbitration. Compare Bechtel Corp. v. Local 215, Laborers' Int'l Union, 544 F.2d 1207, 1215 (3d Cir.1976), with Vulcan Materials Co. v. United Steelworkers, 430 F.2d 446; Twin Excavating Co. v. Local Union 631, 337 F.2d 437 (7th Cir.1964); United States Steel Corp. v. Seafarers Int'l Union, 237 F.Supp. 529 (E.D.Pa.1965). Here, in contrast to the aforementioned cases, plaintiff did not bring a Section 301 action, and the parties exempted jurisdictional disputes from the coverage of the grievance procedure. Defendants have made no suggestion and have made no showing that Waco's Section 303 action was merely a pretext to avoid the contractual grievance remedy. Cf. Wilkes Barre Publishing Co. v. Newspaper Guild Local 120, 647 F.2d 372, 381 (3d Cir.1981); Fuller v. Guthrie, 565 F.2d 259, 261 (2d Cir.1977); Altshul Stern & Co. v. Mitsui Bussan Kaisha, Ltd., 385 F.2d 158 (2d Cir.1967). [5] See footnote 1, supra, at page 104. [6] Section 10(k) of the LMRA provides procedures for NLRB determination of unfair labor practice disputes arising under Section 8(b)(4)(D). See 29 U.S.C. § 160(k). [7] Penello v. Local Union No. 59, 195 F.Supp. 458 (D.Del.1961) is not to the contrary. In that case, Chief Judge Wright concluded that there had been no violation of Section 8(b)(4)(D), because no rival claims had been made to the work in question. Id. at 462. [8] See footnote 1, supra, at page 104.	{ "pile_set_name": "FreeLaw" }
44 So.2d 616 (1950) CITY OF BIRMINGHAM v. Emily REED. 6 Div. 979. Supreme Court of Alabama. February 9, 1950. Rehearing Denied March 9, 1950. Geo. E. Trawick, of Birmingham, for petitioner. Chas. H. Brown and J. M. Breckenridge, of Birmingham, opposed. LIVINGSTON, Justice. Petition of Emily Reed for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in the case of City of Birmingham v. Reed, Ala.App., 44 So.2d 615. The petition is denied upon authority of City of Birmingham v. Reed, Ala.Sup., 44 So.2d 614. Writ denied. FOSTER, SIMPSON and STAKELY, JJ., concur.	{ "pile_set_name": "FreeLaw" }
618 F.Supp.2d 352 (2009) John MURRAY, Plaintiff, v. CRYSTEX COMPOSITES LLC, Defendant. Civil Action No. 08-2672 (WHW). United States District Court, D. New Jersey. May 28, 2009. 353 Robert J. Basil, Esq., Collier & Basil, P.C., New York, NY, for Plaintiff. Robert George Kenny, Esq., Hoagland, Longo, Moran, Dunst & Doukas, Esqs., New Brunswick, NJ, for Defendant. 354 OPINION WALLS, Senior District Judge. Defendant Crystex Composites LLC moves for summary judgment pursuant to Federal Rule of Civil Procedure 56. The motion is granted. FACTS AND PROCEDURAL BACKGROUND This case originates from the purchase out of bankruptcy of a division of Spaulding Composites Company, Inc., Mykroy/Mycalix ("M & M"), that manufactured glass and ceramic electronic components. See Flores v. Murray, 2007 WL 3034512 (N.J.Super.App.Div.2007). In 2001, Spaulding filed for bankruptcy in the District of New Hampshire and hired plaintiff John Murray as a consultant accountant to review M & M. During the course of his work, Murray developed a friendship with a longtime M & M manager, George Flores. See Flores v. Murray at 1. Murray became interested in purchasing the unit and, after notifying Spaulding's creditors committee that he had concluded that M & M was a valuable asset, took steps toward purchasing it out of bankruptcy. (See Def.'s Opp'n 3-5.) Murray submitted a bid for M & M to the bankruptcy court, which rejected the bid but suggested that Murray make an offer directly to one of Spaulding's main creditors, CIT. (See id. at 4-5.) Ultimately, CIT agreed to sell M & M to Murray for $764,000. (See id. at 5.) Murray, together with Flores, began to assemble a group of investors who would become the equity owners of defendant Crystex, to which the M & M Assets would be transferred. See Flores v. Murray at 1. Flores, Murray and a longtime friend of Murray's, Larry Milby, each agreed to contribute $200,000. Milby's niece agreed to contribute another $100,000. See id. The balance of the purchase price, $264,290.50, was to be funded by a loan from CIT, secured by pledges of stock held by Murray and Milby in American Bio Medica Corporation ("ABMC"). See id. at 2. Because Flores was concerned that the group did not have enough money in reserve for operations, he engaged three additional investors: Keith Savel, Howard Zimmerman and David See, who agreed to invest collectively $150,000 for a 10% interest in Crystex. See id. at 2-3. At the outset, Flores contributed his $200,000 and Milby $190,000 but Murray failed to make a contribution. See id. at 2. Murray's justification for this failure was that his ABMC stock was "going to go through the roof" and it would be foolish to sell it before it increased in value. See id. When Savel, Zimmerman and See discovered that Murray would not be contributing $200,000 immediately, they insisted that Murray have some other personal liability. See id. at 2. The parties entered a memorandum of understanding, dated October 14, 2003, providing that Murray would contribute $200,000 within six months or "forfeit his shares and ownership in Crystex." See id. at 3. A certificate of formation for Crystex was filed on October 15, 2003. (See Pl.'s Supp., Ex. E.) Spaulding moved in the bankruptcy court for authority to sell the real estate and business assets of M & M (the "M & M Assets") and, by an order dated October 15, 2003, the bankruptcy court granted Spaulding the authority to sell all of the M & M assets to "John F. Murray, or his nominee" for $764,290.50 on terms similar to those of a form purchase agreement attached to the order of the bankruptcy court. (See Def.'s Supp., Ex. D.) None of these documents identified Crystex as the buyer. 355 Murray hired an attorney, Ken Wanio, who prepared contracts for the sale of the M & M Assets, incorporated Crystex and dealt with Spaulding and CIT. (See Certification of John Murray in Opp'n to Mot. for Summ. J. ¶ 33 ("Murray Cert.").) Murray certifies that Wanio's authority was based on his understanding that Murray "would receive 35.75% of Crystex and would be the Managing Member." (See id. at ¶ 34.) On October 23, 2003, Murray signed a resolution authorizing Crystex to purchase the M & M Assets but did so as the Managing Member of Crystex. (See Def.'s Supp., Ex. F.) Wanio later prepared a deed and bill of sale transferring ownership of M & M from Spaulding directly to Crystex. (See Def.'s Supp., Exs. G & H.) Murray claims that he did not direct Wanio to prepare these documents and that he did not object only because he believed he was the largest equity owner in Crystex. (See Murray Cert. ¶ 35.) There is no evidence that Murray expressly identified a nominee. (Pl.'s Opp'n. 6.) Shortly after the purchase of the M & M Assets, Flores became concerned with Murray's performance. Murray had "refused to honor a financial obligation owed to one of the company's manufacturing representatives, wanted to penalize valued customers, and used offensive language when dealing with a Crystex accounts payable clerk." Flores v. Murray at 5. Flores discovered that Murray had been paying an additional, unauthorized salary to his son, who was employed by Crystex in the synthetic mica department, out of the Crystex operating account. See id. Certain checks to employees of Crystex bounced because Murray had failed to transfer funds from the operating account to the payroll account. See id. Finally, Murray had paid a personal debt out of company funds. See id. At the same time, Murray still had not contributed his $200,000. See id. On May 3, 2004 Flores called a special meeting and with the other members of Crystex voted that Murray had "failed to live up to his obligations and that he no longer had an interest in Crystex." Flores v. Murray at 6. The members filed a complaint in the Superior Court of New Jersey, Flores et al. v. Murray, seeking, inter alia, a declaratory judgment that "due to Murray's failure to comply with his contractual obligations. . . Murray never had any ownership interest in Crystex, or in the alternative. . . [d]eclaring that as of the [special meeting] Murray had no ownership interest in Crystex . . . [and] that Murray [was] not entitled to any compensation for his forfeit [sic] interest in Crystex." (Pl.'s App. at MA000005; Sup.Ct. of N.J., Dkt. No. L-769-05 (filed Feb. 18, 2005).) Crystex did not immediately join this suit, (Pl.'s Opp'n. 10.), but Murray later joined Crystex as a third-party defendant. (Pl.'s App. at MA000020.) The superior court held that Murray had violated his contractual obligation to contribute $200,000 and had fraudulently induced the other investments by promising that he would contribute his $200,000 at a later date. (See Pl.'s App. MA000063-80; Flores v. Murray, No. L-769-05 (N.J.Super. Ct. Law Div.2006) ("Trial Court Transcript").) The trial court was "satisfied that the investment group [was] entitled to enforce the forfeiture clause" of the memorandum of understanding. According to the trial court, if Murray "did not come up with the $200,000, he suffered the possibility of losing his interest" in Crystex. (Pl.'s App. at MA000077; Trial Court Transcript at 224.) The trial court added, "[w]hat is important here is that there's a total failure of consideration. He never paid the money, he never sold his stock, he never subjected 356 his own capital to the risk of a new company." Id. The court was "satisfied that Mr. Murray never acquired a membership interest in Crystex. And any interest of his is therefore void. Any interest of Murray in the ownership of Crystex is null and void and his shares are forfeited." Id. The Appellate Division upheld the trial court's judgment that the memorandum of understanding controlled and that Murray had forfeited his interest in Crystex by failing to contribute the $200,000 but reversed the trial court's judgment that Murray had fraudulently induced the investors to invest in Crystex. See Flores v. Murray at 11. According to the Appellate Division, a fair reading of the memorandum of understanding, coupled with the credible testimony, indicated it "personally obligate[d] [Murray] to `contribute the $200,000 investment within a six month period ending in March of 2004 or forfeit his shares and ownership in Crystex.'" Id. at 10 (internal citations omitted). The Appellate Division further observed, [i]n consideration for [Murray's] contribution, the remaining parties agreed to contribute their capital investments so that M & M could be purchased and each party, including [Murray], could receive an ownership interest in the soon-to-be-formed Crystex. The testimony at trial established that the [Savel, Zimmerman and See] would not have risked an investment in Crystex without [Murray's] capital contribution had defendant refused to agree to the terms of the [memorandum of understanding]. They accepted the risk of contributing capital investments without a present contribution by [Murray] in order to form Crystex in exchange for [Murray's] promise to contribute his investment by the end of March 2004 or forfeit his ownership interest. The judge correctly found that there was mutual consideration and the [memorandum of understanding] was enforceable. Id. at 10. The Appellate Division adopted the trial court's conclusion that "there's a total failure of consideration" and Murray "never acquired a membership interest in Crystex." Id. at 11 (quoting Flores v. Murray, No. L-769-05 at 224). The New Jersey Supreme Court denied Murray's petition for certification on January 24, 2008. (Def.'s Statement of Material Facts Not in Dispute ¶ 12.) Murray filed the present complaint on May 27, 2008, claiming that the order of the bankruptcy court granted him ownership of the M & M assets. Murray claims that, had he known at the time of the transaction with Spaulding that he was not an equity owner of Crystex, he would have objected to the transfer. (See Pl.'s Opp'n. 9.) By Count One, Murray seeks a declaratory judgment "establishing that Murray is the legal owner of the real estate and personal property awarded to him by [the order of the bankruptcy court.]" (See Compl. ¶¶ 27-30.) In Count Two, Murray claims Crystex has been unjustly enriched by its unlawful possession of the M & M assets. (See Compl. ¶¶ 31-32.) And in Count Three, Murray claims misappropriation of the M & M Assets by Crystex. (See Compl. ¶¶ 33-34.) Defendant moves for summary judgment on two grounds. First, defendant argues that plaintiff's claims are procedurally barred by the New Jersey state court judgments under either the entire controversy doctrine,[1] res judicata or collateral 357 estoppel. Alternatively, defendant proposes that plaintiff's claim should be dismissed because Murray never purchased an interest in the M & M Assets and, even if he had, he appointed Crystex as his nominee. Because the Court concludes that the entire controversy doctrine bars plaintiff's claims it need not address defendant's other arguments. LEGAL STANDARD The entire controversy doctrine is often defined by comparison to claim preclusion so a brief discussion of traditional res judicata claim preclusion is helpful. Claim Preclusion Traditional claim preclusion provides that 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 as to any other admissible matter which might have been offered for that purpose." Cromwell v. County of Sac, 94 U.S. 351, 24 L.Ed. 195 (1877). The bar of claim preclusion applies "not only to `all matters litigated and determined by such judgment but also as to all relevant issues which could have been presented, but were not.'" Culver v. Insurance Co. of N. Am., 115 N.J. 451, 463, 559 A.2d 400, 406 (1989) (quoting Anselmo v. Hardin, 253 F.2d 165, 168 (3d Cir.1958)). Under both federal and New Jersey law, claim preclusion requires "(1) the judgment in the prior action must be valid, final, and on the merits; (2) the parties in the later action must be identical to or in privity with those in the prior action; and (3) the claim in the later action must grow out of the same transaction or occurrence as the claim in the earlier one." McNeil v. Legislative Apportionment Comm'n, 177 N.J. 364, 395, 828 A.2d 840 (2003) (emphasis added); see also Lubrizol Corp. v. Exxon Corp., 929 F.2d 960, 963 (1991); Culver, 115 N.J. at 460-63, 559 A.2d at 404-406 (applying the federal claim preclusion standard). In determining if a claim arises from the same "transaction or occurrence," the Third Circuit has looked for the "essential similarity of the underlying events giving rise to the various legal claims." Lubrizol, 929 F.2d at 963 (quoting Davis v. United States Steel Supply, 688 F.2d 166, 171 (3d Cir.1982) (en banc), cert. denied, 460 U.S. 1014, 103 S.Ct. 1256, 75 L.Ed.2d 484 (1983)); see also United States v. Athlone Indus., Inc., 746 F.2d 977, 983-84 (3d Cir.1984). The proper focus is "whether the acts complained of were the same, whether the material facts alleged in each suit were the same and whether the witnesses and documentation required to prove such allegations were the same." Athlone, 746 F.2d at 984. Entire Controversy Doctrine The entire controversy doctrine "reaches more broadly than the `same cause of action' requirement of traditional res judicata'" claim preclusion. Lubrizol, 929 F.2d at 965 (quoting Melikian v. Corradetti, 791 F.2d 274, 279 (3d Cir.1986)). A party must bring "all related claims against a particular adversary" or be barred from bringing a later action based on such claims. In re Mullarkey, 536 F.3d 215, 229 (3d Cir.2008) (quoting Melikian, 791 F.2d at 279) (emphasis added); see also Lubrizol, 929 F.2d at 965 (citing Cogdell v. Hospital Center at Orange, 116 N.J. 7, 560 A.2d 1169 (1989)). This doctrine is 358 codified in the New Jersey Court Rules, which provide that "[n]on-joinder of claims required to be joined by the entire controversy doctrine shall result in the preclusion of the omitted claims to the extent required by the entire controversy doctrine." New Jersey Court Rules, R. 4: 30A (2009). "The test for whether claims are `related' such that they must be brought in a single action under New Jersey entire controversy doctrine . . . [is] as follows: if parties or persons will, after final judgment is entered, be likely to have to engage in additional litigation to conclusively dispose of their respective bundles of rights and liabilities that derive from a single transaction or related series of transactions, the omitted components of the dispute or controversy must be regarded as constituting an element of one mandatory unit of litigation." DiTrolio v. Antiles, 142 N.J. 253, 268, 662 A.2d 494, 502 (1995) (citing O'Shea v. Amoco Oil Co., 886 F.2d 584, 590-91 (3d Cir. 1989)). "Under the entire controversy doctrine, a party cannot withhold part of a controversy for later litigation even when the withheld component is a separate and independently cognizable cause of action." In re Mullarkey, 536 F.3d at 229 (citing Paramount Aviation Corp. v. Agusta, 178 F.3d 132, 137 (3d Cir.1999)); but see Fornarotto v. American Waterworks Co., 144 F.3d 276, 280 (3d Cir.1998) (entire controversy doctrine does not apply when two causes of action do not have sufficient commonality). The doctrine aims to "assure that all aspects of a legal dispute occur in a single lawsuit," Olds v. Donnelly, 150 N.J. 424, 431 696 A.2d 633, 637 (1997), and strives for three goals "(1) complete and final disposition of cases through avoidance of piecemeal decisions; (2) fairness to parties to an action and to others with a material interest in it; and (3) efficiency and avoidance of waste and delay." In re Mullarkey, 536 F.3d at 229 (citing Paramount Aviation, 178 F.3d at 137) (citing DiTrolio, 662 A.2d at 502). Fairness and equity underpin both the entire controversy doctrine and traditional claim preclusion. Preclusion is generally disfavored, see Olds, 150 N.J. at 446, 696 A.2d 633, but the doctrine is flexible and is to be applied case-by-case with an appreciation of fairness to the parties. See In re Mullarkey, 536 F.3d at 229 (citing Paramount Aviation, 178 F.3d at 137). "New Jersey's application of the entire controversy doctrine `emphasizes the essential unfairness of forcing parties and courts to rerun a course previously run.'" Fields v. Thompson Printing Co., 363 F.3d 259, 266 (3d Cir.2004) (quoting Joel v. Morrocco, 147 N.J. 546, 688 A.2d 1036, 1040 (1997)); see also Mocci v. Carr Engineering Assoc., 306 N.J.Super. 302, 308, 703 A.2d 686, 689 (App.Div.1997) (refusing to apply the entire controversy doctrine because preclusion would have been "utterly inconsistent with any reasonable concept of fairness"). Accordingly, the doctrine does not bar claims that are "unknown, unarisen, or unaccrued at the time of the original action." Mocci, 703 A.2d at 688 (quoting Circle Chevrolet Co. v. Giordano, Halleran & Ciesla, 142 N.J. 280, 662 A.2d 509 (1995) (overruled by Olds, 696 A.2d at 642)); see also In re Mullarkey, 536 F.3d 215 (3d Cir.2008) (overturning district court's application of the entire controversy doctrine to a suit alleging fraud in the course of a foreclosure proceeding because claim may not have accrued or been justiciable in the foreclosure proceeding). Whether a claim is "unknown, unarisen or unaccrued" turns on the knowledge or constructive knowledge of the party who could have brought the claim. As example, 359 the Mocci plaintiff, a real estate developer, had agreed to purchase a parcel of land and hired the defendant, an engineer, to conduct soil analysis. See Mocci, 703 A.2d at 687. The engineer mistakenly reported that wetlands were present on the parcel. Because the presence of wetlands on the parcel would significantly diminish its value, the developer canceled the contract. See id. Litigation with the seller of the parcel ensued. At trial, the seller's experts testified that the engineer had been negligent. This testimony was contradicted by the developer's witnesses. After prevailing in the suit, the developer learned that the engineer had in fact been negligent and no wetlands were present on the parcel. The developer brought suit against the engineer for negligence. See id. The Law Division concluded that the negligence claim arose out of the same transaction as the earlier litigation and was barred by the entire controversy doctrine. See id. at 687. The Appellate Division reversed, holding that the claim against the engineer was not barred because information from opponent parties or opponent expert witnesses did not provide constructive notice that a party must join his own expert witness as a defendant. See id. at 688-89. DISCUSSION Here, plaintiff failed to assert his claims to ownership of the M & M Assets in the earlier proceedings. It is obvious that such claims arose from the same series of transactions as the transactions underlying the New Jersey proceedings. It is of no moment that Crystex was not joined at the outset because the entire controversy doctrine is not limited to the outset of a matter. Plaintiff here, defendant there, asserted six claims against Crystex as a third-party defendant.[2] (See Pl.'s App. MA000035-46.) It was unreasonable for Murray to fail to assert his claim to ownership of the M & M Assets then. It is also irrelevant that Crystex itself did not join in the members' request for a declaratory judgment that Murray never held an equity interest. Crystex was a party and Murray was on notice, by the pleadings of the members, that he could be found to not have been an equity member of Crystex. In contrast to other doctrines of preclusion, under the entire controversy doctrine, parties are required to assert all claims related to the same series of transactions, not just those which will defeat the claim against them. The entire controversy doctrine required Murray to assert his claim to ownership of the M & M Assets unless they were "unknown, unarisen or unaccrued" at the time of the first proceeding. Murray's argument that his claim had not accrued is weakened by the Third Circuit's observation that "[if] the litigants in the action as framed will, after final judgment therein is entered, be likely to have to engage in additional litigation in order to conclusively dispose of their respective bundles of rights and liabilities which derive from a single transaction or related series of transactions, then the omitted component must be regarded as constituting an element of the minimum mandatory unit of litigation." Melikian v. Corradetti, 791 F.2d 274, 279-80 (3d Cir.1986) (quoting Wm. Blanchard Co. v. Beach Concrete Co., 150 N.J.Super. 277, 293-94, 375 A.2d 675, 683-84 (App. Div.1977)), cert. denied 75 N.J. 528, 384 A.2d 507 (1977). Certainly, additional litigation was more than likely. Plaintiff 360 knew that a finding that he never held an interest would require him to assert his ownership rights in the M & M assets in a later matter. The entire controversy doctrine requires the parties to do more than simply respond to the claims of their adversaries. A party cannot neglect to assert a claim clearly related to the subject matter of the litigation simply because an opposing party asserts its claim in the alternative. Plaintiff's argument that his unjust enrichment claim had not accrued in the earlier proceeding is equally unavailing. To prove unjust enrichment a party must show "it expected remuneration from the defendant at the time it performed or conferred a benefit on defendant." VRG Corp. v. GKN Realty Corp., 135 N.J. 539, 554, 641 A.2d 519, 526 (1994). Plaintiff correctly observes that the common thread is "that the plaintiff expected remuneration from the defendant, or if the true facts were known to plaintiff, he would have expected remuneration from defendant, at the time the benefit was conferred." Associates Commercial Corp. v. Wallia, 211 N.J.Super. 231, 244, 511 A.2d 709, 716 (App.Div.1986). Plaintiff insists he could not have received restitution for the purported unjust enrichment until the true facts at the time of the transaction were revealed, that is, until it was determined that he never held an equity interest. But plaintiff had notice that the trial court might determine that he never held an equity stake. Given that notice, the entire controversy doctrine required plaintiff to assert his claim to ownership of the M & M Assets. This is not a case where plaintiff's claim would not accrue until after proceedings were completed. See, e.g., Olds at 437, 696 A.2d 633 (legal malpractice claim not barred by entire controversy doctrine because client must have been injured and injury requires prejudicial outcome). Murray's purported damages occurred not during the trial but at the time of the transaction. To resay, Murray's failure to assert his claim meant that, after a final judgment, it was likely that the parties would "have to engage in additional litigation to conclusively dispose of their respective bundles of rights and liabilities" that derived from the purchase of M & M. See DiTrolio, 662 A.2d at 502. Plaintiff insists that no judicial economy would have been served by resolving ownership in the earlier trial because "Murray would have been required to speculate about the potential consequences of all of the possible outcomes of the case." (Pl.'s Opp'n at 23.) According to plaintiff, to punish him for failing to assert his ownership claim would violate the twin pillars of the entire controversy doctrine: fairness to the parties and fairness to the system of judicial administration. Plaintiff entreats that, unlike other cases where courts have applied the entire controversy doctrine to bar claims, his was not a deliberate claim-splitting strategy. Although, plaintiff is both correct that the polestar of the entire controversy doctrine is fairness, See K-Land Corp. No. 28 v. Landis Sewerage Auth., 173 N.J. 59, 74, 800 A.2d 861, 871 (2002), and that many of the leading cases imposing a procedural bar under the entire controversy doctrine involved parties who strategically withheld claims, See K-Land, 173 N.J. 59, 800 A.2d 861 at 868 (discussing relevant cases), strategic behavior is not a prerequisite to imposition of the procedural bar. While strategic behavior might indicate that a party who failed to assert a related claim in an earlier action could have asserted such claim and could gird a conclusion that justice favors barring such claims, the inquiry still focuses on whether a claim was "unknown, unarisen or unaccrued." 361 K-Land is illustrative of this point. In K-Land the City of Vineland sought a declaratory judgment to establish ownership of a sewer main installed by K-Land, joining K-Land and several other parties who intended to use the sewer main. See K-Land, 800 A.2d at 863. K-Land had no interest in ownership of the main, although it did have an outstanding concern as to how the parties to the suit would compensate it for the cost of constructing the sewer main. Because K-Land believed that the pending suit involved only ownership of the main it did not respond to the suit. Default was entered against K-Land. The other parties later entered a consent judgment which affected K-Land's reimbursement for costs. See id. at 865-66. K-Land instituted an action against the parties to the consent judgment seeking reimbursement. See id. at 865. The trial court dismissed K-Land's suit, applying the entire controversy doctrine. See id. at 867. The Appellate Division affirmed, concluding that, because the ownership of the sewer main was at issue, K-Land could infer that the rights and regulations governing the use of such main would also be at issue. See id. In overturning the Appellate Division, the New Jersey Supreme Court drew a distinction between "deliberate and calculated claim-splitting strategies" and an "innocent omission by an uninformed litigant." Id. at 70, 800 A.2d 861 (quoting Prevratil v. Mohr, 145 N.J. 180, 203, 678 A.2d 243 (1996) (Stein, J. dissenting)) (emphasis added). The Supreme Court concluded that it would be unfair to require K-Land to file a cross-claim because the suit sought only to clear title. Moreover, K-Land could not have been on notice that the consent judgment would affect its right to reimbursement because the consent judgment was not entered until after K-Land had defaulted. Id. at 871. Finally, the K-Land court observed that there was no prejudice to the K-Land defendants because the suit on reimbursement would be "no more difficult or inconvenient to defend against than if it had been asserted in the declaratory judgment action." K-Land, 800 A.2d at 871-72. Plaintiff bears little resemblance to the K-Land plaintiff. Unlike the K-Land plaintiff, Murray was aware of the potential of a judgment that would implicate his ownership of the M & M Assets. The defendants in the state proceeding directly requested that the state court find Murray never had any interest in Crystex. Moreover, unlike K-Land where there was no risk of prejudice to the other parties, defendants in this action would be clearly prejudiced by having to relitigate issues surrounding the purchase of the M & M Assets, the formation of Crystex and the related transactions. Plaintiff's concern for judicial economy had he been forced to "speculate" as to the "many possible outcomes" of the earlier proceeding is also misplaced. There were only two possible outcomes, both of which implicated Murray's claim of ownership to the M & M Assets. Either Murray held an interest until the special hearing or he never held an interest. That Murray concedes he only has a claim to the M & M Assets in the latter case, (Pl.'s Opp'n 13.), only strengthens the conclusion that it was unreasonable for Murray to fail to assert this claim. When faced with a 50-50 chance of the total loss of an asset to which parties claim full ownership, it is unreasonable to fail to assert such claim. Because Crystex plead in the alternative does not allow Murray to reserve a claim that is clearly implicated by one of the alternatives. Moreover, much of the same ground covered in the state proceeding would be unearthed now in a trial involving Murray's purported ownership of the M & M Assets. Plaintiff's appeals to equity *362 notwithstanding, fairness and efficiency favor defendants. CONCLUSION Defendant's motion for summary judgment is granted. Plaintiff's complaint is dismissed with prejudice. NOTES [1] Plaintiff conceded at oral argument that the procedural law of New Jersey, including the entire controversy doctrine, applied in this case. See Del. River Port Auth. v. FOP, Penn-Jersey Lodge 30, 290 F.3d 567, 572-73 (3d Cir.2002) (Full Faith and Credit Act requires that state court decisions be given "the same preclusive effect in federal court they would be given in the courts of the rendering state"); see also 28 U.S.C. § 1738. [2] Murray's claims included breach of the Crystex operating agreement, breach of his employment contract, breach of implied covenant of good faith and fair dealing, unjust enrichment, common law and statutory oppression and civil conspiracy.	{ "pile_set_name": "FreeLaw" }
382 F.2d 518 Thomas COOPER, Plaintiff-Appellee and Appellant,v.Frank J. PATE, Warden of the Illinois State Penitentiary, et al., Defendants-Appellants and Appellees. No. 15462. No. 15463. United States Court of Appeals Seventh Circuit. June 29, 1967. Edward W. Jacko, Jr., New York City, Robert S. Solomon, Chicago, Ill., for Cooper, Marshall Patner, Chicago, Ill., of counsel. William G. Clark, Atty. Gen., Thomas D. Decker, Asst. Atty. Gen., for Pate, Richard E. Friedman, First Assistant Atty. Gen., Richard A. Michael, Asst. Atty. Gen., of counsel. Before SCHNACKENBERG, SWYGERT and FAIRCHILD, Circuit Judges. FAIRCHILD, Circuit Judge. 1 This case is here for the second time. On the first appeal, this court affirmed judgment dismissing the complaint for failure to state a cause of action.1 The Supreme Court reversed, holding that plaintiff Cooper's complaint did state a cause of action.2 2 Cooper averred that he is non-white; that he is incarcerated in an Illinois penitentiary; that he is a follower of the sect of Muslims led by Elijah Muhammad;3 that defendants, the warden and state director of public safety, have denied Cooper permission to obtain and read certain publications; have denied permission to purchase and read Arabic and Swahili grammar books, from which Cooper hopes to learn to read Islamic works in the original; have denied permission to purchase and read the Koran; have denied permission to consult with ministers of his faith; have refused to allow Cooper and other inmates of his faith to attend religious services in their faith, and have placed him in solitary confinement and in a segregation unit because of defendants' hostility toward Cooper's religious beliefs. Cooper sought a declaratory judgment that defendants' acts violated constitutional provisions and sought an injunction. 3 After trial, the district judge, the Honorable Richard B. Austin, incorporated findings of fact in a written opinion, and rendered judgment July 23, 1965, favorable in several respects to Cooper. Defendants appealed from certain parts of the judgment, and Cooper from others. 4 The problem. Elijah Muhammad Muslims accept the tenets of "normative" or "historical" Islam,4 but embrace in addition certain teachings of Elijah Muhammad of Chicago (whom they consider also a messenger of Allah) which have no counterpart in normative Islam. These additional teachings include an account of creation according to which the black man was the original man and the white race the product of experiments in genetics. The teachings include the propositions that the white race is a race of devils, the enemies of Allah; that the white man will be punished for what he has done to American negroes; that Allah permitted the white race to rule for 6,000 years, but the time has now expired; and that black people must separate from white people. 5 Defendants permit prisoners of other faiths to communicate with spiritual advisers, and they arrange for worship services for eight religious groups. Indeed, Illinois statutes require admission of clergymen of all denominations to visit inmates, and require the warden to permit ministrations of religion according to the ceremonies of the respective churches.5 Cooper, an Elijah Muhammad Muslim, desires the same privileges as are available to those of other faiths. 6 Defendants, as administrators responsible for the safety of inmates, as well as the success of rehabilitation efforts, and the like, are apprehensive about the presence and effect of the racial doctrines of the Elijah Muhammad Muslims. Stateville, the Illinois penitentiary involved, has 4,700 inmates, negro and white. It is a maximum security prison where the highest degree of immaturity, resentment, irresponsibility, despair, and lack of self control are virtually entrance requirements.6 7 Defendants would justify their prohibition of religiously-motivated activities of Elijah Muhammad Muslims as efforts, in the interest of safety, to prevent the nurture and spread of such beliefs within the prison, and to avoid explosive impact of these beliefs on those who find them abhorrent. Defendants' concern is understandable. Racism in any form would be dangerous in a crowded, racially-mixed prison. When racism is an article of religious faith, the danger is undoubtedly greater. 8 The legal principles. Defendants have not argued that the beliefs of Elijah Muhammad Muslims do not constitute a religion. A determination that they do not would be indistinguishable from a comparative evaluation of religions, and that process is beyond the power of a court.7 9 It is the general rule in cases where a state court is asked for relief from practices in a state prison, or a federal court in a federal prison, that the court will not interfere with the discretion of the prison administrators.8 Here the federal court is asked to give relief against the administrators of a state prison. It is asserted that the prison authorities have so greatly impaired Cooper's federally-protected freedom of religion as to give rise to a cause of action under 42 U.S.C. § 1983. But although the deference to administrative discretion is not as complete in a case like the present, weight is still given to the judgment of the administrators in determining the practices which are necessary and appropriate in the conduct of a prison. 10 It is clear that prison authorities must not punish a prisoner nor discriminate against him on account of his religious faith.9 But although a prisoner retains his complete freedom of religious belief, his conviction and sentence have subjected him to some curtailment of his freedom to exercise his beliefs.10 11 Courts will closely scrutinize the reasonableness of any restriction imposed on a prisoner's activity in the exercise of his religion, and specially so where the adherents of one faith are more heavily restricted than the adherents of another.11 12 With the foregoing general principles in mind, we proceed to consider the several parts of the judgment. 13 1. The Koran (Quran). Defendants were "enjoined from refusing to plaintiff and other followers of Elijah Muhammad permission to purchase English-language translation of the Holy Quran, including the Mulana Muhammad Ali Edition." Defendants have not appealed from this decree. 14 2. Communication and visiting with ministers. Defendants were "enjoined from refusing to plaintiff and other followers of Elijah Muhammad permission to communicate by mail and visit with ministers of their faith, subject to prison rules and the conditions specified in the Memorandum Opinion." The court's memorandum opinion included a direction to defendants to "implement rules and regulations consistent with this opinion." The opinion noted that "Ordinarily the regulation of the mail and visitation privileges of prisoners is a matter within the administrative discretion of prison officials," that inmates are usually allowed to write to and be visited by their minister at home or a personally-known minister, and that communication between Elijah Muhammad Muslim inmates and ministers of that faith "should be allowed within allowable limitations and in conformity with prison practices including usual and generally applicable censorship." 15 The court found that defendants had not shown that such communication "presents a clear and present danger to prison security." If the clear and present danger standard is the correct test, the district court was clearly correct in finding that communication and visiting had not been shown to pose such danger. Moreover, the denial of the privilege of such communication to adherents of one faith while granting it to others is discrimination on account of religion. 16 3. Religious services. Defendants were "enjoined from refusing to plaintiff and other followers of Elijah Muhammad permission to attend religious services conducted by a recognized Muslim or Islamic minister, subject to prison rules and the conditions specified in the Memorandum Opinion." 17 In the memorandum opinion, the court noted that any right to attend a service must not interfere with regular prison routine and that it is not administratively feasible to provide regular services for each and every religion. "Should a recognized Muslim or Islamic minister make his services available to the prison, however, and space and normal prison routine permit, those who sincerely believe in these faiths should be allowed to attend any service he shall conduct." The court also emphasized that it is within the discretion of the authorities to control any rights granted, to select the time and place, the number of persons permitted to attend, and the number of guards necessary to maintain order and discipline. 18 The court considered that categorical denial to Elijah Muhammad Muslims of the right to attend organized religious services conducted by a recognized minister of their faith while granting this right to other religions would be religious discrimination. We agree. 19 There is considerable evidence in the record that other prison administrators would agree with defendants that it is good policy not to permit Elijah Muhammad Muslim worship services, that there have been violent occurrences in institutions where such services are permitted, and it is clear that Elijah Muhammad Muslims account for many more infractions of discipline per capita than the prison population in general. 20 The problem should not be minimized. Defendants, however, have not tried the course of permitting worship services for this group under regulation. Such course is apparently followed at some institutions. Although Cooper and other Elijah Muhammad Muslims at Stateville have been serious disciplinary problems, there are other prisoners of their faith who have not been. 21 The district court found that there are less drastic and less sweeping means of achieving necessary control of such group services than categorically banning them. In part that is a finding of fact, and in part a recognition that discrimination in treatment of adherents of different faiths could be justified, if at all, only by the clearest and most palpable proof that the discriminatory practice is a necessity. Proof which would be more than adequate support for administrative decision in most fields does not necessarily suffice when we are dealing with the constitutional guaranty of freedom of religion, and with an exercise of religion so widely considered essential as worship services. 22 One statement in the memorandum opinion requires comment: "If individuals of any sect have past records of prior misconduct, it is within the discretion of authorities to exclude them from any services." We interpret this statement as limited to past misconduct which reasonably demonstrates a high degree of probability that the individual would seriously misuse the opportunity for participation with the group. A broader interpretation would be too broad. 23 4. Newspapers and publications. Plaintiff's complaint stated that he had been denied permission to purchase and read certain newspapers and publications, although other prisoners "are allowed to read the newspapers and news publications of their choice." Defendants answered that prisoners may read only those newspapers and other publications which are approved by defendants as being compatible with institutional goals, and which are requested by the prisoner in the manner designated by prison authorities. 24 The district court found that plaintiff had not shown that these publications were basic to his belief or understanding of religion and had not sustained his burden of showing that the censorship was an abuse of discretion. The court dismissed the complaint on this point, and plaintiff appealed. 25 This was not the point given principal attention on the trial, and the record is not as clear as it might be. Apparently some of these publications carry articles by Elijah Muhammad and some relate otherwise to matters of faith. Viewed as ordinary reading matter, with only slight relevance to religion, it would be most difficult to establish that exclusion of any such material from a prison is unlawful. Considered as religious material, one question would be whether material of the same degree of religious relevance is permitted prisoners of other faiths. And the extent or tone with which the race doctrine of this particular faith is emphasized would, we think, be a legitimate consideration. 26 On the record before us, we cannot say that the finding of the district court was clearly erroneous. 27 5. Grammar books. Plaintiff's complaint stated that he needed Arabic and Swahili grammers in order to study Islamic works. He claimed that other prisoners are permitted to buy books in order to study a foreign language. 28 The district court found that these books are not necessary for the practice of Cooper's faith, and that they were denied him because of staff and facility limitations. Apparently the court had in mind the fact that the prison does offer foreign language instruction. Plaintiff, however, was seeking an opportunity for self instruction in a language of his choice. In our view, the record does not establish the impairment of a constitutional right (religious or otherwise) in this area. 29 6. Segregation. Plaintiff has been separated for many years from the general prison population. He is held in the segregation unit, where he cannot mingle with other prisoners and enjoys fewer privileges. As we understand the practice at Stateville, close confinement as punishment for infractions comprises terms of a specified number of days in "isolation." A prisoner is held in the segregation unit, however, as a result of a more far reaching determination that he is unsuitable for mingling with the general prison population. He remains in segregation for an indefinite period until the warden determines that he may again be suitable to mingle with the general population. 30 Cooper's stay in segregation is almost of record length. He arrived there in 1957 after a term in isolation for attacking prison guards. He was out briefly in 1959, but was returned after a similar outbreak, and has remained. 31 The complaint states that defendants hold him in segregation because of their hostility to his religion. The district court found that his confinement "is for normal disciplinary reasons and not because of any religious beliefs he may hold." Testimony, partly disputed by Cooper, describes various episodes in which he was violent and vicious. There is other testimony that he expressed the preference on several occasions to continue in segregation. The finding of the district court on this point is not clearly erroneous. 32 During the trial the warden said that he would consider a letter from Cooper requesting release from segregation. After the trial plaintiff did write a letter, but was not released. He moved to amend the findings and judgment so as to require defendants either to release him from segregation or to issue rules for obtaining release. The court denied the motion and Cooper has appealed from the denial. 33 The district court having found that Cooper's detention in segregation is not on account of his religion, the record before us at this time does not show that the refusal to codify standards for release nor the refusal to release upon receipt of the letter is a deprivation of any federally-protected right. 34 It is argued here that since a prisoner is not permitted to attend religious services while in segregation, keeping him in segregation is itself a deprivation of religious freedom. This appears to be a new argument on appeal, not litigated in the trial court, and inappropriate for our consideration. The judgment is 35 Affirmed. Notes: 1 Cooper v. Pate (7th Cir. 1963), 324 F. 2d 165 2 Cooper v. Pate (1964), 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 3 This group is sometimes referred to as "Black Muslims"; we will refer to it in this opinion as the Elijah Muhammad Muslims 4 The faith of those who accept Muhammad of seventh century Mecca as the last messenger of Allah 5 Ill.Rev.Stat.1965, Ch. 108, secs. 50, 51 6 Cooper himself, though his testimony reflects considerable mental agility, is serving two consecutive 100-year terms for murder, and the record contains much evidence of his acts of dangerous violence 7 Fowler v. State of Rhode Island (1953), 345 U.S. 67, 73 S.Ct. 526, 97 L.Ed. 828; State v. Cubbage (Super.Ct.Del.1965), 210 A.2d 555, 562; Fulwood v. Clemmer (D.D.C.1962), 206 F.Supp. 370, 373 8 Sewell v. Pegelow (4th Cir. 1961), 291 F.2d 196, 197; Childs v. Pegelow (4th Cir. 1963), 321 F.2d 487, 489, cert. den. (1964), 376 U.S. 932, 84 S.Ct. 702, 11 L. Ed.2d 652; Fulwood v. Clemmer, supra footnote 7, 206 F.Supp. at 375; Desmond v. Blackwell (M.D.Pa.1964), 235 F.Supp. 246, 247 9 Cooper v. Pate, supra footnote 2; Sewell v. Pegelow, supra footnote 8; Sostre v. McGinnes (2d Cir. 1964), 334 F.2d 906, 908, cert. den. (1964), 379 U.S. 892, 85 S.Ct. 168, 13 L.Ed.2d 96; In Re Ferguson (1961), 55 Cal.2d 663, 12 Cal.Rptr. 753, 361 P.2d 417, 422, cert. den. (1961), 368 U.S. 864, 82 S.Ct. 111, 7 L.Ed.2d 61; Desmond v. Blackwell, supra footnote 8; Jones v. Willingham (D.Kan.1965), 248 F.Supp. 791 10 Childs v. Pegelow, supra footnote 8, 321 F.2d at 490; Sostre v. McGinnes, supra footnote 9; Cooke v. Tramburg (1964), 43 N.J. 514, 205 A.2d 889, 891; Desmond v. Blackwell, supra footnote 8; Long v. Katzenbach (M.D.Pa.1966), 258 F.Supp. 89, 92 11 Pierce v. La Vallee (2d Cir. 1961), 293 F.2d 233, 235; State v. Cubbage, supra footnote 7; Fulwood v. Clemmer, supra footnote 7. Probably contra, In Re Ferguson, supra footnote 9, 55 Cal.2d 663, 12 Cal.Rptr. 753, 361 P.2d at 421	{ "pile_set_name": "FreeLaw" }
NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT EUGENE EVAN BAKER, No. 11-55067 Plaintiff - Appellant, D.C. No. 2:10-cv-03996-SVW- AJW v. ERIC H. HOLDER, Jr., in his official MEMORANDUM* capacity as Attorney General of the United States, Defendant - Appellee., Appeal from the United States District Court for the Central District of California Stephen V. Wilson, District Judge, Presiding Argued and Submitted June 6, 2012 Pasadena, California Before: B. FLETCHER, WARDLAW, and BYBEE, Circuit Judges. Eugene Baker appeals from the district court’s order dismissing his complaint under Federal Rules of Civil Procedure 12(b)(1) and (b)(6). We affirm in part, reverse in part, and remand for further proceedings. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. The district court dismissed the complaint without prejudice under Rule 12(b)(1), concluding that Baker’s complaint fails to state facts sufficient to present a “case or controversy” under Article III, § 2 of the Constitution. At the outset, we note a disparity between the complaint as filed on the district court’s electronic docket and the complaint as it appears in Baker’s excerpts of record. The complaint found in the electronic docket consists of only the first and last pages of the complaint in Baker’s excerpts. It is not clear from the record whether the district court had the opportunity to review the complaint in its entirety. The two pages of the complaint available on the electronic docket clearly fail to assert facts sufficient to satisfy the justiciability requirements of Article III, as they do not allege that Baker has taken any steps to acquire a firearm. It is unclear whether the full complaint is adequate. It is apparent, however, that Baker is capable of amending his complaint to include additional facts that would confer standing. In his opposition to the motion to dismiss, Baker attached a letter from the California Department of Justice (“CA DOJ”) informing him that his application to purchase a firearm had been denied because his prior conviction for a misdemeanor crime of domestic violence barred him from purchasing or possessing firearms under federal law. Baker also attached a letter sent by the CA DOJ to a firearms dealer, ordering the dealer not to release 2 firearms to Baker. These facts, if alleged in the complaint, are sufficient to confer standing, as the government conceded at oral argument. Therefore, the district court properly granted the 12(b)(1) motion without prejudice, and, upon remand, Baker should be allowed to amend his complaint to allege the additional jurisdictional facts. See Polich v. Burlington N., Inc., 942 F.2d 1467, 1472 (9th Cir. 1991) (“Dismissal without leave to amend is improper unless it is clear, upon de novo review, that the complaint could not be saved by any amendment.”). The district court erred by dismissing the complaint with prejudice under Rule 12(b)(6) for failure to state a claim. Baker’s complaint sets forth both a statutory and a constitutional argument as to the invalidity of applying the prohibition in 18 U.S.C. § 922(g)(9) to him. Although Jennings v. Mukasey, 511 F.3d 894, 898-99 (9th Cir. 2007), forecloses Baker’s statutory argument that his state court order purporting to “set aside” his misdemeanor domestic violence conviction renders § 922(g)(9) inapplicable, Jennings does not foreclose Baker’s Second Amendment argument. Jennings was decided before the Supreme Court announced that the Second Amendment “conferred an individual right to keep and bear arms.” Dist. of Columbia v. Heller, 128 S. Ct. 2783, 2799 (2008). The Jennings decision did not address the question of whether § 922(g)(9) violates the 3 Second Amendment, and therefore does not control Baker’s Second Amendment claim. We therefore affirm the Rule 12(b)(1) dismissal without prejudice, reverse the Rule 12(b)(6) dismissal, and remand with leave to amend the complaint. Each party shall bear its own costs on appeal. AFFIRMED in part; REVERSED in part; REMANDED. 4	{ "pile_set_name": "FreeLaw" }
966 So.2d 399 (2007) BULLITT v. GIBBS. No. 3D06-123. District Court of Appeal of Florida, Third District. October 12, 2007. Decision without published opinion. Proh. denied.	{ "pile_set_name": "FreeLaw" }
518 So.2d 393 (1987) James BOLIN and wife, Diann Bolin, Appellants/Cross-Appellees, v. MASSACHUSETTS BAY INSURANCE COMPANY, Appellee/Cross-Appellant. No. 87-638. District Court of Appeal of Florida, Second District. December 30, 1987. As Amended February 3, 1988. 394 Jean M. Henne, Winter Haven, for appellants/cross-appellees. Keith M. Carter of Mitchell, Alley, Rywant and Vessel, P.A., Tampa, for appellee/cross-appellant. THREADGILL, Judge. James and Diann Bolin appeal summary judgment entered in favor of Massachusetts Bay Insurance Company on Mr. Bolin's claim for uninsured motorists benefits under his wife's policy. The court found that Mr. Bolin was not covered under his wife's policy when driving his own vehicle, and that the applicable statute of limitations was the five-year contract statute. We agree and affirm. The liability insurance section of this contract provides coverage as follows: Persons Insured: Under the Liability and Medical Expense Coverages, the following are insureds: (a) with respect to an owned automobile, (1) the named insured and any relative resident of the same household, (2) any other person using such automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission, and (3) any other person or organization but only with respect to his or its liability because of acts or omissions of an insured under (a)(1) or (2) above; (b) with respect to a non-owned automobile, (1) the named insured, (2) any relative, but only with respect to a private passenger automobile or trailer, provided his actual operation or (if he is not operating) the other actual use thereof is with the permission, or reasonably believed to be with the permission, of the owner and is within the scope of such permission, and (3) any other person or organization not owning or hiring the automobile, but only with respect to his or its liability because of acts or omissions of an insured under (b)(1) or (2) above. Subsequently, the policy excludes from uninsured motorists coverage, "bodily injury to an insured while occupying a highway vehicle (other than an insured automobile) owned by the named insured or by any person resident in the same household who is related to the named insured... ." The Bolins maintain that Mr. Bolin was insured under the basic liability coverage section of the policy and, therefore, as a matter of law, his exclusion from uninsured motorists coverage is invalid. Mullis v. State Farm Mutual Automobile Insurance Company, 252 So.2d 229 (Fla. 1971); Incardona v. Auto-Owners Insurance Company, 494 So.2d 513 (Fla. 2d DCA 1986); Section 627.727, Florida Statutes (1985). Massachusetts Bay concedes that it cannot exclude persons covered under the basic liability provisions of the policy from uninsured motorists coverage. However, it maintains that Mr. Bolin was not an insured under either sections (a) or (b) of the liability coverage provisions. The Bolins point to (a) entitled Persons Insured "with respect to an owned automobile," as evidence that Mr. Bolin, as Mrs. Bolin's spouse, is insured under the basic liability coverage of this policy. This argument is unavailing. An "owned" automobile is defined in this policy as an automobile described in the policy for which premium charges are made, a trailer owned by the named insured, or a private automobile which is acquired by the named insured during the policy period. The automobile Mr. Bolin was driving meets none of these criteria. In addition, he is not covered under (b) Persons Insured "with respect to a non-owned automobile." A non-owned automobile is defined elsewhere in the policy as an automobile which is not owned either by the named insured or any relative. Because Mr. Bolin's automobile does not satisfy the policy definitions of either a non-owned or owned automobile, he is not included under liability coverage. Therefore, he could be excluded from uninsured motorists coverage. Accordingly, the trial court was correct in granting summary 395 judgment in Massachusetts Bay's favor on this issue. Massachusetts Bay, on cross-appeal, contends that the trial court erred in finding that the five-year contract statute of limitations was applicable to the present case. In Burnett v. Fireman's Fund Insurance Company, 408 So.2d 838 (Fla. 2d DCA 1982), this court held that despite the fact that an uninsured motorist stands in a tort relationship to the company, the action arises out of an insurance contract between the parties. Therefore, we held the five-year limitation period specified by section 95.11(2)(b) to be applicable. We adhere to this decision. Accordingly, the judgment of the trial court is affirmed. Affirmed. CAMPBELL, A.C.J., and FRANK, J., concur.	{ "pile_set_name": "FreeLaw" }
Affirmed and Opinion filed August 7, 2003 Affirmed and Opinion filed August 7, 2003. In The Fourteenth Court of Appeals ____________ NO. 14-02-00737-CR ____________ ALFREDO JARAMILLO GARCIA, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 174th District Court Harris County, Texas Trial Court Cause No. 866,142 O P I N I O N After a bench trial, appellant Alfredo Jaramillo Garcia was found guilty of intoxication manslaughter. Asserting four points of error, he now seeks a reversal of his conviction and a judgment of acquittal, or, in the alternative, a new trial. We affirm. FACTUAL AND PROCEDURAL BACKGROUND On August 4, 2000, at approximately 8:30 p.m., Darius Johnson and complainant Lydia Onezine walked from their apartment to a nearby convenience store to get ice cream. They left the store to return home at approximately 9:30 p.m. To return to their apartment, they crossed Aldine Bender RoadCa seven-lane highwayCin the middle of the block. According to Johnson=s testimony at trial, complainant and Johnson crossed three lanes of traffic without incident and were standing in the center left-turn lane waiting for the remaining three lanes of traffic to clear, when Johnson heard the sound of appellant=s truck approaching. Before Johnson could push complainant out of the way, appellant=s vehicle Ca 31,460 lb. wrecker used to haul 18-wheelersCstruck complainant, propelling her into the air. Landing 172 feet away in a lane of oncoming traffic, complainant was subsequently run over by a Suburban. She died from blunt force trauma and multiple injuries. Evidence shows that after the accident, appellant stopped his truck in the lane immediately adjacent to the highway=s left-turn lane and exited his vehicle. According to Johnson, appellant emitted a strong odor of alcohol, made a comment about messing up the front of his truck, and Astaggered@ to the back of the wrecker. Appellant then walked towards the convenience store. At this point, according to Johnson, Johnson Abeat the hell out of@ appellant, hitting him in the face, chest, and neck.[1] Johnson then returned to the scene of the accident and, from a distance, kept an eye on appellant as appellant slowly walked away from the scene. When the police arrived, appellant was apprehended several yards from the accident site. He was still within sight of Johnson and others at the scene. At trial, several people testified that appellant exhibited signs of being under the influence of alcohol. Four witnesses testified they detected a strong odor of alcohol coming from his person; three testified he appeared disoriented and/or wandered away from the scene; two testified he had blood-shot eyes; six testified he Astumbled@ or had trouble maneuvering; and three testified his speech was slurred. There was also testimony appellant fell asleep at the scene after being placed in an officer=s patrol car. Although no testimony or evidence was proffered at trial to show appellant vomited at the scene, appellant contends the strong odor of alcohol coming from his person was due to his having vomited as a result of Johnson=s beating. Appellant also contends his disorientation, red eyes, and slurred speech were the result of Johnson=s beating as well. At the scene of the accident, appellant refused to submit to a field sobriety test. He was transported to a Harris County Jail facility where, approximately two hours after the accident, he underwent an involuntary blood alcohol test administered pursuant to the Texas Transportation Code. See Tex. Transp. Code Ann. 724.012(b) (Vernon 1999). Appellant was also interviewed by law enforcement personnel and the interview was recorded on a video. This Aintox video@ was lost or destroyed by the district attorney=s office prior to trial. Appellant was subsequently charged with intoxication manslaughter. After a bench trial, he was found guilty and punishment was assessed at seven years= confinement in the Texas Department of Criminal Justice, Institutional Division. Appellant=s sentence was suspended and he was placed on community supervision. After a motion for new trial that was overruled by operation of law, appellant gave timely notice of appeal. ISSUES ON APPEAL Asserting four points of error, appellant contends (1) he was denied effective assistance of counsel; (2) the trial court erred when it denied his motion to suppress the State=s evidence regarding his blood alcohol level; and (3) and (4), the evidence was legally and factually insufficient to sustain a conviction for intoxication manslaughter because it failed to establish that his intoxication caused complainant=s death. INEFFECTIVE ASSISTANCE OF COUNSEL In his first point of error, appellant asserts he was denied effective assistance of counsel because his attorney failed to Arecognize that the State=s conduct on the night in question with regard to the forced taking of [appellant=s] blood specimen was pursuant to a law which had been repealed.@ Because the statutory authority cited by the State in ordering hospital officials to draw appellant=s blood was repealed by the Texas legislature, appellant argues, Aall rights and authorities . . . afforded to [the ordering peace officer] . . . were extinguished.@ Thus, the government=s actions were not authorized and trial counsel was ineffective in failing to raise this issue before the trial court. We disagree. 1. Standard of Review When an appellant asserts his trial counsel was ineffective, he must prove (1) his trial counsel=s representation was deficient; and (2) his trial counsel=s deficient performance was so serious that it prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Indeed, appellant must prove by a preponderance of the evidence that counsel=s representation fell below the objective standard of prevailing professional norms, and there is a reasonable probability that, but for counsel=s deficiency, the result of the proceeding would have been different. Id. To accomplish this, appellant must identify the specific Aacts or omissions of counsel that are alleged@ to constitute ineffective assistance and affirmatively prove that they fell below the professional norm for reasonableness. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996) (citing Strickland, 466 U.S. at 690, 104 S.Ct. at 2065-66). 2. Pertinent Facts Following appellant=s accident, appellant was taken to the Harris County Jail, where, according to the police, he was arrested for operating a motor vehicle while under the influence of an alcoholic beverage and for failure to stop and render aid. See Tex. Pen. Code Ann. '' 49.04(a) and 49.01(2) (Vernon 2003); Tex. Transp. Code Ann. ' 550.023 (Vernon 1999). He was asked to provide a blood specimen and refused. As a result of appellant=s refusal, officers presented a Aform TLE-51" to the medical staff of the jail. Sections 2 and 3 of article 6701l-5, V.T.C.S., are cited on form TLE-51 as legal authority for collecting involuntary blood specimens. Article 6701l-5 was revised and codified in Chapter 724 of the Texas Transportation Code in 1995. Although appellant objected to the involuntary taking of his blood, he did not physically resist. Prior to trial, however, appellant=s trial counsel filed a motion to suppress the results of the State=s blood test. In it, trial counsel argued appellant=s blood specimen was taken as a result of an illegal search and seizure because (1) appellant was not arrested for an offense under Chapter 49 of the Texas Penal Code, as required by the statute; (2) appellant=s sample was not taken within a reasonable time period after the incident in question; and (3) the person who withdrew appellant=s blood was not a qualified technician and withdrew the sample in a place and manner violative of the Texas Transportation Code. Defense counsel did not argue the illegality of the State=s actions based on the repeal of article 6701l-5. The trial court denied the motion. 3. Discussion Appellant contends the State lacked authority to draw appellant=s blood because the Texas legislature Arepealed@ the statute cited by the State in its TLE-51 form.[2] Appellant further argues that the blood taken by the State was the result of an illegal search and seizure and should have been suppressed. This failure to argue the repeal of article 6701l-5, appellant asserts, constituted ineffective assistance of counsel. We disagree. First, appellant points to no place in the record where he has demonstrated that defense counsel=s performance was deficient. An assertion of ineffective counsel will be sustained only if the record affirmatively supports such a claim. See Ex parte Ewing, 570 S.W.2d 941, 943 (Tex. Crim. App. 1978). Without a record to explain trial counsel=s rationale, there is a Astrong presumption that counsel was competent.@ Perez v. State, 56 S.W.3d 727, 730-31 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d).; see also Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Indeed, to defeat the presumption of reasonable professional assistance, A[a]ny allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.@ McFarland, 928 S.W.2d at 500. Next, there is nothing in the record to suggest the trial court would have granted appellant=s motion to suppress even if trial counsel had asserted appellant=s proffered argument. Without such evidence, appellant cannot prove the second prong of StricklandCnamely, that Abut for@ appellant=s counsel=s deficient performance a motion to suppress would have been granted. See Strickland, 466 U.S. at 686, 104 S. Ct. at 2064; Bone, 77 S.W.3d at 833. Appellant cannot prove Strickland=s second prong because, even if trial counsel had asserted the argument that the State lacked authority to draw appellant=s blood on the basis of the recodified statute, we cannot say that denial of appellant=s motion to suppress would have been improper. First, the new act set forth in the Texas Transportation Code is almost identical to the provisions of the former statute. Compare Tex. Transp. Code Ann. '' 724.013 and 724.012(b) (Vernon 1999) with Tex. Rev. Civ. Stat. Ann. art. 6701l-5, '' 2(a) and 3(i).[3] Second, the legislature presumably enacted the change with complete knowledge of existing law. Acker v. Texas Water Comm=n, 790 S.W.2d 299, 301 (Tex. 1990); see also Coastal Indus. Water Auth. v. Trinity Portland Cement Div., 563 S.W.2d 916, 918 (Tex. 1978) (it is presumed the legislature knew and adopted interpretation placed on original act and intended for new enactment to receive same construction). Finally, unless expressly provided otherwise, a reference to any portion of a statute or rule applies to all reenactments, revisions, or amendments of the statute or rule. Tex. Gov=t Code Ann. ' 311.027 (Vernon 1998); In re. R.J.J. 959 S.W.2d 185, 186 (Tex. 1998). Indeed, any reference to a statute or part of a statute revised by the Texas Transportation Code is Aconsidered to be a reference to the part of [the] code that revises that statute or part of that statute.@ See Tex. Transp. Code Ann. ' 1.003 (Vernon 1999). Thus, the Arepeal@ of article 6701l-5 would not have been a viable basis for a motion to suppress appellant=s blood specimen. Because we find nothing in the record to suggest trial counsel was deficient when he failed to argue the repeal of article 6701l-5, and because such a challenge to the legal authority of the State to obtain a blood specimen would have properly been denied by the trial court, appellant has not met his burden to prove he received ineffective assistance of counsel. Indeed, it would have been futile for appellant=s counsel to seek suppression of appellant=s blood sample based on the repeal of article 6701l-5. To provide effective assistance, counsel need not engage in futile acts. See Mooney v. State, 817 S.W.2d 693, 698 (Tex. Crim. App. 1991) (holding where there is no basis for presenting a motion, counsel is not ineffective for failing to do such because counsel is not required to engage in the filing of futile motions). Accordingly, we overrule appellant=s first point of error. MOTION TO SUPPRESS In his second point of error, appellant asserts the trial court erred in denying appellant=s motion to suppress the State=s blood sample because the results of appellant=s blood test were unreliable. We disagree. 1. Standard of Review We review a trial court=s ruling on a motion to suppress under an abuse-of-discretion standard of review. Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999); Dang v. State, 99 S.W.3d 172, 179 (Tex. App.CHouston [14th Dist.] 2002, no pet. h.). There is an abuse of discretion when the ruling is so clearly wrong as to be outside that zone within which reasonable persons might disagree. Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992). We afford almost total deference to a trial court=s determination of the historical facts that the record supports, especially when the trial court=s fact findings are based upon an evaluation of credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000). We afford the same amount of deference to the trial court=s ruling on mixed questions of law and fact if the resolution of those questions turns on an evaluation of credibility and demeanor. Id. We review de novo the trial court=s application of law to facts in search and seizure cases. Id. The taking of a blood specimen is considered a search and seizure under both the federal and Texas Constitutions. Schmerber v. California, 384 U.S. 757, 767-68, 86 S.Ct. 1826 (1966); Aliff v. State, 627 S.W.2d 166, 170 (Tex. Crim. App. 1982); Knisley v. State, 81 S.W.3d 478, 483 (Tex. App.CDallas 2002, pet. ref=d). In determining whether the trial court=s ruling on a motion to suppress is supported by the record, we generally consider only the evidence adduced at the hearing on the motion unless the suppression issues have been consensually relitigated by the parties during the trial on the merits. Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996); Dang, 99 S.W.3d at 179. Because the parties in this case did not consensually relitigate the suppression issues at trial, we will examine only the evidence before the trial court at the suppression hearing. 2. Discussion (a) Reliability: Procedures At a criminal proceeding arising out of an offense under Chapter 49 of the Texas Penal Code, evidence of a person=s alcohol concentration as shown by the analysis of a specimen of the person=s blood taken at the request or order of a peace officer is admissible. Tex. Transp. Code Ann. ' 724.064 (Vernon 1999); Mireles v. Texas Dep=t of Public Safety, 9 S.W.3d 128, 130 (Tex. 1999). To be admissible, the blood specimen must be taken in a Asanitary place@ by a Aphysician, qualified technician, chemist, registered professional nurse, or licensed vocational nurse.@ Tex. Transp. Code Ann.' 724.017(a) (Vernon 1999). Such test results are admissible even without proof that the underlying scientific theory is reliable. Slagle v. State, 570 S.W.2d 916, 921 (Tex. Crim. App. 1978) (finding the State need not establish as part of its predicate that a Breathalyzer examination is a scientifically reliable test); Scherl v. State, 7 S.W.3d 650, 652 (Tex. App.CTexarkana 1999, pet. ref=d)(noting the Texas legislature has determined that intoxilyzer test results are admissible when performed in accordance with the statutory guidelines mandated by the Texas Transportation Code and Texas Department of Public Safety Regulations). Rather, the necessary predicate that the State must prove for admission of such evidence is the use of properly compounded chemicals; the existence of periodic supervision over the machine used; operation by one who understands the scientific theory of the machine; and proof of the result of the test by a witness or witnesses qualified to translate and interpret such results so as to eliminate hearsay. Slagle, 570 S.W.2d at 918 n. 2 (citing Cody v. State, 548 S.W.2d 401, 404 (Tex. Crim. App. 1977)) (finding proper predicate for allowing breathalyzer examination results where authorities operated test according to Texas Department of Public Safety checklist). See also Lopez v. State, 731 S.W.2d 682, 687 (Tex. App.CHouston [1st Dist.] 1987, pet. denied), rev=d on other grounds, 779 S.W.2d 411 (Tex. Crim. App. 1989) (finding proper predicate for allowing blood test into evidence in light of testimony of medical technologist who drew the blood and conducted the test as to her experience, custody of the sample, and manner of conducting test). Here, the State presented results from two tests conducted on blood drawn from appellant two hours after the accident. The tests indicated a blood alcohol concentration (BAC) of .109 and .110 respectively. Additionally, the State presented evidence that the person extracting appellant=s blood was a licensed vocational nurse, that she drew the blood in the clinic of the Harris County Jail, and followed proper protocol in extracting and storing the blood. The State also presented evidence to show (1) the toxicologist who performed the blood tests on appellant=s blood held a degree from Texas A&M University, was certified as a toxicological chemist by the National Registry and the Texas Registry, and performed an average of 150 blood tests per year; (2) the laboratory in which appellant=s blood tests were performed was a sterile environment; (3) the toxicologist who performed appellant=s blood tests followed proper laboratory procedures the day in question; (4) the gas chromatograph used to analyze appellant=s blood alcohol concentration performed properly and was checked regularly, thus ensuring accurate calibration; and (5) the results gleaned from appellant=s two tests were within acceptable variances of each other. Because the State presented evidence that showed appellant=s blood specimen was taken in a sanitary place by a licensed vocational nurse, and because evidence was proffered showing use of properly-compounded chemicals, periodic supervision, proper operation of the State=s gas chromatograph by one who understands its scientific theory, and proof of the test results by one who is qualified to translate and interpret such results, we conclude the State=s evidence was reliable. See Slagle, 570 S.W.2d at 918; Cody, 548 S.W.2d at 404. See also Lopez, 731 S.W.2d at 687. As such, we conclude admission of this evidence was proper and refusal to suppress the evidence was not an abuse of discretion. (b) Reliability: Retrograde Extrapolation Citing Mata v. State, however, appellant contends that the results of the blood tests were not admissible because they failed to take into account the scientific theory of Aretrograde extrapolation.@ 46 S.W.3d 902, 908-09 (Tex. Crim. App. 2001). Retrograde extrapolation is the Acomputation back in time of the blood-alcohol levelCthat is, the estimation of the level [of blood alcohol concentration] at the time of driving based on a test result from some later time.@[4] Id. Because the State failed to extrapolate appellant=s BAC at the time of appellant=s accident by taking into account what appellant ate and drank prior to driving, appellant contends, the State=s test results were unreliable and should not have been admitted. We disagree. First, nothing in Texas= statutory framework specifically mandates extrapolation evidence. Mireles, 9 S.W.3d at 130. Rather, the Texas Legislature has expressly made admissible evidence of alcohol concentration in any trial in which driving while intoxicated is an issue, if the analysis is performed in accordance with regulations of the Department of Public Safety. Id. (holding test results admissible without retrograde extrapolation) Next, the necessity of retrograde extrapolation testimony has been rejected by the preponderance of courts in this state, including this court.[5] See e.g. Forte v. State, 707 S.W.2d 89, 96 (Tex. Crim. App. 1986); Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. 1979); Verbois v. State, 909 S.W.2d 140, 142 (Tex. App.CHouston [14th Dist.] 1995, no pet.); Price v. State, 59 S.W.3d 297, 300 (Tex. App.CFort Worth 2001, pet. ref=d); O=Neal v. State, 999 S.W.2d 826, 832 (Tex. App.CTyler 1999, no pet.). See also Carrillo v. State, No. 08-01-00471-CR, 2003 WL 1889943, 7 (Tex. App.CEl Paso April 17, 2003, no pet. h.)(not designated for publication); Ball v. State, No. 03-02-00037-CR, 2002 WL 1988250, at 3 (Tex. App.CAustin Aug. 30, 2002, pet. ref=d)(not designated for publication).[6] Indeed, many Texas courts have sustained convictions for driving while intoxicated based, in part, on after-the-fact test results without expert extrapolation evidence. Gowans v. State, 995 S.W.2d 787, 790 (Tex. App.CHouston [1st Dist.] 1999, pet. ref=d) (compiling cases).[7] Third, appellant=s reliance on Mata is misplaced. See Mata, 46 S.W.3d at 909-10. In Mata, the issue was not whether retrograde extrapolation is necessary in order for the State to prove guilt in a DWI case, or whether BAC test results showing a defendant=s BAC at some time after the alleged offense are admissible at trial without retrograde extrapolation. Instead, the issue was whether the science of retrograde extrapolation was reliably applied in Mata=s trial. In that case, the Court of Criminal Appeals concluded the trial court abused its discretion by admitting testimony extrapolating a defendant=s breath test results back to the time he was driving because the retrograde extrapolation testimony was unreliable. Id. at 917. Finally, unextrapolated test results are probative evidence for the jury to consider in determining intoxication. Verbois, 909 S.W.2d at 142 (finding unextrapolated breath test results taken two and one-half hours after accident to be relevant as to whether appellant consumed alcohol prior to accident, not unduly prejudicial, and admissible). See also McCay v. State, 235 S.W.2d 173, 174 (Tex. Crim. App. 1950) (evidence of a chemical analysis of an alcohol breath test can be used to Asupplement . . . evidence obtained from observation of the accused@ when there is proof of its accuracy, even though there may be evidence disagreeing with its accuracy; such disagreement goes to the Aweight@ and not the Aadmissibility@ of the evidence); Mireles, 9 S.W.3d at 130 (citing Forte, 707 S.W.2d at 95); Owen v. State, 905 S.W.2d 434, 438-39 (Tex. App.CWaco 1995, pet. ref=d)(unextrapolated evidence is Aprobative@ evidence for trier of fact to consider and weigh). But compare Stewart v. State, 103 S.W.3d 483 (Tex. App.CSan Antonio 2003, pet. filed) (finding breath test results without extrapolation to be irrelevant and Ano evidence@). If, as here, a defendant rebuts that evidence with evidence of his own that his alcohol concentration level actually increased between the time of arrest and administration of the test, the question of lagtime between driving and the test becomes a matter to be weighed by the jury. Owen, 905 S.W.2d at 439; see also O=Neal, 999 S.W.2d. at 832. Because the State was not required to provide retrograde extrapolation evidence in order to establish its tests were reliable, and because the State met its burden of showing use of properly-compounded chemicals, periodic supervision, proper operation of machinery, and proof of the State=s test results, we conclude admission of appellant=s blood tests was proper and that the trial court did not abuse its discretion by refusing to suppress the BAC tests. Accordingly, we overrule appellant=s second point of error. SUFFICIENCY OF THE EVIDENCE In his third and fourth points of error, appellant argues the evidence was legally and factually insufficient to sustain his conviction for intoxication manslaughter. Because the State failed to show appellant=s intoxication caused complainant=s death, he claims, the State failed to prove an element of his alleged offense beyond a reasonable doubt. See Tex. Pen. Code Ann. ' 49.08 (Vernon Supp. 2003). We disagree. 1. Standards of Review To determine legal sufficiency, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89 (1979); Garrett v. State, 851 S.W.2d 853, 857 (Tex. Crim. App. 1993). This standard of review applies to cases involving both direct and circumstantial evidence. King v. State, 895 S.W. 2d 701, 703 (Tex. Crim. App. 1993). On appeal, this court is not to reevaluate the weight and credibility of the evidence; rather, we consider only whether the jury reached a rational decision. See Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993). The jury, as the trier of fact, is the sole judge of the credibility of the witnesses. See Soto v. State, 864 S.W.2d 687, 691 (Tex. App.CHouston [14th Dist.] 1993, pet. ref=d). To determine factual sufficiency, we view the evidence in a neutral light and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). Because appellant presented exculpatory evidence, he contends the evidence greatly outweighed the State=s evidence to the extent that the contrary finding is clearly wrong and manifestly unjust. Id. at 11. The proper factual sufficiency standard of review for the latter argument is whether the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Id. We must review the evidence weighed by the jury tending to prove the existence of the elemental fact in dispute, and compare it to the evidence tending to disprove the fact. Id. at 7. The appellate court may find either that the State=s proof of guilt was so obviously weak as to undermine confidence in the jury=s determination, or, where contrary evidence is presented, that the finding of guilt was against the great weight and preponderance of the evidence. Id. at 11. However, a factual sufficiency review must be appropriately deferential to avoid substituting our judgment for the fact finder=s. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996). We are not free to reweigh the evidence, but must exercise our jurisdiction only to prevent a manifestly unjust result. Id. 2. Discussion A person commits the offense of intoxication manslaughter if the person (1) operates a motor vehicle in a public place; (2) is intoxicated,[8] and, (3) by reason of that intoxication, (4) causes the death of another by accident or mistake. Tex. Pen. Code Ann. ' 49.08 (Vernon Supp. 2003). It is not enough that operation of a vehicle, even by an intoxicated person, causes the death; rather, the Adeath must be the result of the intoxication and proof must be made . . . of that thing which worked a causal connection between the intoxication and the death.@ Daniel v. State, 577 S.W.2d 231, 233 (Tex. Crim. App. 1979) (citing Long v. State, 214 S.W.2d 303, 304 (1948)). See also Glauser v. State, 66 S.W.3d 307, 313 (Tex. App.CHouston [1st Dist.] 2000, pet. ref=d). Here, appellant asserts there is legally and factually insufficient evidence to prove his intoxicationCif indeed he was intoxicatedCcaused the accident. The State=s proof, he claims, suggests only that he was intoxicated and that he drove in excess of the posted speed; it does not prove he drove too fast because he was intoxicated. We reject this argument. Under Texas law, a person Ais criminally responsible for his conduct if the result would not have occurred but for his conduct.@ Tex. Pen. Code Ann. ' 6.04(a) (Vernon 1994); Barcenes v. State, 940 S.W. 2d 739, 745 (Tex. App.CSan Antonio 1997, pet. ref=d); Lowe v. State, 676 S.W.2d 658, 661 (Tex. App.CHouston [1st Dist.] 1984, pet. ref=d). A criminal jury can draw reasonable inferences regarding ultimate facts from basic facts. Lacour v. State, 8 S.W.3d 670, 671 (Tex. Crim. App. 2000). Circumstantial evidence may be used to establish this causal connection. Barcenes, 940 S.W.2d at 745. See also Hines v. State, 515 S.W.2d 670, 673 (Tex. Crim. App. 1974); Martinez v. State, 980 S.W.2d 662, 667 (Tex. App.CSan Antonio 1998, pet. ref=d).[9] At trial, appellant produced the following evidence to suggest his alcohol consumption did not contribute to his behavior the night of the accident: ! an accident reconstructionist testified appellant=s speed was only 40B50 mph at the time of impact; ! a defense expert testified complainant ingested marijuana immediately prior to the accident; ! appellant=s mother testified she saw appellant ingest only two beers that night; ! a defense witness testified appellant was diabetic and another testified he was bleeding at the time his blood specimen was drawn; ! a retrograde extrapolation expert testified that diabetes and bleeding can impact the Aburn-off@ of alcohol in a person=s blood system and so affect the point at which a person=s BAC Apeaks@ following ingestion of alcohol; and ! the same retrograde extrapolation expert testified that appellant=s BAC readings were in fact between .08 and .084 and so, based on what appellant said he ate and drank that night, could only have been .05 at the time of the accident. The State, on the other hand, proffered the following evidence to suggest appellant=s behavior was linked to intoxication: ! an accident reconstructionist testified it was consistent for intoxicated drivers to (1) drive Aby braille@ by hitting the reflectors in a road; (2) drive either very slowly or very fast; (3) refuse to take sobriety tests; (4) have difficulty staying awake; (5) have Atunnel vision@; (6) have slower-than-normal reaction times; and (7) leave the scene of an accident; ! several eyewitnesses testified that appellant (1) hit the reflectors in the road as he approached complainant; (2) drove in excess of the posted speed; (3) refused to take a field sobriety test; (4) fell asleep at the scene while waiting in a police officer=s car; (5) had red, blood-shot eyes; (6) had a slower-than-normal reaction time, as evidenced by the length of appellant=s skid marks; and (7) wandered off at the scene; ! a toxicologist testified that appellant=s BAC was between .109 and .110 at the time appellant=s blood was drawn two hours after the accident; ! appellant=s retrograde extrapolation expert testified (1) that he did not follow the formula established by the National Highway Traffic and Safety Administration for determining blood alcohol concentration, and (2) he relied on information given by appellant to extrapolate appellant=s BAC at the time of the accident; ! a State retrograde extrapolation expert testified that (1) appellant=s diabetes and bleeding did not substantially influence the Aburn-off@ of alcohol in appellant=s blood, and (2) appellant=s ingestion of only two beers the night of the accident would, if true, have produced a BAC of between .03 and .05 instead of the value obtained; and ! an accident reconstructionist testified that Abut for the defendant being intoxicated,@ complainant would not have been hit, because all appellant Ahad to do was move over eight inches to the right.@ Based on the evidence proffered by the State, we are persuaded that a factfinder could reasonably have found complainant operated his motor vehicle at a time when he did not have the Anormal use@ of his mental or physical faculties or when he had an alcohol concentration of 0.08 or more. See Tex. Pen. Code Ann. '' 49.01(2), 49.04(a) (Vernon 2003). See also Tex. Pen. Code Ann. ' 49.08 (Vernon 2003). Additionally, we are persuaded a factfinder could reasonably have found that, Abut for@ appellant=s intoxication, complainant=s death would not have occurred. We therefore conclude the evidence was legally sufficient to support a finding of causation. See Lowe, 676 S.W.2d at 661 (finding sufficient evidence defendant Acaused@ victim=s death where victim died of pneumonia, the pneumonia was a result of stab wound complications, and defendant inflicted the stab woundsCdespite evidence suggesting such wounds are Anot normally fatal@); Barcenes, 940 S.W.2d at 745 (finding sufficient evidence defendant Acaused@ infant=s death where (1) infant died from Amassive blunt trauma to the head,@ (2) defendant had sole custody and care of the infant at the time of injury, (3) defendant=s version of events was medically discredited, and (4) defendant attempted to cover up his guilt by getting someone to lie for him). Moreover, the evidence was factually sufficient because the verdict was not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Johnson, 23 S.W.3d at 7. Because the evidence was both legally and factually sufficient to support a finding that appellant=s intoxication caused complainant=s deathCand to permit a rational jury to find all the essential elements of intoxication manslaughterCwe overrule appellant=s third and fourth points of error. * * * * Having overruled all of appellant=s points of error, we affirm the judgment of the trial court. /s/ John S. Anderson Justice Judgment rendered and Opinion filed August 7, 2003. Panel consists of Justices Anderson, Seymore, and Guzman. PublishCTex. R. App. P. 47.2(b). [1] Although Johnson told police at the scene that appellant was beaten up by six or seven other people and that he personally did not assault appellant, Johnson subsequently recanted this story. [2] Although appellant asserts article 6701l-5 was Arepealed,@ the statute was in fact revised and codified in Chapter 724 of the Texas Transportation Code. See Tex. Transp. Code Ann. '' 724.012B724.064 (Vernon 1999). [3] Section 724.013 of the Texas Transportation Code provides that A[e]xcept as provided by Section 724.012(b), a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer,@ while section 2(a) of article 6701l-5 provided that A[e]xcept as provided by Subsection (i) of Section 3 of this Act, if a person under arrest refuses, upon the request of a peace officer, to give a specimen designated by the peace officer as provided in Section 1, none shall be taken.@ See Tex. Transp. Code Ann. ' 724.013 (Vernon 1999); Tex. Rev. Civ. Stat. Ann. art. 6701l-5, ' 2(a) (Vernon Supp. 1992). Subsection 724.012(b) of the Texas Transportation Code provides that A[a] peace officer shall require the taking of a specimen of the person=s breath or blood if: (1) the officer arrests the person for an offense under Chapter 49, Penal Code, involving the operation of a motor vehicle . . .; (2) the person was the operator of a motor vehicle . . . involved in an accident that the officer reasonably believes occurred as a result of the offense; (3) at the time of the arrest the officer reasonably believes that a person has died or will die as a direct result of the accident; and (4) the person refuses the officer=s request to submit to the taking of a specimen voluntarily,@ while section 3(i) of article 6701l-5 provided that A[a] peace officer shall require a person to give a specimen under Section 2 of this Act if: (1) the officer arrests the person for an offense under Subdivision (2), Subsection (a), Section 19.05, Penal Code, or an offense under Article 6701l-1, revised Statutes, as amended; (2) the person was the operator of a motor vehicle involved in an accident that the officer reasonably believes occurred as a result of the offense; (3) at the time of the arrest the officer reasonably believes that a person has died or will die as a direct result of the accident; and (4) the person refuses the officer=s request to voluntarily give a specimen.@ See Tex. Transp. Code Ann. ' 724.012(b) (Vernon 1999); Tex. Rev. Civ. Stat. Ann. art. 6701l-5, ' 3(i) (Vernon Supp. 1992). [4] Retrograde extrapolation is based on the theory that, as alcohol is consumed, it is passed from a person=s stomach and intestines into his blood. Mata v. State, 46 S.W.3d 902, 909 (Tex. Crim. App. 2001). When the alcohol reaches the brain and nervous system, the characteristic signs of intoxication begin to appear. Id. The length of time necessary for alcohol to be absorbed into a person=s blood stream depends on a variety of factors, including (1) the presence and type of food in the stomach; (2) the person=s gender, weight, age, mental state, and drinking pattern; (3) the amount and type of beverage consumed; and (4) the time period of alcohol consumption. Id. At some point after drinking has ceased, the person=s blood alcohol concentration will reach a peak; after the peak, the concentration will begin to fall as alcohol is eliminated from the person=s body. Id. Under the theory of retrograde extrapolation, a single reading of a person=s blood alcohol level after an automobile accident does not reflect where in the absorption process a person is at the time of the test. Id. If the person is tested while in the absorption phase, his blood alcohol concentration at the time of the test will be higher than when driving. Id. If tested while in the elimination phase, the person=s blood alcohol concentration at the time of the test could be lower than while driving, depending on whether the person had reached his peak before or after the accident. Id. The greater the length of time between driving and the test, therefore, the greater the potential variation between the person=s blood alcohol concentration at the time of an accident and at the time of a test. Id. at 909-910. [5] The Texas Court of Criminal Appeals has not determined whether retrograde extrapolation is necessary for admission of breath or blood tests in a DWI case. In Mata, the Court expressly refrained from addressing the issue. Mata, 46 S.W.3d at 910. In Beard v. State, an opinion withdrawn on rehearing after appellant=s death, the Court stated it Ahas never accepted@ the argument that tests showing a subject=s blood alcohol concentration are irrelevant in the absence of retrograde extrapolation testimony. Beard v. State, 2002 WL 31116936, at *4 (Tex. Crim. App. Sept. 25, 2002), opin. withdrawn on reh=g, 2003 WL 21350757 (Tex. Crim. App. June 11, 2003). [6] Courts in other jurisdictions have reached the same conclusion. See e.g. State v. Barber, 681 A. 2d 348 (Conn. 1996); Com. v. Wirth, 936 S.W.2d 78 (Ky. 1996); Haas v. State, 597 So. 2d 770 (Fla. 1992) (compiling cases); State v. Kubik, 456 N.W.2d 487 (Neb. 1990); Desmond v. Superior Court, 779 P. 2d 1261 (Ariz. 1989); Sullivan v. State, 517 N.E.2d 1251 (Ind. Ct. App. 1988); People v. Mertz, 497 N.E.2d 657 (N.Y. 1986). But compare Com. v. Jarman, 601 A.2d 1229 (Pa. 1992); State v. Ladwig, 434 N.W.2d 594 (S.D. 1989); State v. Rollins, 444 A.2d 884 ( Vt. 1982). [7] See also Martin v. Texas Dep=t of Public Safety, 964 S.W.2d 772, 776 (Tex. App.CAustin 1998, no pet.); Daricek v. State, 875 S.W.2d 770, 773 (Tex. App.CAustin 1994, pet. ref=d); Owen v. State, 905 S.W.2d 434, 438-39 (Tex. App.CWaco 1995, pet. ref=d); Wagner v. State, 720 S.W.2d 827, 830 (Tex. App.CTexarkana 1986, pet. ref=d). [8] A person is considered Aintoxicated@ if he (1) does not have the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of those substances, or any other substance into the body; or (2) has an alcohol concentration in his breath, blood or urine of 0.08 or more. Tex. Pen. Code Ann. '' 49.01(2)(A) and (B) (Vernon 2003). [9] The Texas Supreme Court has also addressed this issue, holding a plaintiff may establish a causal connection through circumstantial evidence and reasonable inferences drawn from such evidence. Continental Coffee Products Co. v. Cazarez, 937 S.W.2d 444, 450-51 (Tex. 1996); Davis v. Anderson, 501 S.W.2d 459, 463 (Tex. App.CTexarkana 1973, no pet.).	{ "pile_set_name": "FreeLaw" }
143 A.2d 138 (1958) Clarence VARIN v. LYMANSVILLE COMPANY (three cases). Supreme Court of Rhode Island. June 23, 1958. 139 Edward I. Friedman, Vincent J. Chisholm, Sidney Wexler, Providence, for petitioner. Boss, Conlan, Keenan, Bulman & Rice, Francis W. Conlan, for respondent. PAOLINO, Justice This is an employee's original petition for compensation and medical and hospital expenses which was filed on January 29, 1954 with the director of labor under the workmen's compensation act. After a hearing thereon in the office of the director of labor, a decision was entered on May 6, 1954 finding that the petitioner, on or about January 7, 1953, had sustained a ruptured intervertebral disc and ordering the payment of total disability compensation of $28 per week from October 20, 1953 and all reasonable medical and hospital expenses. The respondent thereupon claimed an appeal to the superior court and on May 14, 1954 the case was transferred thereto for a hearing de novo. However, before any testimony was taken in that court, the case was transferred to the workmen's compensation commission under the provisions of public laws 1954, chapter 3297, Sec. 4. Thereafter the case was heard before a trial commissioner and a decree was entered which subsequently, on petitioner's appeal, was affirmed by the full commission. He duly claimed an appeal to this court and while the appeal was pending here petitioner filed with the workmen's compensation commission two independent motions, in one of which he sought to vacate the decree entered by the commission, and in the other he requested the commission to quash the appeal from the decision of the director of labor. After a hearing by the commission, a decree denying the motion in each instance was entered. The cases are before us on petitioner's appeals from the three decrees of the commission. The pertinent allegations of the petition are that on January 7, 1953 petitioner was in the employ of respondent as a supervisor in the wet finish department; that while pulling a hand truck he was struck by a board which fell off the truck causing him to fall backwards; and that he sustained an injury to his back and a ruptured intervertebral disc. It appears from the evidence that petitioner worked on the 11 p.m. to 7 a.m. shift; that the accident which caused the alleged injuries occurred at 3 a.m. on January 8, 1953; that he consulted Dr. Raymond F. McAteer on January 13, 1953 complaining of severe pain in his back; and that according to the doctor's report he was able to resume regular work on January 15, 1953. The evidence further shows that on January 16, 1953 he was referred by respondent to Dr. Vincent Zecchino, an orthopedic specialist; that after a complete examination, the doctor concluded that petitioner 140 was suffering from residuals of a low back strain, which he defined as a lumbosacral strain probably on a muscular basis; that petitioner was able to continue his work, but should avoid lifting for a couple of weeks; and that Dr. Zecchino saw him on January 21, 1953 and again on January 26 when, after finding that there was no spasm of the back and that his spinal motions were normal, petitioner was discharged. According to the record, petitioner worked continuously from January 26, 1953 until he was laid off on October 20, 1953. However, he testified that on January 18 or 19, 1953, because of his injury he was transferred to the 7 a.m. to 3 p.m. shift as an assistant to the second hand and was told he was to do no work; that after such transfer he had it very easy until the plant closed for the summer vacation in July 1953; that he was put on harder work when he returned from vacation; that thereafter the pain got worse; and that although there was plenty of work in his department he was the only man laid off on October 20, 1953. On the other hand, witnesses for respondent testified in substance that petitioner was transferred to another shift because the work on his former shift was not satisfactory and he was not getting along with his fellow workers; that petitioner's testimony that he did no work from January to July 1953 was untrue and his work after July was the same as from January to July 1953; that he was laid off because of lack of work; and that over five hundred employees were laid off during the month of October 1953. The petitioner's immediate superior testified that petitioner had never complained to him about his back. On this state of the record the commission found that the transfer of petitioner from the third to the first shift was not made because of his injury, but to improve certain operations in the plant with which respondent was having considerable trouble; that petitioner was not discriminated against but was laid off because of a general layoff; and that he had not proved any loss of earnings from the date of the accident through October 20, 1953. It is clear that such findings are supported by the evidence and, no claim of fraud being present, are conclusive and binding upon this court under our act. Cabral v. Perry's Express Co., 85 R.I. 47, 125 A.2d 221. General laws 1938, chap. 300, art. III, as amended. Thereafter the commission entered a decree affirming the decree of the trial commissioner containing findings of fact to the effect that the injury sustained by petitioner was a low back strain, or a strain of the muscles and ligaments in the lumbosacral area; that petitioner did not prove any loss of earnings from January 26 through October 20, 1953; that he was totally disabled from October 26 to December 23, 1953 inclusive, and from May 20, 1954 to July 7, 1954 inclusive; that he may have been partially disabled on occasions other than the above periods, but that proof of the extent and amount of his loss of earning capacity due to such disability was not adequate to determine the same; and that he was not disabled as of November 10, 1954. The respondent was also ordered to pay the reasonable medical and hospital bills of petitioner. We shall consider petitioner's contention that the commission erred in finding he did not prove that he probably had a ruptured intervertebral disc. It appears from the evidence that he visited Dr. McAteer on the evening of the day he was laid off, October 20, 1953, and again on October 26, 1953 when the doctor referred him to Dr. William V. Hindle, an orthopedic surgeon; that Dr. Hindle examined him on October 28 and recommended a myelogram; that on November 30, 1953 he entered St. Joseph's Hospital and a myelogram was performed; and that he left the hospital on December 3, 1953 and was under Dr. Hindle's care until October 19, 1954. The petitioner's hospital record was in evidence. It contained the report of Dr. 141 Paul J. Votta, a roentgenologist, who performed the myelogram on December 1, 1953 and interpreted the X rays. His report concluded that the findings suggested the possibility of a ruptured intervertebral disc. Doctor Hindle, who testified for petitioner, stated that the X rays indicated a ruptured disc; that he diagnosed the case as a ruptured disc with no muscle strain, sacroiliac strain, or any other low back condition entering into it; that he recommended a laminectomy; that petitioner as of the time of the hearing before the workmen's compensation commission would not be able to resume the type of work he had been doing; and that he based his findings on the results of the X rays and on the knowledge he had acquired by having treated petitioner for over a year. Doctor Vincent Zecchino and Dr. Ernest D. Thompson, orthopedic surgeons, were called as witnesses by respondent. Based on their reading of Dr. Votta's report, they testified in substance that the results of the myelogram and the protein test did not indicate a ruptured intervertebral disc. Doctor Zecchino testified that petitioner was suffering from the residuals of a low back strain, a "lumbosacral strain probably on a muscular basis, a ligamentous basis." Doctor Thompson, who examined petitioner on November 5, 1954, testified that he found no evidence of any disc disturbance. Doctor McAteer's report, dated January 27, 1953, states that petitioner was able to resume regular work on January 15, 1953. On the basis of the conflicting opinions of the medical experts, the commission concluded that the weight of the medical evidence did not establish that petitioner probably had a ruptured intervertebral disc, and accordingly the decree contained the finding that the injury was a low back strain as described therein. On this issue the commission gave more weight to the testimony of respondent's medical experts than to petitioner's experts. This evidence is competent and therefore sufficient to sustain the finding of the commission as to the nature of the injury and such finding cannot be disturbed by this court on the record before us. Cabral v. Perry's Express Co., supra. The petitioner next contends that the commission erred in finding that he was only disabled for the two periods of time set forth in the decree. This contention is based on paragraph 4 of the decree which reads as follows: "That the petitioner may have been partially disabled on other occasions other than the above periods but that proof of the extent and amount of his loss of earning capacity due to such disability was not adequate to determine the same." Said paragraph was based on the finding of the trial commissioner, as affirmed by the commission, that "It may well be that the Petitioner was disabled on other occasions, but, in my opinion, he was only partially disabled, at best, and there is no evidence before me upon which I could make a finding of diminution of earnings." We are satisfied that the evidence supports the award of total compensation for the two periods for which it was awarded as well as the finding that petitioner was not disabled as of November 10, 1954. However, petitioner contends that such award could only be based upon the testimony of petitioner and/or Dr. Hindle, and therefore, because of the language used by the commission in paragraph 4 of the decree, the instant case is governed by Catoia v. Eastern Concrete Products Co., 84 R.I. 402, 124 A.2d 864, and should therefore be sent back to the workmen's compensation commission for rehearing and a finding as to the extent of petitioner's diminished earning capacity. In the Catoia case the commission, after having rejected the testimony of the employer's medical experts as to the duration of the employee's total incapacity, attempted to use the same testimony to sustain their finding that the employee there had no partial incapacity on and after a certain date. We said they erred in so doing. In the instant case the commission, although 142 they gave no weight to the testimony of Dr. Hindle with respect to his diagnosis of the injury, apparently gave some weight to his testimony insofar as it related to the duration of total incapacity during the two periods above mentioned. We see no inconsistency on the part of the commission in so doing, since petitioner could have been totally incapacitated during those periods for an injury other than that diagnosed by Dr. Hindle. Moreover it seems to us that petitioner's instant contention is based on his interpretation that paragraph 4 in effect amounts to a finding of partial incapacity. If this interpretation is correct, the principle of the Catoia case would apply. However, after carefully reading said paragraph in the context of the entire decree, it is our opinion that the commission did not make, and in fact did not intend to make, a finding of partial incapacity. For these reasons the Catoia case does not apply to the facts of the instant case and in our opinion the decree therein is not erroneous in finding that petitioner was only disabled during those two periods. The appeals from the decrees denying petitioner's motions to vacate the decree in the case numbered Equity No. 2393 and to quash the appeal from the director of labor's decision in the same case are based on petitioner's contention that the trial commissioner did not have jurisdiction to hear the case de novo. He contends that under the provision of chap. 3297, Sec. 4, upon the transfer of the case from the superior court to the workmen's compensation commission the appeal from the decision of the department of labor should have been heard by the full commission sitting in its appellate capacity. The pertinent provisions of P.L. 1954, chap. 3297, Sec. 4, provide: "All workmen's compensation cases pending in the superior court on July 1, 1954 wherein no testimony has been received shall be forthwith transferred to the clerk of the workmen's compensation commission for determination by said commission." We do not agree with petitioner's contention. It is our opinion that in enacting chap. 3297, which created the workmen's compensation commission, the legislature intended to establish a separate department in the state government in order to provide judicial hearings to persons coming before it. Section 3 (b) of art. III provides: "There shall be established in the state of Rhode Island a workmen's compensation commission having such jurisdiction as may be necessary to carry out the provisions of the workmen's compensation act. Said commission shall be a commission of record with the same rights of subpoena and also the same rights to cite and punish for contempt as exist in the superior court, having a seal, and the members or clerk of which shall have power to administer oaths and affirmations." In addition, qualification for membership in the commission is restricted to attorneys at law and within the limits of the jurisdiction granted to it by the legislature the commission is a court of law in all but name. See Brown & Sharpe Mfg. Co. v. Lavoie, 83 R.I. 335, 340. This was not so before the enactment of chap. 3297. The hearing officers in the department of labor were administrative officers whose decisions were not reviewed upon appeal to the superior court. Under the old law the petitions, upon appeal, were heard de novo in that court. Public laws 1954, chap. 3297, art. III, sec. 3 (d), provides in part: "All cases coming before the commission shall be heard and decided by any member thereof"; and sec. 3 (g) provides: "Any person aggrieved by the entry of a decree by a commissioner may appeal to the full commission" and that "The full commission shall forthwith review the decree upon the record of the case * * ." The law prior to the effective date of chapter 3297 did not provide for the entry of decrees by the department of labor, nor were the hearings matters of record subject to review, as such, on appeal to the superior court. Therefore it is our opinion that the trial commissioner had 143 jurisdiction to hear de novo the appeal from the director of labor's decision in the case numbered Equity No. 2393, and that the full commission did not err in denying the petitioner's motion to vacate the decree and also his motion to quash the appeal from the director of labor's decision in that case. The petitioner's appeals are denied and dismissed, the decrees appealed from are affirmed, and the causes are remanded to the workmen's compensation commission for further proceedings in accordance with this opinion.	{ "pile_set_name": "FreeLaw" }
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ____________________ No. 99-40591 cons w/99-40612 ____________________ RUTH HILL, ET AL. Plaintiffs-Appellants Cross Appellees, versus CITY OF HOUSTON, Defendant-Appellee Cross Appellant. _______________________________________________________________________ Appeals from the United States District Court for the Southern District of Texas (G-97-CV-578) _______________________________________________________________________ October 11, 2000 Before JONES and BENAVIDES, Circuit Judges, and COBB, District Judge* ** COBB, District Judge Both sides appeal from a jury trial before a magistrate judge. There are three issues before us on appeal. The first is whether the City of Houston had actual notice of the claim under the provisions of the Texas Tort Claims Act. The second issue is whether the evidence at trial was sufficient to support a finding that the negligence of the Houston * District Judge for the Eastern District of Texas, sitting by designation. ** 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. -1- Fire Department caused the plaintiffs’ injuries. The third issue is whether the plaintiffs’ claims are barred by sovereign immunity as limited by the Texas Tort Claims Act. Because our review of the record in the trial court convinces us as a matter of law that the requisite elements of actual notice were conclusively proven, we reverse the jury’s finding that the City did not have notice until December 16, 1997 and affirm the jury’s findings on causation and damages. We also hold that the plaintiffs’ claims are not barred by sovereign immunity. I. BACKGROUND On December 5, 1995, an employee at station 67 of the Houston Fire Department (HFD) reported to the Fleet Maintenance Division that the pump on Ladder Truck 67 was broken and inoperable. On December 20, 1995, Ladder 67 responded to a house fire in Houston. It was the first truck to arrive but the broken pump prevented the firefighters’ access to the home and the homeowner later died in the hospital. On December 21, 1995 a second request to repair the broken pump was made. On January 4, 1996, a fire at the home of Ruth Hill (Hill) was reported to HFD. Ladder Truck 67 was the first fire-truck on the scene but again, the inoperable pump prevented firefighters from putting water on the fire.1 Another HFD truck (an Engine truck)arrived within two to two and a half minutes later. (Tr. 250). After pumping water on the fire, the firefighters were able to enter the home and upon entrance, they discovered the bodies of four-year old Alex Freeman and five-year old 1 While another truck, Booster 67 arrived concomitantly with Ladder 67, Booster 67 is not used to fight fires. It is a pickup truck which has a small water tank (used for grass fires) and carries an extra firefighter to the fire. -2- Crystal Durden on a couch in the den located in the middle of the home. Autopsies revealed that the children died of smoke inhalation, specifically, asphyxia due to soot and carbon monoxide. The apparent cause of the fire was a space heater located in the front room of the house. Tellas Williams, the children’s sixteen year old cousin who was babysitting them escaped but was unable to rescue the children. On January 13, 1996, Ladder Truck 67 responded to yet a third fire without the pump being repaired. On January 22, 1996 the pump was finally inspected and the problem was discovered: a blown twenty-five cent fuse which was replaced in thirty minutes. Captain Boze then wrote and hand delivered a scathing letter to his HFD superiors detailing the problem with the pump and the motor-repair department’s troubles in repairing it.2 The ladder truck at Houston Fire Station 67 is equipped with a 300- gallon water tank and a pump to use that water directly on the fire without a connecting hose to a fire hydrant. It is called a “quint” because it has five functions: (1) it has a large aerial ladder which can extend 108 feet above the ground; (2) it carries smaller, movable ladders; (3) it carries the “jaws of life” and other tools for entry, ventilation, lighting and search and rescue; (4) it has a pump; and (5) it has a tank to hold water. At most fires an engine truck or pumper is also dispatched. The pumper’s primary job is to put water on a fire. It can connect to a fire hydrant and carries a much larger tank and pump than the ladder truck. 2 The letter is fully set out in an appendix attached to this opinion. -3- On October 6, 1997 the plaintiffs filed suit against the City in Federal district court bringing state law claims under the Texas Tort Claims Act and alleging violations of the United States Constitution. Plaintiffs alleged the City’s negligence in failing to maintain and repair the pump caused a delay in the fire department’s efforts to rescue the children which resulted in their injuries and eventual deaths. Specifically, plaintiffs alleged that on December 5, 20, and 21, HFD employees reported the pump as a “Priority One” repair which according to department policy required it to be repaired within twenty-four hours. The representative of the decedents sent formal notices to the City on December 16, 1997. The city moved to dismiss the state law claims on the notice issue but the motion was denied by Judge Kent.3 After a trial before Magistrate Judge Froeschner, the jury returned a verdict in favor of the plaintiffs but found that the City did not have notice of the claim until December 16, 1997–thus precluding recovery under the Texas Tort Claims Act. The Jury answered as follows: Question 1: Was the inoperative pump on Ladder 67 a proximate cause of the death of Crystal Durden and Alex Freeman? Answer “Yes” or “No”. Answer: Yes Question 2: Do you find from a preponderance of the evidence that the “November 22, 1994 memorandum [sic] (Plaintiffs’ Exhibit 8) stated the official policy of the Houston Fire Department regarding the repair of fire trucks during the period from December 5, 1995 to January 4, 1996? Answer “Yes” or “No.” Answer: Yes 3 See Hill v. City of Houston, 991 F. Supp. 847 (S.D. Tex. 1998). Judge Kent dismissed the Fifth and Eighth Amendment claims but denied the Rule 12(b)(6)Motion to dismiss with respect to the Fourteenth Amendment, conspiracy, and state law claims. -4- Question 3: Did the Houston Fire Department violate the official policy? Answer “Yes” or “No.” Answer: Yes Question 4: On what date did the Houston Fire Department receive actual notice of Plaintiffs’ claims arising from the fire at 2109 Ellington? Answer: 12/17/96 Question 5: What sum of money, if paid now in cash, would fairly and reasonably compensate Schanell Durden for her damages, if any, resulting from the death of Crystal Durden? Answer: $100,000.00 (past) $300,000.00 (future) Question 6: What sum of money would have fairly and reasonably compensated Alex Freeman for- Element a. Pain and mental anguish Element b. Funeral and burial expenses. Answer in dollars and cents for damages, if any. Answer: $400,000.00 Question 7: What sum of money would have fairly and reasonably compensated Crystal Durden for- Element a. Pain and mental anguish Element b. Funeral and burial expenses. Answer in dollars and cents for damages, if any. Answer: $400,000.00 Plaintiffs filed a motion to set aside the jury verdict or in the alternative for judgment not withstanding the verdict (JNOV) arguing the City had actual notice and that the jury confused “actual notice” with “formal notice.” The City filed a motion to set aside the rest of the jury findings. Both of these motions were denied by the magistrate judge who then entered a take-nothing judgment for the City. This appeal by the plaintiffs and cross-appeal by the City followed. II. Standard of Review We review rulings on motions for directed verdict and for JNOV de novo, applying the same standard as the district court, Quest Medical, Inc. v. Apprill, 90 F.3d 1080, 1085 (5th Cir. 1996) (citations omitted). -5- The standard of review for these motions was succinctly set out in Boeing Co. v. Shipman, to wit: [T]he court should consider all of the evidence–not just that evidence which supports the non-mover's case–but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting [JNOV] is proper. On the other hand, if there is substantial evidence opposed to the motion[ ], that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, [JNOV] should be denied.... [I]t is the function of the jury as the traditional finder of facts, and not the court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses. 411 F.2d 365, 374-75 (5th Cir.1969) (en banc), overruled on other grounds by Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir. 1997) (en banc). The verdict must be upheld unless the facts and inferences point so strongly and overwhelmingly in favor of one party that reasonable [people] could not arrive at any verdict to the contrary.” Scottish Heritable Trust v. Peat Marwick Main Co., 81 F.3d 606, 610 (5th Cir. 1996). III. The Evidence Presented At Trial A. Actual Notice The Texas Tort Claims Act (TTCA) states that a governmental unit is entitled to receive notice of a claim not later than six months after the day the incident giving rise to the claim occurred. TEX. CIV. PRAC. & REM. CODE § 101.101(a) (Vernon 1986). This notice requirement does not apply if the governmental unit has actual notice of the claimant’s injury or death. TEX. CIV. PRAC. & REM. CODE §101.101(c). The purpose of the notice -6- provision is to ensure prompt reporting of claims to enable the governmental unit to investigate the merits of a claim while the facts are fresh and the conditions remain substantially the same. See City of Houston v. Torres, 621 S.W.2d 588, 591 (Tex. 1981).4 In Cathey v. Booth, the Texas Supreme Court held that actual notice to a governmental unit requires knowledge of (1) a death, injury, or property damage; (2) the governmental unit’s alleged fault producing or contributing to the death, injury, or property damage; and (3) the identity of the parties involved. 900 S.W.2d 339, 341 (Tex. 1995). Actual notice may be imputed only when an agent or representative charged with a duty to investigate and report to the governmental unit receives the three elements of actual notice. See Gonzalez v. El Paso Hosp. Dist., 940 S.W.2d 793, 795-96 (Tex. App.–El Paso 1997, no writ); Dinh v. Harris County Hosp. Dist., 896 S.W.2d 248, 253 (Tex. App.–Houston [1st Dist.] 1995, writ dism’d w.o.j.). The issue in Cathey was whether a hospital’s medical records conveyed the elements of alleged fault to the hospital. The Texas Supreme Court held merely providing medical records from which one could conclude that the unit was at fault does not constitute actual notice. 900 S.W.2d at 342. The document which purports to give actual notice must clearly convey the alleged fault of the governmental unit in causing the injury. See e.g., Gaskin v. Titus County Hosp. Dist., 978 S.W.2d 178, 182 (Tex. 4 As a Home Rule city, the City of Houston is entitled to establish its own rules adjusting the State statutory time period. TEX. LOC. GOV’T CODE § 51.077 (Vernon 1999). The City’s Home Rule Charter Notice period is ninety days. While it is uncontested that the plaintiffs did not give the City formal notice within this period, this is moot in light of our finding that the city had actual notice. -7- App.–Texarkana 1998, pet. denied) (“Medical records may . . . create a fact issue if they indicate to the hospital its possible culpability in causing the injuries.”). Plaintiffs argue that the letter of Captain Boze constitutes actual notice as a matter of law. We agree. On January 23, 1996, Captain Boze sent a letter to his superiors at the Houston Fire Department which clearly notifies the City of its alleged fault.5 After detailing his conversations with the repair shop and the three fires in which his unit’s response was delayed by the broken pump, Captain Boze wrote: “. . . I cannot understand, the apparent negligence on someone’s part, in this matter. I am not saying that if the pump had been working on December 20, 1995 [(redacted material)], or January 04, 1996 (Loss of Two Lives),that the outcome would have been different, this we will never know. This minor problem, which became a very significant problem, not only affected the victims of the fires and their families, but also the dedicated crew’s [sic] of Ladder 67 . . .” (emphasis added). This letter does more than the medical records in Cathey–it gives clear and unequivocal notice that the City’s negligence may have contributed to the deaths of the two children and the homeowner in the first fire. Further, on plaintiffs’ exhibit 6 there is a handwritten notation indicating that the matter in the motor repair department was discussed with Chief Whitehorn.6 Hence, the letter achieved the purpose envisioned by the notice statute: it spurred an investigation into the HFD priority repair 5 The letter was undated, but it is undisputed it was received on January 23, 1996. 6 The memo was received by Tommy Shelton in February 1996 from Deputy Chief Whitehorn. The note was written by Shelton. (Tr.355). -8- system. The City argues that Boze’s letter did not notify the City of its alleged fault because the idea of potential legal problems never entered his mind when he wrote the letter. Captain Boze’s state of mind however, is irrelevant to the issue of whether the City had notice of its culpability. Plaintiffs’ exhibit six indicates HFD took the letter seriously enough to investigate the motor shop’s operations at the time of the incident. If potential legal ramifications were not on Boze’s mind when he wrote the letter, that is certainly not reflected in his writing. The City next argues that the letter was insufficient to constitute notice because it did not specifically state the names “Crystal Durden” and “Alex Freeman” or any of the other plaintiffs. None of the cases considering actual notice have required the parties be identified with the specificity urged by the city. Captain Boze, an employee with a duty to investigate and report, knew who the victims were because he was at the scene of the fire. Additionally there were several arson, EMS, and incident reports each of which contained the names and addresses of the victims. Boze’s letter indicates that Boze and his HFD superiors knew that (1) two deaths and property damage had occurred; (2) that the “apparent negligence” of the HFD repair facility may have contributed to the children’s deaths; and (3) the identity of the parties involved. We find that Boze’s letter establishes that the City had actual notice of the plaintiffs’ claims as a matter of law nineteen days after the January 4, 1996 fire and that no reasonable jury could have reached a contrary -9- verdict. We therefore reverse the jury’s findings and reverse the magistrate’s denial of the plaintiffs’ motion for judgment JNOV. B. Sufficiency of the Evidence as to Cause On Cross-Appeal the City appeals the district court’s order denying the City’s motion to set aside certain jury findings. The City first argues that the jury’s answer to Question 1 (that HFD’s negligence was the cause of the plaintiffs’ injuries) was not supported by the evidence. Unlike the jury’s answer to interrogatory number four, there is ample evidence in the record to support the finding that the Fire Department’s negligence caused the deaths of Alex Freeman and Cyrstal Durden as well as the other injuries. The City argues that the jury could not have reached the conclusion that the broken pump caused the deaths of the children because the evidence proved the children were dead by the time Ladder 67 arrived and entered the burning house. At trial, plaintiffs offered evidence which showed that the fire started around 9:55 in the front room of the Hill house. HFD received the call at 9:59 and dispatched the fire trucks at 10:00. Ladder 67 arrived at 10:06 and Engine 31 arrived some two to two and a half minutes later. Dr. Burton, a forensic pathologist with arson investigation experience, testified that based on the autopsies and Shanley’s report, the children could have survived up to six minutes after the flashover7 in the front 7 A flashover occurs when smoke and gasses from the initial fire rise to the ceiling of the room and begin to collect. Eventually this hot cloud mushrooms out until it hits a wall or door where it begins to radiate back down into the room. As the smoke and gas fill the room, the temperature increases until the point that all remaining combustible items in the room ignite, filling the room with flame. -10- room (until 10:10). Plaintiffs’ second expert was James Shanely, an expert in fire investigation. He testified that the fire could have been knocked down in about a minute and that the fire grew significantly larger because of the delay. He concluded that it was a medium-growth fire and that the flashover occurred only in the front room around 10:04. Together, their testimony established a two to three minute window during which the children could have been rescued had it not been for the broken fire pump. The plaintiffs’ experts also testified that the defendant’s experts used faulty formulas and incorrect measurements. The City argues this is insufficient to establish proximate cause because it amounts to nothing more than a lost chance of survival. See Campos v. Ysleta General Hosp., 836 S.W.2d 791, 794 (Tex. App.–El Paso 1992, writ denied) (holding testimony that “there was a window of opportunity” during which a child “might have been saved” was not sufficient to establish a causal connection between the child’s death and the conduct of the two hospitals which refused to treat him). This argument however, only goes to the sufficiency of the evidence on causation, not to the plaintiffs’ theory of recovery. The essence of the holding in Campos and the other cases on which it is based, is that the “mere medical possibility” (as opposed to probability) that a patient “might” have lived had the doctor not mis-diagnosed the patient’s condition is insufficient to constitute proximate cause. Texas courts however, have consistently held that evidence which establishes a medical probability that a patient would have survived had it not been for the mis-diagnosis is sufficient to support a finding of proximate cause. See Campos, 836 S.W.2d at 795 (citing Tilotta v. Goodall, 752 S.W.2d 160, -11- 163-64 (Tex. App.–Houston [1st Dist.] 1988, writ denied); see also Bradley v. Rogers, 879 S.W.2d 947, 953-54 (Tex. App.–Houston [14th Dist.] 1994, writ denied) (“With regard to cause-in-fact, the plaintiff must establish a causal connection based upon ‘reasonable medical probability,’ not mere conjecture, speculation or possibility.”) (citations omitted). The timeline established by the plaintiffs’ experts permits a two to three minute window in which the children would have probably been rescued had it not been for Ladder 67's inability to attack the fire because of the broken pump. Dr. Burton testified that in his opinion, there was a reasonable probability more likely than not that the children could have been saved. (Tr. 670) He noted that other people in house fires have survived flashover situations and that the photos of the scene did not indicate that a flashover occurred in the den. Finally, the City attempts to undermine the testimony of Burton and Shanely’s by challenging their reliability as experts. The City argues that we should ignore the testimony of plaintiffs’ experts because they lack the indicia of reliability outlined in Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). Specifically, the City argues no expert pathologist would have relied on Shanely’s determinations as to when the flashover occurred. This court applies the “abuse of discretion” standard when reviewing a district court’s reliability determination for an expert. See Kumho, 526 U.S. at 142; General Electric Co. v. Joiner, 522 U.S. 136, 143 (1997). The City however, does not point to any evidence in the record that it objected to the testimony of the plaintiffs’ experts on -12- this ground nor does it argue that the trial court erred in admitting this testimony. In fact, it ignores Dr. Burton’s testimony that forensic pathologists regularly rely on other experts in determining how a person died. Instead, the City seems to argue that this court should not consider the testimony of the plaintiffs’ experts. The “gatekeeping” obligation imposed by Daubert and Kumho lies not with this court of appeals, but with the trial court. 509 U.S. at 589; 526 U.S. at 147. Since the City has failed to identify any error or abuse of discretion by the trial court in admitting the testimony of Shanely or Burton, there is nothing for this court to rule on with regards to the reliability of plaintiffs’ experts. The defendants may not reverse the jury’s finding merely because they present evidence and testimony which controverts plaintiffs’ theory of events. The evidence is not so overwhelming that a reasonable juror could only conclude that the HFD’s failure to repair the pump was not the cause of the plaintiffs’ injuries. There is sufficient evidence to support the jury’s finding on proximate cause and therefore, there is no reason to disturb the jury’s answer to the first interrogatory. Accordingly, the district court’s denial of the City’s Motion to set aside the jury’s findings as to question one is affirmed. C. Questions two and three: Official Policy The City next challenges the denial of the City’s Motion to Set aside the jury’s findings to questions two and three–that the city had an official policy on repair priority codes which was violated by HFD’s -13- failure to timely repair the pump. At trial, plaintiffs relied on Exhibit 8, a copy of a purported memorandum from “J.L. Reyes, Assistant Fire Chief” to Tommy Shelton, Master Mechanic dated November 22, 1994. The memo is signed by Head Fire Chief E. A. Corral and the “cc” at the bottom of the page indicates he was also sent a carbon copy. The memo is also stamped “Received, Jan. 11, 1995, HFD Fleet Management.” The memorandum establishes six different priority codes for repairs and the response time required for each. “Priority Code 1.0" is the highest, its states: “IMMEDIATE ACTION REQUIRED / SAME DAY AS REPORTED.” The next is “Priority Code 2.0 TWO DAY RESPONSE OR ADDRESS AS SOON AS PRACTICAL.” The City makes two arguments: (1) that exhibit eight was never authenticated, and (2) that it is a fake. Exhibit eight was first admitted during direct testimony of Chief Eddie Corral. At a bench conference, the City’s attorney objected on the grounds that the memo was “not authentic.” The court overruled the objection and admitted exhibit eight into evidence. (Tr. 130). Later, Jim Kelley, a shop foreman, testified that he received the memo and identified it as the priority code system in place at the time the repairs were requested and the fire at the Hill residence. (Tr. 385). Later, Jeff Moore, a GEMS 2000 computer technician, claimed to have seen the document in August of 1995. (Tr. 1440-41). At trial however, both witnesses admitted that they could not be sure that they had seen the memo in 1995 or 1996. On the other hand, Chief Corral testified that he never signed the document even though his signature appears on it. The City also points to numerous inaccuracies, such as a different letter- head and that Chief Corral did not have staff meetings on Mondays during -14- that period of time to support its argument that exhibit eight was forged. We review the district court's ruling on authentication for abuse of discretion. See Snyder v. Whittaker Corp., 839 F.2d 1085, 1089 (5th Cir. 1988). That ruling will not be disturbed unless there is no competent evidence in the record to support it. See Meadows & Walker Drilling Co. v. Phillips Petroleum Co., 417 F.2d 378, 382 (5th Cir. 1969). Even then, error may not be predicated upon the court’s ruling admitting the evidence unless a substantial right of the party is affected, and (in the case where evidence is admitted) there is a timely objection stating the specific ground. See FED. R. EVID. 103(a); see Foster v. Ford Motor Co., 621 F.2d 715, 721 (5th Cir. 1980). To prove authenticity, the proponent must present evidence sufficient to support a finding that the recording is an accurate reproduction of the matter recorded. See United States v. Biggins, 551 F.2d 64 (5th Cir.1977); FED. R. EVID. 901(a). While the trial judge ensures there is sufficient (or prima facie) evidence of authenticity, the ultimate determination of whether to believe the evidence is left for the fact-finder to decide. See United States v. Caldwell, 776 F.2d 989, 1001-01 & n. 16 (11th Cir. 1985) (“Once [a prima facie showing that the proffered evidence is what it purports to be] has been made, the evidence should be admitted, although it remains for the trier of fact to appraise whether the proffered evidence is in fact what it purports to be.”); 5 WEINSTEIN’S FEDERAL EVIDENCE, 901.02[2] (2d ed.). Rule 1003 (aka “the best evidence rule”) permits a duplicate to be -15- admitted on the same basis as an original unless (1) a genuine issue is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original. FED. R. EVID. 1003. However, Rule 1008 makes clear that “when an issue is raised (a)whether the asserted writing ever existed, or (b) whether another writing . . . produced at trial is the original, or (c) whether other evidence of contents correctly reflects the contents, the issue is for the trier of fact to determine as in the case of other issues of fact.” Thus under either rule, the question of whether exhibit eight is a fake or rather, authentic copy was a fact question which was properly submitted to the jury. As noted above, this court reviews the jury’s decision under a “sufficiency of the evidence” standard. We will not disturb the jury’s findings unless no reasonable jury could reach that conclusion. In the present case, several witnesses testified about the existence of an official repair priority policy at the time of the Hill Fire. While the credibility of some of them was hotly contested, we cannot substitute our judgment for that of the jury. Nor can we find that the trial court committed any abuse of its discretion in admitting exhibit eight. We therefore, affirm the magistrate judge’s denial of the City’s motion to set aside the jury findings as to questions two and three. D. Questions Six and Seven Damages The City next appeals the magistrate’s denial of its motion to set aside the jury’s findings on damages. It argues there was no evidence -16- that Alex Freeman and Crystal Durden suffered any pain or mental anguish because they were unconscious by the time the Ladder 67 arrived at the scene. The City points to the testimony of Tellas Williams, the children’s sixteen year old cousin and James Williams (no relation), a passing truck driver who both last heard the children’s screams long before Ladder 67 arrived. At trial however, James Williams testified upon being re-called that he heard the children screaming after he broke a window on the side of the house just before Ladder 67 arrived at the scene. (Tr. 1049). Moreover, the testimony of Dr. Burton and Mr. Shanely establish that the children were probably alive for a few minutes during the time which the crew of Ladder 67 could have rescued them had their pump not been broken. We therefore affirm the magistrate’s denial of the City’s motion to set aside the jury’s findings on questions six and seven. IV. Sovereign Immunity The City also appeals the district court’s denial of its Motion to Dismiss or for Summary Judgment on sovereign immunity. It argues it is entitled to sovereign immunity on three separate statutes. Governmental immunity shields the City from tort liability except where such liability is specifically waived under the TTCA. See City of Lancaster v. Chambers, 883 S.W.2d 650, 658 (Tex. 1994). A. Civil Practice and Remedies Code § 101.021 This section of the Texas Tort Claims Act provides a waiver of -17- sovereign immunity as follows: A governmental unit in the state is liable for: (1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if: (A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and (B) the employee would be personally liable to the claimant according to Texas law; and (2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law. TEX. CIV. PRAC. & REM. CODE § 101.021 (Vernon 1997). Thus, section 101.021 provides two avenues of liability. The City may either be sued (1) for the negligence of an employee acting within the scope of his employment if the damage or death is proximately caused by motor-driven equipment, or (2) for personal injury or death caused by a condition or use of tangible personal property if the governmental unit would, were it a real person, be liable to the claimant under Texas law. The City makes three arguments that its sovereign immunity has not been waived under this section. It first argues there is no evidence that the pump caused the deaths of the children. Next it argues that the broken pump constituted a “non-use” of property rather than a “use.” Finally, the City argues it is not liable for the non-use of information. 1. Causation The City argues that the plaintiffs’ injuries did not arise out of the use of the pump on ladder 67. This however is nothing more than that causal argument which was discussed and dispensed with above. The term “use” as it relates to the Texas Tort Claims Act has been -18- defined to mean “to put or bring into action or service; to employ for or apply to a given purpose.” See Kassen v. Hatley, 887 S.W.2d 4, 14 (Tex. 1994) (citing LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex. 1992)). A study of the case law however reveals that this is really a requirement that the property’s condition or use must be the proximate or legal cause of the injury. See Dallas County Mental Health and Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998) (citing Union Pump Co. v. Allbritton, 898 S.W.2d 773, 776 (Tex. 1995); Kassen, 887 S.W.2d at 14; LeLeaux, 835 S.W.2d at 51. The same line of reasoning was followed in Schaefer v. City of San Antonio, 838 S.W.2d 688 (Tex. App.–San Antonio, 1992 writ denied) which the City also cites. In that case a homeowner sued the city for failure to fix a broken water main which flooded his property. To avoid the TTCA, plaintiff claimed that the use of high pressure water pumps to move water through the system constituted a use of motor driven equipment. The court of appeals rejected the claim holding that the “pleading and proof related to matters involving the practical application of the principles or processes of directing and controlling water distribution to the City of San Antonio, not to the practical application of principles or processes of using or operating motor-driven equipment.” Id. at 692. In the present case the plaintiffs’ claims clearly arise from the broken pump on Ladder 67. It is not tangential to the negligence inquiry as the pleading and proof directly relate to the malfunction of motor- driven equipment. The claims thus fall under the provisions of 101.021. 2. The non-use arguments -19- The City next argues that it cannot be held liable for the non-use of fire equipment. The City claims that since the pump was broken, it was not “used” within the meaning of the TTCA at the Hill fire.8 This narrow reading of the statute would eviscerate its very purpose and ignores the fact that Ladder 67 itself is a piece of motor-driven equipment. Moreover, such a holding would lead to in an inherently contradictory result: granting immunity where the City did not use the equipment because they knew it was broken but not giving immunity where they attempted to use the pump at the scene and found it to be broken. The City next argues that it cannot be held liable for the non-use of information because information does not constitute tangible personal property for the purposes of a waiver under section 101.021. This however, is moot given that the use of Ladder 67 is sufficient to constitute a waiver under the statute. Thus, section 101.021 offers the City no relief from liability. We therefore find that sovereign immunity is waived under section 101.021 and affirm the district court’s denial of the City’s Motion to Dismiss. B. Official Immunity of its Employees The City next argues that even if 101.021 provides a waiver of immunity, it still is immune because its employees have official immunity. A governmental entity in Texas is not liable “for the negligence of its employee when the employee has no liability because of 8 In the lower court, Judge Kent denied the City’s Motion for Failure to State a Claim and with respect to this argument, wrote it was “utterly ridiculous and frivolous, to the point of being contemptible.” Hill v. City of Houston, 991 F. Supp. 847, 852 (S.D. Tex. 1998). -20- official immunity.” DeWitt v. Harris County, 904 S.W.2d 650, 654 (Tex. 1995). If the employee is protected from liability by official immunity, the state retains its sovereign immunity under both subsections (1) and (2) of section 101.021. Id. The purpose of official immunity is to protect public officers from civil liability for conduct that would otherwise be actionable. See Chambers, 883 S.W.2d at 653-54. Government employees are entitled to official immunity from suit arising from the performance of their (1) discretionary duties in (2) good faith as long as they are (3) acting within the scope of their authority. See Id. at 653. The City contends it meets all three requirements, the plaintiffs argue that the decision to repair the pump according to the priority code it was assigned was not discretionary, but ministerial. The focus of the official immunity inquiry is whether the employee was performing a ministerial or discretionary function. As the Texas Supreme Court stated in Chambers: “If an action involves personal deliberation, decision and judgment, it is discretionary; actions which require obedience to orders or the performance of a duty to which an actor has no choice, are ministerial.” Id. at 654. The City argues that its actions regarding the repair of the pump on Ladder 67 were discretionary, specifically, (1) the decision by Captain Boze to leave the defective truck in service, (2) the decision of the Fleet Maintenance Service writer to enter pump repair requests as priority two rather then as priority one; and (3) the decisions by the shop foreman and mechanics to decide which equipment to repair first. The plaintiffs rely on exhibit eight, the policy memorandum to establish that -21- a mandatory policy existed and that it was violated with respect to the repair of the pump. We first note that the written policy in exhibit eight, states with respect to priority two repairs: “TWO DAY RESPONSE OR ADDRESS AS SOON AS PRACTICAL.” The codes then allow for seven day, thirty day, and thirty -day plus response times. The pump was first reported broken on December 5, 1995 but was not repaired until January 22, 1996 which was over a month and a half later. Captain Boze’s letter indicates that the mechanic who eventually worked on the pump only heard of the pump problem on January 22nd. It is apparent, as Captain Boze noted in his letter, that the repair shop had a mandatory policy to fix the pump within a certain period of time. While the mechanics may have had discretion to repair the pump within the two days or as soon as practicable after the problem is reported, their duty to repair was ministerial in the sense that they had to do it within a certain amount of time. They had no discretion to fix the pump over a month and a half later. We therefore find that the HFD’s duty to repair the pump within the time designated by the memorandum contained in exhibit eight was ministerial and that the policy was negligently implemented. See Jenicke v. City of Forest Hill, 873 S.W.2d 776, 780 (Tex. App.–Fort Worth 1994, no writ). C. Discretionary function, §101.055(3) The City’s next argues it is entitled to sovereign immunity under Tex. Civ. Prac. & Rem. Code § 101.055(3) (Vernon 1997) which limits the waiver of sovereign immunity to certain governmental functions. Section 101.055(3) states: “This chapter does not apply to a claim arising: . . -22- . (3) from the failure to provide or the method of providing police or fire protection.” The purpose of this limitation is to avoid judicial review of policy decisions made by a governmental unit in charge of providing police or fire protection. See State v. Terrell, 588 S.W.2d 784, 788 (Tex. 1979). The City argues it falls under the exception because the present suit is based on its policy decisions with respect to the repair of the pump on truck 67. However, as Terrell noted, section 101.055(3) only exempts governmental decisions in formulating policy; it does not provide a general exclusion for any act or omission that occurs while an officer is providing police or fire protection to the public. Id. at 787-88. If an employee acts negligently in carrying out the policy, government liability may exist under the act. Id. at 787; Jenicke, 873 S.W.2d at 780.9 Thus, the waiver of sovereign immunity again depends on whether the repair shop failed to comply with what purports to be the official policy of the HFD repair facility contained in exhibit eight. As noted above, we conclude that the jury did not err in determining that such a policy existed and that the City violated this policy. Thus, we cannot find that 9 In Fernandez v. City of El Paso, 876 S.W.2d 370 (Tex. App. - El Paso 1993, writ denied), a Texas Court of Appeals held that a claim based on “the allegedly inadequate condition” of El Paso’s “firefighting apparatus and protective clothing” fell within the section 101.055(3) exception. Fernandez, 876 S.W.2d at 376. Though the facts in Fernandez are sparse, the claim referred to by the court may be construed as focusing on the general inadequacy of El Paso’s firefighting system and equipment, i.e., the method adopted by the City. In the present case, however, plaintiffs do not challenge the City’s general policy regarding firefighting equipment (method); instead, their claims rest on the negligent execution of the City’s policy on equipment repair. Plaintiffs’ claims thus fall under Terrell and Jenicke, not Fernandez. -23- section 101.055(3) provides sovereign immunity to the City. D. Sovereign Immunity under Section 101.056 The City’s last argument for sovereign immunity comes under Tex. Civ. Prac. & Rem. Code §101.056 which states: This chapter does not apply to a claim based on: (1) the failure of a governmental unit to perform an act that the unit is not required by law to perform; or (2) a governmental unit’s decision not to perform an act or on its failure to make a decision on the performance or nonperformance of an act if the law leaves the performance or nonperformance of the act to the discretion of the governmental unit. Sovereign Immunity under this section turns on whether the HFD’s decision as to when to repair the pump was subject to a mandatory policy or was discretionary which was discussed above. Given that we have held that the HFD’s duty to comply with the priority policy was ministerial, § 101.056 offers no relief from the waiver of sovereign immunity in §101.021. V. CONCLUSION For the foregoing reasons, we REVERSE the magistrate judge’s denial of the Plaintiffs’ motion to set aside the jury’s finding on actual notice (question four) and AFFIRM the magistrate judge’s denial of the City’s Motion to Set Aside the remainder of the jury’s findings. We also AFFIRM the district court’s denial of the City’s Motion to Dismiss on grounds of Sovereign Immunity and REMAND this cause to the district court for judgment in accordance with this opinion. REVERSED IN PART, AFFIRMED IN PART. -24- Appendix One Plaintiff’s Exhibit #6, The Boze Letter To: Assistant Chief Reyes Deputy Chief K. Whitehorn Chief Mechanic T. Shelton Re: Fire pump on Ladder 67 Dear Sirs: On December 5, 1995 Engineer/Operator Raymond J. Pooler, PR #54955, called the service writer at motor repair, and reported the fire pump on Ladder 67 was not operating. On December 20, 1995, the “C” shift at Station 67, responded to a reported house fire at 6701 Cohn, ID #951220428, at 2043 hrs., Ladder 67 was the first unit to go to 97, due to E-67 being out of service on an EMS call. It was reported that someone was still inside the home. Upon 10-97, Ladder 67 observed fire coming from a one story residence. Ladder 67 was not able to perform a rescue attempt, because they had no way to charge their 1 3/4 hand line, due to the pump not working. . . . [redacted material] On December 21, 1995, Engineer/Operator Raymond J. Pooler, again contacted Motor Repair about the fire pump on Ladder 67. He talked to a person named Lloyd, who referred him to a person named Stewart, who identified himself as the Acting Shop Foreman. Stewart said he would pull the paper work and call him back. He did call Engineer/Operator Pooler back, and said the pump was bad, and a new pump had been ordered. Engineer/Operator Pooler told Mr. Stewart that we at Station 67, felt like it was not the pump, but something electrical. Mr. Stewart indicated that a mechanic had looked at Ladder 67, and said the problem was the pump. Engineer/Operator Pooler informed Mr. Stewart of the incident the “C” shift had on December 20, 1995, in which one fatality occurred. Mr. Stewart said a pump had been ordered, and that was all he could do. On January 04, 1996 Ladder 67 responded to a reported house fire at 2109 Ellington, ID #960104149, at 1000 hrs. Ladder 67 was the first unit to go 10-97, due to Engine 67 being out of service at the radio shop. While Ladder 67 was enroute to the house fire, it was reported that children were possibly trapped. Upon 10 97, Ladder 67 observed a heavy fire condition, but again was unable to use their pump. Two children perished in this house fire. . . . . . [redacted paragraph] On January 22, 1996, Captain K. W. Owens of Station 67-D contacted Mechanic Grube by telephone, and requested his assistance in getting the -25- fire pump repaired. Mechanic Grube stated that he did not work on Ladder Trucks, but he would contact the mechanic that did work on Ladder Trucks, and have him come by Station 67. At 1123 hrs. on January 22, 1996, Mechanic Rosenquist arrived at Station 67 to look at the fire pump on Ladder 67. I relayed to Mechanic Rosenquist our theory about the problem being electrical. He stated that this was a possibility. Upon further investigation of Ladder 67, he discovered a blown fuse, and corrected the problem. I asked Mechanic Rosenquist how this could be, when Mr. Stewart had informed us the problem was a bad fire pump. Mechanic Rosenquist looked puzzled, and the only reply he could give was that “I don’t know, since I am the only mechanic that works on Ladder Trucks in all four quadrants, and this was the first time I have looked at Ladder 67 for this problem.” In my opinion, there is a problem at Motor Repair that needs to be addressed. I have been in the department for twenty years, and consider myself a professional, and a dedicated servant to the citizens I serve. I have always tried to be understanding when there is a problem in another division or area in this department. However, I can not understand, the apparent negligence on someone’s part, in this matter. I am not saying that if the pump had been working on December 20, 1995. . . or January 04, 1996 (Loss of Two Lives), that the outcome would have been different, this we will never know. This minor problem, which became a very significant problem, not only affected the victims of the fires and their families, but also the dedicated crew’s of Ladder 67, along with their families. Your assistance in an investigation into this matter is strongly urged, and would be greatly appreciated by myself and the Firefighters of Station 67, along with the citizens we serve. Respectfully submitted, E.W. Boze Senior Captain Station 67-D HANDWRITTEN NOTE BY SHELTON ON THE BOTTOM OF THE PAGE: This was discussed with Chief K. Whitehorn on December [January] 21. Steven Steward was riding in Higher Class as Hwy Duty Shop Foreman. Shop Foreman was riding most because I was on scheduled vacation. I was not made aware of this situation until I received this faxed letter. I have instructed the mechanics and shop foremen to always check out Fire Pumps that are reported out of service as quickly as possible. -26-	{ "pile_set_name": "FreeLaw" }
345 S.W.3d 361 (2011) Kathleen ELMORE, Claimant-Appellant, v. MISSOURI STATE TREASURER AS CUSTODIAN OF the SECOND INJURY FUND, Respondent. No. SD 30906. Missouri Court of Appeals, Southern District, Division One. July 22, 2011. 363 Randy Charles Alberhasky, Springfield, MO, for Appellant. Chris Koster, Attorney General, and Cara Lee Harris, Assistant Attorney General, Springfield, MO, for Respondent. DON E. BURRELL, Judge. Kathleen Elmore ("Claimant") sought permanent total disability benefits from the Treasurer of the State of Missouri as Custodian for the Second Injury Fund ("the Fund") after she incurred a hand injury while working as a hospital nurse.[1]364 The Fund is implicated because no one disputes that Claimant's hand injury combined with her pre-existing fibromyalgia and back disabilities produced a greater degree of disability than that caused by her hand injury alone. An Administrative Law Judge ("ALJ") determined that Claimant's combined disability was 10 percent greater to her body as a whole than just the percentage of disability resulting from the simple addition of her occupational injury to her pre-existing back and fibromyalgia disabilities and ordered the Fund to pay Claimant $13,882 as permanent partial disability benefits (emphasis added). The Labor and Industrial Relations Commission ("the Commission") affirmed the decision of the ALJ and adopted it as its own. When the Commission attaches and incorporates by reference the ALJ's award and decision, we "consider[ ] the findings and conclusions of the Commission as including the ALJ's award." Henley v. Fair Grove R-10 Sch. Dist., 253 S.W.3d 115, 126 (Mo. App. S.D.2008). Claimant now appeals, asserting in two points relied on that the Commission erred as a matter of law in rejecting her claim that she was permanently and totally disabled because Claimant's expert was more credible as a matter of law than the witnesses relied on by the Commission and that Claimant's "preexisting disabilities should have been evaluated under § 287.220.1 as of when her injury became compensable"either when she missed work in February 2004 or when she reached "maximum medical improvement" in November 2005instead of when she first reported her injury to Employer. Finding no merit in her first claim, and finding that using Claimant's suggested alternate injury dates would make no difference in the result, we affirm the decision of the Commission. Standard of Review We must affirm the decision of the Commission unless it "acted in excess of its powers, the award was procured by fraud, the facts found by the Commission do not support the award, or there was not sufficient competent evidence in the record to warrant making the award." Clayton v. Langco Tool & Plastics, Inc., 221 S.W.3d 490, 491 (Mo.App. S.D.2007); section 287.495.1. "Whether the award is supported by competent and substantial evidence is judged by examining the evidence in the context of the whole record." Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003). We defer to the Commission on "determinations regarding weight of the evidence and the credibility of witnesses," Silman v. Simmons' Grocery & Hardware, Inc., 204 S.W.3d 754, 755 (Mo.App. S.D.2006), but we review questions of law de novo. Ullum v. George Carden Circus Int'l Inc., 223 S.W.3d 192, 195 (Mo.App. S.D.2007). Facts Claimant became a registered nurse in 1981 and worked in a hospital obstetrics unit for over twenty years. In 1999, she underwent back surgery but continued to have back problems. In 2000, Claimant was diagnosed as having fibromyalgia. By 2002, she was using a variety of pain-relief methods and trying to schedule herself so that she did not have to work more than two days back-to-back. In August 2003, Claimant began experiencing problems with her right hand. She alerted her employer, Cox Health Systems ("Employer"), which referred her to a doctor 365 who then referred her to orthopedic surgeon Scott Swango. Dr. Swango's medical records, which were admitted into evidence, indicated that he first tried treating Claimant with injections of "Kenalog" and "plain lidocaine." When the injections did not provide relief, he operated on Claimant's hand in February 2004 and again in July 2004, after still another Kenalog injection had failed to produce any positive results. Dr. Swango released Claimant to return to work in October 2004, and his medical report stated that he did not think Claimant's thumb injury had disabled her; he believed Claimant was still "employable" and "should be able to do some type of nursing function)." After Dr. Swango had performed the two surgeries on Claimant's thumb, Claimant was apparently examined in October 2004 by her "primary doctor," Dr. Drew Shoemaker. Claimant continued experiencing pain and sought the help of another physician, Dr. Michael Grillot. Dr. Grillot operated on Claimant's thumb in March 2005. Claimant was released from Dr. Grillot's care, but her hand continued to be weak and stiff. Claimant testified that her back pain and fibromyalgia worsened after developing problems with her hand. Claimant acknowledged that while she preferred working three twelve-hour shifts per week (scheduled so that she did not work any three of them in a row), she was at times working up to fifty hours per week until 2003. Claimant worked up until her first surgery in February 2004, but she did not return to work thereafter. Claimant testified that after being released by Dr. Swango, she showed Employer the condition of her hand and Employer was unable to offer alternative work to the nursing position. At the hearing, Claimant testified that as of when she stopped working, she "could not scrub into the surgical procedure[,]" a duty normally required of a nurse in her position. Claimant is able to use her computer at home to send emails and search the Internet. She is also capable of engaging in some recreational activities. In September 2008, Claimant took a camping trip with her daughter and granddaughters that included two nights in a tent and two nights in a hotel. During the course of pursuing her workers' compensation claim against Employer, Claimant was examined on two occasions at the request of her attorney by Dr. David George Paff. Claimant eventually settled her workers' compensation claim involving the occupational injury to her hand with Employer and agreed in that settlement that the disability to her hand was 33 and 1/8 percent. The "Stipulation for Compromise Settlement" was received as Claimant's Exhibit Q at the hearing. It stated that "[t]he permanent partial disability settlement of 33 1/8% to the right hand represents a compromise between Dr. Paff's rating of 35% to the right hand and Dr. Lennard's 20% rating to the right hand." Claimant sought an evaluation by Dr. Paff. Dr. Paff testified by deposition that he saw Claimant in November 2005 and again in July 2008. Dr. Paff based his assessments on his physical examination of Claimant, her expressed complaints, and the treatment she had received. He determined that Claimant's problems with her back and fibromyalgia predated her occupational injury. Dr. Paff testified that he did not believe Claimant could return to the same job she had when she began experiencing problems with her hand because it required that she use "the computer and the mouse six hours a day." When Dr. Paff prepared his first report in November 2005, he stated that Claimant's hand had reached "maximum medical 366 improvement." Dr. Paff eventually assigned the following permanent partial disability ratings to Claimant: 35 percent for the "right upper extremity carpometacarpal joint," 15 percent to the whole body for her lumbar spine condition, and 10 percent to the whole body as a result of her fibromyalgia. Dr. Paff testified that he assessed a greater overall disability of 10 percent for Claimant when her occupational injury was considered in combination with her back and fibromyalgia disabilities. Claimant's vocational expert, Phillip A. Eldred, testified by deposition regarding his assessment of Claimant, and his written report was included without objection as Exhibit 2. Eldred reviewed and assessed the assessments of other professionals regarding Claimant's ability to work as follows: Nancy Dickey was the first one that I looked at. She's a physical therapist. And her restrictions are sedentary work level. Dr. Swango, from what he stated in his evaluation, he didn't give any restrictions. He just mentioned he thought she was employable and she would be able to do some type of nursing, but he didn't elaborate on that. Dr. Shoemaker gave restrictions of less than a sedentary work level. Dr. Lennard, his restrictions were undefined, even though he gave a percentage of disability. Dr. Paff listed her at sedentary work level. Eldred summarized portions of the medical records he reviewed, but the complete reports and records made by the cited professionals were not included as a part of Eldred's report or as exhibits to his deposition.[2] Eldred attributed the following statement to Dr. Shoemaker: "Has had surgery right hand and cannot grip post operatively. She is right handed. Can't write only intermittently, cannot open jars, can't assist in surgery due to hand limitations. Also has chronic back pain and fibromyalgia which further disable her." (Q: 7a: If medical leave is required for the employee's absence from work because of the employee's own condition ... is the employee unable to perform work of any kind?) [sic] Yes." [sic] Eldred then looked at the specific physical restrictions stated by the other professionals, including Dr. Shoemaker; identified the sedentary-type jobs available in the economy; and considered whether Claimant could perform those jobs based on her physical restrictions, mental abilities, level of pain, and some testing she had completed. Eldred opined that Claimant was not employable in the open labor market, and his report concluded that Claimant is "permanently and totally disabled as a result of her injury on October 27, 2003[,] combined with her pre-existing medical conditions." Eldred acknowledged there were jobs Claimant could perform based upon just the occupational injury to her hand because there are jobs that may be done using only one hand. Further, Eldred conceded that the work Claimant was actually doing at the hospital was classified as a medium-level job involving lifting, carrying, pushing 20-to-50 pounds and sometimes more. He also admitted that Dr. Shoemaker's restrictions for Claimant were based on his evaluation of Claimant 367 before she had finished treatment with her own surgeon, Dr. Grillot. The Fund's vocational expert, rehabilitation counselor James England, reviewed Claimant's file and also provided an opinion as to her employability. In performing his work, England reviewed the depositions of Claimant and Dr. Paff, considered the medical records that were provided to him, and reviewed Claimant's limitations as expressed by Drs. Lennard and Paff. England's opinion of Claimant's employability was as follows: Well, I think that looking at the opinions of either of those doctors [Lennard and Paff], I think that she would still be employable in a variety of, I would call them, alternative nursing settings, as well as things not related to nursing. But I think rather than going with just entry-level employment, like being a receptionist or security guard, or something like that, I think it would make more sense for her to stay within the medical field. I felt some of the possibilities would include being an office manager for a medical service company, and that would be companies, for instance, that send out people to do home-health nursing. You have someone who coordinates that activity at the office. I think she would be ideal for that. I think she could do utilization review, medical records review, work for, for instance, insurance companies, attorneys, things of that nature; and I think with her background, you know, it would be practical for her to use that knowledge and skill in jobs that would be within the physical restrictions. I think if she indeed has these limitations with her right hand, there is adaptive equipment, such as either a voice-activated computer or a one-handed keyboard, either one, that could be utilized to circumvent the problems that she has with her right hand, and it would still enable her to go back and function in these types of job settings. England's report was included with his deposition as Exhibit 2, and it stated: "Someone with [Claimant's] background is, in my opinion, highly marketable if one considers her overall work background, experience, training and considering the restrictions recommended by the doctors. I certainly saw no medical evidence that would lead me to believe that she is totally disabled from all forms of employment." The Commission specifically found that the opinions of England and Dr. Paff more persuasive than the opinion of Eldred. Analysis Point I: Credibility "as a Matter of Law" Claimant's first point claims the Commission erred as a matter of law in finding England more credible than Eldred. (Emphasis added.) Specifically, Claimant contends: The Commission erred as a matter of law in determining that vocational expert Phil Eldred was less credible than vocational expert James England, based upon the finding that Eldred relied on restrictions imposed by Dr. Shoemaker on October 25, 2004, as set out in Eldred's report, because the October 25, 2004 record from Dr. Shoemaker was not admitted into evidence in original form, but rather as copied by Phil Eldred. As between Eldred and England, the Commission's adopted findings of the ALJ were: I also find more persuasive the opinions of Mr. England, who I find to be more persuasive than Mr. Eldred because Mr. England applies the restrictions of Dr. Paff which are in evidence as opposed to 368 Mr. Eldred who bases his opinion in part upon the restrictions [in] Dr. Shumaker's [sic] report which is not in evidence and was made before [C]laimant's last surgery. (Emphasis added.) In light of this resolution by the Commission of the conflicting testimony, by the Commission, Claimant has drafted her point to assert what purports to be a purely legal claim in an attempt to avoid our application of the following legal principle: When resolution of an issue in a workers' compensation case hinges on the credibility of witnesses, or the weight to be given to certain evidence, the scope of appellate review is significantly curtailed. Cochran v. Indus. Fuels & Resources, Inc., 995 S.W.2d 489, 495[15] (Mo.App.1999). This follows because the weight to be given evidence rests with the Commission and it alone determines the credibility of witnesses. Lockman v. Citizen's Mem'l Hosp., 140 S.W.3d 214, 218 (Mo.App. S.D.2004). If one witness may be considered more credible than another as a matter of law, then we could potentially review the Commission's finding de novo instead of determining whether its decision was against the overwhelming weight of the evidence or was not supported by competent and substantial evidence in view of the whole record. See Hampton, 121 S.W.3d at 222. While Claimant cites authority for the proposition that an appellate court examines an issue of law as if it were the original court, Ransburg v. Great Plains Drilling, 22 S.W.3d 726, 730 (Mo.App. W.D.2000), overruled on other grounds by Hampton, 121 S.W.3d at 223-24, she points to no authority holding that the Commission's decision on the weight to give the testimony of expert witnesses is a legal issue. Instead, Claimant contends the medical information her preferred expert relied upon was also "actually admitted into evidence without objection [ ] as set out in Eldred's report"; points to section 490.065.3 as empowering an expert to rely upon such information not otherwise admitted into evidence as a basis for his opinion if that information otherwise comports with the requirements of the expert witness statute; and argues that this means the Commission could notas a matter of lawfind Eldred less credible than England on the grounds that Eldred had relied on information that was not in evidence. (Emphasis as stated in original.) In making this argument, Claimant also disregards the Commission's accompanying statement that Dr. Shoemaker's report was generated before Claimant underwent her final surgery. The Fund agrees that section 490.065[3] applies to contested administrative cases. See State Bd. of Registration for the Healing Arts v. McDonagh, 123 S.W.3d 146, 154-55 (Mo. banc 2003). It is also true that the proper interpretation of section 490.065 is a matter of law we review de novo and that evidence should be admitted when it meets the requirements set forth therein. Kivland v. Columbia Orthopaedic Grp., LLP, 331 S.W.3d 299, 311 (Mo. banc 2011). But section 490.065 does not address what (if any) weight the fact-finder must give that admissible evidence. In other words, the statute does 369 not require that the fact-finder fully accept the expert's opinion above other evidence. Nor does it require that the substance of an expert's testimony be weighed anew by a reviewing court. Here, there is no suggestion that the ALJ rejected Eldred's testimony or report on the grounds that it failed to satisfy the foundational requirements of section 490.065.3. As Claimant concedes in her brief, "Eldred's report was submitted into evidence without objection." Further, Eldred's deposition testimony (Exhibit W) was also received into evidence without objection. The Commission made no statement indicating that Eldred's testimony or report could not be considered. Instead, the Commission summarized Eldred's evaluation and listed the doctors he relied upon in reaching his opinion. The Commission's findings were that two of the reports relied on by Eldred, one from "Dr. Shumaker" [sic] and the other from Dr. Lennard, were not independently admitted into evidence but that the restrictions endorsed by those doctors were "referenced in the record through the assessment of [Eldred]." Its findings go on to discuss Eldred's opinion in some detail, but the Commission could review only the portions of Dr. Shoemaker's observations and findings that were actually placed before it in the second-hand form of Eldred's report and testimony.[4] In the end, the portions of Dr. Shoemaker's opinions cited by Eldred in his report were not that helpful to Claimant. In order to be entitled to Fund liability, the claimant must establish either that (1) a preexisting partial disability combined with a disability from a subsequent injury to create permanent and total disability or (2) the two disabilities combined to result in a greater disability than that which would have resulted from the last injury by itself. Gassen v. Lienbengood, 134 S.W.3d 75, 79 (Mo.App. W.D.2004). Even though Dr. Shoemaker opined that Claimant could not work in October 2004 and Eldred rated Dr. Shoemaker's work restrictions at "less than a sedentary work level[,]" Dr. Shoemaker is not quoted as stating that Claimant was permanently totally disabled (as opposed to temporarily totally disabled). Further, assuming Dr. Shoemaker believed that Claimant's condition was permanent, it is not clear whether he believed that the addition of the occupational injury caused permanent total disability or whether her worsening, pre-existing back and fibromyalgia disabilities in themselves caused that permanent total disability. The distinction is important because the Fund is not liable for disability caused by prior conditions or disability caused by a worsening prior condition. Lawrence v. Joplin R-VIII Sch. Dist., 834 S.W.2d 789, 793 (Mo.App. S.D.1992); Elrod v. Treasurer of Missouri as Custodian of the Second Injury Fund, 138 S.W.3d 714, 717 (Mo. banc 2004). And, in terms of partial permanent disability, Eldred does not quote Dr. Shoemaker as giving any percentage of greater disability attributable to the combination of Claimant's pre-existing disabilities 370 and her occupational injury.[5]See Highley v. Von Weise Gear, 247 S.W.3d 52, 55 (Mo.App. E.D.2008). Contrary to Claimant's arguments, Eldred's testimony and report were not ignored by the Commission and section 490.065.3 does not compel a de novo review of the Commission's weighing of the competing expert opinions. What Claimant asks us to do is to step outside the well-established role of an appellate court. As earlier noted, on issues involving the credibility of witnesses and the proper weight to be given their testimony, we defer to the Commission. Birdsong v. Waste Mgmt., 147 S.W.3d 132, 137 (Mo.App.2004); see also Clark[ v. FAG Bearings Corp.], 134 S.W.3d [730] at 735 [(2004)]. Additionally, "[w]hen witnesses are deposed and do not testify live before the ALJ, the Commission is just as able as the ALJ to determine credibility from the written record." Birdsong, 147 S.W.3d at 137-38. "In situations where witnesses are deposed and do not testify live before the ALJ, this [C]ourt defers to the Commission on matters such as witness credibility, as the Commission is just as able as the ALJ to determine credibility from the written record." Aldridge v. S. Missouri Gas Co., 131 S.W.3d 876, 880 (Mo. App.2004). Russell v. Invensys Cooking & Refrigeration, 174 S.W.3d 15, 23 (Mo.App. S.D. 2005). Our proper role is to consider the evidence in support of the Commission's award in the context of the whole record. "The test for permanent, total disability is the worker's ability to compete in the open labor market. The critical question is whether, in the ordinary course of business, any employer reasonably would be expected to hire the injured worker, given his present physical condition." ABB Power T & D Co. v. Kempker, 236 S.W.3d 43, 48 (Mo.App. W.D.2007) (citation and footnote omitted). When conflicting expert opinions are offered, it is the job of the Commission to reconcile the evidence and make a determination of fact. Custer v. Hartford Ins., Co., 174 S.W.3d 602, 617 (Mo.App. W.D.2005). Claimant also asserts that "[d]isregarding Dr. Shoemaker's opinions regarding the back and fibromyalgia while recognizing Dr. Lennard's [opinions] is capricious, illogical and contrary to law." The Commission referenced Eldred's reliance on Dr. Lennard's reports as one of the bases for his opinion, and noted that Dr. Lennard's report was made after Claimant had undergone her final surgery by Dr. Grillot. The Commission also referred to Dr. Lennard's rating of 20 percent disability to the hand in the context of Claimant's settlement with Employer. The ALJ-approved settlement was received into evidence as Exhibit Q. Claimant had already accepted a compromise on a 33 1/8 percent partial permanent disability rating for her hand based in part on a lower rating provided by Dr. Lennard, and it was not capricious, illogical, or contrary to law for those facts to be noted in the Commission's findings. Claimant also asserts that "Dr. Paff never rendered an opinion that [Claimant] could work[,]" and the Commission "misinterpreted the significance of Dr. Paff's testimony."[6] Dr. Paff saw Claimant on two 371 separate occasions, approximately two-and-a-half years apart, with the last visit being in July 2008. Dr. Paff did not think that Claimant could return to her original job at the hospital, but as counsel for the Fund points out, Dr. Paff never opined that Claimant was permanently totally disabled. Dr. Paff stated that Claimant's hand had reached "maximum medical improvement" in November 2005, that her back and fibromyalgia conditions predated her work injury, and that these disabilities combined with the work injury to exponentially increase her overall disability, but only by 10 percent to the body as a whole. Dr. Paff's assignment of a permanent partial disability rating of 35 percent for the right thumb remained consistent in his reports from both evaluations. He then added ratings to the body as a whole of 15 percent for the lumbar spine and 10 percent for fibromyalgia in his second report. Taken together, these ratings do not suggest that Dr. Paff viewed Claimant as permanently and totally disabled. In her reply brief, Claimant notes that Dr. Paff did not testify as to Claimant's employability in the labor market. But the Commission, given the testimony of England and Eldred, was not without evidence on this issue. England testified that there were jobs in the labor market, including jobs superior to entry-level positions, that matched Claimant's skills and physical restrictions. England considered someone like Claimant to be "highly marketable" and he "certainly saw no medical evidence that would lead [him] to believe that she is totally disabled from all forms of employment." The Commission did not err as a matter of law in finding the testimony from England and Dr. Paff more persuasive than that of Eldred. Point I is denied. Point II: Date of the Injury Claimant's second point alleges the Commission erred as a matter of law in considering her pre-existing disabilities as of Fall 2003 (when problems with her hand first manifested) because her occupational injury did not become compensable until she missed work for surgery in February 2004 and her "maximum medical improvement" was not attained until November 2005. As Claimant points out, the Fund's liability for additional disability is determined according to section 287.220.1, which includes the following direction: [T]he degree or percentage of disability which existed prior to the last injury plus the disability resulting from the last injury, if any, considered alone, shall be deducted from the combined disability, and compensation for the balance, if any, shall be paid out of a special fund known as the second injury fund, hereinafter provided for. Claimant cites Landman v. Ice Cream Specialties, Inc. 107 S.W.3d 240, 248 (Mo. banc 2003), overruled on other grounds by Hampton, 121 S.W.3d at 223-24, as support for her argument that the date of injury is not when symptoms first arise but when the injury becomes compensable. Counsel for the Fund distinguishes Landman because the employee there did not claim an earlier date as the applicable date of injury. Here, Claimant specifically listed October 27, 2003, as her date of injury, both on her workers' compensation claim form and then as confirmed by her counsel at the evidentiary hearing on her claim against the Fund. Claimant also agreed in her settlement with Employer that she "sustained an injury 372 arising out of and in the course of employment" "on or about 10-27-03[.]" An occupational disease does not become a compensable injury until the disease causes the employee to become disabled by affecting the employee's ability to perform his ordinary tasks and harming his earning ability. An employee can be diagnosed with an occupational disease and experience symptoms of the disease prior to the time that it becomes disabling. Garrone v. Treasurer of the State of Missouri, 157 S.W.3d 237, 242 (Mo.App. E.D.2004) (internal citations omitted). Further, the date Claimant entered on her claim form and the date she used in her settlement with Employer are not necessarily determinative of the date of compensable injury because the former dates may relate to causation (or the employer's exposure to liability) rather than the Fund's obligation to compensate for additional disability suffered as a result of the combination of a new occupational injury and a pre-existing disability. Id. at 243-44. Thus, the record supports Claimant's claim that her compensable injury occurred in February 2004, not on October 27, 2003. But there is no need for us to determine whether Claimant should be barred from asserting a different date of injury on appeal from the one she claimed at her hearing before the ALJ because a change of her date of injury to either of the dates she now suggests would make no difference in the outcome.[7] Moving the date of injury to February 2004 does nothing more than provide Claimant the ability to reargue the weight of Dr. Shoemaker's opinions. Claimant asserts that "the Commission erred in not weighing in Dr. Shoemaker's nearly contemporaneous opinions, as utilized by Eldred in his vocational exam, especially since they were admitted into evidence without objection as documented in Eldred's report[.]" (Emphasis added.) Setting the date of compensable injury closer to the date of Dr. Shoemaker's examination and report does not make his opinions and the opinions of Eldred superior as a matter of law to those of England and Dr. Paff As set forth in our analysis of Point I, it is the prerogative of the Commission to assess credibility and weigh evidence. Lockman, 140 S.W.3d at 218. Point Two is also denied. Claimant has failed to demonstrate that she is entitled to relief under any of the four, exclusive grounds set forth in section 287.495.1. The award of the Commission is affirmed. BARNEY, P.J., and FRANCIS, J., Concur. NOTES [1] In her brief, Claimant refers to her compensable injury as an "occupational disease" on two occasions but more often as an "occupational injury." She refers to the affected part of the body at different times as the "hand," "wrist," and "thumb." The award referenced the "right arm at the 175-week level," which is a reference to the amount awarded for an injury to the hand, and Claimant does not contest this. Section 287.190.1(5). Unless otherwise indicated, all statutory references are to RSMo 2000. For purposes of simplicity, we will refer to her claim as an occupational injury to the hand except when referencing a specific procedure or diagnosis referred to by an expert witness. [2] Claimant's counsel insisted at oral argument that all of these underlying records were substantively "in evidence" because they were records of a type an expert witness may reasonably rely on in formulating his opinions. How the fact-finder would review and weigh this evidence without its actually having been presented at trial is unclear. [3] In pertinent part, the statute provides: The facts or data in a particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing and must be of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and must be otherwise reasonably reliable. Section 490.065.3. [4] Claimant "has the burden of proving all elements of [her] claim to a reasonable probability[,]" Dunn v. Treasurer of Missouri as Custodian of Second Injury Fund, 272 S.W.3d 267, 272 (Mo.App. E.D.2008), and if she had wanted to offer Dr. Shoemaker's records, she could have done so by calling him as a witness or otherwise qualifying them for admission. See, e.g., Care & Treatment of T.D. v. State, 199 S.W.3d 223, 228 n. 4 (Mo.App. S.D.2006) (business records rule a possible exception to hearsay prohibition if records are properly qualified); see also section 490.680. [5] As a vocational expertnot a physician Eldred could not and did not quantify any disability greater than the sum of Claimant's prior disabilities and her work injury. See section 287.190.6(1) and (2), RSMo Cum. Supp.2006. [6] Claimant's use of the word "significance" is, in itself, significant; it suggests an implicit understanding that the issue is one of weight, not admissibility, and it belies her claim that one expert's opinion may be more or less credible than another's as a matter of law. [7] The date calendared for the occupational injury does not determine the compensation rate. The parties agreed that the weekly partial permanent disability rate was $347.05 and the total permanent disability rate was $662.55. The Commission utilized 40 weeks (representing 10 percent of 400 weeks) in calculating the award. See section 287.190.3 (setting the maximum allowable period of weeks at 400). Had the Commission found that Claimant was permanently and totally disabled, then the actual calculation of benefitsboth lump sum and weeklywould have been different, of course, but if anything, moving the date of compensable injury forward in time could have postponed the start of weekly benefits.	{ "pile_set_name": "FreeLaw" }
950 A.2d 1217 (2008) IN RE T.C. No. 07-477. Supreme Court of Vermont. April 11, 2008. Appeal disposed of without published opinion or memorandum decision. Affirmed.	{ "pile_set_name": "FreeLaw" }
[J-66-2019] [MO: Todd, J.] IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT IN THE INTEREST OF: N.B.-A., A : No. 11 EAP 2019 MINOR : : Appeal from the Order of Superior : Court entered on February 19, 2019 at APPEAL OF: E.A., MOTHER : No. 893 EDA 2018 affirming in part : reversing in part the Order dated : March 16, 2018 in the Court of : Common Pleas, Philadelphia County, : Family Court Division at No. CP-51- : DP-0002607-2016. : : ARGUED: September 10, 2019 CONCURRING OPINION JUSTICE WECHT DECIDED: January 22, 2020 The circumstances of this case call upon the Court to determine whether the Department of Human Services (“DHS”) presented sufficient evidence that Mother was a perpetrator of “child abuse” as defined in the Child Protective Services Law (“CPSL”), 23 Pa.C.S. § 6303(b.1). I agree with the Majority that DHS failed to establish that Mother was a perpetrator of abuse by omission under Section 6303(b.1). At the very least, culpability under that Section requires a showing of recklessness, which entails a conscious and unjustifiable disregard of a known risk. See 18 Pa.C.S. § 302(b) (defining requirements of culpability for purposes of the CPSL). Because there was no evidence to suggest that N.B.-A.’s stepbrother was a known risk, there was no basis to find Mother to be a perpetrator of abuse by omission under Section 6303(b.1). The Superior Court affirmed the juvenile court’s finding that Mother was a perpetrator of abuse pursuant to Section 6303(b.1). In addition, the Superior Court invoked the evidentiary presumption set forth in 23 Pa.C.S. § 6381(d) to conclude that Mother is a perpetrator of child abuse by omission. Section 6381(d), entitled “[p]rima facie evidence of abuse,” provides as follows: Evidence that a child has suffered child abuse of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or other person responsible for the welfare of the child shall be prima facie evidence of child abuse by the parent or other person responsible for the welfare of the child. 23 Pa.C.S. § 6381(d). I join the Majority’s rejection of the Superior Court’s reliance upon Section 6381(d). Maj. Op. at 21. Like the Majority, I examine the statutory language to ascertain when the evidentiary presumption applies. This examination leads me to conclude that the General Assembly intended to limit the application of Section 6381(d) to scenarios where the alleged perpetrator is a parent or other person responsible for the child’s welfare; the child has suffered child abuse; and the child abuse is “of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or other person responsible for the welfare of the child.” Id. Because DHS, as the petitioner in the child abuse proceedings against Mother, failed to produce evidence to establish that the abuse suffered by N.B.-A. was “of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent,” I would hold that Section 6381(d) never came into play. The juvenile court never made this predicate factual finding. The burden never shifted to Mother to explain the abuse. Hence, the Superior Court’s alternative holding under Section 6381(d) was in error. Interpretation of Section 6381(d) is a matter of statutory construction. To this end, “[t]he object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly.” 1 Pa.C.S. § 1921(a). When ascertaining legislative intent, “[e]very statute shall be construed, if possible, to give effect to all its [J-66-2019] [MO: Todd, J.] - 2 provisions.” Id. Each word used by the legislature has meaning, and cannot be treated as mere surplusage. Commonwealth v. Lassiter, 722 A.2d 657, 660 (Pa. 1998). We further presume that the General Assembly intends the entire statute to be effective. 1 Pa.C.S. § 1922(2). Only when the statutory language is unclear may the Court go beyond that language to consider the factors enumerated in the Statutory Construction Act. Id. § 1921(c). The petitioner in a dependency action must establish the statutory requirements for dependency, as defined in the Juvenile Act, 42 Pa.C.S. § 6302, by clear and convincing evidence. 42 Pa.C.S. § 6341(c); In re L.Z., 111 A.3d 1164, 1176 (Pa. 2015). Child abuse, as defined by the CPSL, 23 Pa.C.S. § 6303(b.1), may evidence dependency, and therefore must be established by clear and convincing evidence. Although the clear and convincing evidence standard applies to the juvenile court’s finding of dependency, the legislature has allowed for the possibility of identifying the perpetrator of child abuse through prima facie evidence in certain situations, in accord with Section 6381(d). Section 6381(d) contains three key requirements. First, it applies only to parents or other persons responsible for the child’s welfare.1 Second, the child must have suffered child abuse, which, as noted, is defined in Section 6303(b.1). Mother disputes neither of these requirements: Mother is a parent of N.B.-A., and N.B.-A. was sexually abused. But there is a third prefatory requirement of the statutory presumption that is not so easily dispensed with. Section 6381(d) is only implicated when the child abuse is “of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions” of the parent. 23 Pa.C.S. § 6381(d). 1 Although the statute applies to parents as well as to other persons responsible for the welfare of the child, I refer in the ensuing discussion simply to “parents” in the context of Section 6381(d) for ease of reference, and to reflect the facts of this case. [J-66-2019] [MO: Todd, J.] - 3 With this prefatory language, the legislature clearly conveyed its intent to limit the scope of Section 6381(d) by adding a triggering provision within the text of the statute. The evidentiary presumption does not apply unless the abuse is of a certain nature. Therefore, Section 6381(d) does not apply to all forms of child abuse. If the General Assembly wanted DHS to rely upon the evidentiary presumption any time that a child is abused, it would not have limited its application to certain instances of child abuse. Were we to construe the statute to apply anytime that a child has suffered abuse, we would violate the dictates of the Statutory Construction Act and would render the predicate language surplusage. For this reason, the Child Advocate is incorrect in arguing that, because of the general difficulties in proving child abuse, the legislature intended to shift the burden to parents in every case of child abuse to explain what happened to the child. Brief for Appellee Child at 47. Section 6381(d) presumptively predicates parental culpability on the character of the abuse the child sustained. But what does it mean to require the child abuse to be of such a nature that it would ordinarily not occur but for the parent’s acts or, in this case, omissions? The language indicates that the presumption applies whenever there are injuries that generally would not occur if the parent had been protective and not abusive. It suggests direct causation: that the abuse is of such a nature that it would not exist but for the parent’s acts or omissions. In the case of omission, it is the parent’s failure to act that directly causes the abuse. DHS recognizes this causation requirement by asserting that it is the parent’s act or omission that allowed the perpetrator to commit the abuse. Brief for Appellee DHS at 29. The Child Advocate also recognizes that Section 6381(d) is premised upon “but for” causation. Brief of Appellee Child at 37. The argument of DHS and the Child Advocate seems to be that, by its nature of being illicit and surreptitious, all sexual abuse qualifies. But again, that is not what the [J-66-2019] [MO: Todd, J.] - 4 legislature said in Section 6381(d). Although sexual abuse certainly may occur when a child has insufficient supervision, it may also occur, as the Majority explains, despite a parent’s best efforts to supervise the child. Maj. Op. at 22. Here, presumptive culpability was premised upon omission, a term left undefined in both the CPSL and the Juvenile Act. As generally understood, an omission is “[a] failure to do something; esp., a neglect of duty.” Omission, Black’s Law Dictionary (11th ed. 2019). The relevant duty arises from the parent/child relationship, as “parents are always responsible for their children, absent extenuating circumstances.” L.Z., 111 A.3d at 1184. When a young child presents with a sexually transmitted disease, it is clear that the child was sexually abused. It is not self-evident that the parent’s omission, or neglect of parental obligations, caused the sexual abuse. Without evidence of causation, the predicate language of Section 6381(d) is not established. The fact of the abuse cannot serve as prima facie evidence of abuse by the parent without first establishing that the abuse is of the nature as would ordinarily not exist but for the parent’s omissions. Whatever the General Assembly’s reasons, our job is to apply the language that the legislature chose to use. To receive the benefit of Section 6381(d) here, DHS had to establish that N.B.-A. suffered abuse of such a nature as would ordinarily not be sustained or exist but for Mother’s omissions. It did not do so. Nor did the trial court make any findings in this regard. Because DHS presented insufficient evidence to warrant application of Section 6381(d), it does not get the benefit of the evidentiary presumption, and the burden of production never shifted to Mother. To hold otherwise would amount to presumptive strict liability against parents for child abuse, regardless of the parent’s role or the conduct of other individuals. A presumption of parental culpability anytime a child is abused would have far-reaching [J-66-2019] [MO: Todd, J.] - 5 consequences, one that this Court already rejected in L.Z. L.Z., 111 A.3d at 1185 n.24 (holding that the presumption is triggered only in circumstances where it is “unlikely that the child could have suffered the injuries but for the acts o[r] omissions of the parent or caregiver,” and, therefore, could only be used to hold parents presumptively responsible for abuse perpetrated by others if the parent “should have known of the danger into which they placed the child”). I am also persuaded by the argument of the American Civil Liberties Union (as amicus curiae) that interpreting Section 6381(d) to presumptively label a parent a perpetrator of abuse whenever abuse is established would raise substantial due process considerations. The evidentiary foundation of Section 6381(d) was lacking in this case because DHS did not demonstrate that the abuse was of such a nature that it would not have been sustained but for Mother’s omissions, and the burden of production never shifted to Mother to explain the circumstances of N.B.-A.’s abuse. In this respect, I disagree with DHS that merely establishing the fact of abuse would shift the burden of proof to the parent to prove what happened to the child. See Brief for Appellee DHS at 22. The burden of proof consists of two separate burdens: the burden of production and the burden of persuasion. Commonwealth ex rel. Butler v. Rundle, 239 A.2d 426, 427 (Pa. 1968). The burden of persuasion always remains with DHS as the petitioning party. If DHS is going to rely upon Section 6381(d), then the burden is on DHS to demonstrate that the alleged perpetrator is a parent or someone responsible for the child’s welfare, that the child was abused, and that the abuse is of such a nature that it would not ordinarily exist but for the parent or caregiver’s act or omission. Because DHS failed to prove these three elements, the burden of production never shifted to Mother. Therefore, I join the Majority in holding that the Superior Court erred in affirming the juvenile court’s determination that Mother was a perpetrator of abuse by omission. [J-66-2019] [MO: Todd, J.] - 6 Justice Baer and Justice Dougherty join this concurring opinion. [J-66-2019] [MO: Todd, J.] - 7	{ "pile_set_name": "FreeLaw" }
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS UNPUBLISHED In re BARRETT, Minors. June 4, 2020 Nos. 349859; 349897; 351314; 351343 Livingston Circuit Court Family Division LC No. 18-015854-NA Before: RONAYNE KRAUSE, P.J., and SERVITTO and REDFORD, JJ. PER CURIAM. In Docket Nos. 349859 and 349897, respondents appeal by right the trial court’s order of disposition, assuming jurisdiction over the children after adjudication by jury trial, as to their son, BB.1 In Docket No. 351343, respondent-father appeals by right, and respondent-mother argues against,2 the trial court’s order removing BB from their home. In Docket No. 351314, attorney Timothy P. Crawford appeals by right the trial court’s order denying his petition to appear as the child’s attorney and imposing sanctions for having filed a frivolous pleading. In Docket No. 351314, we remand for the limited purpose of affording Crawford a conditional opportunity to move for reconsideration regarding the reasonableness of sanctions. In all other respects, we affirm. This appeal is being decided without oral argument pursuant to MCR 7.214(E)(1). 1 The proceedings below initially focused primarily on respondent-father’s other son, SB. SB is now a few months shy of 18 years old, and respondent-father does not appeal any of the trial court’s orders regarding SB. Likewise, SB’s mother, who was a respondent below, has not participated in this appeal. Thus, SB is not actually at issue in this appeal, and all references to respondent-mother in this opinion refer only to BB’s mother, and unless otherwise specified, “the child” refers to BB. 2 Respondent-mother appeared as an appellee in Docket No. 351343, but pursuant to MCR 7.216(A)(2), we choose to treat her as having properly appeared as an appellant in that appeal. -1- I. FACTUAL BACKGROUND Respondent-mother works outside the home and respondent-father is a stay-at-home parent who homeschooled the children and coached them athletically. Respondent-mother is not the mother of respondent-father’s older child, SB, and has no legal relationship with him, though she considers him her stepson. The testimony at the 16-day jury trial established that respondent- father subjected SB to increasingly severe mental abuse, and also physical abuse, from 2012 to 2019. Respondent-father took the younger child, BB, who is at issue on appeal, to meetings at which he disparaged SB; and respondent-father also directed BB to videotape his domestic violence against SB. In 2016, a caseworker identified a risk of harm to both children posed by the home environment. The caseworker testified that respondent-father told the caseworker that she would not be allowed to speak with respondent-mother, and there is no indication in the record that the caseworker actually spoke with respondent-mother. Respondent-father agreed to discontinue physically disciplining SB and to stop picking him up and carrying him, but respondent-father continued to physically restrain and spank SB, despite SB being a teenager by then. Respondents and the children engaged in voluntary counseling, which resulted in a safety plan under which respondent-father would stop carrying SB. However, a youth services administrator testified that respondent-father refused to engage in the safety plan and conflict continued in the home. Multiple therapists, educators, and service providers testified that respondent-father brought BB with him to meetings at which he disparaged SB. At one meeting, respondent-father talked over SB, and when SB began crying, respondent-father demeaned and degraded him. BB was present, even though the counselor had told respondent-father that BB should not be present. Respondent-father also used BB to validate his behaviors, and therapists testified that this behavior was not appropriate and that it was harmful for BB to be put in the middle of his father and brother. A juvenile court incorrigibility referee informed respondent-father that he should not continue to attempt to restrain the child, but respondent-father nevertheless continued doing so. The referee also told respondent-father that if there was conflict in the home, respondent-father should have BB leave the room and not be involved in any way, including by videotaping the incidents. Despite this, respondent-father asked BB to videotape his altercations with SB, and informed one caseworker that the child “just knows that’s required now.” Even at trial, respondent-father testified that he did not think that asking BB to videotape SB was “a major deal.” Respondent-mother testified that the conflict between respondent-father and SB began increasing in the summer of 2018. Neighbors testified about instances during which SB appeared at their homes, upset and in some instances injured. The police were called to respondents’ home multiple times, often by respondent-father after conflict had escalated with SB. Respondent- mother had concerns about how the conflict affected BB at times, and spoke with him about the conflict in the home. Respondent-mother sometimes removed BB from physical conflicts between SB and respondent-father where she believed BB might be in physical danger. Respondent-mother testified that she did not think that videotaping the incidents placed BB at a risk of harm. Throughout the proceedings, respondent-father adamantly refused even to consider any possibility that his own rigid, controlling, aggressive, and violent conduct might be contributing -2- to the family’s strife. Ultimately, after respondent-father continued to refuse to utilize safety plans and services, and as conflict continued in the home, the Department of Health and Human Services (DHHS) petitioned to remove the children from respondents’ care. BB was first returned to respondent-mother’s care and then also respondent-father’s care during the pendency of the trial. Ultimately, a jury found that one or more statutory grounds alleged in the petition had been proven against respondents regarding both children. The trial court ordered SB placed out of the home, but it placed BB with respondents and ordered them to engage in services.3 Although she was not particularly cooperative with DHHS, respondent-mother engaged in a domestic abuse intervention program and parenting classes. Respondent-mother admitted that she had stated that she would prefer that DHHS not visit the home, but she understood that it was required. Other than testimony concerning how respondent-mother had requested the DHHS policy concerning home visits, and testimony that respondent-mother told BB that he did not have to speak with DHHS if he did not want to, very little testimony concerned respondent-mother’s behavior during the worker’s attempts to visit BB. Respondent-mother testified that she had previously cared for BB without respondent-father in the home and that she was willing to engage in any option that returned BB to her home. There was little evidence that respondent-mother personally engaged in the commission of any physical or psychological abuse against SB. However, there was equally little evidence that respondent-mother went to any trouble to try to prevent respondent-father from engaging in the abuse. In contrast, respondent-father was removed from both domestic violence and parenting programs because he was verbally aggressive and uncooperative with staff. Additionally, respondent-father was actively disruptive during sessions he attended, and he insisted that “he already knew all he needed to know about parenting,” despite the significant evidence to the contrary. The caseworker testified about respondent-father’s behavior during both attempted home visits, including that respondent-father put the child between himself and the caseworker, shushed respondent-mother, and told the caseworker that the caseworker had “forced entry into [his] home.” In September 2019, petitioner sought to remove BB from the home on the basis that the foster care worker was unable to verify the child’s well-being because respondents had not allowed the worker to have a private conversation with the child. Ultimately, the trial court determined that BB was at a risk to his mental well-being considering the history of the case and respondents’ decision to use him as a “pawn” in their “legal chaos.” The trial court ordered BB removed from the home. II. ASSUMPTION OF JURISDICTION Both respondents assert that the trial court clearly erred by assuming jurisdiction over BB. We disagree. For the trial court to take jurisdiction over a child, the petitioner must prove by a preponderance of the evidence at least one statutory basis for jurisdiction as alleged in the petition. In re Sanders, 495 Mich 394, 404-405; 852 NW2d 524 (2014). This Court reviews for clear error the factfinder’s verdict regarding jurisdiction over children. See In re BZ, 264 Mich App 286, 295; 3 As noted, no party has appealed SB’s removal from respondent-father’s care. -3- 690 NW2d 505 (2004); In re Ramsey, 229 Mich App 310, 314; 581 NW2d 291 (1998). A finding is clearly erroneous if, after reviewing the record, this Court is definitely and firmly convinced that a mistake was made. In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010). One of the circumstances in which the trial court has jurisdiction over a child is when the child “is subject to a substantial risk of harm to his or her mental well-being . . . ” MCL 712A.2(b)(1). However, the state may not interfere in a parent’s relationship with his or her child merely because the parent is not a “model” parent and does not make perfect parenting decisions. Santosky v Kramer, 455 US 745, 753; 102 S Ct 1388; 71 L Ed 2d 599 (1982). “The doctrine of anticipatory neglect recognizes that how a parent treats one child is certainly probative of how that parent may treat other children.” In re AH, 245 Mich App 77, 84; 627 NW2d 33 (2001) (internal quotation omitted). However, “[t]he fact that there are statutory grounds to assume jurisdiction over one minor child does not automatically mean that there are statutory grounds to assume jurisdiction over a second minor child.” In re Kellogg, Minor, ___ Mich App ___, ___; ___ NW2d ___ (2020) (Docket No. 349930); slip op at 2. “Yet, even though jurisdiction may be properly assumed on the basis of the anticipatory neglect doctrine, that does not also mean that it will always be sufficient.” Id. at ___; slip op at 5. “[T]he probative value of such an inference is decreased by differences between the children, such as age and medical conditions.” Id. A. APPLICATION TO RESPONDENT-FATHER Respondent-father argues that there was insufficient evidence for the trial court to assume jurisdiction over BB as it relates to him because there was no evidence that he abused BB by asking him to videotape conduct that he was already being exposed to in the home. We disagree. Respondent-father’s argument itself recognizes that BB was being exposed to domestic violence in the home, and respondent-father was a significant cause of this conflict. Additionally, respondent-father created a significant risk of harm to BB’s mental well-being by taking him to meetings at which he emotionally abused SB. Multiple counselors testified that respondent-father had been told that bringing BB to those meetings was inappropriate, yet he persisted in doing so, reflecting his intransigent unwillingness to consider the effect of his conduct on others. Respondent-father also looked to BB to validate whatever he said about SB, which counselors testified was not appropriate, because it forced BB to choose between his family members. Additionally, relying on his young child for validation reflects a deep insecurity and instability already being inflicted upon BB. Respondent-father was also told by a juvenile court referee not to have BB videotape his conflicts with SB, but, pursuant to his established pattern, he continued to do so, even stating to a caseworker that BB “just knows that’s required now.” Respondent- father’s refusal to utilize safety plans escalated the conflict in the home. Finally, notwithstanding the evidence that BB had not yet suffered any specifically discernable mental harm, BB was beginning to display some of the same disturbing and dangerous tendencies toward misconduct as respondent-father. Additionally, the doctrine of anticipatory neglect is highly probative under the circumstances. Respondent-father homeschooled and coached both of the children in sports. Most pertinently, there was evidence that, in March 2018, BB attempted to leave an activity while upset, -4- but respondent-father picked up and carried BB back to the activity. This behavior was disturbingly similar to how respondent-father treated SB. As noted, respondent-father has consistently refused to entertain any possibility that he even might be any part of the problem. We are not definitely and firmly convinced that the trial court made a mistake when it assumed jurisdiction over BB as it related to respondent-father. B. APPLICATION TO RESPONDENT-MOTHER Respondent-mother argues that the trial court’s decision to assume jurisdiction over respondent-mother was clearly erroneous because she actively attempted to remove BB from confrontations and there was no evidence that BB actually suffered harm to his mental well-being. Respondent-mother also argues that evidence of anticipatory neglect is not very probative in her case. We recognize that the evidence as to respondent-mother is less blatant and unambiguous than it is as to respondent-father. Nevertheless, we disagree. The evidence does not tend to show that respondent-mother directed BB to videotape the violence between SB and respondent-father. However, respondent-mother was disturbingly unconcerned by BB doing so. The fact that respondent-mother removed BB from situations in which she believed BB was at risk of physical harm is commendable. However, she made no effort to prevent respondent-father from inflicting psychological harm upon BB by using BB as a validation tool and using BB as a psychological weapon against SB. We recognize that the doctrine of anticipatory neglect is slightly less probative where BB and SB have different legal relationships to respondent-mother. However, she stated that she considered SB her stepson, and in any event, her disinterest in the physical and mental health of a child who was de facto under her care cannot seriously be considered exclusive to a specific child. The sheer extent and egregiousness of respondent-father’s behavior precludes any excuse for respondent-mother simply standing by and not only allowing the abuse to happen to SB, but allowing respondent-father to involve BB ever more deeply in that abuse. Respondent-mother may not have contributed to harming the children in quite the same manner as respondent-father, but she was unambiguously a full and equal partner in contributing to the overall toxicity of the household. Although respondent-mother yelling at service providers and police officers may not per se constitute unfit behavior, see Kellogg, ___ Mich App at ___; slip op at 4, it must be considered in light of the rest of her conduct. In that context, it further suggests that she was likely a less passive participant in abusing the children than it might otherwise seem. In conclusion, we find no clear error in the trial court’s assumption of jurisdiction over both children as to both respondent-mother and respondent-father. III. THE CHILD’S TESTIMONY Respondents argue that the trial court erred by excluding BB from testifying at the jury trial. The trial court excluded BB’s testimony because respondents violated its order not to discuss the case in front of BB by taking BB, who was then represented by a LGAL, to discuss the case with respondents’ own attorneys. We disagree. Disallowing a witness is a severe punishment, but the trial court amply considered all of the requisite factors and more before doing so. See Duray Dev LLC v Perrin, 288 Mich App 143, -5- 164-165; 792 NW2d 749 (2010). Respondents’ violation of the court’s order was flagrant and egregious, and there were indications that respondents did so repeatedly. Indeed, respondents had a history of flouting directions from courts, referees, workers, professionals, and essentially everyone else; and in fact, they often actively worked to undermine those directions. Respondents also repeatedly refused to permit BB to speak privately with the lawyer-guardian ad litem. BB’s meeting with respondents’ attorneys undermined BB’s credibility and reliability, and the jury would need to be informed of the meeting. The trial court properly concluded that, under the totality of the circumstances, the most appropriate remedy was to preclude BB from testifying. The trial court also properly instructed the jury not to draw any adverse inference from BB not testifying. See People v Unger, 278 Mich App 210, 235; 749 NW2d 272 (2008). We conclude that the trial court’s ruling was proper in light of a problem that respondents knowingly, directly, and unnecessarily created for themselves. IV. EXPERT TESTIMONY Respondent-father argues that the trial court erred by improperly excluding the testimony of a psychologist who would have testified that there had been no harm to BB’s mental well-being. We decline to consider whether the trial court improperly excluded this testimony, because we conclude that any error was harmless. This Court will not reverse on the basis of an evidentiary error unless the error “resulted in a miscarriage of justice.” People v Feezel, 486 Mich 184, 192; 783 NW2d 67 (2010) (quotation omitted). It must appear more likely than not that the error was outcome determinative and undermined the reliability of the verdict, when considered in light of the other evidence. Id. Because we find it unlikely that the excluded evidence would have affected the outcome of the proceedings, we need not address whether the exclusion was proper. Petitioner’s theory of the case was not that BB had actually been harmed by respondents’ conduct, but that BB was at a significant risk of future harm. Petitioner emphasized that how respondent-father was treating SB was probative of how he would treat BB in the future. Petitioner presented strong evidence of respondent-father’s treatment of SB and directly demonstrated that respondent-father had already engaged in that conduct with BB on one occasion. As discussed above, the evidence unambiguously shows that respondent-mother was unwilling to curb respondent-father’s harmful conduct and was, at best, simply more subtle at inflicting harm herself. Thus, the gravamen of petitioner’s argument was that the past would predict the future, not that the future had already transpired. The psychologist opined that BB was doing “relatively well” despite some degree of stress and discomfort with aggressive feelings, and “was symptom free, in terms of symptoms or problems that may be apparent to others.” The psychologist further opined that although BB had been exposed to potentially distressing events, BB’s thinking, mood, and behavior were within a normal range. Nevertheless, as noted, petitioner’s theory of the case was not that BB had already sustained any mental harm. Rather, petitioner’s theory was that the evidence showed BB would be mentally harmed in the future. We do not find it reasonably likely that the outcome of the case would have differed had evidence been presented that BB had not yet suffered any mental harm, a fact not meaningfully disputed. -6- V. REMOVAL Respondents argue that the trial court clearly erred when it determined that there were circumstances to warrant an emergency removal of BB from the home. We disagree that removal was unwarranted. Generally, this Court reviews for clear error the trial court’s findings of fact during child protective proceedings. Mason, 486 Mich at 152. A finding is clearly erroneous if, after reviewing the record, this Court is definitely and firmly convinced that a mistake was made. Id. The trial court did not issue an emergency order of removal. A trial court may remove a child from the home “through the use of an order before or after an emergency removal, at the preliminary hearing, or at a dispositional review hearing.” In re McCarrick/Lamoreaux, 307 Mich App 436, 459; 861 NW2d 303 (2014) (citations omitted). Immediate removal is warranted when exigent circumstances require immediate action. Sanders, 495 Mich at 406 n 3. In contrast, MCR 3.974(B)(2) provides that if the child is under the jurisdiction of the court, the trial court may order the child removed from the home if a supplemental petition is filed, the court conducts a hearing on the petition, and the parents are given notice and a hearing. MCR 3.974(B)(2). In this case, petitioner filed a supplemental petition seeking to remove BB from respondents’ care. Thus, this case did not concern an emergency removal, so we will not consider any argument premised on an emergency removal. A trial court may order a CPS worker to take a child into protective custody after finding that (1) “[t]he child is at substantial risk of harm or is in surroundings that present an imminent risk of harm and the child’s immediate removal from those surroundings is necessary to protect the child’s health and safety,” (2) the circumstances warrant issuing an order under MCR 3.974(C) if the child is under the court’s jurisdiction, (3) reasonable efforts were made to prevent the child’s removal, (4) no other remedy than protective custody will protect the child, and (5) continuing to reside in the home is contrary to the child’s welfare. MCR 3.963(B)(1)(a) to (e). In this case, petitioner sought to remove the child from respondents’ care because they were not allowing DHHS to ensure BB’s safety and well-being. The caseworker testified that respondent-father would not allow him to interview BB alone. Respondent-mother again seems to have been less direct, although she did advise BB that he did not need to speak to the worker if he did not want to. One of the major concerns in this case was suspected mental abuse and combative behavior between respondent-father and SB, and the trial court directly observed that BB was mimicking respondent-father’s “hostile, aggressive, disruptive, combative, uncooperative behavior” at a court hearing. Thus, there was substantiated cause for concern as to BB’s psychological safety. As noted, respondent-mother was clearly complicit. Additionally, respondent-father was not following his case service plan. When a parent fails to participate in a service plan, it provides evidence that the parent cannot properly care for the child and that the child may be harmed in the parent’s home. See In re White, 303 Mich App 701, 710-711; 846 NW2d 61 (2014). Respondent-father was removed from domestic abuse intervention and parenting class services because of his verbal aggression and refusal to cooperate with those programs. Respondent-father’s refusal to engage in services designed to address the risk of harm to BB was evidence that the child was at a risk of harm if he stayed in respondent- -7- father’s home. Once again, respondent-mother was somewhat less arrogant, defiant, and brazenly disruptive than respondent-father. However, the record shows that she was an equal participant in attempting to undermine court orders and directives or advice from workers, and, as noted, she was clearly complicit in the abuse of both children. Under the exceptional circumstances of this appalling case, respondent-mother’s own misconduct is simply too intertwined with respondent- father’s misconduct to disentangle, even if we were to presume that it was arguably less egregious. We conclude that the trial court did not clearly err by removing BB from respondents’ care. VI. ATTORNEY SANCTIONS Attorney Crawford argues that the trial court clearly erred by sanctioning him on the basis that he did not conduct a factual inquiry before petitioning to represent the child, and on the basis that his petition was not supported by law. Crawford additionally argues that the trial court violated his right to due process by imposing attorney fees on him without a hearing. We affirm the trial court’s decision to sanction Crawford for his unauthorized appearance as the child’s attorney, but we remand for a limited and conditional opportunity for Crawford to challenge the amount of the fee award. This Court reviews for clear error a trial court’s finding regarding whether a claim is frivolous. Kitchen v Kitchen, 465 Mich 654, 661; 641 NW2d 245 (2002). This Court reviews for an abuse of discretion the trial court’s award of attorney fees and costs. Smith v Khouri, 481 Mich 519, 526; 751 NW2d 472 (2008). The trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes. Id. When an attorney signs a document, the attorney certifies that (1) he or she has read the document, (2) to the best of the person’s knowledge “formed after a reasonable inquiry,” the document is well-grounded in fact and “warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law,” and (3) the purpose of the document is not improper. MCR 1.109(E)(5). The trial court shall sanction a party for violating this rule, and the sanction “may include an order to pay the other party or parties the amount of the reasonable expenses incurred because of the filing of the document, including reasonable attorney fees.” MCR 1.109(E)(6). An attorney commits misconduct by purporting to be the attorney for a minor child when he or she is not. In re Shaffer, 213 Mich App 429, 436-437; 540 NW2d 706 (1995). The proper procedure is for an attorney to petition to represent a child without entering an unauthorized appearance. Id. at 437. “Only if such a petition is granted should [an attorney] purport to represent itself as an attorney at law for a minor.” Id. In this case, Crawford filed a motion that stated: “NOW COMES [BB], by and through his attorneys, KARLSTROM COONEY, LLP.” Because caselaw clearly states that a person shall not make an unauthorized appearance on behalf of a child before petitioning to represent the child, Crawford’s motion was not warranted by existing law. -8- We affirm the trial court’s decision because we agree with its finding that Crawford’s motion was not warranted by existing law.4 However, the trial court awarded the guardian ad litem attorney fees without affording Crawford the opportunity for a hearing. Due process requires that a party receive notice of the proceedings against it and a meaningful opportunity to be heard. Al-Maliki v LaGrant, 286 Mich App 483, 485; 781 NW2d 853 (2009). The essence of due process requires fundamental fairness. Id. “Where a court considers an issue sua sponte, due process can be satisfied by affording a party an opportunity for rehearing.” Id. at 485-486. The trial court must hold an evidentiary hearing when an amount of attorney fees is challenged if a party timely requests it. Peterson v Fertel, 283 Mich App 232, 242; 770 NW2d 47 (2009). We disagree that Crawford was necessarily entitled to formal written notice of the hearing at which the trial court ruled on the request for sanctions. However, we agree that Crawford was entitled to actual notice sufficient to permit him to show up to the hearing, irrespective of how that notice came to be communicated. Crawford was aware of the LGAL’s request for attorney fees and argued against a fee award. However, the trial court ruled on Crawford’s motion to be appointed counsel for BB and then asked Crawford “to bow out here now” in the middle of a review hearing. It was not until the very end of the hearing, after being reminded by the LGAL, that the trial court stated it would take the attorney fee request under advisement and scheduled a followup hearing. We note that the lower court register of actions does not indicate that notice of the followup hearing was filed or served on anyone. The transcript of the review hearing does not indicate whether Crawford actually left the courtroom after being asked to “bow out,” although it does show that he had no further direct involvement in the proceedings. We do not construe the trial court’s statement as a requirement to leave the courtroom, only to leave the case. If Crawford remained in the courtroom until the end of the hearing, then he was actually aware of the followup hearing. In that case, he received constitutionally adequate actual notice, and his absence from the followup hearing was his own choice and constitutes a waiver. If Crawford left the courtroom but was told about the followup hearing by someone, perhaps respondents, then he again received constitutionally adequate notice and waived his right to challenge the sanctions by failing to show up. However, if Crawford left the courtroom and nobody bothered to tell him about the followup hearing, then we would agree that Crawford was deprived of his constitutional right to notice and an opportunity to be heard. 4 We find it to be a closer question whether Crawford made a sufficient factual inquiry before filing his motion. Petitioning to be appointed legal counsel for a child is not, itself, necessarily improper. In re Shaffer, 213 Mich App at 436-437. Crawford clearly engaged in some investigation, including reviewing recordings and speaking with BB. We are skeptical whether Crawford understood that by becoming involved, he was wading into respondents’ self-dug cesspit of manipulation and flouting the trial court. The trial court also wondered, reasonably, whether Crawford had “any idea what [he] just stepped into.” We might be inclined to give Crawford the benefit of the doubt that he is simply another of respondents’ victims, but the trial court had a better opportunity to observe the demeanor of the parties, so we decline to find error in its holding. McGonegal v McGonegal, 46 Mich 66, 67; 8 NW 724 (1881). -9- On this record, we are unable to determine what occurred, and the trial court’s rejection of Crawford’s motion for being void is unhelpful. Therefore, we must remand this matter for the limited purpose of granting Crawford a conditional opportunity to file a motion for reconsideration of the amount of sanctions. If Crawford avails himself of that opportunity, the trial court shall first determine whether Crawford actually had advance knowledge of the hearing at which the court ruled on the amount of sanctions. If Crawford did have such actual advance knowledge, via any means or for any reason, the court shall deny Crawford’s motion. Furthermore, Crawford may only challenge the amount of sanctions, because as discussed above, the imposition of sanctions itself is mandatory. MCR 1.109(E). We impose no other restrictions or conditions on how the trial court should resolve the motion. VII. CONCLUSIONS In Docket No. 351314, we affirm the imposition of sanctions, but we remand for the limited and conditional purpose of permitting Crawford to file a motion for reconsideration of the amount only of sanctions imposed by the trial court, as described above. We retain jurisdiction in Docket No. 351314 only. In Docket Nos. 349859, 349897, and 354343, we affirm. /s/ Amy Ronayne Krause /s/ Deborah A. Servitto /s/ James Robert Redford -10- Court of Appeals, State of Michigan ORDER Amy Ronayne Krause In re Barrett Minors Presiding Judge Docket No. 351314 Deborah A. Servitto LC No. 18-015854-NA James Robert Redford Judges Pursuant to the opinion issued concurrently with this order, this case is REMANDED for further proceedings consistent with the opinion of this Court. Specifically, the remand is limited to permitting attorney Timothy Crawford to file a motion for reconsideration as to the amount of sanctions imposed on him for filing a frivolous motion. We retain jurisdiction. Attorney Crawford shall file his motion in the trial court or notice that he elects to waive the opportunity to file the motion within 28 days of the Clerk’s certification of this order, and the proceedings on remand shall thereafter be given priority until they are concluded. The proceedings on remand are limited to the issue stated in the opinion. The parties shall promptly file with this Court a copy of all papers filed on remand. Within seven days after entry, appellant shall file with this Court copies of all orders entered on remand. The transcript of all proceedings on remand shall be prepared and filed within 21 days after completion of the proceedings. ______________________________ Presiding Judge June 4, 2020	{ "pile_set_name": "FreeLaw" }
696 F.2d 981 32 Fair Empl.Prac.Cas. 1768,30 Empl. Prac. Dec. P 33,178Clarkev.American Cyanamid Co. 82-5005 UNITED STATES COURT OF APPEALS Third Circuit 11/19/82 1 D.N.J. AFFIRMED	{ "pile_set_name": "FreeLaw" }
706 F.Supp. 722 (1988) Beverly LAVETTER, et al., Plaintiffs, v. INTERNATIONAL PLAYTEX, et al., Defendants. No. CIV 84-788-TUC-RMB. United States District Court, D. Arizona. January 25, 1988. Douglas H. Clark, Jr., Scott H. Gan, Mesch, Clark & Rothschild, Tucson, Ariz., for plaintiffs. 723 Richard J. Woods, Nicholas J. Wallwork, O'Conner, Cavanagh, Anderson, Westover, Killingsworth & Beshears, P.A., Phoenix, Ariz., for defendants. William H. Robinson, Jr., Adele Baker, Wright, Robinson, McCammon, Osthimer & Tatum, Richmond, Va., for defendants & third party plaintiff. Gary L. Stuart, Jay A. Fradkin, Jennings, Strouss & Salmon, Phoenix, Ariz., for third-party defendant. ORDER BILBY, Chief Judge. This Order contains the Court's rulings on the Plaintiffs' Motion for Partial Summary Judgment as to Liability Issues, Defendant's Motion for Summary Judgment and Defendant's Motion for Partial Summary Judgment as to Punitive Damages. Plaintiffs' Motion for Partial Summary Judgment as to Liability Issues Plaintiffs filed a Motion for Partial Summary Judgment as to liability issues which, Plaintiffs allege, were previously litigated in O'Gilvie v. International Playtex, Inc., 609 F.Supp. 817 (D.C.Kan.1985), aff'd in part and rev'd in part 821 F.2d 1438 (10th Cir.1987). Plaintiffs argue that Defendant should be precluded from re-litigating issues determined in that case by offensive use of collateral estoppel. Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979). Although the Court in Parklane approved the offensive use of collateral estoppel, the Court also stated that the use of the doctrine should not be permitted when there are prior inconsistent judgments. "Allowing offensive collateral estoppel may ... be unfair to a defendant if the judgment relied upon as a basis for the estoppel is itself inconsistent with one or more previous judgments in favor of the defendant." Parklane, 439 U.S. at 330, 99 S.Ct. at 651. The case upon which the Plaintiffs base their argument for offensive use of collateral estoppel is the only one of six cases in which there was a verdict for the plaintiff. In view of the fact of prior inconsistent verdicts, this is not an appropriate instance for offensive use of collateral estoppel. Defendant's Motion for Summary Judgment In its Motion for Summary Judgment, Defendant argues that it is entitled to summary judgment in this case because of strict compliance with the federal regulations regarding the user warning labeling requirements of 21 C.F.R. § 801.430. Defendant argues that the federal regulations preempt any other safety requirements that plaintiff may allege under state law. The Medical Device Amendments of 1976 of the Federal Food, Drug, and Cosmetic Act of 1938 mandates that "no State ... may establish ... with respect to a device ... any requirement ... which is different from or in addition to, the requirement applicable under this chapter to the device ... which relates to the safety or effectiveness of the device." 21 U.S.C. § 360k(a). The United States Food and Drug Administration, in regulations promulgated under this law, further mandated that state common-law decisions that impose "different" or "additional" requirements are expressly prohibited. 21 C.F.R. § 808.1. The preemption argument has been ruled on in six previous Toxic Shock Syndrome tampon cases. In only one case, the oldest of the six cases, Muzatko v. International Playtex, Inc., No. 85-C-1540 (E.D.Wis. May 14, 1987), was a decision against preemption found. In that case, the court found no preemption by reasoning that preemption had been disallowed in O'Gilvie. However, the issue of preemption was not raised in that case. The unanimous opinions by the courts in the other five cases are convincing to this court. Thus this court finds that the Plaintiffs' claim is preempted by federal law. After a review of the case, the Court finds that this constitutes a complete disposition of the case. Therefore, IT IS ORDERED that the Plaintiffs' Motion for Partial Summary Judgment is DENIED. 724 IT IS FURTHER ORDERED that the Defendant's Motion for Summary Judgment is GRANTED. IT IS FURTHER ORDERED that the Defendant's Motion for Partial Summary Judgment is DENIED as moot. IT IS FURTHER ORDERED that the Third-Party Defendant claim is DENIED as moot. IT IS FURTHER ORDERED that the case is DISMISSED with prejudice.	{ "pile_set_name": "FreeLaw" }
359 Mass. 591 (1971) 270 N.E.2d 826 JOHN SANDS vs. JESSE ARRUDA & another. Supreme Judicial Court of Massachusetts, Bristol. May 5, 1971. June 8, 1971. Present: TAURO, C.J., SPALDING, CUTTER, QUIRICO, & BRAUCHER, JJ. Edward F. Harrington for the plaintiff. Leonard Alfonso for the defendants. 592 QUIRICO, J. This is a suit in equity seeking the specific performance of a written agreement to execute and deliver a lease of real estate. The case is before us on a report by a justice of the Superior Court for the consideration and determination of this court of his decree sustaining the defendants' demurrer to the bill. We summarize the allegations of the bill to the extent necessary for this decision. On July 17, 1967, the plaintiff and the defendants signed an agreement under seal. The pertinent parts of the agreement are quoted below.[1] In reliance upon the written agreement the plaintiff spent a substantial amount of money in decorating and paneling the walls of the premises to be leased and in furnishing the beauty shop. All work on the premises was completed in November, 1967, and the plaintiff moved in on November 15 and started to operate a beauty shop there. No lease had been executed by that date. The plaintiff on many occasions orally requested the defendants to provide him with a lease in accordance with the terms of their written agreement of July 17, 1967, and the defendants failed to answer those requests. On May 14, 1969, the plaintiff sent a similar request in writing to the defendants by registered mail. On May 24, 1969, the plaintiff caused a substantially similar written request to be sent by his attorney to the defendants. This letter further 593 stated that the plaintiff would proceed with court action if necessary to obtain the lease to which he was entitled under the agreement. In the early part of June, 1969, the defendants submitted to the plaintiff a proposed lease which did not comply with the written agreement of July 17, 1967, in the following respects: (a) it included clauses and matters not included in the written agreement to give a lease; and (b) it omitted the renewal option and the requirements that the defendants "remove snow from the sidewalk fronting said shop" and that they "provide suitable heat by baseboard hot water heat." On June 13, 1969, the plaintiff's attorney wrote to the defendants stating that the proposed lease did not comply with the written agreement in the above respects and in a provision relating to water rates. He requested that they prepare a new lease in accordance with the agreement and informed them that if they did not do this he would bring a suit in equity for specific performance of the agreement. On June 25, 1969, the defendants' attorney sent the plaintiff's attorney a letter enclosing a proposed amendment to the lease by adding a provision for an option by the lessee to renew for an additional term of five years and a provision for the removal of snow. The same letter stated that if the proposed lease and amendment were not accepted and signed in the form presented, he would, at the direction of his clients, "take all necessary legal steps to evict" the plaintiff. Since signing the agreement of July 17, 1967, the plaintiff has been ready, willing and able to carry out all of its terms and is willing and able to pay the required rent. He has carried out all of the terms of the agreement except that he has not signed a written lease for the reason that the defendants have not prepared one in the form required by the agreement. The defendants have refused and still refuse to prepare such a lease. The plaintiff entered his bill in this case on July 7, 1969. The defendants demurred to the bill alleging the following 594 reasons: "1. The plaintiff has not stated in his bill such a cause as entitles him to any relief in equity against these defendants. 2. The bill does not set forth facts sufficient to warrant relief to the plaintiff named in the bill of complaint." After hearing, the trial judge sustained the demurrer and reported his action to this court. We shall consider separately the several arguments advanced by the defendants in support of their demurrer. 1. The defendants argue that because the document signed by the parties on July 17, 1967, contemplated that they would execute a new instrument in the future, we should infer that they should not be bound until that future document is signed. The parties agreed in writing on July 17, 1967, to execute a lease in the future, and there is nothing in what they signed which permits an inference that it would have no effect until they signed the ultimate lease. Such an inference would render their preparation and execution of a formal agreement on July 17, 1967, meaningless. From the moment the parties signed that document they were contractually bound to execute a lease in accordance with its terms, with the plaintiff as the lessee and the defendants as the lessors. No contract otherwise binding is to be treated as a nullity solely because it is a contract to execute still another document or instrument in the future. Every agreement for the purchase and sale of real estate contemplates the future execution of a deed and perhaps mortgages and other instruments, but such agreements are not by reason thereof alone unenforceable. 2. The defendants argue that the agreement signed by the parties on July 17, 1967, is not enforceable because it is not a complete contract as to the item of the rent payable during the second five year period if the lease is renewed and as to the item of the amount payable by the lessee for water used on the leased premises. In our view the agreement is enforceable despite the questions raised by the defendants. The renewal, if any, is at the option of the plaintiff lessee only. If he exercises the option, he has agreed by the 595 document which he signed on July 17, 1967, that he will pay rent at the rate of $125 a month for the renewal period unless the defendant lessors agree to accept a lesser amount. The defendants knew when they signed the agreement, which included the renewal option, that the maximum rent they could receive during the renewal period was $125 a month, unless they agreed to accept less. They are not required to renew at a lower rent. The agreement signed by the parties provided that the defendant lessors "agree to ... provide water to the extent of reasonable and usual consumption," and that the plaintiff lessee "agrees to pay for the use of water over and above the reasonable limit to be agreed upon by the parties." In our view the parties recognized by this language that the use of the leased premises for a beauty shop would result in the use of more water than if they were used for a purpose requiring water only for the usual basic washing and sanitary needs of the occupants of the premises. The interpretation of language of a written document is a matter of law for the court. We interpret this language to mean that the defendants agreed to provide, as included within the $125 monthly rent, a quantity of water equal to that which would be used for an ordinary tenant other than one operating a beauty shop, and that the defendants also agreed to provide any quantity of water which the plaintiff required in excess thereof but that the plaintiff was to pay for such excess.[2] The use of the words, "above the reasonable limit to be agreed upon by the parties," cannot be seized upon by either the plaintiff or the defendants as permitting them stubbornly or unreasonably to refuse to agree on "the reasonable limit" and thereby deprive the other of rights under a lease which will run for at least 596 five years at an annual rent of $1,500 and possibly for an additional five years for not more than the same annual rent. The language of the agreement with reference to the defendants' obligation to furnish water and the plaintiff's obligation to pay for portions of it is no less clear or definite than the language of many leases requiring the lessor to furnish reasonable heat. Such provisions have been upheld and enforced in many cases.[3] For all of the reasons stated above, the written agreement of July 17, 1967, did not involve the areas or degrees of incompleteness, indefiniteness or vagueness involved in Rosenfield v. United States Trust Co. 290 Mass. 210, relied on by the defendant, and in Saxon Theatre Corp. of Boston v. Sage, 347 Mass. 662, and Riedel v. Plymouth Redevelopment Authy. 354 Mass. 664. 3. The defendants advanced a further argument against the sufficiency of the bill, and it is that the agreement of July 17, 1967, is not sufficient to satisfy the statute of frauds relating to interests in land. G.L.c. 259, § 1, Fourth. The sole basis for this argument is that "there are terms remaining to be determined, namely rent for the second five-year term and the amount of water to be paid for by the plaintiff," and, therefore, "there is no completed contract." This is the same argument which we have already disposed of above as to both items. The writing contains the full agreement of the parties, and we have held that it sufficiently states an enforceable agreement. The writing involved in this case is a formal agreement, and not a mere memorandum of an oral agreement, and it is 597 signed by the parties to be charged. It satisfies the requirements of the statute. Pearlstein v. Novitch, 239 Mass. 228, 230-231. Cousbelis v. Alexander, 315 Mass. 729. Hook Brown Co. v. Farnsworth Press, Inc. 348 Mass. 306, 310. A.B.C. Auto Parts, Inc. v. Moran, ante, 327, 329, and cases cited. We do not reach the question whether the fact that the plaintiff took possession of the premises in November, 1967, made improvements thereon, and has continued in possession to this date takes the case out of the statute of frauds. The decree sustaining the demurrer is reversed. A new decree is to be entered overruling the demurrer. So ordered. NOTES [1] "Lessors agree to exercise reasonable diligence in the completion of the shop approximately 14 1/2 feet by 45 feet for use as a beauty shop, tentatively numbered 240 Rockdale Avenue, New Bedford, and to furnish or provide a toilet with lavatory, overhead lights, electric wiring with receptacles for connection with usual beauty equipment and wall lights. Lessors further agree to provide water and drain piping and surface the floor with linoleum tile throughout except for area to be covered by tenant with rug or carpet. "Upon completion of said shop lessors agree to give tenant a five year lease of said shop with option to renew said lease for an additional five-year period, upon the same terms except for the rent which shall be agreed upon by the parties, but in no event to exceed the rent stipulated in the original lease. Rent in the initial lease shall yield $125.00 monthly in advance. Lessors agree to remove snow from the sidewalk fronting said shop and to provide water to the extent of reasonable and usual consumption. Tenant agrees to pay for the use of water over and above the reasonable limit to be agreed upon by the parties. Lessors agree to provide suitable heat by baseboard hot water heat. "Exercise of the option to renew shall be in writing and to take place not later than 30 days prior to expiration of the original lease." [2] In preparing the proposed lease which they sent to the plaintiff, the defendants apparently interpreted the agreement in this way. They included a provision that "The Lessee agrees to pay, as additional rent, an amount equal to excess over eighteen ($18) dollars of all water bills rendered for water used in the demised premises." The sum of $18 would seem to be about the amount of the basic annual rate for water which might be used if the premises were occupied for a purpose which did not require the use of water in connection with the products or services sold. [3] In Jones v. Parker, 163 Mass. 564, 566, the lessor covenanted "during the term of this lease, reasonably to heat and light the demised premises." In R.H. Macy & Co. Inc. v. Fall River, 323 Mass. 624, 625, the lessor covenanted "`to furnish sufficient heat to reasonably heat the said premises in accordance with the proper or customary use of such building....'" In A & S Prod. Corp. v. Parker, 334 Mass. 189, 190, the lessor covenanted "`... to use due diligence in furnishing heat for the premises hereby demised during the usual business hours during the heating season....'" In Charles E. Burt, Inc. v. Seven Grand Corp. 340 Mass. 124, 126n, the lessor covenanted to "furnish heat at all reasonable hours during the heating season." See New York Cent. R.R. v. Stoneman, 233 Mass. 258, 260, S. C 236 Mass. 81.	{ "pile_set_name": "FreeLaw" }
60 F.Supp. 820 (1945) UNITED STATES ex rel. HALL v. RAGEN, Warden. No. 44 C 349. District Court, N. D. Illinois, E. D. March 23, 1945. Paul E. Thurlow, of Chicago, Ill., for relator. George F. Barrett, Atty. Gen., for respondent. SHAW, District Judge. The petitioner in this case is a prisoner in the Illinois State Penitentiary at Joliet, Illinois, and by leave of Court has brought this suit in forma pauperis. The Court appointed Paul Thurlow of the Chicago Bar as amicus curiæ, and Mr. Albert A. Warner of the Central Howard Association of 821 Chicago voluntarily associated himself with Mr. Thurlow in representing the petitioner. The petitioner contends that he was denied due process of law in the Circuit Court of Macon County, Illinois, wherein he was convicted of robbery unarmed in connection with purse-snatching and was sentenced to an indeterminate term of imprisonment of one to twenty years in the Illinois State Penitentiary. He has exhausted his remedies in the Courts of Illinois and comes to this Court claiming the protection of the 14th Amendment. He complains of a number of matters in connection with his trial which are not open for consideration in this Court because they could only be inquired of by writ of error and he is limited in this case to the sole question of whether or not he has been denied due process of law in connection with his conviction. On this point it is his contention that, in practical effect, he was denied the benefit of counsel on his trial and nothing more can be considered by me. In his petition petitioner alleges that his attorney was engaged in numerous altercations with the Trial Court and the Assistant State's Attorney which necessarily prejudiced him in the minds and presence of the jury; that during the course of the trial the Judge called his attorney and the Assistant State's Attorney into his chambers and told the petitioner's attorney that it would be useless for him to proceed further with the case, and that thereupon petitioner's attorney left the Court; that the trial proceeded without him and he was convicted; that he was not represented by any counsel in the subsequent proceedings which would involve making a motion for a new trial and arrest of judgment. It appears from the petition that this case was taken to the Supreme Court of Illinois on writ of error and the judgment was there affirmed on motion. That Court could have taken no other action because there had never been any motion for a new trial in the Trial Court. In Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 1025, 82 L.Ed. 1461, 146 A.L.R. 357, the Supreme Court of the United States says: "A judge of the United Statesto whom a petition for habeas corpus is addressed should be alert to examine `the facts for himself when if true as alleged they make the trial absolutely void.'" Pursuant to this admonition from our highest court I have ordered the writ to issue in this case and proceeded to examine the facts for myself to determine if they are true as alleged, because I am convinced that if they are true the trial was absolutely void. I am aware of the holding of the United States Supreme Court in Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L. Ed. 1595, in which it is held that the due process required by the 14th Amendment does not incorporate, as such, the specific guarantees found in the 6th Amendment that are binding on Federal Courts as decided in Johnson v. Zerbst, supra. Nevertheless, it is a requirement of due process under the constitution of Illinois that an accused criminal shall be given the benefit of counsel, and it is clearly apparent from the decision in Betts v. Brady, supra, that had such a requirement been present in the laws of Maryland the decision in that case would have been necessarily different. It is to be noted that the opinion in the Betts v. Brady case reveals at some length the substances of the provisions of the constitutions of the original thirteen states and gives controlling weight to those provisions as they existed at the time of the adoption of the 14th Amendment. Indeed, the United States Supreme Court in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527, and many other cases has frequently stated that the right to counsel in a criminal proceeding is fundamental. I take it that as a fundamental right it is guaranteed in the Federal Courts by the 6th Amendment and in the State Courts by the 14th. On this theory of the case the question necessarily comes to a Federal Court for examination and decision under the Federal Constitution, and to decide this question we must review the facts as apparent on this hearing. On the hearing in this case the petitioner testified in his own behalf but produced no other evidence beyond his own testimony and his sworn petition. It was proved and the Court could take judicial notice of the fact that other witnesses for the petitioner would have had to be brought from Decatur, Illinois, approximately 200 miles from Chicago where this hearing was held, and without funds such witnesses could not be produced. Neither were there any funds available for stenographic and other charges necessary for 822 taking depositions. The Assistant State's Attorney who tried the defendant in the Circuit Court of Macon County was present in Court and testified, as will appear from the record. The Trial Judge who tried the defendant was also present in Court, as will appear from the record, but did not testify. After the Assistant State's Attorney had testified the Court announced from the bench that he took notice of the presence of the Honorable Charles Y. Miller, Judge of the Circuit Court of Macon County, Illinois, and asked the Assistant Attorney General, representing the respondent, if he cared to produce him as a witness. The Attorney General made no reply. The Attorney General did not call him as a witness and the Court announced that in view of the presence of the Trial Judge in Court this Court would assume as true the statements of the sworn petition unless they were further explained by the Trial Judge, and announced a recess to give the Attorney General time to decide whether or not he should call him. The hearing was later resumed and the Trial Judge did not testify. I, therefore, assume that the testimony of the petitioner and the statements of the sworn petition are true as alleged except and to the extent that they may have been specifically controverted by the Assistant State's Attorney, as will be noted. The only thing approaching a controversy as to the facts arises from the testimony of Fred G. Leach, who had been the Assistant State's Attorney who tried this case, and that was in a very slight and somewhat immaterial degree. His testimony may as well be considered as corroborative as contradictory to that of the petitioner. So far as the transactions in open court are concerned, his testimony is entirely corroborative of the testimony of the petitioner. He testified that in the Judge's chambers the Judge explained to Mr. Buxton that he was sustaining objections to the questions and that he felt to continue with that argument would prejudice the defendant. The petition in this case with its supplements and amendments is of considerable length and by reason of its inexpert preparation is somewhat confusing. It was prepared by the petitioner himself, for the most part printed in ink rather than being written or typewritten, and has required considerable care to try and sort out the material from the immaterialthe competent from the incompetent and the relevant from the irrelevant. The best that I have been able to do with it is to draw certain conclusions of fact from the entire petition, the numerous exhibits and the testimony taken in open court. My conclusions from all of these sources may be summarized. The petitioner Hall was charged with unarmed robbery by indictment of the Circuit Court of Macon County, Illinois, because of a pursesnatching incident involving himself and another defendant and was duly indicted and convicted on this charge. When he was arraigned for trial, being without funds, an attorney was appointed for him but never interviewed him or took any part in the subsequent proceedings. Thereafter the petitioner's mother employed one T. C. Buxton, a doctor who was at that time licensed to practice law but who has since been disbarred, to represent the petitioner at the trial. There is no report of proceedings at that trial nor any stenographic report of the evidence, so I have little to go by as to what actually happened. However, it is clear and I do find that at the conclusion of the case for the State a witness for the defendant was called to the stand but never was permitted to testify. The Attorney Buxton repeatedly asked incompetent questions to which objections were repeatedly sustained and the matter degenerated into a violent argument between Buxton, the Assistant State's Attorney and the Court. The petitioner testified, and the Trial Judge did not deny, that the Judge got mad and pounded the bench and thereupon called Buxton and the Assistant State's Attorney into his chambers. When they came out of chambers, Attorney Buxton told the petitioner that he could do no further good by going on with the trial and that the Judge had told him in chambers that he might as well not attempt to do anything more for his client. The Assistant State's Attorney testified that all the Judge did in chambers was to explain to Buxton his reasons for sustaining objections, and it is again to be noted that the Trial Judge sat in my courtroom while this case was being tried by me and was not called upon to testify although it was suggested that he do so. At any rate, the witness left the stand without giving any testimony and neither the defendant himself nor another witness whom he then had present in Court were called. Each of the attorneys made some remarks to the 823 jury, the jury retired and Buxton left the Court. There is a conflict in the testimony between the Assistant State's Attorney, who tried the case, and the petitioner as to whether or not the Attorney Buxton was in Court when the verdict was rendered, but if he was in Court he did nothing for the petitioner, because there was never any motion for a new trial made. This is another point which could have been settled by the Trial Judge had he seen fit to do so. About ten days after this verdict was returned and without any motion for a new trial being made, nor any motion in arrest of judgment entered, and clearly and definitely without the presence of any attorney for the petitioner, the sentence and judgment here in question were entered of record, the mittimus issued and the prisoner taken to the penitentiary where he has remained for the last two years. The Assistant State's Attorney who tried this case testified in this Court that one of the reasons for halt of the trial and going into the Judge's chambers was because he and the Judge felt that Buxton was prejudicing the defendant in the presence of the jury. A few days after this trial and on behalf of the Macon County Bar Association, the Assistant State's Attorney who had tried the case prepared and filed an information in the Circuit Court of Macon County seeking to disbar and suspend the Attorney Buxton from practice in the Circuit Court of Macon County, because of Buxton's alleged subornation of perjury in another case tried about that time and partly because of his demonstrated incompetence in the trial of this petitioner. In that petition it was alleged and afterwards found by the Circuit Court who tried this case that Buxton was not capable of protecting the rights of litigants in any Court, either civil or criminal, or of practicing law before any Court and suspended him from practice. His name was afterwards, on his own motion, stricken from the roll of attorneys by the Supreme Court of Illinois, so he is no longer an attorney of the Bar of this State. It would have been possible in this case with available funds to have given this Court a much clearer picture of what actually happened in this trial and it would have been much more satisfactory to the Court if the Attorney General had seen fit to call the Trial Judge to the witness stand while he was sitting in Court. It is difficult to get an actual picture of what actually happened in the courtroom during this trial from what has been presented, but the petitioner presented a long list of witnesses whom he wished called and who could not be called because of their distance from Chicago and the lack of money to advance their mileage and witness fees at approximately $25 each, or even to take their depositions at considerable stenographic charge. The Attorney General could have brought in this evidence, and to some degree I think myself justified in drawing unfavorable inferences from his failure to do so. Clearly there is enough before the Court to justify the inferences I have drawn and it is certain that the people of the State of Illinois possess the resources to have given a more complete picture of the matter had they seen fit to do so. There is in the record a copy of a petition sent to the Parole Board of Illinois, asking release of this prisoner, a statement that he did not have a fair trial which is signed by 53 residents of Decatur and the first signer was foreman of the jury who tried the case. I recognize the principle that a juror cannot impeach his own verdict and yet something must have happened in that courtroom which impelled such an unusual action. To a certain degree it is corroborative of the inferences I have drawn. It is my conclusion as a matter of law that this man was not convicted by due process of law within the meaning or spirit of the 14th Amendment. It has been repeatedly held in the Supreme Court of Illinois and the Supreme Court of the United States, and I believe is universally the rule, that it is as much the duty of the State's Attorney and the Trial Judge to protect the rights of the defendant on trial as it is the duty of the State's Attorney to secure a conviction. It is clear beyond question from this record that this man was not defended by an attorney but only by a doctor who through some accident held a license to practice law and who was shortly thereafter disbarred. When it became apparent to the prosecuting attorney, as he testified in this Court, that the interests of the defendant were being prejudiced by the ignorant mouthings and unintelligent and belligerent attitude of this doctor-lawyer it was his duty to ask for a mistrial, and due process of law required that he should not have permitted the farce 824 to go farther. The same duty devolved upon the Trial Judge in even a higher degree. It is not due process to permit a defendant ignorant of law to be misrepresented and prejudiced by the ignorance and misconduct of someone pretending to represent him. Neither was it within the limits of due process to permit this trial to proceed to a verdict and to a final judgment without counsel representing the defendant. The right to counsel does not apply to any particular moment during a trial but during the entire trial, and there is no point in a trial at which a defendant is more in need of expert guidance than after verdict. Necessary technicalities have to be met if defendant's rights are to be preserved, as is clearly demonstrated in this case. No defendant unskilled in law would know how to make a motion for a new trial nor even know of the necessity for a motion for a new trial nor the reasons for those necessities. No layman would understand that unless a trial judge is given the opportunity to correct his own errors by a motion for a new trial there is nothing of which he can thereafter complain in a court of review so far as the proceedings at the trial were concerned. No one not a lawyer would realize that without a duly certified and filed report of proceedings at a trial there would be nothing upon which the Supreme Court of Illinois could act in attempting to review those proceedings. In short, when this man was abandoned by his attorney or according to his version the attorney was ordered out of the case, he was finished so far as any appellate review in Illinois was concerned and unless the Trial Judge saw fit to order a new trial of his own motion, which was not done, no other court in the State could do anything for him by way of reviewing the proceedings up to that point. This petitioner has exhausted his State remedies through application to State Courts for habeas corpus, including an application to the Supreme Court of Illinois, upon which certiorari has been denied by the Supreme Court of the United States. 323 U.S. ___, 65 S.Ct. 435. So far as the record before me shows, no Court has heretofore reviewed the facts presented in this Court. In fact, on the very day this opinion is being written the Supreme Court of Illinois has, for the first time by bench announcement, made public its long settled policy of never taking a habeas corpus case if it involved inquiry into questions of fact. This new announcement will make clear to many lawyers and many other courts the reasons why so many of the petitions for habeas corpus have been denied by that Court without opinion. It is my conclusion that this petitioner was not convicted by due process of law as guaranteed by the 14th Amendment of the United States Constitution; he will therefore be discharged. Petitioner discharged.	{ "pile_set_name": "FreeLaw" }
Case: 17-14571 Date Filed: 06/26/2019 Page: 1 of 15 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 17-14571 ________________________ D.C. Docket No. 1:16-cr-00571-CEM-CSC-2 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus DARIN LEWIS, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Middle District of Alabama ________________________ (June 26, 2019) Before ED CARNES, Chief Judge, JULIE CARNES, and CLEVENGER, * Circuit Judges. * Honorable Raymond C. Clevenger, III, United States Circuit Judge for the Federal Circuit, sitting by designation. Case: 17-14571 Date Filed: 06/26/2019 Page: 2 of 15 ED CARNES, Chief Judge: Before pleading guilty to one count of conspiracy to commit wire fraud, Darin Lewis entered into a plea bargain in which he waived his right to appeal his sentence except under certain limited circumstances, none of which applies. Despite the waiver in his plea bargain, Lewis has appealed his thirty-month sentence, contending that it is substantively unreasonable. His attempt to sidestep his appeal waiver is based on the government having joined in his objection to the district court that the sentence is unreasonable, which he argues amounts to a waiver by the government of its right to enforce his appeal waiver. The argument is a little clever, but not at all convincing. I. Facts and Procedural History In June 2014, the Dale County Water Authority (County Water), which provides water to businesses and residences in and around Ozark, Alabama, received a $1.6 million government loan to replace some water lines in the county. County Water hired Roberson Excavation, a company owned by Billy Ray Roberson, to be the general contractor on the project. The pipe replacement work was scheduled to begin on July 9, 2014, and the contract required Roberson Excavation to complete the work by November 5, 2014. If it failed to meet the deadline, the company would incur a $500-per-day penalty. After installing the new water lines, Roberson Excavation was also 2 Case: 17-14571 Date Filed: 06/26/2019 Page: 3 of 15 responsible for: (1) pressure testing the lines to ensure that they did not leak; (2) flushing the lines to clear sediment or debris and treating them with disinfectant; and (3) drawing water samples and taking them to a licensed lab for bacteriological testing. Roberson Excavation failed to install the new water lines by November 5, 2014, and soon thereafter County Water started assessing the $500-per-day penalty against the company. On January 22, 2015, Billy Ray Roberson hired Darin Lewis to work on the project. He had experience in excavation and boring. Lewis’ initial assignment was to oversee the boring of a water line under a highway in order to link two segments of newly installed lines. After Lewis did that work, Roberson asked him to stay on the water line project as a site supervisor. At some point, Lewis and Roberson agreed that they would skip some of the testing that the contract required and falsify documents to indicate that it had been done. During the pressure testing that was done, Lewis manipulated the flow of water through the lines to hide the leaks that he knew or reasonably believed existed. Roberson instructed Lewis to give the falsified test results to the project engineer, who worked for a separate company that County Water had hired for the project, and Lewis did so. Lewis also followed Roberson’s instruction to fake the bacteriological tests. He did that by collecting water samples from a fire hydrant that was connected to 3 Case: 17-14571 Date Filed: 06/26/2019 Page: 4 of 15 lines he knew were bacteria-free. At Roberson’s direction, Lewis falsely recorded the location where he had obtained those samples and then submitted the samples to a lab. The lab reported that the samples did not contain bacteria, and Roberson Excavation emailed the falsified bacteriological testing report to the project engineer and requested that the company be paid for its work on the project. The request for payment falsely stated that all pressure and bacteriological testing had been completed according to the applicable standards. A grand jury indicted Roberson Excavation, Roberson, and Lewis for one count of conspiracy to commit wire fraud in violation of 18 U.S.C. §§ 1343, 371. Lewis pleaded guilty under a written plea agreement. In that agreement, he admitted the facts of the conspiracy and agreed to waive his right to appeal his sentence or to collaterally attack his conviction or sentence in any post-conviction proceeding. The appeal waiver part of the plea agreement includes an underlined heading in bold, capital letters that reads: “DEFENDANT’S WAIVER OF APPEAL AND COLLATERAL ATTACK.” The paragraph under that heading states: Understanding that 18 U.S.C. § 3742 provides for appeal by a defendant of the sentence under certain circumstances, the defendant expressly waives any and all rights conferred by 18 U.S.C. § 3742 to appeal the sentence. The defendant also waives the right to attack his conviction and sentence in any post-conviction proceeding, including proceedings pursuant to 28 U.S.C. § 2255. This waiver does not include the right to appeal on the grounds of ineffective assistance of 4 Case: 17-14571 Date Filed: 06/26/2019 Page: 5 of 15 counsel or prosecutorial misconduct, or to collaterally attack the sentence on those grounds. It is undisputed that the only exceptions to the appeal waiver (ineffective assistance of counsel and prosecutorial misconduct) do not apply here. The plea agreement also states that Lewis “understands and acknowledges that, although the parties are permitted to make recommendations and present arguments to the Court, the sentence and the United States Sentencing Guidelines, if any, applicable to [Lewis’] case will be determined solely by the Court, with the assistance of Probation.” Lewis agreed that he “understands that the Government can only make a recommendation as to the appropriate sentence, which is not binding on the Court.” For its part, the government agreed that it would recommend a sentence no greater than the bottom of the advisory guidelines range as calculated by the court at the sentence hearing. After Lewis pleaded guilty, the government superseded the indictment against Roberson Excavation and Roberson with a new one charging them with conspiracy to commit wire fraud, substantive wire fraud, conspiracy to defraud the United States, and making a false statement. Those two defendants proceeded to trial, which was scheduled to last for nine days. The trial ended on the fourth day when the government agreed to dismiss all charges against Roberson individually, and Roberson Excavation agreed to plead guilty to one count of wire fraud. The company was later sentenced to pay a $60,000 fine. 5 Case: 17-14571 Date Filed: 06/26/2019 Page: 6 of 15 As for Lewis, his presentence investigation report noted that he had not entered the conspiracy until January 22, 2015, and it calculated the loss amount resulting from his conduct as $42,048.72. His base offense level was 12, but with two levels subtracted for acceptance of responsibility his adjusted offense level was 10. The PSR detailed Lewis’ lengthy criminal history but put him in category I because all of his convictions occurred before 2003 and, as a result, were too remote to result in criminal history points. The PSR noted, however, that Lewis did have eight prior felony convictions and seven misdemeanors, and if the points for those crimes had counted, his criminal history category would have been VI. The PSR stated that “the overall types of offenses and regularity of his criminal activity indicate that there may be a need to depart based on the likelihood he will commit other crimes.” It calculated his guidelines range as six to twelve months imprisonment. The government filed a U.S.S.G. § 5K1.1 motion requesting a three-level downward departure because of Lewis’ substantial assistance, which would have resulted in a guidelines range of zero to six months imprisonment. The motion stated that Lewis had begun cooperating soon after the investigation started, that his assistance was “significant and useful,” and that as far as the government could tell, the information he provided was “truthful and complete.” The motion did note that the information Lewis had provided “was, to some extent, inconsistent with 6 Case: 17-14571 Date Filed: 06/26/2019 Page: 7 of 15 the information provided by other witnesses,” but the government “was never able to confirm that Lewis’s information — as opposed to the other witnesses’ information — was false.” His assistance was “extensive” and required him to travel to a number of different locations in Alabama, hours from his Florida home. The court held a joint sentence hearing for Roberson Excavation and Lewis. Because Roberson himself was on a cruise to Alaska at the time, another person appeared at the hearing as the representative for the company. After hearing from counsel, the court adopted the facts and guidelines calculations of the PSR. Lewis asked the court to depart down four levels instead of the three that the government had requested for substantial assistance. The court questioned why the government had even filed a § 5K1.1 substantial assistance motion when it appeared that the government either did not believe Lewis was telling the truth or thought a jury would not believe him, given that the government had “pulled the plug” on the trial of his co-conspirators four days into it. The court questioned how the government had benefited from Lewis’ cooperation. The government explained that Lewis and another witness had provided “radically different information,” which probably would have destroyed the credibility of both of them at trial, but it did not “disbelieve[ ]” Lewis and did not think he had “intentionally misled the government.” The government added that Lewis’ “self-admission” had also incriminated Roberson Excavation, which 7 Case: 17-14571 Date Filed: 06/26/2019 Page: 8 of 15 helped it obtain the company’s guilty plea. After that discussion, the court granted the government’s § 5K1.1 motion and departed downward three levels, which brought Lewis’ offense level down to 7 and resulted in a guidelines range of zero to six months imprisonment. The statutory maximum for the offense was still five years. See 18 U.S.C. § 371. Lewis asked for no imprisonment, and the government, carrying out its obligations under the terms of the plea bargain, agreed that a sentence of probation was appropriate. Lewis argued that it would be a “travesty of justice” to let the owner of the company (Roberson) off the hook and imprison his employee. After hearing from counsel, the court read a detailed “sentencing statement.” The court’s statement explains why it decided to reject Lewis’ arguments and the government’s recommendation for probation and instead varied upward to sentence him to 30 months imprisonment. The court summarized its reasons as follows: [O]ne, defendant’s mens rea, his recklessness in exposing an entire community to potentially contaminated water; two, defendant’s role as the person who actually falsified the [bacteriological] testing; three, the fact that defendant’s recklessness is extreme and erodes the public’s confidence in a public utility’s ability to provide service in a safe and reliable manner; and, four, to afford adequate deterrence to his criminal conduct. Lewis’ counsel objected that the sentence was substantively unreasonable, calling it “outrageous.” The court stated that the objection was preserved for appeal and 8 Case: 17-14571 Date Filed: 06/26/2019 Page: 9 of 15 that Lewis had certain appeal rights to the extent his plea agreement permitted them. When the court asked the parties if they had “anything further,” the government said no, but then the following exchange occurred: [LEWIS’ COUNSEL]: I’m curious as to why the government has no objection to the sentence, considering that in the plea agreement they agreed to recommend a sentence at the bottom of the advisory guideline range and have recommended probation to the Court and yet, with an upward variance, they now sit there mute and say nothing when it comes to their opportunity to object to the sentence. So I’m confused by that, Your Honor. [THE COURT]: All right. [Lewis’ counsel] has indicated that he was expecting an objection from the government. From my perspective, the government agreed to make a guideline sentence [recommendation], which they did. I read through the plea agreement, and the defendant was informed in the plea agreement, as did the government, that the Court was not bound by the plea agreement. Notwithstanding all that, would the government like to join in the defense’s objection over the Court’s sentence? [COUNSEL FOR GOVERNMENT]: Yes, Your Honor. [THE COURT]: All right. Both sentences — or both objections are preserved for the record subject to appeal. Lewis interprets that exchange, specifically the government joining his objection that the sentence was substantively unreasonable, as an implicit waiver by the government of its right to invoke Lewis’ earlier waiver of his right to appeal. A waiver of a waiver, if you will. The government did not interpret it that way, and when Lewis appealed his sentence the government filed a motion to 9 Case: 17-14571 Date Filed: 06/26/2019 Page: 10 of 15 dismiss the appeal because of the appeal waiver. That motion was carried with the appeal, which is not the best thing to do. See United States v. Buchanan, 131 F.3d 1005, 1008 (11th Cir. 1997). Regardless, here we are. II. Discussion “A sentence appeal waiver must be made knowingly and voluntarily.” United States v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008) (citing United States v. Weaver, 275 F.3d 1320, 1333 n.21 (11th Cir. 2001)). “The waiver is valid if the government shows either that: (1) the district court specifically questioned the defendant about the waiver; or (2) the record makes clear that the defendant otherwise understood the full significance of the waiver.” Id. (citing United States v. Bushert, 997 F.2d 1343, 1351 (11th Cir. 1993)). It is undisputed that Lewis’ appeal waiver meets those requirements. It is also undisputed that none of the exceptions to Lewis’ appeal waiver applies. That would appear to be the end of things. See United States v. DiFalco, 837 F.3d 1207, 1215 (11th Cir. 2016) (stating that when an appeal waiver applies, a defendant is barred from challenging his sentence, and this Court is “required to dismiss his appeal”). And it would be the end of things, but for Lewis’ argument that by joining his objection to the sentence the government acted in a way that was inconsistent with its right to enforce the appeal waiver and thereby waived that right. The flaw in Lewis’ argument is its minor premise, which is that the government’s action in 10 Case: 17-14571 Date Filed: 06/26/2019 Page: 11 of 15 joining his objection to the sentence in the district court is inconsistent with its action in moving to dismiss his appeal from that sentence on the ground stated in the objection. It is not. The government’s action is, if anything, more consistent with the terms of the plea bargain than any other action it could have taken when Lewis called it out after the court stated it was going to sentence him to a harsher sentence than the government had recommended. When it comes to enforcing appeal waivers, we have emphasized that “what really counts . . . is what the defendant and the government agreed to in the plea bargain.” United States v. Bascomb, 451 F.3d 1292, 1296 (11th Cir. 2006). In return for Lewis’ guilty plea and the waiver of his right to appeal, the government promised to recommend a sentence at the bottom of the guidelines range, thereby giving up its right to request a higher sentence. When it came time to act, the government not only went the full distance required under the plea agreement by recommending a bottom-of-the-range sentence, but when Lewis called on it the government went the extra mile by joining his objection that the higher sentence was substantively unreasonable. Lewis probably was not entitled to have the government do that, but it did. If we were to write Lewis’ position into circuit law, it would create a disincentive for the government that could work to the disadvantage of future defendants. Consider a case like this one where in exchange for an appeal waiver 11 Case: 17-14571 Date Filed: 06/26/2019 Page: 12 of 15 and other consideration the government has agreed to make a particular recommendation of leniency on behalf of the defendant. The court considers but rejects the government’s recommendation and gives the defendant a harsher sentence. The defendant asks the government to join his objection, hoping that adding its weight to his objection may convince the district court to reconsider and lower the sentence. If we adopt Lewis’ position, the government will know in a future case that by joining the defendant’s objection it will lose the benefit of the appeal waiver, which may be one of the primary benefits it sought from the plea bargain. Better for defendants as a class that the government not be discouraged from joining a defendant’s objection to a sentence longer than the one that the government promised to, and did, recommend. While Lewis did not get the sentence he wanted and that the government recommended, he understood and agreed up front that regardless of any recommendations, “the sentence and the United States Sentencing Guidelines, if any, applicable to [his] case will be determined solely by the Court, with the assistance of Probation.” Which is what happened. If Lewis had wanted the appeal waiver to be conditioned on the court imposing the sentence that the government recommended for him, he should have bargained for that. See Fed. R. Crim. P. 11(c)(1)(C). The government might not have agreed to a deal that conditioned the appeal waiver in that manner, or the 12 Case: 17-14571 Date Filed: 06/26/2019 Page: 13 of 15 court may not have accepted it. We don’t know. We do know that the plea bargain did not condition the appeal waiver on the district court following the government’s recommendation, or on the government not joining an objection the defendant made to the sentence. Lewis got all that he was promised, and all that he was entitled to receive, under the deal that was struck. The classic definition of waiver is “an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938). In the plea bargain Lewis intentionally and knowingly relinquished, or at least severely curtailed, his right to appeal. See id. The government, by doing what it had promised to do in that bargain, did not intentionally relinquish or curtail any right it received in the bargain, including its right to enforce the appeal waiver. We have recognized that when the parties have “struck a deal that include[s] the appeal waiver,” a decision “altering the terms of that waiver would . . . cut the heart out of the bargain.” Bascomb, 451 F.3d at 1295. We will not perform a waiverectomy. The three decisions Lewis cites from other circuits are off point. The Fourth Circuit in United States v. Metzger, 3 F.3d 756 (4th Cir. 1993), held that by failing to assert it, the government had waived any argument that the defendant’s waiver of his right of direct appeal should operate as a procedural bar in a 28 U.S.C. 13 Case: 17-14571 Date Filed: 06/26/2019 Page: 14 of 15 § 2255 proceeding. Id. at 757. Here the government has asserted Lewis’ appeal waiver from the beginning, first in a motion to dismiss the appeal and then in its brief. The Tenth Circuit held in United States v. Contreras-Ramos, 457 F.3d 1144 (10th Cir. 2006), that “where the government explicitly cites an appeal waiver in a letter to the Court in response to an Anders brief, the waiver is not waived and must be enforced” if it meets the requirements of circuit precedent for appeal waivers. Id. at 1145 (citing United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004)). That does not help Lewis either. Finally, Lewis quotes a sentence from a Ninth Circuit decision stating that: “If the government can ‘waive waiver’ implicitly by failing to assert it, certainly the government can do so explicitly, as occurred here.” United States v. Garcia- Lopez, 309 F.3d 1121, 1123 (9th Cir. 2002). There are two reasons that statement means nothing for this case. First, the court was talking about the failure to assert an appeal waiver on appeal, not about any actions or inactions in the district court. Second, the statement merely states the obvious: anything that can be waived implicitly can also be waived explicitly. It says nothing about what amounts to an implicit waiver. Lewis has not presented any authority, from the Ninth Circuit or elsewhere, for his position that by joining a defense objection in the district court the government forfeits or waives its right to enforce an appeal waiver. 14 Case: 17-14571 Date Filed: 06/26/2019 Page: 15 of 15 For these reasons, Lewis’ appeal is DISMISSED. 15	{ "pile_set_name": "FreeLaw" }
976 F.2d 731 Wanzerv.Caskey* NO. 91-4262 United States Court of Appeals,Fifth Circuit. Sept 25, 1992 1 Appeal From: E.D.Tex. 2 AFFIRMED. * Fed.R.App.P. 34(a); 5th Cir.R. 34.2	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 01-6930 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus ERIC ARTHUR WALTON, Defendant - Appellant. Appeal from the United States District Court for the Northern Dis- trict of West Virginia, at Wheeling. Robert Earl Maxwell, Senior District Judge. (CR-77-83) Submitted: October 3, 2001 Decided: October 16, 2001 Before WILLIAMS, MOTZ, and TRAXLER, Circuit Judges. Affirmed by unpublished per curiam opinion. Eric Arthur Walton, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Eric Arthur Walton appeals the district court’s order denying his petition for a writ of error coram nobis. We have reviewed the record and the district court’s opinion and find no reversible error. Accordingly, we affirm on the reasoning of the district court. United States v. Walton, No. CR-77-83 (N.D.W. Va. May 4, 2001). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 2	{ "pile_set_name": "FreeLaw" }
NUMBER 13-01-383-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTIBEDINBURG JESUS MORALES, Appellant, v. SANTA MORALES, Appellee. On appeal from the 197th District Court of Cameron County, Texas. O P I N I O N Before Justices Dorsey, Yañez, and Chavez[1] Opinion by Justice Yañez In this appeal, Jesus Morales challenges the trial court=s judgment in his ex-wife=s favor based on the jury=s determination that the separation agreement signed by him and his ex-wife, Santa, is not enforceable. We affirm. After forty-plus years of marriage, Santa filed for divorce in 1993. In July 1994, the parties went to mediation and decided to permanently separate instead of pursuing a divorce. Jesus and Santa signed a separation agreement that became effective on July 21, 1994. The agreement states that they will at all times live separately and apart as if they were unmarried. The agreement=s stated purpose is to divide their property and provide for the custody and support of their only remaining minor child. On July 8, 2001, Santa filed suit against Jesus for fraud and breach of contract regarding this agreement. She alleged that Jesus had misrepresented their marital assets, rendering their agreement unfair and unenforceable. The jury found the agreement not enforceable and awarded Santa $735,735, as well as pre- and post-judgment interest. On appeal, Jesus raises six issues challenging the trial court=s failure to enforce the agreement. By his first point of error, appellant contends the court erred in failing to make a finding as to whether the agreement was unconscionable as a matter of law under the family code.[2] Then, by his fourth point of error, Jesus contends the trial court erred by Afailing to submit a jury question on damages that is based on a legal theory of recovery.@ Regarding these two points, appellant has failed to preserve the alleged errors for our review. As for appellant=s complaint that the court failed to make a finding on unconscionability under the family code, the record must show that appellant made such a complaint to the trial court by a timely request, objection, or motion in order to preserve it for appellate review. Tex. R. App. P. 33.1(a)(1). The request, objection, or motion must have made the court aware of the complaint and complied with the rules of evidence and procedure. Id. at (A-B). The record must show that the court either expressly or implicitly ruled on the complaint or refused to rule. Tex. R. App. P. 33.1(a)(2). If the court refused to rule, the record must show that the complainant objected to the refusal. Tex. R. App. P. 33.1(a)(2)(B). Here, appellant never complained to the trial court about its failure to determine the unconscionability of the separation agreement. Therefore, appellant waives review of his first point of error. In addition, appellant=s complaint of charge error must comply with rules of civil procedure 271-279. Tex. R. Civ. P. 271-79; Doe v. Mobile Video Tapes, Inc., 43 S.W.3d 40, 50 (Tex. App.BCorpus Christi 2001, no pet.). The complaining party must object to the submission of an erroneous question, instruction, or definition. Tex. R. Civ. P. 274. If the complaint concerns an omission, the party must request and tender a substantially correct instruction in writing. Tex. R. Civ. P. 278. If the court erroneously fails to include instructions on the proper measure of damages, it is the complaining party=s burden both to object to the charge and to tender such instructions in substantially correct form. Tex. R. Civ. P. 278. AAny complaint as to a question, instruction, or definition, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections.@ Tex. R. Civ. P. 274. Objections to the charge Ashall in every instance be presented . . . before the charge is read to the jury.@ Tex. R. Civ. P. 272. Appellant failed to complain before submission of the charge about the alleged charge error in the jury question. He did not object or make a request during the charge conference. He did not file written objections or written requests. Appellant complained of the jury question regarding damages in his motion for new trial, but he did not complain about the question before the court read the charge to the jury. Appellant does not direct this Court to any record establishing his timely objection. As such, appellant waives review of his fourth point of error. By his sixth point of error, Jesus contends counsel for Santa committed reversible error by engaging in improper jury argument. Appellant has also waived this point. Appellant does nothing more than summarily state his point. He does not explain why or how counsel=s argument is inflammatory or appeals to passion and prejudice. Appellant does not discuss the evidence or explain how counsel=s arguments were outside its scope. He does not explain how the impropriety of the argument ran through its entirety and was cumulative. Appellant cites no authority for his proposition that improper argument during rebuttal is incurable. An appellant who does nothing more than summarily state his point of error, without citation to legal authority or substantive analysis, has failed to preserve the argument for review. Favoloro v. Comm=n for Lawyer Discipline, 13 S.W.3d 831, 840 (Tex. App.BDallas 2000, no pet.). Consequently, appellant waives review of his sixth point of error. By his second and third points of error, Jesus contends there is no evidence or, at least, insufficient evidence to support the jury=s determination and award. Appellant argues that the agreement=s terms, specifically the distribution of community property and ten years of spousal support, are fair and equal. We disagree. In reviewing a no evidence or legal insufficiency of the evidence point, we consider only the evidence that tends to support the jury=s verdict and disregard all evidence and inferences to the contrary. City of Port Isabel v. Shiba, 976 S.W.2d 856, 858 (Tex. App.BCorpus Christi 1998, pet. denied) (op. on reh=g) (citing Responsive Terminal Sys., Inc. v. Boy Scouts of Am., 774 S.W.2d 666, 668 (Tex. 1989) (per curiam)). If there is some evidence, or more than a scintilla, supporting the jury=s finding, the legal sufficiency challenge must fail. Shiba, 976 S.W.2d at 858. As for a review of factual sufficiency issues challenging a jury verdict, we consider and weigh all of the evidence, not just the evidence that supports the verdict. Krishnan v. Ramirez, 42 S.W.3d 205, 212 (Tex. App.BCorpus Christi 2001, pet. denied) (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1985) (per curiam)). We will set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Krishnan, 42 S.W.3d at 212. In Texas, when Aa person [who] is under a duty to disclose material information[] refrains from doing so, and thereby leads another to contract in reliance on a mistaken understanding of the facts, the resulting contract is subject to rescission due to the intentional nondisclosure.@ Boyd v. Boyd, 67 S.W.3d 398, 404-05 (Tex. App.BFort Worth 2002, no pet.) (citing Smith v. Nat=l Resort Communities, Inc., 585 S.W.2d 655, 658 (Tex. 1979)). AA duty to speak arises from a fiduciary or confidential relationship or where a person is >by force of circumstances,= under a duty to speak.@ Boyd, 67 S.W.3d at 405 (quoting A.R. Clark Inv. Co. v. Green, 375 S.W.2d 425, 435 (Tex. 1964); Casa El Sol-Acapulco v. Fontenot, 919 S.W.2d 709, 718 (Tex. App.BHouston [14th Dist.] 1996, writ dism=d by agr.)). The duty exists where the parties to a mediated settlement agreement have represented to one another that they have each disclosed the marital property known to them. Boyd, 67 S.W.3d at 405. Moreover, Awhen one voluntarily discloses information, he has a duty to disclose the whole truth rather than making a partial disclosure that conveys a false impression.@ Boyd, 67 S.W.3d at 405 (quoting World Help v. Leisure Lifestyles, Inc., 977 S.W.2d 662, 670 (Tex. App.BFort Worth 1998, pet. denied)). Here, the separation agreement states, in relevant part: AEach of us has provided fair and reasonable disclosure of that party=s property and financial obligations to the other party.@ At trial, several documents were admitted into evidence by both parties to give the jury an idea of the state of appellant=s finances at the time he and Santa agreed to sign the agreement. These documents included: appellant=s corporate tax return, appellant=s personal financial statement prepared for the U.S. Small Business Administration, an inventory and appraisement prepared by appellant for an earlier divorce suit that was dismissed in favor of the separation agreement, and analyses of personal and corporate tax returns prepared by appellant. Santa argued that the discrepancies between the representations made by Jesus leading up to the separation agreement and the evidence submitted at trial regarding appellant=s assets prove fraud and breach of contract. After reviewing all of the evidence in both a neutral light and a light most favorable to the verdict, we hold that it was factually and legally sufficient to support both the jury=s determination that the agreement was not enforceable and the award in Santa=s favor. In short, based on the evidence regarding the financial discrepancies, the jury could conclude that Jesus misrepresented his assets, rendering the separation agreement unfair and unequal. Appellant=s second and third points of error are overruled. By his fifth point of error, Jesus contends the trial court erred by failing to properly calculate prejudgment interest. The court=s judgment awarded Santa prejudgment interest at ten percent, measured from July 21, 1994 (the effective date of the separation agreement). Appellant argues according to the finance code that: (1) the prejudgment interest rate should have been calculated at six percent, and (2) the interest should have commenced on the date the original suit was filed. We disagree. AWe apply an abuse of discretion standard to review the trial court=s award of prejudgment interest, giving limited deference to the lower court=s application of the law to the facts.@ Marsh v. Marsh, 949 S.W.2d 734, 744 (Tex. App.BHouston [14th Dist.] 1997, no writ). AA trial court abuses its discretion when it acts without reference to any guiding rules or principles.@ Id. The finance code states: ' 302.002. Accrual of Interest When no Rate Specified If a creditor has not agreed with an obligor to charge the obligor any interest, the creditor may charge and receive from the obligor legal interest at the rate of six percent a year . . . . ' 304.104. Accrual of Prejudgment Interest [P]rejudgment interest accrues on the amount of a judgment during the period beginning on the earlier of the 180th day after the date the defendant receives written notice of a claim or on the date the suit is filed and ending on the day preceding the date judgment is rendered. Tex. Fin. Code Ann. '' 302.002, 304.104 (Vernon 1998 and Supp. 2002) (emphasis added). However, A[w]hen extrinsic evidence is needed to determine the amount of contract damages,@ article 302.002 does not apply. Marsh, 949 S.W.2d at 745 (referring to the article=s predecessor statute). In these situations, a court can award prejudgment interest based on equity. Perry Roofing Co. v. Olcott, 744 S.W.2d 929, 930 (Tex. 1988). In other words, when damages are not ascertainable from the face of the contract, a trial court may award ten percent prejudgment interest. Marsh, 949 S.W.2d at 744 (citing Olcott, 744 S.W.2d at 930-31). This is the situation here. The jury awarded damages based on trial evidence and not the separation agreement because the agreement was found to be unfair and thus unenforceable. Since extrinsic evidence was needed to determine Santa=s damages, the finance code does not apply. Id. at 745. Accordingly, the court did not abuse its discretion by awarding prejudgment interest at a rate of ten percent. Id. Regarding the accrual date, the prejudgment interest statute does not set forth requirements for what constitutes a defendant=s receipt of adequate written notice of a claim. Robinson v. Brice, 894 S.W.2d 525, 528 (Tex. App.BAustin 1995, writ denied). It is important to note that this statute is construed liberally to achieve its purposes of fully compensating the plaintiff and encouraging settlements. Id. at 529. The Texas Supreme Court has further explained that Athe starting date for accrual of prejudgment interest . . . [is] >six months after the occurrence of the incident giving rise to the cause of action.= @ Johnson & Higgins of Texas, Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 529 (Tex. 1998) (quoting Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549, 554 (Tex. 1985)).[3] Here, there are arguably two incidents (the 1993 divorce suit and the 1994 separation agreement) giving rise to the original cause of action (the 2001 breach of contract and fraud suit). It is undisputed that Santa filed for divorce in 1993 and, after mediation, the parties agreed to the separation agreement, which took effect on July 21, 1994. Considering the liberal construction of the Awritten notice of a claim@ requirement and the statement in Kenneco Energy, we conclude that the trial court did not abuse its discretion by deciding to calculate prejudgment interest from the date of the agreement (and not the date the underlying suit here was filed, as appellant argues) because the divorce suit Santa filed in 1993 gave Jesus written notice of her claim to a portion of their marital assets. The date of the agreement (July 21, 1994), which is the date from which the interest was measured, is at least six months, or 180 days, after the 1993 divorce suit was filed. Thus, measurement of prejudgment interest from that date is consistent with the statutory requirement (180 days after written notice of a claim) and the case law (six months after the incident giving rise to the original cause of action). Tex. Fin. Code Ann. ' 304.104 (Vernon 1998 and Supp. 2002); Kenneco Energy, 962 S.W.2d at 529. Consequently, the judge=s decision to calculate prejudgment interest from July 21, 1994, the date the separation agreement took effect, was not error. It was within the trial court=s discretion to calculate prejudgment interest at ten percent, dating back to July 21, 1994. Appellant=s fifth point of error is overruled. We have considered all of appellant=s arguments, and they are all waived or overruled. The trial court=s judgment is affirmed. LINDA REYNA YAÑEZ Justice Opinion delivered and filed this the 23rd day of January, 2003. [1]Retired Justice Melchor Chavez, assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov=t Code Ann. ' 75.002 (Vernon 1998). [2]The trial court found that family code section 4.105 (which states, A[a]n issue of unconscionability of a partition or exchange agreement shall be decided by the court as a matter of law@) did not apply to the separation agreement at issue in this case and, consequently, made no decision regarding unconscionability. Tex. Fam. Code Ann. ' 4.105 (Vernon 1998) (emphasis added). [3]ACavnar involved claims for personal injury, but its application has been expanded to non-personal injury scenarios.@ Johnson & Higgins of Texas, Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 529 (Tex. 1998).	{ "pile_set_name": "FreeLaw" }
61 F.Supp.2d 781 (1999) MY FAVORITE MUFFIN TOO, INC., Plaintiff, v. DK HOLDINGS, INC., Robert Katz and Debbie Katz, Defendants. No. 98 C 6665. United States District Court, N.D. Illinois, Eastern Division. August 20, 1999. 782 Marc P. Seidler, Julie Ann Garvey, Seidler & McErlean, Chicago, IL, for My Favorite Muffin Too, Inc., plaintiff. Harold B Katz, Grover, Weinstein, Stauber & Friedman, Miami Beach, FL, for DK Holdings Inc, defendant. Harold B Katz, Grover, Weinstein, Stauber & Friedman, Miami Beach, FL, for Robert Katz, defendant. Harold B Katz, Grover, Weinstein, Stauber & Friedman, Miami Beach, FL, for Debbie Katz, defendant. MEMORANDUM OPINION AND ORDER CASTILLO, District Judge. My Favorite Muffin Too, Inc. seeks a judgment confirming an arbitration award against DK Holdings, Inc. ("DK Holdings"), DK Holding Corporation Too, Inc. ("DK Too"), Robert Katz, and Debbie Katz. (R. 9.) The defendants oppose confirmation, arguing that this action is subject to an automatic stay under the Bankruptcy Code, 11 U.S.C. § 362, and alternatively that the arbitrator manifestly disregarded the law in reaching her decision. Therefore, they ask us to vacate the arbitration award. (R. 12.) Additionally, the defendants contend that DK Too is not a party to this action, and that My Favorite Muffin should not be allowed correct the corporate defendant's name. The defendants' positions are meritless; thus, we grant My Favorite Muffin's motion to correct the corporate defendant's name to DK Holding Corporation Too, Inc. and enter judgment confirming the arbitration award. On October 11, 1990, Debbie Katz executed a franchise agreement with My Favorite Muffin on behalf of DK Holdings, in which she personally guaranteed performance of the agreement. (Defs.' Ex. A, Franchise Agreement at 29-30.) Robert Katz witnessed the execution. DK Holdings, however, was not then and never became a legally incorporated entity. Instead, in May 1991, the Katzes incorporated DK Too. (Defs.' Ex. B, Articles of Incorporation of DK Too; Florida Certificate of Incorporation.) Apparently, DK Too undertook performance of the franchise agreement. (See Defs.' Ex. L, checks representing royalty payments under the agreement from DK Too to My Favorite Muffin.) On July 29, 1997, the Katzes filed a petition for personal bankruptcy protection under Chapter 13 of the Bankruptcy Code. Approximately six weeks later, on September 16, 1997, DK Too also filed a bankruptcy petition. Almost immediately thereafter, DK Too formally assumed the franchise agreement obligations: [T]he undersigned guarantor(s) hereby personally and unconditionally (a) guarantees to My Favorite Muffin, Too, Inc. ("Franchisor") and its successors and assigns that DK Holding Corp. Too, Inc., a Florida corporation ("Franchisee") shall punctually pay and perform each and every undertaking, agreement and covenant set forth in the Franchise Agreement. (Defs.' Ex. C, Guaranty and Assumption of Obligations (dated Sept. 29, 1997) ("Guaranty").) The Guaranty also provides that "[e]ach of the undersigned consents and agrees that: ... (2) he shall render any payment or performance required under the Franchise Agreement upon demand if Franchisee fails or refuses punctually to do so." Both Katzes signed the Guaranty: Debbie wrote "President" after her signature, while Robert wrote "Vice Pres" after his. On August 14, 1998, My Favorite Muffin filed the arbitration claim at issue in this case against DK Holdings and the Katzes. (Defs.' Ex. D, Demand for Arbitration.) 783 When discovery revealed that DK Holdings did not exist, the arbitrator granted My Favorite Muffin's motion to add DK Too. (Pl.'s Ex. G, Arbitration Order of Mar. 3, 1999.) After a hearing, the arbitrator concluded that the Katzes were personally liable under the franchise agreement and the Guaranty. (Defs.' Ex. F, Opinion of June 18, 1999.) She awarded My Favorite Muffin $151,069.25 in damages under the two contracts, and $1,317.02 in arbitration costs;[1] liability was joint and several among the Katzes and DK Too, and the Katzes were held liable in their individual and corporate capacities. Additionally, the arbitrator enjoined the Katzes from competing against My Favorite Muffin within three miles of the franchise site before February 2001. Now, My Favorite Muffin asks this Court to enter judgment confirming the arbitration award. The defendants, of course, oppose this request. Their primary argument is that the automatic stay provision of the Bankruptcy Code, 11 U.S.C. § 362, precludes this Court from ruling on My Favorite Muffin's motion. Specifically, the defendants contend that the two ongoing bankruptcy proceedings activated § 362(a)(3)'s stay of "any act to obtain possession of property of the estate." The defendants misconceive the nature of our task. For purposes of the automatic stay provisions, bankruptcy courts distinguish between judgments and attempts to enforce judgments. See, e.g., In re Garofalo's Finer Foods, Inc., 186 B.R. 414, 436 n. 17 (N.D.Ill.1995) ("It is well established that claims arising post-petition are not subject to the automatic stay. The question here, however, is not whether the automatic stay precludes [these claims]. Rather, the question is whether enforcement of these claims is prohibited by the stay." (citations omitted)); see also In re McKnight, 136 B.R. 891, 893 (Bankr.S.D.Ga.1992); In re Anderson, 23 B.R. 174, 175 (Bankr.N.D.Ill. 1982). Here, My Favorite Muffin explicitly recognizes this distinction and seeks nothing more than a judgment. (R. 13, My Favorite Muffin's Reply at 3 ("[M]erely seeking to confirm the arbitrator's award is not commensurate with seeking to satisfy a judgment.").) Because this case involves post-bankruptcy petition debts and because My Favorite Muffin asks only for a judgment, § 362 does not operate to stay this action.[2] As to the defendants' alternate argument that the arbitrator manifestly disregarded the law we expend few words because the defendants' position approaches frivolity. Although the defendants apparently know the appropriate standard of review for arbitration awards, they exclusively argue that the arbitrator misunderstood the facts before her. For example, they say that the arbitrator unreasonably found that the Katzes personally guaranteed performance of the franchise agreement when they signed the Guaranty because the Guaranty was really a novation releasing Debbie Katz from her personal liability under the agreement. Similarly they argue that a scrivener's error by My Favorite Muffin resulted in the franchise agreement with a non-existent corporation. Essentially, the defendants re-argue the evidence before the arbitrator; they do not cite a single case establishing a rule of law that the arbitrator ignored, or even arguably mis-applied. There are no grounds for vacating the arbitration award. Thus, we deny the defendants' *784 motion to vacate the arbitration award and grant My Favorite Muffin's motion to confirm the arbitration award. (R. 9-1.) Finally, we address a minor administrative matter, and grant My Favorite Muffin's motion to correct the name of the corporate defendant to DK Holding Corporation Too, Inc. (R. 9-2.) DK Too is the appropriate corporate defendant and, in essence, has been before this Court and the arbitrator (in the guise of its corporate officers, the Katzes) from the beginning. DK Too does not argue that allowing the correction will prejudice it in any way. CONCLUSION For these reasons, we grant My Favorite Muffin's motion to confirm the arbitration award and to correct the name of the corporate defendant. (R. 9.) Additionally, we deny the defendants' motion to vacate the arbitration award. (R. 12.) The Clerk of the Court shall enter final judgment in this case in accordance with Federal Rule of Civil Procedure 58. NOTES [1] Out of the total administrative expense of $1,192.12, the arbitrator ordered the defendants to pay My Favorite Muffin $573.68 and the American Arbitration Association $21.06; from the total arbitrator compensation of $3,020.00, she ordered the defendants to pay My Favorite Muffin $743.34 and the Association $1,270.00. (Defs.' Ex. E, Award at 2.) [2] Section 362 does stay enforcement of our judgment, and My Favorite Muffin must obtain leave from the bankruptcy court before it may seek satisfaction of the judgment. See In re Anderson, 23 B.R. at 175-6.	{ "pile_set_name": "FreeLaw" }
In the United States Court of Appeals For the Seventh Circuit No. 08-1009 H EATHER A DDIS, Petitioner, v. D EPARTMENT OF L ABOR, Respondent, and E XELON G ENERATION C OMPANY, LLC, Intervening Respondent. Petition for Review of an Order of the Department of Labor. No. 05-118 A RGUED N OVEMBER 4, 2008—D ECIDED JULY 30, 2009 Before P OSNER, W OOD , and T INDER, Circuit Judges. T INDER, Circuit Judge. Heather Addis resigned from her job as Operations Supervisor at the Dresden Nuclear Power Station (operated by Exelon) after an argument with her supervisor over the company’s requirement that 2 No. 08-1009 Addis make regular entries in the files of the employees that she supervised. Her supervisor felt her file entries were not timely and not sufficiently critical; Addis thought the requirement was pointless at best, and at worst detrimental to her ability to focus on plant security. After her resignation, but during her two weeks’ notice, she filed an internal complaint with Exelon’s Employee Concerns Program (ECP) 1 that the disputed reporting requirements (and plant management’s insistence on them) threatened the plant’s safety. Then, before the date that her resignation was to become effective, Addis had a change of heart and sought to remain at her job; she conveyed her desire to stay in a letter to Dresden’s operations director. Between Addis’s attempt to rescind the resignation and the end of her notice period, Exelon management held two meetings regarding Addis. The first, ostensibly held to discuss the ECP concerns, involved a human resources employee, an ECP staffer, and Exelon’s general counsel, among others. The second meeting included both human resources and the general counsel, but also the top man- agement of the Dresden plant. The purpose of this con- ference call was a discussion of whether to allow Addis to withdraw her resignation, but her ECP report was discussed in this meeting as well. The ultimate outcome of this meeting was management’s decision to accept 1 Because this is a review of an administrative agency decision, readers are forewarned that they will be wrestling with multiple acronyms. No. 08-1009 3 her resignation in light of her refusal to comply with the record keeping requirement. She was notified at the end of her two weeks’ notice that she could not continue at Dresden. I. Procedural History Pursuant to the Energy Reorganization Act (ERA), 42 U.S.C. § 5851(b), Addis filed a complaint with the Occupational Health and Safety Administration (OSHA) on April 5, 2004, alleging that Exelon did not allow her to rescind her resignation because of the safety com- plaints she made to ECP in violation of the statute. Id. § 5851(a). OSHA’s Area Director conducted an investi- gation and found that Addis had not sustained her burden of proving that she was retaliated against. Addis then requested a hearing in front of an Administrative Law Judge (ALJ), who dismissed the case after the hearing, finding likewise that Addis failed to sustain the burden of proving that her protected activity was a con- tributing factor in her termination. Addis appealed to the Department of Labor’s Administrative Review Board (ARB), who accepted the ALJ’s conclusion and dismissed the complaint. She petitions this court for review of the Labor Department’s dismissal. Id. § 5851(c). One appellate assertion will be cast to the side before we begin. Exelon argues that res judicata bars us from hearing Addis’s petition for review, because an Illinois state court has already found against her on a state re- taliatory discharge claim based on her termination from Exelon. What Exelon ignores is that she was unable to 4 No. 08-1009 bring her ERA claim (which requires administrative adjudication) before the Illinois state court and unable to bring her Illinois claim before the Department of Labor. This precludes the application of res judicata. See Alvear- Velez v. Mukasey, 540 F.3d 672, 678 & n.4 (7th Cir. 2008). II. Standard of Review The ERA protects an employee from being discrim- inated against for filing a complaint about plant safety. Discrimination is defined as an “unfavorable personnel action,” 42 U.S.C. § 5851(b)(3), in retaliation for the em- ployee’s complaints about nuclear safety (complaints protected by 42 U.S.C. § 5851(a)(1)(A)-(F)). If an employee believes that she has been retaliated against, she may complain to the Department of Labor, and specifically OSHA. After an investigation, the Secretary of Labor (acting through OSHA) may find a violation “if the com- plainant has demonstrated that any [protected] behavior . . . was a contributing factor in the unfavorable personnel action” unless the “employer demonstrates by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of such behavior.” Id. § 5851(b)(3)(C)-(D). Under the ERA, OSHA gets the first crack at investigating an employee complaint. The employee may then challenge OSHA’s determination before an ALJ and seek review of the ALJ’s decision in front of the ARB and then review in a federal court of appeals. Our review of an ARB decision is conducted according to the Administrative Procedures Act. Id. § 5851(c)(1) (refer- No. 08-1009 5 encing 5 U.S.C. §§ 701-06). We can only set aside the Board’s decision if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or “in excess of statutory jurisdiction, authority, or limita- tions, or short of statutory right” or “unsupported by substantial evidence.” 5 U.S.C. § 706(2); see Kahn v. U.S. Sec’y of Labor, 64 F.3d 271, 276 (7th Cir. 1995). Substantial evidence is that which is “more than a mere scintilla” but it “may be less than a preponderance of the evidence . . . and a reviewing body may not set aside an inference merely because it finds the opposite conclusion more reasonable.” Kahn, 64 F.3d at 276 (citations omitted). The task for the Department of Labor in Addis’s case was to determine whether Exelon’s refusal to let her return to work was an “unfavorable personnel ac- tion”and if so, whether the protected action was a con- tributing factor to the refusal. In the Department’s final decision (the ARB decision), the ARB punted on the unfavorable action issue (although the ALJ had found that Addis did not suffer an unfavorable personnel action) and affirmed the ALJ’s decision on the ground that Addis failed to prove that her complaint was a contribut- ing factor to the termination. The ARB adopted the ALJ’s findings in their entirety on the contributing factor issue and we will therefore refer to the ALJ’s decision throughout our discussion of this issue. Both the “unfavor- able personnel action” and “contributing factor” argu- ments were raised on appeal, but the ARB rested its decision on the contributing factor issue which deter- mines the outcome of the case. 6 No. 08-1009 III. Analysis The burden was on the plaintiff to prove, by a prepon- derance of the evidence, that her complaint was a con- tributing factor to Exelon’s decision not to take her back. Congress intended that ERA’s contributing factor standard provide complainants a lower hurdle to clear than the bar set by other employment statutes. See Williams v. Admin. Review Bd., 376 F.3d 471, 476 (5th Cir. 2004) (“In 1992, Congress inserted into the ERA an inde- pendent burden-shifting framework to be used in deter- mining employer liability . . . .”); Stone & Webster Eng’g Corp. v. Herman, 115 F.3d 1568, 1572 (11th Cir. 1997) (“Section 5851 is clear and supplies its own free-standing evidentiary framework.”). In particular, the ERA frame- work is intended to replace the traditional McDonnell Douglas formulation of retaliation. See Stone & Webster Eng’g Corp., 115 F.3d at 1572 (“For employers, this is a tough standard, and not by accident. Congress appears to have intended that companies in the nuclear industry face a difficult time defending themselves.” (citing H. Rep. No. 102-474(VIII), at 79 (1992))); Trimmer v. U.S. Dep’t of Labor, 174 F.3d 1098, 1101 (10th Cir. 1999) (rejecting McDonnell Douglas burden-shifting framework for ERA claims); see also Frobose v. Am. Sav. & Loan Ass’n, 152 F.3d 602, 612 (7th Cir. 1998). Once the employee clears this hurdle, the burden is on the employer to prove by clear and convincing evidence that it would have taken the same personnel action absent the employee’s complaint. 42 U.S.C. § 5851(b)(3)(D). We have acknowledged that a “contributing factor” is something less than a substantial or motivating one. No. 08-1009 7 Frobose, 152 F.3d at 612. Indeed, Congress’s statements on the Whistleblower Protection Act (where the term first appeared) defined the term as “any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision.” Marano v. Dep’t of Justice, 2 F.3d 1137, 1140 (Fed. Cir. 1993) (quoting 135 Cong. Rec. 5033 (1989) (Explanatory Statement on S. 20)). The “contributing factor” phrase “is specifically intended to overrule existing case law, which requires a whistleblower to prove that his protected conduct was a ‘significant’, ‘motivating’, ‘substantial’, or ‘predominant’ factor in a personnel action in order to overturn that action.” Id. We therefore accept the petitioner’s contention that she can shift the burden to Exelon with a lesser showing than plaintiffs must make in the traditional McDonnell Douglas employment action. We note, though, that she was required to prove the contributing factor issue by a preponderance of the evidence. Dysert v. U.S. Sec’y of Labor, 105 F.3d 607, 610 (11th Cir. 1997). The ALJ found that she did not prove any retaliatory intent on Exelon’s part. The ALJ instead found that Exelon refused Addis’s attempt to rescind her resignation because the company was unhappy with her substandard performance. It was her performance record, of course, that led to the fateful meeting with her supervisor that culminated in her resignation. To argue that she met her burden of proof, Addis points to the evidence she offered before the ALJ, which included a statement that Danny Bost, the plant manager, made in the meeting Exelon called to determine Addis’s 8 No. 08-1009 future that he was “not sure” that Addis would be dis- charged absent her ECP complaint. The ALJ noted that this was the “closest indication of any retaliatory animus on the part of Respondent’s management.” Other evidence that Addis marshaled to meet her burden in- cluded the fact that the processing of Addis’s ECP com- plaints deviated from Exelon’s standard procedure (in particular, Exelon did not keep whatever promises of confidentiality it had made in connection with the sub- mission of an ECP complaint), that Exelon’s upper man- agement failed to meet with Addis’s immediate super- visor before her termination, that Exelon offered shifting rationales for her termination during depositions, and that Exelon management’s testimony was impeached at the ALJ hearing. Addis also cited the short time frame between her complaint and the end of her employment as evidence that the former contributed to the latter. If we were reviewing a grant of summary judgment in Exelon’s favor, we would be faced with a situation where there are numerous contested facts that are sufficiently impor- tant to warrant consideration by a trier of fact. But Addis has already had the benefit of a fact-finder (and one round of review), and our task is only to ensure that substantial evidence supports the decision below. Kahn, 64 F.3d at 276. The ALJ determined that the evidence Addis presented was outweighed by the entire record which, in particular, detailed Addis’s continued difficulties with the plant’s working files requirement. The ALJ dismissed the plant manager’s statement that he was “not sure” she would be terminated absent her complaint as insufficiently proba- No. 08-1009 9 tive to outweigh the other record evidence. Similarly, the ALJ relied on Addis’s employment history to rebut any inference based on the proximity of her termination to the date she filed the complaint. The ALJ also resolved credibility determinations in favor of Exelon manage- ment, finding that they were focused on safety, receptive to complaints, and exhibited no retaliatory animus toward Addis. Our reading of the record finds substantial support for the ALJ’s position. Both parties during the hearing and on appeal refused to meaningfully grapple with the import of Addis’s resignation. Addis asks us to treat this as a straightforward termination case and to disregard the fact that she resigned. Exelon asks us to look at this case as if the company took no action but simply allowed Addis to carry out her wishes. There are significant flaws with both positions, and the success of the ALJ’s opinion lies in its ability to capture the sensible middle ground of reality that lies between both parties’ contentions. Two things changed between the moment Addis met with her supervisor and the moment her employment ended twelve days later. One of those was that Addis issued a safety complaint through Exelon’s ECP process. This was protected conduct and as such if this con- tributed to Addis’s firing, she is entitled to relief under the ERA. See Am. Nuclear Res., Inc. v. U.S. Dep’t of Labor, 134 F.3d 1292, 1295 (6th Cir. 1998). The other thing that changed was that Addis got angry and submitted a letter of resignation. Neither event should be viewed independently from the other. 10 No. 08-1009 Thus, the temporal proximity Addis cites to support a finding of retaliation is mitigated by the fact that the time frame was created by Addis’s own resignation over a disagreement with her supervisor; this disagreement provided both the impetus for the termination of her employment and the impetus for her safety complaint. Similarly, both Exelon’s divergence from its normal procedures for handling safety complaints and the dis- cussion of Addis’s complaint during plant management’s meeting to determine her status can easily be attributed to the unique situation her resignation and subsequent complaint presented. The resignation also, as the ALJ noted, differentiated Addis from the other supervisors at the plant who had exhibited similar deficiencies in their working files. Evidence presented to the ALJ showed that Addis was far from the only employee to resist the working file requirement. But, none of the other supervisors resigned and sought to return to work. This is an important distinc- tion and the one that lies at the heart of the ALJ’s ultimate decision. For there to be substantial evidence supporting his decision, the ALJ had to determine and explain why management’s attitude toward Addis was different on September 28, when her supervisor met with her and exhorted her to improve her performance, and on October 10 when she was told that her employ- ment was at an end. The ALJ was entitled on the record before him to find that while management was continually frustrated by Addis’s performance, her angry resignation was the straw that broke the camel’s back, No. 08-1009 11 prompting the company to part ways with her. The petition for review is, therefore, D ENIED. 7-30-09	{ "pile_set_name": "FreeLaw" }
Case: 16-60650 Document: 00514266602 Page: 1 Date Filed: 12/08/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals No. 16-60650 Fifth Circuit FILED Summary Calendar December 8, 2017 Lyle W. Cayce JOSE LUIS LOPEZ-CRISTALES, Clerk Petitioner v. JEFFERSON B. SESSIONS, III, U.S. ATTORNEY GENERAL, Respondent Petition for Review of an Order of the Board of Immigration Appeals BIA No. A076 650 917 Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges. PER CURIAM: * Jose Luis Lopez-Cristales, a native and citizen of Guatemala, petitions this court to review the denial of his motion to reopen in absentia removal proceedings. We review the rulings of law by the Board of Immigration Appeals (BIA) de novo and its findings of fact for substantial evidence. Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007). We “may not overturn the BIA’s factual findings unless the evidence compels a contrary conclusion.” Gomez- * 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: 16-60650 Document: 00514266602 Page: 2 Date Filed: 12/08/2017 No. 16-60650 Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009). Because the BIA summarily affirmed the decision of the immigration judge (IJ) without opinion, we review the IJ’s decision. Galvez-Vergara v. Gonzales, 484 F.3d 798, 801 (5th Cir. 2007). An in absentia removal order may be rescinded upon a motion to reopen filed at any time if the alien demonstrates that he did not receive notice in accordance with 8 U.S.C. § 1229(a). 8 U.S.C. § 1229a(b)(5)(C)(ii). Nothing that Lopez-Cristales has presented compels a conclusion contrary to the IJ’s determination that he was not entitled to reopening based on a lack of notice. See Gomez–Palacios, 560 F.3d at 358. The time limitations for filing a motion to reopen do not apply if the reason for the motion is to apply for asylum, withholding of removal, or Convention Against Torture (CAT) relief and the motion “is based on changed country conditions arising in the country of nationality.” 8 U.S.C. § 1229a(c)(7)(C)(ii). The IJ found that Lopez-Cristales failed to show changed conditions in Guatemala as grounds for a claim of asylum. This decision was not capricious, lacking foundation in the evidence, or otherwise so irrational that it was arbitrary. See Gomez–Palacios, 560 F.3d at 358. To the extent that Lopez-Cristales contends that the IJ’s failure to exercise its discretion to reopen the removal proceedings sua sponte was error, we lack jurisdiction over such a claim. Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 248-50 (5th Cir. 2004). Because we lack jurisdiction over the decision not to reopen the removal proceedings sua sponte, Lopez-Cristales’s petition is DISMISSED, IN PART, on that basis. The remainder of his petition is DENIED. The Respondent’s motion to summarily deny the petition for review is DENIED AS UNNECESSARY. 2	{ "pile_set_name": "FreeLaw" }
500 N.W.2d 203 (1993) In the Matter of the Petition for Supervision of the DIOCESE OF BISMARCK TRUST, Created by the Last Will and Testament of T. Clem Casey, by Myron H. Atkinson, Jr., and First Trust Company of North Dakota, N.A., Co-Trustees. Myron H. ATKINSON, Jr., and First Trust Company of North Dakota, N.A., Co-Trustees, Appellants, v. DIOCESE OF BISMARCK, Appellee. Civ. No. 920301. Supreme Court of North Dakota. May 17, 1993. 204 Kermit E. Bye of Vogel, Brantner, Kelly, Knutson, Weir & Bye, Fargo, for appellants. Albert A. Wolf of Wheeler Wolf, Bismarck, for appellee. SANDSTROM, Acting Chief Justice. Myron H. Atkinson, Jr., and First Trust Company of North Dakota, as co-trustees of the Diocese of Bismarck Trust, appeal from an order granting attorney's fees to the Diocese of Bismarck. We reverse. In 1969, T. Clem Casey executed his Last Will and Testament. Article VI of the Last Will and Testament created the Diocese of Bismarck Trust.[1] Casey died in 1970. Under the terms of the will, Myron Atkinson and First Trust Company of North Dakota were appointed co-trustees of the Diocese of Bismarck Trust and directed to pay the governing board of the Diocese of Bismarck the net income of the trust for 20 years. The trust stated that the Diocese could use the income for capital improvements of parochial schools in Bismarck, or, if no parochial schools exist, for capital improvements in Bismarck connected with the activities of the Diocese. At the end of 20 years, the governing board of the Diocese of Bismarck could request all or any part of the principal and unpaid income to use for the same purposes. In 1990, a dispute arose between the co-trustees and the Diocese regarding the interpretation of the term "capital improvement" and the status of the trust after expiration of the 20-year payment period. As a result, the co-trustees petitioned the district court for construction of the trust. The Diocese of Bismarck and the co-trustees settled the dispute in October 1991, and entered into a stipulation and settlement agreement. Section 9 of that agreement provides, in part: "Each of the parties do for themselves and for the predecessors and successors, principals, employees, attorneys, and agents, as well as their respective assigns, agents, representatives, heirs, and 205 personal representatives (hereinafter collectively referred to as the "Releasors"), remise, release, and forever discharge each of the parties from the other, and one from another, including but not limited to each of them, in both their official and individual capacities, of and from any and all actions, causes of action, appeals, liabilities, suits, debts, sums of money, accounts, bonds, bills, covenants, contracts, controversies, agreements, promises, damages, judgments, claims and demands whatsoever, state or federal, in law or in equity, whether known or unknown, which the Releasors, any or all of them, may now have or hereafter have or claim to have against the Releasees, any or all of them, for, upon, or by reason of any matter, event, cause or thing which relate in any way to or exist by reason of: . . . . . "(b) The parties' incurring of attorneys' fees, costs or expenses in connection with the action." The district court approved the agreement in November, 1991. The trust was subsequently placed under the district court's supervision in accordance with the settlement agreement. In July, 1992, the Diocese of Bismarck moved for attorney's fees and costs incurred "in connection with the petition for construction of trust instruments and the discovery and other proceedings relating thereto." The co-trustees opposed the motion, arguing that (1) the settlement agreement clearly barred the claim, and (2) there was no statutory basis upon which attorney's fees could be awarded. The Diocese of Bismarck argued that the release contained in the settlement agreement applied to the co-trustees, not to the trust. The Diocese also argued that the actions it took in response to the petition for construction benefited the trust; therefore, the Diocese was entitled to have its attorney's fees and costs paid by the trust. The district court granted the motion and ordered that $22,250.79 in attorney's fees and costs be paid to the Diocese of Bismarck from the Diocese of Bismarck Trust. In doing so, the district court found that "those fees and the costs and efforts expended by [the attorney for the Diocese] were necessary and an inherent part of this lawsuit. And irrespective of the stipulation in paragraph 9, the Court is going to grant [the] motion for attorney's fees and costs and order that they be paid from the trust." The co-trustees appeal. They argue that the district court erred in ordering the trust to pay the Diocese of Bismarck's attorney's fees and costs. They claim that (1) the settlement agreement clearly bars the claim, and (2) there is no statutory basis to award the Diocese of Bismarck attorney's fees and costs. The Diocese contends that the release in the settlement agreement applies to the co-trustees and not the trust. The co-trustees contend the release was meant to include the trust. The Diocese also argues that when a trust beneficiary takes action that benefits the trust, the beneficiary may recover attorney's fees and costs from the trust. The co-trustees dispute both the principle and that the actions benefited the trust. "Construction of a written contract to determine its legal effect is a question of law." Red River Human Services Found. v. DHS, 477 N.W.2d 225, 227 (N.D.1991). "The intention of the parties is to be ascertained from the writing alone, if possible." Id. N.D.C.C. § 9-07-04. "In interpreting a contract we look first to its language and, if the intent is apparent from its face, there is no room for construction." Stuhlmiller v. Nodak Mut. Ins. Co., 475 N.W.2d 136, 138 (N.D.1991). A court may examine parol evidence of intent when a written contract is ambiguous, or when it does not reflect the parties' intent because of fraud, mistake, or accident. Jorgensen v. Crow, 466 N.W.2d 120, 123 (N.D.1991); N.D.C.C. § 9-07-05. The language of the settlement agreement is clear. The stipulation was to resolve all controversies involving the parties. Each of the parties agrees to release the other and the other's principal from claims for "attorneys' fees, costs or expenses in connection with the action." The Diocese of Bismarck Trust is the co-trustee's *206 principal.[2] The release covers expenses incurred in the petition for construction of the trust. Accordingly, the Diocese of Bismarck's claim for attorney's fees is barred by the settlement agreement. Since the language is clear and unambiguous, we need not refer to the extrinsic evidence offered by the Diocese. The order granting the Diocese of Bismarck's attorney's fees and costs is reversed. MESCHKE and NEUMANN, JJ., and JAMES A. WRIGHT and GARY A. HOLUM, District Judges, concur. JAMES A. WRIGHT and GARY A. HOLUM, District Judges, sitting in place of VANDE WALLE, C.J., and LEVINE, J., disqualified. NOTES [1] Article VI, subsection (1) and (2) of T. Clem Casey's Last Will and Testament state: "(1) My Trustees shall pay to the governing board of the DIOCESE OF BISMARCK, a corporation of Bismarck, North Dakota, the entire net income from the "Diocese of Bismarck Trust" in annual or other convenient installments, such income to be used for capital improvements of the parochial school facilities in the City of Bismarck, North Dakota. In the event there shall be no operating parochial school facilities in the City of Bismarck, North Dakota such income shall be used for capital improvements within the City of Bismarck, North Dakota, to be used in connection with activities of the Diocese of Bismarck as shall be determined by its governing board. "(2) The "Diocese of Bismarck Trust" shall continue for a term of twenty (20) years, commencing with the date of my death. At any time after the expiration of twenty (20) years the governing board of the DIOCESE OF BISMARCK, a corporation, may request all or any portion of the principal and undistributed income of the trust as they deem necessary to be used for capital improvements of the parochial school facilities in the City of Bismarck, North Dakota. In the event there shall be no operating parochial school facilities in the City of Bismarck, North Dakota, such undistributed income and principal shall be used at such times as requested by such governing board, such use to be for capital improvements within the City of Bismarck, North Dakota, in connection with activities of the Diocese of Bismarck as determined by its governing board." [2] Generally, an agent-principal relationship does not exist between a trustee and a trust. See Restatement (Second) of Trusts § 8 (1957). However, we follow N.D.C.C. § 59-02-10, which states: "Authority of trustee. A trustee is a general agent for the trust property. His authority is such as is conferred upon him by the declaration of trust, by this title, and by title 30.1. His acts, within the scope of his authority, bind the trust property to the same extent as the acts of a general agent bind his principal." We give effect to the language regarding the release of the parties and their principals, if possible. N.D.C.C. § 9-07-06. This language would be meaningless if "principal" did not refer to the trust.	{ "pile_set_name": "FreeLaw" }
367 F.Supp.2d 548 (2005) Marshall GARVIN, Plaintiff, v. John E. POTTER, Postmaster General, United States Postal Service, Defendant. No. 00 Civ. 6789(JGK). United States District Court, S.D. New York. April 22, 2005. 549 550 551 552 OPINION & ORDER KOELTL, District Judge. The plaintiff, Marshall Garvin ("Garvin"), a former postal worker, brings this action against the defendant, John E. Potter ("Potter"), Postmaster General of the United States Postal Service (the "USPS"). The amended complaint alleges sixteen causes of action against the defendant. 553 The first, third, and fifth causes of action allege discrimination based on disability under the New York State Human Rights Law, Executive Law §§ 290 et seq. ("NYHRL"); the New York City Human Rights Law, Administrative Code of the City of New York §§ 8-101 et seq. (the "NYCHRL"), and the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq. (the "ADA"), respectively. The second, fourth, and sixth causes of action allege that the defendant retaliated against the plaintiff for reporting the alleged discrimination based on disability, in violation of the NYHRL, the NYCHRL, and the ADA, respectively. The seventh, ninth, and eleventh causes of action allege religious discrimination under the NYHRL, the NYCHRL, and Title VII of Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"), respectively. The eighth, tenth, and twelfth causes of action allege that the defendant retaliated against the plaintiff for reporting the alleged religious discrimination, in violation of the NYHRL, the NYCHRL, and Title VII, respectively. The thirteenth, fourteenth, and fifteenth causes of action allege that the defendant created a hostile work environment for the plaintiff, in violation of the NYHRL, the NYCHRL, and Title VII, respectively. The sixteenth cause of action alleges breach of contract. The plaintiff also appears to allege a claim for constructive discharge as a result of alleged retaliatory harassment. (Amd.Compl., ¶ 11.) The defendant now moves pursuant to Federal Rule of Civil Procedure 56 for summary judgment dismissing all claims against him. I. The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Gallo v. Prudential Residential Servs. Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir.1994). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224. The moving party bears the initial burden of informing the district court of the basis for its motion and identifying the matter that it believes demonstrates the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The substantive law governing the case will identify those facts that are material and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Consol. Edison, Inc. v. Northeast Utilities, 332 F.Supp.2d 639, 642 (S.D.N.Y.2004). Summary judgment is appropriate if it appears that the non-moving party cannot prove an element that is essential to the non-moving party's case and on which it will bear the burden of proof at trial. See Cleveland v. Policy Mgt. Sys. Corp., 526 U.S. 795, 805-06, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999); Celotex, 477 U.S at 322, 106 S.Ct. 2548; Powell v. Nat. Bd. of Med. Exam'rs, 364 F.3d 79, 84 (2d Cir.2004). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. 554 See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. T.R.M. Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir.1994). If the moving party meets its initial burden of showing a lack of a material issue of fact, the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The nonmoving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir.1993); see also Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir.1998); Consol. Edison, 332 F.Supp.2d at 643. II. The following facts are undisputed unless otherwise noted. The plaintiff was employed by the USPS from February 18, 1967, until his retirement on February 22, 2002. (Affidavit of Marshall Garvin, sworn to Sept. 13, 2004 ("Garvin Aff."), ¶ 5.) The plaintiff was a full time route carrier for the USPS from July 1968 until retirement. (Id.) During this period, the plaintiff was stationed at the Kingsbridge Post Office in the Bronx. (Transcript of Feb. 20, 2003 deposition of Marshall Garvin ("Garvin Feb. Dep."), attached as Ex. A to the Declaration of Megan L. Brackney dated July 16, 2004 ("Brackney Decl."), at 14-15.) The plaintiff is a Modern Orthodox Jew. (Id. at 198.) The plaintiff observes the Sabbath from Friday evening until Saturday evening in accordance with Modern Orthodox Judaism, meaning that, during this period, the plaintiff does not work or use his car, telephone, or television. (Id.; Garvin Aff., ¶ 3.) The plaintiff also observes the Jewish holidays and follows the Jewish dietary laws, which allow him to buy and eat only Kosher foods and to patronize only Kosher establishments. (Id.) Because of his religious observance, the plaintiff was not required to work on Saturdays or Jewish holidays during his employment at the USPS from February 1967 until his retirement. (Transcript of Aug. 20, 2003 deposition of Marshall Garvin ("Garvin Aug. Dep."), attached as Ex. B to Brackney Decl., at 223, 249.) The plaintiff suffers from stacis dermatitis, or leg and ankle ulcerations, and varicose veins. (Garvin Aff., ¶ 4.) The plaintiff was first diagnosed as suffering from these conditions in July 1984. (Garvin Feb. Dep., at 78.) The plaintiff alleges that these conditions cause him severe pain and swelling, particularly during the summer, when he cannot wear support hose and a dressing wrap known as an "unna boot." (Garvin Aff., ¶ 4.) The plaintiff alleges that, during the summer, the constant walking required on his mail route, combined with the warm temperature, aggravated the swelling of his legs and caused occasional bleeding and severe pain, which slowed his work pace. (Id.) As a result of these conditions, the plaintiff's doctors instructed him to wear soft shoes or slippers and not to work over eight hours per day. (Id., ¶ 7; Transcript of Mar. 22, 2004 deposition of Marshall Garvin, ("Garvin Mar. Dep.") attached as Ex. C to Brackney Decl., at 46-47.) The plaintiff submitted doctors' notes to this effect to his supervisors and managers at the USPS, including but not limited to Sandy Simon ("Simon"), Tosha Dennis ("Dennis"), Walter Molia ("Molia"), and John 555 Raciti ("Raciti"), requesting that he not be required to work any overtime. (Garvin Aff., ¶ 7, 8.) The plaintiff did not work any overtime hours from 1984 until his retirement. (Garvin Aug. Dep. at 374-75.) As a mail carrier, the plaintiff generally had two direct supervisors who were supervised by the station manager. (Garvin Feb. Dep. at 19-20.) From 1997 until 2001, the plaintiff's direct supervisors included Sloane Williams ("Williams"), who supervised the plaintiff from mid-1997 through 1998, Kendra Barrett ("Barrett") and Dennis, who supervised the plaintiff from October 1998 until January 2000, Simon, who supervised the plaintiff from June 1998 until November 2001, and Molia, who supervised the plaintiff from October 1998 until December 2001. (Transcript of Mar. 18, 2004 deposition of John Raciti ("Raciti Dep."), attached as Ex. E to Brackney Decl., at 17-20; Garvin Feb. Dep. at 79-80, 85, 105-06, 116, 137, 147). Henry Reyes ("Reyes") was the Station Manager at Kingsbridge from June 1996 until June 1998. (Garvin Feb. Dep. at 20.) Raciti replaced Reyes, and served as the Station Manager from June 1998 until November 2001. (Garvin Feb. Dep. at 97.) The station manager is supervised by an area manager, who in turn is supervised by the Bronx Postmaster. (Transcript of Mar. 15, 2004 deposition of Tony Rosario ("Rosario Dep."), attached as Ex. D to Brackney Decl., at 6, 24-25.) Tony Rosario ("Rosario") has been the Bronx Postmaster since 1996. (Rosario Dep. at 6.) The plaintiff alleges that he suffered religious discrimination and was subjected to a hostile work environment because of his religious beliefs while he was employed by the USPS. The plaintiff alleges that his supervisors and managers failed to instruct the sub-carriers who delivered mail to his route on Saturdays to deliver the full volume of mail, purposefully ensuring that the plaintiff would have to deliver an inordinately large volume of mail on Mondays as a punishment for his being absent on Saturdays. The defendant alleges that, when the plaintiff complained about this situation on one occasion, Raciti investigated and discovered that Miriam Ramirez, an acting supervisor on Saturdays, was not delivering all of the mail on several routes, including the plaintiff's route, and that Raciti subsequently demoted Ramirez. (Raciti Dep. at 22-30.) The plaintiff alleges, however, that the instructions not to deliver mail on his route on Saturdays continued under other supervisors, and that Williams, Dennis, Simon, and Molia often "low-counted" his mail, purposefully recording a lower volume of mail than he had to deliver. (Garvin Feb. Dep., at 85-88, 106-09, 111-12, 117-119, 139.) The plaintiff also alleges that Raciti, Williams, Dennis, Simon, and Molia made "inappropriate and offensive comments" to the plaintiff concerning his religious observance. (Garvin Aff., ¶ 6.) The plaintiff alleges that Simon and Raciti repeatedly asked him if he could work on Saturdays, knowing that he could not because of his religious beliefs. (Id.) The plaintiff also alleges that, on or about June 16, 1997, when he complained to Simon and a temporary supervisor about the large volume of mail that he alleges was not delivered on Saturdays so that he would face a larger quantity Monday morning, their response was: "If you want something done, come in on Saturdays." (Id.) The plaintiff alleges that, on or about October 30, 1997, Williams asked him, "Can't you get the Rabbi to give you a pardon to come in on Saturday? I need you." (Id.) The plaintiff alleges that, on November 3, 1997, Williams made another remark, this time directed at both his religion and his disability, saying, "You're the best carrier here. The only problem is that you spend too much time in the synagogue and the doctor's office." (Id.) The plaintiff also 556 alleges that, on or about August 18, 1999, during a break from an arbitration concerning disciplinary measures taken against the plaintiff, Dennis told the plaintiff that she was under orders from Raciti to discipline the plaintiff because he was not flexible enough about his religion. (Id.; Garvin Feb. Dep. at 47-49.) In her deposition, Dennis acknowledged having told the plaintiff during a break from an arbitration that he should be flexible, but denied that the comment concerned the plaintiff's religion or disability. (Transcript of Mar. 22, 2004 deposition of Tosha Dennis ("Dennis Dep."), attached as Ex. F to Brackney Decl., at 14-17.) The plaintiff also alleges that his supervisors and managers, specifically Raciti and Frank Leto, were unreasonable regarding his need to request time off for the Jewish holidays. The plaintiff alleges that whenever he wanted time off for a Jewish holiday, he was required to show proof of the holiday by bringing in a calendar. (Garvin Feb. Dep. at 70; Garvin Aug. Dep. at 223.) In addition, the plaintiff alleges that his requests for leave for Jewish holidays were often not returned within 72 hours as USPS supervisors and managers are required to do, and that consequently Garvin sent the requests by certified mail. (Garvin Feb. Dep. at 71-76.) The plaintiff alleges that on another occasion, Raciti answered a request for absence during the Jewish holiday of Passover with an insult. (Garvin Feb. Dep. at 72.) In his deposition, Raciti denied having made the statement, and claims that he only refused requests that were submitted through certified mail because that was not the proper procedure, and that any request not returned within 72 hours was automatically granted. (Raciti Dep. at 54-58.) The plaintiff acknowledged that he was in fact paid for the requested time off for Passover. (Garvin Feb. Dep. at 76) The plaintiff also conceded that he was never required to work and was not disciplined for not working on the Sabbath or any other Jewish holiday, and that he never lost pay for not working on the Sabbath or any other Jewish holiday. (Garvin Aug. Dep. at 223-24.) The plaintiff alleges that he was discriminated against and faced a hostile work environment because of his alleged disability namely, his condition of having leg and ankle ulcerations and varicose veins. The plaintiff alleges that, from June 15, 1998 until Raciti left the station in November 2001, Simon, Dennis, Molia, and Raciti repeatedly requested that the plaintiff work overtime despite the fact that the plaintiff had provided them doctors' notes stating that he could not work more than eight hours each day. (Garvin Aff., ¶ 7.) The plaintiff alleges that his supervisors and managers forced him to bring in doctors' notes for all medical absences. (Garvin Feb. Dep. at 124-25.) The plaintiff alleges that USPS rules only require documentation for an absence of three days or more. (Id.) The plaintiff admits that he did eventually receive pay for his sick leave, but argues that his supervisor purposefully delayed processing his requests by two or three days. (Id. at 142.) The plaintiff alleges that his supervisors attempted to force him to work overtime, even though his doctor had advised him not to work more than eight hours each day. (Garvin Feb. Dep. at 50-51.) On January 19, 1999, the plaintiff requested two hours of assistance to complete his route, and Dennis provided the plaintiff with one and a half hours of assistance, directing him to work a half hour overtime to complete his route. (Brackney Decl., Ex. N.) The defendant alleges that the plaintiff refused to work overtime, and instead left the undelivered mail in an apartment building and returned to the post office without notifying Dennis that he was unable to complete his route. (Id.) Dennis 557 issued the plaintiff a fourteen-day suspension for failure to follow instructions. (Id.) Dennis testified that she had not been aware at the time that the plaintiff had a medical condition that prevented him from working overtime. (Dennis Dep. at 30-35.) She also alleged that the suspension was issued because the plaintiff left the undelivered mail in the building rather than following Dennis' instructions to call her if he needed additional assistance. (Dennis Dep. at 27-28.) In response to the suspension, the plaintiff filed a grievance and an arbitration hearing was held. (Brackney Decl., Exs. O, P.) The arbitrator found that the USPS had just cause to issue the suspension, but reduced the suspension to a letter of warning because the decision to issue a suspension was based on previous disciplinary actions that had subsequently been reduced. (Brackney Decl., Ex. P.) The plaintiff also alleges that he was disciplined for wearing sneakers or slippers in accordance with his doctors' instructions. The plaintiff alleges that on one occasion, when working at the post office before going out on his route, he was wearing slippers to alleviate the pain in his legs, but Dennis required him to change from slippers into his uniform shoes. (Garvin Aff., ¶ 8.) It appears from a letter of warning issued to the plaintiff that this exchange took place on August 18, 1999. (Letter of warning in lieu of suspension dated Aug. 19, 1999, attached as Ex. T to Brackney Decl.) The plaintiff alleges that when he tried to explain that he was wearing the slippers for health reasons, Dennis replied, "I don't want to hear it." (Garvin Aff., ¶ 8.) On or about October 28, 1999, the plaintiff alleges, Molia sent him home from work because the plaintiff was wearing sneakers and was therefore out of uniform. (Id.) The plaintiff alleges that three other mail carriers also were not wearing uniform shoes. (Garvin Aff., ¶ 8.) In his deposition, however, the plaintiff stated that he had been wearing slippers, not sneakers. (Garvin Mar. Dep. at 33-34, 55-56.) The plaintiff also stated that slippers were not permitted on the work floor because they posed a safety hazard. (Garvin Mar. Dep. at 57.) The plaintiff alleges that he was often denied assistance when he could not finish his route within eight hours. The procedure for granting assistance is that a carrier must request assistance from his supervisor, who may then grant the request by sending another carrier to complete a portion of the route. (Garvin Mar. Dep. at 68.) Under USPS rules, a carrier could receive at most two hours of assistance with his route per day. (Id.) The plaintiff asked for assistance most frequently on Mondays. (Id. at 69.) The plaintiff received assistance 25% of the times that he requested it, and two out of four Mondays each month. (Id. at 70-71; Garvin Aug. Dep. at 219.) The plaintiff also alleges that the defendant subjected him to harassment from his managers and supervisors, although the specific incidents were verbal instructions to comply with various work rules. He alleges that on one occasion, Dennis ordered him not to use his mobile phone on the work floor when he was calling his doctor for a medical emergency. (Garvin Feb. Dep. at 137-39.) The plaintiff concedes that postal workers are prohibited from using their mobile phones on the work floor, but alleges that several other employees were allowed to use their phone without being reprimanded. (Id. at 138, 140-41.) The plaintiff also claims that Molia followed him on his route repeatedly and harassed the plaintiff for using his own car to deliver the mail. (Id. at 116-18.) The plaintiff concedes that postal workers are prohibited from using their own vehicles to deliver the mail, but alleges that other workers were allowed to use 558 their cars without being questioned about it. (Id. at 123.) The plaintiff also alleges that, on January 11, 1999, Barrett did not allow him to buy stamps from postal workers behind the counter. (Id. at 150-51.) Although Garvin concedes that postal workers were prohibited from making such "back door" transactions, the plaintiff alleges that the practice was common and he was singled out for enforcement of the prohibition. (Id.) The plaintiff also alleges that the defendant did not properly respond to the plaintiff's complaints that he was being harassed by David Asher, a postal patron, and that Rosario conspired with Asher to force the plaintiff from his job. (Garvin Aff., ¶ 12; Garvin Feb. Dep. at 33, 36-37; Garvin Aug. Dep. at 297, 377; Garvin Mar. Dep. at 97.) The dispute between the plaintiff and Asher began shortly after plaintiff began delivering mail to Asher's home in 1996. (Garvin Feb. Dep. at 29, 32; Garvin Aug. Dep. at 342.) Between 1997 and 2001, the plaintiff lodged fourteen complaints with the police against Asher. (Garvin Aug. Dep. at 284.) The plaintiff alleges that on September 4, 1997, Asher struck the plaintiff and threatened to kill him. (Garvin Feb. Dep. at 32; Garvin Mar. Dep. at 85, 88-89.) The plaintiff's supervisor, by order of Raciti, subsequently directed the plaintiff to stop delivering mail at Asher's building for a few weeks. (Brackney Decl., Ex. AF; Garvin Aug. Dep. at 312; Garvin Mar. Dep. at 87; Raciti Dep. at 96-97.) The plaintiff resumed delivering mail to Asher's address on November 12, 1997, but continued to have conflicts. (Garvin Aug. Dep. at 315.) The USPS had postal inspection services following him to monitor the situation. (Garvin Mar. Dep. at 88-89.) The plaintiff was required to work indoors for one month, and Asher's address was permanently reassigned to another carrier. (Garvin Mar. Dep. at 90-93.) The plaintiff alleges that he was harassed and threatened by Rosario as a result of Asher's complaints. The plaintiff alleges that, on May 15, 1997, Rosario received numerous complaints from Asher about the plaintiff, all of which the plaintiff alleges were false. (Garvin Aff., ¶ 10.) The plaintiff alleges that Rosario told the plaintiff, "Sooner or later, you're going to fuck up, and when you do, I am going to be there to catch you and put my foot up your ass." (Id.) On or about November 11, 1997, the plaintiff alleges, Rosario threatened him at an office-wide meeting on the work floor, stating that he had received complaints at a town hall meeting about a carrier who delivered mail to Dr. Asher's building who "[stuck] out like a sore thumb," and that the next time the carrier stuck out like a sore thumb, Rosario would break the carrier's thumb. (Id., ¶ 11; Garvin Feb. Dep. at 44-46, 164-65.) The plaintiff alleges that it was obvious that Rosario was referring to the plaintiff, because Dr. Asher's residence was on the plaintiff's route. In his deposition, Rosario denied making the May 15, 1997, comment. (Rosario Dep. at 32-35.) Rosario stated that the November 11, 1997, comment referred to complaints he had received but denied that the comment referred to the plaintiff or 3530 Henry Hudson Parkway or contained a threat to break anyone's thumb. (Id.) The plaintiff filed a complaint with the United States Equal Employment Opportunity Commission (the "EEOC") in response to each alleged threat. (Garvin Aff., ¶ 10, 11; Brackney Aff., Exs. AI, AH.) The plaintiff also alleges that, because he reported these alleged threats and complained about the allegedly discriminatory behavior described above, he was targeted for disciplinary action. The plaintiff alleges that he was disciplined on thirteen separate occasions from October 1998 until June 2000. (Garvin Aff., ¶ 13.) The parties 559 have provided evidence of eleven separate disciplinary actions within this time period. (Brackney Decl., Exs. H, J, N, Q, S, T, W, Y, AA, AB, AD.) The plaintiff filed grievances in response to all but one of these disciplines. Nine of the ten disciplinary measures against which the plaintiff filed a grievance were subsequently rescinded, expunged, or reduced. (Brackney Decl., Exs. I, K, M, P, R, T, V, X, Z, AC.) Only one of the disciplines against which the plaintiff filed a grievance was sustained in its entirety. (Brackney Decl., Ex. AE.) Only one disciplinary action resulted in a suspension that the plaintiff was required to serve. On June 24, 1999, the plaintiff was issued a notice of removal on a charge that he failed to place mail in mail receptacles. (Brackney Decl., Ex. S.) The notice of removal was subsequently reduced to a seven-day suspension. (Brackney Decl., Ex. T.) The only discipline that was sustained in its entirety after the plaintiff disputed it occurred on June 12, 2000. On that date, the plaintiff received a seven-day "paper" suspension for failure to follow instructions. (Brackney Decl., Ex. AD.) The "paper" suspension did not require the plaintiff to take time off from work. (Id.) The plaintiff filed a grievance, an arbitration hearing was held, and the suspension was upheld the only discipline to be sustained completely. (Brackney Decl., Ex. AE.) On February 26, 1998, the USPS Human Resources Manager, James Connolly, held a meeting with the plaintiff, the plaintiff's mother, and several members of the USPS management. (Connolly Agreement, attached as Ex. F to Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment ("Opp.Mem.").) The participants signed an agreement (the "Connolly Agreement") providing that the plaintiff would be treated like all other employees at the Kingsbridge Station. (Id.) The Connolly Agreement provided that it was to remain in effect so long as the plaintiff was actively employed by the USPS. The plaintiff alleges that discrimination and retaliation continued after the signing of the Connolly Agreement, constituting a breach of the Agreement. (Amd.Compl., ¶ 12.) The plaintiff alleges that the hostile environment and retaliation created by the defendant forced him to retire. (Amd.Compl., ¶ 11.) The plaintiff retired from the USPS in February 2002. (Garvin Aff., ¶ 5.) III. A. The plaintiff's claims under the NYHRL and the NYCHRL alleging religious discrimination or retaliation for complaints about such discrimination are barred because Title VII is the exclusive remedy for federal employees alleging employment discrimination based on race, color, religion, sex, or national origin. See Brown v. General Serv. Admin., 425 U.S. 820, 832-35, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976); Lewis v. Snow, No. 01 Civ. 7785, 2003 WL 22077457, at 11 (S.D.N.Y. Sep.8, 2003) (dismissing plaintiff's New York State law claim for employment discrimination); O'Brien v. Frank, No. 88 Civ. 5536, 1994 WL 440730, at 2 (S.D.N.Y. Aug.12, 1994). To allow the plaintiff to go forward with his claims under state law and New York City law would be inconsistent with the holding in Brown v. Gen. Servs. Admin., in which the Supreme Court found that allowing an identical claim of employment discrimination to be pursued against the government through other statutes would render meaningless the "rigorous administrative exhaustion requirements and time limitations" of Title VII and would eliminate the "crucial administrative role that each agency ... was 560 given by Congress in the eradication of employment discrimination." Brown, 425 U.S. at 833, 96 S.Ct. 1961; see also DiPompo v. West Point Military Academy, 708 F.Supp. 540, 544 (S.D.N.Y.1989). The plaintiff's claims under the NYHRL and the NYCHRL alleging discrimination based on his alleged disability or retaliation for complaints about such discrimination are also barred because the Rehabilitation Act is the exclusive remedy for federal employees alleging disability discrimination. Although Brown concerned discrimination based on race, color, religion, sex, or national origin, the Supreme Court's holding in Brown that Title VII is the exclusive remedy for federal employees alleging discrimination also applies to disability discrimination in violation of the Rehabilitation Act,[1] because Congress made the remedies set forth in Title VII available to all federal employees alleging discrimination based on disability under the Rehabilitation Act. 29 U.S.C. § 794a(a)(1). See Rivera v. Heyman, 157 F.3d 101, 103-05 (2d Cir.1998) (dismissing federal employee's employment discrimination claims under NYHRL and NYCHRL because Rehabilitation Act provides sole remedy for federal employee alleging disability discrimination); DiPompo, 708 F.Supp. at 544 (dismissing federal employee's claims of employment discrimination based on disability under NYHRL because such claims can arise only under the Rehabilitation Act, which was effectively incorporated into Title VII by 29 U.S.C. § 794a(a)(1)). Therefore, the defendant's motion for summary judgment is granted dismissing the plaintiff's first, second, third, fourth, seventh, eight, ninth, tenth, thirteenth, and fourteenth causes of action. B. 1. The plaintiff originally asserted his fifth and sixth causes of action under the ADA. The defendant argued correctly in support of the current motion that the USPS is not an "employer" within the meaning of the ADA and thus the plaintiff has no remedy for employment discrimination under the ADA. See 42 U.S.C. §§ 12111(2) & 5(B)(i); Rivera, 157 F.3d at 103-04; White v. U.S. Postal Serv., No. 01 Civ. 499, 2002 WL 31466767, at 1 (S.D.N.Y. Oct. 31, 2002). In response, the plaintiff withdrew his fifth and sixth causes of action under the ADA, but argues that he has established a prima facie case for disability discrimination under the Rehabilitation Act. The plaintiff therefore requests that his fifth cause of action be construed under the Rehabilitation Act. The defendant does not object. The plaintiff's sixth cause of action is therefore dismissed, and the Court will construe the plaintiff's fifth cause of action as alleging a claim of discrimination under the Rehabilitation Act. To establish a prima facie case of discrimination under the Rehabilitation Act, the plaintiff must demonstrate that: (1) the employer is subject to the Rehabilitation Act; (2) the plaintiff is a disabled person as defined by the Rehabilitation Act; (3) the plaintiff is "otherwise qualified" that is, he could perform the essential functions of his job with or without reasonable accommodation; and (4) the plaintiff suffered an adverse employment action because of his disability. Kinsella v. Rumsfeld, 320 F.3d 309, 314 (2d Cir.2003); Weixel v. Bd. of Educ. of New York, 287 F.3d 138, 147 (2d Cir.2002). The defendant argues that the plaintiff is not 561 "disabled" as defined by the Rehabilitation Act and that, in any event, the defendant has accommodated the plaintiff's disability in accordance with the Rehabilitation Act. 2. The Rehabilitation Act defines an individual with a disability as "any person who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities; (ii) has a record of such an impairment; or (iii) is regarded as having such an impairment." 29 U.S.C. § 705(20)(B). This definition is almost identical to that of a disabled person under the ADA. See 42 U.S.C. § 12102(2). Therefore, in determining whether the plaintiff falls within this definition, cases that interpret the definition of a disabled person under the ADA are instructive. See Weixel, 287 F.3d at 146-48 (using same analysis to determine whether plaintiff was disabled within meaning of both ADA and Rehabilitation Act). The plaintiff argues that he has a physical impairment that substantially limits a major life activity. To establish such an impairment, the plaintiff must show (1) the presence of a mental of physical impairment, (2) that the impairment affects a "major life activity," and (3) that the impairment "substantially limits" this major life activity. Toyota Motor Mfg. v. Williams, 534 U.S. 184, 194-95, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002); Colwell v. Suffolk County Police Dep't, 158 F.3d 635, 641 (2d Cir.1998); Weixel, 287 F.3d at 147; Stalter v. Bd. of Cooperative Educ. Servs. of Rockland County, 235 F.Supp.2d 323, 329 (S.D.N.Y.2002). The plaintiff argues that his leg ulcers and varicose veins constitute a physical impairment that substantially limits his ability to walk, a major life activity. See Toyota Motor, 534 U.S. at 197, 122 S.Ct. 681 (including walking in list of "major life activities" for purposes of determining whether plaintiff was disabled). For the purposes of this motion, the defendant does not dispute that the plaintiff has a physical impairment, that walking is a "major life activity" within the meaning of the Rehabilitation Act, or that this physical impairment may impair the plaintiff's ability to walk. Therefore, the issue is whether the plaintiff's physical impairment "substantially limits" the plaintiff's ability to walk within the meaning of the Rehabilitation Act. Because the Rehabilitation Act regulations provide no guidance as to what constitutes a "substantial limitation," Second Circuit courts have looked to EEOC regulations implementing the ADA, which define the term to mean: "(i) Unable to perform a major life activity that the average person in the general population can perform; or (ii) Significantly restricted as to the condition, manner, or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity." See Colwell, 158 F.3d at 643 (citing 29 C.F.R. § 1630.2(j)(1)). Whether a physical impairment substantially limits a major life activity is an "individualized and fact-specific" inquiry. Id. at 643. The plaintiff does not fall into either of the two categories listed in the EEOC regulations. The plaintiff alleges that his physical condition causes severe pain and swelling in his legs and feet and that, because of this pain, his doctors advise him against walking for more than eight hours each day. (Garvin Aff., ¶ 7; Notes from Henry A. Greenblatt, M.D. ("Physician's Notes"), attached as Ex. B to Opp. Mem.) The plaintiff also alleges that this pain caused him to work slowly on his route. (Garvin Aff., ¶ 4.) However, conditions that do not limit the plaintiff from walking eight hours a day in the demanding occupation 562 of a postal route carrier do not arise to the level of a substantial limitation on the major life activity of walking. Courts in this district have repeatedly held that the need to walk slowly and the inability to walk long distances or for long periods of time much less than the plaintiff can walk do not constitute substantial limits on walking. See, e.g., Mitchell v. Girl Scouts of the U.S.A., No. 98 Civ. 3730, 2003 WL 22705121, at 6 (S.D.N.Y. Nov.17, 2003) (finding that inability to do a "substantial amount of walking ... while of course to an extent is limiting, does not rise to the level of a substantial limitation"); Rosa v. Brink's, Inc., 103 F.Supp.2d 287, 290 (S.D.N.Y.2000) (finding inability to walk for long period of time does not amount to substantial limitation); Butterfield v. New York State, No. 96 Civ. 5144, 1998 WL 401533, at 9 (S.D.N.Y. July 15, 1998) (finding plaintiff's trouble taking extended walks "simply does not, as a matter of law, constitute a sufficiently substantial limitation to allow his case to go to the jury on this point"); Hazeldine v. Beverage Media, Ltd., 954 F.Supp. 697, 703-04 (S.D.N.Y.1997) (finding plaintiff's inability to walk more than five city blocks without resting did not support conclusion that her weight substantially limited major life activity). Courts in other Circuits have reached similar conclusions. See, e.g., Kelly v. Drexel Univ., 94 F.3d 102, 106 (3d Cir.1996) (affirming district court's holding that plaintiff's inability to walk more than one mile, inability to jog, and need to move slowly and hold handrail when climbing stairs did not, as a matter of law, substantially limit his ability to walk); Graver v. Nat'l Eng'g Co., No. 94-C-1228, 1995 WL 443944, at 10-11 (N.D.Ill. July 25, 1995) (finding plaintiff's limp and pain while walking did not constitute disability); Stone v. Entergy Servs., Inc., No. 94-2669, 1995 WL 368473, at 4 (E.D.La. June 20, 1995) (finding plaintiff's inability to walk briskly or climb stairs not substantial limitation on major life activity). The plaintiff's inability to walk quickly or to walk for over eight hours is therefore not a substantial limitation on a major life activity. Because the plaintiff does not fall within the meaning of a "disabled person" as defined by the Rehabilitation Act, summary judgment is granted in favor of the defendant with respect to the plaintiff's fifth cause of action. 3. To the extent that the plaintiff alleges in his fifth cause of action that the defendant is liable for failure to accommodate his alleged disability, summary judgment in favor of the defendant is also appropriate because the defendant reasonably accommodated the plaintiff's alleged disability as required by the Rehabilitation Act. The Rehabilitation Act requires an employer to provide reasonable accommodations for qualified employees with a disability. 29 U.S.C. § 794(d), incorporating by reference 42 U.S.C. § 12112(b)(5)(A). See Stone v. City of Mount Vernon, 118 F.3d 92, 96-97 (2d Cir.1997). In his opposition papers on the current motion, the plaintiff alleges that the defendant failed to reasonably accommodate the plaintiff because the defendant did not permit the plaintiff to wear soft shoes and because the defendant repeatedly requested that the plaintiff work overtime. The defendant's failure to permit the plaintiff to wear slippers[2] on the work 563 floor of the postal station does not constitute a failure to accommodate under the Rehabilitation Act. The plaintiff admits that wearing slippers on the work floor posed a safety hazard. (Garvin Mar. Dep. at 57.) An employer is not required to make an accommodation that would pose safety risks. See DiPompo v. West Point Military Academy, 770 F.Supp. 887, 893-94 (S.D.N.Y.1991) (finding request by firefighter to eliminate training requirements that involved substantial reading would pose "obvious and unacceptable safety risks" and thus was not required under Rehabilitation Act), aff'd, 960 F.2d 326 (2d Cir.1992). Thus the defendant's refusal to make this accommodation was not unreasonable under the Rehabilitation Act. The defendant's repeated inquiries into the plaintiff's ability to work overtime also did not constitute a failure to accommodate the plaintiff's alleged disability. The defendant never required the plaintiff to work overtime from 1984 until the plaintiff's retirement. (Garvin Feb. Dep., at 90-91; Garvin Aug. Dep. at 374-75.) Cf. Durant v. Nynex, 101 F.Supp.2d 227, 232 (S.D.N.Y.2000) (granting summary judgment for defendants in religious discrimination case where plaintiff alleged she was offered overtime work "solely to antagonize her" because of her protected status, because defendant had reasonably accommodated plaintiff by not requiring her to work overtime). 4. Summary judgment is also appropriate with regard to the plaintiff's fifth cause of action because the plaintiff has presented no evidence that the defendant took any adverse action against the plaintiff because of his disability. To establish that an employer's conduct constituted an adverse employment action, a plaintiff must provide evidence that the conduct resulted in "a materially adverse change in the terms and conditions of employment." Torres v. Pisano, 116 F.3d 625, 640 (2d Cir.1997). Such a materially adverse change must be "more disruptive than mere inconvenience or an alteration of job responsibilities," and can include, for example, "termination of employment, a demotion accompanied by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices ... unique to a particular situation." Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir.2000) (internal citations omitted). In his opposition papers on the current motion, the plaintiff identifies only two alleged adverse employment actions the failure to allow the plaintiff to wear soft shoes and the repeated requests of the plaintiff to work overtime. Neither of these actions constitutes an adverse employment action. As explained above, the plaintiff admits that wearing slippers on the work floor posed a safety hazard. (Garvin Mar. Dep. at 57.) A requirement that an employee conform to the safety requirements of a work place does not constitute a material adverse change in the plaintiff's employment. Moreover, the plaintiff did wear slippers on other occasions without being disciplined. (Garvin Mar. Dep. at 55-56.) Furthermore, inquiring if the plaintiff can work overtime does not constitute an adverse employment action, particularly when the plaintiff was never required to work overtime or penalized for not working overtime. (Garvin Mar. Dep., at 90-91, 564 374-75.) Therefore, the plaintiff's fifth cause of action must be dismissed. C. Summary judgment should also be granted dismissing the plaintiff's claim of religious discrimination under Title VII because the plaintiff has not provided sufficient evidence of an adverse employment action under circumstances that give rise to an inference of unlawful discrimination. To establish a prima facie case of religious discrimination, a plaintiff must show that: (1) the plaintiff is a member of a protected class; (2) the plaintiff was qualified for his position; (3) the plaintiff suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances that give rise to an inference of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See also Fitzgerald v. Henderson, 251 F.3d 345, 356 (2d Cir.2001); Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir.2000), cert. denied, 540 U.S. 811, 124 S.Ct. 53, 157 L.Ed.2d 24 (2003); O'Dwyer v. Snow, No. 00 Civ. 8918, 2004 WL 444534, at 9 (S.D.N.Y. Mar.10, 2004). The plaintiff alleges, and the defendant does not dispute, that he was a member of a protected class as a practicing Jew and that he was qualified for his position as evidenced by his employment of thirty-five years. (Opp. Mem. at 9-10.) Therefore, the issue is whether the plaintiff has provided evidence of an adverse employment action and if it occurred under circumstances that give rise to an inference of discrimination. As described above, to establish an adverse employment action a plaintiff must provide evidence that the employer's conduct resulted in "a materially adverse change in the terms and conditions of employment." Torres, 116 F.3d at 640. A adverse change must be "more disruptive than mere inconvenience or an alteration of job responsibilities," and can include, for example, "termination of employment, a demotion accompanied by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices ... unique to a particular situation." Galabya, 202 F.3d at 640 (internal citations omitted). 1. The plaintiff alleges that he was subject to adverse employment actions that give rise to an inference of discrimination because he was subjected to repeated requests to work overtime and on Saturdays, his supervisors arranged for mail to go undelivered on Saturdays so that he would have excessive amounts to deliver on Mondays, and he was subjected to numerous disciplinary actions. (Opp. Mem. at 10-12.) The defendant's requests for the plaintiff to work on Saturdays or overtime do not constitute an adverse employment action. Although the defendant often asked the plaintiff if he could work on Saturdays, the plaintiff's supervisors never required him to work on a Saturday or a Jewish holiday, and he never was disciplined or lost pay as a result of not working on Saturdays or other Jewish holidays. (Garvin Aug. Dep. at 224, 249.) The requests to work overtime or work during holidays that the plaintiff freely turned down were, at most, inconveniences for the plaintiff rather than a material adverse change in the terms and conditions of employment.[3] 565 The plaintiff's allegation that his supervisors ensured that the plaintiff would have a higher quantity of mail on Mondays by instructing carriers to deliver only part of the mail on the plaintiff's route on Saturdays does not provide evidence of an adverse employment action that gives rise to an inference of discrimination. Although there is evidence that, on one occasion, Raciti discovered that a supervisor was not delivering the mail on several routes, this problem was not limited to the plaintiff's route and Raciti subsequently demoted the supervisor, correcting the problem. (Raciti Dep. at 22, 29-30.) The plaintiff provides no evidence that on any other occasion his supervisors curtailed mail delivery on the plaintiff's route on a Saturday, and no evidence that they did so with any discriminatory purpose. At oral argument, counsel for the plaintiff conceded that there is no evidence to support the plaintiff's contention that any supervisor told anyone not to deliver mail on Saturdays on the plaintiff's route, and the plaintiff does not rely on the increased mail on Mondays as evidence of an adverse employment action. (Transcript of oral argument held Mar. 22, 2005 ("Tr."), at 17-18.) There is therefore no evidence of a discriminatory adverse action taken with regard to the delivery of the plaintiff's mail on Saturdays. See Baker v. Latham Sparrowbush Assocs., 72 F.3d 246, 255 (2d Cir.1995) (finding that allegation on information and belief without supporting evidence should play no role in summary judgment proceedings). The plaintiff has also failed to provide evidence that any of the plaintiff's suspensions were caused by religious discrimination. The plaintiff provides no evidence of how any specific disciplinary measures were taken by specific actors in a way from which religious discrimination could be inferred. None of the suspensions were for failing to work on Saturdays or religious holidays. Each of the disciplines was for a reason, such as failure to follow instructions, that was unrelated to the failure to work on Saturdays or Jewish holidays.[4] Of the seven suspensions issued to the plaintiff between October 1998 and June 2000, only three suspensions remained on his record, and only one of these was actually served. (Brackney Decl., Exs. K, M, P, R, S, T, X, Z, AA, AC, 566 AD, AE.) All three suspensions were issued by Molia. (Brackney Decl., Exs. S, AA, AD.) The plaintiff has provided no evidence that would show that these suspensions were caused by religious discrimination; in fact, the plaintiff stated in his February 2002 deposition testimony that Molia had never made any comments about his religion.[5] (Garvin Feb. Dep. at 124.) The plaintiff stated that he felt that Molia took the disciplinary actions against him only because he was under orders from Raciti to do so, but he provides no facts to support this assertion. (Id. at 123-24.) The plaintiff's suspicions of discrimination in the absence of any supporting evidence cannot defeat a motion for summary judgment. See Baker, 72 F.3d at 255; see also Kalsi v. New York City Transit Auth., 62 F.Supp.2d 745, 753-54 (E.D.N.Y.1998) (dismissing case where plaintiff provided no evidence suggesting termination motivated by discriminatory animus), aff'd, 189 F.3d 461 (2d Cir.1999) (TABLE). 2. The plaintiff also alleges that, even if there were no acts that individually constituted an adverse discriminatory employment action, the overall harassment to which he was subjected produced a hostile work environment, which can constitute an adverse employment action. See National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 115-16, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002); Richardson v. New York State Dep't of Corr. Serv., 180 F.3d 426, 446 (2d Cir.1999). To establish a prima facie case of hostile work environment, a plaintiff must show that: (1) the harassment was "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment," and (2) a specific basis exists for imputing the objectionable conduct to the employer. Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir.1997). The first element of the prima facie case must be established by a showing that "the workplace was so severely permeated with discriminatory intimidation, ridicule, and insult that the terms and conditions of [the plaintiff's] employment were thereby altered." Alfano v. Costello, 294 F.3d 365, 373 (2d Cir.2002). "The incidents must be repeated and continuous; isolated acts or occasional episodes will not merit relief." Kotcher v. Rosa and Sullivan Appliance Ctr., 957 F.2d 59, 62 (2d Cir.1992); Richardson, 180 F.3d at 437. The crux of the plaintiff's hostile work environment claim is the plaintiff's allegation that his supervisors created a hostile work environment by repeatedly commenting on the fact that he did not work on Saturdays. The plaintiff alleges that in November 1998 Raciti asked him why he could not work on Saturdays after he attended synagogue services, but Raciti made no comments about the plaintiff's religion after the plaintiff explained his observance of the Sabbath. (Garvin Aug. Dep. at 228-29.) The plaintiff also contends that Simon remarked that the plaintiff 567 should work on Saturdays if he found that he had too much mail to deliver on Mondays and that Dennis told the plaintiff that he was not flexible enough with his religion and that she thought he was being disciplined because of religious discrimination. (Garvin Feb. Dep. at 47-49; Garvin Aug. Dep. at 238, 252-53.)[6] The plaintiff alleges that Simon and Raciti repeatedly asked the plaintiff if he could come in on Saturdays, forcing him to explain repeatedly that he could not. (Garvin Aff., ¶ 6.) The plaintiff alleges that Williams, who allegedly claimed to have "ties to Zionism," made approximately six remarks to the plaintiff about the plaintiff's inability to work on Saturdays, including an incident in which he asked the plaintiff why he could not get a "pardon" from his Rabbi so that the plaintiff could work on Saturdays. (Garvin Feb. Dep. at 79-92, 85, 91; Garvin Aug. Dep. at 333, Garvin Mar. Dep. at 73.) These incidents do not meet the standard for establishing a prima facie case of a hostile work environment. The remarks, although insensitive and offensive, were not so severe, pervasive, and insulting as to constitute an objectively hostile work environment. See, e.g., Alfano, 294 F.3d at 376-81; Shabat v. Blue Cross Blue Shield, 925 F.Supp. 977, 982 (W.D.N.Y.1996), aff'd, 108 F.3d 1370 (2d Cir.1997). While the remarks that the plaintiff alleges that Rosario made as threats were insensitive, they are also insufficient to support a claim of religious discrimination based on a hostile work environment. Rosario's alleged May 15, 1997, remark that he would "put his foot up [the plaintiff's] ass," and his alleged remark that he would break the plaintiff's thumb if the plaintiff "stuck out like a sore thumb" (Garvin Aff., ¶ 11; Garvin Feb. Dep. at 44-45, 164-65), are isolated incidents without any reference to hostility based on religion. See Alfano, 294 F.3d at 377 (discounting incidents unrelated to alleged basis for discriminatory hostile environment); Kotcher, 957 F.2d at 62; Richardson, 180 F.3d at 437. The remarks were neutral on their face with respect to the plaintiff's religion. Moreover, the plaintiff has provided no evidence linking the remarks to animosity toward the plaintiff because of his religion. The plaintiff stated that Rosario never made any comment regarding the plaintiff's religion. (Garvin Mar. Dep. at 265-69.) The plaintiff's suspicions of religious discrimination as a motive cannot alone defeat summary judgment. See Baker, 72 F.3d at 255; see also Kalsi, 62 F.Supp.2d at 753. The plaintiff, in fact, suggests that Rosario had another motive for the alleged comments, claiming that Rosario disliked the plaintiff because Rosario believed the plaintiff commented to the press about an alleged impropriety by Rosario. (Id. at 66-67.) The plaintiff has failed to provide any evidence to support his allegations that he was subject to a hostile work environment because he was given extra mail on Saturdays, his mail was undercounted, and he was denied assistance in delivering the mail. First, for the reasons explained above, there is no evidence that the plaintiff's supervisors took measures to ensure that the plaintiff had a heavier volume of mail than other carriers on Mondays, and there is no evidence of any religiously discriminatory animus in the actions of his supervisors in connection with the volume of Monday mail, as the plaintiff's counsel conceded. (Tr. at 18.) Second, the plaintiff has provided no evidence that his mail was not counted properly or that the counting was affected by religious animosity. 568 Furthermore, because the plaintiff faced no consequences when he could not complete his delivery without assistance, the plaintiff cannot establish that the denial of assistance was "sufficiently severe or pervasive to alter the conditions of the [plaintiff's] employment," as required to establish a prima facie case of a hostile work environment. See Perry, 115 F.3d at 149.[7] The plaintiff's claims that he was subject to harassment at work by being forced to abide by workplace rules also fail to establish a prima facie case for a religiously hostile work environment. The plaintiff alleges that his supervisors did not allow him to use his mobile phone at work, would not allow him to wear his slippers at work, told him not to use his car to deliver mail, and would not allow him to buy stamps behind the counter instead of waiting in line. (Garvin Feb. Dep. at 117, 137-38, 150-51 Garvin Mar. Dep. at 345.) The plaintiff concedes, however, that all of these actions were prohibited by USPS regulations, arguing only that he was singled out for enforcement of the rules. (Garvin Feb. Dep. at 117-18, 122-23, 138, 140-41, 150; Garvin Mar. Dep. at 338-40.) A handful of situations in which the plaintiff was required to abide by the workplaces regulations, does not, however, constitute harassment "sufficiently severe or pervasive to alter the conditions of the victim's employment," nor does it constitute an "abusive working environment" as required to create a prima facie case for a hostile working environment. Perry, 115 F.3d at 149. There is also no evidence linking these facially neutral actions to a religiously hostile working environment. The plaintiff's claim that the defendant failed to investigate the plaintiff's complaints regarding the postal patron Asher also fails to support his hostile work environment claim. The plaintiff offers no evidence of such a failure. Indeed, the evidence shows that that the plaintiff's conflict with Asher was, in fact, investigated. The plaintiff alleges that the Postal Inspectors that investigated the situation were discriminating against him by following him on his route and observing him in Asher's building. (Garvin Feb. Dep. at 194-95.) He also alleges that he was discriminated against when Asher's residence was removed from his route due to the conflict between the plaintiff and Asher. (Garvin Aug. Dep. at 312-14; Garvin Mar. Dep. at 90-93; Brackney Decl. at Ex. AG.) The plaintiff alleges that the investigation was discriminatory because the investigators sided with Asher and because the investigators were under orders from Rosario to discriminate against the plaintiff. (Garvin Feb. Dep. at 185-86, 191.) The plaintiff, however, offers no evidence that these measures were discriminatory or that Rosario took them out of any religious hostility. There is no evidence to suggest that that the investigation and subsequent measures were motivated by anything other than an attempt to protect the plaintiff by eliminating contact between Asher and the plaintiff, particularly when previous 569 contact had resulted in physical violence. (Garvin Feb. Dep. at 32; Garvin Mar. Dep. at 85-89.) Finally, the plaintiff's allegation that Rosario conspired with Asher to force the plaintiff from his job (Garvin Aff., ¶ 12; Garvin Feb. Dep. at 33-37; Garvin Aug. Dep. at 297, 377; Garvin Mar. Dep. at 97) is unsupported by any evidence. The plaintiff claims that he was disciplined as a result of a complaint made by Asher, and points to one discipline that arose after an anonymous complaint was made from Asher's address. (Garvin Feb. Dep. at 38-40; Garvin Aug. Dep. at 221.)[8] The plaintiff provides no evidence that Rosario conspired with Asher to make the complaint. Without any facts to support this claim, it cannot establish a prima facie case for a hostile working environment. See Baker, 72 F.3d at 255; see also Kalsi, 62 F.Supp.2d at 753. For the reasons stated above, summary judgment is granted dismissing the plaintiff's fifteenth cause of action, which alleges religious discrimination under Title VII. D. Summary judgment is also warranted to dismiss the plaintiff's claim of constructive discharge because the plaintiff has provided no evidence that he was forced to resign. To establish a claim of constructive discharge, a plaintiff must show that the defendant "deliberately made his working conditions so intolerable that he was forced into an involuntary resignation." Stetson v. NYNEX Service Co., 995 F.2d 355, 360-61 (2d Cir.1993) (internal citation and quotation marks omitted); Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir.1983). Here, the plaintiff argues that he was compelled to resign because he was the subject of an inordinate amount of disciplinary action, which made him reasonably believe that he would be terminated and lose his pension. (Opp. Mem. at 20.) The plaintiff has testified, however, that he retired because he was afraid that he might be convicted in a pending criminal trial and therefore lose his pension. (Garvin Feb. Dep. at 100; Garvin Mar. Dep. at 377-79.) The plaintiff has testified that his criminal prosecution was scheduled to conclude on February 25, 2000, and so he requested that the USPS permit him to retire on February 22, 2000, so that he could retain his pension. (Garvin Mar. Dep. at 378-79.) Because the plaintiff has testified that his retirement was due to these concerns, rather than the defendant's making his working conditions intolerable, no reasonable jury could conclude that the defendant was constructively discharged. Moreover, for the reasons explained above, the plaintiff has failed to present evidence from which a reasonable jury could conclude that the incidents the plaintiff contends formed the basis for his constructive discharge were so intolerable as to force his resignation or were caused by religious discrimination or discrimination based on disability. E. Summary judgment, however, cannot be granted with respect to the plaintiff's twelfth cause of action for retaliation under Title VII. 570 To establish a prima facie case for retaliation, the plaintiff must show that: (1) he was engaged in a protected activity; (2) the employer was aware of that activity; (3) the employer took an adverse employment action against the plaintiff; and (4) there was a causal connection between the protected activity and the adverse employment action. See Sarno v. Douglas-Elliman, 183 F.3d 155, 159 (2d Cir.1999); Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir.1995); Kotcher, 957 F.2d at 64. The plaintiff alleges, and the defendant does not dispute, that the plaintiff engaged in protected activity by filing EEOC complaints on May 15, 1997 and November 11, 1997, and that the defendant was aware of these actions. (Garvin Feb. Dep. at 101, 157-60, 177.) Those complaints alleged religious discrimination and retaliation by Rosario against the plaintiff. (Brackney Decl., Exs. AH, AI.) The defendant does dispute that the plaintiff can establish the third and fourth steps of a prima facie case of retaliation. The plaintiff claims that the defendant took several adverse employment actions against him. The plaintiff claims that these adverse employment actions consisted of supervisors and managers issuing disciplinary actions, making comments about his religion and inability to work on Saturdays, failing to investigate his complaints about Asher, forcing him to bring in Jewish calendars to prove Jewish holidays, delaying his requests for time off for the Jewish holidays, and not providing assistance on his route. (Opp. Mem. at 18.) As explained above, the plaintiff's allegations that his supervisors and managers made comments about his religion and inability to work on Saturdays, forced him to prove the dates of holidays, delayed his requests for time off, and failed to provide assistance on his route do not constitute adverse employment actions, and there are no facts to support the conclusion that the defendant failed to investigate the plaintiff's complaints concerning Asher. The plaintiff was disciplined eleven times between October 1998 and June 2000. The plaintiff filed grievances against all but one of these disciplinary actions and, of the ten disciplinary actions that the plaintiff disputed, nine were eventually rescinded, cancelled, expunged, or reduced. (Brackney Decl., Exs. I, K, M, P, R, T, V, X, Z, AC.) Only one of the disciplinary actions against which the plaintiff filed a grievance was sustained in its entirety. (Brackney Decl., Ex. AE.) The defendant argues that the disciplinary measures that were subsequently rescinded, cancelled, or expunged cannot individually be considered adverse employment actions. See Yerdon v. Henry, 91 F.3d 370, 378 (2d Cir.1996) (affirming district court finding that filing of internal union charges against plaintiff did not constitute adverse employment action if charges were ultimately dismissed); Washington v. County of Rockland, 211 F.Supp.2d 507, 514 (S.D.N.Y.2002) (finding disciplinary charges and formal hearings against plaintiffs insufficient to constitute adverse employment action to establish prima facie case for retaliation where charges against plaintiffs were dismissed after hearing and loss of pay was reinstated), aff'd, 373 F.3d 310 (2d Cir.2004); Powell v. Consol. Edison Co. of New York, Inc., No. 97 Civ. 2439, 2001 WL 262583, at 8, n. 9 (S.D.N.Y. Mar. 13, 2001) (finding no adverse employment action where termination was reversed in subsequent union grievance proceeding and plaintiff was reinstated). The defendant also argues that it is doubtful whether the disciplinary actions that were not rescinded, canceled, or expunged but that did not rise to the level of a suspension could individually be considered adverse employment actions, since it is not clear that these measures entailed adverse consequences for the plaintiff. 571 See, e.g., Shabat, 925 F.Supp. at 989 (finding no adverse employment action where discipline was not accompanied by negative consequence such as demotion or denial of pay). The defendant, however, has not established that the plaintiff cannot prove that the pattern of these disciplinary actions constituted an adverse employment action. Because there are no explicit rules for determining what constitutes an adverse employment action, "courts must pore over each case to determine whether the challenged employment action reaches the level of `adverse.'" Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir.1997) (citing Welsh v. Derwinski, 14 F.3d 85, 86 (1st Cir.1994).) The Court of Appeals for the Second Circuit has also stated that an employer's action that does not, standing alone, constitute an adverse employment action may nonetheless "contribute [ ] to an atmosphere of adverse employment action" when accompanied by other actions. See Wanamaker, 108 F.3d at 466 (citing Collins v. State of Illinois, 830 F.2d 692, 704 (7th Cir.1987)). Here, the plaintiff was subjected to a pattern of disciplinary actions over a period of less than two years, several of which were subsequently found to be without merit, and almost all of which were subsequently found excessive. The plaintiff alleges, with some support, that the nature and frequency of the disciplines was "a little unusual." (Deposition of David Robinson, sworn to Mar. 17, 2004 ("Robinson Dep."), attached as Ex. C to Declaration of Danielle Gentin Stock Decl. dated Dec. 15, 2004 ("Stock Decl."), at 16.) Although several of these disciplinary measures individually might not comprise an adverse employment action, they contribute to establishing an adverse employment action in which the plaintiff was subjected to a pattern of letters of warning, suspensions, and notices of removal that were subsequently reduced or rescinded only after the plaintiff was forced to file grievances. A causal connection may be established either directly, through evidence of retaliatory animus directed against the plaintiff by the defendant, or indirectly, by showing that the protected activity was followed closely by the adverse employment action. See Johnson v. Palma, 931 F.2d 203, 207 (2d Cir.1991) (citing DeCintio v. Westchester County Medical Center, 821 F.2d 111, 115 (2d Cir.1987).) The Second Circuit Court of Appeals has not provided a bright-line rule for how brief a period of time must exist between the protected activity and the adverse employment action in order for the plaintiff to show indirectly a causal connection. See Gorman-Bakos v. Cornell Co-op Extension of Schenectady County, 252 F.3d 545, 554 (2d Cir.2001) (stating that Court "has not drawn a bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship between the exercise of a federal constitutional right and an allegedly retaliatory action" and outlining cases). Here, the eleven-month time period between the second EEOC complaint of November 1997 and the beginning of the pattern of disciplinary actions supports a finding that there is a genuine issue of material fact as to whether the actions were taken in retaliation for the plaintiff's protected conduct. See DeCintio, 821 F.2d at 115 (finding genuine issues of material fact precluded summary judgment where, among other factors, plaintiff was terminated "within one year" of filing civil action for discrimination under Title VII). The inference of a causal relationship is also supported by the pattern of disciplines itself, nearly all of which were reduced or expunged, and by testimony of another employee that the disciplines were "a little unusual." (Robinson Dep. at 16.) While *572 the defendant defends the disciplines, there are sufficient issues of material fact with respect to causality to preclude summary judgment. Therefore, the defendant's motion for summary judgment dismissing the plaintiff's twelfth cause of action for retaliation under Title VII is denied. F. The plaintiff's sixteenth cause of action alleges that the defendant is liable for breach of contract. Specifically, the plaintiff alleges that the defendant breached the Connolly Agreement. In late March and early April 1998, the plaintiff and others, including representatives of the USPS, signed the Connolly Agreement. (Connolly Agreement.) The Connolly Agreement stated, among other things, that all parties to the Agreement would treat each other with dignity and respect, and that the plaintiff would "be treated like all other employees at the Kingsbridge Station in every respect by all managers/supervisor [sic]." (Id.) The defendant claims that it is entitled to summary judgment on this breach of contract claim solely on the grounds that the plaintiff cannot prove that the Connolly Agreement was breached. The defendant has not met his burden of showing that no genuine issue of material fact exists as to the plaintiff's breach of contract claim. The defendant argues that the Connolly Agreement did not give the plaintiff any rights beyond what federal law already guaranteed him. (Def. Mem. at 35.) Even if this is true, there is a genuine issue of material fact as to whether the plaintiff was the subject of retaliation under Title VII. If the plaintiff was the victim of retaliation, these actions may constitute a breach of the terms of the Connolly Agreement that the managers and supervisors treat the plaintiff "like all other employees at the Kingsbridge Station in every respect...." (Connolly Agreement.) Omni Quartz Ltd. v. CVS Corp., 287 F.3d 61, 65-66 (2d Cir.2002) (denying motion for summary judgment on contract claim where genuine issue of material fact existed as to whether defendant had in fact performed acts that would fulfill its obligation under contract). Because a material issue of fact exists as to whether the defendant has breached the terms of the Connolly Agreement, summary judgment is denied as to the plaintiff's sixteenth cause of action. CONCLUSION For the reasons stated above, summary judgment is granted dismissing all the plaintiff's causes of action except the twelfth cause of action for retaliation under Title VII and the plaintiff's sixteenth cause of action for breach of contract. The parties are directed to file a Joint Pre-Trial order within thirty days of the receipt of this Opinion and Order. SO ORDERED. NOTES [1] As explained below, although the plaintiff alleged his fifth and sixth causes of action under the ADA, the plaintiff withdrew those causes of action, and the parties agreed that the plaintiff's fifth cause of action should now be construed as asserted under the Rehabilitation Act. [2] Although the plaintiff alleges in his affidavit dated September 13, 2004 that he was sent home from work on October 28, 1999, for wearing sneakers, in his previous deposition testimony the plaintiff stated that he was, in fact, wearing slippers at the time of the incident. (Garvin Mar. Dep. at 33-34, 55-56.) It is well settled that an affidavit submitted by a party in response to a motion for summary judgment must be disregarded to the extent that it contradicts that party's prior deposition testimony. Mack v. United States, 814 F.2d 120, 124 (2d Cir.1987); Reisner v. General Motors Corp., 671 F.2d 91, 93 (2d Cir.1982). The plaintiff also testified at his deposition that he wore slippers on other occasions and was not disciplined for doing so. (Garvin Mar. Dep. at 55-56.). [3] Similarly, the defendant's responses to the plaintiff's requests for time off during Jewish holidays do not constitute an adverse employment action. The requirement that the plaintiff provide proof of Jewish holidays by bringing in a calendar did not create a material adverse change in the plaintiff's terms and conditions of employment. The plaintiff's allegations that such requests often were not returned within 72 hours as required ignores that such requests were approved automatically if not denied within 72 hours (Raciti Dep. at 54-58), and that the requests were in fact granted and the plaintiff was never disciplined or denied pay as a result of taking off any Jewish holiday. (Garvin Aug. Dep. at 224, 249.) To the extent that the plaintiff argues that the defendant failed to accommodate his disability because the defendant was discriminating against him based on his religion, these allegations are without merit. For the reasons stated above, there is no evidence that the defendant failed to accommodate plaintiff's physical impairment. Moreover, there is no evidence linking any alleged failure to accommodate the defendant's physical impairment to religious discrimination. [4] Similarly, to the extent that the plaintiff argues that the defendant failed to accommodate him as required by § 701(j) of Title VII, this claim is without merit. See 42 U.S.C. § 2000e(j). In order to establish a prima facie case for failure to accommodate the plaintiff's religious beliefs in violation of Title VII, the plaintiff must establish that: 1) the plaintiff held a bona fide religious belief conflicting with an employment requirement; 2) the plaintiff informed the employer of this belief; and 3) the plaintiff was disciplined for the plaintiff's failure to comply with the conflicting employment requirement. See Cosme v. Henderson, 287 F.3d 152, 158 (2d Cir.2002). Here, the plaintiff was not required to work on Saturdays or Jewish holidays, and the plaintiff provides no evidence of any disciplinary measure taken against him that was related to the plaintiff's failure to work on Saturdays or Jewish holidays. Therefore, the plaintiff has not established a prima facie case that the defendant failed to accommodate his religious beliefs in violation of Title VII. [5] In his affidavit dated September 13, 2004, the plaintiff alleges that, on Mondays in 1998-2000, when he made complaints about his mail volume, Molia repeatedly told him, "If you want your route cleaned up on Saturday, come to work after your synagogue." (Garvin Aff., ¶ 6.) However, in his previous deposition testimony of February 20, 2003, the plaintiff stated that Molia had never made any comments regarding his religion. An affidavit submitted by a party in response to a motion for summary judgment must be disregarded to the extent that it contradicts that party's prior deposition testimony. Mack, 814 F.2d at 124; Reisner, 671 F.2d at 93. Therefore, for the purposes of this motion, the Court disregards the plaintiff's subsequent contention that Molia commented on the plaintiff's observance of the Sabbath. [6] The October 1998 discipline about which the plaintiff testified, and which was ostensibly based on allegedly delaying the mail, was eventually reduced to a letter of warning and ultimately expunged after arbitration. (Brackney Decl., Exs. E K, M.) [7] The plaintiff's claims that he was harassed for taking sick leave, that he was required to bring in a calendar to prove the dates of Jewish holidays, and that his requests for sick leave were not confirmed in a timely fashion also do not provide evidence of a hostile work environment. While USPS regulations did not obligate the plaintiff's supervisors to demand documentation for sick leave that amounted to fewer than three days, the regulations allowed the plaintiff's supervisors to require such documentation at their discretion. (Brackney, Ex. G). Moreover, the plaintiff's requests for vacation and sick leave were, in fact, granted and the plaintiff was never disciplined or denied pay as a result of taking sick leave or taking off for a Jewish holiday. (Garvin Feb. Dep. at 76, 84, 142; Garvin Aug. Dep. at 224, 249.) [8] On June 24, 1999 the plaintiff received a notice of removal for failure to place the mail in mail receptacles. (Brackney Decl., Ex. S; Garvin Feb. Dep. at 38-40.) On June 17, 1999, Molia had received an anonymous call from a postal patron alleging that the plaintiff had failed to place the mail in mail receptacles. (Garvin Feb. Dep. at 38-40; Brackney Decl., Ex. S.) The defendant alleges that Molia investigated and discovered that the mail was indeed outside the receptacles. (Brackney Decl., Ex. S.) The notice of removal was subsequently reduced to a seven-day suspension. (Brackney Decl., Ex. T.)	{ "pile_set_name": "FreeLaw" }
486 S.E.2d 887 (1997) BISHOP v. The STATE. No. S97P0205. Supreme Court of Georgia. July 16, 1997. Reconsideration Denied July 30, 1997. 891 Brian G. Combs and Reginald L. Bellury, Milledgeville, for Bishop. Fredric Daniel Bright, Dist. Atty., Milledgeville, Susan V. Boleyn, Senior Asst. Atty. Gen., and Wesley Scott Horney, Asst. Atty. Gen., Department of Law, Atlanta, for the State. Joseph L. Chambers, Sr., Prosecuting Attorneys Counsel, Smyrna. Michael Mears, MultiCounty Public Defender, Atlanta. Steve Bayliss, Georgia Resource Center, Atlanta. 888 889 890 CARLEY, Justice. The grand jury indicted Joshua Daniel Bishop for the malice murder and armed robbery of Leverett Morrison. The State filed notice of its intent to seek the death penalty for the murder. After finding Bishop guilty of the crimes, the jury returned a verdict imposing a death sentence, finding, as the aggravating circumstance, that Bishop had murdered Morrison in the course of committing the additional capital felony of armed robbery. OCGA § 17-10-30(b)(2). The trial court entered judgments of conviction and sentences on the jury's guilty verdicts. Bishop's motion for new trial was denied and he appeals.[1] General Grounds 1. The evidence presented at trial authorized the jury to find the following: Morrison drove Bishop and Bishop's co-indictee, Mark Braxley, to a bar. Bishop and Braxley decided to steal Morrison's car. The three left the bar around 11:00 p.m. and drove to Braxley's trailer. Bishop reached into the sleeping Morrison's pocket for the car keys, but Morrison awoke and sat up. Bishop began to beat Morrison about the head and face with a blunt object. When Morrison was unconscious, Bishop took the car keys. Eventually realizing that Morrison was dead, Bishop and Braxley wrapped and then loaded the body into the back seat of Morrison's car. They drove to a dumpster which was located a short distance from Braxley's trailer. After unsuccessfully attempting to toss Morrison's body into the dumpster, Bishop and Braxley left the body on the ground where it was discovered several hours later. They drove Morrison's car into the nearby woods, set it on fire, and then walked back to Braxley's trailer to dispose of evidence of their crimes. After his arrest, Bishop made a statement in which he admitted delivering the blows with a wooden rod until Morrison stopped breathing, and described how he and Braxley disposed of the body and burned the car. Bishop subsequently confessed that, some two weeks prior to the murder of Morrison, he participated in the murder of Ricky Lee Wills and that he buried Wills' body in the woods near Braxley's trailer. After investigators recovered Wills' body, a grand jury indicted Bishop and Braxley for that murder as well. The trial court admitted evidence regarding Bishop's participation in Wills' murder in aggravation of punishment during the penalty phase of this trial for Morrison's murder. The evidence is sufficient to enable any rational trier of fact to find proof of Bishop's guilt of malice murder and armed robbery beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 892 560 (1979). The evidence is also sufficient to authorize the jury to find Bishop's commission of armed robbery as an aggravating circumstance which supports his death sentence for the murder. Pre-trial Rulings 2. Bishop urges that his inculpatory in-custody statement should not have been admitted because, as the result of antecedent drinking and smoking crack cocaine, he was unable to make a knowing waiver of his rights. Whether there was a knowing and voluntary waiver of rights depends upon the totality of the circumstances. Reinhardt v. State, 263 Ga. 113, 115(3)(b), 428 S.E.2d 333 (1993). The record shows that Bishop read the Miranda warnings at the beginning of his statement and signed a waiver of rights form. He affirmed that he understood his rights, that he was aware of his surroundings, that his statement was voluntary and that he was not required to respond to the officers' questions. At the Jackson-Denno hearing, the officers who arrested and interviewed Bishop testified that he was coherent, that his answers were responsive to the questions and that he did not appear to be under the influence of drugs or alcohol. Under the totality of these circumstances, the trial court was authorized to find that Bishop knowingly waived his rights, despite his purported previous consumption of alcohol and drugs. Garcia v. State, 267 Ga. 257, 258(5), 477 S.E.2d 112 (1996); Philmore v. State, 263 Ga. 67, 68(2), 428 S.E.2d 329 (1993); Blackwell v. State, 259 Ga. 810, 811(2), 388 S.E.2d 515 (1990). The trial court's finding must be upheld, since it is not clearly erroneous. Adams v. State, 264 Ga. 71, 77(10), 440 S.E.2d 639 (1994). Bishop further contends that his statement was the inadmissible product of an unconstitutional warrantless arrest. "[A] `warrantless arrest' is constitutionally valid if, at the moment the arrest is made, the facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the accused had committed or was committing an offense." Crowe v. State, 265 Ga. 582, 586-587(5), 458 S.E.2d 799 (1995). Prior to Bishop's arrest, the officers had the following reasonably trustworthy information: Morrison was last seen alive leaving the bar with Bishop and Braxley around 11:00 p.m. Although Bishop and Braxley claimed Morrison left the trailer in his car about 2:00 or 2:30 a.m., they were seen driving Morrison's car after 3:00 a.m. Morrison's body was found several hours later, less than a mile away from Braxley's trailer. These facts were sufficient to give the officers a particularized and objective basis for believing that Bishop murdered Morrison. Dix v. State, 267 Ga. 429, 431-432(3), 479 S.E.2d 739 (1997). 3. Bishop argues that it was error to deny his ex parte motion for funds to hire an expert to assist him in his challenges to the arrays of the grand and traverse juries. The record indicates that the trial court did grant Bishop's request for funds to hire a "jury composition expert" and that Bishop made no further request for funds. Moreover, it does not appear that the services of an expert would have been needed to investigate a challenge to the arrays. See Spivey v. State, 253 Ga. 187, 199(7)(a), 319 S.E.2d 420 (1984). Compare Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) (insanity defense). In any event, Bishop has not attempted to show that there is a reasonable probability that the assistance of a second expert to challenge the arrays was necessary to his defense and that, without such assistance, his trial was rendered unfair. Isaacs v. State, 259 Ga. 717, 725(13)(c), 386 S.E.2d 316 (1989); Roseboro v. State, 258 Ga. 39, 41, fn. 3, 365 S.E.2d 115 (1988). 4. Bishop filed an unsuccessful challenge to the array of the grand jury based upon a prior history of alleged discrimination in the selection of forepersons and, on appeal, he urges that this challenge was meritorious. The trial court's denial of Bishop's motion does not constitute error requiring reversal of his convictions and sentences, which were based upon verdicts returned by a properly constituted traverse jury. Spivey v. State, supra at 199(7)(b), 319 S.E.2d 420. 893 See also Hobby v. U.S., 468 U.S. 339, 104 S.Ct. 3093, 82 L.Ed.2d 260 (1984). Jury Selection 5. Bishop urges that the trial court should have disqualified one of the prospective jurors, Ms. Baugh, because of her bias in favor of his guilt. Ms. Baugh initially expressed her belief that an indictee is more likely guilty than not. However, a prospective juror's expression of such a belief does not necessarily require disqualification from service. The relevant test is whether the prospective juror has formed an opinion on the guilt or innocence of the accused which is "`"so fixed and definite that the juror will be unable to set the opinion aside and decide the case based on the evidence or the court's charge upon the evidence."' [Cits.]" McClain v. State, 267 Ga. 378, 380(1)(a), 477 S.E.2d 814 (1996). Here, Ms. Baugh subsequently stated that she would hold the State to its burden of proof and that she would base her decision solely on the evidence adduced at trial. The trial court was not compelled to rely only upon Ms. Baugh's initial expression of a potentially disqualifying belief, rather than her subsequent qualifying answers. The trial court was authorized to resolve any equivocations and conflicts in Ms. Baugh's responses in favor of her qualification, and we must give deference to that resolution by the trial court. Burgess v. State, 264 Ga. 777, 780(6), 450 S.E.2d 680 (1994); Ledford v. State, 264 Ga. 60, 64(6), 439 S.E.2d 917 (1994). 6. Citing Pope v. State, 256 Ga. 195, 201(7)(e), 345 S.E.2d 831 (1986) as controlling authority, Bishop contends that the trial court should have disqualified Ms. Baugh and four other prospective jurors based upon their bias in favor of the death penalty. In Pope v. State, supra at 201(7)(e), 345 S.E.2d 831, the prospective juror did not equivocate, but unwaveringly maintained that, if the defendant were found guilty and the trial court authorized consideration of the death penalty, he would "listen" to the mitigating evidence, "but it would not change his opinion." Bishop submits that the five prospective jurors in this case likewise expressed such a disqualifying bias. MS. BAUGH Ms. Baugh stated she would probably vote for death in cases of "premeditated" murder. However, this response does not require disqualification, since "premeditated" murder is not a crime in Georgia, and premeditation is not an aggravating circumstance which would affect the jury's sentencing determination pursuant to OCGA § 17-10-30. Moreover, Ms. Baugh volunteered that she could vote to impose a sentence of life without parole even in cases of "premeditated" murder. Unlike in Pope, the entirety of Ms. Baugh's voir dire does not demand a finding that she expressed an unqualified and unequivocal bias in favor of the death penalty. The trial court was authorized to base its finding on those portions of Ms. Baugh's voir dire which demonstrated her qualification for service. Mobley v. State, 265 Ga. 292, 295(7), 455 S.E.2d 61 (1995). MR. LANGSTON Mr. Langston initially stated that he would always vote for the death penalty. However, once the nature of a bifurcated trial was explained to him, Mr. Langston said he could listen with an open mind to all of the evidence. He specifically stated that he could vote for any of the three sentencing options, even where there was an aggravating circumstance. Mr. Langston did subsequently state his belief that murder "deserved" the death penalty. However, such a personal belief would not disqualify Mr. Langston, unless it would prevent or substantially impair him from performing his duties as a juror in accordance with his instructions and his oath. Greene v. State, 268 Ga. 47, 485 S.E.2d 741 (1997). The trial court was authorized to believe Mr. Langston when he testified that he would listen to all of the evidence and that he could vote for any of the three possible sentencing options. Because Mr. Langston expressed qualifying beliefs which the trial court accepted, the refusal to strike him for cause must be upheld on appeal. Compare Pope v. State, supra. MR. WILLIAMSON Mr. Williamson did state that he had "pretty much made up his mind" to vote for 894 the death penalty, assuming there was a finding of a statutory aggravating circumstance. However, Mr. Williamson's other responses indicated that he certainly had not done so conclusively and irrevocably. He stated that he would listen to the evidence in aggravation and mitigation before arriving at a sentence and that he could vote for any of the three sentencing options, although he favored the death penalty in most cases of murder. Viewed in its entirety, Mr. Williamson's voir dire is clearly distinguishable from that of the prospective juror in Pope v. State, supra. Mr. Williamson stated that he would not decide punishment until he had heard all of the evidence. Although Mr. Williamson personally favored the death penalty as punishment for murder, he declined to rule out voting for a life sentence. His voir dire may contain seemingly contradictory responses, but prospective jurors' answers frequently will be somewhat contradictory "in response to the phrasing of the questions, the manner in which the questions were asked, and the distinctions which they asked the jurors to draw." Ledford v. State, supra at 63(6), 439 S.E.2d 917. An appellate court will defer to the trial court's resolution of any equivocations and conflicts in the prospective jurors' responses on voir dire. Greene v. State, supra; Burgess v. State, supra at 780(6), 450 S.E.2d 680; Ledford v. State, supra at 64(6), 439 S.E.2d 917. Considering the entirety of Mr. Williamson's voir dire, the trial court was authorized to find him qualified to serve. Compare Pope v. State, supra. MR. HURT Mr. Hurt stated that he was inclined to vote for the death penalty for the more culpable forms of murder and that he personally believed in "an eye for an eye." However, he also consistently indicated that he could vote for any of the three sentencing options. Although Mr. Hurt stated he would be more likely to impose the death penalty if the killing was "senseless" and there was "intent to kill," his leaning toward a death sentence under specific circumstances does not necessarily mandate his disqualification. See Crowe v. State, supra at 588(9)(a), 458 S.E.2d 799. Consideration of the entirety of Mr. Hurt's voir dire authorized the trial court to find that he would set aside any personal beliefs and that he was, therefore, qualified to serve as a juror. Compare Pope v. State, supra. MS. LATTIMORE Ms. Lattimore initially stated that she did not think that she could vote for a life sentence with the possibility of parole once the defendant had been convicted and there was a finding of a statutory aggravating circumstance. However, she later qualified her response, stating that she was unsure as to how she would vote in that situation and would have to consider all of the evidence. Ms. Lattimore also stated that she could not say she would always vote for the death penalty. It is not decisive that some of Ms. Lattimore's responses, if considered in isolation, could be construed as disqualifying. Ms. Lattimore's voir dire also contains qualifying responses and the trial court, having heard all of Ms. Lattimore's responses, concluded that she was qualified. This is in contrast to the prospective juror in Pope, who categorically and unequivocally stated that mitigating evidence would not change his mind. Although Ms. Lattimore may personally have favored the death penalty for murder, she repeatedly responded that there could be situations in which she would vote for another sentence. Based upon a review of all of Ms. Lattimore's voir dire, we find that it supports the trial court's determination that she was qualified to serve. 7. Bishop urges that he should have been allowed to ask prospective jurors whether they would be more likely to vote for death if the defendant was under the influence of drugs at the time of the crimes. The trial court did not abuse its discretion in refusing to allow Bishop to ask this question, as it called for a prejudgment of the sentence. See Hittson v. State, 264 Ga. 682, 686(6)(d), 449 S.E.2d 586 (1994); Lee v. State, 258 Ga. 762, 763(5), 374 S.E.2d 199 (1988). The trial court did not prohibit Bishop from engaging in relevant voir dire, such as by asking the prospective jurors whether they would consider drug use a mitigating factor. 895 See Lee v. State, supra at 763(5), 374 S.E.2d 199. Bishop further contends that the trial court erred by preventing him from exploring the prospective jurors' attitudes with regard to the various forms of murder, such as "premeditated" murder. However, there is no such offense in Georgia and, therefore, it was not improper to curtail questioning in that regard. Ledford v. State, supra at 63(5), 439 S.E.2d 917. 8. The trial court's pre-voir dire charge included an instruction on the sentence of life without parole, which informed the prospective jurors, in accordance with OCGA § 17-10-31.1(d)(1), that such a sentence would result in incarceration for the remainder of the defendant's natural life and his ineligibility for parole, "unless he is subsequently adjudicated to be innocent of the offense for which he was sentenced." Bishop urges that the inclusion of this qualifying phrase may have misled the prospective jurors into believing that there was a potential "loophole" in the life-without-parole sentence and that this may then have caused them to reject imposition of that sentence. The qualifying phrase is a part of the statutory language applicable to a life-without-parole sentence, and this Court recently held that such an instruction is not misleading. Henry v. State, 265 Ga. 732, 741(10)(c), 462 S.E.2d 737 (1995). 9. Prospective jurors who arrived late were allowed to read the trial court's pre-voir dire charge and, on appeal, Bishop contends that this was error. Whether to give pre-voir dire instructions is within the discretion of the trial court. Frazier v. State, 257 Ga. 690, 695(10), 362 S.E.2d 351 (1987). If, however, the trial court determines to give a pre-voir dire charge, the better practice certainly is to do so in accordance with the established procedure and formality applicable to the giving of the jury charge at the conclusion of the guilt-innocence phase. Therefore, we do not approve of the trial court's inconsistent treatment of its pre-voir dire charge in this case by permitting some of the prospective jurors merely to read its charge. However, Bishop has shown no prejudice resulting from the trial court's actions. Whether they heard or read the trial court's pre-voir dire charge, the prospective jurors thereafter were subjected to a thorough and extensive voir dire to determine their qualifications to serve as jurors. At the guilt-innocence and sentencing phases of the trial, the trial court followed proper procedure and gave oral instructions to the entire jury. Accordingly, there is no reasonable probability that the procedure utilized by the trial court in the delivery of its pre-voir dire charge resulted in any harm to Bishop. See generally Griffin v. State, 265 Ga. 552, 554(6), 458 S.E.2d 813 (1995). Guilt-Innocence Phase 10. Because the sheriff was a State's witness, the trial court sustained Bishop's objection to the sheriff's acting as bailiff. Although Bishop raised no other objection in the trial court, he asserts on appeal that the trial court erred by allowing the sheriff and chief deputy, who also testified for the State at trial, to perform certain ministerial functions on behalf of the court. Court decisions do condemn allowing law enforcement officers who give key testimony for the State to be "`charged with the care and protection of the jurors.' [Cit.]" Radford v. State, supra at 49(6), 426 S.E.2d 868. However, contact between the jury and a witness for the State who is also an officer of the court is not grounds for an automatic reversal. Radford v. State, 263 Ga. 47, 48(1), 426 S.E.2d 868 (1993). The factors to be considered are the type and duration of the contact and the significance of the testimony. A "brief encounter" is insufficient to demonstrate a constitutional violation. Radford v. State, supra at 48(1), 426 S.E.2d 868. Here, the sheriff and chief deputy had no personal contact with the jurors. The only official contact occurred during the brief period when the sheriff acted as bailiff. That contact ended promptly upon Bishop's objection and he raised no further objection to contact with the jurors. Although we do not approve of the officer-witnesses' performance of any court-related functions in connection with this case, there was no extensive contact with 896 the jurors and, under these circumstances, we find no reversible error. 11. Bishop urges that, in the opening statement to the jury, counsel for the State erroneously alluded to a felony murder theory, even though the indictment charged only malice murder. A review of the relevant portion of the transcript shows that counsel merely asserted that, even if Bishop did not inflict the fatal blow, he was still guilty of Morrison's murder. This does not allude to a felony murder theory, but only to Bishop's guilt for malice murder under a party-to-the-crime theory. Moreover, even if the contested statement could be construed as a reference to a felony murder theory, Bishop was on notice that he could be convicted of felony murder, because he was indicted for both murder and armed robbery. See McCrary v. State, 252 Ga. 521, 524, 314 S.E.2d 662 (1984). 12. In his opening statement, the prosecuting attorney also referred to Bishop as the "main one" or "prime mover" in the crimes. Bishop contends that the State subsequently produced no evidence to support this characterization of him. In his statement, however, Bishop admitted that it was he who attempted to steal Morrison's car keys and who instigated the beating by administering the first crushing blows, after which Morrison ceased breathing. In the same statement, Bishop admitted stealing Morrison's keys after the beating and suggesting to Braxley that they dispose of the body. The singed hair on his hands indicated that Bishop set fire to Morrison's car to destroy evidence of the crimes. Given this evidence of Bishop's level of participation in the crimes, we do not find counsel's characterization of him to be improper. See Carr v. State, 267 Ga. 547, 558(8)(b), 480 S.E.2d 583 (1997). 13. Over Bishop's objection, the trial court admitted into evidence numerous photographs of Morrison's body. None of the photographs depicted an alteration of the body as proscribed in Brown v. State, 250 Ga. 862, 866(5), 302 S.E.2d 347 (1983). Bullard v. State, 263 Ga. 682, 686(5), 436 S.E.2d 647 (1993). Notwithstanding their gruesomeness, photographs of a murder victim's body are admissible if they illustrate the nature and location of the wounds. Sorrells v. State, 267 Ga. 236, 239(3), 476 S.E.2d 571 (1996). Here, the gruesome or inflammatory nature of the wounds depicted in the photographs "stemmed entirely" from the criminal conduct of Bishop. Berry v. State, 267 Ga. 605, 612(10), 481 S.E.2d 203 (1997). The number of photographs admitted reflects the fact that Morrison was savagely beaten, and that he sustained numerous wounds. See Conklin v. State, 254 Ga. 558, 573(11)(b), 331 S.E.2d 532 (1985). The trial court examined each photograph and heard argument prior to admitting them into evidence. We find no error in the trial court's evidentiary ruling. 14. It is urged that, in his closing argument, counsel for the State erroneously asserted a personal belief in Bishop's guilt. Bishop failed to object to any portion of the closing argument. Accordingly, reversal is warranted only if there was improper argument and it is reasonably probable that such argument changed the result of the trial. Todd v. State, 261 Ga. 766, 767(2)(a), 410 S.E.2d 725 (1991). Counsel has wide latitude to argue inferences from the evidence. McClain v. State, supra at 384(3)(b)(2), 477 S.E.2d 814. Here, the attorney for the State made several comments similar to the following: "[A]nyway you ... look at it, he's guilty." Considered in context, these comments are no more than an expression of the State's position, and are not the personal opinion of its counsel, regarding Bishop's guilt. The State's counsel also made comments, such as: "[W]e're not going to bring something to court unless we can prove it and if we can't prove this is the murder weapon, we ain't going to produce it to you." These remarks appear to be only a reference to the fact that no murder weapon had been recovered. Therefore, these comments represent a proper attempt by the prosecuting attorney to account for the absence of any tangible evidence of the instrument which inflicted the fatal blows. Such remarks would not invoke "`the prosecutorial mantle of authority'" with regard to Bishop's guilt. 897 McClain v. State, supra at 384(3)(b)(2), 477 S.E.2d 814. Moreover, to the extent that the remarks could be construed as improper, there is no reasonable likelihood that the result of the trial was changed thereby, given the overwhelming evidence of Bishop's guilt. Wyatt v. State, 267 Ga. 860, 865(2)(b), 485 S.E.2d 470 (1997). Sentencing Phase 15. Evidence that Bishop had made prior threats and assaults on others was relevant to his character and was, therefore, admissible in aggravation of his sentence. Ford v. State, 257 Ga. 461, 463(1), 360 S.E.2d 258 (1987). 16. Bishop enumerates as error the admission of evidence that he murdered Wills. In aggravation of the sentence, the State may prove the defendant's commission of another crime, "despite the lack of a conviction, so long as there has not been a previous acquittal." Jefferson v. State, 256 Ga. 821, 827(8)(b), 353 S.E.2d 468 (1987). Evidence of Bishop's murder of Wills was admissible in aggravation even though it did not pertain to a specific statutory aggravating circumstance. Hicks v. State, 256 Ga. 715, 727(19), 352 S.E.2d 762 (1987). In determining the sentence, the jury may take into consideration "`[a]ny lawful evidence which tends to show the motive of the defendant, his lack of remorse, his general moral character, and his predisposition to commit other crimes....' [Cits.]" Devier v. State, 253 Ga. 604, 619(9), 323 S.E.2d 150 (1984). In the absence of a proper request, the trial court is not required to instruct the jury on the standard of proof applicable to evidence of the defendant's commission of such other crimes. See Freeman v. State, 268 Ga. 185, 486 S.E.2d 348 (1997). Bishop contends that the evidence admitted in connection with the murder of Wills was excessive. However, the State is not limited to showing that the defendant has been charged with another offense. We find no error in the quantum of the evidence admitted in connection with Bishop's murder of Wills. 17. Photographs of Wills' body were admissible in the sentencing phase for the same reasons that the photographs of Morrison's corpse were admissible in the guilt-innocence phase. See Division 13. 18. In its charge at the sentencing phase, the trial court was not required to define or explain the function of mitigating circumstances. Ross v. State, 254 Ga. 22, 31(6), 326 S.E.2d 194 (1985). Moreover, it was not necessary that the trial court identify the mitigating circumstances offered by Bishop. Davis v. State, 255 Ga. 598, 612(22), 340 S.E.2d 869 (1986). Death Penalty Review 19. As discussed in Division 1 of this opinion, the evidence supports the jury's finding that Bishop murdered Morrison while committing the additional capital felony of armed robbery. OCGA § 17-10-30(b)(2). 20. Bishop urges that, because he suffers from "Intermittent Explosive Disorder" which is triggered and aggravated by alcohol and drugs, he lacks the personal culpability that is constitutionally required for imposition of the death penalty. However, Bishop acknowledges that he is not mentally ill and the psychiatrist who testified for Bishop at the sentencing phase did not find him to be mentally ill as defined by OCGA § 17-7-131(a)(2). It was for the jury to decide whether Bishop's mental health and history of alcohol and drug abuse were sufficiently mitigating so as to justify a life sentence. Carr v. State, supra at 558(8)(b), 480 S.E.2d 583. 21. Bishop's death sentence was not imposed under the influence of passion, prejudice or other arbitrary factor. OCGA § 17-10-35(c)(1). The death sentence is neither excessive nor disproportionate to penalties imposed in similar cases, considering both the crime and the defendant. Bishop's argument that his sentence is disproportionate to the life sentence received by Braxley is without merit. Carr v. State, supra at 559(11), 480 S.E.2d 583. Nor do we find that the death sentence is rendered inappropriate by virtue of Bishop's history of alleged abuse. Hittson v. State, supra at 688(8), 449 S.E.2d *898 586. The similar cases listed in the Appendix support the imposition of the death sentence in this case. Judgments affirmed. All the Justices concur, except BENHAM, C.J., and SEARS, J., who concur in the judgment and in all Divisions except Division 6, and FLETCHER, P.J., who concurs specially. Appendix. Greene v. State, 266 Ga. 439, 469 S.E.2d 129 (1996), rev'd on other grounds, ___ U.S. ___, 117 S.Ct. 578, 136 L.Ed.2d 507 (1996); Mobley v. State, 265 Ga. 292, 455 S.E.2d 61 (1995); Meders v. State, 261 Ga. 806, 411 S.E.2d 491 (1992); Kinsman v. State, 259 Ga. 89, 376 S.E.2d 845 (1989); Jefferson v. State, 256 Ga. 821, 353 S.E.2d 468 (1987); Davis v. State, 255 Ga. 588, 340 S.E.2d 862 (1986); Smith v. State, 249 Ga. 228, 290 S.E.2d 43 (1982); Cunningham v. State, 248 Ga. 558, 284 S.E.2d 390 (1981); Dick v. State, 246 Ga. 697, 273 S.E.2d 124 (1980). FLETCHER, Presiding Justice, specially concurring. This court in division eight approves a jury instruction on the sentence of life without parole because it "is a part of the statutory language" of OCGA § 17-10-31.1(d). The fact that a jury instruction is taken directly from a statute does not automatically qualify it as an appropriate jury instruction.[2] Because part of the statutory language is both misleading and unnecessary as a jury instruction, it should not be charged to the jury. The trial judge instructed the jury prior to voir dire concerning the three possible punishmentsdeath, imprisonment for life without parole, or life imprisonment. On the second option, the trial court stated: The second punishment, life without parole, means that the defendant shall be incarcerated for the remainder of his natural life and shall not be eligible for parole unless he is subsequently adjudicated to be innocent of the offense for which he was sentenced. This instruction is taken directly from OCGA § 17-10-31.1(d)(1), which grants authority to the trial court to give the instruction during the sentencing phase of trial. Although the statute is good law, the phrase "unless he is subsequently adjudicated to be innocent of the offense for which he was sentenced" causes problems when used in a jury instruction. This phrase misleads the jury by suggesting that a person sentenced to life without parole may be eligible for parole. If, however, a court or the State Board of Pardons and Paroles determines that a person is innocent of the crime for which he was convicted, then the proper procedure would be to vacate the sentence or grant a pardon. Moreover, the phrase is not necessary to inform the jury about the meaning of life without parole. Life without parole, as the first part of the statute states, "means that the defendant shall be incarcerated for the remainder of his natural life and shall not be eligible for parole." No more explanation is needed; none should be given. Because the majority opinion blindly adheres to the rule that any statute, no matter how confusing, is a valid basis for a jury charge, I concur specially to division eight. Although trial courts should not give the offending phrase in the future as part of their jury instruction, I conclude that there was no reversible error based on the charge in this case. In addition, I concur in judgment only to division six of the majority opinion. NOTES [1] The crimes occurred on June 25, 1994 and the grand jury indicted Bishop on July 11, 1994. On August 9, 1995, the State filed its notice of intent to seek the death penalty. The trial was held January 31-February 12, 1996. The jury returned its verdicts on February 12, 1996, and the trial court sentenced Bishop on February 12 and 13, 1996. Bishop filed a motion for new trial on March 8, 1996, which motion the trial court denied on September 19, 1996. Bishop filed his notice of appeal on October 16, 1996, and the case was orally argued on March 11, 1997. [2] See Ford v. Uniroyal Goodrich Tire Co., 267 Ga. 226, 476 S.E.2d 565 (1996) (concluding that trial court should not have given jury instruction based on 75-percent allocation rule in OCGA § 51-12-5.1(e)).; cf. Smith v. State, S96G1914, ___ Ga. ___, 486 S.E.2d 819 (1997) (Carley, J., dissenting) (discussing why language taken directly from appellate court opinions is inappropriate as a jury instruction).	{ "pile_set_name": "FreeLaw" }
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 01-21106 Summary Calendar ROGER LEE DICKERSON, Plaintiff-Appellant, versus OFFICER JORDAN, Correctional Officer III; C. PRICE, Major; WARDEN F. FIGUEROA; BILL LEWIS; GARY L. JOHNSON, Defendants-Appellees. -------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-98-CV-4324 -------------------- March 26, 2002 Before DeMOSS, PARKER and DENNIS, Circuit Judges. PER CURIAM:* Roger Lee Dickerson, Texas prisoner # 371312, appeals the district court’s dismissal of his 42 U.S.C. § 1983 action pursuant to 28 U.S.C. § 1915(e)(2)(B). He asserts that Officer Jordan’s seizure of legal documents from his cell resulted in a denial of access to the courts. As Dickerson has failed to allege an actual injury, he cannot prevail on his access-to-the- courts claim. See Lewis v. Casey, 518 U.S. 343, 349-51 (1996). * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 01-21106 -2- Dickerson contends that Jordan violated prison policy regarding searches of prisoner legal materials. An allegation that prison officials failed to follow prison policy, without more, does not state a constitutional cause of action. Hernandez v. Estelle, 788 F.2d 1154, 1158 (5th Cir. 1986). Dickerson maintains that Jordan’s actions were motivated by earlier complaints about Jordan’s conduct. Such a claim of retaliation is without merit, as Dickerson has failed to “allege a chronology of events from which retaliation may plausibly be inferred.” Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995). Dickerson’s subjective belief that Jordan was motivated by retaliation is insufficient to support the claim. Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997). Dickerson has failed to challenge the district court’s dismissal of his claims against the other supervisory defendants. Issues that are not briefed on appeal are deemed abandoned. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Dickerson has failed to show that the district court erred in dismissing his civil rights lawsuit. See Black v. Warren, 134 F.3d 732, 733-34 (5th Cir. 1998). Consequently, the judgment of the district court is AFFIRMED.	{ "pile_set_name": "FreeLaw" }
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 99-51041 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ALVARO LUCERO-SANDOVAL, also known as Felipe Lozano-Alaniz, also known as Ramon Rodriguez-Sandoval, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-99-CR-510-DB -------------------- June 13, 2000 Before JOLLY, DAVIS, and STEWART, Circuit Judges. PER CURIAM:* Alvaro Lucero-Sandoval appeals from his conviction for illegal reentry following deportation in violation of 8 U.S.C. § 1326. Lucero-Sandoval moved to dismiss the indictment on the ground that his prior removal proceedings violated principles of due process. The district court denied the motion to dismiss on the basis that Lucero-Sandoval had not demonstrated that he was prejudiced by the alleged defects in the prior removal proceedings. Lucero-Sandoval argues that the district court * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 99-51041 -2- erred in holding that he was required to establish prejudice, but he concedes that this argument is foreclosed by our decision in United States v. Benitez-Villafuerte, 186 F.3d 651, 656-60 (5th Cir. 1999), cert. denied, 120 S. Ct. 838 (2000). The decision of the district court is AFFIRMED.	{ "pile_set_name": "FreeLaw" }
234 F.Supp.2d 934 (2002) UNITED STATES of America, Plaintiff, v. CLARK COUNTY, INDIANA, Defendants. No. NA 99-230-C-B/H. United States District Court, S.D. Indiana, New Albany Division. December 17, 2002. 935 936 Jeffrey L. Hunter, United States Attorney's Office, Indianapolis, IN, David Katinsky, Trial Attorney Tax Division, U.S. Dept of Justice, Washington, DC, for Plaintiff. David A. Arthur, Deputy Attorney General, Indianapolis, IN, John W. Doehrman, Jeffersonville, IN, Gayle Reindl, Sommer Barnard Ackerson Pc, Indianapolis, IN, for Defendant. MEMORANDUM DECISION ON PARTIES' CROSS-MOTIONS FOR SUMMARY JUDGMENT BARKER, District Judge. I. Introduction Professor Lawrence Tribe, the noted constitutional scholar, discussed at length and in eloquent detail in a 1976 Harvard Law Review article (89 Harvard Law Review 682 (1976)), the issue now before this Court, to wit, the scope of federal immunity from state taxation, describing the legal decisions relating to this issue as a "bew-ilderingly complex array of judicial decisions." 89 Harv.L.Rev. 682, 704. We fully agree with that characterization; in addition, the decisions handed down since Professor Tribe's article have not made the analysis any less bewildering. Nevertheless, we have soldiered on in an effort to determine whether a corporation which entered into a "Facilities Use Agreement" with the federal government is entitled to immunity from state imposed property taxes. Added to this "bewilderingly complex" issue is an additional question: whether the United States, as Plaintiff, is precluded by the doctrine of res judicata or collateral estoppel from challenging the assessments of taxes previously affirmed by Indiana state courts. We have before us the cross-motions for summary judgment by the Plaintiff, United States of America ("United States"), and the Defendant, Clark County, Indiana ("Clark County"). Additionally, the Attorney General of the State of Indiana has filed an Amicus Curiae brief, pursuant to 28 U.S.C. § 2403(b) and S.D. Ind. Local Rule 24.1, as the constitutionality of an Indiana statute (IND.CODE § 6-1.1-10-37) has been challenged by the United States. The United States seeks to prevent Defendant, Clark County, from assessing, imposing or collecting a tax with respect to vacant buildings located at the Indiana Army Ammunition Plant ("Plant").[1] The size of the Plant approximates 10,000 acres located near Charlestown, Indiana, which is owned by the United States and operated under the jurisdiction of the United States Operations Support Command (formerly 937 the Industrial Operations Command) ("the Army"), based in Rock Island, Illinois. The Plant contains 1,633 real property structures, including 176 storage igloos or magazines originally designed and utilized for the manufacture and storage of high explosives. From 1940 through 1992, the Army permitted the manufacture of military propellants at the Plant by civilian contractors, one of whom was ICI. In 1992, the Plant was deactivated and ceased manufacture of military propellants. Also, in 1992, Congress passed the Armament Retooling and Manufacture Support Act of 1992, P.L. No. 102-484 ("Arms Act"), pursuant to which Congress granted the Army the authority to convert unused government-owned ammunition plants, or parts thereof, to civilian use facilities. There were nine specified purposes included in the Arms Act: (1) to encourage the commercial use of government-owned, contractor-operated ("GOCO") facilities; (2) to enable small business and small disadvantaged business use of GOCOs; (3) to reduce the adverse effects of downsizing on communities; (4) to re-employ and retain skilled workers; (5) to attain economic stability in depressed areas; (6) to maintain the workforce skills necessary for national security purposes; (7) to provide a model for future defense conversion programs; (8) to allow GOCOs to be responsive in free market competition; and (9) to relocate off-shore production to the United States. Pub.L.No. 102-484, Sec. 193(b) (as noted with 10 U.S.C. § 2501). Prior to the passage of the Arms Act, the United States had contracted with a corporation known as ICI Americas, Inc. (hereafter "ICI") to perform certain functions at the Plant. Clark County levied a 1995 tax against ICI based upon vacant Plant buildings, pursuant to IND.CODE § 6-1.1-10-37. The United States asserts that this was an unconstitutional tax levy in that it was, in reality, a tax against the United States, in violation of the Supremacy Clause of the Constitution. Clark County contends that the tax was in fact levied only against ICI, not the United States, and that it was based on ICI's leasehold interest in the vacant buildings at the Plant. Additionally, noting that the Indiana State Board of Tax Commissioners ("State Board") upheld these tax levies and later dismissed ICI's appeal of those decisions, Clark County asserts res judicata and collateral estoppel as bars to relitigation of most of these taxation issues. II. Legal Analysis A. Collateral Estoppel In our order of September 18, 2000, denying Clark County's Motion to Dismiss, we set out the law concerning collateral estoppel, or issue preclusion, and its application in this case. See U.S. v. Clark County, Ind., 113 F.Supp.2d 1286, 1290-91 (S.D.Ind.2000). We see no reason to reiterate that discussion here, but will move to apply those principles to the facts and arguments here, in light of the parties' motions and briefs in support of their respective motions for summary judgment. In order to establish claim preclusion under Indiana law, the proponent must establish that: (1) the former judgment was issued by a court with jurisdiction; (2) the matter now in issue was or might have been determined in the former suit; (3) the parties or their privies are identical; and (4) there was a judgment on the merits. Breeck v. City of Madison, 592 N.E.2d 700, 704-05 (Ind.Ct.App.1992). The parties' dispute here centers on the first and third requirements; namely, whether the Indiana Tax Court had jurisdiction over ICI's appeal of Clark County's tax levy and whether ICI and the United States are in privity with one another. 938 Regarding the first requirement, the United States asserts that the Tax Court did not have jurisdiction over ICI's appeal because ICI never perfected that appeal. Additionally, the United States contends that the Tax Court's order stated that the appeal was dismissed for lack of jurisdiction. We recognize that Indiana courts use the term "jurisdiction" in varying ways. "Jurisdiction is comprised of three elements: (1) jurisdiction of the subject matter; (2) jurisdiction of the person; and (3) jurisdiction of the particular case." Browning v. Walters, 620 N.E.2d 28, 31 (Ind.Ct.App.1993) (citing Harp v. Indiana Dept. of Highways, 585 N.E.2d 652, 659 (Ind.Ct.App.1992)). When the Tax Court dismissed ICI's appeal for lack of jurisdiction, its action reflected the fact that ICI had failed to perfect its appeal. ICI neglected to perform the statutorily required duty to serve copies of its appeal on the Clark County Assessor. This lack of jurisdiction, as noted in the order dismissing ICI's appeal, involved jurisdiction over that particular case, not a lack of jurisdiction over the subject matter, or the class of cases. Moreover, pursuant to the holding in Browning, a dismissal based on a litigant's failure to comply with the rules amounts to a dismissal with prejudice on the merits. See Browning, 620 N.E.2d at 31-32. A similar situation was presented in Yellow Cab Co. of Bloomington, Inc. v. Williams, 583 N.E.2d 774 (Ind.Ct.App. 1991). There, the Bloomington Human Rights Commission issued an adverse ruling to Yellow Cab based on a discrimination claim. Id. at 776. Yellow Cab sought judicial review of that decision, but its appeal was dismissed because it failed to timely file the administrative record.[2]Id. When the Commission attempted to enforce its order through supplemental proceedings, Yellow Cab again sought judicial review. Id. at 777. On appeal, Yellow Cab sought to raise issues that it would have raised had its initial appeal not been dismissed; however, the Appellate Court concluded that res judicata barred Yellow Cab from raising those issues. Id. at 777-79. The Court noted that an actual trial need not occur for the doctrine of res judicata to apply. Id. at 777. "If the parties had a full legal opportunity to be heard on their respective claims but there is no actual hearing ... for a failure to comply with the statutory prerequisites-it is just as much a bar to further litigation as a judgment on the merits." Id. (citing Creech v. Town of Walkerton, 472 N.E.2d 226 (Ind.Ct.App.1984)). The Tax Court's decision in the instant case stated only that the dismissal was for a lack of jurisdiction; applying the Yellow Cab analysis, we must conclude that prior to its default in serving copies of its appeal on the Clark County Assessor, ICI had the opportunity to be heard on the merits when it lodged its appeal. Therefore, under Indiana law, the dismissal, though based on procedural error and occurring without a hearing, was on the merits, with prejudice, and thus has claim preclusive effect. Regarding the (third) requirement of privity between ICI and the United States, "privity" under Indiana law, for res 939 judicata purposes, "includes those who were in control of the earlier action even though they were not a party to it, and those whose interests are represented by a party to the action." Hermitage Ins. Co. v. Salts, 698 N.E.2d 856, 859 (Ind.Ct.App. 1998). In Montana v. U.S., 440 U.S. 147, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979), the Supreme Court noted that barring a showing that the government maintained a "laboring oar" in the state-court litigation, the preclusion doctrine is inapplicable to the United States. Id. at 155, 99 S.Ct. 970 (quoting Drummond v. U.S., 324 U.S. 316, 318, 65 S.Ct. 659, 89 L.Ed. 969 (1945)).[3] In Montana, the Supreme Court discussed the application of collateral estoppel to prevent the United States from relitigating a Montana State Court's imposition of a tax on a government contractor. The contractor argued that the state's "gross receipts tax unconstitutionally discriminated against the United States and the companies with which it dealt." Id. at 151, 99 S.Ct. 970. In resolving the matter, the Supreme Court noted the United States' stipulation, wherein it admitted that it: (1) required the [contractor's] lawsuit to be filed; (2) reviewed and approved of the complaint; (3) paid the attorneys' fees and costs; (4) directed the appeal from state district court to the Montana Supreme Court; (5) appeared and submitted a brief as amicus in the Montana Supreme Court; (6) directed the filing of a Notice of Appeal to the Court; and (7) effectuated [the contractor's] abandonment of that appeal on advice of the Solicitor General. Id. at 155, 99 S.Ct. 970. Based on these admissions, the Supreme Court concluded that, although the United States was not a party to the litigation, it "plainly had a sufficient `laboring oar' in the conduct of the state-court litigation to actuate principles of estoppel." Id. In the instant matter, Clark County makes only three assertions relating to the United States' control of the state-court litigation: first, that the United States told ICI to resist the County's attempt to tax vacant buildings at the Plant; second, that the United States informed ICI in 1997 that it would pay all taxes Clark County successfully levied on the vacant buildings at the Plant; and finally, that as of January 1, 1999, the United States agreed to assume all responsibility for challenging and paying any successful tax levied on vacant buildings at the Plant. On their face, these allegations are not equivalent either in number or in effect to the admissions the United States made in Montana. Rather than relying on the actual role played by the United States in the state-court litigation, Clark County cites the fact that the United States could have stepped into the state-court litigation but chose not to. Clark County argues, "[I]t is indisputable that the government had the opportunity to control ICI's legal challenges to taxation with respect to vacant buildings at [the Plant], and especially the conduct of ICI's appeal to the Tax Court." (Defendant's Reply in Support of its Motion for Summary Judgment at 14). Having an opportunity to do something is not tantamount to pulling a "laboring oar." 940 Therefore, we conclude that the United States' participation in this case is not foreclosed by operation of the doctrine of collateral estoppel because all four elements required under Indiana law have not been established. B. The Merits of the Claim Professor Tribe documents the origins of the legal analysis of the tax immunity issue to M'Culloch v. State of Maryland, 4 Wheat. 316, 17 U.S. 316, 4 L.Ed. 579 (1819). In that foundational decision, the United States Supreme Court held that the Supremacy Clause of the Constitution prohibits a state from imposing a tax on bank notes issued by a branch of a bank chartered by the United States. Applying the principle that a government may not tax or otherwise control those whom it does not represent, the Supreme Court held that a state could not tax a federal instrumentality which Congress controlled for the benefit of all its citizensboth those within and without the State of Maryland. According to Professor Tribe, M'Culloch, and the later decision of Osborn v. Bank of U.S., 9 Wheat. 738, 22 U.S. 738, 6 L.Ed. 204 (1824), establish the principle that if Congress does not authorize state taxation or regulation of federal instrumentalities, the possibility of interference with substantive federal policy is sufficient to raise a presumption of immunity from state regulations directed at the federal government. Continuing his analysis, Professor Tribe points out that the possibility of interference with substantive federal policy is not a basis to confer complete immunity from state law on someone who simply is an agent of the federal government. 89 Harv.L.Rev 682, 701. Professor Tribe suggests that when the issue of state taxation arises, a rule of "legal incidence" must be applied. This rule, according to Professor Tribe, goes like this: The supremacy clause implies that, absent congressional consent, no state may (1) impose upon the United States or its instrumentalities an obligation to pay any tax; or (2) make any property interest owned by the United States or its instrumentalities subject to seizure or forced sale in order to satisfy a state tax liability. 89 Harv.L.Rev. at 704 (footnotes omitted). The formulation of such a rule seems consistent to us with other authoritative legal principles. Returning to the case at bar, Clark County has not assessed its tax directly against the United States in the sense that it has not directed the tax bills to be sent to the United States. Rather, the tax has been assessed against an entity which, under a contractual agreement with the United States, had acquired the rights to deal with federal property. Hear how Professor Tribe addressed such a situation: Where state or local taxes are assessed against the user of federal property, the Court has escaped the Kern-Limerick twist. The cases find no implied immunity unless state law purports to hold the United States or its instrumentalities liable for the tax, or attempts to make federal property subject to a lien in the event of nonpayment. This is so whether the tax is denominated by the state as one on the privilege of using the property or as one on the property itself; even if the tax is measured by the value of the federal property; and even if the government has agreed to reimburse the user for paying the tax. In all these cases, unless the state deliberately precipitates a federal-state confrontation by insisting that the United States or its instrumentalities be answerable for the tax, the 941 underlying theory must be that only affirmative congressional action should be sufficient to strip the state of power to collect nondiscriminatory taxes from third parties. 89 Harv.L.Rev. 682, 708-09 (footnotes omitted). Our own reading of the case law on this issue jibes with Professor Tribe's interpretation and the Order Denying Clark County's Motion to Dismiss previously entered. For emphasis, we state again that the United States Supreme Court has concluded that "Government-owned property, to the full extent of the Government's interest therein, is immune from taxation, either as against the Government itself or as against one who holds it as bailee." U.S. v. Allegheny County, Pa., 322 U.S. 174, 189, 64 S.Ct. 908, 88 L.Ed. 1209 (1944). Reserving at that time the question of whether a private bailee could be constitutionally taxed for its "right of possession or use" of government property, the Supreme Court held that a locality's tax on government property itself, and not on the privilege of using or possessing it, was invalid, whether it was imposed upon the United States or on its bailee. Id. at 185-86, 64 S.Ct. 908. Since the holding in Allegheny County, the Supreme Court has reached the issue it there explicitly reserved, holding that a tax imposed upon a private citizen's use or possession of government or property is not a tax on the government or its property and is therefore constitutional. In U.S. v. New Mexico, 455 U.S. 720, 102 S.Ct. 1373, 71 L.Ed.2d 580 (1982), the Supreme Court held that the United States' immunity from state taxes is appropriate only "when the levy falls on the United States itself, or on an agency or instrumentality so closely connected to the government that the two cannot realistically be viewed as separate entities, at least insofar as the activity being taxed is concerned." Id. at 735, 102 S.Ct. 1373. It is "constitutionally irrelevant" whether the tax has an "effect" on the United States, if the government "shoulders the entire economic burden of the levy," or if it "reimburse[s] all the contractor's expenditures." U.S. v. California, 507 U.S. 746, 753, 113 S.Ct. 1784, 123 L.Ed.2d 528 (1993) (quoting New Mexico, 455 U.S. at 734, 102 S.Ct. 1373). Governmental tax immunity bars only those taxes that are imposed "directly on one sovereign by the other or that discriminate against a sovereign or those with whom it deals." Jefferson County, Ala. v. Acker, 527 U.S. 423, 436, 119 S.Ct. 2069, 144 L.Ed.2d 408 (1999) (quoting Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 811, 109 S.Ct. 1500, 103 L.Ed.2d 891 (1989)). Thus, a locality may constitutionally impose a use tax on a private citizen or corporation utilizing or possessing government property in connection with the private citizen's or corporation's own commercial activities, regardless of whether those commercial activities arise out of a contractual relationship with the government. See New Mexico, 455 U.S. at 733, 102 S.Ct. 1373; City of Detroit v. Murray Corp., 355 U.S. 489, 493, 78 S.Ct. 458, 2 L.Ed.2d 441 (1958); U.S. v. Muskegon Tp., 355 U.S. 484, 486, 78 S.Ct. 483, 2 L.Ed.2d 436 (1958). A state or locality may also constitutionally tax private lessees of tax exempt property (including property that is owned by the government) which is used in a business conducted for profit, even if the leasehold interest is calculated for purpose of the tax by measuring the full value of the property. See U.S. v. City of Detroit, 355 U.S. 466, 469-70, 78 S.Ct. 474, 2 L.Ed.2d 424 (1958). Applying these principles, we note four areas of factual inquiry that require resolution in the case at bar: 942 (1) Does Clark County, by virtue of IND. CODE § 6-1.1-10-37, seek to hold the United States liable for the tax? (2) Does Clark County, by virtue of IND. CODE § 6-1.1-10-37, seek to hold an instrumentality of the United States liable for the tax? (3) Does Clark County, by virtue of IND. CODE § 6-1.1-10-37, attempt to make federal property subject to a lien in the event of non-payment of the tax? If the answer to any one of these three queries is "yes," then the tax is unconstitutional. If the answer to all three of these inquiries is "no," then a fourth inquiry must be answered, which is: (4) Did ICI act as a "user" or "possessor" of government property with respect to vacant buildings at the Plant? We discuss each issue below seriatim: Issue 1: Did Clark County assess the taxes directly against the United States? Our review of the record establishes clearly that the taxes assessed in this case were assessed directly against ICI. We do not perceive any factual dispute between the parties in this regard. So, the answer to this question is "No." Issue 2: Did Clark County assess the taxes against an instrumentality of the United States? Case law defines "instrumentality" of the United States as an entity which is so closely connected with the United States that the two cannot realistically be viewed as separate entities. New Mexico, 455 U.S. at 720, 102 S.Ct. 1373. The undisputed facts show that there simply is nothing more than a contractual relationship between the United States and ICI, as further evidenced from the following subsidiary facts: 1. From 1993 until March 1999, the relationship between the Army and ICI was governed by several contractual documents, including a Facilities Use Contract, No. DAAA09-92-E-0011, dated February 17, 1993 ("the Contract"), and the March 1993 ARMS Contract ("ARMS Contract"), Ex. 2 of the Declaration of Douglas A. Borgeson, filed May 25, 2000 ("Borgeson Dec."); Modification P00116 to the ARMS Contract dated June 19, 1996 ("Mod.P00116"), Tax 7 of App.; Modification P00152 to the ARMS Contract dated July 11, 1997 ("Mod.P00152"), Tab 11 of App.; Modification P00161 to the ARMS Contract dated January 16, 1998 ("Mod.P00161"), Tab 14 of App.; Modification P00060 to the ARMS Contract dated February 15, 1995 ("Mod.P00060"), Tab 2 of App.; Modification P00069 to the ARMS Contract dated March 31, 1995 ("Mod.P00069"), Tab 4 of App.; Dec. 8, 1997 letter to ICI from McKinnis, Tab 12 of App. (Borgeson Dec., ¶ 5, Ex. 1; Burgin Dec., ¶ 4). (Plaintiff's Statement of Material Facts, ¶ 13). 2. By contract, the United States turned over to ICI responsibility for the following: DESCRIPTION OF FACILITIES The facilities, hereinafter referred to as the "Plant", comprise a certain Government-owned industrial installation (or portions thereof), designated as the Indiana Army Ammunition Plant, located in the vicinity of Charlestown, Indiana, and constitute a plant for the production and reblending of explosives, propellants and related products. The 943 Plant consists of all buildings, lines, laboratory and shop facilities, first aid stations or hospitals, utilities and all appurtenances thereto, together with equipment, including without limitation, transportation and maintenance equipment, necessary or appropriate in or about a plant of the type described. (Schedule to Contract DAAA09-86-Z-0001 (referenced in Facility Use Contract at 2), Tab 40 of Clark County's Appendix ("App.").) (Defendant's Statement of Additional Material Facts, ¶ 54). 3. A second contract between the Army and ICI, DAAA09-93-E-0001 ("the CTR"), consisting of a basic contract and a series of 197 contract modifications, provided funding for achieving specific ARMS objectives during that time. (Borgeson Dec., ¶ 5, Ex. 2; Burgin Dec., ¶ 4.) (Plaintiff's Statement of Material Facts, ¶ 16). 4. Under the ARMS program, the Contract, and the CTR, ICI was given a mission of securing commercial enterprises to utilize the buildings located at the Plant. (Borgeson Dec., ¶ 5; Burgin Dec., ¶ 4.) (Id. at ¶ 17). 5. ICI advertised that the entire facility at INAAP was available for commercial use. (Guthrie Aff., ¶¶ 8-9). (Defendant's Statement of Additional Material Facts, ¶ 63). 6. ICI had the authority to rent out almost all of INAAP to private tenants, subject to government approval. (Burgin, Indiana State Board of Tax Commissioners October 21, 1998 Hearing Transcript at 109-10, Tab 26 of App.; Funk Dep. at 80; Facility One Newsletter, Summer 1997, at 4, Tab 9 of App.) (Id. at ¶ 65). 7. ICI was the only entity that had the authority to negotiate with commercial tenants at INAAP and to enter into agreements with them ("Facility Use Agreements") for the use of buildings at INAAP. (Burgin, Apr. 1998 Trans. at 71; Borgeson Dep. at 17, Tab 35 of App.) (Id. at ¶ 66). 8. ICI was referred to as the "landlord" at INAAP in two reports. (ICI's Strategic Business Plan at 42, Tab 5 of App.; see United States GAO, Report to Congress on Cost to Maintain Inactive Ammunition Plants and Closed Bases Could be Reduced ("GAO Report") at 3, Tab 8 of App.) (Id. at ¶ 67). 9. Neither the United States government, the United States Army, nor the Industrial Operations Command ("IOC") was a party to the Facility Use Agreements that ICI entered into with tenants at INAAP. (Borgeson Dep. at 17; McKinnis Dep. at 108-09; Burgin, Apr. 1998 Trans. at 72.) (Id. at ¶ 68). 10. When ICI would find a suitable commercial enterprise, ICI would seek express authorization from the Army to be able to enter into a Facilities Use Agreement with the commercial enterprise. (Borgeson Dec., ¶ 6; Burgin Dec., ¶ 5.) (Plaintiff's Statement of Material Facts, ¶ 18). 11. ICI's proposal for Army approval had to include the consideration to be paid by the commercial occupant and the use the commercial occupant intended to make of the Army's building and had to state any alterations or renovations which the occupant would require. 944 (Borgeson Dec., ¶ 6; Burgin Dec., ¶ 5.) (Id. at ¶ 19). 12. Authorization, when and if given, was granted by letter. (Borgeson Dec., ¶ 6, Ex. 3.) (Id. at ¶ 20). 13. The Army withheld approval for ICI to enter into a Facilities Use Agreement with a commercial enterprise in approximately one-quarter to one-third of the proposals advanced by ICI. (Borgeson Dec., ¶ 6.) (Id. at ¶ 21). 14. The Army withheld approval for a variety of reasons: the amount of consideration, the character of the proposed use, the need of the Army for the building, environmental risks, etc. (Borgeson Dec., ¶ 6; Burgin Dec., ¶ 5.) (Id. at ¶ 22). 15. If the Army approved the proposed use of the building, ICI would then enter into a Facilities Use Agreement with the commercial occupant. (Borgeson Dec., ¶ 7; Burgin Dec., ¶ 6.) (Id. at ¶ 23). 16. Under the Facilities Use Agreement, the commercial occupant would receive a subcontract to use certain buildings and equipment at the Plant for certain purposes for a term of months or years in exchange for consideration. (Borgeson Dec., ¶ 7; Burgin Dec., ¶ 6.) (Id. at ¶ 24). 17. ICI had no authority to sell, alter, renovate or remove any Plant building or property without the express permission of the Army. (Borgeson Dec., ¶ 8; Burgin Dec., ¶ 7.) (Id. at ¶ 27). 18. The Army had the right to terminate ICI as the base contractor upon 180 days notice. (See Contract, Part I, Section H-16.1(c).) (Burgin Dec., ¶ 7.) (Id. at ¶ 30). 19. ICI's goal in operating INAAP pursuant to the Facility Use Contract and the ARMS Contract was to make a profit. (Burgin, Apr. 1998 Trans. at 52-53; Burgin, Aug. 1999 Trans. at 42.) (Defendant's Statement of Additional Material Facts, ¶ 73). 20. ICI made a profit at INAAP each year that it operated INAAP. (Funk Dep. at 31; Burgin, Aug. 1999 Trans at 91.) (Id. at ¶ 74). 21. In 1995, ICI received incentive payments totaling $914,675 from the United States government with respect to INAAP. (Mar. 21, 1995 letter to ICI from IOC, Tab 3 of App.; Dec. 18, 1995 letter to ICI from IOC, Tab 6 of App.; Modification P00060 to the ARMS Contract, Tab 2 of App.; Modification P00069 to the ARMS Contract, Tab 4 of App.) (Id. at ¶ 76). 22. The incentive payments ICI received for INAAP for 1996 and 1997 totaled approximately $800,000. (Borgeson Dep. at 67-71.) (Id. at ¶ 79). 23. ICI received ARMS funds for marketing and promoting INAAP, which ICI did not have to pay back. In 1997, for example, the United States government provided approximately $350,000 to ICI for marketing activities at INAAP. (Funk Dep. at 113; Memorandum of Discussions, July 9, 1997, Tab 10 of App.; McKinnis Dep. at 49; Burgin Dep. at 57-59.) (Id. at ¶ 80). In light of these facts, we conclude that there was a contractual relationship between the United States and ICI and that ICI was not an "instrumentality" of the 945 United States. Accordingly, the answer to issue 2 is "No." Issue 3: Does Clark County seek to make federal property subject to a lien in the event of non-payment of the tax? Exhibit 22 in the "Appendix of Evidentiary Materials in Support of Clark County's Motion for Summary Judgment and in Opposition to Plaintiff's Motion for Summary Judgment" (Docket Item 49) contains a notice under which Clark County advised ICI that particular buildings would be sold at a tax sale. From this notice, it appears that Clark County has at least threatened to make specific buildings at the facility subject to some type of judicial lien that would attach by virtue of a tax sale. To the extent that Clark County sought to make vacant buildings, which are owned by the United States, subject to a judicial sale, Clark County apparently attempted to make federal property subject to a lien recognized by Indiana law. However, other evidence of record indicates that when confronted with resistence to inclusion in the tax sale, Clark County forewent any further steps to subject federal property to a judicial lien. The undisputed factual findings tendered by the parties provide as follows: 24. On two occasionsin September 1998 and September 1999the Clark County Treasurer issued notices to ICI listing for tax sale Plant buildings owned by the Army. (McGhee Dec., ¶¶ 2-3.) (Plaintiff's Statement of Material Facts, ¶ 50). 25. In each case, Clark County removed the buildings from the tax sale after being contacted by the Army. (McGhee Dec., ¶¶ 2-3.) (Id. at ¶ 51). On this basis, we conclude that Clark County has not attempted to complete any process by which federal property would be made subject to a judicial lien. Because ultimately Clark County has withdrawn its efforts to make the buildings subject to a tax sale, it has not attempted in any material way to make property of the United States subject to a judicial lien. The answer, therefore, to the third query is "No." Issue 4: Did ICI act as a "user" or "possessor" of government property with respect to the vacant buildings at the Plant? The facts which apply to the resolution of this issue include Facts 1 through 23, delineated above as part of our ruling respecting Issue Two, to which we add the following factual findings[4]: 26. The Plant is a facility in Charlestown, Indiana, owned by the United States and operated under the jurisdiction of the United States Army's Operations Support Command ("OSC") (formerly the Industrial Operations Command ("IOC") (hereafter "the Army")), based in Rock Island, Illinois. (Borgeson Dec., ¶¶ 1-2.) (Plaintiff's Statement of Material Facts, ¶ 1). 27. The Plant consists of 9,780 acres. (Borgeson Dec., ¶ 2.) (Id. at ¶ 2). 28. The Plant also contains 1,633 real property structures, including 176 storage igloos or magazines. (Huss Dec., ¶ 2). (Id. at ¶ 3). 29. Some but not all of these structures were designed and originally utilized for the manufacture and storage 946 of high explosives. (Borgeson Dec., ¶ 2.) (Id. at ¶ 4). 30. From 1940 to 1992, the Army arranged for the manufacture of military propellants at the Plant by civilian contractors. (Borgeson Dec., ¶ 3.) (Id. at ¶ 5). 31. In 1972, ICI became the contractor operator of the Plant. (Borgeson Dec., ¶ 3; Burgin Dec., ¶ 2.) (Id. at ¶ 6). 32. From 1972 to 1992, ICI's main responsibility at the Plant was to manufacture military propellants and propelling charges under the direction and control of the Army. (Burgin Dec., ¶ 2.) (Id. at ¶ 7). 33. In 1992, the Plant was deactivated and ceased manufacture of propelling charges. (Huss Dec., ¶ 2; Burgin Dec., ¶ 3.) (Id. at ¶ 10). 34. Also, in 1992, Congress passed the Armament Retooling and Manufacturing Support Act of 1992, P.L. No. 102-484 ("AMS"), under which Congress granted the Army the authority to convert unused government-owned ammunition plants, or parts thereof, to civilian use. (Borgeson Dec., ¶¶ 1, 4.) (Id. at ¶ 11). 35. There were nine specific purposes behind ARMS: to encourage the commercial use of government-owned contractor-operated ("GOCO") facilities, to enable small business and small disadvantaged business use of GOCOs, to reduce the adverse effects of downsizing on communities, to reemploy and retain skilled workers, to attain economic stability in depressed areas, to maintain the workforce skills necessary for national security purposes, to provide a model for future defense conversion programs, to allow GOCOs to be responsive in free market competition, and to relocate off-shore production to the United States. (Borgeson Dec., ¶ 4). (Id. at ¶ 12). 36. The Army also had the right to evict the commercial occupant at any time with sufficient notice. (See Contract, Part II, Section I.34, incorporating FAR 52.245-11(k)(2).) (Borgeson Dec., ¶ 8; see also FAR 52.245-11(k)(2)). (Id. at ¶ 31). 37. In addition, the Army's approval of a proposed use of one of its buildings permitted ICI or its subcontractor to use the building only for a limited time and only for a specific purpose. (Borgeson Dec., ¶ 9; Burgin Dec., ¶ 8.) (Id. at ¶ 32). 38. ICI needed to obtain new Army approval for a commercial occupant to change the character of a building's use. (Borgeson Dec., ¶ 9; Burgin Dec., ¶ 8.) (Id. at ¶ 33). 39. Various modifications to the CTR authorized disbursement of ARMS funds to modify various buildings for use by commercial occupants and authorized incentive payments to ICI based on attainment of ARMS goals. (Borgeson Dec., ¶ 11; Burgin Dec., ¶ 10.) (Id. at ¶ 35). 40. ICI received compensation in one of several ways, including: (1) ICI retained sufficient occupant revenues to cover the cost of statements of work required by the Army and received a negotiated percentage of the net revenue received from occupants in excess of that cost, the percentage being based on the degree of attainment 947 of ARMS goals and the degree of financial risk assumed by ICI; (2) for 1994-1997, ICI received performance incentives related to the numbers and types of commercial occupants it brought to the Plant (see Modification Nos. 60, 69, 126 and 155 to the CTR); (3) on occasion, ICI was directed to dispose of government-owned personal property and received a fee for disposal services based on a percentage of the proceeds from the sale (Borgeson Dec., ¶ 11; Burgin Dec., ¶ 10.); (4) the United States provided $350,000 to ICI for marketing at INAAP (McKinnis Dep. at 128-30, 133-34, 147-50); and (5) the United States authorized $88,000 of ARMS money to be paid to ICI to fund ICI's legal fees for resisting taxation at INAAP (January 22, 1998 letter to McKinnis from Saunders, Tab 16 of App.; May 1, 1998 letter to Huss from Reese, Tab 21 of App.; Mods. 60 and 69 (incentives not restricted to number and types of buildings rented)). (Id. at ¶ 36; Defendant's Response to Plaintiff's Statement of Material Facts, ¶ 36). 41. Subsequent to 1993, approximately 200 buildings and 100 storage igloos or magazines have been utilized by various commercial enterprises pursuant to Facilities Use Agreements to which ICI was a party. (Borgeson Dec., ¶ 12; Huss Dec., ¶ 3; Burgin Dec., ¶ 11.) (Plaintiff's Statement of Material Facts, ¶ 37). 42. ICI has occupied a portion of one building, B-703, as administrative offices without payment of compensation to the Army for the use of the office space. (Borgeson Dec., ¶ 12; Burgin Dec., ¶ 11.) (Id. at ¶ 38). 43. Since 1993, 10-12 buildings at the Plant have been used by the Army for the storage of Army property. (Huss Dec., ¶ 4.) (Id. at ¶ 39). 44. The remaining approximately 1,300 real property structures have been vacant from the time of the Plant's deactivation in 1992 to the present time. (Huss Dec., ¶ 5.) (Id. at ¶ 40). 45. Under the Contract, ICI was responsible for security, provision and maintenance of utilities, and fire protection at the Plant. (Burgin Dec., ¶ 12.) (Id. at ¶ 43). 46. Other than its authority to market and offer buildings to prospective commercial users, ICI has had no responsibility for scope of work with respect to these vacant buildings nor was ICI ever authorized to sublicense these buildings to commercial users. (Borgeson Dec., ¶ 13; Huss Dec. ¶ 5; Burgin Dec., ¶ 11.) (Id. at ¶ 44). 47. The Army retains the right to enter any structure at the Plant, including the vacant structures, and has, on occasion since 1992, entered some vacant structures to conduct spot checks of the structures or Army property contained therein. (Huss Dec., ¶ 6.) (Id. at ¶ 45). 48. In 1996, the Clark County, Indiana Assessor issued tax assessments on most of the Plant's buildings for the 1995 assessment year. (Burgin Dec., ¶ 13.) (Id. at ¶ 47). 49. With the exception of about four duplicate assessments issued to both commercial occupants under Facilities Use Agreements and ICI, all assessments were originally issued to ICI as the "user" or "possessor" 948 of the buildings assessed. (Burgin Dec., ¶ 13.) (Id. at ¶ 48). 50. Most of the assessed buildings were totally vacant, in many cases unusable without substantial renovations. (Burgin Dec., ¶ 13.) (Id. at ¶ 49). 51. In October 1997, the United States "excessed" INAAP (i.e., the government decided it had no future military use for INAAP). (McKinnis Dep. at 70-71.) (Defendant's Statement of Additional Material Facts, ¶ 82). 52. There has been no military presence at INAAP since 1995 or 1996, except that a civilian contractor's representative, Mr. Huss, remains on the site. (Burgin, Apr. 1998 Trans. at 64; Guthrie Aff., ¶ 3.) (Id. at ¶ 83). From these facts, we conclude that, though ICI had the authority to advertise the availability of buildings at the Plant, it did not possess or use those buildings until such time as another entity began use of the particular facility. The Facilities Use Agreement cannot be construed as a lease of the entire plant property under which ICI was authorized to sublease any part of the facility. Rather, the Facilities Use Agreement is more properly characterized as an agreement under which ICI was given the rights to market the facilities at the Plant, and was paid to maintain the Plant when and as directed by the Army. ICI does not have a leasehold interest in the Plant itself, nor in any structure upon the Plant until such time as a third party takes possession of a particular structure upon the property. At such a time, ICI assumes the role of leasing agent and assumes the responsibility for use or possession of the particular facility. Therefore, unless and until such time as there is a contract entered into between ICI and a third party to make use of a particular facility at the Plant, ICI does not use or possess real property at the Plant. C. Constitutionality of IND.CODE § 6-1.1-10.37(b), as Applied The following provision of Indiana law is at issue: Indiana Code § 6-1.1-10-37. Leasing of exempt property.(a) This section does not apply to the lease of a dwelling unit within a public housing project by the tenant of that dwelling unit. (b) If real property that is exempt from taxation is leased to another whose property is not exempt and the leasing of the real property does not make it taxable, the leasehold estate and the appurtenances to the leasehold estate shall be assessed and taxed as if they were real property owned by the lessee or his assignee. (c) If personal property that is exempt from taxation is leased to another whose property is not exempt and the leasing of the personal property does not make it taxable, the leased personal property shall be assessed and taxed as if it were personal property owned by the lessee or his assignee. Given our rulings that ICI did not have a leasehold interest in the real property at the Plant, Clark County's tax levy on ICI pursuant to the above cited authority amounted to a unconstitutional tax on federal property, in violation of the Supremacy Clause of the United States Constitution. As noted earlier in our Order Denying Clark County's Motion to Dismiss, the core holding of U.S. v. Allegheny County, Pa., 322 U.S. 174, 64 S.Ct. 908, 88 L.Ed. 1209 (1944), abrogated by U.S. v. City of Detroit, 355 U.S. 466, 78 S.Ct. 474, 2 L.Ed.2d 424 (1958), that a tax *949 on government property is unconstitutional if imposed on the property itself and not on a private citizen's privilege of using or possessing it, whether the tax is imposed on the government or the bailee of the property, remains valid. The case at bar is distinguishable from those cases decided by the Supreme Court subsequent to its opinion in Allegheny County, wherein the Court narrowed and clarified the circumstances in which a state tax offends the Supremacy Clause of the United States Constitution. See U.S. v. City of Detroit, 355 U.S. 466, 78 S.Ct. 474, 2 L.Ed.2d 424 (1958) (upholding a Michigan tax on a lessee's actual use of a government-owned industrial plant, even though the tax amount was based on the value of the real property being used); U.S. v. Muskegon Tp., 355 U.S. 484, 78 S.Ct. 483, 2 L.Ed.2d 436 (1958) (upholding the same Michigan tax levied on a private entity actually using government-owned property through a permit); and City of Detroit v. Murray Corp., 355 U.S. 489, 78 S.Ct. 486, 2 L.Ed.2d 460 (1958) (upholding a personal property tax imposed on a private contractor in possession of government property). In contrast, our case mirrors the holding in U.S. v. State of Colorado, 627 F.2d 217 (10th Cir.1980). There, the United States brought an action seeking a declaratory judgment that a state-imposed tax on a government contractor in charge of the day-to-day operations at a facility to develop and produce nuclear weapons, pursuant to a government management contract, infringed on the immunity of the United States from state and local taxation in violation of the Supremacy Clause of the United States Constitution. The Tenth Circuit concluded that the contract between the United States and the private contractor did not allow the contractor any use of the property outside that which was specifically delineated in the contract. Therefore, the tax was not a tax on any "use" of the property, but was an unconstitutional "ad valorem general property tax on property owned by the United States." Id. at 220. The same conclusion pertains here. When the constitutionality of a statute is attacked, the first conclusion a court must reach is whether the statute is unconstitutional "as applied," a term with constitutional significance. See generally, Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971). In order to make this determination, the Court reviews the statute in light of its impact on a particular case. Next, the Court considers whether the statute is unconstitutional "on its face," which means that the statute is "invalid in totoand therefore incapable of any valid application." Village of Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 494 n. 5, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) (citing Steffel v. Thompson, 415 U.S. 452, 474, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974)). We have established from our analysis that IND.CODE § 6-1.1-10-37 is unconstitutional "as applied" in the instant matter. The parties have not explicitly requested that we address whether the section is unconstitutional "on its face," and we will not endeavor to make such a determination on our own. III. Conclusion For or all the reasons explicated above, the United States' Motion for Summary Judgment is GRANTED and Clark County's Motion for Summary Judgment is DENIED. Also, the application of IND.CODE § 6-1.1-10-37(b) is invalid as applied. The Court does not reach the issue of the facial constitutionality of that statute. NOTES [1] Apparently, the United States does not contest Clark County's right to impose a tax on ICI Americas, Inc. ("ICI") for buildings which it rented or used. Rather, the issue before us is whether Clark County may assess a tax upon ICI based upon the existence of other structures at the Plant that ICI never used or leased to any other entity. We develop this discussion in great detail supra. [2] The United States attempts to distinguish Yellow Cab on the ground that in that matter the Plaintiff failed to follow a statutory rule after the trial court acquired jurisdiction, whereas the Tax Court in the present matter never obtained jurisdiction due to ICI's failure to serve the Clark County Assessor. This distinction is without merit, however, because the timely filing of an administrative record is "a condition precedent to a court acquiring jurisdiction to consider a petition for judicial review." See Clendening v. Indiana Family and Social Services Admin., 715 N.E.2d 903, 904 (Ind.Ct.App.1999). In our case, the Tax Court acquired jurisdiction initially and then lost it. [3] The "laboring oar" exception is one of the few exceptions to the general rule that "the United States is rarely barred from independent litigation by the failure of a private plaintiff." See U.S. v. State Texas, 158 F.3d 299, 305-06 (5th Cir.1998) (quoting U.S. v. East Baton Rouge Parish School Bd., 594 F.2d 56, 58 (5th Cir.1979)). [4] We acknowledge that certain of these itemized facts are repeats of earlier references in this decision. Nonetheless, we include them here for sake of clarity and cogency.	{ "pile_set_name": "FreeLaw" }
Filed 7/23/19 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE CHRISTOPHER POTTER, B287614 Plaintiff and Appellant, (Los Angeles County Super. Ct. No. MC026408) v. ALLIANCE UNITED INSURANCE COMPANY, Defendant and Respondent. APPEAL from a judgment of the Superior Court of Los Angeles County, Brian C. Yep, Judge. Reversed and remanded with directions. Black Compean & Hall, Michael D. Compean and Frederick G. Hall, for Plaintiff and Appellant. Lewis Brisbois Bisgaard & Smith, Lane J. Ashley, Raul L. Martinez, and Celia Moutes-Lee, for Defendant and Respondent. Plaintiff and appellant Christopher Potter (Potter) was injured by Jesus Remedios Avalos-Tovar (Tovar) in an auto accident. Tovar was insured by defendant and respondent Alliance United Insurance Company (AUIC), with a maximum liability limit of $15,000. Potter offered to settle personal injury claims against Tovar for his policy limit, but AUIC did not respond to the offer. The claim was later tried to a jury and Potter obtained a judgment against Tovar for nearly one million dollars—which the trial court subsequently vacated when granting AUIC’s motion for new trial. Then, before retrial, AUIC paid Tovar $75,000 to release any bad faith claim he had against AUIC (for AUIC’s failure to accept the early settlement offer). Potter again prevailed after the second trial, this time obtaining a judgment in excess of one million dollars. Unable to collect that sum from the insolvent Tovar, Potter sued AUIC and alleged the release it procured from Tovar was a fraudulent conveyance under statutory and common law. We consider whether the trial court was right to sustain AUIC’s demurrer and dismiss the fraudulent conveyance suit on either of two alternative grounds— namely, that the suit was barred by the statute of limitations and failed to state a proper fraudulent conveyance claim. 2 I. BACKGROUND1 A. AUIC Procures the Release After a Jury Finding for Potter In October 2007, Potter was severely injured when the motorcycle he was riding collided with the automobile Tovar was driving. Tovar was insured under an automobile insurance policy issued by AUIC, which included liability coverage limited to $15,000 per person. Two months after the accident, Potter wrote to AUIC and offered to settle his claims against Tovar in exchange for payment of the $15,000 policy limit. The offer stated it would expire in 30 days. AUIC did not respond to the offer before it expired. Potter later filed a personal injury lawsuit against Tovar in Los Angeles Superior Court. That action proceeded to trial in July 2009. Tovar conceded he was at least partially at fault for Potter’s injuries but challenged the amount of damages. The jury returned a verdict in Potter’s favor, awarding him $908,643. Tovar filed a motion for a new trial and the trial court granted it—vacating the existing jury verdict and judgment. Potter appealed. In April 2010, while Potter’s appeal was pending, AUIC and Tovar entered into a confidential “Release and Settlement Agreement” (Release) pursuant to which Tovar released and discharged AUIC from “any claims for negligence, delay, bad 1 Our factual recitation is taken from the operative complaint’s allegations and attached exhibits. (See generally Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924, fn. 1 (Yvanova).) 3 faith, punitive damages, unfair practices, malpractice, emotional distress, consequential loss and damage, excess judgment, and personal injury.” Tovar also agreed he would “not make any assignments, file any suit, take any action or pursue any action [or] proceeding against releasees arising out of or in any way pertaining to the [Potter] automobile accident or the insurance and legal claims relating to said accident.” In exchange for Tovar’s release of claims and agreement to forego any assignment related to the Potter liability action, AUIC paid Tovar $75,000. B. Judgment Again for Potter, Who Cannot Collect Against Tovar The Court of Appeal affirmed the order granting a new trial in the Potter liability action and the case was remanded for retrial. In early April 2012—before a trial setting conference in the personal injury action and some two years after the Release had been executed—counsel for Tovar disclosed the existence of the Release to Potter’s counsel. The second trial in the personal injury action commenced approximately a year later. The jury again returned a verdict in Potter’s favor, this time awarding him $975,000 in damages. The trial court also awarded Potter $108,455.59 in recoverable costs and $441,697.92 in prejudgment interest. In December 2013, the trial court entered judgment for Potter in the amount of $1,523,887.16. From the time of the accident through the time of the second jury verdict, Tovar was insolvent—the only means he had of paying any significant portion of the judgment was his prerogative to sue AUIC. Potter offered to take an assignment of Tovar’s rights against AUIC in exchange for a covenant not to execute the judgment against Tovar’s personal assets. Because 4 he had already signed the Release, however, Tovar was unable to agree. AUIC paid Potter the $15,000 policy limit but refused to satisfy the remainder of the judgment. C. Potter Sues AUIC on a Fraudulent Conveyance Theory and the Trial Court Sustains AUIC’s Demurrer Potter filed an original complaint in this action alleging eight causes of action, including breach of contract, breach of the implied covenant of good faith and fair dealing, and engaging in a fraudulent conveyance. Potter subsequently filed first and second amended complaints, each alleging a single cause of action for fraudulent conveyance. Potter later filed a third amended complaint (the operative complaint) alleging only two causes of action: statutory and common law fraudulent conveyance. The former cause of action, predicated on a violation of California’s Uniform Voidable Transactions Act (the UVTA,2 Civ. Code,3 § 3439 et seq.), alleges Tovar was insolvent prior to and at the time Tovar and AUIC entered into the Release. The cause of 2 The UVTA was formerly known as the Uniform Fraudulent Transfers Act (UFTA) until it was amended and renamed effective January 1, 2016. (Stats. 2015, ch. 44, § 3.) Although the transfer at issue here took place in 2010, the UVTA does not substantively differ from the UFTA in any manner pertinent to our analysis. Thus, like the parties, we refer to and cite the current version of the UVTA throughout this opinion unless otherwise noted. 3 Undesignated statutory references that follow are to the Civil Code. 5 action further alleges that Tovar had a viable claim for breach of the implied covenant of good faith and fair dealing against AUIC, which was an “asset” he could have used to pay down his civil liability, and that AUIC participated in a fraudulent transfer of that asset by entering into the Release—which prevented Potter from collecting all or a greater share of the judgment in his favor.4 The operative complaint’s common-law-based fraudulent conveyance cause of action proceeded on essentially the same theory, but without reliance on the terms of the UVTA. The Release was illegal, the cause of action alleged, because the insolvent Tovar transferred his right to sue for breach of the covenant of good faith and fair dealing to AUIC, AUIC intended to prevent Potter from collecting the full amount of the judgment, and Tovar did not receive reasonably equivalent value for the claim released. AUIC demurred to the operative complaint, arguing the allegations predicated on the UVTA and common law failed to state facts sufficient to constitute a proper fraudulent conveyance cause of action. As relevant for our purposes, AUIC’s demurrer argued the UVTA-based cause of action was (1) barred by the statute of limitations and constituted a sham pleading because 4 The operative complaint further alleged facts evidencing AUIC’s intent to “hinder, delay or defraud” Potter, namely, the failure to disclose the Release for two years, the decision to enter into the Release after Potter had obtained a judgment against Tovar that was substantially higher than his policy limit, AUIC’s awareness that Tovar lacked assets other than the rights to the bad faith claim he released, and the purportedly inadequate consideration Tovar received for the Release. 6 its amendments contradicted prior allegations regarding when Potter became a creditor of Tovar; (2) Potter lacked standing to assert a UVTA claim because AUIC was not a debtor, a transferee, or a person for whose benefit a transfer was made; (3) the bad faith claim was not an “asset” when Tovar and AUIC entered into the Release because there was no judgment in effect against Tovar at the time; and (4) Potter could not allege he was injured by the transfer. As to the common law cause of action, AUIC argued it failed because Potter lacked standing to sue and could not prove any injury. At the demurrer hearing, the trial court initially opined the sham pleading and statute of limitations arguments “have some merit.” But the court asked the parties to focus their arguments on “whether this [i.e., the released bad faith claim] is an asset, whether there’s been a transfer of this asset, whether there are damages and, if so, whether they’re speculative or not, and the issue of standing.” The parties thereafter argued consistent with their positions in the demurrer briefing. After hearing argument from counsel, the trial court acknowledged AUIC’s conduct “doesn’t pass the smell test for sure,” but the court further mused that “doesn’t mean that something unlawful was done.” The court ultimately concluded it would sustain AUIC’s demurrer without leave to amend “for all of the reasons we discussed other than [an argument made by AUIC seeking to invoke] the mediation privilege.” The trial court prepared no further articulation of these reasons, and AUIC gave notice of the bottom-line ruling. A judgment of dismissal was then entered for AUIC. 7 II. DISCUSSION Potter’s briefing on appeal includes no meaningful discussion of his common law fraudulent conveyance cause of action, nor of why the trial court erred in sustaining the demurrer to it. We therefore do not address it and instead affirm the trial court’s ruling on that score. But the trial court’s UVTA ruling is adequately challenged, and that challenge has merit. Insofar as the trial court sustained AUIC’s demurrer because the UVTA claim is barred by the applicable statute of limitations, the conclusion is unsound. That cause of action was timely filed because the fraudulent transfer complained of was made during the pendency of a lawsuit that would (and did) establish whether a debtor-creditor relationship existed between Potter and Tovar. Under California precedent, the statute of limitations thus did not begin running until the judgment in the personal injury action became final. The trial court’s remaining reasons (from what we can gather) for sustaining AUIC’s demurrer were also faulty. Tovar’s right to sue for bad faith was an asset under the UVTA because it was an assignable form of personal property at the time the Release was executed. Potter had a “claim” against Tovar when the release was executed. Potter sufficiently alleged injury because the cause of action was an asset of Tovar’s that was put out of Potter’s reach by the Release. And AUIC is a proper defendant because the “transfer” of the bad faith claim (within the meaning of the UVTA, which defines “transfer” to include a “release”) was made for its benefit. A. Standard of Review We review de novo an order sustaining a demurrer without leave to amend. (Centinela Freeman Emergency Medical 8 Associates v. Health Net of California, Inc. (2016) 1 Cal.5th 994, 1010; Morales v. 22nd Dist. Agricultural Assn. (2016) 1 Cal.App.5th 504, 537.) “[W]e accept the truth of material facts properly pleaded in the operative complaint, but not contentions, deductions, or conclusions of fact or law. We may also consider matters subject to judicial notice. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6[ ].)” (Yvanova, supra, 62 Cal.4th at p. 924, fn. omitted.) “‘[T]he plaintiff has the burden of showing that the facts pleaded are sufficient to establish every element of the cause of action and overcoming all of the legal grounds on which the trial court sustained the demurrer, and if the defendant negates any essential element, we will affirm the order sustaining the demurrer as to the cause of action.’ [Citation.]” (Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481, 1490-1491; accord, Carman v. Alvord (1982) 31 Cal.3d 318, 324 [“A judgment of dismissal after a demurrer has been sustained without leave to amend will be affirmed if proper on any grounds stated in the demurrer, whether or not the [trial] court acted on that ground”]; E.L. White, Inc. v. City of Huntington Beach (1978) 21 Cal.3d 497, 504, fn. 2 [validity of the trial court’s action, not the reason for its action, is what is reviewable].) B. Overview of the UVTA The UVTA is the most recent iteration of creditor protection statutes that trace their origin to the reign of Queen Elizabeth I. (Legis. Com. com., 12A pt. 2 West’s Ann. Civ. Code (2016 ed.) foll. § 3439.01, p. 253; see also Mejia v. Reed (2003) 31 Cal.4th 657, 664 (Mejia).) A fraudulent transfer under the UVTA “‘is a transfer by the debtor of property to a third person 9 undertaken with the intent to prevent a creditor from reaching that interest to satisfy its claim.’ [Citation.]” (Kirkeby v. Superior Court (2004) 33 Cal.4th 642, 648.) “Under the U[V]TA, a transfer can be invalid either because of actual fraud (Civ. Code, § 3439.04, subd. (a)) or constructive fraud (id., §§ 3439.04, subd. (b), 3439.05) . . . .” (Mejia, supra, at p. 661.) “A creditor who is damaged by a transfer described in either section 3439.04 or section 3439.05 can set the transfer aside or seek other appropriate relief under Civil Code section 3439.07.” (Monastra v. Konica Business Machs., U.S.A., Inc. (1996) 43 Cal.App.4th 1628, 1635-1636.) As pertinent here, a creditor may recover against either “[t]he first transferee of the asset or the person for whose benefit the transfer was made.” (§ 3439.08, subd. (b)(1).) Actual fraud under the UVTA is shown when a transfer is made, or an obligation is incurred, “[w]ith actual intent to hinder, delay, or defraud any creditor of the debtor.” (§ 3439.04, subd. (a)(1).) Such a transfer is voidable as to a creditor of the debtor, “whether the creditor’s claim arose before or after the transfer was made or the obligation was incurred.” (§ 3439.04, subd. (a).) It is not voidable, however, “against a person that took in good faith and for a reasonably equivalent value given the debtor or against any subsequent transferee or obligee.” (§ 3439.08, subd. (a).) Constructive fraud under the UVTA can be shown in either of two ways. First, a transfer is constructively fraudulent where a debtor makes a transfer or incurs an obligation “[w]ithout receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor either: (A) [w]as engaged or was about to engage in a business or a transaction for which the 10 remaining assets of the debtor were unreasonably small in relation to the business or transaction[; or] (B) [i]ntended to incur, or believed or reasonably should have believed that the debtor would incur, debts beyond the debtor’s ability to pay as they became due.”5 (§ 3439.04, subd. (a)(2).) As with actual fraud, this form of transfer is voidable as to a creditor no matter whether the creditor’s claim arose before or after the transfer. (§ 3439.04, subd. (a).) Second, a transfer is constructively fraudulent when a debtor makes a transfer or incurs an obligation “without receiving a reasonably equivalent value in exchange for the transfer or obligation and the debtor was insolvent at that time or the debtor became insolvent as a result of the transfer or obligation.” (§ 3439.05, subd. (a).) This form of transfer is voidable as to a creditor whose claim arose before the transfer was made. (§ 3439.05, subd. (a).) C. The UVTA’s Filing Deadlines Pose No Bar to Potter’s UVTA Cause of Action The UVTA states a cause of action under section 3439.04, subdivision (a)(1) (actual fraud) is “extinguished” unless filed “not later than four years after the transfer was made or the obligation was incurred or, if later, not later than one year after the transfer or obligation was or could reasonably have been discovered by the claimant.” (§ 3439.09, subd. (a).) The statute provides a cause of action under section 3439.04, subdivision (a)(2) (constructive fraud—assets too small or debts too large) or 5 Former section 3439.04, subd. (a)(2)(B) used the phrase “he or she” rather than “the debtor.” (Former § 3439.04, subd. (a)(2)(B).) 11 section 3439.05 (constructive fraud—insolvency) must be filed “not later than four years after the transfer was made or the obligation was incurred.”6 (§ 3439.09, subd. (b).) The “after the transfer was made or the obligation was incurred” language used by section 3439.09 was interpreted by the Court of Appeal over 20 years ago in Cortez v. Vogt (1997) 52 Cal.App.4th 917 (Cortez). The panel in that case analyzed when UVTA filing deadlines are triggered in a case where the “transfer alleged to be a fraudulent conveyance occurs during an underlying action which later establishes by final judgment the actual legal existence of a debtor-creditor relationship.” (Id. at p. 929.) We are, of course, presented with that same basic scenario here: the Release was executed during the pendency of Potter’s action against Tovar, which ultimately confirmed Potter was a creditor of Tovar. Relying on “legislative material published in connection with the adoption of the [UVTA],” the Cortez opinion holds the filing deadlines run from the time the underlying judgment becomes final. (Cortez, supra, 52 Cal.App.4th at p. 929.) Cortez reached that conclusion in light of: (1) the UVTA’s purpose as a cumulative remedy in addition to preexisting remedies— remedies for which California Supreme Court precedent holds the limitations period begins to run at the time of judgment in the underlying action (Adams v. Bell (1936) 5 Cal.2d 697, 703); (2) a desire to construe the UVTA in a manner consistent with other 6 The wording of the UVTA differs slightly from the wording of the former UFTA. The differences are inconsequential for our analysis. 12 states’ laws;7 and (3) “[t]he potential of unnecessary litigation if strict time limits are drawn for fraudulent transfer cases in circumstances such as are involved in [Cortez].” (Cortez, supra, 52 Cal.App.4th at pp. 930-937.) Potter’s lawsuit against Tovar, the result of which would establish whether and to what extent Potter is a creditor of 7 The analysis and result in Cortez has since been criticized by some courts in other jurisdictions. (See, e.g., Schmidt v. HSC, Inc. (2014) 131 Hawaii 497, 511; Moore v. Browning (Ct.App. 2002) 203 Ariz. 102, 109; but see GEA Group AG v. Flex-N-Gate Corp. (7th Cir. 2014) 740 F.3d 411, 417 [noting the Illinois Supreme Court has not addressed the issue and could potentially agree with the “forcefully argued” Cortez].) In the 20-plus years since Cortez was decided, however, no published case in California has disagreed with its holding or adopted the reasoning of the critical out-of-state cases. We will not be the first, partly in deference to the reliance interests that may have grown up around Cortez and to the salutary aim of ensuring predictability and stability in the law. AUIC, for its part, does not argue Cortez was wrongly decided. Rather, AUIC cites PGA West Residential Assn., Inc. v. Hulven Internat., Inc. (2017) 14 Cal.App.5th 156 (PGA West) and contends PGA West concluded section 3439.09 is a statute of repose (not a statute of limitations), thereby rendering Cortez distinguishable. AUIC misreads PGA West, or more precisely, reads it too broadly. The court in PGA West considered a question Cortez did not: whether section 3439.09, subdivision (c), which places a backstop seven-year filing cap on a UVTA action “[n]otwithstanding any other provision of law,” is subject to tolling. PGA West does not, as AUIC suggests, declare either subdivisions (a) or (b) statutes of repose, and we decline to so extend the case’s holding, which is solely focused on subdivision (c). 13 Tovar, was pending when the Release was signed. Following Cortez, the UVTA filing deadlines did not begin to run until judgment was entered in the underlying action. (Cortez, supra, 52 Cal.App.4th at p. 937.) That occurred on December 20, 2013, and Potter filed his original complaint within four years of that date, on June 24, 2016. The suit is therefore timely. D. The Operative Complaint States a Valid UVTA Claim AUIC’s demurrer did not challenge the sufficiency of Potter’s allegations of either actual or constructive fraud. Instead, the demurrer attacked the sufficiency of the foundational allegations that establish certain predicates for a UVTA violation, namely whether Potter sufficiently alleged (1) an asset was transferred, (2) Potter was injured by the transfer, and (3) any suffered injury entitled Potter to sue AUIC. AUIC continues to press these points on appeal. AUIC additionally argues the complaint failed to sufficiently allege that Potter had a “claim” against Tovar or that Tovar was insolvent at the pertinent time. We take up these arguments and find each lacking. 1. The cause of action for bad faith is an “asset” In pertinent part, the UVTA defines an asset as the “property of a debtor,” excluding property “to the extent it is encumbered by a valid lien[,]” and “to the extent it is generally exempt under nonbankruptcy law.” (§ 3439.01, subd. (a).) As noted by the Legislative Committee Comments, the definition of asset “requires a determination that the property is subject to enforcement of a money judgment. Under Section 704.210 of the Code of Civil Procedure, property that is not subject to 14 enforcement of a money judgment is exempt.” (Legis. Com. com., 12A pt. 2 West’s Ann. Civ. Code (2016 ed.) foll. § 3439.01, p. 253.) “Except as otherwise provided by law, all property of the judgment debtor is subject to enforcement of a money judgment.” (Code Civ. Proc., § 695.010, subd. (a).) “‘Property’ includes real and personal property and any interest therein.” (Code Civ. Proc., § 680.310.) “‘Personal property’ includes both tangible and intangible personal property.”8 (Code Civ. Proc., § 680.290.) A cause of action to recover money damages is known as a “chose in action,” which is considered a form of personal property. (Vick v. DaCorsi (2003) 110 Cal.App.4th 206, 212, fn. 35; see also Code Civ. Proc. § 17, subd. (b)(8)(A) [defining “personal property” to include “things in action”].) From just these basic definitional principles, Tovar’s right to bring a bad faith cause of action would constitute personal property subject to the enforcement of a money judgment. The Code of Civil Procedure, however, includes an exception to the rule that we must consider to see if it changes the result. The Code states: “Except as otherwise provided by statute, property of the judgment debtor that is not assignable or transferable is not subject to enforcement of a money judgment.” (Code Civ. Proc. § 695.030, subd. (a).) The question, of course, becomes whether Tovar’s bad faith cause of action was assignable, and for that, we look to the nature of the cause of action. 8 Potter’s opening brief contends at some length that the intangible nature of the property at issue here does not bear on the adequacy of his pleading. Because we agree and AUIC does not argue to the contrary, we do not address this point further. 15 “The implied covenant [of good faith and fair dealing] imposes on an insurer the duty to accept a reasonable settlement offer within policy limits when there is a substantial likelihood of a judgment against the insured exceeding policy limits. [Citation.] An insurer who breaches this duty is liable for all of the insured’s damages proximately caused by the breach, regardless of policy limits.” (Wolkowitz v. Redland Ins. Co. (2003) 112 Cal.App.4th 154, 162 (Wolkowitz).) An insured, however, has no immediate remedy for a refusal to settle; rather, “[u]ntil judgment is actually entered, the mere possibility or probability of an excess judgment does not render the refusal to settle actionable.” (Safeco Ins. Co. of Am. v. Superior Court (1999) 71 Cal.App.4th 782, 788 (Safeco).) An insured may, however, assign a cause of action for bad faith failure to settle in exchange for the plaintiff’s covenant not to execute an excess judgment against the insured’s personal assets. (Hamilton v. Maryland Cas. Co. (2002) 27 Cal.4th 718, 732 (Hamilton); see also 21st Century Ins. Co. v. Superior Court (2015) 240 Cal.App.4th 322, 327 (21st Century); Safeco, supra, 71 Cal.App.4th at pp. 788-789.) This both “ensure[s] a reliable judicial determination of the insured’s liability for purposes of a later bad faith action and eliminate[s] the insured’s exposure to an excess judgment.” (Wolkowitz, supra, 112 Cal.App.4th at p. 164.) The assignment “is not immediately assertable,” but “becomes operative after the excess judgment has been rendered.” (Hamilton, supra, at p. 732; see also Wolkowitz, supra, at p. 164 [an insured can assign the bad faith cause of action against the insurer to the claimant “before trial in the underlying action”]; 21st Century, supra, at p. 327 [“insured may assign any bad faith claims to the plaintiff in exchange for a covenant not to execute; 16 the assignment will become operative after trial and in the event that an excess judgment has been rendered”].) Under this established authority, Tovar’s bad faith cause of action against AUIC was assignable when Tovar entered into the Release even though Tovar could not yet have sued AUIC. Because it was assignable, and because it does not appear to be otherwise exempted, the potential cause of action is property subject to a money judgment and therefore an asset under the UVTA. AUIC’s arguments to the contrary are all unpersuasive. AUIC relies on Safeco, supra, 71 Cal.App.4th 782, for the proposition that a cause of action for bad faith failure to settle accrues only after a judgment has been rendered in excess of the policy limits. True, that is what Safeco says, but that is not all it says. Safeco and the other cases we have cited recognize a bad faith cause of action may be assigned to the claimant before trial in the underlying action (id. at p. 788), and AUIC does not reckon with that aspect of precedent that is dispositive on the meaning of “asset” under the UVTA. AUIC also contends the cause of action was not an asset because Tovar could not have sold it to satisfy the excess judgment. The cause of action was transferable, though, and that undercuts AUIC’s unsupported assertion that the cause of action was not an asset. Additionally, AUIC contends section 1045, which provides “[a] mere possibility, not coupled with an interest, cannot be transferred,” demonstrates the unaccrued cause of action could not have been assigned. This contention is similarly unpersuasive. “Although common law and statutory rules against assignment of expectations . . . prevent the transferee from immediately asserting his claim, the attempted transfer of a future right arising out of the breach of the insurer’s duty to 17 settle in good faith operates as an ‘equitable assignment or contract to assign, which becomes operative as soon as the right comes into existence.’ [Citation.]” (Schlauch v. Hartford Accident & Indem. Co. (1983) 146 Cal.App.3d 926, 931, fn. 3.) Indeed, California courts have long enforced assignments of contingent expectancies “[d]espite . . . section 1045.” (Bank of California v. Connolly (1973) 36 Cal.App.3d 350, 366-367; see also Dougherty v. California Kettleman Oil Royalties, Inc. (1937) 9 Cal.2d 58, 89.) Because we conclude the cause of action was an asset within the meaning of the UVTA, AUIC’s argument that the Release was not a transfer of an asset also fails. “‘[T]ransfer’ under the U[V]TA has a broad meaning.” (Sturm v. Moyer (2019) 32 Cal.App.5th 299, 308.) It includes “every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with an asset or an interest in an asset, and includes payment of money, release, lease, license, and creation of a lien or other encumbrance.” (§ 3439.01, subd. (m), italics added.) Under the plain language of the UVTA, a release qualifies as a “transfer.” AUIC nevertheless relies on canons of statutory interpretation to argue Tovar’s release of his contingent bad faith cause of action could not constitute a transfer under the UVTA because “release” only applies to an asset or interest in an asset, not to the release of a right. The canons do not alter the statute’s plain meaning, however, and in any event, we have decided there was an asset involved and the argument therefore fails by necessity. 18 2. Potter alleged sufficient facts to establish he had a claim against Tovar AUIC also argues Potter did not have a “claim” against Tovar, and thus was not a “creditor” when Tovar executed the Release, because Potter did not have a judgment against Tovar at the time. While AUIC is correct that a creditor under the UVTA is “a person that has a claim,” the word “claim” is not as narrowly defined as AUIC contends. With an exception not pertinent here, a claim is “a right to payment, whether or not the right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.” (§ 3439.01, subd. (b).) The plain language of section 3439.01 demonstrates an individual need not have a judgment to have a claim, as does section 3439.04, which provides certain transfers are voidable as to a creditor “whether the creditor’s claim arose before or after the transfer was made” (§ 3439.04, subd. (a)). Though Potter did not have a judgment against Tovar when the Release was executed, he had a claim against him. He and Tovar were thus, respectively, a creditor and debtor under the terms of the UVTA. (§ 3439.01, subds. (c), (e).) 3. Potter sufficiently alleged injury The operative complaint alleges Potter obtained a verdict in his favor in the amount of $1,523,887.16 and has been damaged because he cannot collect the full amount of the excess judgment from either Tovar or AUIC. As we have already concluded, the bad faith cause of action was a transferrable asset. Without the Release, Tovar could have assigned the cause of action to Potter. If Tovar had declined to do so in favor of pursing it himself, 19 Potter could have placed a lien on the cause of action or potential proceeds of the lawsuit. (Code Civ. Proc., § 708.410, subd. (a).) The Release deprived Potter of those options. While it is unclear at this juncture what value Tovar’s cause of action had or has,9 the allegation is sufficient to demonstrate injury for the purposes of a demurrer. We also reject AUIC’s argument that Potter was not injured by the Release because it did not put any property out of the reach of a creditor. The basic premise of this contention is that Potter did not have a judgment or a “right to payment” when the Release was executed. As described above, a right to payment under the UVTA need not be “reduced to judgment” in order for a claim to exist. (§ 3439.01, subd. (b).) Potter had a “claim,” and was a creditor, when the Release was executed. 4. Potter alleged sufficient facts to establish AUIC is a proper defendant for this cause of action AUIC appears to have abandoned the contention, raised below, that Potter lacks standing to sue AUIC for fraudulent conveyance. We nevertheless address the contention briefly because it is unclear from the trial court’s “for all of the reasons we discussed” ruling whether it based any part of its decision on this contention. The UVTA permits a creditor to recover against a transferee or a “person for whose benefit the transfer was made.” 9 It seems fair to assume, however, from the $75,000 AUIC paid Tovar in consideration for the Release, that the cause of action had significant monetary value when the Release was executed. 20 (§ 3439.08, subd. (b)(1)(A).) AUIC argued Potter could not state a cause of action for fraudulent conveyance against AUIC because AUIC was not a debtor, a transferee, or a person for whose benefit a transfer was made. The facts as alleged in the operative complaint forestall this conclusion. As alleged, the transfer in question was made for AUIC’s benefit. 5. AUIC’s insolvency argument fails AUIC argues the trial court properly sustained the demurrer because the Release did not render Tovar “insolvent” as defined by the UVTA. Only one of the three methods of proving a violation of the UVTA requires a plaintiff to prove insolvency (§ 3439.05), and the operative complaint pleads all three methods in the alternative. As a result, even if AUIC were correct, it has not shown the complaint fails to state a cause of action for violation of the UVTA. E. Potter Waived Any Challenge to the Demurrer Ruling on the Common Law Cause of Action Though Potter’s briefs on appeal include passing mentions of his cause of action for common law fraudulent conveyance, he includes no meaningful discussion of it and cites no pertinent authority regarding it. “‘When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.’ (Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862[ ].) ‘We are not bound to develop appellants’ arguments for them. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived.’ [Citations.]” (Cahill v. San Diego Gas & Electric Co. (2011) 194 21 Cal.App.4th 939, 956.) Cahill’s observations apply fully to Potter’s common law cause of action and the trial court’s ruling as to that cause of action will therefore stand. DISPOSITION The judgment of dismissal is reversed and the case is remanded for further proceedings consistent with this opinion. Potter is to recover his costs on appeal. CERTIFIED FOR PUBLICATION BAKER, J. We concur: RUBIN, P. J. MOOR, J. 22	{ "pile_set_name": "FreeLaw" }
IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-71,919-02 TIMOTHY WAYNE RYAN, Relator v. TITUS COUNTY DISTRICT CLERK, Respondent ON APPLICATION FOR A WRIT OF MANDAMUS CAUSE NO. 15,114 IN THE 276TH JUDICIAL DISTRICT COURT FROM TITUS COUNTY Per curiam. O R D E R Relator has filed a motion for leave to file a writ of mandamus pursuant to the original jurisdiction of this Court. In it, he contends that he filed an application for a writ of habeas corpus in the 276th Judicial District Court of Titus County, that more than 35 days have elapsed, and that the application has not yet been forwarded to this Court. In these circumstances, additional facts are needed. The respondent, the District Clerk of Titus County, is ordered to file a response, which may be made by: submitting the record on such habeas corpus application; submitting a copy of a timely filed order that designates issues to be investigated, see McCree v. Hampton, 824 S.W.2d 578 (Tex. Crim. App. 1992); stating that the claims asserted in the application filed by Relator are not cognizable under Tex. Code Crim. Proc. art. 11.07, § 3; or stating that Relator has not filed an application for a writ of habeas corpus in Titus County. This application for leave to file a writ of mandamus shall be held in abeyance until the respondent has submitted the appropriate response. This response shall be submitted within 30 days of the date of this order. Filed: February 24, 2010 Do not publish	{ "pile_set_name": "FreeLaw" }
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT __________________ No. 95-40704 Conference Calendar __________________ SHANE EDWARD BISHOP, Plaintiff-Appellant, versus JEFF HENSLEY, et al., Defendants, DOUG LEE, Denton County Detention Officer, Defendant-Appellee. - - - - - - - - - - Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:94-CV-98 - - - - - - - - - - April 19, 1996 Before DUHÉ, DeMOSS, and DENNIS, Circuit Judges. PER CURIAM:* Shane Edward Bishop has appealed the district court's denial of his motion for appointment of counsel. An interlocutory order denying the appointment of counsel in a civil rights action may be immediately appealed. Robbins v. Maggio, 750 F.2d 405, 413 (5th Cir. 1985). A trial court is not required to appoint counsel for an indigent plaintiff asserting a claim under 42 * Pursuant to Local Rule 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 Local Rule 47.5.4. No. 95-40704 -2- U.S.C. § 1983 unless exceptional circumstances exist. Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982). A district court has the discretion to appoint counsel for a plaintiff proceeding pro se if doing so would advance the proper administration of justice. Id. at 213. A review of the district court's order, which reveals that it considered the four Ulmer factors, as well as of the record on appeal and Bishop's brief, demonstrates that the court did not abuse its discretion by refusing to appoint counsel for Bishop in this case. Bishop has also moved for the appointment of counsel in this appeal. Because the issues presented in this appeal are limited to the denial of Bishop's appointment-of-counsel motion in the district court, appointment of counsel is not warranted in this appeal. He has also filed motions to strike the appellee’s response brief and to file a reply brief out of time. Neither motion has any bearing on the issues before the court. AFFIRMED. MOTIONS DENIED.	{ "pile_set_name": "FreeLaw" }
Filed Washington State Court of Appeals Division Two July 2, 2019 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II DANIEL L. ROGERS, an individual, No. 51375-7-II Appellant, UNPUBLISHED OPINION v. QUALITY LOAN SERVICE CORPORATION OF WASHINGTON, a Washington corporation; MCCARTHY HOLTHUS, LLP, a Professional Services Organization; JPMORGAN CHASE BANK, N.A., a national association; WELLS FARGO BANK, N.A., a national association; WAMU MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2005-PR1 TRUST,. Respondents. SUTTON, J. — After defaulting on a loan secured by a promissory note and a deed of trust on his property, Daniel L. Rogers, acting pro se, filed a complaint to stop a non-judicial foreclosure by JPMorgan Chase, N.A. (Chase), Wells Fargo Bank, N.A., and Wells Fargo Bank, N.A. as Trustee for the WaMu Mortgage Pass-Through Certificates Series 2005 (the Trust).1 Chase and the Trust filed a motion for summary judgment and dismissal of Rogers’s complaint and for judgment on the Trust’s counterclaim for judicial foreclosure. The superior court granted the motion in part, dismissed the complaint, granted foreclosure on the Trust’s judicial foreclosure counterclaim, and denied without prejudice the motion for entry of judgment on the total amount 1 Quality Loan Service Corporation of Washington and McCarthy & Holthus were dismissed from the case in 2015, and thus, are not part of this appeal. No. 51375-7-II due, Rogers’s redemption right, and the Trust’s recoverable costs. The Trust filed another summary judgment motion on the amount due and the superior court granted the motion and entered judgment against Rogers. Rogers appeals both orders. Preliminarily, Rogers argues that he is entitled to the assistance of counsel and the superior court should not have held him to the same standard as an attorney. He also argues that the superior court erred by granting summary judgment in favor of Chase and the Trust because there are genuine issues of material fact regarding his Consumer Protection Act (CPA) 2 claim and the amount due on the defaulted loan. Chase and the Trust argue that the superior court did not err because Rogers failed to show a genuine issue of material fact. We hold that Rogers is not entitled to the assistance of counsel and the court did not err in holding him to the same standard as an attorney. We also hold that the superior court did not err by granting summary judgment and dismissing all claims in Rogers’s complaint including the CPA claim against Chase, granting the Trust’s judicial foreclosure counterclaim, and entering judgment against Rogers. We affirm both orders. FACTS I. BACKGROUND INFORMATION A. INDIGENCY AND APPELLATE REVIEW Rogers filed a motion for indigency. He explained that he had been unemployed for six months, and had to sell personal items and rely on roommates to survive. He requested the following relief: waiver of the filing fee, preparation of verbatim report of proceedings, costs of 2 Ch. 19.86 RCW. 2 No. 51375-7-II reproducing clerk’s papers, appointment of counsel, and an order to the clerk of the superior court to transmit to the Supreme Court the papers designated in the findings of indigency. The superior court found that Rogers was “unable by reason of poverty to pay for all or some of the expenses of appellate review,” and that “[Rogers] is unable to contribute.” Clerk’s Papers (CP) at 482. On November 4, 2015, a panel of the Supreme Court issued an order denying his motion for indigency, stating only, “That the Appellant’s Motion for Expenditure of Public Funds is denied.” CP at 553. B. LOAN, PROMISSORY NOTE AND DEED OF TRUST In November 2004, Rogers borrowed $240,000 from Washington Mutual Bank (WaMu), evidenced by a promissory note (Note). Rogers promised in that Note to make payments “every month,” and to do so “until I have paid all of the principal and interest and any other charges described below that I may owe under this Note.” CP at 1256. Rogers also signed a Deed of Trust securing the Note against his property in Tahuya, Washington (Property). The Deed of Trust provides that the beneficiary can sell the Property if Rogers defaulted on his loan. The Note and the Deed of Trust name WaMu as both lender and beneficiary. The Note is indorsed-in-blank. In 2005, WaMu sold the Note to Wells Fargo Bank, N.A. the acting trustee for the WaMu Mortgage Pass-through Certificates Series 2005-PR1 Trust, but remained the loan servicer and custodian. Rogers defaulted on his loan in 2007 and declared bankruptcy. After Rogers defaulted, he made payments to the bankruptcy trustee, Chase, along with other payments that Chase ultimately credited to his loan. In September 2008, WaMu failed and the Federal Deposit Insurance Corporation (FDIC) took WaMu into receivership. Rundgren v. Wash. Mut. Bank, FA, 760 F.3d 1056, 1059 (9th Cir. 2014); Benson v. JPMorgan Chase Bank, N.A., 673 F.3d 1207, 1209-10 (9th Cir. 2012). The 3 No. 51375-7-II FDIC assumed “all rights, titles, powers, and privileges” of WaMu. Formerly 12 U.S.C. § 1821(d)(2)(A)(i) (2008). On September 25, 2008, Chase became the successor-in-interest as to WaMu’s rights in Rogers’s loan by its purchase of WaMu’s assets from the FDIC. Chase and the FDIC entered into a purchase and assumption agreement to memorialize the purchase, which included WaMu’s rights to service certain loans (including Rogers’s loan). In 2011, Chase executed a corporate assignment of deed of trust, assigning its interest in Rogers’s Deed of Trust to Wells Fargo Bank, N.A., as trustee for the Trust. While the Trust owned the Note, Chase serviced the loan and physically possessed the Deed of Trust and Note. The Trust also gave Chase a limited power of attorney to enforce Rogers’s loan. II. PROCEDURAL INFORMATION On January 21, 2014, Rogers filed a complaint seeking to stop a non-judicial foreclosure on the Property, and alleged a number of causes of actions against Chase and the Trust which are not relevant to this appeal. Rogers alleged that Chase improperly foreclosed non-judicially because it did not acquire an interest in the Property, making the non-judicial foreclosure documents invalid. Rogers further alleged that Chase and the Trust failed to follow the Deed of Trust Act (DTA)3 requirements for non-judicial foreclosure and alleged that the property was being used for agricultural purposes. Chase and the Trust then commenced judicial foreclosure proceedings against the Property. 3 Ch. 61.12 RCW. 4 No. 51375-7-II On July 17, 2015, Chase and the Trust answered Rogers’s complaint, and the Trust filed a judicial foreclosure counterclaim. Rogers did not file an answer to the counterclaim. On June 28, 2016, Chase and the Trust filed a motion for summary judgment dismissal of all claims in Rogers’s complaint and for foreclosure on the Trust’s judicial foreclosure counterclaim. The superior court granted partial summary judgment to Chase and the Trust on all claims in Rogers’s complaint, dismissing them with prejudice, and granted the Trust’s judicial foreclosure counterclaim. However, the superior court found that there were genuine issues of material fact as follows: a. The total amount due and [owing] under the Deed of Trust, including proof of the amount of each monthly installment owing; b. The rights of redemption held by [Rogers], if any; c. The costs Defendant/Counterclaimant believes are recoverable in this action. CP at 855-56. In 2017, the Trust filed another motion for summary judgment and an affidavit with exhibits showing the payment history to prove what Rogers owed, what was due, and what Chase had credited on the outstanding loan. Instead of timely opposing that second motion, Rogers, on the final hearing date, filed a number of documents alleging a disability and referencing accommodations under the Americans with Disabilities Act (ADA)4, as well as motions to dismiss the counterclaims, for reconsideration of the superior court’s evidentiary ruling to take judicial notice of certain documents, and to strike the declarations filed in support of the Trust’s judicial foreclosure counterclaim. Because Rogers did not present any evidence to the contrary, the 4 42 U.S.C. § 12102(2) (2009). 5 No. 51375-7-II superior court accepted the payment history as accurate, granted summary judgment, and denied Rogers’s motions. The superior court entered a judgment stating that the Trust was entitled to recover $239,644.49 with interest at 3.8720 percent per annum from Rogers and was allowed to foreclose on Rogers’s property. Rogers appeals both superior court orders. ANALYSIS I. LEGAL PRINCIPLES We review a superior court’s summary judgment order de novo. Reliable Credit Ass’n v. Progressive Direct Ins., 171 Wn. App. 630, 637, 287 P.3d 698 (2012). Summary judgment is appropriate if, when viewing the facts in the light most favorable to the nonmoving party, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). “A genuine issue of material fact exists only where reasonable minds could reach different conclusions.” Michael v. Mosquera-Lacy, 165 Wn.2d 595, 601, 200 P.3d 695 (2009). If there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law, we affirm the superior court’s summary judgment order. Lakey v. Puget Sound Energy, Inc., 176 Wn.2d 909, 922, 296 P.3d 860 (2013). “Mere allegations or conclusory statements of fact unsupported by evidence do not sufficiently establish such a genuine issue.” Discover Bank v. Bridges, 154 Wn. App. 722, 727, 226 P.3d 191 (2010). “[T]he nonmoving party ‘may not rely on speculation, argumentative assertions that unresolved factual issues remain, or in having its affidavits considered at face value.’” Bridges, 154 Wn. App. at 727 (quoting Seven Gables Corp. v. MGM/UA Entm’t Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986)). 6 No. 51375-7-II II. APPOINTMENT OF COUNSEL For the first time on appeal, Rogers argues that the superior court erred by not providing him with the assistance of counsel based on indigence. He argues that he was entitled to the appointment of counsel because otherwise justice could not be done by the court. We disagree. RAP 2.5(a) states: The appellate court may refuse to review any claim of error which was not raised in the trial court. However, a party may raise the following claimed errors for the first time in the appellate court: (1) lack of trial court jurisdiction, (2) failure to establish facts upon which relief can be granted, and (3) manifest error affecting a constitutional right. A party or the court may raise at any time the question of appellate court jurisdiction. A party may present a ground for affirming a trial court decision which was not presented to the trial court if the record has been sufficiently developed to fairly consider the ground. A party may raise a claim of error which was not raised by the party in the trial court if another party on the same side of the case has raised the claim of error in the trial court. Generally, there is a right to counsel in civil cases only when a civil litigant’s “physical liberty is threatened” or a “fundamental liberty interest . . . is at risk.” In re Dependency of Grove, 127 Wn.2d 221, 237, 897 P.2d 1252 (1995). Here, Rogers fails to identify any constitutional or statutory right to the appointment of counsel for actions under the DTA. Although he claims that his property and financial interests are at stake, the Trust filed a judicial foreclosure counterclaim allowed by the DTA to enforce the loan as Rogers had agreed to in the Deed of Trust he executed to secure the loan. On appeal, Rogers does not allege any procedural irregularities in the judicial foreclosure and he did not appeal the judicial foreclosure by the Trust, only the amount due on the defaulted loan. Under Grove, Rogers has no right to the assistance of counsel based on indigence. Further, the superior 7 No. 51375-7-II court did not enter an order denying Rogers’s request for the assistance of counsel. Thus, we hold that the court did not err. III. TREATMENT OF PRO SE LITIGANTS Citing federal authority, Rogers argues that the superior court erred by holding him, a pro se litigant, to the same standard as an attorney. We hold that the superior court did not err because the law is well established that a pro se litigant is held to the same standard as an attorney. In federal court, pro se pleadings receive liberal construction. Pouncil v. Tilton, 704 F.3d 568 (9th Cir. 2012); see Haines v. Kerner, 404 U.S. 519, 520-21, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972). But in Washington courts, a superior court “must hold pro se parties to the same standards to which it holds attorneys.” Edwards v. Le Duc, 157 Wn. App. 455, 460, 238 P.3d 1187 (2010). This is a procedural rule; federal procedural rules do not control in state courts. Adams v. LeMaster, 223 F.3d 1177, 1182 n.4 (10th Cir. 2000). Thus, the Washington rule applies and the superior court did not err when it held Rogers, as a pro se litigant, to the same standard as an attorney. IV. SUMMARY JUDGMENT Rogers argues that the superior court erred by granting summary judgment dismissal of his claims in the complaint including his CPA claim against Chase, and erred by granting the Trust’s judicial foreclosure counterclaim as to the amount due and entering judgment against him. We hold that because there are no genuine issues of material fact and because Chase and the Trust are entitled to judgment as a matter of law, the superior court did not err. 8 No. 51375-7-II A. WAIVER OF REVIEW Chase and the Trust initially argue that Rogers waived review of the partial summary judgment order dismissing his complaint because his assignments of error do not assert that the superior court erred in granting this motion. We agree. “The scope of a given appeal is determined by the notice of appeal, the assignments of error,” and the parties’ substantive arguments. Clark County v. W. Wash. Growth Mgmt. Hearings Bd., 177 Wn.2d 136, 144, 298 P.3d 704 (2013). The party must designate in its notice of appeal the decision that it wants this court to review. RAP 5.3(a).5 Here, in his notice of appeal, Rogers designated the partial summary judgment order dated December 12, 2016. However, his brief fails to address this order. We hold that Rogers has waived any argument regarding summary judgment dismissal of his complaint under Clark County and RAP 5.3(a). Thus, we review below Rogers’s remaining CPA claim against Chase. B. CPA CLAIM Rogers argues that because there are genuine issues of material fact related to his claim that Chase violated the CPA, the superior court erred by granting summary judgment dismissal of the CPA claim. He argues that Chase sent out contradictory billing notices regarding the amount due on his defaulted loan which constituted an unfair trade or deceptive business practice in enforcing the loan. Chase argues that the superior court did not err because Rogers failed to show a genuine issue of material fact that Chase acted deceptively, unfairly, or that he was injured. We 5 RAP 5.3(a) states in relevant part that “A notice of appeal must (1) be titled a notice of appeal, (2) specify the party or parties seeking the review, (3) designate the decision or part of decision which the party wants reviewed, and (4) name the appellate court to which the review is taken.” 9 No. 51375-7-II hold that because there are no genuine issues of material fact regarding any deceptive or unfair actions by Chase in enforcing the loan, the superior court did not err by granting summary judgment dismissal of the CPA claim. The CPA prohibits “[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” RCW 19.86.020. Under RCW 19.86.090, any person injured in his or her business or property by a violation of RCW 19.86.020 may bring a civil action to recover actual damages. Panag v. Farmers Ins. Co. of Wash., 166 Wn.2d 27, 37, 204 P.3d 885 (2009). To prevail on a CPA claim, a plaintiff must prove “(1) an unfair or deceptive act or practice, (2) occurring in trade or commerce, (3) affecting the public interest, (4) injury to a person's business or property, and (5) causation.” Panag, 166 Wn.2d at 37. Whether a plaintiff can prevail on a CPA claim is a case by case determination of whether the plaintiff can satisfy each of the five elements. Lyons v. U.S. Bank Nat’l Ass’n, 181 Wn.2d 775, 785, 336 P.3d 1142 (2014). Here, Rogers alleges that Chase: The Defendant/Appellee sent out monthly notices stating the amount due. The Deed of Trust required payments be paid when due. [Rogers] asserts that sending borrowers contradictory statements regarding the amount due constitutes a default of the promissory note and the deed of trust. The fact that the Note [h]older or its agents had previously sent out contradictory bills and had not provided any testimony explaining how the $30 plus thousand payments in the bankruptcy were handled creates an issue of fact per se and one regarding the . . . total amount owed. It also involves question with regard to credibility of creditors. These issues of fact should not have been resolved against [Rogers]. Appellant’s Amended Opening Br. at 38. But Rogers fails to establish all the elements of a CPA claim. Panag, 166 Wn.2d at 37. Rogers’s brief lacks any citation to the record and contains unsupported assertions related to the 10 No. 51375-7-II CPA claim. Because Rogers fails to establish all elements of a CPA claim, and there are no genuine issues of material fact, we hold that the superior court did not err by dismissing the CPA claim. C. JUDICIAL FORECLOSURE COUNTERCLAIM Rogers claims that Chase and the Trust misstated the amount due in the Trust’s judicial foreclosure counterclaim. He also claims that Chase and the Trust did not credit him the money he had paid during his bankruptcy and that Chase had sent him contradictory information, which he claims constitutes a “factual dispute” defeating summary judgment. Chase and the Trust claim that Rogers waived all defenses to the counterclaim for judicial foreclosure by failing to answer the counterclaim. We disagree with Chase and the Trust because, although Rogers failed to answer the counterclaim, this issue was litigated below and Rogers appealed the order entering judgment on the amount due. However, because there are no genuine issues of material fact regarding the amount due on the defaulted loan, we hold that Chase and the Trust were entitled to judgment as a matter of law, and thus, the court did not err. “Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading.” CR 8(d). We can affirm the grant of summary judgment on any basis present in the record of proceedings in the superior court. King County v. Seawest Inv.t Assocs., LLC, 141 Wn. App. 304, 310, 170 P.3d 53 (2007). Rogers fails to provide any evidence that the payment history on the amounts due was inaccurate. The superior court correctly determined that the payment history was accurate and 11 No. 51375-7-II correctly ruled that entry of judgment in favor of Chase and the Trust was proper. Thus, we hold that the superior court did not err. Accordingly, we affirm. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered. SUTTON, J. We concur: MAXA, C.J. MELNICK, J. 12	{ "pile_set_name": "FreeLaw" }
606 So.2d 1204 (1992) Robert CRAWFORD, Appellant, v. STATE of Florida, Appellee. No. 91-01692. District Court of Appeal of Florida, Second District. September 18, 1992. Rehearing Denied November 4, 1992. James Marion Moorman, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellant. Robert Crawford, pro se. Robert A. Butterworth, Atty. Gen., Tallahassee, and Brenda S. Taylor, Asst. Atty. Gen., Tampa, for appellee. PER CURIAM. Defendant, who had been charged with attempted first-degree murder and attempted armed robbery, appeals his convictions for attempted second-degree murder and aggravated assault. The state cross-appeals the trial court's directed verdict of acquittal of attempted armed robbery and *1205 adjudication of guilt of the lesser offense of aggravated assault. We affirm the defendant's conviction for attempted second-degree murder and reverse his conviction for aggravated assault. As to the attempted second-degree murder conviction, we do not agree with defendant's contention on appeal that the trial court's failure to instruct the jury on attempted manslaughter was fundamental error. Defendant's failure to request that instruction and object to the trial court's omission thereof procedurally bars review. See McKinney v. State, 579 So.2d 80, 83-84 (Fla. 1991); Lee v. State, 526 So.2d 777, 778 (Fla. 2d DCA 1988). In a similar case where the defendant was charged with first-degree murder and convicted of second-degree murder, whether or not there should have been given to the jury as a part of the manslaughter instruction the short form excusable homicide instruction, which was subject to a potentially erroneous interpretation, was said to be "properly ... within the province and responsibility of defense counsel as a matter of trial tactics and strategy." State v. Smith, 573 So.2d 306, 310 (Fla. 1990) (quoting Smith v. State, 539 So.2d 514, 517 (Fla. 2d DCA 1989)). As to the aggravated assault conviction, the trial court erred in granting the defendant's motion for judgment of acquittal of attempted armed robbery and directing a conviction of aggravated assault. See Thomas v. State, 584 So.2d 1022 (Fla. 1st DCA 1991). The attempted second-degree murder conviction is affirmed. On remand, the jury verdict on attempted armed robbery shall be reinstated and a conviction entered in that regard. LEHAN, C.J., and THREADGILL and BLUE, JJ., concur.	{ "pile_set_name": "FreeLaw" }
274 S.E.2d 227 (1981) 301 N.C. 401 AMERICAN MANUFACTURERS MUTUAL INSURANCE COMPANY et al. v. John Randolph INGRAM et al. (Appealed by Wake Anesthesiology Associates, Inc., Lawrence B. Haynes, Jr., LeRoy King and Jafar M. Schick). Supreme Court of North Carolina. January 6, 1981. Law Offices of John R. Jordan, Jr., Raleigh, for plaintiffs. Tharrington, Smith & Hargrove, Raleigh, for defendants. Petition by plaintiff to rehear. 301 N.C. 138, 271 S.E.2d 46. Denied.	{ "pile_set_name": "FreeLaw" }
NUMBER 13-03-509-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG ___________________________________________________________________ STATE OF TEXAS PARKS & WILDLIFE DEPARTMENT, Appellant, v. DANNY J. MORRIS, LUCIA R. MORRIS, AND M. M., A CHILD, Appellees. ___________________________________________________________________ On appeal from the 135th District Court of Goliad County, Texas. __________________________________________________________________ O P I N I O N Before Justices Yañez, Rodriguez, and Garza Opinion by Justice Rodriguez Appellant, State of Texas Parks & Wildlife Department, brings this accelerated interlocutory appeal following the trial court's denial of its plea to the jurisdiction. (1) By two issues, appellant contends the trial court erred in denying its plea to the jurisdiction because appellees' petition failed to state an actionable claim. We affirm. I. BACKGROUND On March 30, 2002 appellees, Danny J. Morris, Lucia R. Morris, and M. M., a child, arrived at the Goliad State Park (the Park) in Goliad County, Texas. Appellees paid an admission fee for use of the Park and its facilities. Shortly after arriving at the Park, M. M., a three-year-old child, fell into a campfire pit containing smoldering coals from a previous fire. M. M. suffered burns over his hands, arms, and legs and required medical treatment. The Morris family brought suit against appellant for damages resulting from the incident. In their original petition, appellees alleged that the injuries to M. M. were caused by a defective condition or negligent use of tangible real property; conduct for which immunity is waived by the Texas Tort Claims Act. Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001-.109 (Vernon 1997 & Supp. 2004). Appellees later amended their pleadings, as ordered by the court, to allege a gross negligence cause of action. Appellant filed a plea to the jurisdiction which was denied by the court. (2) This appeal ensued. II. STANDARD OF REVIEW A plea to the jurisdiction is a dilatory plea; its purpose is "to defeat a cause of action without regard to whether the claims asserted have merit." Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The plea challenges the trial court's authority to determine the subject matter of a pleaded cause of action. City of Midland v. Sullivan, 33 S.W.3d 1, 6 (Tex. App.-El Paso 2000, pet. dism'd w.o.j.); State v. Benavides, 772 S.W.2d 271, 273 (Tex. App.-Corpus Christi 1989, writ denied). Because subject matter jurisdiction is a question of law, we review a trial court's ruling on a plea to the jurisdiction under a de novo standard of review. State v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2003). In determining whether jurisdiction exists, rather than looking at the claim's merits, we look to the allegations in the pleadings, accept them as true, and construe them in favor of the pleader. See County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002); Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). We consider the facts alleged in the petition, and to the extent it is relevant to the jurisdictional issue, any evidence submitted by the parties to the trial court. Tex. Natural Res. Conservation Comm'n v. White, 46 S.W.3d 864, 868 (Tex. 2001); Blue, 34 S.W.3d at 555. It is the plaintiff's burden to allege facts affirmatively demonstrating the trial court's jurisdiction. Tex. Ass'n of Bus., 852 S.W.2d at 446; Mission Consol. Indep. Sch. Dist. v. Flores, 39 S.W.3d 674, 676 (Tex. App.-Corpus Christi 2001, no pet.). When a plaintiff fails to plead facts that establish jurisdiction, but the petition does not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiff should be afforded the opportunity to amend. Brown, 80 S.W.3d at 555. On the other hand, if the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend. Id.III. ANALYSIS On appeal, appellant argues that the trial court erred in denying its plea to the jurisdiction. Specifically, appellant contends: (1) the recreational use statute limits the tort claims act's waiver of sovereign immunity in this case and dictates that the only standard of care owed to appellees is that of a trespasser; and (2) appellees failed to allege facts or offer evidence showing that the injury to M. M. occurred as a result of wilful, wanton or grossly negligent conduct.A. Application of the Recreational Use Statute In its first issue appellant argues that chapter 75 of the civil practices and remedies code, commonly known as the recreational use statute, should apply in this case to limit its liability. See Tex. Civ. Prac. & Rem. Code Ann. §§ 75.001-.004 (Vernon 1997 & Supp. 2004). Appellees, however, argue section 101.022(a) of the Texas Tort Claims Act applies, unlimited by the recreational use statute. See id. § 101.022(a). We must, therefore, determine which statute controls in a situation where a claimant is charged a fee to enter government property for recreational purposes. Thus, the issue before this Court is one of statutory construction. "In construing a statute, our primary objective is to determine and give effect to the Legislature's intent." Nat'l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex. 2000). Our starting point is to look to the plain and common meaning of the statute's words, viewing its terms in context and giving them full effect. Liberty Mut. Ins. Co. v. Garrison Contractors, Inc., 966 S.W.2d 482, 484 (Tex. 1998). If the language is unambiguous, we will interpret the statute according to its plain meaning. State ex rel. State Dep't of Hwys & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2000). We are mindful that "every word in a statute is presumed to have been used for a purpose; and a cardinal rule of statutory construction is that each sentence, clause and word is to be given effect if reasonable and possible." Perkins v. State, 367 S.W.2d 140, 146 (Tex. 1963). We should also presume the Legislature intended a "result feasible of execution" when it enacted the statute. In re Mo. Pac. R.R. Co., 998 S.W.2d 212, 216 (Tex. 1999). The recreational use statute was passed to encourage landowners to open their lands to the public for recreational uses. State v. Shumake, No. 03-03-00111-CV, 2003 Tex. App. LEXIS 10169, at 12 (Austin Dec. 4, 2003, no pet.). The statute absolves certain property owners of liability for injuries to others using the property for recreation so long as the property owner does not engage in grossly negligent conduct or act with malicious intent or in bad faith. Tex. Civ. Prac. & Rem. Code Ann. §§ 75.001-.004 (Vernon 1997 & Supp. 2004); see City of Bellmead v. Torres, 89 S.W.3d 611, 612 (Tex. 2002). When the statute applies, landowners only owe the public the standard of care owed to a trespasser on the premises. Tex. Civ. Prac. & Rem. Code Ann. § 75.002(b)(2), (c)(2) (Vernon 1997 & Supp. 2004). Appellant contends the recreational use statute applies under the facts of this case, and thus limits its liability. Appellees, however, brought their cause of action pursuant to section 101.021(2) of the Texas Tort Claims Act. (3) They alleged that M. M.'s injuries were caused by a defective condition or negligent use of tangible real property by appellant. On appeal they contend that the duty of care owed by appellant is governed not by the recreational use statute, but by section 101.022(a) of the tort claims act. Section 101.022(a) provides that if a claim arises from a premise defect, the governmental unit owes the claimant only the duty that a private person owes to a licensee on private property, unless the claimant pays for the use of the premises. Id. § 101.022(a) (Vernon 1997). When the claimant pays for the use of the premises, as in this case, the duty imposed upon the governmental unit is the same duty of care that a private landowner owes to an invitee. See Clay v. City of Fort Worth, 90 S.W.3d 414, 417 (Tex. App.-Austin 2002, no pet.); Vela v. Cameron County, 703 S.W.2d 721, 724 (Tex. App.-Corpus Christi 1985, writ ref'd n.r.e.). It is the invitee duty of care which appellees believe should be applied. In determining the applicability of the recreational use statute to the facts of this case we must look to section 75.003 of the civil practice and remedies code, which states in relevant part: (c) Except for a governmental unit, this chapter applies only to an owner, lessee, or occupant of real property who: (1) does not charge for entry to the premises; [or] (2) charges for entry to the premises [an amount limited by this statute]. . . . * * * (e) Except as otherwise provided, this chapter applies to a governmental unit. (f) This chapter does not waive sovereign immunity. (g) To the extent that this chapter limits the liability of a governmental unit under circumstances in which the governmental unit would be liable under Chapter 101, this chapter controls. Tex. Civ. Prac. & Rem. Code Ann. § 75.003(c), (e)-(g) (Vernon 1997 & Supp. 2004). Because the language of the recreational use statute is unambiguous, we interpret the statute according to its plain meaning. Section 75.003(e) provides that the recreational use statute applies to "governmental units." Id. § 75.003(e). Appellant is a governmental unit and is, therefore, a party to which this statute applies. See id. §§ 75.001(4) ("governmental unit" has the meaning assigned under section 101.001), 101.001(3)(A) ("governmental unit" includes all departments of the government of this state). We note that the language in subsection (e), "except as otherwise provided," indicates the Legislature contemplated that certain sections or subsections of the statute would not apply to a governmental unit. For example, subsection (c) provides, "[e]xcept for a governmental unit, this chapter applies only to an owner, lessee, or occupant of real property" who does not charge or whose total charges are less than that mandated by the statute. See id. § 75.003(c). Reading subsections (c) and (e) together, it is clear the Legislature did not intend for the restrictions of subsection (c) to apply to governmental units. Therefore, the recreational use statute applies to all governmental units whether or not they charge a fee to enter the premises. Furthermore, the Legislature has made clear the relationship between the recreational use statute and the tort claims act. Section 75.003(g) provides that in circumstances where a governmental unit would be liable under the tort claims act, the recreational use statute controls in limiting the liability of the governmental unit. Tex. Civ. Prac. & Rem. Code Ann. § 75.003(g). The Legislature included a similar section in the tort claims act with the same directive. See id. § 101.058 ("To the extent that Chapter 75 limits the liability of a governmental unit under circumstances in which the governmental unit would be liable under this chapter, Chapter 75 controls."). We conclude, therefore, that the plain meaning and clear language of the recreational use statute dictates that the statute is to be applied to limit the liability of appellant under the facts of this case. Therefore, applying the recreational use statute, the duty owed by appellant is only that owed to a trespasser - to refrain from causing injury willfully, wantonly, or through gross negligence. Id. § 75.002; see City of Bellmead, 89 S.W.3d at 613. Appellant's first issue is sustained.B. Sufficiency of the Morrises' Pleadings By its second issue, appellant contends appellees failed to allege facts or offer evidence showing that the injury occurred as a result of wilful, wanton, or grossly negligent conduct. Gross negligence involves proof of two elements: (1) viewed objectively from the actor's standpoint, the act or omission must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and (2) the actor must have actual, subjective awareness of the risk involved, but nevertheless proceed in conscious indifference to the rights, safety, or welfare of others. Louisiana-Pacific Corp. v. Andrade, 19 S.W.3d 245, 246 (Tex. 1999) (citing Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 23 (Tex. 1994)). Under the first element, the "extreme risk" means the likelihood of serious injury to the plaintiff. Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998). Under the second element, actual awareness means that the defendant knew about the peril, but its acts or omissions demonstrated that it did not care. Id. In their petition, appellees alleged that: Defendant breached its duty to the Morris Family by failing to provide a safe campsite, including the failure to have waist-high fire grills or rings around the campfire pit, which are required by Defendant's express policies and regulation. Viewed objectively from Defendant's standpoint, the act or omission of failing to provide a safety [sic] and protected campfire pit involved an extreme degree of risk, considering the probability and magnitude of the potential harm to the Morris Family. Furthermore, Defendant had actual, subjective awareness of the risk involved in failing to provide a safe and protected campfire pit, but nevertheless proceed[ed] in conscious indifference to the rights, safety, or welfare of the Morris Family. Defendant's willful, wanton, and grossly negligent conduct directly and proximately caused the occurrence in question. . . . These allegations, when accepted as true and construed in favor of the pleader, support a claim for gross negligence. See Brown, 80 S.W.3d at 555; Tex. Ass'n of Bus., 852 S.W.2d at 446. Therefore, we conclude the Morrises have sufficiently pled a cause of action under the recreational use statute and tort claims act. Appellant's second issue is overruled. Accordingly, the judgment of the trial court is affirmed. NELDA V. RODRIGUEZ Justice Opinion delivered and filed this 16th day of March, 2004. 1. An appeal may be taken from an interlocutory order that grants or denies a plea to the jurisdiction by a governmental unit as defined in section 101.001. See Tex. Civ. Prac. & Rem. Code Ann. §§ 51.014(a)(8), 101.001 (Vernon Supp. 2004). The State of Texas Parks & Wildlife Department is such a governmental unit. Id. § 101.001(3)(A). 2. Appellant's plea to the jurisdiction was originally granted by order of the trial court. Later, the trial court withdrew that order and denied appellant's plea. Issues regarding the procedural posture of this appeal were addressed and disposed of in a companion case, Danny J. Morris, Lucia R. Morris, and M. M., a Child v. State of Texas Parks & Wildlife Department, cause number 13-03-372-CV. 3. Under section 101.021(2), a governmental unit is liable for personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law. Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2) (Vernon 1997).	{ "pile_set_name": "FreeLaw" }
510 F.Supp.2d 299 (2007) In re METHYL TERTIARY BUTYL ETHER ("MTBE") PRODUCTS LIABILITY LITIGATION. This document relates to: v. County of Suffolk and Suffolk County Water Authority v. Amerada Hess Corp., et al., 04 Civ. 5424. Master File No. 1:00-1898, MDL No. 1358 (SAS), No. M21-88. United States District Court, S.D. New York. September 17, 2007. 300 Robin Greenwald, Robert Gordon, Esq., Weitz & Luxenberg, P.C., New York, NY, for Plaintiffs and Counsel for Suffolk County Plaintiffs. Scott Summy, Carla Burke, Baron & Budd, P.C., Dallas, TX, Samuel Issacharoff, New York, NY, for Suffolk County Plaintiffs. Peter John Sacripanti, James A. Pardo, Stephen J. Riccardulli, McDermott Will & Emery LLP, Sheila L. Birnbaum, Skadden, Arps, Slate, Meagher & Flom LLP, New York, NY, for Defendants and Counsel for Defendant ExxonMobil. Nathan P. Eimer, Pamela R. Hanebutt, Lisa S. Meyer, Eimer Stahl Klevorn & Solberg LLP, Chicago, IL, Samuel J. Abate, Jr., Pepper Hamilton, LLP, New York, NY, for CITGO Petroleum Corporation, CITGO Refining and Chemicals Company, LP, and PDV Midwest Refining, LLC. OPINION AND ORDER SCHEINDLIN, District Judge. [B]ecause "law is an instrument of governance rather than a hymn to intellectual beauty, some consideration must be given to practicalities."[1] Following the May 2007 decision of the United States Court of Appeals for the Second Circuit in People of the State of California v. Atlantic Richfield Company, et al. and The State of New Hampshire v. Amerada Hess Corporation, et al.,[2] defendants in the above-captioned distinct but related action ("the Suffolk County action"), having removed this case to federal court in 2004, now move to remand the 301 action to state court based on lack of federal jurisdiction. Plaintiffs oppose the motion. This Court has received extensive submissions on the issue and has heard argument by learned counsel. For the reasons fully discussed below, the motion to remand is DENIED. I. BACKGROUND A. Procedural Posture "Tortured" is an understated description of the procedural history of this case. On May 6, 2002, the case was originally filed in the United States District Court for, the Eastern District of New York based on diversity and bankruptcy jurisdiction.[3] Apparently, thinking better of their decision to proceed in federal court, the plaintiffs filed another action in the New York State Supreme Court for Suffolk County on October 9, 2002. On March 22, 2004, after defendants' time for removal had expired,[4] one of the many defendants in the action, Lyondell Chemical Company, served a third-party complaint on Marathon Ashland Petroleum, LLC. Eight days later, on March 30, 2004, Marathon removed the case to the United States District Court for the Eastern District of New York.[5] The removal was based solely on federal officer jurisdiction under 28 U.S.C. ง 1442(a). Promptly after this removal, plaintiffs moved to remand the action to state court. Defendants vigorously opposed that remand motion arguing that this Court had federal jurisdiction and that no abstention with respect to the state law claims was warranted. This Court agreed, and denied plaintiffs' 2004 motion to remand.[6] The Suffolk County action was designated long ago as one of four focus actions.[7] As a result, this Court has presided over this action and given it top priority within the MDL for more than three years. During that time, it has issued thirty-six substantive opinions and orders, comprising more than one thousand pages of text; has issued thirty Case Management Orders; and has held over thirty-five status conferences.[8] Perhaps most importantly, a firm trial date, has been set for March 3, 2008.[9] In October 2006, after receiving leave to amend, plaintiffs filed a Sixth Amended 302 Complaint,[10] adding a federal claim against some, but not all, of the defendants in this action, pursuant to the Toxic Substances Control Act ("TSCA").[11] This Act provides that all claims under the Act must be brought in federal court.[12] There is no question that this Court has jurisdiction to hear the TSCA claim.[13] B. The Parties and the Complaint The Suffolk County action includes two plaintiffs: the County of Suffolk ("the County") and the Suffolk County Water Authority ("SCWA").[14] Plaintiffs' Sixth Amended Complaint, filed in October 2006, names fifty-three defendants and asserts these nine claims: (a) violation of Section 8(e) of the Toxic Substances Control Act ("TSCA"), 15 U.S.C. ง 2607(e); (b) public nuisance; (c) strict liability for design defect; (d) strict liability for failure to warn; (e) negligence; (f) private nuisance; (g) violation of New York's General Business Law; (h) violation of New York's Navigation Law; and (i) trespass.[15] With the exception of the TSCA claim, each claim is asserted against each of the fifty-three named defendants.[16] C. Multi-District Litigation Number 1358 In order to fully understand the complexity of this motion, the Suffolk County action must be viewed in the context of this multi-district litigation ("MDL") proceeding. The current iteration of this MDL began in 2004, with defendants' removal of a number of actions that had been filed in state courts. There are now well over one hundred actions assigned to this Court, each having been transferred here for consolidated pretrial proceedings from district courts in nineteen states. Every action in the MDL asserts claims arising from one or more defendants' production, distribution, handling, or sale of MTBE-containing gasoline that is alleged to have " contaminated plaintiffs' groundwater. Most of these actions were removed from state courts by defendants under some combination of: federal officer jurisdiction, 303 federal question jurisdiction based on federal preemption, the bankruptcy removal statute, and, most recently, the Energy Policy Act of 2005 ("EPA").[17] In addition, approximately thirty-five cases in the MDL have been filed in federal courts, asserting federal jurisdiction based on diversity of citizenship, TSCA or the EPA. On October 19, 2004, the Suffolk County action, along with four other actions was designated a focus action within the MDL. In late 2006, Suffolk County was selected to be the first of the focus cases to be scheduled for trial.[18] As a result, it is now, and has been for some time, the most active case in the MDL and has demanded โ and consumed โ extensive judicial and party resources. For at least two years, the Court has held monthly status conferences, each lasting several hours, for which the parties prepare joint and separate agendas of issues arising in the MDL. Although the Suffolk County action is only one in over one hundred actions in the MDL, it is no exaggeration to say that the Suffolk County action consumes the majority of time at all of these conferences. II. JURISDICTIONAL AND PROCEDURAL STATUTES A. Statutory .Bases for Original Jurisdiction in Federal Court A federal court may exercise jurisdiction only if Congress has passed a statute granting it such jurisdiction.[19] Generally, Congress has granted original jurisdiction to district courts in two situations. First, 28 U.S.C. ง 1331 ("section 1331") grants district courts original jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States"[20] so that plaintiffs might have a federal forum when they seek to vindicate a federal right.[21] Section 1331 states: "The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." Second, Congress has granted district courts original jurisdiction in "diversity" actions under 28 U.S.C. ง 1332 ("section 1332"). Such actions involve state law claims but are also "civil actions between citizens of different States, between U.S. citizens and foreign citizens, or by foreign states against U.S. citizens.[22] The purpose of this statute is to provide a neutral forum in "important disputes where state courts might favor, or be perceived as favoring, home-state litigants."[23] Section 1332 states: The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between โ (1) citizens of different States; (2) citizens of a State 304 and citizens or subjects of a foreign state; (3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and (4) a foreign state, defined in section 1603(a) of this title, as plaintiff and citizens of a State or of different States. B. Statutory Bases for Removal and Remand When a plaintiff files a complaint in state court that could have been filed originally in federal court, Congress allows the defendant or defendants to remove the action from state to federal court under 28 U.S.C. ง 1441 ("section 1441") and 28 U.S.C. ง 1446 ("section 1446"). Section 1441 sets forth the jurisdictional basis for removal, while section 1446 establishes the procedural requirements for removing the action to federal court. One such requirement is that all defendants must consent to a removal for it to be valid.[24] The requirements for considering a motion to remand to state court are set forth in 28 U.S.C. ง 1447 ("section 1447"). "A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a)."[25] However, "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal."[26] The reason for section 1447(c)'s short and strict deadline is obvious: the court and parties have a substantial interest in resolving which court will decide the action before any court or the parties devote resources to the case, or the court resolves particular issues.[27] As Congress explained in passing the statute, "`[s]o long as the defect in removal procedure does not involve a lack of federal subject matter jurisdiction, there is no reason why either State or Federal courts, or the parties, should be subject to the burdens of shuffling a case between two courts that each have subject matter jurisdiction.'"[28] Creative lawyers are capable of manufacturing many reasons for remand at any time, particularly when a case takes years to litigate and state courts continue to develop the law in the interim. However, section 1447(c) expressly distinguishes between remands for lack of subject matter 305 jurisdiction and remand for any other defect in removal. Because jurisdiction goes to the issue of the court's power, a motion to remand based on lack of subject matter jurisdiction may be made at any time. Either a court has the power to adjudicate a case or it does not. Indeed, a federal court has an independent duty to determine that it has subject matter jurisdiction and may raise the issue sua sponte.[29] III. ISSUES TO BE DECIDED A. Subject Matter Jurisdiction A challenge to subject matter jurisdiction can be raised at any time during an action. Thus, the Court must consider whether it has subject matter jurisdiction in the Suffolk County action, based on the presence of a federal claim, despite defendants' improvident removal of the action. B. Supplemental Jurisdiction If the Court has original subject matter jurisdiction over any claim, the next question is whether it may exercise supplemental jurisdiction over the state law claims as well as related parties. This question is governed by 28 U.S.C. ง 1367, and the analysis has two parts. First, the Court must determine whether section 1367(a)'s requirement that the federal claim and the state law claims and related parties form part of the same "case or controversy" under Article III of the. Constitution is satisfied. Second, if it is, the Court must then determine whether, in the exercise of its discretion, it should decline to exercise supplemental jurisdiction based on the presence of any of the factors listed in section 1367(c). IV. DISCUSSION A. This Court Has Subject Matter Jurisdiction Over the Suffolk County Action Defendants conceded at oral argument, as they had to, that if plaintiffs' 2006 Amended Complaint adding a federal claim was validly filed, then this Court has original jurisdiction over this action.[30] Succinctly stated, defendants argue that because their removal of this case from state court turned out to have been improvident โ a result of the May 2007 opinion of the appellate court in a different case โ this Court had no power to permit plaintiffs to amend their complaint in 2006 to add an unmistakable federal claim. Defendants' argument must be rejected. The highly unusual facts of this case confront this Court with the following question: is remand necessary or appropriate where defendants remove an action to federal court, then seek to remand that same action to state court at a much later stage of litigation, after plaintiffs have added a jurisdiction-conferring federal claim and after removal is discovered to have been improvident? Despite sophisticated searches for similar cases, conducted by teams of lawyers for both sides and by this Court, this case appears to be sui 306 generis.[31] Indeed, no district court has been required to assess whether it could exercise jurisdiction based on a challenge made after it permitted an amendment to add a federal claim but later learned that the original basis of jurisdiction was defective.[32] As a result, the Court cannot rely on a single controlling case or statute; rather, it must look to general principles drawn from the case law for guidance. While the general rule is that subject matter jurisdiction is assessed at the time a complaint is filed, or at the time of removal to federal court when a case is originally filed in state court,[33] a number of exceptions have been recognized by the courts. One such exception is found in Rule 21 of the Federal Rules of Civil Procedure, permitting the court, on motion or sua sponte, to order that a party be "dropped or added . . . at any stage of the action and on such terms as are just." Another exception is statutory: 28 U.S.C. ง 1653 states that "[d]efective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts." Finally, a judge-made exception allows an appellate court to find that a district court properly exercised jurisdiction based on a jurisdiction-curing event that occurred after filing, but before the entry of final judgment.[34] Given a recent Supreme Court decision discussed infra, it is not clear that this last exception is limited to actions by appellate courts.[35] A restatement of this last exception may be that if a 307 jurisdictional defect is cured prior to final judgment (e.g., by the district court's exercise of its power under Rule 21 or by granting leave to amend a complaint), the appellate court will only ask, upon any review of a verdict, whether the district court had jurisdiction by the time of final judgment. Neither the Rule 21 nor the section 1653 exception applies to this case. The third exception, by contrast, is at the heart of this motion. In applying this exception, courts have looked to certain criteria to determine whether a jurisdictional defect is curable.[36] At one end of the spectrum is a particular defect that is simply not curable, such as a change in the make-up of a continuing party in a diversity.[37] At the other end of the spectrum is a defect that can always be cured, such as a defective allegation of jurisdiction.[38] In between, courts give careful consideration to the concepts of finality, efficiency and economy in determining whether a jurisdictional defect is curable. Courts have distinguished between a post-filing change intended to deprive the court of jurisdiction and a post-filing change intended to solidify the court's jurisdiction.[39] Some `courts have also considered concepts of estoppel and waiver, finding that a party that took action to remain in federal court should not be heard to complain about the original lack of jurisdiction after events have caused it to regret its earlier decision.[40] Another factor 308 is whether the court had identified the defect in jurisdiction at the time the postfiling change was effected.[41] Finally, many courts have made reference to the stage of the proceedings โ noting whether remand was sought early in the action (when few judicial resources had been expended), or late in the action (after the court had expended significant judicial resources).[42] Applying all of these criteria to this case, there is little question that plaintiffs' voluntary amendment adding a federal claim that solidified jurisdiction at a time before the defect was identified and after the Court had expended significant judicial resources, was proper and has conferred federal jurisdiction on this Court despite the lack of jurisdiction at the time of removal. Plaintiffs cite many cases where a court was permitted to exercise jurisdiction based on post-removal (or post-filing events) despite a lack of jurisdiction at the time of removal (or filing).[43] Defendants, in turn, cite cases where a court declined to exercise jurisdiction based on subsequent events.[44] Resolving this apparent inconsistency requires a close reading of the factual and procedural contexts in which each decision was made. This is so because in each case, as discussed above, the court engages in a multi-factor analysis that depends on the circumstances of that particular case. With this background of the factors considered by courts in determining whether a post-filing event permitted the trial court to exercise jurisdiction, I will now undertake a review of significant cases selected either because they are Supreme Court decisions or because they are usefully analogous (albeit not identical) to the factual and procedural context confronting this Court. 1. Supreme Court Cases The following two Supreme Court cases both address jurisdiction based on diversity of citizenship and the application of Rule 21 and/or section 1653, which, as mentioned above, are not at issue here. Nevertheless, both cases stand for the broader and more critical proposition that it is permissible for a court to allow an amendment at a time when it has no jurisdiction over the action. a. Newman-Green, Inc. v. Alfonzo-Larrain In Newman-Green, Inc. v. Alfonzo-Larrain, the Supreme Court heard an appeal from a Seventh Circuit decision dismissing a lawsuit based on lack of subject matter jurisdiction. The Supreme Court reversed, holding that in order to salvage jurisdiction, the appellate court had the power to grant plaintiffs motion to dismiss a dispensable non-diverse party that solidified, rather than destroyed the court's jurisdiction. Even though the court lacked subject matter jurisdiction over the action at the time the motion was granted, once the motion was granted, the court had 309 subject matter jurisdiction based on diversity of citizenship. The Newman-Green action was originally filed in federal court based on 28 U.S.C. ง 1332(a)(3), which confers jurisdiction on the federal court when a citizen of one State sues both aliens and citizens of a state (or states) different from that of the plaintiff. It became clear that one of the defendants was stateless and therefore not considered to be a citizen of a state different from that of the plaintiff.[45] This defect was not noticed until after the trial court had granted partial summary judgment in favor of plaintiff and partial summary judgment in favor of the four individual defendants (guarantors of royalty payments under a licensing agreement) and plaintiff had filed an appeal. The appellate court invited plaintiff to move to amend the complaint to drop the non-diverse defendant. Plaintiff so moved, and the appellate court granted the motion pursuant to both 28 U.S.C. ง 1653 and Rule 21 of the Federal Rules of Civil Procedure.[46] It then addressed the merits of the appeal, affirming in large part and remanding to the trial court to fix damages and "resolve certain minor issues."[47] What happened next in Newman-Green is quite interesting given the Suffolk County defendants' argument here that this Court lacked the power to permit an amendment of the complaint at a time it lacked jurisdiction over the action. In Newman-Green, the individual defendants-guarantors sought rehearing en banc. The majority of the en banc court held that the appellate court lacked power to grant the motion under either section 1653 or Rule 21 but "remanded the case to the District Court for it to determine whether it would be prudent to drop [the non-diverse defendant] from the litigation.[48] 48 In taking this action, the en banc court never questioned or doubted the trial court's power to grant a motion for leave to amend at a time when it was clear that it lacked jurisdiction over the action. The Supreme Court then reversed the en banc decision and held that the appellate court had the power to grant the motion for leave to amend. The Court first found that the motion could not be granted pursuant to section 1653 as that statute is limited to amending "defective allegations of jurisdiction."[49] In Newman-Green, the allegations of jurisdiction were not defective โ the individual defendant was in fact a United States citizen and was not a citizen of a state different from that of the plaintiff. The Court also 310 acknowledged that Rule 21 does not apply to the courts of appeals. The Court then framed the question as follows: "whether a court of appeals may do what a district court can do and dismiss a dispensable nondiverse party itself, or whether a court of appeals must remand the case to the district court, leaving it to the district court's discretion to dismiss the party."[50] The Court embraced the former course, permitting the appellate court to grant the motion. After this detailed exposition of the history of Newman-Green, I stress three essential points. First, the Supreme Court never questioned the authority of either the trial court or the appellate court to grant a motion at a time when it lacked jurisdiction.[51]Second, there was no final judgment in Newman-Green โ not at the time the appellate panel decided it could grant a motion for leave to amend nor at the time the Supreme Court determined that the appellate court could grant a motion for leave to amend. Third, if this Court lacked the power in 2006 to grant plaintiffs' motion for leave to amend, plaintiffs could have re-filed the action in federal court, asserting the federal TSCA claim, along with all of the state law claims, and then ask this Court to exercise supplemental jurisdiction over those claims.[52] Such a course would surely elevate form over substance, and would be a "hymn to intellectual beauty" rather than a recognition of "practicalities."[53]" b. Caterpillar Inc. v. Lewis A subsequent Supreme Court case, Caterpillar Inc. v. Lewis,[54] built on the holding in Newman-Green and indeed applied it in the context of a case that was improvidently removed to federal court. Because the procedural details of the case are important to a full understanding of the holding in Caterpillar, I will describe them in some detail. Lewis (a citizen of Kentucky), who suffered personal injuries while operating a bulldozer, sued the manufacturer of the bulldozer (Caterpillar โ a citizen of Delaware and Illinois) and the company that serviced it (Whayne Supply โ a citizen of Kentucky) in state court. Liberty Mutual, the insurer for Lewis' employer, intervened as a party plaintiff asserting subrogation claims against both defendants. Next, Lewis settled his claim with Whayne Supply. Caterpillar then removed the case to federal court on the ground of diversity of citizenship. Lewis moved to remand, arguing that Whayne Supply (the nondiverse defendant) remained in the action because Liberty Mutual had not settled its claim against this defendant. The district court denied the motion to remand, choosing to treat Whayne Supply as effectively dropped from the case prior to removal due to the 311 settlement with Lewis. Almost three years later, Liberty Mutual, in fact, did settle its claim against Whayne Supply, and the district court dismissed Whayne Supply as a defendant. The case then proceeded to trial where Caterpillar prevailed. Next, Lewis appealed, arguing that the verdict must be vacated because the district court lacked jurisdiction at the time of removal. The Sixth Circuit agreed and vacated the judgment. The Supreme Court granted Caterpillar's petition to review the Sixth Circuit's decision. The Supreme Court framed the question presented as follows: "Does the District Court's initial misjudgment [denying a timely motion to remand] still burden and run with the case, or is it overcome by the eventual dismissal of the nondiverse defendant?"[55] In reinstating the verdict and holding that the district court's initial misjudgment was overcome by later events, the Supreme Court established the propriety of the following actions. First, and foremost, the Court permitted an improvident removal to be cured by subsequent events. Second, the Supreme Court validated a district court order dismissing a nondiverse defendant (as a result of a settlement), at a time when, in retrospect, that court lacked subject matter jurisdiction over the case. Finally, the Court based its decision, in part, on considerations of finality, efficiency and economy.[56] Quoting directly from its earlier decision in Newman-Green, the Caterpillar Court stated that "[r]equiring dismissal after years of litigation' . . . `would impose unnecessary and wasteful burdens on the parties, judges, and other litigants waiting for judicial attention.'"[57] The Caterpillar Court went on to say that this reasoning comports with a main theme of the removal scheme. Despite a federal trial court's threshold denial of a motion to remand, if, at the end of the day and case, a jurisdictional defect remains uncured, the judgment must be vacated. In this case, however, no jurisdictional defect lingered through judgment in the District Court. To wipe out the adjudication postjudgment, and return to state court a case now 312 satisfying all federal jurisdictional requirements, would impose an exorbitant cost on our dual court system, a cost incompatible with the fair and unprotracted administration of justice.[58] 2. Circuit Court, Cases No fewer than eight circuit courts have reached the same conclusion as the Supreme Court in Newman-Green and Caterpillar. Although one of these circuit court cases did not involve a removal, all of the courts approved a district court's having permitted an amendment despite not having jurisdiction at the time of such amendment. a. Bernstein v. Lind-Waldock & Company In Bernstein v. Lind-Waldock & Company, plaintiff sued two defendants in state court seeking to enjoin the auction of his seat on the Chicago Mercantile Exchange.[59] Both defendants removed to federal court, claiming that plaintiffs rights were governed by federal law rather than state law. Plaintiff moved to remand, but the motion was denied. Thus, as in the instant case, the action remained in federal court although plaintiff had not pled a federal claim. Plaintiff then amended the complaint to add a Constitutional claim: that the Exchange had taken his seat without due process of law. The district court granted summary judgment in favor of both defendants, except as to one "minor" count which was remanded to state court.[60] Plaintiff appealed. The appellate court began its analysis by questioning whether the case had been properly removed. It held that the removal was improper as the allegations of the complaint did not state a claim arising under federal law pursuant to 28 U.S.C. ง 1331.[61] However, the appellate court went on to note that after remand was denied, plaintiff chose to file an amended complaint that included an "unmistakable" federal cause of action against one of the two defendants.[62] This claim brought the action within the original jurisdiction of the district court.[63] The appellate court then affirmed the grant of summary judgment to the Exchange.[64] b. Barbara v. New York Stock Exchange In Barbara v. New York Stock Exchange, Inc., the Second Circuit followed 313 the reasoning of Bernstein.[65] Plaintiff brought an action in state court against the Stock Exchange alleging damages for wrongful termination. Defendant removed the action to federal court, asserting both federal question and federal officer jurisdiction. Defendant then moved to dismiss the case based on qualified immunity and plaintiffs failure to exhaust administrative remedies. Plaintiff cross-moved to file an amended complaint asserting federal claims.[66] The district court granted defendant's motion to dismiss, and denied plaintiff s cross-motion as moot in light of the court's decision to dismiss the case. Plaintiff appealed. The Second Circuit began its analysis by determining that the case had been improperly removed. However, rather than vacating and remanding based on the lack of federal jurisdiction ab initio, it held that the plaintiffs proposed amendment should have been permitted and, in fact, conferred jurisdiction over the action. Having thereby determined that the district court had jurisdiction to hear the case, the appellate court agreed with the district court and affirmed the summary judgment for defendant. Unlike courts in the cases cited earlier, the Barbara court was not asked to grant a motion at a time when it lacked jurisdiction. Barbara's amendment was "as of right" because the defendant had not yet filed an answer.[67] Nonetheless, the court stressed the "voluntariness" of plaintiffs action stating that "if a district court erroneously exercises removal jurisdiction over an action, and the plaintiff voluntarily amends the complaint to allege federal claims, we will not remand for want of jurisdiction."[68] While there are distinctions between Barbara and the instant case, the plain fact here is that plaintiffs have voluntarily added an "unmistakable" federal claim prior to the entry of final judgment.[69] Thus, at the time this case reaches an appellate court, it will be beyond cavil that the trial court had original jurisdiction to hear the case based on plaintiffs' addition of a federal claim. c. Balgowan v. State of New Jersey, Department of Transportation In Balgowan v. State of New Jersey, Department of Transportation, engineers sued their employer, the State of New Jersey Department of Transportation (the "State"), in federal court, alleging violations of the Fair Tabor. Standards Act and seeking monetary damages.[70] The district court granted summary judgment to the State and plaintiffs appealed. The Third Circuit Court of Appeals affirmed in part, reversed in part, and remanded with instructions to enter summary judgment in favor of plaintiffs on their back-pay for overtime claim. Before judgment was entered, the Supreme Court issued a decision which "abruptly changed the law regarding Eleventh Amendment immunity."[71] Relying on Seminole Tribe of Florida v. 314 Florida, the State immediately filed for rehearing. The State argued that the appellate court lacked jurisdiction to hear the suit because the State was now immune from a suit for damages based on the Eleventh Amendment. Plaintiffs, in turn, moved to amend their complaint in order to add the Department Commissioner as a defendant and to include a claim for prospective declaratory and injunctive relief. The State objected to the motion. Citing Newman-Green, the Third Circuit held that it could rely on Rule 21 to grant the motion to amend and thereby allow plaintiffs to add a party and amend their request for relief, all in an effort to solidify rather than destroy jurisdiction. Despite the fact that a newly announced Supreme Court decision has retroactive effect,[72] which means that neither the district court nor the appellate court ever had jurisdiction over the case prior to the amendment, the appellate court granted the motion, thereby salvaging federal jurisdiction. In doing so, the court noted that "`requiring dismissal after years of litigation would impose unnecessary and wasteful burdens on the parties, judges, and other litigants waiting for judicial attention.'"[73] Once again, the court never hesitated to act to salvage jurisdiction despite the fact that at the time the motion was made it turned out (retrospectively) that the court lacked jurisdiction. Thus, it accepted the proposition that practicalities can and should override "intellectual beauty" based on the notion of protecting limited judicial resources and efficiency toward all parties. Nor can this case be shoehorned into a socalled "final judgment" exception.[74] At the time the jurisdictional defect arose โ as a result of the recent Supreme Court decision in Seminole โ the case was far from final judgment. Indeed, in its first decision, the circuit court had remanded the matter to the district court to enter judgment in favor of plaintiffs on some, but not all of their claims. On defendant's motion for a rehearing, the Third Circuit granted plaintiffs' motion to amend, thereby salvaging its own jurisdiction to act. The circuit court then reversed its earlier holding, based on yet another intervening Supreme Court opinion, and granted summary judgment to all defendants. d. Additional Circuit Court Decisions The remaining five circuit courts all approved an amendment by plaintiffs, adding a federal claim prior to verdict, as sufficient to cure a jurisdictional defect that existed at the time of removal. Specifically, the First, Fifth, Eighth, Ninth and Tenth Circuits have each held that an amended complaint, filed after an improper removal, that adds a claim arising under federal law is sufficient to confer subject matter jurisdiction on the district court.[75]315 Defendants have argued that these cases are distinguishable because the party invoking federal jurisdiction waived its right to challenge that jurisdiction by adding a federal claim, thereby seeking to remain in federal court. To the extent that argument has any merit, it must be remembered that it is defendants who removed the Suffolk County action to federal court, thereby seeking a federal forum, and vigorously opposed plaintiffs' motion to remand. These same defendants now complain about being in federal court at a time when the plaintiffs have asserted an unmistakeable federal claim.[76] If anyone 316 should be estopped from complaining under these circumstances, it is the defendants. 3. Curative Action Is Not Limited to Appellate Courts In opposition to this list of persuasive authorities, defendants rely on the general rule that the court's jurisdiction must be evaluated as of the time of filing or removal (the "time-of-filing" rule).[77] Defendants recognize one exception to the general rule, acknowledging that "the entry of final judgment can alter the analysis for purposes of appeal."[78] Defendants then cite a number of cases where appellate courts salvaged jurisdiction by assessing the jurisdictional posture of the case at the time final judgment is entered.[79] One problem with this distinction between the power of appellate courts and that of district courts is that an appellate court rarely hears a case prior to a final judgment. Another problem is that appellate courts often refer to final judgment as a milestone for gauging the stage of litigation in an efficiency analysis, rather than as a prerequisite for sustaining jurisdiction.[80] In addition, if such a distinction was ever valid โ and it is not clear that it was, given the Supreme Court's recognition that a district court has the power to decide a motion (e.g., under Rule 21) at a time that the district court lacked jurisdiction โ it may no longer be good law. a. Grupo Dataflux v. Atlas Global Group L.P. In Grupo Dataflux v. Atlas Global Group L.P., plaintiff sued in federal court, 317 alleging diversity jurisdiction.[81] It turned out that the parties were not diverse at the time of filing because a defendant partnership included partners who shared citizenship with the plaintiff. This jurisdictional defect was never noticed in the district court, and a subsequent change in membership of the defendant partnership eliminated the problem before the district court entered judgment in favor of plaintiff. Certain defendants appealed, arguing that the court had no jurisdiction due to the lack of diversity at the time the case was filed. The Fifth Circuit Court of Appeals held that because the jurisdictional defect had been cured prior to the entry of final judgment, the circuit court had the power to salvage jurisdiction based on the fact that by the time of final judgment, the district court had subject matter jurisdiction based on diversity of citizenship. The Supreme Court reversed, holding that this change in the status of a continuing party could not cure the original, defect in jurisdiction. The Court reasoned that the status of a party must be evaluated at the time of the filing, and a subsequent change in that status makes no difference from the perspective of analyzing jurisdiction, whether that change is noticed before or after final verdict. That is, a defect in jurisdiction is either curable or it is not, and it does not matter in which court or at what stage, the cure is first noticed. [T]here is no basis in reason or logic to dismiss preverdict if in fact the change in citizenship has eliminated the jurisdictional defect. Either the court has jurisdiction at the time the defect is identified (because the parties are diverse at that time) or it does not (because the postfiling citizenship change is irrelevant). s If the former, then dismissal is inappropriate; if the latter, then retention of jurisdiction postverdict is inappropriate.[82] Thus, for all intents and purposes, the Court has eliminated the distinction between the power of an appellate court to recognize a preverdict cure and the power of a trial court to do the same.[83] b. Instances in Which a Subsequent Event or Proposed Subsequent Event Does Not Cure a Defect in Jurisdiction Defendants cite a string of cases in which courts have declined to allow a cure where the Court lacked jurisdiction at the time of removal or filing. While it is `not necessary to discuss each case in detail, it is sufficient to say that each such case is distinguishable from the instant case in one or more important respects. One case cited by defendants is particularly noteworthy. Defendants rely on a Ninth Circuit case, Libhart v. Santa Monica Dairy Co., for the proposition that a district court lacks jurisdiction to entertain an amendment to a complaint when a removal petition fails to establish subject 318 matter jurisdiction.[84] In reaching its decision, the Ninth Circuit Court of Appeals relied on the language of the removal statute, 28 U.S.C. ง 1447(c), which it quoted in a footnote. The relevant portion of the statute at that time provided that "[i]f at any time before final judgment it appears that the case was removed improvidently and, without jurisdiction, the district court shall remand the case. . . ."[85] However, defendants failed to note that the removal statute was amended in 1988 in a very important respect. The pertinent portion of the section now states: "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded."[86] This amendment to the removal statute might well have affected the result in Libhart because at the time of final judgment, there would have been federal jurisdiction had the amendment to the complaint been recognized.[87] Given the language of the removal statute as it stood in 1979, however, the removal defect itself required a remand. In several other cases, the defect in jurisdiction was found to be "not curable," like the defect in diversity jurisdiction at issue in Grupo Dataflux.[88] In several cases, the district court was aware that it lacked jurisdiction ("had noticed the defect") over the case at the time it declined to accept an amendment that would have permitted it to exercise jurisdiction over the action.[89] Moreover, because the vast 319 majority of these cases were at a relatively early stage of the proceedings, generally directly after removal or at the motion to dismiss stage, at the time the court declined to act on a proposed amendment, there was little or no concern for finality, efficiency or economy.[90] Finally, one case cited by defendants declined to find jurisdiction based on a post-removal amendment when it deemed that amendment to be "involuntary" and also noted that "[t]his case had consumed, relatively, a minimum of judicial resources. No hearing was ever held in this matter."[91] In sum, after three and a half years of intense and complex litigation, scores of formal and informal court conferences, and many opinions, I conclude that plaintiffs' voluntary amendment, which added an unmistakable federal claim before the defect in removal was identified, is sufficient to confer subject matter jurisdiction upon this Court despite what now appears to have been an improvident removal. Any other result would ignore the years of effort by the Court and the parties โ a critical factor specifically recognized by the Supreme Court and several circuit courts.[92] I turn now to the question of whether this Court has the power to exercise supplemental jurisdiction over the state law claims and, if so, whether it should nonetheless exercise its discretion to remand those claims to state court. B. This Court Has Supplemental Jurisdiction Over the Remaining State Law Claims and Defendants Named Only in Those Claims and Declines, in Its Discretion, to Remand the State Law Claims "Although the district courts may not exercise jurisdiction without a statutory basis, it is well established โ in certain classes of cases โ that, once a court has original jurisdiction over some claims in 320 the action, it may exercise supplemental jurisdiction over additional claims that are part of the same [Article III] case or controversy."[93] Prior to 1990, the Supreme Court had applied the concept of supplemental jurisdiction[94] narrowly, holding that "in the context of parties, in contrast to claims, `we will not assume that the full constitutional power has been congressionally authorized, and will not read jurisdictional statutes broadly.'"[95] Thus, "even when the district court had original jurisdiction over one or more claims between particular parties, the jurisdictional statutes did not authorize supplemental jurisdiction over additional claims involving other parties."[96] In 1990, however, Congress broadened the jurisdiction of district courts when it enacted the supplemental jurisdiction statute, 28 U.S.C. ง 1367 ("section 1367").[97] In passing the statute, Congress gave district courts jurisdiction over claims and parties over which the court lacked original jurisdiction under sections 1331 and 1332, so long as all of the claims arise out of the same case or controversy under Article III. Section 1367 states: . . . in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.[98] For example, in Exxon Mobil Corp. v. Allapattah Services, Inc., ten thousand Exxon gasoline dealers brought state law claims against the Exxon Corporation.[99]321 The dealers alleged that Exxon had promised to reduce the price of wholesale fuel by roughly the same percentage that it was charging for processing credit card receipts through its "Discount for Cash program."[100] At trial, a jury found that Exxon breached that promise by not lowering the price of the wholesale gasoline and diesel fuel.[101] The sole basis for original jurisdiction over the state law claims was that some of the plaintiffs were citizens of different states than Exxon and the amount in controversy exceeded the jurisdictional requirement. Other plaintiffs, however, failed to satisfy the amount in controversy requirement. Nonetheless, the Supreme Court held that, under the plain language of section 1367, the district court had jurisdiction over all of the claims and all of the parties that were part of the same controversy. With that overview, I now address first whether I have jurisdiction over the state law claims" and the defendants named only in those claims because they form part of the same case or controversy at issue in the federal claim. I then consider whether, despite having jurisdiction, I should exercise my discretion to remand the state law claims to state court. 1. This Court Has Jurisdiction Under Section 1367(a) Over All of the Claims Because They Are Part of the Same Case or Controversy Defendants argue that this Court lacks jurisdiction over the state law claims on the ground that they do not form part of the "same case of controversy" as the TSCA claim, as required by section 1367(a). This argument has no merit. a. The State and Federal Claims Must Be Part of the Same Case or Controversy Federal and state claims form "one case or controversy," and thus satisfy section 1367(a), if they "derive from a common nucleus of operative facts or when both claims would normally be expected to be tried in a single judicial proceeding."[102]322 Although there are many examples of cases defining a common nucleus of operative facts, a recent Second Circuit decision is of particular interest because it demonstrates the breadth of the "single case or controversy" concept. In Achtman v. Kirby, McInerney & Squire, plaintiffs brought a state law claim in federal court against their former attorneys for malpractice in violation of New York state law.[103] The only asserted basis for federal jurisdiction in the complaint was the terms of the district court's injunction in plaintiffs' securities fraud action (in which defendants served as plaintiffs' attorneys). That injunction mandated that any legal malpractice action in connection with the securities action must be brought in federal court.[104] "The district court dismissed the malpractice complaint for failure to state a claim after determining that defendants' actions were reasonable as a matter of law."[105] Plaintiffs appealed the dismissal, and the Second Circuit remanded the case to the district court for the "limited purpose of having it explain its basis for exercising subject matter jurisdiction over the action."[106] 106 Responding to the Second Circuit's directive, the district court explained that it relied, inter alia, on section 1367(a), and the Second Circuit affirmed on that basis.[107] As an initial matter, the Second Circuit recognized that some district courts "have refused to rely on the existence of subject matter jurisdiction in one action to provide supplemental jurisdiction over claims in a related action."[108] "This distinction [of a separate action as the basis for jurisdiction], however, has never troubled us."[109] Turning to the question of whether section 1367(a) was satisfied, the Second Circuit explained: "In determining whether two disputes arise from a `common nucleus of operative fact,' we have traditionally asked whether `the facts underlying the federal and state claims substantially overlapped . . . [or] the federal claim necessarily brought the facts underlying the state claim before the court.'"[110] The Second Circuit was "compelled . . . to find that the facts underlying the present malpractice claims and the underlying securities claims `substantially overlap[ ],' creating a common nucleus of operative fact."[111] The district court had managed the securities action for a number of years and, in so doing, had issued rulings related to that case. "The district court was thus well-placed to consider the issues that would arise in the malpractice action, including questions as to whether [the plaintiffs' counsel] asserted all appropriate 323 claims."[112] Moreover, "the district court was intimately familiar with [the law firms'] overall strategy and the time they spent pursuing their clients' interests."[113] While "there would surely be some facts at issue in the malpractice action that were not directly implicated in the [underlying] securities litigation itself,"[114] the court nonetheless had jurisdiction over the separate malpractice action. Achtman, also relied on the Second Circuit's ruling that federal courts have jurisdiction in "fee dispute" cases.[115] So long as the action for which the attorney was hired involved a federal claim in federal court, the Second Circuit has held that the fee dispute (between an attorney and client) could be resolved in federal court even though that dispute raised only a state law breach of contract claim. For example, the Achtman Court relied on its earlier holding in Itar-Tass Russian News Agency v. Kurier, Inc.,[116] quoting that decision as holding that "the district court had the power to exercise supplemental jurisdiction over a fee dispute because it had already `obtained total familiarity with the subject matter of the [underlying] suit and the professional services of the moving parties thereon and of the virtual totality of all the compensation arrangements contended for and disputed.'"[117] The court went on to note that in Itar-Tass, "[a]fter identifying these clear hallmarks of a common nucleus of operative fact, [the Itar-Tass court] focused exclusively on the district court's discretionary decision to decline jurisdiction."[118] Achtman described the outer limits of the "same case or controversy" doctrine, given that it addressed a case with no independent federal claim but one related to a different case that had federal claims. There are many cases like this one, where state and federal claims are brought in one lawsuit. In those cases, the courts have engaged in the same analysis of whether there is a "common nucleus of operative facts" among the state and federal claims.[119] For example, in Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., plaintiffs did not expressly plead any copyright violations but instead alleged a number of state law claims that could potentially be preempted by the Copyright Act.[120] The Second Circuit held that some of the claims were preempted, but other claims were not. The court went on to conclude that supplemental jurisdiction over the non-preempted state law claims was proper because all of the claims were derived from a common nucleus of operative facts for one reason: "they all deal with the purported sale of the [allegedly infringing] movie.[121] 324 Similarly, in Jones v. Ford Motor Credit Co., plaintiffs brought suit alleging race discrimination under the federal Equal Credit Opportunity Act ("ECOA").[122] In its Answer, defendant asserted permissive state-law counterclaims against the named plaintiffs to collect on unpaid car loans.[123] The Second Circuit concluded that supplemental jurisdiction may be available for permissive counterclaims, and that: The counterclaims and the underlying claim bear a sufficient factual relationship (if one is necessary) to constitute the same "case" Within the meaning of Article III and hence of section 1367. Both the ECOA claim and the debt collection claims originate from the Plaintiffs' decisions to purchase Ford cars.[124] Having concluded that the court had jurisdiction under section 1367(a) it remanded to the district court to determine whether it should decline to exercise supplemental jurisdiction under section 1367(c).[125] As these cases demonstrate, pointing to differences among claims (e.g., different underlying facts, different defendants) does not help determine whether the claims are part of the same case or controversy. Rather, the key question is whether the parties would ordinarily be expected to try all of those claims in one judicial proceeding given the common threads running throughout the claims. b. The Federal and State Claims in the Suffolk County Action Are Part of the Same Case or Controversy A comparison of the claims in the Suffolk County action demonstrate that the state and federal claims share a common nucleus of operative facts and are part of the same case or controversy. A good example is the issue of the defendants' knowledge and concealment of the dangers of MTBE. Plaintiffs' TSCA claim alleges, in essence, that certain defendants violated the Act by withholding "information which reasonably supports the conclusion that [MTBE and/or gasoline with MTBE] presents a substantial risk of injury to health or the environment" from the Environmental Protection Agency.[126] Plaintiffs' public nuisance, private nuisance, and trespass claims assert that defendants' concealment of MTBE's hazards led to its widespread use, and ultimately to 325 its appearance in Suffolk County's groundwater, interfering with public groundwater supplies, as well as private property rights in land and groundwater. Plaintiffs' products liability claims allege that defendants "had knowledge of the risks and failed to use reasonable care in the design of gasoline containing MTBE"[127] and, further, failed to inform consumers and handlers of MTBE-containing gasoline of the risks it posed. The negligence claim asserts that defendants failed to adequately test or truthfully report the properties of MTBE that make it hazardous to groundwater. Plaintiffs' claim under the New York General Business Law alleges deceptive business practices in marketing and selling MTBE-containing gasoline without disclosing the properties that make it hazardous. Finally, Plaintiffs' claim under New York's Navigation Law (often called "the Oil Spill Act") allege that defendants discharged petroleum products that have contaminated the groundwater in their wells. That overview of the TSCA and various state law claims makes clear that any issues related, to what the oil companies knew, and when they knew it, are raised by the TSCA claim and also by those state law claims.[128] Moreover, the question of when one oil company knew of the dangers of MTBE will' be relevant as to when another company knew, or should have known, about the threat.[129] Further, much of the evidence related to MTBE that plaintiffs will proffer is relevant to both the federal and state claims. For example, in order to establish their TSCA claim, plaintiffs must prove that the twelve defendants failed to inform the EPA of substantial information they possessed that reasonably supports the conclusion that the gasoline containing MTBE presents a substantial risk of injury to public health or the environment. Similarly, to prove plaintiffs' state-law strict liability claim, plaintiffs must establish that MTBE was an unreasonably dangerous product.[130] While the jury instructions will differ as to each of those claims, plaintiffs will be required to present much of the same evidence to the jury regarding MTBE's toxicity, its solubility in water, and the levels at which it harms drinking water in order to prove both the federal and state claims. This is not a situation where "the federal and state claims rested on essentially unrelated facts."[131] In the Suffolk County 326 action, much of the evidence, argument, and ultimate fact-finding by the jury will be the same with respect to the time between 1979, when the companies first began to add MTBE, until the moment the gasoline was released into the environment โ at which point the fact finding may diverge for each of the claims. This, of course, is true in every case or controversy where many claims are brought in one action. Finally, there is no question that the court's familiarity with the subject matter also weighs in favor of relatedness.[132] Under such circumstances, the parties would "would ordinarily be expected to try [their claims] all in one judicial proceeding."[133] Regardless of the differences that defendants have identified among the state and federal claims, there is a certainly a common nucleus at the center of all of the claims: "two plaintiffs, the County of Suffolk and the Suffolk County Water Authority, sued various corporations for their use and handling of the gasoline additive methyl tertiary butyl ether (`MTBE')."[134] Indeed, this common nucleus of operative fact is why the Judicial Panel on Multidistrict Litigation has repeatedly transferred actions involving MTBE to this Court. Because the common threads running through the claims here are numerous and overlapping, a party would ordinarily expect all of them to be resolved in one proceeding. This Court therefore has jurisdiction under section 1367(a) over all of plaintiffs' claims against all of the defendants.[135] 327 2. Defendants' Motion Under Section 1367(c) Is Denied There is no dispute that this Court must keep the TSCA claim because federal courts have exclusive jurisdiction to hear claims arising under TSCA.[136] Nonetheless, defendants argue that the Court should exercise its discretion under section 1367(c) and decline to retain supplemental jurisdiction over the state law claims. Section 1367(c) states that the "district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if (1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction." On the other hand, a district court may retain jurisdiction over the action even if one or more of those factors is met. In deciding whether to retain jurisdiction over state law claims in such circumstances, the court must take into account considerations of "economy, convenience, fairness, and comity."[137] Thus, for example, the Second Circuit has stated: [I]f the dismissal of the federal claim occurs "late in the action, after there has been substantial expenditure in time, effort, and money in preparing the dependent [state law] claims, knocking them down with a belated rejection of supplemental jurisdiction may not be fair. Nor is it by any means necessary."[138] Thus, keeping in mind that no factor is dispositive, I will examine the relevant section 1367(c) subsections.[139] a. Whether Plaintiffs' Claims Raise Novel or Complex Issues of State Law With respect to section 1367(c)(1), this Court previously held, when addressing plaintiffs' argument that the Court should abstain from exercising its jurisdiction that the Suffolk County action "does 328 not involve difficult questions of state law .. [A]ll that remains is for this Court to apply the state's law."[140] Indeed, the Court has already applied most of the state law at issue in this case.[141] Nonetheless, it cannot be denied that as the years have gone by and the defendants have continued to make motions (and plan to make several more), that there are complex issues of state law that continue to be raised. Surely the defendants knew this when they removed the case years ago to federal court. Defendants' oscillating position on the issue of "market share liability" amply illustrates this point.[142] For the first time, defendants argue that the issues are complex and novel because "this case requires the Court to decide whether the `market share' theory of liability is viable in this context, and if so, how it should be applied."[143] Of course at the time of removal not a single defendant raised this argument. Indeed, in opposing plaintiffs' timely motion to remand, the removing defendant stated that the "Questions Of State Law [raised by the Suffolk County action] Are Not Novel Or Difficult Such That [federal] Abstention Is Warranted" and that "The Suffolk Case Does Not Involve Difficult State Law Questions Warranting Abstention[.]"[144] 329 Defendants' current argument that this issue is novel or complex is in poor taste, if not equitably estopped, given the late date at which it is raised. Defendants could have asked the court to remand the state law claims under section 1367 at any time, including after the plaintiffs added a federal claim a year ago. Instead, defendants have waited until the Court issued four opinions on market share liability, including an opinion on the issue as it is applied to the law of fifteen states, before deciding to seek a return to state court.[145] This smacks of forum shopping at its worst. b. Whether the State Claims Substantially Predominate Over the Federal Claims The general rule is that in order "to promote judicial economy, convenience, and fairness to litigants by litigating in one case all claims that arise out of the same nucleus of operative fact" courts should exercise supplemental jurisdiction over related state law claims.[146] It must be remembered that the section 1367(c) factors create discretionary exceptions to that general rule. There is a legitimate question here as to whether the state law claims substantially predominate over the federal claim; this factor could go either way. On the one hand, as explained above, the federal and state claims arise out of the same common nucleus of operative facts. Indeed, except for the issue of causation and damages, plaintiffs will present much of the same evidence for all of the claims.[147] Moreover, many of the state law issues have already been decided.[148] On the other hand, the state law claims are substantial and will surely require additional proof against many parties.[149] In any event, it is not important to decide on which side of the line this factor falls because at bottom, this is a discretionary decision and the presence of one of the section 1367(c) factors is not determinative. c. The Exercise of Discretion It is patently clear that considerations of "economy, convenience [and] fairness" weigh heavily in favor of retaining supplemental 330 jurisdiction over the state law claims and the defendants named only in those claims.[150] At this advanced stage of the litigation, concerns with economy and efficiency are more than compelling, as has been chronicled at length above. Indeed, unlike the typical case where the court could decline to exercise jurisdiction over the entire case including the federal claim, this Court would need to split the case in two because it has exclusive jurisdiction over the TSCA claim. This alone weighs heavily against remanding the case as it would guarantee duplication of evidence and judicial resources as well as the possibility of conflicting decisions by the jury or courts.[151] With respect to fairness, it is perhaps even more compelling to deny defendants' motion given the unique facts of this case. In many ways, defendants' motion, both in its content and its timing, is gamesmanship in its purest form. Defendants removed this case and vigorously contested plaintiffs' motion to remand. Now, on the basis of changed circumstances, namely, the addition of the TSCA claim and the later appellate decision that removal based on federal officer jurisdiction was improper, those same defendants ask the Court to reconsider whether the very claims they removed to federal court should remain here. If there were ever a case to deny such a request, this is it. As noted earlier, for more than three years, this Court has resolved virtually every substantive and procedural issue in the focus cases, including โ and especially โ the Suffolk County action. The number of opinions and orders has already been noted.[152] Granting defendants' request would result in vacating each and every one of those opinions and orders and would possibly result in a delay of years before a jury finally considers the claims.[153] Further, requiring these cases to be brought in state court would burden a state court with the very time-consuming task of learning the facts, theories, 331 and evidence that have taken this Court over three years to untangle. Whether or not that was defendants' motive in making this motion need not be addressed, but the Court will certainly' not exercise its discretion to bring about such a result. V. CONCLUSION For the foregoing reasons, defendants' Motion to Remand the Suffolk County action is denied in its entirety. The Clerk of the Court is directed to close this Motion (document # 1455). SO ORDERED. NOTES [1] Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 837, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989) (quoting Newman-Green, Inc. v. Alfonzo-Larrain, 854 F.2d 916, 925 (7th Cir. 1988) (Posner, J.)). [2] See In re MTBE Prods. Liab. Litig. ("In re MTBE"), 488 F.3d 112 (2d Cir.2007). [3] See 28 U.S.C. งง 1332, 1334. [4] See 28 U.S.C. ง 1446(b). [5] By order of the Judicial Panel on Multidistrict Litigation, this action was transferred to this Court on June 16, 2004 as part of multidistrict litigation ("MDL") No. 1358. The MDL is discussed infra Part I.C. [6] See In re MTBE, 341 F.Supp.2d 351 (S.D.N.Y.2004) (denying plaintiffs' motion to remand in the Suffolk County action). [7] See Case Management Order No. 4, dated October 19, 2004, at 2. [8] Many of the motions that have been decided resolved disputed issues of state law, including statutes of limitations for various state law claims, see In re MTBE Products Liability Litigation, Nos. 00 Civ. 1898, MDL 1358, M21-88, 2007 WL 1601491 (S.D.N.Y. June 4, 2007), whether plaintiffs may seek punitive damages, see In re MTBE Products Liability Litigation, Nos. 00 Civ. 1898, MDL 1358, M21-88, 2007 WL 2398805 (S.D.N.Y. Aug.16, 2007), plaintiffs' standing to pursue various claims and remedies, see, e.g., In re MTBE, 447 F.Supp.2d 289 (S.D.N.Y.2006) (permitting market share liability theory under New York law), In re MTBE, 379 F.Supp.2d 348 (S.D.N.Y.2005) (allowing New York plaintiffs to pursue concert of action theory), and whether the claims are preempted by federal law, see In re MTBE, 341 F.Supp.2d 386 (S.D.N.Y.2004). [9] See Case Management Order No. 22, dated November 16, 2006, at 2 (initially scheduling Suffolk County trial for January 2008). But see Transcript of May 16, 2007 telephone conference at 3 (setting March 3, 2008 as firm trial date). The parties and the Court expect the March 2008 trial, to last about three months. [10] See Case Management Order No. 20, dated August 25, 2006, ถ 2 (granting leave to amend the Suffolk County complaint). Defendants did not oppose plaintiffs' request to amend. Moreover, defendants answered the amended complaint without moving to dismiss the TSCA claim. [11] See 15 U.S.C. ง 2601 et seq. Plaintiffs' TSCA claim was brought specifically under 15 U.S.C. ง 2607(e). [12] See id. ง 2619(a) ("Any civil action under paragraph (1) shall be brought in the United States district court for the district in which the alleged violation occurred . . ." (emphasis added)). [13] See Transcript of August 23, 2007 status conference ("8/23/07 Tr.") at 76 (plaintiffs' counsel noting that even if the state claims were remanded, the parties "would still be here on some of our claims on the TSCA claims"). [14] The County is a municipality located on Long Island in the State of New York. SCWA is a "public benefit corporation" that provides water to over 1.1 million Suffolk County residents, making it one of the largest groundwater suppliers in the nation. Suffolk County Sixth Amended Complaint ("6AC"), dated October 16, 2006, ถ 8. The groundwater beneath Suffolk County is SCWA's sole source of drinking water. See id. ถ 66. [15] Id. ถ 4. [16] Plaintiffs' TSCA claim is brought against twelve defendants. See id. ถถ 3, 201-213 (naming the "TSCA defendants" and alleging TSCA violations). Defendants play down the TSCA claim, suggesting that because some of the twelve TSCA defendants are affiliated corporate entities, the claim is only against four "real" companies, a small number relative to the total line up of fifty-three defendants. But this argument ignores the fact that most of the non-TSCA defendants are affiliated with one or more other defendants, as well. [17] See 28 U.S.C. ง 1442(a) (federal officer); id. งง 1441(a), 1331 (federal question, federal preemption); id. ง 1334(b) (bankruptcy); Energy Policy Act of 2005, Pub.L. 109-58, tit. XV, ง 1503, 119 Stat. 1076 (codified at 42 U.S.C. ง 7545 note). [18] See Case Management Order No. 22, dated Nov. 16, 2006, at 2 (selecting Suffolk County as the first action to be tried). [19] See U.S. Const. art. III, ง 2. See also Exxon Mobil Corp. v. Allapattah Servs., Inc. 545 U.S. 546, 552, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005) ("The district courts of the United States, as we have said many times, are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute." (citation and quotation marks omitted)). [20] 28 U.S.C. ง 1331. [21] See Allapattah, 545 U.S. at 552, 125 S.Ct. 2611. [22] Id. [23] Id. at 553-54, 125 S.Ct. 2611. [24] See In re MTBE, 488 F.3d 112, 134 (2d Cir.2007). [25] 28 U.S.C. ง 1447(c). [26] Id. Interestingly, were the state claims to be remanded now to state court, the "just costs and . . . actual expenses, including attorney fees, incurred as a result of the removal" would be astronomical โ amounting to hundreds of thousands, if not millions of dollars. [27] This thirty day requirement is not a mere technicality. Rather, it reflects a policy choice on the part of Congress to promote certainty and efficiency among litigants and the courts at a very early stage in the proceedings and to guard against mid-litigation forum shopping. See, e.g., Pierpoint v. Barnes, 94 F.3d 813, 818 (2d Cir.1996) ("The purpose of the amendment [to 1447(c) to add the thirty day requirement] then, was to avoid late-game forum shopping by plaintiffs. . . . [I]t was the intent of Congress to create a strict time limitation on all challenges to removal based on any impropriety, whether procedural or substantive, in the removal procedure (excepting those based on the district court's lack of subject matter jurisdiction)."). Accord In re Allstate Ins. Co., 8 F.3d 219, 223 (5th Cir.1993) (citing H.R.Rep. No. 889, 100th Cong., 2d Sess. 72 (1988), 1988 U.S.C.C.A.N. 5982, 6032-33). [28] In re Allstate Ins. Co., 8 F.3d at 223 (quoting H.R.Rep. No. 889, 100th Cong., 2d Sess. 72 (1988)). [29] See Fed.R.Civ.P. 12(h)(3) ("Whenever it appears by suggestion of the parties or otherwise that the, court lacks jurisdiction of the subject matter, the court shall dismiss the action."). Accord Kontrick v. Ryan, 540 U.S. 443, 455, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004). [30] See 8/23/07 Tr. at 11, 17 (defense counsel conceding that if plaintiffs' amendment was effective, this Court currently has original jurisdiction over the Suffolk County action). That, of course, was not a concession that the Court has the power, see 28 U.S.C. ง 1367(a), or should exercise its discretion, see 28 U.S.C. ง 1367(c), to exercise supplemental jurisdiction over the state law claims. [31] All of the district courts that denied leave to permit an amendment to create jurisdiction had already dismissed (or decided to dismiss) the case based on lack of jurisdiction. When district courts permitted an amendment of a complaint to add a federal claim for the purpose of solidifying jurisdiction, they acted at a time when they believed they had jurisdiction. [32] This is because in every case where a district court permitted an amendment to a complaint, the general rule preventing interlocutory appeals meant that no challenge to jurisdiction was made until the case was appealed after a final judgment. Due to the fortuity of an appellate decision in a related action, this is the one case in a million in which the district court must confront that issue. [33] See, e.g., Pullman Co. v. Jenkins, 305 U.S. 534, 537, 59 S.Ct. 347, 83 L.Ed. 334 (1939); Vera v. Saks & Co., 335 F.3d 109, 116 n. 2 (2d Cir.2003). See also 14C Wright, Miller & Cooper, Federal Practice and Procedure ง 3739, at 468 (3d ed. 1998) ("[W]hether an action should be remanded to state court must be resolved by the district court with reference to the complaint, the notice of removal, and the state court record at the time the notice of removal was filed."). [34] See Grubbs v. General Elec. Credit Corp., 405 U.S. 699, 92 S.Ct. 1344, 31 L.Ed.2d 612 (1972) (holding that a jurisdictional defect at the time of removal need not disturb a final judgment on appeal). [35] See discussion of Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 124 S.Ct. 1920, 158 L.Ed.2d 866 (2004), infra Part IV. A.3.a. Nor is it so clear that the moment of final judgment is determinative. In Grupo Dataflux, the Fifth Circuit had held that where a jurisdictional error was not identified until after a jury's verdict and the post-filing change cured the defect before it was identified, the district court had jurisdiction. The Supreme Court, however, noted that "an approach to jurisdiction that focuses on efficiency and judicial economy cannot possibly be held to the line drawn by the Court of Appeals." Id. at 577, 124 S.Ct. 1920. The Court went on to quote with approval the dissent from the Fifth Circuit's opinion: [T]here is no difference in efficiency terms between the jury verdict and, for example, the moment at which the jury retires. Nor, for that matter, is there a large difference between the verdict and mid-way through the trial. . . . Indeed, in complicated cases requiring a great deal of discovery, the parties and the court often expend tremendous resources long before the case goes to trial. Id. (quoting Atlas Global Group, L.P. v. Grupo Dataflux, 312 F.3d 168, 177 (5th Cir.2002) (Garza, J., dissenting)). [36] The Grupo Data flux Court focused on whether a jurisdictional-defect is curable or not curable, rather than on which court has the power to effect a cure. [37] See id. at 576, 124 S.Ct. 1920 (stating that "postfiling citizenship change is irrelevant" and holding that jurisdiction is incurable). [38] See 28 U.S.C. 1653 (permitting cures for defective jurisdictional allegations). See also, e.g., Newman-Green, 490 U.S. at 826, 109 S.Ct. 2218. [39] See, e.g., Chabner v. United of Omaha Life Ins. Co., 225 F.3d 1042, 1046 n. 3 (9th Cir. 2000) ("Although normally jurisdiction must be analyzed on the basis of the pleadings filed at the time of removal without reference to subsequent amendments, that rule applies mainly in cases where the amended complaint attempts to destroy federal jurisdiction after the case has been properly removed. In this case, where the amended complaint solidified rather than destroyed federal jurisdiction . . . because the [newly-added] ADA claim raised a federal question, subject matter jurisdiction existed at the time the district court entered judgement. Therefore, this `case was properly in federal court." (quotations omitted)). [40] Whether courts have found estoppel or waiver depends in large part on whether the post-filing or post-removal change was undertaken "voluntarily" or "involuntarily." See, e.g., In re Wireless Tel. Fed. Cost Recovery Fees Litig., 396 F.3d 922, 929 (8th Cir.2005), infra Part IV.A.2.d; In re Atlas Van Lines, Inc., 209 F.3d 1064, 1065-66 (8th Cir.2000) (because plaintiff's choice once the cases was removed on the basis of federal preemption was to amend or be dismissed, the amendment to add a federal claim was involuntary and "requires us to treat her amended complaint as if it had never been filed. Hence, only the original complaint governs the question of federal jurisdiction in this case."); Kidd v. Southwest Airlines, Co., 891 F.2d 540, 546-47 (5th Cir.1990), infra Part IV.A.2.d; Bernstein v. Lind-Waldock & Co., 738 F.2d 179, 185 (7th Cir.1984) (although plaintiff's initial complaint was not removable, jurisdiction was conferred by plaintiff's decision to "throw in the towel" and amend his complaint to state an "unmistakable federal cause of action[:]" "[W]here, after objecting to removal, the plaintiff voluntarily amends the original complaint to allege a federal cause of action, the plaintiff will have waived the ability to challenge removal jurisdiction"); Brough v. United Steelworkers of Am., 437 F.2d 748, 750 (1st Cir.1971), infra Part IV. A.2.d. See also Fax Telecommunicaciones, Inc. v. AT & T, 138 F.3d 479, 488 (2d Cir.1998) (although plaintiff made no amendment after the improper removal, the appellate court held that where the plaintiff raised no objection to removal in the district court, and the counterclaims provided a sufficient basis for subject matter jurisdiction, the court would not disturb the district court's judgment). [41] See, e.g., cases cited infra note 89. [42] See, e.g., Caterpillar, Inc. v. Lewis, 519 U.S. 61, 76, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996); Newman-Green, 490 U.S. at 836, 109 S.Ct. 2218. See also cases cited infra note 90. [43] See Plaintiffs' Memorandum of Law in Opposition to Defendants' Motion to Remand Suffolk County Water Authority to State Court at 5-9. [44] See Memorandum in Support of Defendants' Motion to Remand ("Def. Mem.") at 9-12; Reply Memorandum in Support of Defendants' Motion to Remand ("Def. Reply Mem.") at 2-3. [45] 28 U.S.C. ง 1332(a)(2) was not available because it only applies when a citizen sues exclusively aliens. In Newman-Green, one of the defendants was a United States citizen. See Newman-Green, 490 U.S. at 828, 109 S.Ct. 2218. [46] See 28 U.S.C. ง 1653 ("Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts."). See also Fed.R.Civ.P. 21 ("Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately."). [47] Newman-Green, 490 U.S. at 829, 109 S.Ct. 2218 (discussing the Seventh Circuit decision). The procedural posture reveals that no final judgment had been entered at the time the appellate court granted the motion. [48] Id. at 830, 109 S.Ct. 2218 (emphasis added). The Federal Rules of Civil Procedure govern practice in the district courts but have no application in the appellate courts. See Fed.R.Civ.P. 1. [49] Newman-Green, 490 U.S. at 831-32, 109 S.Ct. 2218 (quoting 28 U.S.C. ง 1653). [50] Id. at 832-33, 109 S.Ct. 2218 (emphasis added). [51] Cf. Mullaney v. Anderson, 342 U.S. 415, 417, 72 S.Ct. 428, 96 L.Ed. 458 (1952)" (Supreme Court applied Rule 21 to grant plaintiff's motion to add two union members as parties in order to give plaintiff standing to proceed holding that to require the plaintiff to start over in the District Court "would entail needless waste and run[ ] counter to effective judicial administration"). [52] See Newman-Green, 490 U.S. at 837, 109 S.Ct. 2218 ("If the entire suit were dismissed, Newman-Green would simply refile in the District Court against the Venezuelan corporation and the four Venezuelans and submit the discovery, materials already in hand. The case would then proceed to a preordained judgment. Newman-Green should not be compelled to jump through these judicial hoops merely for the sake of hypertechnical jurisdictional purity." (citation and footnote omitted)). [53] Newman-Green, 854 F.2d at 925. [54] See 519 U.S. at 61, 117 S.Ct. 467. [55] Id. at 70, 117 S.Ct. 467. The Court noted two of its earlier decisions that had discussed challenges to jurisdiction arising from improper removal. In American Fire & Casualty Co. v. Finn, the Court held that because there was no diversity jurisdiction at the time of removal or at the time of judgment, the judgment must be vacated. See 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702 (1951). In dicta, however, the Finn Court noted that if a trial court had jurisdiction at the time of a final judgment, a removing defendant would be estopped from challenging a final judgment based on a removal error. Interestingly, in Finn, the Supreme Court remanded the action to the district court to determine whether a new judgment could be entered on the original verdict if the nondiverse defendant were dismissed from the case. Following remand, the District Court granted the motion to dismiss but declined to reinstate the verdict, opting instead to hold a new trial. The Fifth Circuit set aside the judgment of the second trial and reinstated the original verdict. In a second case, Grubbs v. General Electric Credit Corp., the Supreme Court held that because there was jurisdiction at the time of final judgment, the judgment could stand despite the fact that the case had been improvidently removed. See 405 U.S. 699, 92 S.Ct. 1344, 31 L.Ed.2d 612 (1972). The Court noted that no party had objected to the removal. It was for this reason that Caterpillar presented a new situation โ where a party had objected to removal, the objection had been heard and denied and the case proceeded to verdict (by which time the trial court had jurisdiction). [56] Here, while there is as yet no finality, concerns of both economy and efficiency are present and unusually compelling. As for finality, see discussion of Grupo Data flux, infra Part IV.A.3.a. [57] Caterpillar, 519 U.S. at 76, 117 S.Ct. 467 (quoting Newman-Green, 490 U.S. at 836, 109 S.Ct. 2218). [58] Id. at 76-77, 117 S.Ct. 467 (citations omitted). [59] See 738 F.2d 179 (7th Cir.1984). After plaintiff's preliminary injunction motion was denied in state court and the seat was auctioned, the action then became one for restoration of the seat or in the alternative for damages. [60] Id. at 182: [61] See id. at 185. As in the instant case, the removal was based on a federal question, and the district court had failed to perceive the defect when deciding the motion to remand. [62] Id. In the instant case, plaintiffs also voluntarily amended their claim to bring an "unmistakable" federal claim against some, but not all, of the defendants. Accord In re Wireless Tel., 396 F.3d at 929 (finding voluntary amendment of complaint post-removal sufficient to confer jurisdiction). [63] As in the instant case, the "cure" of the jurisdictional defect occurred in the trial court, not in the appellate court. Thus, defendants' argument here that only an appellate court (but not a trial court) may implement a jurisdictional fix is plainly incorrect. [64] See Bernstein, 738 F.2d at 187-88. It is worth noting that the court never explained whether the amendment of the complaint was made as of right or by a grant of leave to amend. In any event, the appellate court never considered that the amendment might be void because the district court had lacked jurisdiction over the matter at the time of the amendment. [65] See 99 F.3d 49 (2d Cir.1996). [66] See id. at 49 (citing Fed.R.Civ.P. 15(a)). [67] See id. at 56 (citing Fed.R.Civ.P. 15(a)). [68] Id. (emphasis added) (citing Bernstein, 738 F.2d at 185). Cf. Kelly v. Carr, 691 F.2d 800, 805-06 (6th Cir.1980) (holding that after improvident removal, court's grant of motion to intervene allowed court to exercise jurisdiction over the action where federal jurisdiction would otherwise have been absent). [69] See discussion of Grupo Dataflux, infra Part IV.A.3.a. [70] See 115 F.3d 214 (3d Cir.1997). [71] Id. at 216 (citing Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996)). [72] See August 31, 2007 Letter from Peter Sacripanti, liaison counsel for defendants, to the Court (citing Harper v. Virginia Dep't or Taxation, 509 U.S. 86, 96, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993); James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 543, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991); and Welch v. Cadre Capital, 946 F.2d 185, 186 (2d Cir. 1991)). [73] Balgowan, 115 F.3d at 217 (quoting Newman-Green, 490 U.S. at 836, 109 S.Ct. 2218 (citing Mullaney, 342 U.S. at 417, 72 S.Ct. 428)). [74] See Def. Mem. at 5-7; see also Def. Reply Mem. at 4-5. [75] See In re Wireless Tel., 396 F.3d at 922 (where one set of plaintiffs amended their complaint to add a federal claim after removal on preemption grounds, but before the court had ruled on whether preemption removal was appropriate, the court viewed this as a "voluntary" amendment and held that courts must "resolve questions of subject matter jurisdiction by examining the face of the amended complaint"); Albert v. Smith's Food & Drug Ctrs., Inc., 356 F.3d 1242 (10th Cir. 2004) (after the district court denied plaintiff's motion to remand, plaintiff amended the complaint to add a claim under the ADA; appellate court held the court had jurisdiction and that plaintiff waived its objection to the removal based on its voluntary amendment); Chabner, 225 F.3d at 1042 (where the amended complaint solidified rather than destroyed federal jurisdiction, the amendment of the complaint once in federal court to add a federal question claim conferred subject matter jurisdiction on the district court); Kidd, 891 F.2d at 540 (after district court denied plaintiff's motion to remand, plaintiff voluntarily amended her complaint to add a federal claim under ERISA, and the court held that "[w]here the disgruntled party takes full advantage of the federal forum and then objects to removal only after losing at the district court level, that party has waived all objections to removal jurisdiction"); Brough, 437 F.2d at 748 (following a denial of plaintiff's motion to remand, plaintiff "did not proceed simply on the basis of his original theory of recovery," which turned out to have been insufficient to support removal, but rather amended his complaint to add a claim that "obviously arises under federal law," which the court held "had the effect of curing the defect in the district court's jurisdiction," finding plaintiff's decision to amend "to be a waiver of any objection to the denial of remand"). In addition, a district court decision found, although acknowledging that the law on that point was "not entirely clear," that the court could consider an amended complaint in addressing whether it had subject matter jurisdiction in the face of an improper removal. See Home Savings & Loan Assoc. of Joliet v. Samuel T. Isaac & Assocs., Inc., 496 F.Supp. 831, 835 (N.D.Ill.1980) (stating that "where a complaint has been amended after removal to โ for the first time โ set forth a basis for federal jurisdiction, the federal court hearing the matter, if said basis for federal jurisdiction is found to be valid, becomes vested with jurisdiction to proceed further, even if it is shown later that removal had been improvidently granted[,]" but ultimately holding that the amended complaint did not involve a federal question). Defendants' selective quotation of Rudow v. Monsanto, No. C99-4700, 2001 WL 228163 (N.D.Cal. Mar.1, 2001), to distinguish this case, see Def. Reply Mem. at 3, is slightly misleading insofar as it omitted Rudow's distinction between Home Savings, which "concern[ed] federal question jurisdiction" and the facts of Rudow, stating that "it would be too much of a stretch to conclude . . . that a district court may treat as cured diversity jurisdiction that was wanting at the time of removal." Rudow, 2001 WL 228163, at 5. [76] According to the defendants, when "plaintiffs sought to add TSCA claims, however, all defendants had answered plaintiffs' complaint, and none consented, to amendment. As a result, plaintiffs could not amend without leave of the court." 8/23/07 Tr. at 3-4. However, at oral argument, defendants conceded that they did not formally object because the Court had informed the defendants they could always move to dismiss the claim pursuant to Rule 12(b)(6), which was the typical practice for the Court with respect to amended complaints. See 8/23/07 Tr. at 18. Defendants never filed a motion to dismiss, nor have they filed a summary judgment motion on the TSCA claim despite the Court's repeated inquiries into whether they intended to file such motions. See, e.g., Transcript of August 22, 2006 status conference at 25-26; Transcript of June 19, 2007 status conference at 19. In the current motion, however, defendants assert, for the first time, that plaintiffs lack standing to bring the TSCA claim. See Def. Mem. at 13-14. The argument lacks any merit. TSCA allows citizen suits against "[a]ny person who manufactures, processes, or distributes in commerce a chemical substance or mixture" such as MTBE. 15 U.S.C. ง 2607(e). In turn, it is unlawful to "fail or refuse to . . . submit reports, notices, or other information." Id. ง 2614(3)(B). The statute also recognizes the availability of injunctive relief. See id. ง 2619(a)(1). Plaintiffs plainly have standing to bring the TSCA claim against the named defendants. [77] See Pullman, 305 U.S. at 537, 59 S.Ct. 347. The time-of-filing rule is a judicial gloss on the diversity statute that spares federal courts the inefficiency and instability that result from parties' manipulation of federal jurisdiction. See 13B Wright, Miller & Cooper, Federal Practice and Procedure ง 3608, at 449 (2007) (stating in a section entitled "Time of Determining Diversity Jurisdiction" that "[t]he general rule that `if jurisdictional prerequisites are satisfied when the suit is begun, subsequent events will not work an ouster of jurisdiction . . . is not attributable to any specific statute or to any language in the statutes which confer jurisdiction.' Rather, it represents a policy decision `that the sufficiency of jurisdiction should be determined once and for all at the threshold and if found to be present then should continue until final disposition of the action.' This approach provides maximum stability and certainty to the viability of the action and minimizes repeated challenges to the court's subject matter jurisdiction." (emphasis added) (quoting Dery v. Wyer, 265 F.2d 804, 808 (2d Cir.1959))). See also Chabner, 225 F.3d at 1046 n. 3 ("Although normally jurisdiction must be analyzed on the basis of the pleadings filed at the time of removal without reference to subsequent amendments, that rule applies mainly in cases where the amended complaint attempts to destroy federal jurisdiction after the case has been properly removed."). It stands to reason that this rule was developed in the context of diversity jurisdiction. A plaintiff could (and, before the time-of-filing rule, often did) add a non-diverse defendant to defeat diversity jurisdiction. A plaintiff cannot add a federal claim to defeat federal question jurisdiction, only to solidify it. [78] Def. Reply Mem. at 4 (citing Caterpillar, 519 U.S. at 61, 117 S.Ct. 467, and Grubbs, 405 U.S. at 699, 92 S.Ct. 1344, both of which allowed an appellate court to salvage jurisdiction by recognizing a preverdict cure of a jurisdictional defect that was not noticed until after final judgment). [79] See id. at 4-5 (citing, e.g., Grubbs, 405 U.S. at 702, 92 S.Ct. 1344; Barbara, 99 F.3d at 56; Kidd, 891 F.2d at 540). [80] Cf. Grupo Dataflux, 541 U.S. at 570, 124 S.Ct. 1920 (rejecting the Fifth Circuit's holding that a district court must dismiss a case "[i]f at any point prior to the verdict or ruling, the issue [of jurisdiction] is raised"). [81] See 541 U.S. at 567, 124 S.Ct. 1920. [82] Id. at 576, 124 S.Ct. 1920 (holding that limiting the "cure" to postverdict proceedings is unsound). [83] I recognize that the Grupo Data flux suit originated in federal court, as opposed to being removed from state court. Thus, the question remains whether a defective removal can be cured at any level by a post-removal cure. But given the reasoning of Grupo Dataflux โ that there is no principled distinction between a cure at the trial level or at the appellate level โ the appellate cases permitting a defective removal to be cured by a subsequent change (either by dropping or adding a party or by amendment to add a federal claim), solidifying rather than destroying jurisdiction, should also be available to the district courts. See, e.g., Chabner, 225 F.3d at 1046 n. 3. [84] See 592 F.2d 1062 (9th Cir.1979) (cited in Def. Mem. at 10-11). [85] Id. at 1065 n. 2 (quoting 28 U.S.C. ง 1447(c)). [86] 28 U.S.C. ง 1447(c) (2007). [87] It comes as no surprise, therefore, that the Ninth Circuit reached a different outcome in its 2000 decision in Chabner, 225 F.3d at 1046 n. 3, than in Libhart in 1979. Defendants also cite two district court decisions that cite Libhart. See Def. Mem. at 11-12 (citing Hicks v. Universal Housing, Inc., 792 F.Supp. 482 (S.D.W.Va.1992), and Bell v. Amcast Industrial Corp., 607 F.Supp. 486 (S.D.Ohio 1985)). Both cases are inapposite. Hicks was remanded very early in the action when it became clear that both parties were attempting to manipulate diversity jurisdiction. Bell relied on the same pre-1988 version of the statute as Libhart. [88] See, e.g., Prize Frize, Inc. v. Matrix (U.S.) Inc., 167 F.3d 1261 (9th Cir.1999) (removal was defective based on failure to get consent of all defendants within thirty days and no cure was effected prior to final judgment); Toshavik v. Alaska Airlines, Inc., No. N99-2CV, 1999 WL 33456492 (D.Alaska Nov.15, 1999) (failure of all defendants to join in notice of removal not a curable defect). Cf. Parrino v. FHP, Inc., 146 F.3d 699 (9th Cir. 1998) (appellate court exercised jurisdiction to sustain a final judgment where jurisdiction was challenged because the sole defendant that had not consented to removal did consent, albeit untimely, creating unanimity of consent to remove prior to the final judgment). Defendants cite Parrino as forbidding a district court from retaining jurisdiction over an improperly removed action. See Def. Mem. at 6. However, the Parrino court did not write with such broad strokes. Rather, the court stated that only the Court of Appeals could "treat as cured a procedural defect in the removal process corrected before entry of judgment." Parrino, 146 F.3d at 703 n. 1 (emphasis added). In making that statement, the court was responding to the dissent's concern that the court was reading Caterpillar as permission "to ignore the procedural requirements for removal." Id. (emphasis added). The present case, by contrast, does not involve any procedural defect. Moreover, to the extent that Parrino's distinction between the power of district courts and appellate courts applies as broadly as defendants suggest, the Supreme Court's decision in Grupo Data flux has cast significant doubt on that distinction. See supra Part IV.A.3.a. [89] See, e.g., Pressroom Unions-Printers League Income Sec. Fund v. Continental Assurance Co., 700 F.2d 889 (2d Cir.1983;) (in case originally filed in federal court alleging federal question jurisdiction court had already granted a motion to dismiss for lack of jurisdition at the time it denied plaintiff leave to amend the complaint); Fredrickson v. Consolidated Supply Corp., No. 05 CV 1704, 2006 WL 752587 (D.Or. Mar. 21, 2006) (in case improvidently removed to federal court based on failure to obtain consent of all defendants court rejected moving defendant's argument that it might have been able to cure the defect prior to final judgment); Vasura v. Acands, 84 F.Supp.2d 531 (S.D.N.Y.2000) (granting plaintiff's motion to remand made soon after removal despite defendant's argument that post-removal release of nondiverse defendant based on settlement established jurisdiction); Falise v. American Tobacco Co., 241 B.R. 63 (E.D.N.Y.1999) (court had already dismissed the action based on a motion to dismiss for lack of subject matter jurisdiction when it denied plaintiff's motion for leave to amend to add a federal claim); Asset Value Fund Ltd. P'ship v. Care Group, 179 F.R.D. 117 (S.D.N.Y.1998) (plaintiff had conceded lack of diversity before the district court denied plaintiff's motion to amend the complaint in order to add a federal securities claim on the eve of trial); Broad v. DKP Corp., No. 97 Civ.2029, 1998 WL 516113 (S.D.N.Y. Aug. 19, 1998) (unpublished memorandum and order) (court found lack of diversity before it denied the motion to amend the complaint to assert a federal question (RICO). claim); Hicks, 792 F.Supp. at 482 (court found that it lacked diversity jurisdiction based on inadequate amount in controversy before it addressed plaintiff's motion to amend the pleadings). [90] See Rudow, 2001 WL 228163 (citing the now-questionable "final judgment" exception and declining to exercise jurisdiction several months after the action was removed based on a post-removal dismissal of nondiverse defendant); Toshavik, 1999 WL 33456492 (motion to remand decided shortly after removal). See also supra note 89. [91] Waste Control Specialists, LLC v. Envirocare of Texas, Inc., 199 F.3d 781, 787 (5th Cir.2000). [92] Moreover, such a result would frustrate the purpose of the Federal Rules of Civil Procedure, which "shall be construed and administered to secure the just, speedy, and inexpensive determination of every action." Fed.R.Civ.P. 1. [93] Allapattah, 545 U.S. at 552, 125 S.Ct. 2611. In other words, it has long been true that "if the district court had original jurisdiction over at least one claim, the jurisdictional statutes implicitly authorized supplemental jurisdiction over all other claims between the same parties arising out of the same Article III case or controversy." Id. at 556, 125 S.Ct. 2611 (citing United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966)). [94] Congress coined the phrase "supplemental jurisdiction" when it enacted section 1367. See H.R.Rep. No. 101-734, at 27 (1990), reprinted in 1990 U.S.C.C.A.N. 6860, 6873. Prior to the enactment of the statute, the concepts of pendent and ancillary jurisdiction were jurisprudential doctrines. See generally Baer v. First Options of Chicago, Inc., 72 F.3d 1294 (7th Cir.1995). [95] Id. (quoting Finley v. United States, 490 U.S. 545, 549, 109 S.Ct. 2003, 104 L.Ed.2d 593 (1989)). [96] Id. at 556-57, 109 S.Ct. 2003 (citations omitted). [97] The statute was enacted December 1, 1990, as part of the Judicial Improvements Act of 1990, Pub.L. No. 101-650, 104 Stat. 5089 (codified at 28 U.S.C. ง 1367). See Allapattah, 545 U.S. at 559, 125 S.Ct. 2611 ("[Section] 1367(a) is a broad jurisdictional grant, with no distinction drawn between pendent-claim and pendent-party cases."). See also id. at 557, 125 S.Ct. 2611 ("In Finley we emphasized that [w]hatever we say regarding the scope of jurisdiction conferred by a particular statute can of course be changed by Congress.' In 1990, Congress accepted the invitation." (citation omitted)). [98] The word "shall" in section 1367(a) is construed "to mean that a federal court must exercise supplemental jurisdiction if it is found to exist." 16 James Wm. Moore et al., Moore's Federal Practice ง 106.61 (3d ed.1997) (emphasis added). In contrast, section 1367(c) gives the district court the discretion to remand the state law claims over which it has jurisdiction if it should find that any of the subsections is satisfied. See infra Part IV.B.2. [99] See Allapattah, 545 U.S. at 550, 125 S.Ct. 2611. [100] See Allapattah Servs., Inc. v. Exxon Corp., 61 F.Supp.2d 1308, 1311-12 (S.D.Fla.1999). [101] See id. at 1313. [102] Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d 328, 335 (2d Cir.2006). Accord Lyndonville Savings Bank & Trust Co. v. Lussier, 211 F.3d 697, 704 (2d Cir.2000). However, the "common nucleus of operative facts" test may be too strict because section 1367(a) grants a federal court jurisdiction to the full extent provided by the Constitution. That is, claims that may not satisfy the "common nucleus" test may nonetheless be part of the same "case or controversy." The "common nucleus" test comes from the Supreme Court's 1966 decision in Gibbs, which was not based on the Constitution's definition of "case or controversy" but rather on a court's authority to administer justice fairly, efficiently, and with minimal waste and burden. See Gibbs, 383 U.S. at 726, 86 S.Ct. 1130. The phrase "case or controversy" as used in Article III is broader than the test formulated in Gibbs, `which was constrained by prudential concerns (e.g., reducing waste and burden to the judicial system). Thus, a federal court's jurisdiction under section 1367(a) logically should be broader than the inherent authority recognized in Gibbs. The Second Circuit expressly raised this question but left it open. See Jones v. Ford Motor Credit Co., 358 F.3d 205, 213 & n. 5 (2d Cir.2004) (noting that "[t]here is some doubt as to whether section 1367's expansion of supplemental jurisdiction to its constitutional limits renders the provision's scope broader than was contemplated in Gibbs"). Of course, because jurisdiction is present in this action, even under the Gibbs test, it follows that this Court has jurisdiction under any definition of "case or controversy" under Article III. See id. at 213 ("Whether or not the Gibbs `common nucleus' standard provides the outer limit of an Article III `case,' and is therefore a requirement for entertaining a permissive counterclaim that otherwise lacks a jurisdictional basis, the facts of [Defendant's] counterclaims and those of Plaintiffs' [federal Equal Credit Opportunity Act] claims satisfy that standard, even though the relationship is not such as would make the counterclaims compulsory."). [103] See Achtman v. Kirby, McInerney & Squire, LLP, 336 F.Supp.2d 336; 339 (S.D.N.Y.2004). Plaintiffs also brought their action on behalf of a putative class. [104] See Achtman, 464 F.3d at 332. [105] Id. at 330. [106] Id. at 331 (explaining the purpose of the court's remand order). Accord Achtman v. Kirby, McInerney & Squire, LLP, 150 Fed. Appx. 12, 15 (2d Cir.2005) (ordering the remand). [107] See Achtman, 464 F.3d at 334-36. [108] Id. at 335 (citations omitted). [109] Id. (citing Alderman v. Pan Am World Airways, 169 F.3d 99, 101-02 (2d Cir.1999) (supplemental jurisdiction over separate contract dispute action based on jurisdiction over settled wrongful death action)). [110] Id. at 335 (quoting Lyndonville, 211 F.3d at 704). [111] Id. at 336. [112] Id. [113] Id. [114] Id. [115] See id. [116] See 140 F.3d 442 (2d Cir.1998). [117] Achtman, 464 F.3d at 336 (quoting Itar-Tass, 140 F.3d at 445). [118] Id. [119] See, e.g., Rothberg v. Chloe Foods Corp., No. 06 Civ. 5712, 2007 WL 2128376, at 8 (E.D.N.Y. July 25, 2007) ("In the present case, subject matter jurisdiction over the RICO claim is conferred pursuant to federal question jurisdiction, 28 U.S.C. ง 1331, and the claims against the non-RICO defendants do arise from the same set of operative facts, namely the overall scheme to defraud plaintiff and other creditors by siphoning off the assets of Blue Ridge Farms and allocating those assets among the companies controlled by Kontogiannis."). [120] See 373 F.3d 296 (2d Cir.2004). [121] Id. at 308. [122] See 358 F.3d at 201. [123] See id. at 207. [124] Id. at 213 (emphasis added). [125] A recent decision from this Court is also instructive. In Ouedraogo v. Durso Associates, Inc., plaintiffs sued a group of four different companies, alleging that they were paid less than minimum wages With no overtime and sued to recover unpaid wages under the federal Fair Labor Standards Act and New York Labor Law. See No. 03 Civ. 1851, 2005 WL 1423308, at 1 (S.D.N.Y. June 16, 2005). The state law claims, however, were alleged only against two of the four defendants. Obviously, each claim involved different plaintiffs, different defendants, different time periods of employment and different alleged violations. Nonetheless, the court concluded that "the federal and state law claims derive from a common nucleus of operative fact and warrant the exercise of supplemental jurisdiction" over all of the claims and all of the defendants because, inter alia: Plaintiffs allege similar claims and all share a basic common story, namely, that, as employees of Hudson/Chelsea, they were placed in various Key Food stores where they delivered groceries and allegedly provided a range of in-store help, worked long hours, and were paid wages below the statutory minimum. The claims against Matlyn will involve overlapping testimony, depositions and documentation with other plaintiffs' federal and state claims. . . . Ultimately, [the] state law claims share too many common threads with the other plaintiffs' federal claims for them to be separated from one another. Id. at 2. [126] 15 U.S.C. ง 2607(e). [127] 6AC ถ 230. [128] Likewise, many of the defenses that will be raised are relevant to both the federal and state claims. For example, when the oil companies argue that MTBE is not harmful, or at the very least not as harmful as plaintiffs contend, they will be raising an issue that underlies all of the claims. [129] Though it is not evidence, the following observation highlights the type of operative fact that underlies many of the claims as well as the type of argument the jury will need to consider: "ARCO first began producing MTBE in December 1979. At that time, MTBE's awful taste and odor were no secret, and its high solubility in water was a characteristic that was easily ascertainable by any engineer." Thomas O. McGarity, MTBE: A Precautionary Tale, 28 Harv. Envtl. L.Rev. 281, 286 (2004). [130] See, e.g., Denny, v. Ford Motor Co., 87 N.Y.2d 248, 256-57, 639 N.Y.S.2d 250, 662 N.E.2d 730 ("Under New York law, a design defect may be actionable under a strict products liability theory if the product is not reasonably safe."). [131] Lyndonville, 211 F.3d at 704 (citing Young v. New York City Transit Auth., 903 F.2d 146, 162-64 (2d Cir.1990) (holding that challenge to transit regulation prohibiting panhandling and challenge to state penal law prohibiting loitering shared no common nucleus of operative fact); Wigand v. Flo-Tek, Inc., 609 F.2d 1028, 1033 (2d Cir.1979) (as amended) (reversing the district court's exercise of jurisdiction where, the federal claim rested on events prior to the effective date of a contract while the state law claim rested on events occurring after that date)). However, it is worth noting that Young and Wigand were decided prior to the passage of section 1367 in 1990, which "broad[ened]" the federal courts' exercise of supplemental jurisdiction. See Allapattah, 545 U.S. at 559, 125 S.Ct. 2611. Defendants have relied on pre-1990 cases throughout their brief and at oral argument. For example, defendants continually referred to Hales v. Winn-Dixie Stores, Inc., 500 F.2d 836' (4th Cir.1974), for the proposition that a claim with different remedies cannot satisfy section 1367's "Case or controversy" test. See Def. Mem. at 17-19; 8/23/07 Tr. at 58-59. However, Winn-Dixie was decided over fifteen years before the passage, of section 1367 and was based on the prudential concerns underlying Gibbs. Any analysis offered by Winn-Dixie is not of much value in determining whether section 1367(a) is satisfied here. See Allapattah, 545 U.S. at 559, 125 S.Ct. 2611. [132] See Achtman, 464 F.3d at 336 (citing Itar-Tass, 140 F.3d at 445). See also supra note 8. and accompanying text (discussing this Court's extensive involvement with this case and the MTBE cases in general). [133] Gibbs, 383 U.S. at 725, 86 S.Ct. 1130. [134] In re MTBE Prods. Liab., 2007 WL 1791258, at 1. [135] Plaintiffs have argued that this, Court has jurisdiction over the state law claims even absent the TSCA amendment based on two circumstances. First, all of the actions in this MDL are part of a large case or controversy involving MTBE, in which the court undoubtedly has original jurisdiction over some of the cases. Second, in late December 2003 and January 2004, defendants filed thirteen declaratory judgment actions in federal court, asserting federal preemption, and naming the plaintiffs in the MTBE actions as declaratory judgment defendants. Defendants dismissed these actions over three years later, in June 2007, during the briefing of the instant motion. Because the Court had jurisdiction over these actions, plaintiffs argue that the Court has supplemental jurisdiction over the Suffolk County action under section 1367 as part of the same case or controversy. See Achtman, 464 F.3d at 336 (holding that section 1367 gives a federal court jurisdiction over an action related to another action where the court had original jurisdiction so long as they are part of the same case or controversy). Because I find that this court has original jurisdiction based on TSCA there is no need to address these arguments at this time. [136] 15 U.S.C. ง 2619(a) ("Any civil action under paragraph (1) shall be brought in the United States district court for the district in which the alleged violation occurred . . ." (emphasis added)). See also 8/23/07 Tr. at 76 (plaintiffs' counsel noting that even if the state claims were remanded, the parties "would still be here on some of our claims on the TSCA claims"). [137] See City of Chicago v. International Coll. of Surgeons, 522 U.S. 156, 173, 118 S.Ct. 523, 139 L.Ed.2d 525 (1997) ("The statute thereby reflects the understanding that, when deciding whether to exercise supplemental jurisdiction, a federal court should consider and weigh in each case, and at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity." (quotation omitted)); Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1191 (2d Cir.1996) (holding that the court, "having presided over the case since April 6, 1994, and having dismissed Nowak's federal claim only nine days before it was set for trial, acted well within his discretion in exercising supplemental jurisdiction over Nowak's related state causes of action"). [138] Purgess v. Sharrock, 33 F.3d 134, 138 (2d Cir.1994) (quoting 28 U.S.C.A. 1367, Practice Commentary (1993) at 835). Accord Nowak, 81 F.3d at 1191-92 (same)'. [139] Section 1367(c)(3) and 1367(c)(4) are not relevant. The Court has not dismissed the federal claim, and no exceptional circumstances are present that would counsel in favor of declining jurisdiction. To the contrary, as discussed below, the exceptional circumstances of this case point in favor of exercising jurisdiction. [140] In re MTBE, 341 F.Supp.2d at 361-62. This is not the only time the Court has applied that reasoning. See In re MTBE, 399 F.Supp.2d at 355 (where a state law action, which was not necessarily removable on its own as a federal officer case, was consolidated with a federal officer action, the Court exercised supplemental jurisdiction because the state law claim "does not raise especially novel or complex issues of state law. Indeed, the claims are typical of the claims in the rest of the consolidated MTBE cases pending before this court" and where retaining jurisdiction would promote judicial economy, and prevent duplication of effort and inconsistent judgments, and there were no compelling reasons to decline jurisdiction). [141] See supra note 8 (discussing the state law issues already reached by this Court). [142] See Def. Mem. at 23-24. [143] Id. at 23. [144] Marathon Ashland's Memorandum of Law In Opposition to Plaintiffs' Motion for Remand ("Marathon Mem."), attached as Ex. 1 to Pl. Mem., at 11, 12. Many of the defendants also joined in filing a brief in opposition to plaintiffs' motion to remand. See Response of Certain Defendants to Plaintiffs' Motion to Remand ("Certain Def. Mem."), dated May 28, 2004, attached as Ex. 4 to Pl. Mem. It is startling at best to compare the words that these "certain defendants" (listed at the end of this paragraph) wrote in 2004 with their words today. These defendants asserted and discussed at length four interests in federal jurisdiction over this case: "Protection Against Liability and Preservation of the Federal System," "Efficiency," "Consistency," and "Fundamental Fairness." Certain Def. Mem. at 2. The brief concludes: Plaintiffs' arguments that the issues in this case are novel or unique, and therefore that they are only suited for resolution in state court, ring hollow in light of the fact that the very same issues are presented (and will be decided) in the other MTBE cases now before this Court. Under the MDL statute, this Court is charged with a special duty to provide for "the convenience of parties and witnesses," and "to promote the just and efficient conduct of [these] actions." 28 U.S.C. 1407(a). That duty, along with the more general obligation of federal courts to exercise their jurisdiction, combine to make jurisdiction in this case singularly, appropriate. Id. at 11. The certain defendants included: "Amerada Hess Corporation, Atlantic Richfield Company, BP Corporation North America Inc., BP Products North America Inc., Chevron U.S.A., Inc., CITGO Petroleum Corporation, El Paso CGP Company, Exxon Mobil Corporation, Motiva Enterprises LLC, ConocoPhillips Company, Shell Oil Company, Shell Oil Products US, Sunoco, Inc. (R & M), and Valero Marketing and Supply Company." See id. at 1. "These defendants comprise all of the originally-named defendants in the Suffolk County case, with the exception of Lyondell Chemical Company." Id. [145] See In re MTBE, No. 00 Civ. 1898, MDL 1358 (S.D.N.Y. Aug.16, 2007); In re MTBE Products Liability Litigation, 447 F.Supp.2d 289 (S.D.N.Y.2006); In re MTBE Products Liability Litigation, 415 F.Supp.2d 261 (S.D.N.Y.2005); In re MTBE Products Liability Litigation, 379 F.Supp.2d 348 (S.D.N.Y. 2005) (deciding whether market share liability applies under the law of fifteen states: Connecticut, Florida, Illinois, Indiana, Iowa, Kansas, Louisiana, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Vermont, Virginia, and West Virginia). [146] Borough of West Mifflin v. Lancaster, 45 F.3d 780, 780 (3d Cir.1995). [147] See Gibbs, 383 U.S. at 726, 86 S.Ct. 1130. [148] See supra note 8. [149] "It is true that the state claims here outnumber the federal claims. The `substantially predominate' standard, however, is not satisfied simply by a numerical count of the, state and federal claims the plaintiff has chosen to assert on the basis of the same set of facts." Borough of West Mifflin, 45 F.3d at 789. Rather, determination of whether to exercise the exception of section 1367(c)(2) requires "an interest-sensitive analysis rather than a `numerical count' of state and federal claims.'" Luongo v. Nationwide Mut. Ins. Co., No. 95 Civ. 3190, 1996 WL 445365, at 5 (S.D.N.Y. Aug.7, 1996) (citing Borough of West Mifflin, 45 F.3d at 789) (holding that the court had original jurisdiction over Title VII claim and supplemental jurisdiction over state claims of intentional infliction of emotional distress and sexual battery claims against only one of the individual defendants because the claims "require many of the same witnesses, much of the same evidence, and determination of many of the same facts."). See also Morris v. Yale Univ. Sch. of Med., No. 05 Civ. 848, 2006 WL 908155, at 3 (D.Conn. Apr. 4, 2006). [150] Neither the parties nor this Court has been able to locate a single case in which an appellate court held that a district court exceeded its discretion in declining to remand state law claims once it found that the state and federal claims arose from the same case or controversy and that the principles of economy, convenience, fairness and comity would be best served by exercising supplemental jurisdiction. [151] Defendants point to the fact that the remedies sought by plaintiffs are not the same under the federal and state claims but this factor alone does not warrant a remand. See, e.g., Wilson v. PFS LLC, No. 06 Civ. 1046, 2006 WL 3841517, at 6 (S.D.Cal. Nov. 2, 2006); Chavez v. Suzuki, No. 05 Civ. 1569, 2005 WL 3477848, at 2 (S.D.Cal. Nov. 30, 2005); Pettis v. Brown Group Retail, Inc., 896 F.Supp. 1163 (N.D.Fla.1995). [152] See supra note 8 and accompanying text. [153] See, e.g., Mauro v. Southern New England Telecomms., Inc., 208 F.3d 384, 388 (2d Cir. 2000) (affirming district court's exercise of supplemental jurisdiction over state law claims after the federal claims were dismissed on summary judgment); Nowak, 81 F.3d at 1191-92 (affirming district court's exercise of supplemental jurisdiction over the related state causes of action where federal claim was dismissed on the eve of trial); Purgess, 33 F.3d at 138-39 (affirming district court's exercise of supplemental jurisdiction where the last federal claim was dismissed after all the evidence was submitted to the jury). Indeed,. many courts have retained, supplemental jurisdiction even where the jurisdiction-conferring claims have been dismissed at a relatively early stage of the litigation. See, e.g., New York Transp., Inc. v. Naples Transp., Inc., 116 F.Supp.2d 382, 390 (E.D.N.Y.2000) (retaining supplemental jurisdiction over state law claims after a Rule 12(b)(6) dismissal of the federal claims); Ackerman v. National Proper ty Analysts, Inc., 887 F.Supp. 494, 510 (S.D.N.Y.1992) (same). Here, of course, the federal TSCA claims have not been dismissed, which further weighs against declining to exercise supplemental jurisdiction over the state law claims.	{ "pile_set_name": "FreeLaw" }
368 N.E.2d 1175 (1977) Bryan OVERPECK, Appellant, v. John E. DOWD, Administrator of the Estate of Alice Hendrixson, Absentee, Helen Lucille Kimball, Dustin Bruce Kimball, and State of Indiana, Appellees. Bryan Overpeck, Appellant, v. JOHN E. DOWD, Administrator of the Estate of Laura Hendrixson, Absentee, Alice Marian (Arrington) Ibey, Amy Elizabeth (Arrington) Muhlebach, Ester T. (Arrington) Chelte, and State of Indiana, Appellees. Bryan Overpeck, Appellant, v. John E. DOWD, Administrator of the Estate of Ida Hendrixson, Absentee, Mary Louise (Hanna) Carpenter, Isleta Marie Hanna, Marion Willard Eaton, and State of Indiana, Appellees. No. 1-1275A216. Court of Appeals of Indiana, First District. November 4, 1977. *1176 Clelland J. Hanner, James P. Buchanan, John B. McFaddin, Rockville, for appellant. Ted B. Lewis, Samuel A. Fuller, Stewart, Irwin, Gilliom, Fuller & Meyer, Indianapolis, John S. Grimes, Indianapolis, for appellees. ON APPELLEES' MOTION FOR MODIFICATION OF JUDGMENT AND PETITION FOR REHEARING ROBERTSON, Chief Judge. The appellee John E. Dowd, Administrator of the Estates of Alice Hendrixson, deceased, Laura Hendrixson, deceased, and Ida Hendrixson, deceased, has petitioned this Court to modify its original opinion, and we do so by stating that our holding is modified by taking into consideration IC 1971, XX-X-XX-XX (Burns Code Ed.). That section recognizes as valid the sale of the property in question and the authority of the personal representative to make the sale, and we so hold. The dispute now revolves about the disposition of the proceeds of the sale. The petition for rehearing filed by appellees Helen Lucille Kimball, Dustin Bruce Kimball, Alice Marian (Arrington) Ibey, Amy Elizabeth (Arrington) Muhlebach, Ester T. (Arrington) Chelte, Mary Louise (Hanna) Carpenter, Isleta Marie Hanna and Marion Willard Eaton is denied. LOWDERMILK and GARRARD, JJ., concur.	{ "pile_set_name": "FreeLaw" }
COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-13-00614-CR ERIC LIMON APPELLANT V. THE STATE OF TEXAS STATE ---------- FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 1330739D ---------- MEMORANDUM OPINION1 ---------- A jury convicted Appellant Eric Limon of burglary of a habitation and assessed his punishment at twenty-three years’ confinement. In one issue, Limon argues that the trial court erred by denying his motion for mistrial when the latent fingerprint examiner used hearsay from another latent fingerprint examiner to enhance her credibility. Specifically, Limon argues that 1 See Tex. R. App. P. 47.4. when the latent fingerprint examiner testified that someone else in the crime scene investigators’ unit verified her analysis and conclusion that the prints found in the complainant’s home were Limon’s; that this bolstered her credibility; and that because the case turned on her credibility, denying the motion for mistrial was harmful error. The State responds that this complaint is not preserved because the same evidence was admitted later without objection. Police lifted two latent fingerprints from one of the bedrooms of the burglarized home and mounted them on fingerprint cards. At trial, Anna-Dia Tricksey, a latent fingerprint examiner, explained to the jury what a latent print was and described what examiners look for when determining if two prints are a match. She further testified that she had compared Limon’s fingerprints to those found on one of the fingerprint cards and that they matched. The following exchange occurred during Tricksey’s direct examination: [State]: As a matter, I guess, of procedure there with the Arlington Police Department, any time a latent print examiner such as yourself makes a comparison or an identification like what we see in State’s Exhibit 18 and 19, is that reviewed by anybody else there with the latent print unit to verify your conclusions? [Witness]: Yes, sir. [State]: Can you kind of explain how that’s all done, what the procedure is, and how you go about having someone verify? [Witness]: Yes. The procedure is called ACEV, which is analysis comparison and evaluation, which is what I did in this case. And the V is verification. In our unit, we do 100 percent verification, which means we verify not only the identifications or the matches, but also any exclusions, insufficient quality, and inconclusives— 2 inconclusive opinions. In this case, CSI, or the crime scene, did the verification of this print. [Emphasis added.] [Defense counsel]: Your honor, I’m going to object to that as hearsay. The Court: Sustained .... [Defense counsel]: I’m going to ask the jury as required by law to disregard that. The Court: Jury will disregard the hearsay statement. [Defense counsel]: And as required by law, I’ll ask for a mistrial. The Court: That’s denied. [State]: But basically, without getting into her opinions, the comparisons and the analysis that you did was looked at by Shannon Reeves[2] also? [Witness]: That’s correct. During Tricksey’s cross-examination, defense counsel elicited the following testimony: [Defense counsel]: What would happen sometimes—what happens sometimes when two experts disagree with one another? Why would that take place in a situation like this? [Witness]: In this case it didn’t, so I’m not sure. . . . [Emphasis added.] 2 Reeves is another Arlington Police Department latent print examiner. 3 To preserve error, a party must continue to object each time the objectionable evidence is offered. Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003); Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003) (citing Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991)); Clay v. State, 361 S.W.3d 762, 766 (Tex. App.—Fort Worth 2012, no pet.). As set out above, before Tricksey’s testimony drew the hearsay objection sustained by the trial court, she testified, without objection, that another person verifies all conclusions regarding the comparison or identification of a print. Following Limon’s sustained hearsay objection, Tricksey testified, without objection, that Reeves, another latent print examiner, had reviewed her work. And on cross-examination, defense counsel’s question elicited a response from Tricksey that another expert had agreed with her findings. Because Limon did not object each time the State offered the objectionable evidence, he has not preserved this complaint for our review. See Tex. R. App. P. 33.1(a)(1); Geuder, 115 S.W.3d at 13. Therefore, we overrule Limon’s sole issue and affirm the trial court’s judgment. /s/ Bob McCoy BOB MCCOY JUSTICE PANEL: WALKER, MCCOY and GABRIEL, JJ. DO NOT PUBLISH Tex. R. App. P. 47.2(b) DELIVERED: November 20, 2014 4	{ "pile_set_name": "FreeLaw" }
174 B.R. 271 (1994) In re LIFSCHULTZ FAST FREIGHT CORP., Debtor. Bruce E. de'MEDICI, Trustee for Lifschultz Fast Freight Corp., Plaintiff, v. FDSI MANAGEMENT GROUP, Defendant. Nos. 94 C 4718, 90 B 21673 and 92 A 841. United States District Court, N.D. Illinois, Eastern Division. October 26, 1994. 272 Bruce E. de'Medici, Riordan, Larson, Bruckert & Moore, Chicago, IL, trustee/plaintiff and counsel for trustee/plaintiff. Robert B. Walker, Joseph L. Steinfeld, Jr., John T. Siegler, Sims, Walker & Steinfeld, P.C., Washington, DC, for trustee/plaintiff. William D. Brejcha, Abramson & Fox, Chicago, IL, Robert J. Gallagher, M. Shields Gallagher & Gallagher, P.C., Northampton, MA, for defendant. MEMORANDUM OPINION KOCORAS, District Judge: This matter is before the court on the plaintiff trustee's objections to the Bankruptcy Judge's proposed findings of fact and conclusions of law, granting the defendant's motion for summary judgment. For the reasons that follow, we overrule the plaintiff's objections and affirm the proposed findings of the bankruptcy judge. BACKGROUND The background of this Chapter 7 case is fully recounted in Bankruptcy Judge Barliant's opinion dated July 1, 1994. As such, our recitation of the facts will be brief. The debtor, Lifschultz Fast Freight Corporation ("Lifschultz"), was a trucking company. The defendant, FDSI Management Group ("FDSI"), was a customer of Lifschultz. After Lifschultz filed for bankruptcy, its appointed Trustee in Bankruptcy, Bruce E. de'Medici (the "trustee") filed suit against FDSI to collect so-called "undercharges" which were allegedly owed to Lifschultz. These undercharges represent the difference between the applicable tariff rate that Lifschultz was legally obligated to charge and the rate that Lifschultz actually charged FDSI.[1] The defendant moved for summary judgment, asserting that under the Negotiated Rates Act of 1993 (the "NRA"), Pub.L. No. 103-180, 107 Stat. 2044 (1993), liability for undercharges of "small business concerns" such as FDSI was eliminated. See 49 U.S.C. § 10701(f)(9). The bankruptcy court agreed with the defendant's position and recommended that we enter judgment in defendant's favor. The plaintiff trustee objects to the proposed findings of the bankruptcy court. 273 DISCUSSION The plaintiff trustee objects to the bankruptcy court's proposed findings. Essentially, the plaintiff argues that, contrary to the findings of the bankruptcy court, subsection 9 of 49 U.S.C. § 10701(f) does not "unconditionally extinguish a small-business concern's liability to pay undercharges." Proposed Findings at 10. The plaintiff asserts that the bankruptcy court's interpretation of § 10701(f) of the NRA was in error, pointing to plain language and legislative history to support the trustee's proposition. According to the plaintiff, § 10701(f)(9), which expressly relieves small business concerns of liability from undercharges, must be read in conjunction with the "In general" provisions set forth in § 10701(f)(1). Having failed to consider § 10701(f)(1), the plaintiff contends that the bankruptcy court misread the statute. The NRA was enacted to "alleviate the explosion of freight motor carrier undercharge litigation." Gross Common Carrier, Inc. v. A.B. Dick Co., 861 F.Supp. 638, 640 (N.D.Ill.1993). Section 10701(f) of the NRA sets forth the procedures for resolving claims involving unfiled, negotiated transportation rates. In pertinent part, § 10701(f)(1) provides: (1) In general. When a claim is made by a motor carrier of property . . ., or by a party representing such a [carrier] regarding the collection of rates or charges for such transportation in addition to those originally billed and collected by the [carrier] for such transportation, the person against whom the claim is made may elect to satisfy the claim under the provisions of paragraph (2), (3), or (4) of this subsection, upon showing that (A) the carrier or freight forwarder is no longer transporting property or is transporting property for the purpose of avoiding the application of this subsection; and. . . . 49 U.S.C. § 10701(f)(1). Paragraphs (2), (3), and (4) of § 10701(f) then set forth settlement percentages which a qualifying defendant shipper may require a non-operating carrier (or its trustee) to accept in return for a complete satisfaction of the claim. Paragraph (9) of § 10701(f) pertains to claims involving small-business concerns and provides: (9) Claims involving small-business concerns, charitable organizations, and recyclable materials. Notwithstanding paragraphs (2), (3), and (4), a person from whom the additional legally applicable and effective tariff rate or charges are sought shall not be liable for the difference between the carrier's applicable and effective tariff rate and the rate originally billed and paid (A) if such person qualifies as a small-business concern under the Small Business Act (15 U.S.C. 631 et seq.),. . . . 49 U.S.C. § 10701(f)(9). The plaintiff asserts that a proper interpretation of § 10701(f) necessitates that § 10701(f)(9) be read in conjunction with the "In general" provisions of § 10701(f)(1). The plaintiff further contends that, as such, an application of § 10701(f)(9) in the present case, conflicts with the anti-forfeiture provisions of the Bankruptcy Code. See 11 U.S.C. §§ 541(c)(1) and 363(l). The plaintiff stresses that the applicability of the "procedures" set forth in ¶¶ (2)-(4) of 49 U.S.C. § 10701(f) depends upon the cessation of the carrier's operations. The plaintiff trustee contends that conditioning the application of the NRA on the operating status of a carrier is the equivalent of conditioning the application of the NRA on the carrier's financial condition (because a non-operating carrier presumably generates no revenue). Because such a condition would violate the anti-forfeiture provisions of the Bankruptcy Code,[2] the trustee concludes that the NRA is unenforceable against a bankruptcy trustee. 274 The bankruptcy court, however, did not agree with the trustee's "conditional" interpretation of § 10701(f). The bankruptcy court discounted the trustee's argument, finding that the defendant was not seeking to apply the ¶¶ (2)-(4) "procedures" for resolving claims under § 10701(f). Rather, the defendant was invoking ¶ (9) of that subsection, which "unconditionally extinguishes a small-business concern's liability to pay undercharges." Proposed Findings at 10. Finding that ¶ (9) operates independently of ¶ (1), it did not therefore rely upon the debtor's insolvency or financial state or operating status. Id. As such, the bankruptcy court found the trustee's anti-forfeiture provision argument to be inapplicable.[3]Id. at 10-11. This court agrees with the bankruptcy court's reading of the statute. In Hoarty v. Midwest Carriers Corp. (In re Best Refrigerated Express), the court, after a careful examination of § 10701(f), concluded that the "no longer transporting property" provision of the Act did not apply to the application of the small-business defense enumerated in ¶ (9). Hoarty v. Midwest Carriers Corp. (In re Best Refrigerated Express), 168 B.R. 978, 984-85 (Bankr.D.Neb.1994). In so holding, the Best Refrigerated court looked to the language of the statute. Notably, the court noted that nothing exists in either paragraph (1) or (9) which would indicate that the "no longer transporting property" provision of § 10701(f)(1)(A) must be met in order to claim the ¶ (9) small-business exemption. Id. at 984. Had Congress intended for these provisions to apply to the small-business defense, it could have either incorporated them by reference or set them forth in the body of the relevant paragraphs. Congress chose to do neither. We hold that the plain language of the statute supports the finding that the "In general" provisions of ¶ (1) do not apply to the small business defense as set forth in ¶ (9) of § 10701(f). As such, ¶ (9) operates independently of ¶ (1) and unconditionally relieves small-business concerns from liability for undercharges. Given that no material facts are in dispute, the bankruptcy court correctly found that the defendant, as a small-business concern, was exempt from undercharge liability under 49 U.S.C. § 10701(f)(9). Summary judgment in favor of the defendant, FDSI, was therefore appropriate. The Proposed Findings of Fact and Conclusions of Law of the bankruptcy court are affirmed. The plaintiff's objections are overruled. CONCLUSION For the reasons set forth above, we affirm the bankruptcy court's Proposed Findings of Fact and Conclusions of Law. The defendant's motion for summary judgment is granted. The plaintiff's objections are overruled. PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW I. INTRODUCTION The Debtor in this chapter 7 case, Lifschultz Fast Freight Corporation, was a trucking company operating under the Interstate Commerce Act (the "ICA"). The Defendant, FDSI Management Group ("FDSI"), was a customer of the Debtor. This adversary proceeding is an action by the 275 Trustee to collect so-called "undercharges" that is, the difference between the applicable tariff rate that the Debtor was legally obligated to charge and the rate that the Debtor actually charged FDSI. FDSI has moved for summary judgment, arguing that in the Negotiated Rates Act of 1993 (the "NRA"), Pub.L. No. 103-180, 107 Stat. 2044 (1993), Congress eliminated the liability of "small-business concerns" for undercharges. FDSI further asserts that it qualifies as a small-business concern. The court agrees with FDSI's position and recommends that the district court enter judgment in its favor. II. JURISDICTION The bankruptcy court has jurisdiction over this adversary proceeding pursuant to 28 U.S.C. §§ 157 & 1334. This proceeding is not a core proceeding, but it is related to a case under title 11. See In re Bulldog Trucking, Inc., 173 B.R. 517, 525 (W.D.N.C. 1994) (concluding that, with regard to a bankruptcy trustee's adversary proceeding to recover alleged undercharges from a shipper, "this matter has been determined by the undersigned to be a matter related to a case under Title 11"). But see In re Best Refrigerated Express, Inc., 168 B.R. 978, 980 (Bankr.D.Neb.1994) (concluding that, under identical circumstances, "[t]his is a core proceeding as defined by 28 U.S.C. § 157(b)(2)(A) and (E)"). Pursuant to the option afforded by Fed. R.Bankr.P. 7008(a), FDSI has chosen not to consent to the entry of final orders or judgment by the bankruptcy judge. Accordingly, this memorandum constitutes this court's proposed findings of fact and conclusions of law, which are hereby submitted to the district court for the entry of a final judgment. 28 U.S.C. § 157(c)(1); Fed.R.Bankr.P. 9033. III. BACKGROUND The evolution of this case "is typical of many similar cases appearing since the 1980 deregulation of the trucking industry that have been filed by bankruptcy trustees of motor common carriers, as well as by motor common carriers who are themselves debtors-in-possession." Bulldog, 173 B.R. at 526. A. Historical Perspective Briefly, the standard scenario for this type of case is as follows: A motor carrier (such as the Debtor) publishes its rates (the "filed rates") in tariffs filed with the Interstate Commerce Commission (the "ICC"), as it is required to do by the ICA, codified at 49 U.S.C. §§ 10101-11917. The carrier, however, negotiates lower rates (the "negotiated rates") with its customers, the shippers (such as FDSI). The carrier bills, and the shippers pay, the lower negotiated rates. Sometime later the carrier encounters financial difficulties and perhaps finds itself, voluntarily or involuntarily, under the protection of a bankruptcy court. The carrier or its successor, the bankruptcy trustee, seeks to recover from the shippers the difference between the negotiated rates and the filed rates. This difference is termed an "undercharge." Before 1990, shippers who found themselves in this predicament routinely asserted the defense that the carrier's or the trustee's attempt to collect these undercharges constitutes an "unreasonable practice." The ICC generally supported this defense; in fact, the ICC's position came to be known as the "negotiated rate doctrine." In Maislin Indus., U.S., Inc. v. Primary Steel, Inc., 497 U.S. 116, 130, 110 S.Ct. 2759, 2768, 111 L.Ed.2d 94 (1990), however, the Supreme Court held that the negotiated rate doctrine is contrary to the ICA and is, therefore, invalid. But later, in Reiter v. Cooper, ___ U.S. ___, ___, 113 S.Ct. 1213, 1217, 122 L.Ed.2d 604 (1993), the Supreme Court ruled that shippers may assert that the filed rates themselves are unreasonable. As a matter of procedure, the Court permitted shippers to raise a counterclaim for recoupment of an amount equal to the undercharge, thus asserting that the negotiated rate was the reasonable one. Congress enacted the NRA against this historical backdrop. See Gross Common Carrier, Inc. v. A.B. Dick Co., 861 F.Supp. 638, 640-41 (N.D.Ill.1994). The NRA "is intended to alleviate the explosion of freight motor carrier undercharge litigation." Id. at 640. 276 B. Procedural History of This Adversary Proceeding[1] The court entered an order for relief under chapter 11 in the underlying involuntary bankruptcy case on December 13, 1990. Thereafter, the Debtor ceased operations, and the case was converted to a case under chapter 7. Bruce E. de'Medici, the chapter 7 Trustee, filed numerous adversary complaints in this court in an attempt to collect undercharges from shippers who had utilized the Debtor's services. In this proceeding, the Trustee claims $7,992.27 in undercharges from FDSI. On July 23, 1993, this adversary proceeding was stayed pending the ICC's resolution of FDSI's recoupment counterclaim. In re Lifschultz Fast Freight Corp., 157 B.R. 397 (Bankr.N.D.Ill.1993). The ICC subsequently held its proceeding in abeyance pending this court's decision regarding FDSI's instant motion for summary judgment based upon the newly enacted NRA. FDSI Management Group, No. 41055 (ICC Feb. 4, 1994). IV. ANALYSIS A. Summary Judgment 1. Standard of Review In order to succeed in a motion for summary judgment, the moving party must "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).[2]See also Damnjanovic v. United States, 9 F.3d 1270, 1272 (7th Cir.1993) ("Taking all facts and inferences in favor of the non-moving party, the question is whether a genuine issue of material fact exists to preclude judgment as a matter of law for the moving party."); Gross Common Carrier, Inc. v. Baxter Healthcare Corp., 851 F.Supp. 313, 314 (N.D.Ill.1994) ("Summary judgment will be granted where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law."). None of the facts relevant to the resolution of this summary judgment motion is in dispute: The Debtor was a motor carrier subject to the jurisdiction of the ICC. The Debtor provided transportation services to FDSI. The Debtor billed and FDSI paid the negotiated rate instead of the filed rate, and the value of the undercharges for the services that the Debtor provided to FDSI is $7,992.27.[3] The Trustee's adversary proceeding against FDSI for undercharges was pending on the date that the NRA was enacted. FDSI is a small-business concern for the purposes of the NRA. With regard to this last finding, the NRA refers to the Small Business Act (the "SBA"), codified at 15 U.S.C. §§ 631-697c, for the definition of small-business concerns. 49 U.S.C. § 10701(f)(9)(A). The SBA, in turn, does not define the criteria for determining what constitutes a small business in the common motor carrier industry; it merely sets forth guidelines for administrative agencies to make such determinations. 15 U.S.C. § 632. The Code of Federal Regulations . . ., 13 C.F.R. § 121.601, however, does provide specific direction in this matter in a table of "Standard Industrial Classification" [SIC] codes and corresponding industrial size standards for small-business programs. Lewis v. H.E. Wisdom & Sons, Inc., No. 93 C 0985, 1994 WL 110659, at 4 (N.D.Ill. Mar. 31, 1994) (brackets in original). The president of FDSI signed an affidavit asserting that FDSI is a small-business concern under SIC classification code 4731. The Trustee has not disputed this assertion. 277 2. Applicability of the Negotiated Rates Act of 1993 Section 2(a) of the NRA amends 49 U.S.C. § 10701 by adding a new subsection (f), which is entitled "Procedures for Resolving Claims Involving Unfiled, Negotiated Transportation Rates." Paragraph (9) of 49 U.S.C. § 10701(f), as amended, provides in pertinent part: (9) Claims involving small-business concerns, charitable organizations, and recyclable materials. Notwithstanding paragraphs (2), (3), and (4), a person from whom the additional legally applicable and effective tariff rate or charges are sought shall not be liable for the difference between the carrier's applicable and effective tariff rate and the rate originally billed and paid (A) if such person qualifies as a small-business concern under the Small Business Act (15 U.S.C. 631 et seq.)[.] * * * * * Accordingly, since FDSI is a small-business concern, if the NRA, and in particular the "small-business concern defense" codified at 49 U.S.C. § 10701(f)(9), applies to the instant adversary proceeding, then FDSI is entitled to summary judgment as a matter of law because any liability to the Trustee for undercharges is extinguished. The Trustee asserts that the small-business concern defense is ineffective against him for two reasons. First, according to the Trustee, this provision conflicts with the so-called "anti-forfeiture provisions" of the Bankruptcy Code, 11 U.S.C. §§ 541(c)(1) and 363(l),[4] especially when NRA § 9 (quoted below at part IV.A.2.b) is taken into account. Second, the Trustee maintains that the application of the small-business concern defense violates the automatic stay provision of the Code, 11 U.S.C. § 362(a)(3). a. Anti-Forfeiture Provisions of the Bankruptcy Code In general, when an entity files a bankruptcy petition, a bankruptcy estate is created, and all of that entity's pre-petition real and personal property becomes property of the estate. See 11 U.S.C. § 541(a)(1). Section 541(c)(1) of the Code invalidates any contractual or nonbankruptcy statutory provision that would otherwise restrict the transfer of the debtor's property to the bankruptcy estate.[5] Similarly, a trustee in bankruptcy is vested with broad authority to use, sell, or lease property of the estate, either in the ordinary course of business, see 11 U.S.C. § 363(c), or outside the ordinary course of business after notice and a hearing, see 11 U.S.C. § 363(b). Section 363(l) of the Code parallels § 541(c)(1) by invalidating any contractual or statutory provision that would otherwise restrain the trustee in exercising this power.[6] The Trustee contends that these two provisions of the Code, in conjunction with NRA § 9, render NRA § 2(a) inapplicable here because 1) "the NRA is a `non-bankruptcy law'"; 2) NRA § 2(a) "purport[s] to work a forfeiture, modification and termination of the right of specified motor carriers and their trustees to recover freight undercharges"; 278 and 3) "the applicability of the NRA is conditioned on the financial condition of the carrier." Pl.'s Mem. in Supp. of Pl.'s Opp'n to Def.'s Mot. for Summ. J., at 6. The Trustee's argument fails on point 3 because the NRA provision extinguishing a small-business concern's liability for undercharges is not triggered by the carrier's insolvency or financial condition. The NRA provides that a shipper may elect to apply that statute's "procedures" for resolving claims, codified at 49 U.S.C. §§ 10701(f)(2)-(4), "upon showing that (A) the carrier . . . is no longer transporting property or is transporting property for the purpose of avoiding the application of this subsection. . . ." 49 U.S.C. § 10701(f)(1). Thus, the applicability of the "procedures" set forth in ¶¶ (2)-(4) of 49 U.S.C. § 10701(f) is conditioned upon the cessation of the carrier's operations. The Trustee contends that a non-operating carrier generates no revenue, and this lack of revenue directly affects a carrier's financial condition. Consequently, the Trustee argues, conditioning the application of the NRA on the operating status of a carrier is the same as conditioning its application on a carrier's financial condition. Such a condition violates the Code's anti-forfeiture provisions. Therefore, the Trustee concludes, the NRA is unenforceable against a bankruptcy trustee.[7] What the Trustee overlooks is that FDSI is not seeking to apply the "procedures" for resolving claims appearing at ¶¶ (2)-(4) of 49 U.S.C. § 10701(f); instead, FDSI is invoking ¶ (9) of that subsection, which unconditionally extinguishes a small-business concern's liability to pay undercharges. That is, the provision upon which FDSI relies is not conditioned upon the Debtor's insolvency or financial state or operating status. Therefore, the Trustee's anti-forfeiture provision argument, which applies only when a forfeiture is triggered by the Debtor's insolvency or financial condition, is inapplicable here. See Best Refrigerated, 168 B.R. at 984-85 ("Had Congress intended the `no longer transporting property' clause of (f)(1)(A) to apply to (f)(9), the small business concern paragraph, it would have listed paragraph (9) with (2), (3) and (4) under Section 10107(f)(1), as it did under 10701(f)(7)."). b. Section 9 of the Negotiated Rates Act The Trustee's position is not strengthened by the application of NRA § 9. This section, which is entitled "Limitation on Statutory Construction," provides as follows: Nothing in this Act (including any amendment made by this Act) shall be construed as limiting or otherwise affecting application of title 11, United States Code, relating to bankruptcy; title 28, United States Code, relating to the jurisdiction of the courts of the United States (including bankruptcy courts); or the Employee Retirement Income Security Act of 1974. Section 9 of the NRA merely provides that if a conflict exists between the NRA and the Bankruptcy Code, then the Code takes precedence. There is no such conflict here, so NRA § 9 does not affect the court's decision. c. Automatic Stay Provision of the Bankruptcy Code The Trustee's other argument is that FDSI's attempt to invoke the NRA to eliminate FDSI's liability to the Trustee for undercharges is a violation of automatic stay imposed by the Code when a bankruptcy petition is filed. The Code section upon which the Trustee relies provides in pertinent part that "a [bankruptcy] petition . . . operates as a stay, applicable to all entities, of . . . any act . . . to exercise control over property of the estate. . . ." 11 U.S.C. § 362(a)(3). The "property of the estate" to which the Trustee refers is his cause of action against FDSI to collect undercharges. See, e.g., In re Chenoweth, 279 143 B.R. 527, 534 (S.D.Ill.1992) ("Causes of action are among the property interests that become property of a debtor's bankruptcy estate under section 541(a)(1)."), aff'd, 3 F.3d 1111 (7th Cir.1993); In re U.S. Marketing Concepts, Inc., 113 B.R. 487, 490 (Bankr.N.D.Ind.1990) ("The bankruptcy estate extends to include any cause of action that the trustee may be entitled to prosecute against third parties for the benefit of the estate and, ultimately, its creditors."). According to the Trustee, "Allowing [FDSI] to dismiss this action under Section 2 of the NRA would allow [FDSI] to `control' that property because the Trustee would then be prohibited from pursuing those claims." Pl.'s Mem. in Supp. of Pl.'s Opp'n to Def.'s Mot. for Summ.J., at 27. The Trustee's argument misapprehends the scope of the automatic stay. The automatic stay imposed by the Bankruptcy Code is indeed exceedingly broad; it prohibits any entity from taking certain actions, including commencing or continuing litigation affecting the estate. See 11 U.S.C. § 362(a)(1). However, the stay does not prohibit a defendant from asserting an affirmative defense in a bankruptcy trustee's adversary proceeding. Nor does the stay "freeze," as of the date of the bankruptcy petition, the substantive law applying to such an adversary proceeding. Accordingly, the automatic stay does not prohibit the retroactive application of the NRA, and the Trustee's argument fails. B. Other Relief In its motion for summary judgment, FDSI also "ask[s] the Court to allow the Interstate Commerce Commission to continue its determination on this matter, if the order of dismissal is appealed, as challenges to the Act are anticipated, and the Defendant does not want other valid defenses to be wasted." Def.'s Mem. of Law in Supp. of Mot. for Summ.J., at 2. There are a number of problems with this requested relief, including issues of jurisdiction and justifiability. The most significant complication, however, is that the ICC held its proceeding in abeyance specifically in response to a motion by FDSI. If FDSI wishes the ICC to resume its proceeding, then FDSI should seek that relief from the ICC directly. Therefore, it is recommended that the district court deny this relief. V. CONCLUSION While the Trustee's adversary proceeding against FDSI to collect undercharges was pending, Congress enacted the NRA. This statute retroactively absolves FDSI, a small-business concern, from any liability for undercharges. Neither the anti-forfeiture provisions nor the automatic stay imposed by the Code applies to the application of this provision of the NRAFDSI may properly assert the small-business concern defense to the Trustee's proceeding. Therefore, this court recommends that, pursuant to 28 U.S.C. § 157(c)(1), the district court enter judgment in favor of FDSI and deny all other requested relief. DATED: July 1, 1994. ENTERED: /s/ Ronald Barliant Hon. Ronald Barliant Bankruptcy Judge NOTES [1] The facts before us represent the typical scenario for this type of case: A motor carrier (such as the debtor) publishes its rates (the "filed rates") in tariffs filed with the Interstate Commerce Commission (the "ICC"). The carrier, however, negotiates lower rates (the "negotiated rates") with its customers, the shippers (such as FDSI). The carrier bills, and the shippers pay, the lower negotiated rates. At some point thereafter the carrier experiences financial difficulties and finds itself under the protection of a bankruptcy court. The carrier or its successor, the bankruptcy trustee, then seeks to recover from the shippers the difference between the negotiated rates and the filed rates. This difference is termed an "undercharge". Proposed Findings at 3. [2] Section 541(c)(1) of the Bankruptcy Code provides in pertinent part: [A]n interest of the debtor in property becomes property of the estate . . . notwithstanding any provision in . . . applicable nonbankruptcy law (A) that restricts or conditions transfer of such interest by the debtor; or (B) that is conditioned on the insolvency or financial condition of the debtor, on the commencement of a case under this title, or on the appointment of or taking possession by a trustee in a case under this title or a custodian before such commencement, and that effects or gives an option to effect a forfeiture, modification, or termination of the debtor's interest in property. 11 U.S.C. § 541(c)(1). Section 363(l) of the Bankruptcy Code parallels § 541(c)(1) and provides in pertinent part: [T]he trustee may use, sell, or lease property under subsection (b) or (c) of this section . . . notwithstanding any provision in . . . applicable law that is conditioned on the insolvency or financial condition of the debtor, on the commencement of a case under this title concerning the debtor, or on the appointment of or the taking possession by a trustee in a case under this title or a custodian, and that effects, or gives an option to effect, a forfeiture, modification, or termination of the debtor's interest in such property. 11 U.S.C. § 363(l). [3] We note that several courts have expressly rejected the plaintiff's reasoning with respect to the anti-forfeiture argument. See e.g., Jones Truck Lines v. Grinnell Corp. Anvil Prods. Div., 167 B.R. 488, 492-93 (N.D.Ill.1994); Jones Truck Lines v. Alliance Rubber Co., 166 B.R. 691, 693 (W.D.Ark. 1994); Jones Truck Lines v. AFCO Steel, Inc., 849 F.Supp. 1296, 1304-07 (E.D.Ark.1994). On the other hand, only one court has adopted the plaintiff's position. See In re Bulldog Trucking, Inc., 173 B.R. 517, 525 (W.D.N.C.1994). [1] The background of the underlying bankruptcy case is set forth in the following two previously published opinions: In re Lifschultz Fast Freight Corp., 140 B.R. 482, 484 (Bankr.N.D.Ill.1992), and In re Lifschultz Fast Freight Corp., 157 B.R. 397, 398-99 (Bankr.N.D.Ill.1993). [2] Fed.R.Bankr.P. 7056 applies Fed.R.Civ.P. 56 to adversary proceedings. [3] FDSI disputes the existence and value of the purported undercharges. However, these issues are not material because, as discussed below, the NRA eliminates FDSI's liability for any undercharges, regardless of the amount. [4] The subsection letter "(l)" (as in "Lima") of 11 U.S.C. § 363 is typically italicized to distinguish it from the paragraph numeral "(1)" ("one"). [5] 11 U.S.C. § 541(c)(1) provides in pertinent part: [A]n interest of the debtor in property becomes property of the estate . . . notwithstanding any provision in . . . applicable nonbankruptcy law (A) that restricts or conditions transfer of such interest by the debtor; or (B) that is conditioned on the insolvency or financial condition of the debtor, on the commencement of a case under this title, or on the appointment of or taking possession by a trustee in a case under this title or a custodian before such commencement, and that effects or gives an option to effect a forfeiture, modification, or termination of the debtor's interest in property. [6] 11 U.S.C. § 363(l) provides in pertinent part: [T]he trustee may use, sell, or lease property under subsection (b) or (c) of this section . . . notwithstanding any provision in . . . applicable law that is conditioned on the insolvency or financial condition of the debtor, on the commencement of a case under this title concerning the debtor, or on the appointment of or the taking possession by a trustee in a case under this title or a custodian, and that effects, or gives an option to effect, a forfeiture, modification, or termination of the debtor's interest in such property. [7] Only one court has adopted the Trustee's position with respect to this argument. See Bulldog, 173 B.R. at 533-42. Several other courts have expressly rejected this reasoning. See Jones Truck Lines, Inc. v. Grinnell Corp. Anvil Prods. Div., 167 B.R. 488, 492-93 (N.D.Ill.1994); Jones Truck Lines, Inc. v. Alliance Rubber Co., 166 B.R. 691, 693 (W.D.Ark.1994); Jones Truck Lines, Inc. v. AFCO Steel, Inc., 849 F.Supp. 1296, 1304-07 (E.D.Ark.1994); Allen v. ITM, Ltd. South, 167 B.R. 63, 66-67 (M.D.N.C.1994); Jones Truck Lines, Inc. v. Aladdin Synergetics, Inc., 174 B.R. 76, 81 n. 9 (M.D.Tenn.1994).	{ "pile_set_name": "FreeLaw" }
28 So.3d 38 (2008) PHYLLIS LEE v. WALKER BAPTIST MED. CTR. No. 1061329. Supreme Court of Alabama. February 15, 2008. Decision of the Supreme Court of Alabama Without Published Opinion Affirmed.	{ "pile_set_name": "FreeLaw" }
IN THE COURT OF APPEALS OF NORTH CAROLINA No. COA16-330 Filed: 20 December 2016 Henderson County, No. 15 CRS 50922 STATE OF NORTH CAROLINA v. LEONARD PAUL SCHALOW Appeal by defendant from judgment entered 5 November 2015 by Judge Mark E. Powell in Henderson County Superior Court. Heard in the Court of Appeals 3 October 2016. Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde, for the State. Appellate Defender Glenn Gerding, by Assistant Appellate Defender Daniel Shatz, for defendant-appellant. TYSON, Judge. Leonard Paul Schalow (“Defendant”) appeals from judgment entered after a jury convicted him of attempted first-degree murder in 15 CRS 50922. We vacate Defendant’s indictment, conviction, and judgment entered thereon. The original indictment in 14 CRS 50887 was not fatally defective and sufficiently alleged attempted voluntary manslaughter. No manifest necessity existed to declare a mistrial after the jury had been impaneled, and jeopardy attached under the indictment in 14 CRS 50887. Defendant’s subsequent indictment, STATE V. SCHALOW Opinion of the Court prosecution, and conviction in 15 CRS 50992 violated his constitutional right against double jeopardy. U.S. Const. amend. V; N.C. Const. art. I, § 19. I. Background A. Facts Erin Henry Schalow and Defendant were married in 1997 and moved to North Carolina in 2010. Two years later, Mrs. Schalow was hired as a nurse at a long-term adult care facility located in Brevard. Defendant was not working at the time the incidents occurred. Mrs. Schalow testified Defendant assaulted her almost daily from December 2013 to February 2014. Defendant kicked her with hard-toe boots; hit her with walking sticks and an aluminum crutch; and strangled her into unconsciousness at least three times. Defendant also attacked her with a knife at least two times. One of those attacks and injuries caused her to seek medical attention. Many times, their minor son was present in the next room during these attacks. Mrs. Schalow also testified Defendant threatened to torture and kill her. Defendant told her to “make my peace with [their] son and make sure [she] could be there as much as possible for him in the short-term” because he was going to torture and kill her over an extended period of time. Mrs. Schalow’s supervisor and co-workers noticed and inquired about her injuries. Mrs. Schalow explained her injuries were from falling down stairs, -2- STATE V. SCHALOW Opinion of the Court slamming her hand in a car door, or running into a wall. Her co-workers did not believe these explanations, and eventually Mrs. Schalow confided to one co-worker that Defendant had hit her. In late February 2014, Mrs. Schalow arrived at work bleeding from her temple and mouth, both of her eyes were blackened and swollen, her jaw was so swollen she could not talk, and she experienced difficulty walking. At this point, her supervisor called the police. Henderson County Sheriff’s Detective Dottie Parker interviewed Mrs. Schalow, who stated her husband had beaten her the night before. When Detective Parker observed Mrs. Schalow’s injuries, she advised her to go the hospital immediately. Mrs. Schalow was admitted to the hospital with extensive injuries. She remained inpatient at the hospital for three weeks. B. Procedural History Defendant was charged and indicted for attempted murder of Mrs. Schalow in 14 CRS 50887. The caption of that indictment identified the offense charged as “Attempt First Degree Murder.” The body of the indictment alleged “the defendant named above unlawfully, willfully and feloniously did attempt to murder and kill Erin Henry Schalow.” The cause in 14 CRS 50887 was called for trial on 17 March 2015, the jury was impaneled, and the State presented evidence against Defendant. After the jury was -3- STATE V. SCHALOW Opinion of the Court excused following the first day of trial, Judge Powell alerted the parties to the fact the indictment failed to allege “with malice aforethought” as required to charge attempted first-degree murder under the short-form indictment statute, N.C. Gen. Stat. § 15-144. The court cited State v. Bullock, 154 N.C. App. 234, 243-45, 574 S.E.2d 17, 23-24 (2002), appeal dismissed, disc. review denied, 357 N.C. 64, 579 S.E.2d 396, cert. denied, 540 U.S. 928, 157 L. Ed. 2d 231 (2003), in which a similar error was made in an initial indictment for attempted first-degree murder. Judge Powell announced he would hear arguments on the validity of the indictment the following morning. The next morning, the State requested that Judge Powell dismiss the indictment as defective, in order to allow the State to re-indict Defendant in a bill which properly charged attempted murder. Defendant offered up a memorandum of law; repeatedly asserted that jeopardy had attached; and, argued dismissal by the trial court would be improper. Defendant also argued the indictment properly charged the lesser-included offense of attempted voluntary manslaughter and was not fatally defective. Defendant cited State v. Bullock in support of his position asserting the indictment effectively charged attempted voluntary manslaughter. Id. After hearing arguments from the parties, Judge Powell ruled the indictment was fatally defective and the court had not acquired jurisdiction to try the case. He dismissed the indictment and declared a mistrial. Defendant objected to this ruling. -4- STATE V. SCHALOW Opinion of the Court Defendant was subsequently re-indicted in 15 CRS 50922 on 18 May 2015. As with 14 CRS 50887, the caption of 15 CRS 50922 identified the charged offense as “Attempt First Degree Murder.” This indictment alleged “the defendant named above unlawfully, willfully and feloniously did with malice aforethought attempt to murder and kill Erin Henry Schalow by torture.” (emphasis supplied). A box checked on the indictment in 15 CRS 50922 indicated it was a “superseding indictment.” On 22 May 2015, Defendant filed a motion to dismiss 15 CRS 50922, along with a supporting memorandum of law. In his motion and memorandum, Defendant argued his prosecution in 15 CRS 50922 was barred by the double jeopardy protections in the Fifth Amendment to the Constitution of the United States and Article I, Section 19 of the North Carolina Constitution. Defendant’s motion and memorandum addressed and asserted three related grounds. First, there was no fatal defect or variance in the indictment in 14 CRS 50887. Second, the trial court in 14 CRS 50887 abused its discretion in declaring a mistrial. Finally, Defendant argued once jeopardy attached on the dismissed indictment for attempted voluntary manslaughter in 14 CRS 50887, the Double Jeopardy Clause prohibited Defendant from being prosecuted again for the greater offense of attempted murder. On 4 June 2015, Judge Thornburg conducted a hearing on Defendant’s double jeopardy motion and denied Defendant’s motion to dismiss. A written order was -5- STATE V. SCHALOW Opinion of the Court entered on 10 June 2015. Judge Thornburg found Judge Powell had correctly determined the indictment in 14 CRS 50887 was fatally defective and did not abuse his discretion in dismissing the indictment and declaring a mistrial at the previous trial. Judge Thornburg concluded “the law is settled that there is no double jeopardy bar to a second trial when a charge is dismissed because an indictment . . . is defective.” Prior to his second trial, Defendant filed a motion for temporary stay and petition for writ of supersedeas. He requested this Court to stay the proceedings until it resolved the issues in Defendant’s contemporaneously filed petition for writ of certiorari. Defendant’s writ of certiorari requested this Court to stay and reverse Judge Thornburg’s orders denying Defendant’s motion to dismiss and habeas relief. Defendant again asserted the double jeopardy provisions of the North Carolina Constitution and the Constitution of the United States prohibited further prosecution of him pursuant to the new indictment. This Court allowed and entered the temporary stay, but later denied Defendant’s petitions and dissolved the stay “without prejudice to his right to seek relief on appeal from the final judgment.” At the second trial, Defendant again asserted his double jeopardy defense at the outset, and renewed his motion to dismiss on double jeopardy grounds after the close of the evidence. The trial court denied the renewed motion to dismiss. -6- STATE V. SCHALOW Opinion of the Court The jury convicted Defendant of attempted first-degree murder with both premeditation and deliberation and by torture. Defendant was sentenced to a minimum term of 157 months and a maximum term of 201 months. Defendant appeals. II. Jurisdiction Jurisdiction lies in this Court as of right from a final judgment in a superior court. N.C. Gen. Stat. § 7A-27(b)(1) (2015). III. Issues Defendant first argues jeopardy attached when the trial court dismissed the original indictment in 14 CRS 50887 and declared a mistrial absent any manifest necessity, and over Defendant’s objection. Defendant also argues the trial court erred in the subsequent trial by: (1) denying his motion to dismiss at the close of the State’s evidence, where the evidence failed to show he committed any overt act with the intent to kill Mrs. Schalow; (2) allowing Detective Parker’s testimony that she had elevated the charges against Defendant from assault to attempted murder; and, (3) failing to intervene ex mero motu when the prosecutor argued “a lot of thought” went into the decision to charge Defendant with attempted first-degree murder. IV. Standard of Review -7- STATE V. SCHALOW Opinion of the Court This Court reviews indictments alleged to be facially invalid de novo. State v. Haddock, 191 N.C. App 474, 476, 664 S.E.2d 339, 342 (2008). Facially invalid indictments deprive the trial court of jurisdiction to enter judgment in criminal cases. Id. This Court also reviews double jeopardy issues de novo. State v. Baldwin, __ N.C. App. __, __, 770 S.E.2d 167, 170 (2015). A trial court’s decision to declare a mistrial due to manifest necessity is reviewed for abuse of discretion. State v. Sanders, 347 N.C. 587, 595, 496 S.E.2d 568, 573 (1998). V. Sufficiency of an Indictment The State asserts the original indictment in 14 CRS 50887 was fatally defective, because it failed to allege any charge against Defendant. As such, the State argues the indictment did not confer jurisdiction upon the trial court and Defendant’s constitutional right to be protected from double jeopardy was not violated. We disagree. The Constitution of North Carolina provides: “no person shall be put to answer any criminal charge but by indictment, presentment, or impeachment.” N.C. Const. art. 1, § 22. Our Supreme Court has held: [a]n indictment or criminal charge is constitutionally sufficient if it apprises the defendant of the charge against him with enough certainty to enable him to prepare his defense and to protect him from subsequent prosecution for the same offense. The indictment must also enable the court to know what judgment to pronounce in the event of conviction. -8- STATE V. SCHALOW Opinion of the Court State v. Coker, 312 N.C. 432, 434-35, 324 S.E.2d 343, 346 (1984); see Haddock, 191 N.C. App at 476-77, 664 S.E.2d at 342. Generally, courts do not favor quashing an indictment. State v. Greer, 238 N.C. 325, 327, 77 S.E.2d 917, 919 (1953); see N.C. Gen. Stat. § 15-153 (2015) (“[The indictment] shall not be quashed . . . by reason of any informality or refinement, if in the bill or proceeding, sufficient matter appears to enable the court to proceed to judgment.”). A. Short-form Indictment for Attempted Voluntary Manslaughter The North Carolina General Assembly statutorily authorized short-form indictments to provide “a method by which indictments can be certain to be sufficient to withstand constitutional challenges.” State v. McKoy, 196 N.C. App. 650, 656, 675 S.E.2d 406, 411 (2009), appeal dismissed and disc. review denied, 363 N.C. 586, 683 S.E.2d 215 (2009). N.C. Gen. Stat. § 15-144 sets out the requirements for short-form indictments for murder and manslaughter: it is sufficient in describing murder to allege that the accused person feloniously, willfully, and of his malice aforethought, did kill and murder (naming the person killed), and concluding as is now required by law; and it is sufficient in describing manslaughter to allege that the accused feloniously and willfully did kill and slay (naming the person killed), and concluding as aforesaid; and any bill of indictment containing the averments and allegations herein named shall be good and sufficient in law as an indictment for murder or manslaughter, as the case may be. N.C. Gen. Stat. § 15-144 (2015) (emphasis supplied). -9- STATE V. SCHALOW Opinion of the Court In State v. Jones, 359 N.C. 832, 837-38, 616 S.E.2d 496, 499 (2005), our Supreme Court considered whether N.C. Gen. Stat. § 15-144 also permitted the use of a short-form indictment as sufficient to allege attempted first-degree murder. The Supreme Court considered N.C. Gen. Stat. § 15-144 in conjunction with N.C. Gen. Stat. § 15-170. Id. N.C. Gen. Stat. § 15-170 provides a defendant “may be convicted of the crime charged therein or of a less degree of the same crime, or of an attempt to commit the crime so charged, or of an attempt to commit a less degree of the same crime.” N.C. Gen. Stat. § 15-170 (2015) (emphasis supplied). The Jones Court noted that N.C. Gen. Stat. § 15-170 was relevant because “it reflects the General Assembly’s judgment that, for purposes of the indictment requirement, attempt is generally treated as a subset of the completed offense.” Jones, 359 N.C. at 837, 616 S.E.2d at 499. The Court held N.C. Gen. Stat. § 15-144 implicitly authorizes the State to use a short-form indictment to charge attempted first-degree murder. Based upon the principles in Jones, the State could properly use a short-form indictment to charge attempted voluntary manslaughter as a stand- alone offense, or as a lesser included offense to murder. See id. B. Sufficiency of this Indictment under State v. Bullock Defendant argues, while the original indictment omitted the words “with malice aforethought” and failed to properly assert attempted first-degree murder, the language in the original indictment was sufficient to allege the charge of attempted - 10 - STATE V. SCHALOW Opinion of the Court voluntary manslaughter. We agree. In Bullock, the defendant was tried and convicted on attempted first-degree murder. Bullock, 154 N.C. App. at 236, 574 S.E.2d at 18. His indictment for attempted first-degree murder stated: “[t]he jurors for the State upon their oath present that on or about the date of the offense shown and in the county named above the defendant named above unlawfully, willfully and feloniously did attempt to kill and murder Yvonne Bullock.” Id. at 244, 574 S.E.2d at 23. On appeal, the defendant argued the short-form indictment for attempted murder failed to allege “malice aforethought” as expressly required by N.C. Gen. Stat. § 15-144. Id. at 244, 574 S.E.2d at 24. This Court agreed the indictment failed to properly allege attempted first- degree murder, but found that “the indictment sufficiently allege[d] a lesser-included offense.” Id. at 245, 574 S.E.2d at 24. This Court clarified the Bullock indictment sufficiently alleged attempted voluntary manslaughter, as voluntary manslaughter “consists of an unlawful killing without malice, premeditation or deliberation.” Id. As such, this Court did not vacate the indictment in Bullock, but held the proper remedy was to remand the case for resentencing on the lesser-included offense of attempted voluntary manslaughter and entry of judgment thereupon. Id. In State v. Yang, 174 N.C. App. 755, 763, 622 S.E.2d 632, 647 (2005), disc. review denied, 360 N.C. 296, 628 S.E.2d 12 (2006), this Court relied on Bullock to hold - 11 - STATE V. SCHALOW Opinion of the Court the defendant’s indictment, which insufficiently alleged attempted first-degree murder, was sufficient to allege attempted voluntary manslaughter. The Yang court explained that Bullock held “the indictment [in Bullock] did sufficiently allege the lesser-included offense of attempted voluntary manslaughter, notwithstanding the lack of the phrase ‘malice aforethought.’” Id. More recently in Wilson, this Court relied on Bullock to remand the defendant’s case for resentencing on attempted voluntary manslaughter, where the indictment failed to allege attempted first-degree murder, but stated “the defendant named above unlawfully, willfully and feloniously did attempt to murder Timothy Lynch.” State v. Wilson, 236 N.C. App. 472, 474-75, 762 S.E.2d 894, 895-96 (2014). Had this Court concluded, in either Bullock or Wilson, the underlying indictments did not sufficiently allege any offense and were fatally defective, the trial court would have lacked jurisdiction to hear or impose sentences in either case. The appropriate remedy would have been to vacate both defendants’ convictions, and not to remand for resentencing consistent with the lesser-included offense of attempted voluntary manslaughter. The original indictment in 14 CRS 50887 failed to sufficiently allege attempted first-degree murder. However, had the trial proceeded and the impaneled jury returned a guilty verdict on attempted first-degree murder, as in Bullock and Wilson, that indictment would have supported a conviction and judgment sentencing - 12 - STATE V. SCHALOW Opinion of the Court Defendant of attempted voluntary manslaughter. See Bullock, 154 N.C. App. at 245, 574 S.E.2d at 24; Wilson, 236 N.C. App. at 474-75, 762 S.E.2d at 895-96. Additionally, the original indictment apprised Defendant of the charges against him with sufficient certainty to enable him to prepare his defense. See Coker, 312 N.C. at 434-35, 324 S.E.2d at 346. Defendant expressly objected to the mistrial and dismissal of the indictment in 14 CRS 50887. Defendant was prepared to proceed with the trial on the issue of attempted voluntary manslaughter and requested the trial court to proceed on that charge. Once the State’s failure to allege “with malice aforethought” in the original indictment in 14 CRS 50887 was discovered and communicated by Judge Powell, the court should have required the State to dismiss the charge against Defendant or to proceed with the trial on attempted voluntary manslaughter. See State v. Etheridge, 319 N.C. 34, 50, 352 S.E.2d 673, 683 (1987). The indictment also enabled “the court to know what judgment to pronounce in the event of conviction.” Coker, 312 N.C. at 434-35, 324 S.E.2d at 346. Judge Powell was aware of this Court’s holding in Bullock and cited it upon realizing the omission of “with malice aforethought” in the original indictment. See Bullock, 154 N.C. App. at 244, 574 S.E.2d at 24. Based upon Bullock and Wilson, had the trial proceeded on the original indictment in 14 CRS 50887, the jury’s conviction thereon would have supported a judgment and sentence of attempted voluntary manslaughter. See id. at 245, 574 S.E.2d at 24; Wilson, 236 N.C. App. at 474-75, 762 S.E.2d at 895-96. - 13 - STATE V. SCHALOW Opinion of the Court Under de novo review, the original indictment in 14 CRS 50887 was constitutionally and statutorily sufficient to invoke jurisdiction, allege attempted voluntary manslaughter, and was not fatally defective. See id. Since the indictment sufficiently alleged an offense upon which trial could have properly proceeded to judgment, it was error for the trial court to have concluded otherwise in 14 CRS 50887. This error was compounded in 15 CRS 50992 when, after the hearing of Defendant’s double jeopardy motion, Judge Thornburg denied Defendant’s motion to dismiss the indictment and concluded Judge Powell had “validly ruled the indictment was defective.” VI. Double Jeopardy With our determination that the indictment in 14 CRS 50887 was not fatally defective, we turn to whether the trial court erred in dismissing the indictment and declaring a mistrial based on manifest necessity, and the double jeopardy implications of that action. The Fifth Amendment of the Constitution of the United States provides, No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. - 14 - STATE V. SCHALOW Opinion of the Court U.S. Const. amend. V (emphasis supplied). “It is a fundamental principle of the common law, guaranteed by our Federal and State Constitutions, that no person may be twice put in jeopardy of life or limb for the same offense.” State v. Shuler, 293 N.C. 34, 42, 235 S.E.2d 226, 231 (1977) (citing U.S. Const. amend. V; N.C. Const. art. I, § 19; State v. Cutshall, 278 N.C. 334, 180 S.E.2d 745 (1971)). In a criminal prosecution, jeopardy attaches when a jury is impaneled to try a defendant on a valid bill of indictment. Id.; Cutshall, 278 N.C. at 344, 180 S.E.2d at 751. Once jeopardy attaches, it protects “a defendant from additional punishment and successive prosecution for the same criminal offense.” State v. Sparks, 362 N.C. 181, 186, 657 S.E.2d 655, 658-59 (2008) (citation and quotation marks omitted); see Gilliam v. Foster, 75 F.3d 881, 893 (4th Cir. 1996), cert. denied, 517 U.S. 1220, 134 L. Ed. 2d 950 (1996) (“Among the protections provided by [the Double Jeopardy Clause] is the assurance that a criminal defendant will not be subjected to repeated prosecutions for the same offense.” (citation and quotation marks omitted)). While “the primary purpose of the Double Jeopardy Clause was to protect the integrity of a final judgment,” a separate body of double jeopardy law also protects a defendant’s interest “in avoiding multiple prosecutions even where no final determination of guilt or innocence has been made.” United States v. Scott, 437 U.S. 82, 92, 57 L. Ed. 2d 65, 74-75, reh’g denied, 439 U.S. 883, 58 L. Ed. 2d 197 (1978). - 15 - STATE V. SCHALOW Opinion of the Court These protected interests arise in two situations: (1) when the trial court declares a mistrial, and (2) when the trial court terminates the proceedings in favor of the defendant on a basis that is not related to factual guilt or innocence. Id.; see State v. Priddy, 115 N.C. App. 547, 551, 445, S.E.2d 610, 613, disc. review denied, 337 N.C. 805, 449 S.E.2d 751 (1994). This separate body of law under the Double Jeopardy Clause protects the defendant’s “valued right” to have a particular tribunal to decide guilt or innocence, once jeopardy attaches. Gilliam, 75 F.3d at 893. As the Supreme Court of the United States has held: The reasons why this “valued right” merits constitutional protection are worthy of repetition. Even if the first trial is not completed, a second prosecution may be grossly unfair. It increases the financial and emotional burden on the accused, prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be convicted. The danger of such unfairness to the defendant exists whenever a trial is aborted before it is completed. Consequently, as a general rule, the prosecutor is entitled to one, and only one, opportunity to require an accused to stand trial. Arizona v. Washington, 434 U.S. 497, 503-05, 54 L. Ed. 2d 717, 727-28 (1978) (footnotes omitted). In 14 CRS 50887, jeopardy attached once the jury was duly impaneled under a valid indictment to try the case. See Shuler, 293 N.C. at 42, 235 S.E.2d at 231. Neither the State nor Defendant contends otherwise. Since the trial court’s order did - 16 - STATE V. SCHALOW Opinion of the Court not constitute a “final determination of guilt or innocence,” we analyze Defendant’s double jeopardy claims under the separate body of double jeopardy law discussed in Scott. Scott, 437 U.S. at 92, 57 L. Ed. 2d at 74-75. A. Trial Court’s Declaration of a Mistrial The trial court’s order in 14 CRS 50887 stated: “I find that because the indictment is defective that the Court has no jurisdiction to try this case. And I dismiss the indictment. . . . I would find there’s a manifest necessity that because the indictment is dismissed that a mistrial be declared.” The briefs and arguments of both the State and Defendant proceed from the premise that the trial court’s order functioned as a mistrial. In their briefs and oral arguments to this Court regarding double jeopardy, the State and Defendant only argued whether manifest necessity existed for the trial court to declare a mistrial. See Lee v. United States, 432 U.S. 23, 32, 53 L. Ed. 2d 80, 88 (1977). We begin with the premise that, although the trial court both dismissed the indictment as defective and declared a mistrial, the court’s order ultimately functioned as a mistrial and the manifest necessity analysis applies. 1. Lee v. United States and Illinois v. Somerville In Lee v. United States, the Supreme Court reviewed an appeal in which the district court granted the defendant’s motion to dismiss for failure of the indictment to charge either knowledge or intent as required by statute. Id. at 25-26, 53 L. Ed. 2d - 17 - STATE V. SCHALOW Opinion of the Court at 84-85. The district court’s dismissal did not include any finding regarding the defendant’s guilt or innocence. Id. at 29, 53 L. Ed. 2d at 86. In determining whether this order functioned as a “dismissal” or a “declaration of a mistrial” for the purposes of its double jeopardy analysis, the Court held that a trial court’s label of its action is not determinative. Id. at 29-30, 53 L. Ed. 2d at 86-87. Rather, “[t]he critical question is whether the order contemplates an end to all prosecution of the defendant for the offense charged. A mistrial ruling invariably rests on grounds consistent with reprosecution, while a dismissal may or may not do so.” Id. at 30, 53 L. Ed. 2d at 87. The Supreme Court noted the indictment’s failure to sufficiently allege the offense as required by statute, “like any prosecutorial or judicial error that necessitates a mistrial, was one that could be avoided—absent any double jeopardy bar—by beginning anew the prosecution of the defendant.” Id. The district court’s dismissal of the indictment plainly contemplated the State would re-indict the defendant at a later date. Id. at 30-31, 53 L. Ed. 2d at 87. Based on this reasoning, the Supreme Court held: the order entered by the District Court was functionally indistinguishable from a declaration of mistrial. We conclude that the distinction between dismissals and mistrials has no significance in the circumstances here presented and that established double jeopardy principles governing the permissibility of retrial after a declaration of mistrial are fully applicable. Id. at 31, 53 L. Ed. 2d at 87-88. (footnote omitted). - 18 - STATE V. SCHALOW Opinion of the Court In Lee, the Supreme Court referenced a similar Supreme Court case where it upheld a trial court’s declaration of a mistrial over the defendant’s objection due to a fatal defect in the indictment. Lee, 432 U.S. at 31 n.9, 53 L. Ed. 2d at 87; see Illinois v. Somerville 410 U.S. 458, 459, 35 L. Ed. 2d 425, 428 (1973) (holding there was manifest necessity to declare a mistrial). The Court in Lee noted “[t]here is no reason to believe that Somerville would have been analyzed differently if the trial judge, like the District Court here, had labeled his action a ‘dismissal’ rather than a mistrial.” Lee, 432 U.S. at 31 n.9, 53 L. Ed. 2d at 87. Furthermore, a subsequent Supreme Court case recognized that “Lee demonstrated that, at least in some cases, the dismissal of an indictment may be treated on the same basis as the declaration of a mistrial.” Scott, 437 U.S. at 94, 57 L. Ed. 2d at 76. 2. Trial Court’s Order in 14 CRS 50887 In terminating the proceeding in 14 CRS 50887, the trial court labeled its actions as both a dismissal of a defective indictment for lack of jurisdiction, as in Lee, and a declaration of a mistrial, as in Somerville. Whatever the label, the trial court’s decision to terminate the proceedings did not “contemplate[] an end to all prosecution,” but was based upon the erroneous belief the indictment did not invoke jurisdiction and the State could constitutionally re-indict Defendant at a later date. Lee, 432 U.S. at 30, 53 L. Ed. 2d at 87. Based on Lee, its analysis of Somerville, and as subsequently recognized in Scott, a dismissal of a defective indictment may be - 19 - STATE V. SCHALOW Opinion of the Court treated as a mistrial. Id. at 31, 53 L. Ed. 2d at 86-87; see Somerville, 410 U.S. at 459, 35 L. Ed. 2d at 428; Scott, 437 U.S. at 94, 57 L. Ed. 2d at 76. Whether we ultimately review the trial court’s order as a dismissal or a mistrial, the “double jeopardy principles governing the permissibility of retrial after a declaration of mistrial are fully applicable” in this case. See id. B. Mistrials and Manifest Necessity The United States Court of Appeals for the Fourth Circuit has explained: if a criminal proceeding is terminated by mistrial without a final resolution of guilt or innocence, a defendant may be retried in certain circumstances. When a defendant seeks or consents to the grant of a mistrial, there is no bar to his later retrial. But, when a defendant opposes the grant of a mistrial, he may not be retried unless there was a manifest necessity for the grant of the mistrial or the failure to grant the mistrial would have defeated the ends of justice. Gilliam, 75 F.3d at 893. (emphasis supplied) (citations and footnotes omitted). North Carolina courts have also recognized an order of mistrial after jeopardy has attached may only be entered over the defendant’s objection where “manifest necessity” exists. State v. Odom, 316 N.C. 306, 310, 341 S.E.2d 332, 334 (1986); State v. Jones, 67 N.C. App. 377, 381, 313 S.E.2d 808, 811-812, disc. review denied, 315 S.E.2d 699 (1984). If a mistrial results from manifest necessity, double jeopardy does not bar the State from retrying the defendant on the same offense. Odom, 316 N.C. at 310, 341 S.E.2d at 334. However, if manifest necessity does not exist and “the order of mistrial has been improperly entered over a defendant's objection, - 20 - STATE V. SCHALOW Opinion of the Court defendant’s motion for dismissal at a subsequent trial on the same charges must be granted.” Id. (citations omitted); see Gilliam, 75 F.3d at 895. “Whether a grant of a mistrial is manifestly necessary is a question that turns on the facts presented to the trial court.” Gilliam, 75 F.3d at 895. Since a declaration of a mistrial inevitably affects a constitutionally protected interest, the trial court “‘must always temper the decision whether or not to abort the trial by considering the importance to the defendant of being able, once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate.’” Washington, 434 U.S. at 514, 54 L. Ed. 2d at 733 (quoting United States v. Jorn, 400 U.S. 470, 486, 27 L. Ed. 2d 543, 557 (1971)). As such, the trial court’s discretion in determining whether manifest necessity exists is limited. Jones, 67 N.C. App. at 381, 313 S.E.2d at 812; see U.S. v. Sloan, 36 F.3d 386, 394 (4th Cir. 1994) (holding “manifest necessity” means a “high degree” of necessity is required for mistrial to be appropriate). The Fourth Circuit explained: First enunciated 170 years ago, this bedrock principle has been consistently reiterated and followed. Its basis is the Fifth Amendment’s Double Jeopardy Clause . . . . Because jeopardy attaches before the judgment becomes final, it has been held that the double jeopardy clause protects a defendant’s valued right to have his trial completed by a particular tribunal, and so prohibits the declaration of a mistrial absent manifest necessity. Sloan, 36 F.3d 386 at 393 (citations and quotation marks omitted). - 21 - STATE V. SCHALOW Opinion of the Court Our courts have set forth two types of manifest necessity: physical necessity and the necessity of doing justice. State v. Crocker, 239 N.C. 446, 450, 80 S.E.2d 243, 246 (1954). For example, physical necessity occurs in situations where a juror suddenly takes ill in such a manner that wholly disqualifies him from proceeding with the trial. Id. Whereas the necessity of doing justice “arises from the duty of the court to guard the administration of justice from fraudulent practices” and includes “the occurrence of some incident of a nature that would render impossible a fair and impartial trial under the law.” Id. (citation and quotation marks omitted). Both the Supreme Court of the United States and North Carolina courts have recognized that manifest necessity exists to declare a mistrial when the indictment contains a fatal defect, which deprives the court of jurisdiction. Somerville, 410 U.S. at 468-69, 35 L. Ed. 2d at 433-34; State v. Whitley, 264 N.C. 742, 745, 142 S.E.2d 600, 603 (1965) (citing State v. Jordan, 247 N.C. 253, 256, 100 S.E.2d 497, 499 (1957)). Thus, “[a] defendant is not subjected to double jeopardy when an insufficient indictment is quashed, and he is subsequently put to trial on a second, sufficient indictment.” State v. Oakes, 113 N.C. App. 332, 340, 438 S.E.2d 477, 481, disc. review denied, 336 N.C. 76, 445 S.E.2d 43 (1994). As noted, this Court does not favor dismissing indictments where the indictment is constitutionally sufficient to enable the court to proceed to judgment. See Greer, 238 N.C. at 327, 77 S.E.2d at 919; N.C. Gen. Stat. § 15-153. Unlike in - 22 - STATE V. SCHALOW Opinion of the Court Somerville and Oakes, in this case, the original indictment in 14 CRS 50887 was not fatally defective, it sufficiently alleged attempted voluntary manslaughter. See Bullock, 154 N.C. App. at 243-45, 574 S.E.2d at 23-24; but see Somerville, 410 U.S. at 468-69, 35 L. Ed. 2d at 433-34; Oakes, 113 N.C. App. at 340, 438 S.E.2d at 481. The trial court was aware of this Court’s opinion in Bullock and cited it when it first realized the indictment had failed to allege “with malice aforethought.” The Supreme Court of the United States has emphasized the importance of “preserving the defendant’s primary control over the course to be followed in the event of such [a prejudicial] error,” Lee, 432 U.S. at 32, 53 L. Ed. 2d at 88 (citation and quotation marks omitted), and a defendant’s a “valued right” to have his case heard before the original jury impaneled. Washington, 434 U.S. at 503-05, 54 L. Ed. 2d at 727-28. As noted below, in 14 CRS 50887, Defendant argued that based on Bullock the trial could and should properly proceed on attempted voluntary manslaughter. Since the trial court retained jurisdiction, it could have proceeded on attempted voluntary manslaughter, and Defendant requested that the trial court proceed on that charge, no lack of jurisdiction or manifest necessity existed for the trial court to declare a mistrial to allow the State to re-indict Defendant. Judge Powell erred by ruling the indictment in 14 CRS 50887 was otherwise jurisdictionally defective to charge any crime to justify dismissal and by using this incorrect determination as a basis to declare a mistrial. - 23 - STATE V. SCHALOW Opinion of the Court C. Dismissals and Mistrial based on Defendant’s Motion or Consent This case is distinguishable from those in which a dismissal or mistrial was entered based on the defendant’s motion or consent. The Supreme Court of the United States has distinguished cases where the mistrial is entered pursuant to the defendant’s motion or complicity, from those where the mistrial is entered over the defendant’s objection. See Scott, 437 U.S. at 92-93, 57 L. Ed. 2d at 74-75; Sloan, 36 F.3d at 393 (holding there was no manifest necessity for the trial court to declare a mistrial over the defendant’s objections). The Supreme Court explained when a defendant moves for a mistrial: Such a motion by the defendant is deemed to be a deliberate election on his part to forgo his valued right to have his guilt or innocence determined before the first trier of fact. “The important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retain primary control over the course to be followed in the event of such error.” United States v. Dinitz, 424 U.S. 600, 609, 47 L. Ed. 2d 267 (1976). But “[t]he Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions.” Id. at 611. Scott, 437 U.S. at 93-94, 57 L. Ed. 2d at 76. Similarly, when a defendant moves for a dismissal on grounds not related to the basis of factual guilt or innocence the Supreme Court held: [T]he defendant, by deliberately choosing to seek termination of the proceedings against him on a basis unrelated to factual guilt or innocence of the offense of - 24 - STATE V. SCHALOW Opinion of the Court which he is accused, suffers no injury cognizable under the Double Jeopardy Clause if the Government is permitted to appeal from such a ruling of the trial court in favor of the defendant. . . . we conclude that the Double Jeopardy Clause, which guards against Government oppression, does not relieve a defendant from the consequences of his voluntary choice. Id. at 98-99, 57 L. Ed. 2d at 79. Thus, if a defendant successfully seeks to avoid his trial prior to its conclusion by actions or a motion of mistrial or dismissal, the Double Jeopardy Clause is generally not offended by a second prosecution. Id. at 93, 57 L. Ed. 2d at 75. 1. State v. Priddy North Carolina courts have also addressed this issue. In a case similar to the one here, this Court considered whether double jeopardy bars the State from appealing a trial court’s order granting defendant’s motion to dismiss for lack of jurisdiction. Priddy, 115 N.C. App. at 551, 445 S.E.2d at 613. In Priddy, the defendant moved to dismiss the case for lack of jurisdiction. Id. at 548, 445 S.E.2d at 611. The defendant in Priddy asserted the superior court lacked jurisdiction because the impaired driving charge was not initially tried in the district court. Id. at 548, 445 S.E.2d at 612. The superior court granted the defendant’s motion to dismiss and the State appealed. Id. at 548, 445 S.E.2d at 611. This Court held the superior court had jurisdiction over the impaired driving charge and the superior court erred in dismissing the indictment for lack of - 25 - STATE V. SCHALOW Opinion of the Court jurisdiction. Id. at 550, 445 S.E.2d at 612. Addressing the double jeopardy issue, this Court emphasized the defendant, not the State, moved to dismiss and the dismissal was “based solely upon the trial court’s ruling that it had no jurisdiction and was entirely unrelated to the sufficiency of evidence as to any element of the offense or to defendant’s guilt or innocence.” Id. at 551, 445 S.E.2d at 613. Based on Scott, this Court concluded double jeopardy did not bar the State’s appeal or a retrial of the charge against the defendant. Id. 2. State v. Vestal Another panel of this Court later distinguished Priddy and Scott in State v. Vestal, 131 N.C. App. 756, 509 S.E.2d 249 (1998). In Vestal, this Court held that double jeopardy barred the State from appealing the trial court’s sua sponte order dismissing the case with prejudice, because the police department had violated an order from the trial court. Id. at 759, 509 S.E.2d at 252. The Court recognized that Scott and Priddy: mandate the rule against double jeopardy will not bar an appeal by the government where the defendant took an active role in the dismissal, because defendant essentially chose to end the trial and cannot later complain that he was ‘deprived of his ‘valued right to have his trial completed by a particular tribunal.’ Id. (emphasis supplied) (quoting Scott, 437 U.S. at 99-100, 57 L. Ed. 2d at 80). Unlike in Scott and Priddy, the defendant in Vestal did not take an active role in the process, which led to dismissal of the charge against him, but was “involuntarily deprived of - 26 - STATE V. SCHALOW Opinion of the Court his constitutional right to have his trial completed by the jury which had been duly empaneled and sworn.” Id. at 760, 509 S.E.2d at 252 (emphasis supplied). In Priddy and Scott, the defendants successfully sought termination of the original proceedings on grounds not related to factual guilt or innocence. The present case is similar to Vestal, where the defendant did not take any active role in acquiring dismissal. Here, Defendant actively argued against the trial court’s order dismissing the indictment and declaring a mistrial in 14 CRS 50887. Although Defendant recognized the error in the indictment, he requested the trial proceed on the sufficiently alleged offense of attempted voluntary manslaughter. No manifest necessity existed to allow the trial court to declare a mistrial in 14 CRS 50887 over Defendant’s persistent objections. D. Greater and Lesser-Included Offenses under the Double Jeopardy Clause Since we hold no manifest necessity existed to declare a mistrial in 14 CRS 50887 over the defendant’s objection, we now consider the effects of the erroneous declaration. As noted earlier, if an “order of mistrial has been improperly entered over a defendant’s objection, defendant’s motion for dismissal at a subsequent trial on the same charges must be granted.” Odom, 316 N.C. at 310, 341 S.E.2d at 334. Under the Double Jeopardy Clause, when one offense is a lesser-included offense of another, the two offenses are considered the same criminal offense. Etheridge, 319 N.C. at 50, 352 S.E.2d at 683 (citing Brown v. Ohio, 432 U.S. 161, 53 - 27 - STATE V. SCHALOW Opinion of the Court L. Ed. 2d 187 (1977); State v. Revelle, 301 N.C. 153, 270 S.E.2d 476 (1980)). Once jeopardy has attached to the lesser-included offense, a defendant may not thereafter be prosecuted for either the greater or lesser-included offenses. See id.; Brown, 432 U.S. at 169, 53 L. Ed. 2d at 196 (“Whatever the sequence may be, the Fifth Amendment forbids successive prosecution . . . for a greater and lesser included offense.”); State v. Birckhead, 256 N.C. 494, 499, 124 S.E.2d 838, 843 (1962) (holding that once the defendant had been placed in jeopardy on the lesser-included offense of assault with intent to commit rape, double jeopardy principles implicit in the law of the land clause of the state constitution prohibited his subsequent prosecution for the greater offense of rape). Attempted voluntary manslaughter is a lesser-included offense of attempted first-degree murder and is considered as the same offense under the Double Jeopardy Clause. See State v. Rainey, 154 N.C. App. 282, 290, 574 S.E.2d 25, 30, disc. review denied, 356 N.C. 621, 575 S.E.2d 520 (2002); Etheridge, 319 N.C. at 50, 352 S.E.2d at 683. Once jeopardy attaches to one of these offenses, the defendant cannot be subsequently tried on the other. See Brown, 432 U.S. at 169, 53 L. Ed. 2d at 196. Once Judge Powell declared a mistrial where no manifest necessity existed in 14 CRS 50887, the State was prohibited from retrying Defendant on either attempted first-degree murder or attempted voluntary manslaughter, since they are considered the same offense under the Double Jeopardy Clause. See Etheridge, 319 N.C. at 50, - 28 - STATE V. SCHALOW Opinion of the Court 352 S.E.2d at 683. As a result, pursuant to double jeopardy, Judge Thornburg also erred by denying Defendant’s motion to dismiss prior to trial in 15 CRS 50992. See Odom, 316 N.C. at 310, 341 S.E.2d at 334. VII. Defendant’s Previous Writ of Certiorari to this Court After Judge Thornburg denied his motion to dismiss made at the start of the second trial, Defendant filed a motion for temporary stay and petition for writ of supersedeas. He also petitioned this Court for writ of certiorari. Defendant asserted the double jeopardy provisions of the North Carolina Constitution and the Constitution of the United States prohibited further prosecution of him on the new indictment in 15 CRS 50992. Defendant had no statutory right to appeal Judge Thornburg’s interlocutory order. See State v. Shoff, 118 N.C. App. 724, 456 S.E.2d 875 (1995) (dismissing the defendant’s appeal from an order denying his motion to dismiss on double jeopardy grounds), aff’d, 342 N.C. 638, 466 S.E.2d 277 (1996). However, Appellate Rule 21 authorizes petition for review of a non-appealable interlocutory order by writ of certiorari. N.C. R. App. P. 21(a)(1) (2015). We recognize this Court’s order dissolving the temporary stay and denying Defendant’s petitions for writs of supersedeas and certiorari “without prejudice,” essentially furthered the violation of Defendant’s constitutional rights. See Abney v. United States, 431 U.S. 651, 660-62, 52 L. Ed. 2d 651, 660-61 (1977) (holding the - 29 - STATE V. SCHALOW Opinion of the Court Double Jeopardy Clause protects a defendant not only from conviction after successive trial, but from even being subjected to a second trial); State v. Watson, 209 N.C. 229, 231, 183 S.E. 286, 287 (1936) (stating the rule against double jeopardy “not only prohibits a second punishment for the same offense, but it goes further and forbids a second trial for the same offense, whether the accused has suffered punishment or not, and whether in the former trial he has been acquitted or convicted” (citation omitted)). By denying his writ of certiorari, Defendant was subjected to a subsequent trial and conviction prior to final determination of whether his constitutional right against double jeopardy would be violated by such prosecution. VIII. Conclusion The original indictment in 14 CRS 50887 was constitutionally and statutorily sufficient to provide jurisdiction, allege attempted voluntary manslaughter, and was not fatally defective. The trial court erred in finding otherwise. Since the indictment was not fatally defective and the trial court retained jurisdiction, no manifest necessity existed to declare a mistrial over Defendant’s objections. Once the State’s failure to allege “with malice aforethought” in the original indictment was discovered and communicated by Judge Powell in 14 CRS 50887, he should have required the State to either dismiss the charge against - 30 - STATE V. SCHALOW Opinion of the Court Defendant or to proceed to trial on attempted voluntary manslaughter. See Etheridge, 319 N.C. at 50, 352 S.E.2d at 683. North Carolina courts have clearly stated “where the order of mistrial has been improperly entered over a defendant’s objection, defendant’s motion for dismissal at a subsequent trial on the same charges must be granted.” Odom, 316 N.C. at 310, 341 S.E.2d at 334. With a valid indictment and no manifest necessity to declare a mistrial, the State was barred from re-indicting Defendant on attempted murder or manslaughter. Judge Thornburg erred by denying Defendant’s motion to dismiss the subsequent indictment in 15 CRS 50992. By denying his writ of certiorari, Defendant was subjected to a subsequent trial and conviction prior to final determination of whether his constitutional right against double jeopardy would be violated by such prosecution. We do not address the merits of Defendant’s other arguments regarding the trial in 15 CRS 50992, as we hold Defendant’s double jeopardy rights were violated by his subsequent indictment, prosecution, trial, and conviction in 15 CRS 50992. We conclude Defendant’s conviction by the jury and judgment entered thereon for attempted first-degree murder in 15 CRS 50922 must be vacated. It is so ordered. VACATED. Chief Judge McGEE and Judge DIETZ concur. - 31 -	{ "pile_set_name": "FreeLaw" }
13 Cal.App.2d 302 (1936) EMIL G. SEITZ, Respondent, v. CARL ENGERT, as Administrator, etc., Appellant. Civ. No. 10351. California Court of Appeals. Second Appellate District, Division One. April 20, 1936. J. Marion Wright for Appellant. 303 Will H. Light for Respondent. Roth, J., pro tem. Mima G. Engert was the surviving wife of Joseph Engert, deceased. By the will of said deceased, Mima was appointed co-executor of his estate, Security-First National Bank of Los Angeles being the other executor. During the time that Mima acted as the qualified executrix of said estate, she signed a contract to have a monument erected over the grave of her deceased husband. The will did not require or request that a monument be erected. The probate court did not approve said contract and it was not signed nor agreed to by the other executor, to wit, Security-First National Bank. The contract itself dated April 25, 1930, was made between plaintiff and "Estate of Joseph Engert", and it is signed by Mima G. Engert with no words indicating that she was acting for the estate, or descriptive of her as executrix thereof. During her lifetime, work on the monument having been completed and thereafter approved and accepted by Mima, as per the contract, she as an individual was sued by plaintiff herein for the purchase price. During the pendency of the suit Mima died. Thereafter, an amended complaint was filed in which Carl Engert, as administrator with the will annexed of the estate of Joseph Engert, deceased, was substituted as a defendant, the Security-First National Bank, theretofore and during the lifetime of Mima, having resigned as co-executor of said estate. No claim was filed by plaintiff at any time against the estate. Judgment was rendered against Carl Engert, as administrator with the will annexed of the estate of Joseph Engert, deceased, and the question herein presented is whether the facts recited will sustain the judgment. [1] It may be conceded that a monument may be erected and charged as a part of the funeral expenses, even though there is no express direction or request to that effect in the will. (Secs. 21 and 22, Act 1288, Stats. 1931, p. 2434; vol. I, Deering's Gen. Laws (1931 ed.), pp. 602, 603; Estate of Koppikus, 1 Cal.App. 84, 87 [81 P. 732]; Estate of Bruggemeyer, 115 Cal.App. 525 [2 PaCal.2d 534]; Van Emon v. Superior Court, 76 Cal. 589 [18 P. 877, 9 Am.St.Rep. 258].) [2] Neither is there any doubt that the probate court has power to authorize the erection of a monument commensurate with the estate of deceased and fitting to the situation 304 in life of deceased, and to order payment therefor from the estate. (Estate of Bruggemeyer, supra; Estate of Weringer, 100 Cal. 345 [34 P. 825].) [3] In this case no permission was requested of the court and none was granted. If the monument be considered a proper part of the funeral expenses, it should have been included in a claim presented against the estate. No such claim was presented, as required by section 707 of the Probate Code, and no action could be commenced thereon in the absence of presentation and filing of such a claim. (11A Cal.Jur., p. 690 et seq., p. 728 et seq.; sec. 716 of the Probate Code; Estate of Cates, 195 Cal. 319 [232 P. 972]; Dugan v. Magnus, 107 Cal.App. 243 [290 P. 309].) The judgment is reversed. Houser, P. J., and Doran, J., concurred.	{ "pile_set_name": "FreeLaw" }
201 F.Supp. 213 (1962) LOCAL 453, INTERNATIONAL UNION OF ELECTRICAL, RADIO & MACHINE WORKERS, AFL-CIO, an Unincorporated Labor Organization, Plaintiff, v. OTIS ELEVATOR COMPANY, a Corporation, Defendant. United States District Court S. D. New York. January 18, 1962. 214 Abramson & Lewis, New York City, for plaintiff (Leonard Greenwald, New York City, of counsel). Guggenheimer & Untermyer, New York City, for defendant (Louis Newman, New York City, of counsel). MacMAHON, District Judge. This is a motion by a union, pursuant to Rule 65, Federal Rules of Civil Procedure, 28 U.S.C.A., for a preliminary injunction to compel an employer to comply with an arbitration award reinstating 215 an employee discharged for violation of a company rule prohibiting gambling. The employee had been convicted for the knowing possession of policy slips upon the employer's premises during working hours. The main action seeks permanent enforcement of the award together with damages. Jurisdiction is grounded on the Labor-Management Relations Act, 29 U.S.C.A. § 185, and the United States Arbitration Act, 9 U.S.C.A. § 9. Injunctive relief before trial on the merits should be granted most sparingly. A strong showing of a reasonable probability of success in the main action and irreparable injury are indispensable prerequisites to the granting of such a drastic remedy. This is especially so where, as here, a preliminary injunction would not merely preserve the status quo pendente lite, but grant the party seeking it a substantial part of the ultimate relief obtainable after a successful trial. Securities and Exchange Commission v. Capital Gains Research Bureau, Inc., Docket No. 26942 (2 Cir., December 18, 1961); Speedry Products, Inc. v. Dri Mark Products, Inc., 271 F. 2d 646, 648 (2 Cir. 1959). The court must, therefore, appraise the merits of this controversy to determine whether the union is entitled to the extraordinary equitable relief it seeks. There is no dispute that a company rule prohibited gambling on the employer's premises under penalty of immediate discharge. Admittedly, the employee was discharged for violation of that rule following his indictment, prosecution, and conviction in the County Court of Westchester County for knowing possession of policy slips on the employer's premises during working hours. The union challenged "the propriety" of the employee's discharge, and after exhaustion of grievance procedures under a collective bargaining agreement, the parties submitted the dispute to arbitration. Following hearings, the arbitrator found that the employee had knowingly violated the plant rule against gambling and as a result had been convicted of a crime. Nevertheless, and despite the absence of evidence indicating any other reason for the discharge, the arbitrator concluded that the employee had been discharged without just cause. As he saw it, the employee's misconduct called for disciplinary action, but discharge was too harsh a penalty in view of the hardship inflicted on the employee's wife and four children, his seniority, good record, punishment by the authorities, and the lack of any disciplinary action against four other employees whom the arbitrator, but not the authorities, felt were guilty of the same offense. Accordingly, he directed the company to reinstate the employee without back pay from the date of discharge. The union contends that the award should be enforced because the arbitrator acted within the scope of his power under his honest interpretation of the collective bargaining agreement. The employer argues, however, that the award is unenforceable because the arbitrator exceeded his power by making a compromise decision that the employee's conceded misconduct warranted suspension, but not discharge. The threshold problem is whether the court has any business at all reviewing the merits of the arbitrator's decision, however bizarre or wrong it may be. Ordinarily, parties to an arbitration agreement will not be heard to complain about the result, if they have received what they bargained for. As a general rule, an arbitrator's decision is not open to judicial review, unless he has exceeded his power by deciding a matter not arbitrable under the contract or the submission. United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1363, 4 L.Ed.2d 1432 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S. Ct. 1358, 4 L.Ed.2d 1424 (1960). 216 The initial question, therefore, is whether these parties did agree to arbitrate the dispute involved. United Steelworkers of America v. Warrior & Gulf Navigation Co., supra. Accordingly, we must look to the terms of the collective bargaining agreement, and the stipulated question submitted for arbitration, to ascertain exactly what rights these parties designed for themselves, and whether the arbitrator acted within the scope of the power delegated to him. The applicable provisions of the collective bargaining agreement are set forth in the margin.[1] The agreement gives the employer "the right to discharge any employee for just cause." The union, however, has "the right to challenge the propriety of the discharge" as a grievance. "All differences, disputes or grievances between the parties that shall not have been settled" by the grievance procedure "may be submitted to arbitration", and in such case, the decision of the arbitrator "shall be final and binding upon the parties but the arbitrator shall not have the power to add to, subtract from, or modify the terms" of the agreement. When exhaustion of the grievance procedure failed to settle this dispute, the parties stipulated that the question for the arbitrator to decide was: "Has Joseph Calise been discharged for just cause, and if not what shall the remedy be?" The agreement does not define what conduct constitutes "just cause" for discharge. Nor does it lay down any criteria governing "the propriety" of a discharge once the union lodges a grievance. Neither of the quoted terms has any definite meaning. Both are vague, general and flexible. They confer general rights, but neither the parties, nor the draftsmen, have troubled to tell us, or the arbitrator, exactly what those rights are, other than the right to differ about what constitutes "just cause" for discharge. That both parties intended to leave room for differences of views about the matter is clear from the very fact that they expressly left ultimate resolution of disputes about it to an arbitrator unfettered with rigid criteria. Undoubtedly, certainty of meaning was consciously rejected in recognition of a need for flexible standards to facilitate ad hoc solution of each dispute on its own facts to promote the paramount objective of industrial peace. Obviously when this dispute arose, both parties so construed the agreement, otherwise there was no point whatever in submitting anything to arbitration, for there was not the slightest question about the misconduct involved. Yet, they freely stipulated that the arbitrator should decide whether the employee had "been discharged for just cause, and if not what shall the remedy be?" Words could hardly make clearer the arbitrator's power to decide the only real dispute, that is, whether the conceded misconduct was just cause for discharge, or whether milder disciplinary action was more appropriate. Lest doubt remain as to who should have the last word on any differences that might conceivably arise as to 217 what the parties intended by the general terms employed, the agreement expressly empowers the arbitrator to make a final and binding decision on "All differences, disputes or grievances" between the parties. Surely such a plenary grant carries power to interpret the contract. It also brings into play the rule requiring that all doubt as to an arbitrator's power to settle a dispute should be resolved in favor of coverage. United Steelworkers of America v. Warrior & Gulf Navigation Co., supra, 363 U.S. at 582-583, 80 S.Ct. 1347. The employer argues, however, relying on Textile Workers Union of America, etc. v. American Thread Co., 291 F. 2d 894 (4 Cir. 1961), that when the union challenges a discharge for lack of just cause, the arbitrator's power is limited, under the terms of both the agreement and the submission, to deciding whether the employee was in fact discharged for just cause, or for some other reason. Otherwise, the employer urges, the right to discharge for just cause is no right at all, but an illusory opportunity to chance the outcome of arbitration. These arguments are plausible and, indeed, might have validity if the agreement had defined "just cause" or provided that violation of a company rule would be sufficient, or if the stipulation had focused the issue on whether the alleged misconduct had in fact occurred, rather than on whether it constituted "just cause" for discharge, or some other remedy. The court must take the agreement and the stipulated submission as the parties made them. Both squarely put the question of what constitutes "just cause" for discharge up to the arbitrator. We think it plain, therefore, that the collective bargaining agreement, read with the question submitted, does empower the arbitrator to settle the dispute involved. The employer urges, nonetheless, that the commission of a crime by an employee upon the employer's premises is just cause for discharge as a matter of law. Of course, it is. National Labor Relations Board v. Federal Bearings Co., 109 F.2d 945 (2 Cir. 1940). Nevertheless, the court is foreclosed from considering that question, for the arbitrator is the last word, even on questions of law, once the parties have granted him final power to decide all differences and disputes between them. Philadelphia Dress Joint Board v. Rosinsky, 134 F.Supp. 607, 612 (E.D.Pa.1955), aff'd, 229 F.2d 438 (3 Cir. 1956); Carey v. Westinghouse Electric Corp., 6 A.D. 2d 582, 180 N.Y.S.2d 203 (1st Dept. 1958), aff'd, 6 N.Y.2d 934, 190 N.Y.S.2d 1003, 161 N.E.2d 216 (1959). Ordinarily, this would close our inquiry, whether or not we agree with the arbitrator's decision. United Steelworkers of America v. Enterprise Wheel & Car Corp., supra. Here, however, compelling reasons dictate a different course. The misconduct involved here was not just an infraction of a company rule. It was a crime. The knowing possession of policy slips was, and still is, a misdemeanor under the law of New York. N. Y. Penal Law, McKinney's Consol. Laws, c. 40, § 974. The same statute which prohibits possession of policy slips also provides that a "person who * * * is the owner of any place * * * where policy playing or the sale of what are commonly called `lottery policies' is carried on with his knowledge or after notification that the premises are so used, permits such use to be continued, or who aids, assists, or abets in any manner, * * * is a common gambler, and guilty of a misdemeanor." Responsibility for observance of that aspect of the New York Penal Law rests squarely upon the owner of the premises the employer. To deny him the power to discharge for the commission of such a crime upon his property exposes him to criminal prosecution. Furthermore, this was not just a friendly wager. This was organized professional gambling. Calise not only kept policy slips in his possession, but also had four other employees working for 218 him. Policy, along with bookmaking, is regarded by responsible law enforcement officials, state and federal, as the incubator of most, and more sinister, organized crime.[2] These unmistakeable pronouncements of the public policy against organized gambling cannot be lightly brushed aside merely because an arbitrator feels that discharge is too harsh. Were we to do so, the next arbitrator, moved by like compassion, could conclude with equal validity that no crime by an employee, however serious or injurious to the employer, would constitute just cause for discharge. However inviolable the teaching that courts keep their hands off arbitration awards, they are not edicts proclaimed by divine right. Arbitrators are creatures of contract. They are no more above public law than the parties from whom they derive their powers. Thus, a collective bargaining agreement may well give an arbitrator power to dispense his own brand of industrial justice, but the contract, and his power under it, are limited by, and must yield to, overriding public policy. This award clashes with that policy. It indulges crime, cripples an employer's power to support the law, and impairs his right to prevent exposure to criminal liability. The award is, therefore, void and unenforceable. Black v. Cutter Laboratories, 351 U.S. 292, 76 S.Ct. 824, 100 L.Ed. 1188 (1956); Hurd v. Hodge, 334 U.S. 24, 34-35, 68 S.Ct. 847, 92 L.Ed. 1187 (1948); Matter of Western Union Tel. Co., 299 N.Y. 177, 86 N.E.2d 162 (1949); Avco Corp. v. Preteska, 22 Conn.Sup. 475, 174 A.2d 684 (June 30, 1961, Conn. Superior Ct., Fairfield County). Finally, equity is rooted in conscience. An injunction is an extraordinary remedial process which is granted, not as a matter of right but in the exercise of sound judicial discretion, and, then, only upon a clear showing of irreparable injury. No such injury is shown here. Balancing the equities in the light of the undisputed facts the stark absence of any legitimate labor objective, the soiled hands of the beneficiary, and the risk to the employer , it would be unconscionable to grant extraordinary 219 equitable relief in this sullied cause. Surely equity should not become privy to law-breaking by lending its aid to enforce an arbitration award which blinks realities, indulges crime, and offends public policy. An injunction, in these circumstances, would be tantamount to granting policy operators a license to violate the law and exploit defendant's employees. However enlightened the views of the arbitrator, or loose the rules of industrial justice, it is not the conscience of the Chancellor to fashion such an improvement in the working conditions of those engaged in the numbers racket. Accordingly, the motion for a preliminary injunction is in all respects denied. This opinion shall constitute the court's findings of fact and conclusions of law. So ordered. NOTES [1] Article IX provides: "Section 11. The Employer shall have the right to discharge any employee for just cause. The Union shall have the right to challenge the propriety of the discharge of any employee, except a probationary employee, and any such discharge shall be considered a grievance to be dealt with in accordance with the grievance procedure heretofore set forth in Article V. Employees discharged without just cause shall receive pay for all lost time unless an arbitrator rules otherwise." Article V provides various steps for negotiating grievance settlements, and Article VI provides: "Section 1. All differences, disputes or grievances between the parties that shall not have been settled after following the procedure set forth in Article V, may be submitted to arbitration upon notice of either party to the other party * * . "Section 2. The decision of such arbitrator shall be final and binding upon the parties but the arbitrator shall not have the power to add to, subtract from, or modify the terms of this Agreement, or any Agreement supplemental thereto * *." [2] In the February 1961 report of the New York State Commission of Investigation, entitled "Syndicated Gambling in New York State," the Chairman had this to say about organized gambling: "Syndicated gambling operated by professional criminals is widespread in New York State today. These syndicated gambling activities are the `treasury of the underworld' or, as I have sometimes described it, `the bread and butter of organized crime,' and these activities provide fantastic sums which feed and finance other illegal activities such as the narcotics racket, labor racketeering and bootlegging." (p. 114) In this same report, policy slip operations were particularly condemned: "Because policy appeals to the lowest income group and because it necessitates personal contact and volume play between bettors and runners, it is confined to heavily populated areas where organized criminal control is more evident. As a result, even more than bookmaking, it is regulated by the minions of organized crime." (p. 62) In the same vein, the Temporary Commission of Investigation of the State of New York, in its "Second Annual Report" of February 1960, characterized organized gambling as "the major law enforcement problem of this State" (p. 76), and in its February 1961 report on the summary of its activities during 1960 concluded "that the best way to cripple organized crime would be to suppress gambling" (p. 25). Similarly, the federal government has recognized that organized crime depends on organized gambling. Former Attorney General William P. Rogers stated: "The biggest source of money feeding organized crime is that most tolerated of all crimes gambling." 106 Cong.Rec. 2159. Robert F. Kennedy, the present Attorney General, reiterated the belief that organized racketeering can be curbed most effectively by federal action aimed at eliminating illegal professional gambling. 1961 U.S.Code Cong. & Adm.News, p. 2635. Congress responded by outlawing the interstate communication of wagering parahernalia. 18 U.S.C. §§ 1084 and 1953 (added August 1961).	{ "pile_set_name": "FreeLaw" }
FILED NOT FOR PUBLICATION FEB 24 2014 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT AIRS AROMATICS, LLC, a Delaware No. 12-56486 limited liability company, D.C. No. 2:11-cv-08709-DDP-JPR Plaintiff - Appellant, v. MEMORANDUM* MINE HAKIM, individually, DBA Birch Bay Aromatics, Defendant - Appellee. Appeal from the United States District Court for the Central District of California Dean D. Pregerson, District Judge, Presiding Submitted February 11, 2014** Pasadena, California Before: FARRIS, N.R. SMITH, and WATFORD, Circuit Judges. Airs Aromatics appeals from the district court’s dismissal of its complaint on the basis of a lack of standing. We have jurisdiction under 28 U.S.C. § 1291. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). We affirm the district court’s decision that Airs Aromatics lacked standing to bring its Lanham Act claim for unfair competition. Section 43(a) of the Lanham Act provides a cause of action for “false representations concerning the origin, association, or endorsement of goods or services through the wrongful use of another's distinctive mark, name, trade dress, or other device.”Waits v. Frito-Lay, Inc., 978 F.2d 1093, 1108-09 (9th Cir. 1992) (citing 15 U.S.C. § 1125 (a)(1)(A)). To have standing for an unfair competition claim, a plaintiff must have suffered some form of commercial injury from the defendant’s “deceptive and misleading use of marks.”Id. at 1108-09. This standing requirement is satisfied by parties that either have “a commercial interest in the product wrongfully identified with another's mark” or have “a commercial interest in the misused mark.” Id. at 1109. The proposed source of Airs Aromatics’ standing is a potential protectable commercial interest in the common law marks for AIRS and ANGEL DREAMS fragrance products. To establish a protectable ownership interest in a common law trademark, the owner must “establish not only that he or she used the mark before the mark was registered, but also that such use has continued to the present.” Watec Co., Ltd. v. Liu, 403 F.3d 645, 654 (9th Cir. 2005). Continuous usage is not established simply by showing non-abandonment. Casual Corner Associates, Inc. v. Casual Stores of Nevada, Inc., 493 F.2d 709, 712 (9th Cir. 1974). 2 To establish standing, Airs Aromatics must allege sufficient facts to show continuous usage of both the AIRS and ANGEL DREAMS marks in a commercial capacity. In its complaint, Airs Aromatics stated that “For many years, since at least 1993, Airs International used the marks AIRS and ANGEL DREAMS in connection with its interstate sales of cosmetic and fragrance products.” Airs Aromatics also stated that “Airs International assigned all rights to those marks … to Airs Aromatics. Immediately, Airs Aromatics began using that name in interstate commerce in connection with its promotion and sales of fragrance products.” These statements are insufficient allegations of continuous usage. The complaint is vague about the exact period of dates that Airs International used the marks in commerce. This vagueness about the dates of usage is insufficient since Hakim introduced evidence through judicial notice that indicated Airs International had become insolvent in 2000 and that its corporate status had been suspended by the state of California from 2002 to 2011. Airs Aromatics failed to make the necessary factual allegations to establish a protectable ownership interest in the marks; without such an interest Airs Aromatics has not suffered a commercial injury and therefore lacks standing to bring its Lanham Act claim. AFFIRMED. 3	{ "pile_set_name": "FreeLaw" }
NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 20 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ARTURO LEON-VAZQUEZ, AKA Eddie No. 16-74037 Sanchez-Munoz, Agency No. A205-991-561 Petitioner, v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted September 12, 2018** Before: LEAVY, HAWKINS, and TALLMAN, Circuit Judges. Arturo Leon-Vazquez, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s decision denying cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). agency’s factual findings, and review de novo questions of law. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). We deny the petition for review. Substantial evidence supports the agency’s finding that Leon-Vazquez was confined to a penal institution for an aggregate period of more than 180 days during the statutory time period, and therefore cannot show good moral character for cancellation of removal. See 8 U.S.C. §§ 1101(f)(7), 1229b(b)(1)(B); Arreguin- Moreno v. Mukasey, 511 F.3d 1229, 1233 (9th Cir. 2008) (“[W]hen pre-trial detention is credited against the sentence imposed upon conviction, the period of pre-trial detention must be considered as confinement as a result of a conviction within the meaning of § 1101(f)(7).”) We reject Leon-Vazquez’s challenges to the good moral character requirement. See Romero-Ochoa v. Holder, 712 F.3d 1328, 1331 (9th Cir. 2013) (concluding that 8 U.S.C. § 1101(f)(7) is constitutional in the context of cancellation of removal and voluntary departure under 8 U.S.C. §§ 1229b(b)(1), 1229c(b)(1)). PETITION FOR REVIEW DENIED. 2 16-74037	{ "pile_set_name": "FreeLaw" }
848 F.2d 992 PEOPLE OF THE TERRITORY OF GUAM, Plaintiff-Appellee,v.John George GENTAPANAN, Defendant-Appellant. No. 87-1216. United States Court of Appeals,Ninth Circuit. Argued and Submitted April 5, 1988.Decided June 7, 1988. Howard G. Trapp, Trapp & Untalan, Agana, Guam, for defendant-appellant. Frances Tydingco-Gatewood, Asst. Atty. Gen., Agana, Guam, for plaintiff-appellee. Appeal from the United States District Court for the District of Guam. Before WALLACE, REINHARDT and NOONAN, Circuit Judges. NOONAN, Circuit Judge: 1 John G. Gentapanan was convicted of the misdemeanor of drunk driving in violation of Guam Government Code Sec. 23405(a). He appeals from his conviction. Three points of criminal procedure in Guam are involved in the decision of the appeal. 2 Proceedings. Gentapanan first pleaded not guilty to the charge in 1983. The government filed a motion in liminine to exclude at trial any evidence as to his state of mind. A court-appointed psychiatrist had already diagnosed Gentapanan as suffering "from a mental defect which is termed borderline mental retardation." The psychiatrist had further concluded that Gentapanan was fit and competent to be proceeded against but that his ability to understand and participate was "limited" and would "require effort and patience on the part of his counsel." 3 After the government had filed its motion Gentapanan moved to be allowed to plead not guilty by reason of mental illness, disease or defect. On September 30, 1983 the Superior Court granted the government's motion to exclude evidence as to Gentapanan's state of mind. 4 On January 25, 1984 Gentapanan withdrew his plea of not guilty and entered a plea of no contest. He was accompanied by his counsel, Richard Untalan. The court informed Gentapanan of the effect of his plea and asked whether he insisted upon it. He persisted in the plea. The court then addressed him personally and found that the plea was made voluntarily and with an understanding of the nature of the charge and the consequences of the plea. The court also found that there was a factual basis for the plea, accepted it and entered judgment, sentencing Gentapanan to six months in the Guam Penitentiary, a fine of $500 plus costs, and six months suspension of his driver's license. 5 Gentapanan timely appealed to the Appellate Division of the United States District Court of Guam. He subsequently moved to remand the case to the Superior Court so he could withdraw his plea of no contest. The Appellate Division granted this motion, and Gentapanan then moved in the Superior Court to set aside the judgment of conviction and to permit him to withdraw his plea of no contest. At a hearing on September 17, 1984 Gentapanan testified that no one had discussed with him the effect of his plea of no contest on his right to appeal the order granting the motion to exclude evidence of his state of mind. The Superior Court denied the motion to withdraw the plea. Gentapanan appealed. 6 On July 7, 1986 the Appellate Division affirmed the conviction, holding that the Superior Court did not abuse its discretion by denying Gentapanan's motion to withdraw his plea of no contest. Gentapanan appealed to us. However, the Appellate Division requested a remand for further proceedings, which we granted. The Appellate Division then issued a supplemental opinion holding that by pleading no contest Gentapanan waived his argument that the Superior Court erred in granting the motion to exclude evidence of his state of mind. Gentapanan again appealed to us. 7 Analysis. The government argues that the Appellate Division had no jurisdiction inasmuch as Gentapanan failed to perfect his appeal because he did not follow the procedure for appeal of a judgment after a conviction following a plea of no contest as that procedure is set out in Guam Crim.Proc.Code Sec. 130.15(e). This statute requires the defendant to file a written statement showing reasonable grounds for challenging the legality of any proceedings held in the case under section 65.15 before taking an appeal. The statute applies only to defendants who enter a nolo or guilty plea "based upon the refusal of the court to grant a prior motion of the defendant to suppress evidence against him." Id. Sec. 130.15, note. The statute is not relevant here. 8 The order denying the motion to withdraw Gentapanan's plea was appealable under id. Sec. 130.15(c), which provides for appeals from "any order made after judgment affecting the substantial rights of the defendant." The refusal to permit withdrawal did affect substantial rights of Gentapanan. The Appellate Division did have jurisdiction. 9 The basis on which Gentapanan contends that the Superior Court should be reversed is that there was "manifest injustice" in not permitting him to withdraw his plea. Id. Sec. 120.42. The manifest injustice, it is argued, is that he did not understand that by his plea of no contest he was giving up his appeal on the motion to suppress any evidence of his state of mind. 10 This argument is not persuasive. Guam sets out with precision what a trial judge must do in accepting a plea of no contest. Id. Secs. 60.50 and 60.60.1 The Superior Court complied with these provisions. There is no basis for a court writing in further conditions beyond those specified by the Legislature of Guam. 11 Gentapanan was represented by counsel. Counsel surely understood the effect of a no contest plea. Given Gentapanan's state of borderline mental retardation, there would have been very little advantage to him if the trial court had explained to him all the legal implications of his plea. The consequences were amply and intelligibly conveyed when the court in compliance with Guam statute told Gentapanan that if he pleaded no contest there would "not be a further trial of any kind" and that by his plea he was waiving "the right to a trial." Id. Sec. 60.50(c). 12 On this appeal it is also urged on Gentapanan's behalf that there were two not guilty pleas before the court--one not guilty and the other not guilty by reason of mental defect. Both pleas were effectively abandoned, knowingly and voluntarily and with the assistance of counsel withdrawn, when Gentapanan pleaded no contest on January 25, 1984. 13 AFFIRMED. REINHARDT, Circuit Judge, concurring: 14 I concur in the result. 1 Guam Crim.Proc.Code Sec. 60.50 provides: The court shall not accept a plea of guilty or nolo contendere without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following: (a) the nature of the charge to which the plea is offered; (b) that the defendant has the right to plead not guilty, or to persist in that plea if it has already been made; (c) that if he pleads guilty or nolo contendere there will not be a further trial of any kind, so that by pleading guilty or nolo contendere he waives the right to a trial; and (d) the maximum possible penalty provided by the law for the offense to which the pleas is offered including that possible from the imposition of an extended term pursuant to Sections 80.38 and 80.40 of the Criminal and Correctional Code. Guam Crim.Proc.Code Sec. 60.60 provides: The court shall not accept a plea of guilty or nolo contendere without first, by addressing the defendant personally in open court, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement. The court shall also inquire as to whether the defendant's willingness to plead guilty or nolo contendere results from prior discussions between the attorney for the government and the defendant or his attorney.	{ "pile_set_name": "FreeLaw" }
529 F.Supp.2d 604 (2008) Oded BEN-JOSEPH, Plaintiff, v. MT. AIRY AUTO TRANSPORTERS, LLC, et al., Defendants. Civil No. JFM 07-1922. United States District Court, D. Maryland. January 4, 2008. 605 Gregory Gene Hopper, Salsbury Clements Bekman Marder and Adkins "LLC, Baltimore, MD, Katherine Aim Watras, Michael Gary Paris, Nystrom Beckman and Paris LLP, Boston, MA, for Plaintiff. Thomas Patrick Ryan, McCarthy Wilson LLP, Baltimore, MD, Howard Meinster, Michael J. Budow, Budow and Noble PC, Bethesda, MD, for Defendants. OPINION J. FREDERICK MOTZ, District Judge. Plaintiff Oded Ben-Joseph has brought suit against defendants Mt. Airy Auto Transporters, LLC ("Mt. Airy"), Brian Rogers, and Superior Auto Service, Inc. ("Superior") jointly and severally for injuries he sustained as a result of an automobile accident involving a Lincoln Town Car and a tractor-trailer truck (the "truck") owned by Mt. Airy, (Compl.¶¶ 1-15.) Plaintiff alleges that Mt. Airy's truck struck the Lincoln Town Car, in which plaintiff was a passenger, after negligently running a red light after the truck's brakes failed. (Id. ¶ 12.) Defendants' negligent inspection and maintenance allegedly caused the brake failure. (Id. ¶¶ 13-14.) Plaintiff seeks both compensatory damages in excess of $75,000 and punitive damages. (Id. ¶¶ 20, 26, 33.) Defendants have moved to dismiss plaintiff's claim for punitive damages, and plaintiff's oppositions and defendants' replies have followed. For the reasons detailed below, I deny defendants' motions to dismiss. I. The facts, as alleged in plaintiffs complaint, are as follows. Plaintiff was severely injured on December 8, 2005, when Mt. Airy's truck ran a red light at the intersection of Route One and Ridge Road in South Brunswick, New Jersey, and slammed into the side of the Lincoln Town Car in which plaintiff was riding. (Id. ¶ 1.) Traveling eastbound on Ridge Road, the Lincoln Town Car lawfully entered the intersection with a green turn arrow and began to make a left turn when it was. struck by the, truck driving southbound on Route One. (Id. ¶¶ 9-12.) Defendant Rogers, acting as an agent and/or employee of Mt. Airy, was the driver of the truck, and defendant Superior had worked on the truck's brakes shortly before the collision. (Id. ¶¶ 1, 5.) After the accident, the New Jersey State Police Commercial Vehicles Inspection Unit inspected the truck and determined that its brakes had failed. (Id. ¶ 13.) In addition, the New Jersey State Police Traffic-Truck Enforcement Division cited the truck for violating several provisions of the Federal Motor Carrier Regulations ("FMCR").[1] (Id. ¶ 14.) As a direct and proximate result of the accident, plaintiff suffered severe physical, emotional, and economic injury. (Id. ¶ 15.) Plaintiff alleges three counts of negligence against defendants: (1) that Rogers and Mt. Airy negligently failed to properly operate Mt. Airy's truck, and to inspect and maintain the condition of the truck's brakes, (Id. ¶¶ 16-18); (2) that Mt. Airy negligently failed to develop and implement adequate safety programs to prevent the accident, to properly supervise its agents and employees, and to maintain and repair its truck's brakes, (Id. ¶¶ 21-24); and (3) that Superior negligently performed maintenance and repairs on the mechanical and brake systems of the truck, and knew or should have y known that the brakes and other equipment on the truck were defective. (Id. ¶¶ 27-31.) Plaintiff alleges further, that the harms 606 caused by the three defendants "were actuated by actual malice and accompanied by a wanton and willful disregard of persons who foreseeably might be harmed by those acts or omissions, deliberately and/or with knowledge of a high degree of probability of harm to another and with reckless indifference to the consequences of the acts or omissions." (Id. ¶¶ 20, 26, 33.) II. In Bell Atl. Corp. v. Twombly, ___ U.S. ___, ____, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007), the Supreme Court held that, in order to survive a motion to dismiss, a plaintiff must plead plausible, not merely conceivable, facts in support of her claim.[2] The complaint must state "more than labels and conclusions, and a formulaic recitation of the elements of a cause, of action will not do." Id. at 1965. In considering a motion to dismiss, a court must "accept the factual allegations of the complaint as true and must view the complaint in the light most favorable to the plaintiff." GE Inv. Private Placement Partners II v. Parker, 247 F.3d 543, 548 (4th Cir.2001). "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, 152 L.Ed.2d 1 (2002). There are two issues raised by defendants' motions to dismiss plaintiff's punitive damages claim. The first is a choice of law question: whether Maryland or New Jersey substantive law applies in the instant case. Because Maryland's and New Jersey's standard for punitive damages differs, only after determining which law to apply can I determine the second issue: whether plaintiff can prove a plausible set of facts in support of his punitive damages claim which would entitle him to relief. A. In an action based upon diversity of citizenship, the relevant state law controls. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The district court must apply the law of the forum state, including its choice of law rules. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Maryland adheres to the lex loci delicti rule in analyzing choice of law problems with respect to causes of action sounding in tort. Erie Ins. Exch. v. Heffernan, 399 Md. 598, 925 A.2d 636, 648-49 (2007); Lab. Corp. of Am. v. Hood, 395 Md. 608, 911 A.2d 841, 844 (2006); Philip Morris v. Angeletti, 358 Md. 689, 752 A.2d 200, 230 (2000). Under lex loci delicti, the law of the state where the tort or wrong was committed applies. Hood, 911 A.2d at 844. Where the events giving rise to a tort action occur in more than one state, the court must apply "the law of the State where the injurythe last event required to constitute the tortoccurred." Heffernan, 925 A.2d at 649; Hood, 911 A2d at 845. Similarly, Section 377 of the First Restatement of Conflict of Laws states that "[t]he place of the wrong is in the state where the last event necessary to make an actor liable for an alleged tort takes place."[3] Restatement (First) of Conflict of Laws 377 (1934). 607 Defendant Superior argues that because its alleged negligence in contracting for and performing repairs and maintenance on the truck took place in Maryland, "`the last event necessary to make an actor liable for an alleged tort' must have occurred in Maryland, and as such Maryland's substantive law governs any claims arising from that work."[4] (Superior's Re ply at 2 (internal citations omitted).) Superior's argument is unpersuasive, however. In the instant case, plaintiffs cause of action against Superior for negligent repair and maintenance would not exist, but for Mt. Airy's truck colliding with the. Lincoln Town Car in which plaintiff was a passenger. That Superior's allegedly negligent conduct occurred in Maryland does not change this fact. The Court of Appeals of Maryland has stated explicitly that "when the events giving rise to a suit occur in a number of states[,] [a]s a general rule, the place of the tort is considered to be the place of the injury." Angeletti, 752 A2d at 231; see also Johnson v. Oroweat Foods Co., 785 F.2d 503, 511 (4th Cir. 1986) (explaining that under Maryland conflict of law jurisprudence, "[t]he place of injury is the place where the injury was suffered, not where the wrongful act took place").[5] Recent decisions by the Court of Appeals of Maryland provide further support for applying the law of the place of injury, not the place of negligent conduct. In Hood, parents brought a negligence action against a testing laboratory, alleging that the laboratory's erroneous report stating that their fetus did not carry the cystic fibrosis genetic mutation resulted in the "wrongful birth" of their child. Hood, 911 A.2d at 842. At issue was whether to apply the substantive law of Maryland, where the injury (the birth) occurred, or of North Carolina, where defendant's negligent acts or omissions took place. Id. at 843. In answering questions certified to it by the United States District Court for the District of Maryland, the Court of Appeals of Maryland agreed with the District Court that "the place where the last event required to give rise to the tort occurred determines the law that should apply, that in personal injury claims the last event required to give rise to the tort is the injury, and that the injury in this action occurred in Maryland, where [the child] was born."[6]Id. at 844, 847; see also 608 Heffernan, 925 A.2d at 649 (applying tort principles to a breach of contract, the court held: ". . . because the automobile collision occurred in Delaware, under Maryland law, a Maryland Court would apply the substantive law of Delaware [rather than Maryland, where the insurance contract was executed] to determine what the claimants are `entitled to recover' in an action, for uninsured motorist benefits"). For the foregoing reasons, and because Maryland courts have held punitive damages to be of a substantive nature, Naughton v. Bankier, 114 Md.App. 641, 691 A.2d 712, 716 (1997), I will apply New Jersey substantive law to determine whether plaintiff has stated a sufficient claim for punitive damages against the three defendants in the instant case. B. New Jersey's Punitive Damages Act of 1995 (the "Act") provides that punitive damages may be awarded "only if the plaintiff proves by clear and convincing evidence, that the harm suffered was ,the result of the defendant's acts or omissions, and such acts or omissions were [1] actuated by actual malice or [2] accompanied by wanton and willful disregard of persons who foreseeably might be harmed by those acts or omissions."[7] N.J.S.A. 2A:15-5.12(a). Furthermore, the plaintiff may not satisfy this burden of proof "by proof of any degree of negligence including gross negligence." Id. The Act in most respects codified the common law in New Jersey. Pavlova v. Mint Mgmt. Corp., 375 N.J.Super. 397, 868 A.2d 322, 326 (App.Div.2005). New Jersey law limits punitive damages to only "exceptional cases . . . as a punishment of the defendant and as a deterrent to others from following his example." Di Giovanni v. Pessel, 55 N.J. 188, 260 A.2d 510, 511 (1970). To warrant the imposition of punitive damages "the defendant's conduct must have been wantonly reckless or malicious. There must be an intentional wrongdoing in the sense of an `evil-minded act' or an act accompanied by a wanton and willful disregard of the rights of another . . ." Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 477 A.2d 1224, 1230 (1984). Circumstances of "aggravation and outrage," beyond the simple commission of a tort, are required to award punitive damages. Pavlova, 868 A.2d at 326; Dong v. Alape, 361 N.J.Super. 106, 824 A.2d 251, 257 (App.Div.2003). Thus, mere negligence, however gross, is not enough. Id. A plaintiff must demonstrate a "deliberate act or omission with knowledge of a high degree of probability of harm and reckless indifference to consequences." Berg v. Reaction Motors Div., 37 N.J. 396, 181 A.2d 487, 496 (1962). This standard can only be established "if the defendant knew or had reason to know of circumstances which would bring home to the ordinary reasonable person the highly dangerous character of his or her conduct."[8]Pavlova, 868 A.2d at 326. Defendant Mt. Airy argues that plaintiff fails to meet New Jersey's standard because "Plaintiff sets forth no facts in his Complaint to support the necessary contention that Defendant's conduct was intentional or deliberate." (Mt. Airy's Reply 609 at 4.) Defendant Superior similarly ,asserts that plaintiffs allegations that Superior's alleged negligence was malicious or wanton are "broad and conclusory statenients . . . wholly unsupported and . . . inapposite to the facts set forth in Plaintiffs Complaint." (Superior's Reply at 5.) s In support of their argument, defendants devote a significant portion of their replies to distinguishing the facts of the instant case from Smith v. Whitaker, 160 N.J. 221, 734 A.2d 243 (1999), in which the court upheld punitive damages where an oil truck killed a motorist when it was unable to stop due to maladjusted rear brakes. (See Mt. Airy's Reply at 2-4, 7-8; Superior's Reply at 6-8.) Defendant Mt. Airy contends that while the driver in Smith "was inexperienced, knew nothing about adjusting brakes, and had never been trained on how to perform a pre-trip inspection," Mt. Airy "employed a driver, Brian [Rogers], who possessed a valid Commercial Drivers' License, had many years' experience operating commercial vehicles, and had been trained and routinely performed pre- and post-trip inspections on the truck." (Mt. Airy's Reply at 3.) In addition, Mt. Airy submits that it "had it its truck fully inspected and serviced, including its brakes . . . a mere thirty-eight (38) days before the accident occurred." (Id.) Superior similarly asserts that while the defendants in Smith were aware of the defects in the truck's braking system prior to the accident, the evidence in the instant case has shown only that the defects in Mt. Airy's truck's brakes were discovered after the accident. (Superior's Reply at 6-7.) These arguments are inappropriate on a motion to dismiss, however. Mt. Airy relies upon evidence not in the complaint, while Superior draws evidentiary conclusions prior to any discovery. At the motion to dismiss stage, the issue is not whether plaintiffs evidence is sufficient to warrant the imposition of punitive damages, but whether plaintiff has pled "enough facts to state a claim to relief that is plausible on its face." Twombly, 127 S.Ct. at 1974. Superior and Mt. Airy further argue that "[n]owhere in the Complaint" does plaintiff allege any facts that defendants were aware of any alleged problems or defects with the truck's braking system prior to the accident at issue. (Superior's Reply at 6; Mt. Airy's Reply at 4.) Mt. Airy additionally argues that plaintiffs complaint fails to allege sufficient facts to satisfy the four factors that must be considered under New Jersey law in determining whether punitive damages are to be awarded.[9] (Mt. Airy's Reply at 6-7.) These arguments, although appropriate at the motion to dismiss stage, are unpersuasive. I conclude that Ben-Joseph has pled enough facts to state a claim to relief that is plausible on its face. Plaintiff has alleged that the truck's brakes were inoperable at the time of accident, violating the Federal Motor Carrier Regulations, and that Rogers, Mt. Airy, and Superior knew or should have known of this fact. (Compl.¶¶ 13-14, 23, 30.) In support of this allegation, plaintiff has alleged that Rogers failed to inspect and monitor the condition of the brakes before driving the truck, (Compl.¶ 18); that Mt. Airy "negligently [and] recklessly . . . failed to take proper steps to adequately maintain the 610 brakes," (Compl.¶ 18); and that Superior, which had performed repairs on the truck's brakes on October 31, 2005 (approximately five weeks before the accident), acted "with complete disregard for the safety of others." (Compl.¶ 29-30.) As to the alleged negligence of the three defendants in not adequately inspecting, maintaining, and servicing the truck's brakes, plaintiff has alleged that they acted: "with actual malice"; "[with] a wanton and willful disregard of persons who foreseeably might be harmed by those acts or omissions"; "deliberately and/or with knowledge of a high degree of probability of harm to another"; and "with reckless indifference to the consequences of the acts of omissions."[10] (Compl.¶¶ 20, 26, 33.) A court may dismiss a complaint "only if it is clear that no relief could be granted under any [plausible] set of facts that could be proved consistent with the allegations." Swierkiewicz, 534 U.S. at 514, 122 S.Ct. 992. It is unclear at this time whether sufficient evidence will be produced during discovery to prove that defendants were aware of the defective breaks and wantonly disregarded the high degree of probable harm that this danger posed to others.[11] However, for purposes of a motion to dismissviewing the complaint in the light most favorable to the plaintiffI conclude that, just as in Smith, it is plausible that defendants acted with "wanton or willful disregard of persons who foreseeably might be harmed by those acts or omissions." N.J.S.A. 2A:15-5.12(a). Accordingly, I deny defendants' motions to dismiss plaintiffs punitive damages claim. A separate order to that effect is being entered herewith. ORDER For the reasons stated in the attached Opinion, it is, this 4th day of January 2008 ORDERED 1. The motion to dismiss plaintiffs claim for punitive damages (document # 11) filed by Superior Auto Service, Inc. is denied; 2. The motion to dismiss plaintiffs claim for punitive damages (document # 19) filed by Mt. Airy Auto Transporters is denied; and *611 3. The motion to dismiss plaintiffs claim for punitive damages (document # 29) filed by Brian Rogers is denied. NOTES [1] The violations included FMCR 49 § 393.43, for having an inoperable parking brake and for having "cable not connected to the truck/4th axle on the right side brake inoperable] for breakaway"; FMCR 49 § 48(a), for having inoperable brakes; and FMCR 49 § 396-A(1)(B)(A), for having brakes which were not in proper operating order. [2] Prior to Twombly, Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), set the standard, granting 12(b)(6) dismissals for failure to state a claim only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." [3] Note 1 to § 377 explains further: "Except in the case of harm from poison, when a person sustains bodily harm the place of wrong is the place where the harmful force takes effect upon the body." Restatement (First) of Conflict of Laws § 377, Note 1 at 455-56 (1934). "Because Maryland is among the few states that continue to adhere to the traditional conflict of laws principle of lex loci delicti, the First Restatement of Conflict of Laws, while of merely historical interest elsewhere, continues to provide guidance for the determination of lexi loci delicti questions in Maryland." Hood, 911 A.2d at 845; Angeletti, 752 A.2d at 231 n. 25. [4] In its reply memorandum, defendant Mt. Airy appears not to contest that New Jersey law governs because it addresses only issues arising under New Jersey law. (See Mt. Airy's Reply at 1.) Defendant Rogers has not filed a reply, and thus has not addressed the conflicts question. Because Rogers's alleged negligence occurred in his operating of the truck in New Jersey, the issue of his liability is clearly determined by New Jersey law under Maryland's lex loci delicti rule. Similarly, because Mt. Airy owned the truck, and was allegedly negligent for not properly maintaining its equipment and supervising its agents (and allegedly also vicariously liable for Rogers's negligence), the issue of its liability is also clearly determined by New Jersey law. [5] Robert A. Leflar, American Conflicts Law , § 133, at 267 (3rd ed.1977) similarly states: "Some acts . . . produce impacts across state lines. The orthodox rule, with torts as with crimes, is that when an act operates across a state line its legal character is determined by the law of the place where it first takes harm. ful effect or produces the result complained of." (footnotes omitted). [6] There is nothing in the current record that supports the application of either of two limited exceptions to this traditional rule: (1) Section 380(2) of the First Restatement of Conflict of Laws, or (2) a public policy exception, which were both recognized as valid exceptions in Maryland in Hood, 911 A.2d at 844-51. [7] "Actual malice" is "an intentional wrongdoing in the sense of an evil-minded act." N.J.S.A. 2A:15-5.10. "Wanton and willful disregard" is defined as "a deliberate act or omission with knowledge of a high degree of probability of harm to another and reckless indifference to the consequences of such act or omission." Id. [8] In contrast, under Maryland law, a plaintiff may only be awarded punitive damages if he proves "actual malice," defined as "conscious and deliberate wrongdoing, evil or wrongful motive, intent to, injure, ill will, or fraud." Bowden v. Caldor, Inc., 350 Md. 4, 710 A.2d 267, 276 (1998). [9] These four factors are: "(1) The likelihood, at the relevant time, that serious harm would arise from the defendant's conduct; (2) The defendant's awareness of reckless disregard of the likelihood that the serious harm at issue would arise from the defendant's conduct; (3) The conduct of the defendant upon learning that its initial conduct would likely cause harm; and (4) The duration of the conduct or any concealment of it by the defendant." N.J.S.A. 2A:15-5.12(b). [10] In an essentially identical set of allegations, the plaintiff in Smith alleged that "defendants . . . either knew or should have known that the braking systems and braking mechanisms on the vehicle being operated by . . . [the, defendant driver] . . . were faulty, defective and not in proper working order, but . . . defendants negligently, recklessly and with callous disregard for the safety of others, failed to take such proper steps as were necessary to adequately service, maintain and ensure that the braking mechanisms on said vehicle were in proper working order." Smith, 313 N.J.Super. 165, 713 A.2d 20, 22 (App.Div.1998). Smith also alleged that the "carelessness and recklessness" of defendants was "willful, wanton, and with knowledge of a high degree of probable harm to others such that the deliberate and wanton failure of the defendants . . . should be assessed with punitive and exemplary damages." Id. at 22-23. [11] It is worthy of note that defendants have not produced a single case in New Jersey, or in any other state with a similar punitive damages standard, in which a court has dismissed a plaintiff's punitive damages claim on a motion to dismiss. In two of the more recent New Jersey cases in which an appellate court held that plaintiff was not entitled to punitive damagesParks v. Pep Boys, 282 N.J.Super. 1, 659 A.2d 471, 478-79 (App.Div. 1995) (where the store sold Freon to a fourteen-year old boy, who used the Freon with friends as a drug), and Allendorf v. Kaiserman Enters., 266 N.J.Super. 662, 630 A.2d 402, 409 (App.Div.1993) (where the plaintiff was injured when an elevator door malfunctioned)the trial court had decided the matter on summary judgment after compiling an evidentiary record, not on a motion to dismiss.	{ "pile_set_name": "FreeLaw" }
105 N.J. 249 (1987) 520 A.2d 3 IN THE MATTER OF HUBERT T. JOHNSON, AN ATTORNEY-AT-LAW. The Supreme Court of New Jersey. Argued January 23, 1986. Reargued June 5, 1986. Decided January 30, 1987. 250 Robyn M. Hill, Deputy Ethics Counsel, Argued the cause on behalf of the Office of Attorney Ethics. Richard R. Width argued the cause for respondent (Lindabury, McCormick and Estabrook, attorneys). PER CURIAM. Acting on a presentment filed by the District V-A Ethics Committee (Essex DEC) and five presentments filed by the District XII Ethics Committee (Union DEC), the Disciplinary Review Board (DRB) determined that respondent, Hubert T. Johnson, had committed numerous ethical infractions. Specifically, the DRB concluded that respondent failed to carry out contracts of employment, in violation of DR 7-101(A)(2); that his misconduct demonstrated a pattern of neglect in his handling of clients' legal matters, contrary to DR 6-101; and that he kept retainers without performing services therefor, commingled clients' trust funds, and failed to account to his clients as required by DR 9-102, all of which reflected adversely on his fitness to practice law. See DR 1-102(A)(6). Because these professional delinquencies are alleged to have occurred between 1978 and 1982, respondent's conduct was governed by the precepts set forth in the Disciplinary Rules then in effect, 251 rather than in the Rules of Professional Conduct, which were adopted on July 12, 1984, to be effective September 10, 1984. See Rule 1:14. Most notably, the DRB found that in respect of the three charges involving unauthorized use of clients' funds and misappropriation the Fluker, Mack, and Briggs matters addressed below there was "no evidence that respondent intentionally or knowingly misappropriated clients' funds," and hence the disbarment rule of In re Wilson, 81 N.J. 451 (1979), did not obtain. The DRB unanimously concluded that respondent's ethical transgressions warranted his being suspended from the practice of law for three years retroactive to the date of his temporary suspension, December 16, 1982, and that he should not be readmitted until he reimburses the Clients' Security Fund the full amount of $29,501.68 paid out by the Fund to eleven claimants, of which $13,672.94 had been paid back to the Fund by the date of the DRB's Decision and Recommendation. The Office of Attorney Ethics (OAE) resists the DRB's recommendation of a three-year suspension. It seeks respondent's disbarment, based on "overreaching * * * and, most seriously, multiple instances of post-Wilson misappropriation of client trust funds." Our independent review of the record does not satisfy us that there is clear and convincing evidence of respondent's knowing misappropriation of funds held in trust for clients. We therefore accept the DRB's recommendation for discipline short of disbarment. I Because our concern is concentrated on the misappropriation cases, we pause on the complaints that involve failure to carry out contracts of employment, failure to communicate with clients, and conduct amounting to a pattern of negligence the Ashford, Howell, and Bunn matters only long enough to record our conclusion that the record demonstrates those infractions, except in the Ashford case, by clear and convincing 252 evidence. The Ashford matter we see as a fee dispute involving at most a misunderstanding of the terms of the retainer agreement. Respondent has acknowledged that he owes Mrs. Ashford a refund, the prospects of collecting which are remote, at least at this time, in view of respondent's indigency. II The misappropriation cases, three in number, involve respondent's clients Fluker, Mack, and Briggs. We recite the pertinent facts separately. A Respondent represented Runette Fluker, guardian ad litem of Sherri Fluker, an infant, in her claim against one Elton Hill and the City of Newark. The case was settled for a total of $20,000. On November 17, 1980, Judge Margolis entered judgment in favor of Sherri Fluker for $10,901.68, representing the infant's share of the proceeds. The order for judgment required that the infant's share be deposited with the Essex County Surrogate, to be maintained by the Surrogate and the guardian ad litem in an interest bearing account. The City mailed its check for $20,000 payable to respondent and Runette Fluker as guardian ad litem, on January 13, 1981. The check was endorsed and respondent deposited it in his trust account the following day, January 14, 1981. Respondent did not thereafter deposit the funds with the Surrogate or otherwise bring them under the Surrogate's control. Letters dated November 4, 1982, and November 5, 1982, from Judge Scalera and the Essex County Surrogate respectively, inquiring about the infant's funds went unanswered. On December 9, 1982, Judge Scalera signed an order directing respondent to show cause why he should not be compelled to comply with Judge Margolis's prior order. Thereafter Judge Scalera directed respondent to deliver $10,901.68 to the Surrogate. Respondent failed to comply with that order, wherefore 253 yet another order was entered, requiring respondent to pay $7500 to the Surrogate by February 17, 1983, on account of the $10,901.68 judgment, which by that time had accumulated an additional $3,208 in interest. Respondent deposited the $7500 on February 22, 1983. On April 6, 1983, Judge Scalera entered a consent judgment against respondent for $6686.68, the monies withheld by respondent, plus interest. Additional interest was to be accrued until the judgment was satisfied. When the ethics complaint was filed on June 1, 1984, the judgment had not yet been paid, but respondent deposited the funds with the Surrogate around September 1984. B Mack, like Fluker, involves funds of an infant. On April 5, 1982, Judge Harth entered judgment in favor of Rahin Mack, an infant, for $7,153. The order required that the funds be deposited with the Essex County Surrogate for the benefit of the infant. Respondent thereafter failed to file guardianship papers, so on October 14, 1982, the Surrogate requested information concerning those documents. Respondent did not comply with the request, nor did he respond to a letter of October 21, 1982, from the then-Division of Ethics and Professional Services (now the Office of Attorney Ethics) asking for an explanation of the failure to file a guardianship complaint and for an accounting of the proceeds of the settlement. On November 1, 1982, respondent delivered his attorney's check in the amount of $7,153 to the Surrogate for the account of Rahin Mack. The bank returned the check for insufficient funds. An accounting firm's audit of November 5, 1982, disclosed that respondent did not maintain a client ledger book supporting his trust account activity, as required by Rule 1:21-6, nor had he ever deposited the Mack funds into his trust account or disbursed any trust funds for the benefit of Rahin Mack. 254 C Thomas C. Briggs, Jr. retained respondent on April 22, 1978, to commence a guardianship proceeding relating to his father and to file a civil action on behalf of Mr. Briggs, Sr. against the Department of Corrections and the Parole Board. Mr. Briggs, Sr. was at that time confined in the New Jersey State Prison system and experiencing poor health. Respondent prepared a Complaint seeking his appointment as guardian of the person and property of Thomas C. Briggs, Sr., with a renunciation filed by Thomas C. Briggs, Jr. Before respondent could begin to function as guardian, Mr. Briggs, Sr. died. Thereafter respondent took control of funds of the decedent on deposit in a Trenton bank, as well as a parcel of real estate owned by decedent. His agreement with the Briggs family was that in addition to acting as administrator and attorney for the estate, he would pursue the action against the state agencies for their alleged mistreatment of Mr. Briggs, Sr. There was an agreed retainer of $3500 for services in connection with the estate; the law suit was to be handled on a contingency basis. Respondent, in his capacity as administrator, withdrew $4,617.16 from the Trenton bank account, the total balance in which was $9,234.33. He used $3500 of the withdrawn funds as his retainer and an additional $600 for reimbursement of expenses. The balance of $517.16 he deposited in an estate checking account. After the estate was audited and the inheritance tax filed, respondent withdrew $4782.87 from the Trenton savings account and deposited it in the estate checking account. Thereafter, Thomas C. Briggs, Jr. filed an ethics complaint, charging that respondent had not kept him informed of the status and progress of the law suit, had withdrawn funds from the estate for his own use and without court approval, and had failed to make any accounting of the estate funds. The Division of Ethics and Professional Services obtained an audit of the estate accounts, which disclosed that through an error by the bank, two bad checks that had been issued to respondent 255 for unrelated fees, totalling $1002.00, were incorrectly debited and charged to the estate account rather than to respondent's business account. An inquiry of respondent produced his promise to redeposit or return the $1002.00 to the estate account, but as of the date of the Union DEC hearing in October 1984 the monies had not been refunded. The audit further revealed that respondent did not maintain separate ledger accounts for clients' trust funds, disbursed funds from the estate account and his trust account without any notations of what the disbursements were for, and did not keep any trust ledger page for the Briggs matter. III Respondent acknowledges that he misused clients' funds, that he was out of trust in respect of the Fluker, Mack, and Briggs matters, that he commingled clients' funds, that he failed to account, and that he did not maintain the books and records required by the Disciplinary Rules. He claims, however, that the admitted misuse was entirely unknowing and hence beyond the reach of In re Wilson, supra, 81 N.J. 451. More particularly, respondent asserts that he was so busy attempting to build a law firm, working over ninety hours per week, seven days a week, often operating on three-hours' sleep and occasionally with no sleep at all, that he "lost control" of his office. He says that the people on his staff on whom he relied to maintain his books and records simply failed to do so hastening to add that he does not seek to put the blame on them but instead shoulders that burden himself because of his failure to have supervised or instructed his employees. Perhaps the flavor of respondent's situation can best be appreciated from the following excerpts from his testimony before the Union DEC: I had lost total control of the office, I was out of trust, I did not know I was out of trust and I had unfortunately permitted other people to run my office, for whom I take the blame for, but I had permitted other people to run my office, 256 to run my financial affairs and to do everything that was necessary to be done at * * my law office. I didn't properly supervise them. And the real reason why I didn't properly supervise them is because during 1980 I tried in excess of 12 criminal cases, federal and state, in New York, New Jersey. During 1981 I tried in excess of 12 criminal cases. During 1980 I had over a 100 interviews at my office, none of which I took consultation fees for. The same thing in 1981, over 100 interviews at the office, none of which I took consultation fees for. During 1980 I represented six pool defendants, cases that had been pooled out by the State of New Jersey. And I represented those people. And I just thought as a lawyer I have a responsibility to that community not to bill, so I didn't bill the State for that. I'm giving this testimony to say that at all times I was over extended. * * * * * * * * Also during 1980, 1981, when these matters should have been taken care of and they weren't taken care of, in early 1982, during any given period of time, I appeared in criminal courts and civil courts on more occasions than there were formal court days, meaning this: If there were, say, 200 court days in the calendar year 1980, I appeared in court more than 200 times, and the same thing with 1981. * * * * * * * * [D]uring 1980, 1981, 1982 I never got any more than three hours sleep per night, because I was tied up with this. During that same period of time and during the previous eight years before I was suspended, I never attended a social function by lawyers, doctors or anybody else; I was at work doing what I had indicated to you. * * * * * * * * I was negligent, I was out of trust on Fluker and I take full responsibilities for that. My point and my proof will indicate that I had no knowledge that I was out of trust. As to the parties, during 1979 I hired a law clerk who was in his third year in law school, * * * who was at that time approximately 43 years old. He remained with me up until he passed the bar, * * * up to 1981. [W.G.] I trusted, I still trust. He was my accountant, he was my law clerk, he was my administrator, he kept all my records and all my books. As I indicated, I haven't involved him in this because it was my responsibility to supervise him, supervise the office. And it's absolutely certain to me that any mistake that he made, it was an honest mistake and he just didn't know any better, and that was my fault because I may not have taken enough time to teach him what he should have known with the responsibilities that I had given to him. * * * * * * * * 257 [I]t took me from 1977 up until I was suspended [to build up a practice]. I might add that I went to jail every Sunday, three piece suit. Sunday, I was at somebody's jail; that was part of strategy. I had a client in jail, I'd go see him. * * * * * * * One other thing I'd like to submit to the committee, give you a good example * * . I have a drawing, show you how consumed I was, by my son, then four, five-years old, which says my daddy is a lawyer, I want to be a lawyer, my daddy works all night. That's how consumed I was. * * * * * * * A good example, counsel mentioned I had a case involving Hugh Winchester, who is written up in "Dirty Money" and also written up in the Wall Street Journal as the biggest schemer, security fraudman in the whole United States. I was with him and although he had gotten me, too he wrote me a 10,000 dollar bad check; he got me, too I was with him all day long on my 12th wedding anniversary. I didn't see my wife all day. And there hadn't been one New Year's Day or one Christmas Eve Day where I wasn't in jail. When in July 1981 respondent concluded that someone had taken about $1800 in cash from his office, he "stopped everyone from dealing with the books" and "took that upon [him]self." If anything, things went from bad to worse. As respondent testified: Then to show you I don't know what was going on and I was too busy to even keep up with what I was doing, after that date, July, 1981, although I was writing checks on my regular account, in the book itself, which the committee has now, I didn't have time to make the entries and make the deductions. That's how busy I was, too busy for my own good. I didn't make the entries on my regular account and I didn't make the deductions. I just knew vaguely that I had enough money to cover the checks. * * * * * * * * At that time I started Xeroxing the books. At that time I didn't have the physical time to make the entries * * * and make the deductions. What I would do is Xerox each check myself and hold it, hoping at a later date to do the proper accounting, which I never did do. When the misappropriations came to light and the courts and ethics people began to express their respective concerns, respondent found that he could not cope with the demands of a busy practice and at the same time straighten out his now-catastrophic financial condition. He therefore submitted to a voluntary suspension from the practice of law, effective December 1982. 258 IV We have taken the unusual step of quoting at such great length from respondent's own testimony because no amount of paraphrasing could accurately depict the bizarre state of affairs that respondent constructed for himself. Not a word of respondent's recitation is contradicted. The issue is clear-cut but most difficult of resolution: did respondent knowingly misappropriate clients' funds. The OAE contends that respondent "had to know" that the clients' funds were held in trust, because in the Mack case he "issued checks in that matter on his business account," and in the Fluker case he "knew the * * funds were gone, since he would not respond to any inquiries or directives from either the Surrogate or the trial court * * ." But respondent's calamitous method of doing business is just as reasonable an explanation of the situation (to the extent that any explanation is "reasonable" in these proceedings) as the one the OAE would have us accept, based as it is on the assumption that respondent had any knowledge of what was going on with his accounts. The evidence about respondent's state of mind is no more compelling in the direction of knowledge than it is in the direction of unhealthy ignorance; and before we will disbar on the basis of a lawyer's knowing misappropriation, the evidence of that knowledge must be clear and convincing. We should add that if in fact the record demonstrated, by the requisite degree of proof, that respondent "had to know" of the misuse of clients' funds, we would not hesitate to disbar. Proving a state of mind here, knowledge poses difficulties in the absence of an outright admission. We accept the complementary propositions that an inculpatory statement is not an indispensable ingredient of proof of knowledge, and that circumstantial evidence can add up to the conclusion that a lawyer "knew" or "had to know" that clients' funds were being invaded; but the record before us falls short of the requisite proof in that regard. 259 We perceive that respondent was either a most evil man a thief or he was spectacularly misguided in his all-consuming effort to build a practice at the expense of other considerations most of them ethical and professional considerations, some of them personal. We reject the first proposition and accept the second. Respondent's intense dedication became his undoing. His tireless industry in the interest of some clients made him a danger to others. The shambles he created in his office has brought him perilously close to the permanent loss of the right to practice, which he worked so hard to earn. We see the case, then, as involving more much more than the simple "shoddy bookkeeping" that called for a public reprimand in In re Hennessy, 93 N.J. 358 (1983), in which no one charged respondent, whose practice involved "relatively few legal matters at any one time" id. at 360, with any misappropriation. Ibid. Although we can recall no other ethics case with quite the twists of this one, perhaps In re Orlando, 104 N.J. 344 (1986), serves to illustrate the principle we invoke today. The record in Orlando reflected that "respondent was seriously and inexcusably inattentive to the accounting and bookkeeping details of his voluminous real estate practice," id. at 350, but because the proofs did not add up to a knowing misappropriation, the discipline we imposed was the four-and-one-half years that Orlando had served by way of voluntary temporary suspension. A word of caution is in order. First, we repeat the admonition found in Orlando that [d]isbarment is mandated for the knowing misappropriation of clients' funds, In re Wilson, supra, 81 N.J. 451, for combining operating and trust funds in order to pay personal and office expenses, In re Fleischer, 102 N.J. 440 (1986), and for borrowing from one client's account to make up for a shortfall in another's, In re Arnold E. Brown, 102 N.J. 512 (1986). [93 N.J. at 360.] See also In re Skevin, 104 N.J. 476, 487 (1986) (respondent knew of deficit condition of trust account, knew that it had been produced and was being continued by writing checks against 260 trust accounts that should have remained untouched until used for purposes for which those funds had been entrusted to him; discipline imposed: disbarment). Second, we do not intend to suggest that henceforth a respondent who just walks away from his fiduciary obligation as safekeeper of client funds can expect this Court to take an indulgent view of any misappropriation. We will view "defensive ignorance" with a jaundiced eye. The intentional and purposeful avoidance of knowing what is going on in one's trust account will not be deemed a shield against proof of what would otherwise be a "knowing misappropriation." There may be semantical inconsistencies, but we are confident that within our ethics system, there is sufficient sophistication to detect the difference between intentional ignorance and legitimate lack of knowledge. Finally, we retreat not one bit from the principle that "[i]t is no defense for lawyers to design an accounting system that prevents them from knowing whether they are using clients' trust funds." In re Fleischer, 102 N.J. 440, 447 (1986). Here, however, we are impressed with the absence of clear and convincing proof that respondent in fact "designed" such a system. Rather his delinquencies appear to have resulted from an unwholesome combination of ineptness in respect of office administration and a remarkable absence of equilibrium in balancing his talents and energies with the needs of his clients. Respondent is suspended from the practice of law for the period going back to the time of his temporary suspension, December 16, 1982, or slightly over four years, and until further Order of this Court. In the event respondent applies to have the suspension vacated, we will then consider the propriety of the DRB's condition for readmission that there be restitution of the balance of the funds paid out by the Clients' Security Fund. At that time we will determine as well any further conditions that respondent will have to fulfill, particularly 261 in respect of his engaging in practice as a sole practitioner. Respondent is to reimburse the Ethics Financial Committee for any administrative costs. So ordered. ORDER It is ORDERED that the temporary suspension from the practice of law of HUBERT T. JOHNSON of NEWARK, who was admitted to the practice of law in this state in 1973 and was thereafter suspended on December 16, 1982, shall continue pending the further Order of this Court; and it is further ORDERED that whether respondent's restoration to the bar should be subject to his complete restitution of the balance of funds paid out by the Clients' Security Fund shall abide the Court's consideration of an appropriate application for restoration; and it is further ORDERED that respondent is restrained and enjoined from practicing law during the period of his suspension; and it is further ORDERED that respondent shall continue to comply with all of the requirements of Administrative Guideline No. 23 of the Office of Attorney Ethics governing suspended attorneys; and it is further ORDERED that respondent shall reimburse the Ethics Financial Committee for administrative costs arising out the prosecution of this matter. For suspension Chief Justice WILENTZ and Justices CLIFFORD, HANDLER, POLLOCK, O'HERN, GARIBALDI and STEIN 7. Opposed None.	{ "pile_set_name": "FreeLaw" }
151 F.Supp.2d 1120 (2001) Antonio MOLINAR, Petitioner, v. A.C. NEWLAND, Warden, California State Prison, at Vacaville, California, Respondent. No. C 99-3818 SI. United States District Court, N.D. California. March 22, 2001. 1121 Frank G. Prantil, Sacramento, CA, for Antonio Molinar. Sharon G. Birenbaum, State Attorney General's Office, San Francisco, Ca, for A.C. Newland. ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS ILLSTON, District Judge. On August 11, 1999, Antonio Molinar ("Molinar"), a prisoner at California Department of Corrections, at Vacaville, California, filed a timely Petition for Writ of Habeas Corpus in this Court pursuant to 28 U.S.C. § 2254. On February 29, 2000, this Court ordered respondents to show cause why the writ should not be issued. On May 9, 2000, respondent filed an Answer to Petition for Writ of Habeas Corpus. Petitioner did not file a traverse. BACKGROUND On May 23, 1996 in the Superior Court of Contra Costa County, Molinar was convicted of numerous counts of sexual abuse of four female minors.[1] He was sentenced to 23 years in prison. CT 350-351, 353-354.[2] He appealed to the California Court of Appeal, which affirmed the conviction on March 26, 1997. The California Supreme Court denied review on June 11, 1997. Beginning on June 29, 1998, petitioner filed petitions for a writ of habeas corpus in the Contra Costa County Superior Court, alleging that he was denied his due process right to plead guilty to the charges in exchange for a sentence of 10 years, 6 months initially offered by the Contra Costa County Superior Court Judge.[3] Petition ("Pet."), ¶. 5-6. The petition was denied in a written decision by the Superior Court on October 7, 1998. Id. Subsequent petitions on the same grounds were pursued in the California Court of Appeal 1122 and California Supreme Court, and finally denied on June 30, 1999. Id. Molinar filed the instant petition on August 11, 1999. The petition alleges that Molinar was denied his due process right to plead guilty to the charges against him. Pet., ¶. 1-2. Molinar alleges that Superior Court Judge Grant offered Molinar a maximum sentence of 10 years and 6 months, if petitioner would plead guilty. RT 726:28-727:4; CT 313:4-6. Molinar argues that he attempted to accept the offer at the readiness conference, and told Judge Grant that he was "entering a plea of guilty to everything." RT 727:12-13. However, Judge Grant told Molinar to wait, and that he wanted to discuss this further in his chambers with Molinar's trial counsel and the deputy district attorney. RT 727:13-16; CT 313:6-8. One of the issues discussed was whether the prosecution could use an uncharged event that occurred prior to the plea to later charge Mr. Molinar under the "Three Strikes" law. RT 727:17-20; CT 313:8-11. Molinar's trial counsel believed that there was the potential that a police report statement by a woman who claimed that she was touched on the breast by Molinar could be charged as a felony sexual battery. See RT 727:21-28. The parties consulted others familiar with the "Three Strikes" law and found that the issue of whether a prior event could be filed as a "Three Strikes" offense had not been decided and that no case was pending on the issue at the time. See CT 313:20-24; RT 727:17-20, 728:7-10. Molinar's trial counsel was concerned that by entering the plea without a stipulation from the deputy district attorney not to charge Molinar for his preplea conduct, Molinar "would, in essence, be pleading himself to life in prison." See RT 727:24-27. Molinar then "agreed to enter a plea of everything if the D.A. would just say they would not file the preplea stuff and call it a third strike." RT 727:28-728:2; see also CT 313:24-26. The deputy district attorney refused to enter into such an agreement. RT 728:2-4; CT 313:26. Molinar argues that at this point, the Judge refused to allow Molinar to plead guilty to the charges. Pet., p. 5. Molinar's trial counsel explained that when the "Three Strikes" issue was not resolved and the deputy district attorney continued to refuse to agree not to charge a prior offense under "Three Strikes," the Judge then commented to Molinar's trial counsel, "[t]hen you can't plead. There's just no way." RT 730:10-16; see also CT 313:26-27. After the preliminary hearing, Judge Grant offered Molinar 12 years if Molinar would plead guilty to the charges. RT 728:20-23; CT 314:1-2. The deputy district attorney still would not enter into an agreement that "Three Strikes" would only apply to new offenses. CT 314:2-4. Subsequently, Molinar pled guilty on Counts 7 through 14, and chose to go to trial on the other counts. CT 350. The only issue in dispute at trial concerned the ages of two of the victims. RT 728:18-19, 729:11-15. In the petition now before the Court, Molinar claims that Superior Court Judge Grant and the deputy district attorney interfered with his due process right to plead guilty.[4] Molinar also claims that he accepted Judge Grant's offer of 10 years and 6 months in exchange for his plea of guilty but that the judge would not honor the agreement. LEGAL STANDARD The Antiterrorism and Effective Death Penalty Act of 1996, 110 Stat. 1214 (1996) 1123 ("AEDPA") applies to this petition for habeas corpus, since it was filed after April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 326-327, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). In relevant part, 28 U.S.C. §§ 2241-2254, as amended by AEDPA, states that this Court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's 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." 28 U.S.C. § 2254(d)(1) and (2). Under 28 U.S.C. section 2254(d)(1), a federal court may grant a writ of habeas corpus under the "contrary to" test, with respect to claims adjudicated on the merits in state court, if the state court either (1) fails to apply the correct controlling authority, or (2) if it applies the controlling authority to a case involving facts materially indistinguishable from those in a controlling case but nonetheless arrives at a conclusion opposite to that reached by the Supreme Court on a question of law. See Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1519-1520, 146 L.Ed.2d 389 (2000); Tran v. Lindsey, 212 F.3d 1143, 1150 (9th Cir.2000). Under the "unreasonable application" test, a federal habeas court may grant a writ of habeas corpus with respect to claims adjudicated on the merits in state court if the state court identifies the correct governing legal principle from the Supreme Court's decisions but applies it to a new set of facts in a way that is objectively unreasonable. See Williams, 120 S.Ct. at 1520-1521; Tran, 212 F.3d at 1150. Both prongs of section 2254(d)(1) apply to both questions of law and mixed questions of law and fact. See Tran, 212 F.3d at 1150. In addition, while the "contrary to" and "unreasonable application" clauses have independent meaning, see Williams, 120 S.Ct. at 1519-20, they often overlap which may necessitate examining petitioner's allegations against both standards. See Tran, 212 F.3d at 1143, 1149-50. "[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." See Williams, 120 S.Ct. at 1522. The Ninth Circuit has further defined what constitutes an "unreasonable application" of federal law by applying the "clear error" doctrine. See Tran, 212 F.3d at 1152-53. Under this test, the federal court must reverse a state court decision as an unreasonable application of clearly established federal law when, after independent review of the legal question, the court is left with a "definite and firm conviction" that an error was committedin other words, "that clear error occurred." Id. at 1152-54. DISCUSSION The Superior Court stated in its decision denying Molinar's writ of habeas corpus that: Contrary to counsel's current claim, Judge Grant did not interfere with the petitioner's right to plead guilty to the charges. As the court reads the transcript, 1124 Judge Grant made a pre-preliminary examination offer of 10 years 6 months. Petitioner was prepared to accept that offer at the readiness conference but mathematically the minimum would have to be 10 years 8 months. Before any further action could be taken, Judge Grant asked to see counsel in chambers where "he had a number of issues to discuss." Thereafter, Petitioner did not unequivocally attempt to accept that offer. Counsel had a copy of a police report which indicated that there was an additional uncharged incident concerning the petitioner. (Reporter's Transcript p. 727:17-27.) If the D.A. were to file that case, petitioner would then be facing 25 years to life as a three strike defendant. The D.A. indicated that she could make [no] promises regarding that uncharged offense. Counsel was not inclined to allow his client to proceed where "he would, in essence, be pleading himself to life in prison." (Id., p. 727:26-27.) "So, we went ahead and went to the preliminary hearing." (Id., p. 728:13-14.) After the preliminary hearing, petitioner proceeded to trial, was convicted and sentenced to 23 years in the state prison. Petitioner now wants to revive the 10 year 8 month offer. On this record, this court does not and cannot find that petitioner's right to plead guilty was interfered with by Judge Grant or by any one else. If anything, the attempt to accept the offer was withdrawn in the face of the potential exposure to 25 years to life if the uncharged offense was subsequently filed. See Answer, Exhibit J. This Court finds that the Superior Court's decision was not an "unreasonable application" of or "contrary to" clearly established federal law. Molinar contends that he has a constitutional right to plead guilty and that the superior court judge violated this right. The Supreme Court in North Carolina v. Alford, 400 U.S. 25, 38 n. 11, 91 S.Ct. 160, 168 n. 11, 27 L.Ed.2d 162 (1970) stated that a trial judge need not "accept every constitutionally valid guilty plea merely because a defendant wishes so to plead" and that "[a] criminal defendant does not have an absolute right under the Constitution to have his guilty plea accepted by the court, ... although the States may by statute or otherwise confer such a right." The Supreme Court in Santobello v. New York, 404 U.S. 257, 260, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971) confirmed that "[t]here is ... no absolute right to have a guilty plea accepted" and that "[a] court may reject a plea in exercise of sound judicial discretion." This Court recognizes that, as respondent has pointed out, Molinar has a statutory right to plead guilty under California Penal Code section 859a(a). Section 859a(a) provides in relevant part: (a) If the public offense charged is a felony not punishable with death, the magistrate shall immediately upon the appearance of counsel for the defendant read the complaint to the defendant and ask him or her whether he or she pleads guilty or not guilty to the offense charged therein.... While the charge remains pending before the magistrate and when defendant's counsel is present, the defendant may plead guilty to the offense charged.... Upon accepting the plea of guilty ... the magistrate shall certify the case ... to the court in which judgment is to be pronounced ... and thereupon the proceeding shall be had as if the defendant had pleaded guilty in that court. Cal.Penal Code § 859a(a). Molinar, in asserting that he "has a constitutional right to plead guilty, even 1125 against the advice of counsel," relies on People v. Vaughn, 9 Cal.3d 321, 107 Cal. Rptr. 318, 508 P.2d 318 (1973) (superceded by Penal Code § 1018). See Pet., p. 7-8. There are several reasons why Vaughn does not apply to Molinar's case. First, the court in Vaughn dealt with the question of whether the defendant could plead guilty to a capital charge against the advice of counsel under Penal Code § 1018,[5] and whether accepting such a plea violated defendant's right to self-representation or defendant's right to effective assistance of counsel. See id. at 328, 107 Cal.Rptr. 318, 508 P.2d 318. Notwithstanding § 1018, Vaughn held that defendant could plead guilty against the advice of counsel, as "long as defendant was competent and his decision voluntary and informed." Id. However, "the Legislature closed the statutory gap revealed in Vaughn by adding to section 1018 the further requirement that a court cannot accept a guilty plea to a capital charge `without the consent of the defendant's counsel.'" People v. Chadd, 28 Cal.3d 739, 749-50, 170 Cal.Rptr. 798, 621 P.2d 837 (1981); see also Penal Code § 1018. The facts and issues decided in Vaughn do not apply to Molinar's due process claim. Molinar also relies on People v. Hill, where the court stated that "only the most compelling reasons can justify any interference, however slight, with an accused's prerogative to personally decide whether to stand trial or to waive his rights by pleading guilty." People v. Hill, 12 Cal.3d 731, 768, 117 Cal.Rptr. 393, 528 P.2d 1 (1974), overruled on other grounds, by People v. DeVaughn 18 Cal.3d 889, 896, 135 Cal.Rptr. 786, 558 P.2d 872 (1977). In Hill, the Court emphasized the magnitude of the consequences of a defendant's guilty plea stating that "[i]n entering into such a plea, a criminal defendant waives several of his most fundamental constitutional rightsthe privilege against compulsory self-incrimination, the right to trial by jury and the right to confront one's accusers." See Hill, 12 Cal.3d at 768, 117 Cal.Rptr. 393, 528 P.2d 1. The court in Hill held the harmless error doctrine inapplicable to an appeal taken from a guilty plea entered following an erroneous denial of a motion to suppress evidence. The Court reasoned that where the trial court erroneously refused to suppress evidence, "the situation is altered, no matter how slightly, from that which existed prior to the plea of guilty." Id. Thus, the type of impermissible "interference" contemplated by Hill is the interference with evidentiary and "strategic considerations which lead an accused to plead guilty pursuant to a plea bargain." Id. In contrast, Molinar does not claim that the superior court judge erred in advising him of the potential consequences of his guilty plea. Nor does Molinar claim that the superior court judge erred by not allowing him to personally decide whether or not to waive his rights by entering a plea of guilty. Hill, therefore, does not support Molinar. Molinar also asserts that principles of contract law apply to plea negotiations or agreements and should apply to the facts of his case. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). Molinar argues that the superior court judge's extension of a 10 year and 6 month sentence was an offer, that Molinar accepted the offer, and that there then existed a binding contract that was enforceable under the principles of due process. 1126 As the Superior Court noted, however, the record does not demonstrate that Molinar actually accepted the superior court judge's offer or that Molinar actually pleaded guilty to all charges in exchange for the 10 year and 6 months offer. See RT 727:11-16; see also CT 313:313:6-8. Instead, the record shows that after Judge Grant informed Molinar that a guilty plea could be used to enhance his sentence under the "Three Strikes" law, Molinar attempted to enter into a plea bargain with the deputy district attorney, "agree[ing] to enter a plea of everything if the D.A. would just say they would not file the preplea stuff and call it a third strike." RT 727:28-728:2 (emphasis added); see also CT 313:24-26. Thus, Molinar did not actually plead guilty and accept the indicated sentence but attempted to enter into a plea agreement with the deputy district attorney in exchange for his plea of guilty to the charges. See RT 727:28-728:1-4. Even if Molinar did attempt or intend to plead guilty at that time, the record shows that the attempt to accept the guilty plea was withdrawn in light of the possibility that, after the plea, Molinar could be faced with potential exposure to 25 years to life in prison, and that Molinar then attempted to plea bargain with the deputy district attorney. See RT 727:28-728:4. In light of the deputy district attorney's refusal to plea bargain, Molinar did not plead guilty and went to the preliminary hearing. See RT 728:11-14. Moreover, as respondent points out, Molinar did not argue at the preliminary hearing, when he was offered 12 years, that he had already accepted the 10 year and 6 month indicated sentence. In addition, Molinar specifically "pled open" to counts 7 through 14 and acknowledged that there were no commitments made to him as to what his sentence would be with regard to these counts. See RT 3:7-12, 4:28-5:4. Molinar did not, at the point when he pled guilty, protest or assert that he should not be sentenced to more than 10 years and 6 months. See RT 7:8-11. Finally, Molinar did not, at the sentencing hearing, argue that he had accepted the 10 year and 6 month indicated sentence. See RT 729:19-25. Rather, Molinar's trial counsel argued only that Molinar should not be punished for going to trial and being subjected to a significantly higher sentence than the one offered at the pre preliminary stage. Id. In sum, there is no evidence that Molinar's right to plead was interfered with. Nor is there evidence that Molinar accepted the offer by Judge Grant or, subsequent to the readiness hearing, unequivocally attempted to accept that offer. Therefore, this Court finds that the Superior Court decision that Molinar's right to plead guilty was not interfered with was reasonable and not contrary to clearly established federal law. CONCLUSION For the foregoing reasons, Antonio Molinar's petition for writ of habeas corpus is DENIED. IT IS SO ORDERED. NOTES [1] Molinar pled guilty to Counts 7 through 14; was found guilty by a jury on Counts 1-6, 15-18 and 21; not guilty on Count 20; and Count 19 was dismissed. The charges were as follows: Count 1: Penal Code § 288.5 (Continuous sexual abuse of a child); Counts 25: Penal Code § 288(c) (Lewd and lascivious act upon a child); Count 6: Penal Code § 311.4(c) (Using a child under 18 years old in pornography); Counts 712: Penal Code § 261.5(a) (Unlawful sexual intercourse); Count 13: Penal Code § 311.4(c) (Using a child under 17 years in pornography); Count 14: Penal Code § 311.4(c) (Using a child under 17 years old in pornography); Counts 1519: Penal Code § 288(c) (Lewd and lascivious act upon a child); Count 20: Penal Code § 288a(c) (Oral copulation); Count 21: Penal Code § 288a(b)(2) (Oral copulation with a victim under 16 years of age). See CT 293-295; 339-350. [2] "CT" refers to the Clerk's Transcripts of petitioner's state court trial. "RT" refers to the Reporter's Transcripts of petitioner's state court trial. See Answer to Petition for Writ of Habeas Corpus ("Answer"), Exhibits A and B. [3] Molinar argues in his brief that Judge Grant first made an offer of 10 years and 6 months. Review of the transcript discloses that Molinar's trial counsel felt that when the numbers were added up, they did not add up to 10 years and 6 months, and that the closest sentence was 10 years and 8 months. See RT, 726:28-727:4. [4] While Molinar claims that the deputy district attorney interfered with his right to plead guilty, he does not explain how the deputy district attorney did so. Therefore, the Court will not address this allegation. See Pet., p. 2. [5] Prior to its amendment in 1973, Penal Code section 1018 provided that "[n]o plea of guilty of a felony for which the maximum punishment is death ... shall be received from a defendant who does not appear with counsel. ..." See Vaughn, 9 Cal.3d at 326, 107 Cal.Rptr. 318, 508 P.2d 318.	{ "pile_set_name": "FreeLaw" }
487 P.2d 1307 (1971) David L. FARRIS, Plaintiff and Respondent, v. Louise F. CLARK, as Guardian Ad Litem of Rickey J. Clark, Defendant and Appellant. Robert H. SENECAL, Plaintiff and Respondent, v. Louise F. CLARK, as Guardian Ad Litem of Rickey J. Clark, Defendant and Appellant. No. 11958. Supreme Court of Montana. Submitted June 21, 1971. Decided August 10, 1971. Rehearing Denied September 1, 1971. 1308 Patrick F. Hooks (argued), Townsend, Henningsen & Purcell, James E. Purcell (argued), Butte, for defendant-appellant. J.L. McKeon (argued), Anaconda, Holland, Holland & Haxby, David L. Holland (argued), Butte, for plaintiffs-respondents. JOHN C. HARRISON, Justice. This is an appeal from judgment entered on a verdict in the district court of the second judicial district in favor of plaintiff Robert H. Senecal for personal injuries received in an automobile accident, for plaintiff David L. Farris for the loss of his automobile in the same accident, and against defendant Louise F. Clark, as guardian ad litem of Rickey J. Clark. Hereinafter the parties to the action shall be referred to by name. Early on the morning of January 25, 1970, during darkness, Senecal was driving on a divided interstate highway about eight miles west of Butte, Montana, when his automobile was struck from the rear by a vehicle driven by Rickey Clark, minor son of Louise Clark, defendant herein. The automobile driven by Senecal was a 1961 Cadillac owned by plaintiff David Farris, and loaned to Senecal. The interstate highway at the scene of the accident is a four lane highway with two lanes of travel each way, separated by a dividing strip. Rickey Clark, driver of the colliding vehicle, described the accident as follows: "Well, I came up as I pulled over this hill and started going down a slight decline, I saw the car in front of me and I went to pass him, and as I passed, the power steering failed and I felt the hardness of the wheel, and so I jerked it and put on the brakes and then we impacted." Rickey Clark, in his deposition, testified he was traveling between 60 and 65 miles per hour, just prior to the impact. Senecal's version of the accident was that he was driving a date home to Butte from Anaconda, when he was hit by the Clark car and driven some 170 feet into a barrow pit; that the Clark car after the collision went across the eastbound lane, across the divider and onto the westbound lane, some 240 feet. Although Senecal was not hospitalized as a result of the accident, he did consult a doctor some three days later. At that time he received medication and was provided with a neck brace. He later consulted and received treatment from orthopedic and neurological specialists. The Cadillac owned by Farris and driven by Senecal, was totaled out by the accident. The exhibits show the right fender, the right front bumper, the grill work, and hood of the Clark car to be damaged. The Cadillac was struck in the left rear part of the car with such force that the left rear fender was damaged, the luggage door forced open, the driver's seat broke or sprung loose, the jockey box snapped loose, and the frame badly bent. It was towed into Butte where it was stored for a number of months. Farris, in his complaint, asked for storage and towage fees, plus $1,500 for the value of the car. The jury awarded him $1,500 for the car, plus $231 for storage and towage. Senecal was awarded $25,000 for personal injuries he alleged arose as a result 1309 of the accident. The trial court had previously granted Senecal's motion for a partial summary judgment on the issue of liability, on the basis of the discovery depositions available to him. Four issues are argued by defendant on appeal: (1) The trial court erred in granting plaintiff Senecal's motion for partial summary judgment on the issue of liability. (2) The trial court erred in permitting the jury to consider the testimony of plaintiff Senecal's doctor. (3) The verdict for Senecal was excessive. (4) The damages awarded Farris were excessive and not within the limitations set by law. As a result of the trial court's decision to grant summary judgment as to the question of liability, the only question left for the jury was the amount of damages claimed by the plaintiffs. Therefore, in order to properly review the trial court's decision as to the question of liability, it has been necessary for this Court to consider the depositions of Senecal, Rickey Clark and Mrs. Louise Clark, as was done by the trial judge in arriving at his decision. We find no error in the trial court's decision to grant Senecal's motion for summary judgment. Hager v. Tandy, 146 Mont. 531, 410 P.2d 447. Recognizing that the burden of proof is always on the party moving for summary judgment, Mally v. Asanovich, 149 Mont. 99, 423 P.2d 294, we find here, on the facts revealed in the depositions, that summary judgment was properly granted. The facts show: 1. That defendant's car easily overtook and attempted to pass Senecal's car which was estimated to have been traveling 55 miles per hour. 2. The accident occurred at nighttime when Clark had to depend upon his driving lights in judging the distance between his car and that of Senecal's, before making his attempt to pass. 3. That Senecal was driving in the right lane of traffic and was in no way contributorily negligent. 4. That the Senecal car was hit with such force as to knock it down the highway some 170 feet. 5. Accepting Clark's statement that he was traveling between 60 and 65 miles per hour when he approached Senecal's car to within 20 to 25 feet before attempting to pass, it is clear that he was negligent in following too close at that speed. Particularly is this true where, as here, the left lane was clear for Clark's use. Section 32-2160 and section 32-2153, R.C.M. 1947. This Court long ago ruled on the liability of a person who negligently collides with another vehicle while attempting to pass. In the case of McDonough v. Smith, 86 Mont. 545, 550, 284 P. 542, 544, this Court held: "The person passing is negligent if he so carelessly directs or manages his automobile that a collision results, or if he attempts to pass at a time or under conditions which are not reasonably safe." See also Cowden v. Crippen, 101 Mont. 187, 53 P.2d 98; State v. Biering, 111 Mont. 237, 107 P.2d 876; 85 A.L.R.2d 661. Defendant argues that under our holding in Mally, and in view of her allegations that the power steering failed thereby causing the accident, that summary judgment should not have been granted. It should be noted here that defendant argues the "power steering" became inoperable not the steering. Her son testified that on manual steering it was more difficult to steer, particularly at the speed he was traveling. The loss of power steering is not a defense for failure to pass at a safe distance or drive at a speed commensurate with the highway conditions. In support of her position, defendant sets forth several cases and authorities: Hagen v. Great Northern Railway Co., 153 Mont. 309, 456 P.2d 51; Burnett v. Avera (Miss. 1967), 203 So.2d 788; 8 Am.Jur.2d, Automobiles and Highway Traffic § 704, p. 1310 255; 23 A.L.R.2d 532. However, we note that these cases pertain to accidents where the defect in the automobile made the vehicle uncontrollable. That is not the situation here. In England, it is said: "It is a law of the road, Though a paradox quite, If you keep to the left, You'll always be right." So be it here. The second issue on appeal pertains to the admission of certain medical testimony. In all, five doctors were involved in this case. The first doctor to see Senecal, three days after the accident, was Dr. Callan of Anaconda who did not appear as a witness. Dr. Callan sent Senecal to Dr. Harold F. Hagan, a radiologist, on January 27, 1970. Dr. Hagan took X-rays from which he testified that Senecal evidenced minimal arthritis in the neck and back, normal for a person of 40 years; that there was a straightening of the lordotic curve which, in his opinion, was caused by a muscle spasm; that there was some strain of the musculature of the neck, all of which could have been caused by the violence of the rear end collision. After the accident Senecal hired counsel and because of the nature of his alleged injuries he was thereafter referred to Dr. Henry Hogan, a specialist in neurology and psychiatry, practicing in Missoula. Dr. Hogan sent him to Dr. Eugene Drouillard, a Missoula radiologist, for X-rays and diagnosis. Dr. Drouillard made special studies of Senecal's neck and back, consisting of taking a tape recording of the neck and back, using a closed circuit television. This examination consists of a procedure where the patient is placed on a stool so that he is in the image area of the TV camera and then having him voluntarily tip his head forward and backward several times, encouraging the patient to do this as far as he can in both directions. Then the attending radiologist takes the patient's head and tries to increase the motion as far as possible to get the full range of motion. After all of this has been recorded several times, the tape is played back several times, in slow motion and with stop action. The tape becomes not only a diagnostic tool, but a permanent record of the examination. It was Dr. Drouillard's opinion, based on his examination, a report of which was sent to Dr. Hogan, the referral doctor, that there was a narrowing between c-5 and c-6 vertebrae with spurs posteriorally; that there was a degeneration related probably to a previous injury; that there was a limitation of motion between vertebrae c-4 and c-5, and c-5 and c-6, which would probably remain limited. Dr. Drouillard further testified that because it was hard to determine the cause of Senecal's present disability, that Dr. Hogan, after receiving the report, wanted a myelogram done. Dr. Drouillard did not recommend a myelogram. Dr. Henry Hogan also testified for Senecal. Dr. Hogan saw Senecal for the first time on May 13, some five months after the accident. He testified that Senecal complained of pain in his neck, left shoulder, and upper part of his back and of constant fatigue, of lack of work tolerance and difficulty in sleeping. After taking Senecal's history, Dr. Hogan conducted a neurological examination to determine whether the nerve supply to any part of the body was damaged. Using the Romberg test and other special techniques he found Senecal's sensory system normal. However, the examination revealed difficulties when the occipital nerve was compressed, causing pain bilaterally. When this problem was encountered, Dr. Hogan sent Senecal to Dr. Drouillard for the X-rays and the motion studies previously referred to. After several examinations, Dr. Hogan believed the signs pointed to some damage to the cervical region. Using Dr. Drouillard's reports to assist him in his diagnosis, it was Dr. Hogan's opinion that Senecal suffered from a muscle spasm, the treatment for which is to cure the damaged joint so that the muscles no longer had to be in spasm. It was his 1311 opinion from the X-rays and the spine motion study that Senecal's joints had been damaged; that he had limited movement of head and neck; and that there was a narrowing of one of the interspaces. Dr. Hogan further testified, in considering future treatment for Senecal, that he was: "* * * concerned lest he had, because of his arthritis, lest he have an unsual amount of arthritic overgrowth inside the spinal canal, or lest he have a protrusion or a disc, the spongy material adjacent to the bodies of the vertebrae, and if there were a rupture of a disc, this disc rupture, of course, would cause pressure against nerve roots more on one side than the other, or possibly against the spinal cord itself, and in which case some surgical intervention would be imperative right now." Following this diagnostic testimony, Dr. Hogan was asked: "Q. We can't rule out a disc in this gentleman, a ____". At this point the court sustained an objection to the question, as being a leading one. Dr. Hogan was then asked what further diagnostic test was proposed and he replied: "We had tentatively set up a cervical myelogram * * ". The record does not reveal whether a myelogram was ever done. In an effort to establish that there was a ruptured disc, the following occurred between court and counsel: "Q. Doctor, do you have an opinion based upon a reasonable degree of medical certainty as to the medical probability as to whether Mr. Senecal has or has not a cervical disc? A. Yes, I have an opinion. "Q. What would your opinion be? A. I suspect that he has a disc. "MR. HOOKS: Move to strike the answer to allow an objection. "THE COURT: Sustained. "Q. Doctor, I'll rephrase the question. Based upon your feelings and a reasonable degree of medical probability, do you have an opinion as to whether or not he has a cervical disc? "MR. HOOKS: Object to that, it is the same question he asked before. It is repetition and I object to the form of the question. He is using the word `probability,' and that is not the way the question is supposed to be formed. "THE COURT: He has already answered that yes, he does have that in his mind. "Q. What is your opinion, Doctor? "THE COURT: We want your direct opinion here, Doctor. "THE WITNESS: Your Honor, I can't say that he has or has not a disc. I have it in mind as something to consider. "Q. Doctor, most of these cases, would you agree with this statement, most of these cases involving this type of injury with the findings you have found involve a cervical disc eventually? "MR. HOOKS: Objected to on the ground he is assuming facts not in evidence, it is leading, and there is no proper foundation for it. "THE COURT: Overruled. He may answer. "A. Well, I would say that most of these cases have a cervical disc, herniation or rupture as a consideration in the differential diagnosis. "Q. How do you repair a cervical disc? "MR. HOOKS: Objected to as irrelevant in view of the answer given. "MR. McKEON: We have come to the point where the Doctor in good faith has stated that's as far as he can go without an operation. He has given his opinion. "THE COURT: He hasn't given his opinion. He hasn't stated yet whether the man has a ruptured disc or not. `Suspect,' that is not sufficient. He's got to say he does nor doesn't in his opinion. If he doesn't, I don't know how you can go further on it. "Q. Doctor, we are not asking for a guarantee. The Court realizes you can't give a guarantee. But, Doctor, based on what you have discussed so far with 1312 Mr. Senecal, do you have an opinion as to whether or not he may have a cervical disc, reasonable probability? "THE COURT: The objection is overruled and he may answer that question. "A. Yes, I have an opinion. "Q. What is that opinion? A. I think that he probably has a vervical disc rupture. "Q. That's based on a reasonable degree of medical certainty? A. Yes. "Q. Now, Doctor, do you have an opinion as to whether or not his condition is a permanent condition? A. Yes. "Q. What is your opinion? A. I think it is permanent." Defendant argues that this testimony establishes no more than the possibility of a ruptured disc, therefore, the testimony fails to come within the ambit of LaForest v. Safeway Stores, Inc., 147 Mont. 431, 437, 414 P.2d 200, 203 and Stordahl v. Rush Implement Co., 148 Mont. 13, 19, 417 P.2d 95. Both of these cases concern medical testimony based on "possibility". Stordahl specifically holds that medical testimony must encompass a reasonable degree of medical certainty as a requisite proof. Here, all the medical witnesses testified at considerable length, including Dr. Burke, a radiologist, who testified as an expert witness for the defense and who found no disc problem. The standard for the certainty of medical evidence was set forth in LaForest and Stordahl, cited heretofore, and both recent cases of this Court. In LaForest this Court said: "We will agree that even after a thorough examination of the shoulder, during an operation, which revealed no evidence of a supraspinatus tendon tear, a `possibility' still remains that such a tear exists. However, the above-quoted expert testimony establishes a far greater probability of the absence of such a tear. The claimant has the burden to establish by a preponderance of the evidence that her condition resulted from an injury and not from a disease. (Newman v. Kamp, 140 Mont. 487, 374 P.2d 100.) She has not sustained the burden of proof. Not only does a fair reading of the medical evidence preponderate against the claimant, there is no substantial credible medical testimony to the contrary. By adroit questioning, claimant's counsel was able to get Dr. Davidson to admit to a `possibility, of a supraspinatus tendon tear. However, such a `possibility' is not probative credible testimony and will not, without more, supply evidence." (Emphasis added). In Stordahl, we said: "Not every supposition or theory of a witness concerning what might be has the force of evidence, even though he be licensed to practice medicine. The utter absence of statistical data and absence of scientific understanding when compared to authoritative data such as the Ewing postulates minimizes such testimony. There is no present rule to hold doctors to strictness in testifying that was once required provided it can be determined that their testimony encompasses a reasonable degree of medical certainty. The form of the answers is far less important than the context and circumstances. There always should be, however, some positive pertinent evidence of a basis for the opinion. The marked propensity of recent years of resorting to the acceptance in one case of the `possible' as meaning reasonable medical certainty cannot be countenanced as treating every `possibility' as adequate to establish the fact sought to be proved. Everything in this troubled world is `possible' and this is particularly true in the scientific world. * * * "Whenever a medical expert testifies that an asserted cause of disease is possible, this alone is not to be accepted as reasonable medical proof. Causes of cancer are unknown to science and if this trend continues, everyone unfortunate enough to be afflicted with this deadly killer could secure medical testimony, 1313 electing the best incident that the disease was contracted from any of many different traumas and exposures that would sustain a holding of liability of some responsible defendant. "It is not the intent of the law that the less known of any disease the greater the `possibility' of a favorable judgment in court. The reasonable and normal rule must be maintained, that is that the party asserting the claim has the burden proving causation under our statute." Throughout the examination of Dr. Hogan, particularly when both counsel and the court tried to tie down "cause and effect", the doctor used the words "suspect", "possible" and "probable". While we no longer hold the medical profession to the strictness once required in testifying, still the sum total of the testimony must contain a degree of medical certainty. Here, Dr. Hogan's testimony fails to give us that degree of certainty. Too, here it should be noted that although Dr. Hogan believed a cervical myelogram was necessary to properly make a diagnosis, none was taken. Dr. Drouillard seemed to have disagreed, in that he did not recommend a myelogram. We are therefore at a loss to know whether or not this diagnostic procedure would have given the medical certainty necessary to sustain the cause. We have held that the granting of summary judgment on the issue of liability was correct. We recognize that some damage and injury resulted from the accident. However, the proof as to both the severity and permanency of the injuries to Senecal, as presented to us in the record, is cloudy and inconclusive. For these reasons the verdict and judgment awarded plaintiff Senecal are reversed and a new trial is ordered. Issue No. 4 concerns the damages awarded to Farris, alleged by defendant to be excessive. The jury returned a verdict in the sum of $1,731 for damages to the 1961 Cadillac. The testimony showed that the market value of the vehicle at the time of the accident was $1,250, although the dealer testified that on resale he would have priced the car at $1,500. In addition, testimony revealed Farris was charged $231 for towage and storage fees for a vehicle that was admittedly a total wreck after the accident. Obviously the jury took the highest value the car might bring on resale and added thereto the towage and storage fees. This Court set forth the rule for the proper measurement of such damages in the cases of Spackman v. Ralph M. Parsons Co., 147 Mont. 500, 414 P.2d 918 and Stahl v. Farmers Union Co., 145 Mont. 106, 399 P.2d 763. Under the doctrine set down in these two cases, it was error for the jury to award Farris a sum inconsistent with the proof of loss submitted. The jury award should have been limited to the market value of the car plus towage and storage fees, $1,250 plus $231, or a total of $1,481. Therefore, we scale down the award to Farris to $1,481, as compensation for the value of the car and out-of-pocket expense to Farris. If this scaled down judgment be accepted by Farris within 10 days after remittitur, the judgment as to Farris, as so modified, is affirmed. If such scaled down judgment be not accepted, the judgment as to Farris is reversed as to damages alone, affirmed as to liability, and remanded for trial on the issue of damages, in conformity with our discussion herein. It is so ordered. JAMES T. HARRISON, C.J., and DALY and CASTLES, JJ., concur. HASWELL, Justice (specially concurring): I concur in the result reached by the majority, but disagree with their rationale in setting aside Senecal's $25,000 judgment and awarding a new trial as to his damages. In my view the record establishes no more than that Senecal suffered a neck injury in the accident with accompanying pain and limitation of motion. Neither its nature or permanence were established by expert medical opinion to a reasonable medical certainty or by nonexpert substantial 1314 credible evidence. In my view the proof is insufficient to establish an injured or herniated cervical disc because (1) plaintiff's medical expert had his facts wrong, believing that the injury occurred one year earlier than it did, and (2) there were equal alternative possibilities unrelated to the accident (tumor, overgrowth of arthritis, excessive thickening of ligaments from osteoarthritis). While a jury verdict is conclusive unless the amount awarded is so out of proportion to the injury to shock the conscience, Rasmussen v. Sibert, 153 Mont. 286, 456 P.2d 835 and cases cited therein, a $25,000 verdict on the foregoing minimal injury whose permanence and relationship to the accident were not proven, meets this test and justifies this Court in setting aside the award.	{ "pile_set_name": "FreeLaw" }
459 S.W.2d 442 (1970) Ex parte Terry Lynn BECKER. No. 43632. Court of Criminal Appeals of Texas. November 13, 1970. Charles H. Erwin, Dallas, for appellant. Jim D. Vollers, State's Atty., Austin, for the State. OPINION ONION, Judge. The question presented by this appeal is a rather difficult one requiring a prompt reply since the Dallas County Grand Jury involved is currently in session. The record in the case at bar reflects that after the five Grand Jury commissioners had been summoned and appeared the District Judge in his instructions informed them that the first 12 names on the list chosen by them probably would be the Grand Jury for the next term of court. Thereafter, the five commissioners discussed the procedure to utilize a cross section of the entire county on the Grand Jury list. They agreed that each of them would select two members of such panel and that these members would constitute the first ten on the list. They discussed at length the following two members to be listed in view of the judge's instructions. Careful attention was also given to the numbers 13 and 14 in the event of disqualification of the first 12, and in like manner, the grand jury panel of 20 was chosen. Frank Hernandez, an attorney and one of the Grand Jury commissioners, testified he had studied the opinion in Brooks v. Beto, 366 F.2d 1 (5th Cir.) and that the commissioners made a sincere effort to obtain as 443 members of the Grand Jury panel a representative cross section of Dallas County along social, economic, cultural and racial lines who met the statutory qualifications. After the selection of the names the commissioners sealed the envelope containing the same and delivered it to the judge who in turn delivered the envelope to the clerk and administered to him the statutory oath. Thereafter, the clerk made "a copy of the names of those selected as grand jurors," certified the same and delivered such copy to the sheriff. Some time thereafter and prior to the October 5 empaneling of the Grand Jury in question the District Judge caused the clerk to prepare a new list of Grand Jurors at his discretion. Rene V. Martinez, Number 6 on the commissioners' list, was moved to Number 17 on the judge's list and juror Number 17 (Robert Gonzales) became juror Number 6 on the judge's list. Levi Curl, a black American attorney, was moved from Number 11 to Number 16, and John Peavy, Number 16 on the commissioners' list, became Number 11 on the judge's list. Mrs. W. C. (Lola) Darby, who was Number 13, was moved to Number 14 and was replaced by A. J. Kutner who had originally been Number 14. On October 5, 1970, when the Grand Jury was empaneled, there were no challenges to the array or to any individual members of the Grand Jury panel. Three members of the panel asked to be excused and were. They were Levi Curl, Mrs. Tannebaum (No. 18) and Mr. Sellingsloh (No. 20). Thereafter, the judge, using the revised list, called the first 12 names thereon and empaneled the Grand Jury. At the habeas hearing the judge explained his action as to juror Martinez who apparently was connected with the Greater Dallas Community Relations Committee. While acknowledging that the 24 year old Martinez was a qualified Grand Juror under the law, the District Judge testified: "I thought he was too young and did not think he accurately reflected the beliefs and opinions held by the majority of the people in Dallas County. * * * * * "I told you that I had already made up my mind that I was not going to select Mr. Martinez to serve on the Grand Jury. I wouldn't have called his name, no matter what list I used."[1] Admitting he did not know Martinez personally and had not heard of him before, the judge stated he did not think Martinez would be fair and impartial because of unsolicited out of court information received about him from various people in Dallas County. He added: "Of course, I had suggestions from other people but I made the decision personally. * * " As to moving Mrs. Darby to a lower position on the list, the judge testified: "Well, I wanted a fair representation of individuals in the County and there were already three women that were selected and named above them, so probably I changed their positions so that it wouldn't be a predominance of women or not so many on the Grand Jury." At the outset it should be observed that for the appellant to be successful in his collateral attack by writ of habeas corpus upon the act of the Grand Jury in returning the indictment in question, the organization of the Grand Jury must have been void as distinguished from voidable. Ex parte Clemming, 90 Tex.Cr.R. 261, 234 S.W. 667, 668; Ex parte Fertitta, 167 Tex. Cr.R. 483, 320 S.W.2d 839. Although it has been said that the statutes relating to the organization of 444 grand juries are directory and not mandatory, Ex parte Traxler, 148 Tex.Cr.R. 550, 189 S.W.2d 749, 752, district courts are required to follow the means and methods provided by the Legislature in the selection of grand juries. Terrell v. State, 139 Tex.Cr.R. 130, 139 S.W.2d 108. An arbitrary disregard of those statutes in the selection and organization of a grand jury vitiates and renders such grand jury without authority. Martinez v. State, 134 Tex. Cr.R. 180, 114 S.W.2d 874; Hunter v. State, 108 Tex.Cr.R. 142, 299 S.W. 437 and cases there cited. A search of our statutes reveals there is no statutory requirement that the district judge take the first 12 qualified persons on the list prepared by the grand jury commissioners. And, surprising enough, there does not appear to be any case which has dealt directly with the subject matter. It cannot be questioned, though, that by custom and tradition it has become a part of the Texas statutory grand jury system. In upholding the constitutionality of our grand jury system, the United States Supreme Court in Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940) noted the testimony of the court clerk to the effect that the records in Harris County from 1931 to 1938 reflected the custom to be "to select the 12 man grand jury in the order that the names appeared on the list." In discussing the use of the grand jury list selected by the commissioners one legal publication observed: "[A]nd the first twelve who are qualified are impaneled as the grand jury." The Texas Grand Jury Selection SystemDiscretion to Discriminate," 21 S.W.L.J. 545, 548. As earlier noted, the judge in the case at bar told the commissioners the first 12 members of the panel would probably be empaneled and it is observed that while using his own revised list he called the names of the first 12 therefrom. Frank Hernandez, one of the Grand Jury commissioners, related at the habeas hearing that his own investigation back to 1940 revealed the practice in Dallas County to be the selection of the first 12 qualified members of the panel selected by the grand jury commissioners. Certainly, such practice is in general accordance with the statutory requirements of selecting petit jurors. The practice, though, has not always been followed. In Hamilton v. State, 141 Tex.Cr.R. 614, 150 S.W.2d 395, where the grand jury organization was upheld, this court in describing the factual situation said: "The grand jury was selected out of sixteen names,[2] all names placed in a hat and slips drawn out and placed on the lists of the first twelve in the order drawn." Robinson v. State, 92 Tex.Cr.R. 527, 244 S.W. 599, did not involve a revision of the commissioners' list as in the case at bar but did involve the judge's influence on those actually chosen to serve on the grand jury. In Robinson there remained exactly 12 qualified prospective grand jurors chosen by the commissioners after excuses and exemptions had been passed upon. The District Judge then stated he wanted more grand jurors from Ranger and Cisco. Two of the twelve panel members remarked that if the court intended to excuse anyone they had important business and would be glad to be excused. They were. Two others were summoned by the sheriff upon order of the court and the Grand Jury empaneled. There the court said: "We are unable to agree with appellant's contention as set forth in his bill of exceptions No. 1 that the trial court 445 committed error in excusing from the list of grand jurors certain men drawn thereon, and in instructing the sheriff to summon other men to take the places of those so excused. We do not think the law regarding the formation of a grand jury should have such rigid and inflexible construction as that the trial court may not excuse from service on such grand jury citizens whose reasons as presented to the court appeal to his sound discretion and were such as to seem to justify such action. Garrett v. State, 66 Tex.Cr.R. 480, 146 S.W. 930." Since there is no statutory or decisional law requiring the district judge to empanel the first 12 qualified members of the grand jury panel who are present and not excused or successfully challenged, however desirable the practice may be, the action of the District Judge in the case at bar in empaneling 12 qualified members of the Grand Jury panel actually chosen by the commissioners, although not the first 12 such members on the commissioners' list, is in our opinion only an irregularity. However unique the irregularity, it is not of sufficient gravity to warrant holding the Grand Jury illegally constituted rendering void ipso facto every indictment returned by such Grand Jury, particularly without any showing of harm or prejudice.[3] District judges should be cautioned, however, that the decision reached here today should not be considered authority for a wholesale departure from the traditional and wholesome practice of selecting the first 12 qualified members from the list prepared by the grand jury commission. Our grand jury system has withstood attacks upon its constitutionality in federal court, although the system has been described as susceptible to abuse. Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866; Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839; Akins v. Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L. Ed. 1692; Hill v. Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559; Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84; See also Brooks v. Beto, supra; Rodriquez v. Brown, 429 F.2d 269 (5th Cir.). In Smith v. Texas, supra, wherein the Supreme Court noted the custom of taking the first 12 jurors on the grand jury commissioners' list, the Court said: "Here, the Texas statutory scheme is not in itself unfair. * * But by reason of the wide discretion permissible in the various steps of the plan, it is equally capable of being applied in such a manner as practically to proscribe any group thought by the law's administrators to be undesirable." In Hernandez v. Texas, supra, the Court said: "As the petitioner acknowledges, the Texas system of selecting grand and petit jurors by the use of jury commissions is fair on its face and capable of being utilized without discrimination. But as this Court has held, the system is susceptible to abuse and can be employed in a discriminatory manner. The exclusion of otherwise eligible persons from jury service solely because of their ancestry or national origin is discrimination prohibited by the Fourteenth Amendment. The Texas statute makes no such discrimination, but the petitioner *446 alleges that those administering the law do." And in Akins v. Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692, the Court, while upholding the validity of the procedure, did observe the "wide range of choice" left to the grand jury commissioners in the selection of the grand jury. See also Brooks v. Beto, 366 F.2d 1 (5th Cir.). None of these cases upholding the constitutionality of our jury system involved the actions of a judge in manipulating the grand jury panel list after a "wide range of choice" by the commissioners. One can well imagine the challenges that will result if the district judge manipulates the list or exercises peremptory challenges in such a way as to render entirely meaningless the efforts of the grand jury commissioners who have sought to select qualified citizens from different portions of the county involving a cross section of the community along social, economic, cultural and racial lines to be members of the grand jury panel. In the case at bar, while we cannot commend the action of the District Judge, we cannot conclude that the irregularity involved should render the composition of the Grand Jury illegal and every indictment returned by such body void in the absence of a showing of harm or prejudice. The judgment is affirmed. MORRISON, Judge (concurring). I join in the warning voiced by Judge ONION's opinion. As a guideline for future cases, I refer to such opinion as well as the position I took in Tobin v. Broadfoot, 160 Tex.Cr.R. 190, 268 S.W.2d 162, 166 and my concurrence in Adame v. State, 162 Tex.Cr.R. 178, 283 S.W.2d 223, 230. NOTES [1] Later the judge did testify that if Martinez had been "on the last twelve I would have selected him to serve." [2] Former Article 338, Vernon's Ann.C.C. P., 1925, required the grand jury commissioners to select 16 names to constitute the grand jury panel. Article 19.06, V.A.C.C.P., as amended 1967, permits the commissioners to select from 15 to 20 individuals to constitute the panel. [3] In answering the narrow question before us we are not passing upon the question of whether any particular indictee prejudiced by such action (such as discrimination resulting from the inclusion or exclusion of certain persons of his race, color, creed, sex, age or place of residence in the county) would have good ground to attack an indictment returned against him by the 12 duly qualified grand jurors empaneled from the list properly drawn by a duly empaneled grand jury commission.	{ "pile_set_name": "FreeLaw" }
93 F.3d 189 UNITED STATES of America, Plaintiff-Appellee,v.Kelly STEWART, Defendant-Appellant. No. 95-10461. United States Court of Appeals,Fifth Circuit. Aug. 19, 1996. Christopher Allen Curtis, Assistant U.S. Attorney, Renee E. Harris, Office of the United States Attorney, Fort Worth, TX, for Plaintiff-Appellee. C. Rabon Martin, Guy W. "Todd" Tucker, Martin & Associates, Tulsa, OK, for Defendant-Appellant. Appeal from the United States District Court for the Northern District of Texas. Before KING, JONES and DUHE, Circuit Judges. DUHE, Circuit Judge. 1 Kelly Stewart entered a conditional guilty plea to possession with intent to distribute methamphetamine, reserving her right to contest the district court's denial of her motion to suppress. Stewart was sentenced to serve 120 months in prison and five years supervised release. Stewart makes two complaints regarding her motion to suppress: (1) the police officer's warrantless search of a medicine bottle exceeded the scope of her consent and (2) the district court abused its discretion by denying defense counsel adequate opportunity to cross-examine the Government's only witness. Stewart also appeals her sentence because the district court did not sentence her to less than the statutory minimum sentence. We affirm. BACKGROUND 2 DEA task force Officer Gerald Beall testified that an informant notified him that a one-way ticket from Los Angeles to Tulsa through the Dallas-Fort Worth Airport was purchased that morning with cash in the name of Mrs. L. Owens. This route was a known drug flight route for the area and the informant was reliable based on numerous other reliable tips. 3 Beall and Officer C.A. Martin, both dressed in plain clothes, stationed themselves near the arrival gate for the Los Angeles flight. While the passengers deplaned, Beall noticed that one of them, Kelly Stewart, appeared nervous and as though she was trying to detect whether people in the area were observing her. Beall stated that Stewart exhibited the characteristics of a drug courier because she paused and observed the people in the area after she deplaned. The officers did not approach Stewart at that time but waited until Stewart entered the boarding area for the connecting flight to Tulsa. 4 Beall and Martin approached Stewart, identified themselves as law enforcement officials and asked if they could speak with her. Stewart agreed and showed Beall her airline ticket. It was a one-way ticket from Los Angeles to Tulsa and had been purchased with cash that morning in the name of Mrs. L. Owens. Beall then asked Stewart if she was Mrs. Owens. Stewart replied that she was and Beall asked to see some identification. Stewart handed Beall her driver's license and stated that her name was Kelly. The license was an Oklahoma license, the picture on the license was Stewart's, and the name on the license was Kelly Stewart. Beall testified that during this conversation, Stewart appeared extremely nervous and was trying to push her jacket under her chair. 5 Beall then asked Stewart whether she was carrying any illegal drugs or a large amount of U.S. currency. Stewart replied that she was carrying prescription medication. Beall and Stewart dispute what happened next. Beall testified that Stewart produced a plastic, amber medicine bottle from her purse and held it up for Beall to see. Beall asked to look at the bottle, and Stewart handed it to him. Stewart testified that Beall asked to look at the bottle but that while she was looking for the bottle in her purse, Beall told her that he would get it. He then took the purse from Stewart and retrieved the bottle. In any event, both agree that Beall asked to look at the bottle and Stewart consented. Beall then opened the bottle, looked inside, and observed light blue pills and a ziplock bag containing "an off white, cornmealish type powdery substance" that Beall suspected was a controlled substance. 6 Beall placed Stewart under arrest. As the officers were escorting Stewart to the DEA task force office, Beall picked up Stewart's jacket and noticed that it was unusually heavy on one side. He felt two bundles from the outside of the jacket. Beall asked Stewart, "What's this?" Stewart replied, "more stuff." Beall gave Stewart her Miranda warnings after they reached the task force office. Beall retrieved the two bundles from the lining of Stewart's jacket. Each bundle contained a ziplock bag holding a substance similar to the substance in the original ziplock bag. The substance from all three bags tested positive for methamphetamine and weighed a total of 1,339.5 grams. 7 Stewart was indicted for and pled not guilty to possession with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1). Stewart moved to suppress all statements, evidence and contraband obtained or confiscated because she was stopped without reasonable suspicion, searched without probable cause or consent, and questioned without Miranda warnings. After a hearing the motion was denied. Stewart changed her plea to guilty, was sentenced and now appeals. 8 I. Does At Mean In? 9 Stewart argues that she gave Officer Beall consent to look at the medicine bottle but not in the medicine bottle. Therefore, his look inside of the bottle was beyond the scope of her consent and constitutes an unlawful search. We disagree. 10 Stewart does not challenge the voluntariness of the consent. Therefore, we consider only whether Officer Beall's conduct in looking inside the medicine bottle exceeded the scope of the consent. United States v. Rich, 992 F.2d 502, 505 (5th Cir.), cert. denied, 510 U.S. 933, 114 S.Ct. 348, 126 L.Ed.2d 312 (1993). 11 The standard for measuring the scope of the suspect's consent is objective reasonableness. Id. at 505. Recitation of magic words is unnecessary; the key inquiry focuses on what the typical reasonable person would have understood by the exchange between the officer and the suspect. Id. at 505-06. The scope of a search is generally defined by its expressed object. Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 1803-04, 114 L.Ed.2d 297 (1991); Rich, 992 F.2d at 506. 12 In Rich, a police officer asked the driver of a truck if he was carrying any narcotics or weapons in the truck. After the driver said no, the officer asked to "have a look in" the truck to which the driver consented. The officer unlocked the truck, looked inside and opened a suitcase that he found in the truck. The officer discovered marijuana in the suitcase and arrested the driver. The Court held that the suitcase search was not beyond the scope of the driver's consent and that "any words, when viewed in context, that objectively communicate to a reasonable individual that the officer is requesting permission to examine the vehicle and its contents constitute a valid search request for Fourth Amendment purposes." Rich, 992 F.2d at 506. 13 Objective reasonableness is a question of law reviewed de novo. Rich, 992 F.2d at 505; United States v. Ibarra, 965 F.2d 1354, 1357 (5th Cir.1992) (en banc) (7-7 decision). Factual circumstances surrounding the consent may be important in determining the nature of the consent and how a reasonable officer would have understood that consent. Rich, 992 F.2d at 505. 14 Beall was caught traveling under an assumed name and was nervous when speaking to the officers. Stewart knew Beall's purpose because he asked Stewart if she was carrying any illegal drugs or weapons before asking to look at the bottle. This question establishes the object of the search. See Rich at 507. Because Stewart knew her deception was uncovered and that Beall was looking for illegal drugs, it is objectively reasonable to expect Beall to look in the bottle after being granted permission to look at the bottle. The search was within the scope of Stewart's consent. 15 II. Limitation of Cross-Examination of Government Witness. 16 Stewart argues that the district court abused its discretion when it limited her examination of the Government's only witness, Officer Beall, at her suppression hearing. Defense counsel questioned Beall on cross-examination during the Government's case-in-chief and on direct examination during her own case-in-chief. 17 The Confrontation Clause of the Sixth Amendment protects a defendant's right to conduct cross-examination. Pennsylvania v. Ritchie, 480 U.S. 39, 51, 107 S.Ct. 989, 998, 94 L.Ed.2d 40 (1987).1 A trial court is given wide latitude in imposing reasonable restraints upon a defendant's right to cross-examination. United States v. Alexius, 76 F.3d 642 (5th Cir.1996). We review the trial court's restriction of the scope of cross-examination for abuse of discretion. Id. at 644. 18 At the suppression hearing, the Government called Officer Beall as its only witness. On cross-examination and on direct examination during Appellant's case-in-chief, the district court prevented defense counsel from asking any questions prefaced by a reference to earlier testimony, and mistakenly considered questions repetitious which were not. 19 (on cross-examination) 20 Q.2 If I understand your testimony correctly, you said-- 21 C. Let's don't rehash his testimony. Just ask him questions about things he hasn't already told you about. 22 Q. Well, Judge I'm going to ask him about-- 23 C. Don't ask him to repeat his testimony. 24 Q. Yes, sir. Did you ask my client to look in the bottle or look at the bottle? 25 A. I asked for permission to look at the bottle. 26 Q. So you looked at, not in. 27 C. And if you repeat the same question twice, I'm going to assume you've run out of good questions to ask and your questioning will be terminated. You may proceed. 28 Q. Officer, can you answer my question. 29 C. He's answered your question. You may proceed. 30 Q. Your honor, I didn't hear his answer. 31 C. You may proceed to a new question. 32 * * * * * * 33 (11 questions later) 34 Q. Exactly what information did they [informant] give you regarding Ms. Kelly Stewart? 35 A. The only information that was given to me was that a female had purchased a cash, one-way ticket from Los Angeles to Tulsa with a stop at Dallas/Fort Worth Airport. And that the female had purchased the ticket under the name of Mrs. L. Owens. 36 Q. So the informant did not give you a physical description. 37 C. Have you told him everything the informant told you? 38 A. Yes, Sir. 39 C. You may go on to another subject now. 40 Q. Your honor, If I might-- 41 C. You might go on to another subject. He's already told you what the informant told him. 42 Q. Your Honor, reasonable suspicion is what he has to have to detain my client. 43 C. You may go on to another subject. He's told you what the informant told him. 44 Q. The informant gave you no description. 45 C. Pardon me. Are you through with your examination? 46 Q. No, Your Honor. 47 C. You're going to be through with it real fast if you don't move on to another question. 48 Q. Your Honor, I believe I have the right-- 49 C. You may move on to another question. I don't want any back talk or argument with me. Go on to another question. 50 Q. Your Honor, would the Court show my objection, and I would like to ask another question in that area. 51 C. No, you cannot ask another question on the subject he's already answered. 52 Q. Could you show my objection for the record. 53 C. Would you please proceed. We're wasting enough time with your conduct. Please proceed. 54 * * * * * * 55 (2 questions later) 56 Q. When you were at the gate area, what exactly were you looking for? 57 A. We didn't know. 58 Q. So you had no idea what you were looking for? 59 A. I had not received that information at the time we got to the gate. 60 Q. So it would be your testimony you were looking for--just watching people? 61 C. Okay. You're through with your examination of this witness. I've warned you every way I can warn you [sic] we're not going to play games and continue to ask the same question two or three different ways. You may be seated. 62 * * * * * * 63 (on direct examination) 64 Q. Officer, when you testified earlier that she-- 65 C. Let's don't go over what he's testified to earlier. I have everything he said. Let's go on to new subjects, new questions. It doesn't have to be a new subject. Something that hasn't been asked before, and certainly don't ask him to repeat what he's already said. 66 Q. You testified that she was nervous when she got off the plane. 67 C. Okay. You may be seated. 68 The district court prevented defense counsel from clarifying earlier testimony and putting his questions in the context of prior testimony. We realize that defense counsel could have reworded the questions in such a way as to avoid specific referral to prior testimony, but we will not enforce a requirement to do so under these facts. Here, the district court's restriction was so severe and so swift that it amounts to an abuse of discretion. 69 Confrontation Clause errors are subject to harmless-error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 682, 106 S.Ct. 1431, 1436-37, 89 L.Ed.2d 674 (1986). "The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt." Id. at 684, 106 S.Ct. at 1438.3 Factors to consider are the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and the overall strength of the prosecution's case. Id. 70 Officer Beall was the Government's only witness, making his testimony crucial to the prosecution's case. There was no corroborating evidence but Stewart did not materially dispute his testimony. On appeal, Stewart does not articulate specific prejudice suffered. However, in a motion for reconsideration, Stewart submitted 24 questions she would have asked Officer Beall at the hearing. While many of the questions were repetitive, Stewart would have asked about reasonable suspicion for the stop. Particularly, Stewart would have asked Officer Beall details regarding his determination that Stewart was nervous, one of Officer Beall's bases for reasonable suspicion. Absent a complete recantation by Officer Beall, the questions would not have altered the result of the hearing. 71 Officer Beall testified on direct that Stewart paused and looked around the area as if she was trying to determine whether she was being watched. This explanation satisfies Stewart's inquiries. Additionally, Officer Beall articulated several other bases for reasonable suspicion which, even absent nervousness, are sufficient: (1) a tip from a reliable informant, (2) Stewart's arrival on the flight from Los Angeles, a known drug flight, and preparation to board the connecting flight to Tulsa, which was consistent with the tip, (3) Stewart was carrying several large purses and a cloak-type cape, and (4) Stewart's ticket was purchased under a different name, which was also consistent with the tip. Officer Beall's articulated reasons are sufficient to find reasonable suspicion. See, United States v. Simmons, 918 F.2d 476 (5th Cir.1990) and United States v. Gonzales, 842 F.2d 748 (5th Cir.1988), overruled on other grounds, United States v. Hurtado, 905 F.2d 74 (5th Cir.1990). The limitation of Stewart's cross-examination was harmless error. 72 III. Entitlement to Safety-Valve Departure. 73 Stewart argues that she is entitled to a sentence less than the statutory minimum sentence under § 5C1.2 of the United States Sentencing Guidelines, sometimes referred to as the safety-valve amendment. Section 5C1.2 and 18 U.S.C. § 3553(f) provide that a defendant may receive less than a statutory minimum sentence if the defendant's guideline imprisonment range falls below the statutory minimum4 and the defendant meets five criteria. The district court found that Stewart did not meet the fifth criterion and she challenges the requirement as unconstitutional as applied in this case. 74 U.S.S.G. § 5C1.2(5) states in pertinent part: 75 (5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence that the defendant has concerning the offense or the offenses that were part of the same course of conduct or of a common scheme or plan ... 76 Stewart's request for a sentence under § 5C1.2 was denied a because she did not identify the other participants in the methamphetamine operations. 77 Stewart argues, without authority, that § 5C1.2(5) is unconstitutional as applied because it subjects her to cruel and unusual punishment and involuntary servitude. To meet the requirement, she argues she must subject herself and her family to violent retaliation by the people she is required to identify and forces her to work as an informant for the Government. The claim lacks merit. 78 While this Circuit has not before addressed these challenges to § 5C1.2, we have addressed similar challenges to § 3E1.1 which allows a reduction in a defendant's offense level for acceptance of responsibility. In United States v. White, 869 F.2d 822 (5th Cir.), cert. denied, 490 U.S. 1112, 109 S.Ct. 3172, 104 L.Ed.2d 1033 and cert. denied sub nom. Chambless v. United States, 493 U.S. 1001, 110 S.Ct. 560, 107 L.Ed.2d 555 (1989), the defendant challenged the constitutionality of U.S.S.G. § 3E1.1 because it encourages defendants to forego a jury trial in return for a lesser sentence. The court answered, "[t]he fact that a more lenient sentence is imposed on a contrite defendant does not establish a corollary that those who elect to stand trial are penalized." White, 869 F.2d at 826. 79 This position was strengthened in United States v. Mourning, 914 F.2d 699 (5th Cir.1990) (statutorily overruled in part on other grounds) in our response to another challenge to § 3E1.1. In Mourning, the defendant was denied an acceptance of responsibility decrease in his offense level because he did not accept responsibility for relevant conduct. The Court ruled that a defendant must accept responsibility for all relevant conduct and that § 3E1.1 was not unconstitutional. 80 'To hold the acceptance of responsibility provision unconstitutional would be to say that defendants who express genuine remorse for their actions can never be rewarded at sentencing' ... [S]hould the defendant choose not to accept responsibility for all of his relevant criminal conduct, nothing happens. No increase in punishment occurs. The previously calculated guideline range remains constant ... To the extent the defendant wishes to avail himself of this provision, any dilemma he faces in assessing his criminal conduct is one of his own making. 81 Mourning, 914 F.2d at 707 (quoting Roberts v. United States, 445 U.S. 552, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980)). 82 The same reasoning applies to Stewart's challenge to § 5C1.2. The fact that a more lenient sentence is imposed on a defendant who gives authorities all of the information possessed by the defendant does not compel that defendant to risk his or his family's lives nor does it compel a defendant to work for the Government. Stewart can refuse the option and receive the statutory sentence under the regular sentencing scheme. 83 AFFIRMED. 1 We recognize that the right to cross-examine is a trial right designed to prevent improper restrictions on the types of questions that defense counsel may ask during cross-examination. Ritchie, 480 U.S. at 52, 107 S.Ct. at 998-99. However, we safeguard the right to cross-examine at the suppression hearing because the aims and interests involved in a suppression hearing are just as pressing as those in the actual trial. See, United States v. De Los Santos, 810 F.2d 1326 (5th Cir.), clarified on reh'g, 819 F.2d 94 (5th Cir.), cert. denied, 484 U.S. 978, 108 S.Ct. 490, 98 L.Ed.2d 488 (1987) (discussing a defendant's right to public trial as applied to a suppression hearing). While the pre-trial nature of the hearing is a consideration in some judicial inquiries determining rights of confrontation, compromise of confrontation clause protections before trial seems to be allowed only when a defendant is given a full opportunity to cross-examine adverse witnesses. See United States v. De Los Santos, 819 F.2d 94 (5th Cir.1987) (on reh'g) 2 Statements introduced by "Q." are statements by defense counsel. Those introduced by "C." are statements by the court. Those introduced by "A." are by the witness 3 Van Arsdall addresses the standard to be applied when the error occurs at trial. We do not decide whether the "beyond a reasonable doubt" standard must be applied to suppression hearing errors because the errors in this case are harmless beyond a reasonable doubt 4 Under the Guidelines, Stewart would have been sentenced within a range of 87-102 months imprisonment. The statutory minimum sentence for possession with intent to distribution 1.3 kilograms of methamphetamine is 120 months, the term to which Stewart was sentenced	{ "pile_set_name": "FreeLaw" }
334 F.Supp.2d 1365 (2004) Judy COLLINS, Plaintiff, v. BEAZER HOMES USA, INC. and Beazer Homes Corp., Defendants. No. CIV.A.1:03-CV1374RWS. United States District Court, N.D. Georgia, Atlanta Division. September 2, 2004. 1366 1367 1368 Joseph Y. Ahmad, Ahmad Zavitsanos & Anaipakos, Amir H. Alavi, Ahmad Zavitsanos & Anaipakos, Houston, TX, Adam P. Princenthal, Andrew Knowles & Princenthal, Atlanta, GA, for Plaintiff. Weyman Thompson Johnson, Jr., Paul Hastings Janofsky & Walker, Kara L. Thompson, Paul Hastings Janofsky & Walker, Atlanta, GA, for Defendants. ORDER STORY, District Judge. Now before the Court are Defendants' Motion to Strike Plaintiff's Designation of Expert Witnesses [32-1] and Defendants' Motion for Summary Judgment [39-1]. After considering the entire record and the arguments of the parties including the parties' briefs and exhibits, the Court enters the following Order. Background This case arises out of Plaintiff Judy Collins' employment with and termination from Defendant Beazer Homes Corp. On May 24, 2002, Defendant Beazer Homes Corp. ("Beazer Homes") offered Collins a position as Director of Marketing for its Jacksonville, Florida division. (Collins Dep. at 81, Ex. 6.)[1] According to the offer, Collins would be subject to a ninety day assessment review period during which "either you or the Company may decide to terminate employment without giving a reason." (Id.) Collins accepted the offer and began work around June 10, 2002. (Id.) Soon after starting with the company, Collins began having conflicts with her manager, Division President Bill Mazar, and her coworker, Director of Sales Mary Ann Hashem. Defendants state that many of these conflicts stemmed from the use of the Montello Advertising Agency ("Montello"). (Id. at 105-06.) Collins contends that the dispute over Montello was the only area where she had a "personality conflict" with Mazar and Hashem. (App. to Pl.'s Resp. to Defs.' Mot. for Summ. J. Ex. J (hereinafter "Collins Aff.") ¶¶ 12-13.) Collins was not pleased with Montello's services and around July 11, 2002, she signed a contract with a new advertising agency. (Collins Dep. at 20.) However, Collins did not notify Montello that it had been replaced until July 22, 2002, after she received an email from Montello's President 1369 who had heard the news from local media representatives. (Id. Exs. 9, 34.) Collins believed that Mazar and Hashem continued to use Montello's services behind her back even after she had terminated the agency. (Id. at 119-20.) On July 30, 2002, Collins spoke with Marilyn Gardner, Vice President of Sales and Marketing for Beazer Homes USA, Inc. ("Beazer USA") about some problems in Jacksonville. (Id. at 89-90.) Collins indicated that she was having problems implementing marketing changes in Jacksonville, that she was having difficulty with the management style of Mazar, that she did not like how they were paying the Montello agency and did not like how marketing costs were being categorized. (Gardner Dep. at 67.) Gardner responded specifically to Collins' assertion that marketing costs were not being properly categorized. (Id.) Gardner asked Collins whether there were any other incidents other than marketing when invoices were not being categorized properly and Collins indicated that there were. (Id.) Gardner informed Collins that her concerns raised issues that were "serious allegations" and that they were "something very important" and that she needed to raise them with human resources. Gardner then arranged for Collins to meet with Jennifer Jones, Vice President of Human Resources for Beazer USA to discuss Collins' concerns. On August 5, 2002, Collins met with Jones for about an hour and a half. Collins tape recorded the meeting but the tape ran out before the end of the meeting. (Collins Dep. at 11, 117.) During her meeting with Jones, Collins raised numerous concerns. (Id. at 120-10.) Jones described four main concerns that Collins expressed, including concerns that (1) the division was putting product on the land that she did not think were reasonable; (2) they were paying Montello for bills that should not be paid and were being forced to use the agency by the President of the Jacksonville division Marty Shaffer; (3) she did not particularly care for the management style of Mazar; and (4) sales agents were discontented with Hashem and the length of time it took to complete a home. (Dec. 17, 2003 Dep. of Jennifer Jones (hereinafter "Jones Dep.") at 41-42.) Based on Collins' statements to Jones, Jones began to investigate Collins' claims and spoke with various company officials. (Jones Dep. at 48.) Jones sought to determine whether the issues that Collins had raised were merely business issues or whether something criminal, against the law or against company policy was taking place. (Id. at 52-53.) Regarding Collins' concerns about the types of homes being built, Jones spoke with Michael Furlow, Executive Vice President and Chief Operating Officer of Beazer USA. (Id. at 49.) Furlow informed Jones that this was a strategic business decision and not a human resources issue. (Id.) Furlow reached the same conclusion about Collins' complaint about Mazar's management style. (Id. at 51-52.) Regarding the payments to Montello, Jones spoke with Ian McCarthy, Chief Executive Officer of Beazer USA. McCarthy directed Jones to speak directly with Shaffer. Shaffer informed Jones that the president of Montello had called him about a past due invoice that Collins had refused to pay. Shaffer told Mazar to review the invoice, and to pay it if Beazer owed the agency money, and if not, to discuss it with Montello. (Id. at 50.) Mazar reviewed the invoices from Montello and paid them. (Mazar Dep. at 119.) Collins states that Mazar spoke with Shaffer and then told her that Shaffer wanted her to pay Montello regardless of the amount because Shaffer and Montello's president were friends. (Collins Aff. ¶ 9, Gardner Dep. Ex. 5.) Jones also investigated the concerns 1370 surrounding the sales agents. Jones' investigation surrounding the sales agent problems ultimately resulted in Hashem's reprimand and termination. (Jones Dep. at 63; Mazar Dep. Ex. 10.) On August 11, 2002, Collins sent an email letter to the Chief Executive Officer of Beazer USA, Ian McCarthy. (See Letter of August 11, 2002 from Judy Collins to Ian McCarthy, McCarthy Dep. Ex. 1.) In her letter, she alluded to her meetings with Jones and Gardner and asserted that a "cover-up/corruption" existed. (Id.) She did not indicate, however, any specifics. McCarthy discussed the letter with Jones and asked her to continue her investigation and report her findings to him. (McCarthy Dep. at 22.) McCarthy responded to Collins by email through his assistant and stated that the matter would be investigated and she should plan to attend the previously scheduled meeting with Shaffer scheduled for August 19, 2002. On August 14, 2002, Collins emailed Gardner. (See Email from Judy Collins to Marilyn Gardner, Collins Dep. Ex. 30.) In the four page email, Collins again expressed her frustration with the investigation and complained about Montello. She alleged that Mazar told her to pay Montello regardless of the amount, that she suspected kickbacks in lumber purchases, and that marketing costs were not being properly broken-down in order to hide information. (Gardner Dep. Ex. 5.) Prior to the August 19, 2002 meeting with Collins, Shaffer discussed Collins' complaints with Jones. (Shaffer Dep. at 69-70.) Jones informed Shaffer that Collins had made a series of complaints including allegations of a break in company policy. (Id. at 69.) Shaffer and Jones also discussed whether they should continue Collins' employment. Shaffer questioned Jones about the circumstances under which he could terminate Collins. (Jones Dep. at 71-73.) On August 19, 2002, Collins met with Shaffer. Shaffer understood that one of the purposes of the meeting was for him to discuss with Collins possible violations of company policy. (Shaffer Dep. at 68.) She also tape recorded this conversation. (Collins Dep. at 158-59.) At that meeting Collins expressed numerous complaints including: her lack of input with sales agents, that Hashem did not want her in the Jacksonville office, that she could not get the information she needed to do her job, and that she was having conflicts with Mazar and Hashem over the Montello agency. (Collins Dep. at 166-72; see Tr. of August 19, 2002 meeting with Judy Collins and Marty Shaffer (hereinafter "Shaffer Tr."), Collins Dep. Ex. 22.) Collins did not specifically tell Shaffer that illegal activity was taking place in the company. (Collins Dep. at 183.) At the end of the meeting, Shaffer told Collins that "I don't see that this situation is going to work out between [you, Mazar and Hashem]." (Shaffer Tr. at 12.) Shaffer noted that Mazar and Hashem had been with the company for some time, and since it did not appear that the conflict with Collins was going to end, he would have to let her go. (Id. at 13-14.) Although Shaffer consulted with Jones regarding Collins' termination, he states that he was the sole person responsible for terminating her. (Shaffer Dep. at 33, 36.) Shaffer stated that he terminated Collins for several reasons including Mazar's dissatisfaction with her job performance, a presentation he viewed by Collins that was "way off the mark," but primarily because she could not get along with any of her fellow employees. (Id. at 38-39.) Collins filed a complaint with the Department of Labor Occupational Safety and Health Administration ("OSHA") in October 2002. (Collins Dep. at 201.) On May 20, 2003, Plaintiff filed the complaint 1371 in this case asserting claims under the Sarbanes-Oxley Act of 2002, Public Law No. 107-204 ("Sarbanes-Oxley"), and Florida's Whistleblower's Act, Fla. Stat. § 448.102. OSHA issued its findings and preliminary order on May 22, 2003. (Defs.' Mot. for Summ. J. Ex. G (hereinafter "OSHA findings".)) Discussion I. Motion to Strike Plaintiff's Designation of Expert Witnesses Defendants have moved to exclude the testimony of Plaintiff's expert witness on economic damages, Haran D. Levy. Mr. Levy's identity was first disclosed to Defendants on December 30, 2003. Defendants state that the original discovery period ended on January 20, 2004 and that the parties stipulated to an extension of discovery for the sole purpose of deposing Ian McCarthy. Defendants contend that Plaintiff's disclosure of Mr. Levy's identity three weeks prior to the close of the original discovery period would result in unfair prejudice to Defendants. Plaintiff responds that although the original discovery period was set to end on January 20, 2004 the parties did not limit the scope of the extension when the deadline was extended to February 9. Additionally, Plaintiff states that Defendants have suffered no prejudice. Federal Rule of Civil Procedure 26(a)(2)(A) requires parties to disclose the identity of any expert who may testify at trial. The Local Rules require parties to designate their experts sufficiently early "to permit the opposing party the opportunity to depose the expert witness sufficiently in advance of the close of discovery." N.D. Ga. Local R. 26.2C. The Federal Rules specify that in absence of directions from the court or stipulation by the parties, "the disclosures shall be made at least 90 days before the trial date or the date the case is to be ready for trial." Fed.R.Civ.P. 26(a)(2)(C). Whether to exclude a party's proposed witness in this circumstance is within the discretion of the Court. Port Terminal & Warehousing Co. v. John S. James Co., 695 F.2d 1328, 1335 (11th Cir.1983). Plaintiff designated Mr. Levy as an expert with over forty days of discovery remaining and three months before Defendants filed their motion for summary judgment. Additionally, the Court notes that the trial date has not yet been set. Finally, Defendants have presented no evidence to demonstrate that they have been prejudiced by Plaintiff's failure to disclose their expert earlier. See Shelak v. White Motor Co., 581 F.2d 1155, 1159 (5th Cir.1978) (stating that defendant was not prejudicially surprised and upholding district court's decision to allow expert to testify who was not named in interrogatories).[2] Therefore the Court finds that Defendants have not been prejudiced by Plaintiff's failure to disclose the identity of Mr. Levy at an earlier date. The Court further finds that Defendants have in no way been prejudiced by the designation of Plaintiff's attorneys as experts regarding fees. Accordingly, Defendants' Motion to Strike Plaintiff's Designation of Expert Witnesses [32-1] is hereby DENIED. II. Motion for Summary Judgment Summary judgment is appropriate only when the pleadings, depositions, and affidavits submitted by the parties show that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The court should view the evidence and any 1372 inferences that may be drawn in the light most favorable to the non-movant. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The party seeking summary judgment must first identify grounds that show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the non-movant, who must go beyond the pleadings and present affirmative evidence to show that a genuine issue of material fact does exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Plaintiff asserts that Defendants retaliated against her in violation of Sarbanes-Oxley and Florida's Whistleblower's Act for reporting violations of Defendants' internal accounting controls in violation of Securities laws. Plaintiff contends that fourteen days after she first met with the Vice President of Human Resources to report the violations and eight days after emailing the CEO of the company, she was terminated. Defendants move for summary judgment and assert that Plaintiff did not engage in protected activity. Moreover, Defendants contend that Plaintiff was terminated during her initial ninety day probationary period because of personality conflicts with her coworkers and her inability to get along them and not for any protected activity. III. The Sarbanes-Oxley Act of 2002 Plaintiff's claims arose almost in tandem with the enactment of Sarbanes-Oxley and come before the Court as a matter of first impression. The Sarbanes-Oxley Act of 2002 was enacted on July 30, 2002. See Procedures for Handling of Discrimination Complaints Under Section 806 of the Corporate and Criminal Fraud Accountability Act of 2002, Title VIII of the Sarbanes-Oxley Act of 2002, 29 C.F.R. § 1980 (2003) (hereinafter "Sarbanes-Oxley Regulations" or "the Regulations").[3] Title VIII of Sarbanes-Oxley is designated as the Corporate and Criminal Fraud Accountability Act of 2002. Section 806, codified at 18 U.S.C. § 1514A, is the provision that provides "whistleblower" protection to employees of publicly traded companies.[4] Pursuant to section 806, an employer may not discriminate against any employee in the terms and conditions of employment because of any lawful act done by the employee (1) to provide information, cause information to be provided, or otherwise assist in an investigation regarding any conduct which the employee reasonably believes constitutes a violation of section 1341, 1343, 1344, or 1348, any rule or regulation of the Securities and Exchange Commission, or any provision of Federal law relating to fraud against shareholders, when the information or assistance is provided to or the investigation is conducted by 1373 (A) a Federal regulatory or law enforcement agency; (B) any Member of Congress or any committee of Congress; or (C) a person with supervisory authority over the employee (or such other person working for the employer who has the authority to investigate, discover, or terminate misconduct); 18 U.S.C. § 1514A(a)(1). A. Administrative procedure & federal court jurisdiction An employee who alleges that she has been discharged or discriminated against may bring an enforcement action under 18 U.S.C. § 1514A(b). Before an employee may file in federal court, she must file a complaint with the Occupational Safety and Health Administration ("OSHA"), id. § 1514A(b)(1)(A), within ninety days of the date on which the violation occurred. Id. § 1514A(b)(2)(D); see 29 C.F.R. § 1980.103.[5] The Regulations governing OSHA's handling of discrimination complaints under Sarbanes-Oxley provide for an investigation, a hearing before an administrative law judge, a review by an administrative review board, and an appeal to the Circuit Court of Appeals. 29 C.F.R. § 1980. The administrative scheme underlying the Sarbanes-Oxley Act has been described as "judicial in nature" and designed to resolve the controversy on its merits. Willis v. Vie Fin. Group, No. 04-435, 2004 WL 1774575, at 5 (E.D.Pa. Aug. 6, 2004) (holding that plaintiff's failure to raise a claim in his administrative complaint with OSHA precluded him from pursuing it in district court). If a final administrative decision is not issued within 180 days of the filing of the complaint and "there is no showing that such delay is due to the bad faith of the claimant," an employee may bring an action at law or in equity for de novo review in federal court. 18 U.S.C. § 1514A(b)(1)(B). In Murray v. TXU Corp., 279 F.Supp.2d 799 (N.D.Tex.2003), the district court stated that a federal court would lack jurisdiction if: (1) the plaintiff failed to file a complaint with OSHA within ninety days of the alleged violation; (2) OSHA issued a final decision within 180 days of the complaint; (3) the plaintiff filed in district court less than 180 days after filing a complaint with OSHA; or (4) there was a showing that OSHA failed to issue a final decision within 180 days due to the plaintiff's bad faith. Id. at 802.[6] Therefore, a plaintiff's ability to file in federal court is not premised on a showing of plaintiff's good faith, but is based on a failure to show that the delay was a result of the plaintiff's bad faith. See Murray, 279 F.Supp.2d at 804 n. 6. In this case, Plaintiff was terminated on August 19, 2002.[7] She filed her complaint with OSHA in October 2002, 1374 within the required ninety day time period. OSHA did not issue its findings until May 22, 2003. Defendants state that after almost eight months of investigation, OSHA found Plaintiff had not shown a violation of federal law. Plaintiff states that during this time period significant amounts of time were devoted to settlement talks. The OSHA investigative file indicates that a great deal of time was spent in settlement negotiations. (See generally OSHA file.)[8] Because OSHA failed to issue findings within 180 days and there was no showing of bad faith, jurisdiction in this case is proper.[9] B. Legal burdens of proof Given the scarcity of caselaw on Sarbanes-Oxley, the Court must look to caselaw applying provisions of other federal whistleblower statutes for guidance.[10] The Sarbanes-Oxley Regulations specifically indicate that consideration was given to the regulations implementing the whistleblower provisions of the Wendell H. Ford Aviation Investment Reform Act for the 21st Century ("AIR 21"), 29 C.F.R. § 1979; the Surface Transportation Assistance Act ("STAA"), 29 C.F.R. § 1978; and the Energy Reorganization Act ("ERA"), 29 C.F.R. 24. See 29 C.F.R. § 1980 at 2. Moreover, the legal burdens of proof in Sarbanes-Oxley are taken from AIR 21, 49 U.S.C. § 42121. See also 42 U.S.C. § 5851(b)(3)(legal burdens of proof for whistleblowing under ERA). When a plaintiff files suit in federal court under Sarbanes-Oxley, the court conducts a de novo review of the plaintiff's claim. 18 U.S.C. § 1514A(b)(1)(B). The evidentiary framework for a claim under Sarbanes-Oxley is specifically set forth in the statute. Id. § 1514A(b)(2)(C).[11] An action brought under 1375 Sarbanes-Oxley "shall be governed by the legal burdens of proof set forth in section 42121(b) of title 49, United States Code." Id.[12] Under the statutory framework, a plaintiff in federal court must show by a preponderance of the evidence that the plaintiff's protected activity was a contributing factor in the unfavorable personnel action alleged in the complaint. 49 U.S.C. § 42121(b)(2)(B)(iii).[13] That is, the plaintiff must show by a preponderance of the evidence that (1) she engaged in protected activity; (2) the employer knew of the protected activity; (3) she suffered an unfavorable personnel action; and (4) circumstances exist to suggest that the protected activity was a contributing factor to the unfavorable action. See Stone & Webster, 115 F.3d at 1573 (analyzing these factors under provisions of ERA); Bechtel Constr. Co. v. Sec'y of Labor, 50 F.3d 926, 933-34 (11th Cir.1995) (same).[14] Proximity in 1376 time is sufficient to raise an inference of causation. Bechtel, 50 F.3d at 934. The defendant employer may avoid liability if it can demonstrate by clear and convincing evidence that it "would have taken the same unfavorable personnel action in the absence of [protected] behavior." 49 U.S.C. § 42121(b)(2)(B)(iv). In their motion for summary judgment, Defendants first contend that Plaintiff did not engage in protected activity, but that even if she did, she cannot demonstrate that her alleged protected activity was a contributing factor in her termination. Defendants also assert that Plaintiff would have been terminated regardless of her protected activity. 1. Whether Plaintiff engaged in protected activity Sarbanes-Oxley protects employees who provide information which the employee "reasonably believes constitutes a violation of section 1341, 1343, 1344, or 1348, any rule or regulation of the Securities and Exchange Commission, or any provision of Federal law relating to fraud against shareholders." 18 U.S.C. § 1514A(a)(1). Therefore, a plaintiff is not required to show an actual violation of the law, but only that she "reasonably believed" that there was a violation of one of the enumerated laws or regulations. Id.; see Passaic Valley Sewerage Comm'rs v. United States Dep't of Labor, 992 F.2d 474 (3d Cir.1993)(noting that even where "the [employee's] perceived oversights were a matter of employee misunderstanding" an employee should be protected in his intracorporate disclosure to provide the company with the first opportunity to justify or clarify its policies). The legislative history of Sarbanes-Oxley states that the reasonableness test "is intended to impose the normal reasonable person standard used and interpreted in a wide variety of legal contexts." Legislative History of Title VIII of HR 2673: The Sarbanes-Oxley Act of 2002, Cong. Rec. S7418, S7420 (daily ed. July 26, 2002), available at 2002 WL 32054527 (hereinafter "Legislative history") (citing Passaic Valley, 992 F.2d 474 (3d Cir.1993)). "The threshold is intended to include all good faith and reasonable reporting of fraud, and there should be no presumption that reporting is otherwise, absent specific evidence." Id. Defendants assert that Plaintiff did not engage in protected activity because she never specifically alleged securities or accounting fraud and because her complaints were too vague to constitute protected activity. Defendants contrast the type of disclosures made by Sherron Watkins, the former Enron Vice President, to the disclosures made by Plaintiff. Defendants point out that Watkins was an accountant whose job it was to review Enron's securities, that she outlined specific accounting procedures and transactions about which she was concerned, and that she expressed concerns that specific securities laws were being violated. By contrast, Defendants contend, Plaintiff was the Director of Marketing who expressed only vague concerns that amounted to nothing more than personality conflicts and differences in marketing strategies. Plaintiff points to four specific disclosures which she made that she alleges are within the coverage of Sarbanes-Oxley. Plaintiff states that (1) she alleged that the division was knowingly overpaying invoices to Montello (Jones Dep. at 41, 118.); (2) the division was using Montello because of a personal relationship between management and Montello (Id. at 41, 49, 69.); (3) Hashem was violating the division's commissions 1377 scheme by overpaying sales agents who were her personal friends (Id. at 55-58.); and (4) there were kickbacks involving the purchase of lumber (Id. at 78; Gardner Dep. Ex. 5.). Plaintiff contends that these disclosures are protected because they allege attempts to circumvent the company's system of internal accounting controls and therefore state a violation of Section 13 of the Exchange Act.[15] The Court finds that Defendants cannot establish as a matter of law that Plaintiff did not engage in protected activity under Sarbanes-Oxley. Though this is a close case, considering the posture of the case, the lack of guidance in the caselaw and the broad remedial purpose behind Sarbanes-Oxley, the Court finds that there is a genuine issue of material fact whether Plaintiff engaged in protected activity.[16] It is evident that Plaintiff's complaints do not rise to the level of complaints that were raised by Sherron Watkins at Enron. However, the mere fact that the severity or specificity of her complaints does not rise to the level of action that would spur Congress to draft legislation does not mean that the legislation it did draft was not meant to protect her. In short, if Congress had intended to limit the protection of Sarbanes-Oxley to accountants, or to have required complainants to specifically identify the code section that they believe was being violated, it could have done so. It did not. Congress instead protected "employees" and adopted the "reasonable belief" standard for those who "blow the whistle on fraud and protect investors." Legislative history at S7420; see 18 U.S.C. § 1514A(a). Additionally, though Defendants contend that Plaintiff's complaints were too vague to constitute protected activity, the individuals to whom they were addressed understood the serious nature of Plaintiff's allegations. For instance, after her initial conversation with Plaintiff, Gardner understood Plaintiff's complaints regarding the payment of invoices and miscategorization of invoices as a "serious allegation" that raised questions about improper accounting. (Gardner Dep. at 67, 69.) After Jones met with Plaintiff on August 5, 2002, she began to investigate Plaintiff's claims in order to determine whether there was something that may be criminal, against the law or against company policy, including violations of the company's Standards of Corporate Conduct. (Id. at 52-53, 70.)[17] The Court agrees with Defendants that the connection of Plaintiff's complaints to the substantive law protected in Sarbanes-Oxley is less than direct. However, 1378 Plaintiff's allegations detailed violations of the company's internal accounting controls in favor of preferential treatment based on personal relationships. After an investigation, Defendants ultimately determined that some of Plaintiff's allegations lacked merit.[18] However, this does not change the fact that they understood the nature and type of allegations that she made and that those allegations were within the zone of protection afforded by Sarbanes-Oxley. See Legislative history at S7420 ("Certainly, although not exclusively, any type of corporate or agency action taken based on the information, or the information constituting admissible evidence at any later proceeding would be strong indicia that it could support such a reasonable belief.")[19] Because reasonable jurors could find by a preponderance of the evidence that Plaintiff engaged in protected activity, Defendants are not entitled to judgment as a matter of law. 2. Whether Defendants knew of Plaintiff's protected activity Sarbanes-Oxley protects employees who provide information to any "person with supervisory authority over the employee (or such other person working for the employer who has the authority to investigate, discover, or terminate misconduct)." 18 U.S.C. § 1514A(a)(1)(C). Plaintiff made numerous complaints to her supervisors, including complaints to Gardner, a meeting with Jones, an email to Gardner, an email to McCarthy and her final meeting with Shaffer. Defendants do not contest that they were aware of Plaintiff's complaints. Defendants, however, assert that Shaffer was the sole decision maker in Plaintiff's termination and that he did not know of Plaintiff's letters to Gardner and McCarthy. Shaffer did, however, discuss Plaintiff with Jones including Plaintiff's series of complaints, discussion of payment of the Montello invoices (Jones Dep. at 50), and the circumstances in which it would be acceptable for him to terminate her. (Jones Dep. at 71-74.) To permit an employer to simply bring in a manager to be the "sole decisionmaker" for the purpose of terminating a complainant would eviscerate the protection afforded to employees by Sarbanes-Oxley. The Court finds that Defendants were aware of Plaintiff's protected activity. 3. Whether Plaintiff suffered an unfavorable personnel action Plaintiff suffered an unfavorable personnel action when she was terminated on August 19, 2002. 4. Whether circumstances exist to suggest that the protected activity was a contributing factor to the unfavorable action Under the evidentiary framework, Plaintiff must also establish that there are circumstances which suggest that the protected 1379 activity was a contributing factor to the unfavorable action. 49 U.S.C. § 42121(b)(2)(B)(iii); see Marano v. Dep't of Justice, 2 F.3d 1137, 1140 (Fed.Cir.1993)(stating that under the Whistleblower Protection Act, 5 U.S.C. § 1221(e)(1), "[t]he words `a contributing factor' ... mean any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision" and noting that "[t]his test is specifically intended to overrule existing case law, which requires a whistleblower to prove that his protected conduct was a `significant,' `motivating,' `substantial,' or `predominant' factor in a personnel action in order to overturn that action."). Defendants contend that Plaintiff cannot establish the causal connection because the person responsible for firing her, Shaffer, was not aware of Plaintiff's letters to McCarthy and Gardner and because she did not bring any illegal activities to Shaffer's attention.[20] Defendants further state that temporal proximity is not sufficient to create circumstances to suggest causation. Plaintiff responds that Shaffer was in fact aware of prior complaints that she made alleging violations of company policy and that the fact that she was fired fourteen days after complaining to Jones establishes the circumstances sufficient to demonstrate causation. The Court finds that the temporal proximity between the time when Plaintiff made her complaints and the time she was terminated is sufficient to establish circumstances which suggest that protected activity was a contributing factor to the unfavorable personnel action. See 29 C.F.R. § 1984.104(b)(2)(stating that for purposes of determining whether complaint on its face demonstrates causation sufficient to investigate and that "[n]ormally, the burden is satisfied, for example, if the complaint shows that the adverse personnel action took place shortly after the protected activity."); Bechtel, 50 F.3d at 934 (stating that under whistleblower provisions of ERA, proximity in time is sufficient to raise an inference of discrimination); see also Stone & Webster, 115 F.3d at 1573 (noting that one day separation from protected conduct to demotion, along with other circumstances, raised inference of causation). Although Defendants cite Wascura v. City of South Miami, 257 F.3d 1238, 1248 (11th Cir.2001), for the proposition that temporal proximity alone is not sufficient to establish causation in the Eleventh Circuit, the holding in that case is not as broad as Defendants suggest. In that case, the Eleventh Circuit upheld the district court's grant of summary judgment on the plaintiff's claim for interference with rights under the Family Medical and Leave Act. Id. at 1248. The plaintiff claimed that she was terminated because she stated that she may need time off from work to care for her son's medical needs. The court held that in light of conflicting evidence before the court, "the three and one-half month temporal proximity is insufficient to create a jury issue on causation." Id. Here, Plaintiff first complained to Jones on August 5, 2002 and was terminated fourteen days later on August 19, 2002. Therefore, the proximity in time provides the circumstances to suggest that the protected activity was a contributing factor to the unfavorable personnel action. Moreover, it is clear that Shaffer had discussed Plaintiff's complaints with Jones and was aware that she had complained about violations of company policy when he terminated her. (Shaffer Dep. at 68-70.) 1380 Reasonable jurors could find that Plaintiff has established by a preponderance of the evidence that she engaged in protected activity, that Defendants knew of her protected activity, that she suffered an unfavorable personnel action and that circumstances exist which create an inference that the protected activity was a contributing factor to the unfavorable personnel action. Therefore, Defendants are not entitled to judgment as a matter of law. If Defendants can show by clear and convincing evidence, however, that they would have taken the same unfavorable personnel action in the absence of that behavior, then they may avoid liability. 49 U.S.C. § 42121(b)(2)(B)(iv). 5. Whether Defendants can show that they would have taken the same unfavorable personnel action in the absence of Plaintiff's protected activity Only if Defendants can establish by clear and convincing evidence that they would have fired Plaintiff absent her participation in protected activity, would Defendants be entitled to summary judgment. See Stone & Webster, 115 F.3d at 1572 (recognizing under the same evidentiary framework in the ERA that "[f]or employers, this is a tough standard"). Defendants argue that Shaffer was the sole decision maker with regard to Plaintiff's termination and that she was terminated for three reasons: (1) personality conflicts with her co-worker and manager; (2) Mazar's dissatisfaction with her; and (3) Shaffer's belief that Plaintiff had made a presentation that was "way off the mark." (Shaffer Dep. at 38-39.)[21] The Court finds that Defendants have not established by clear and convincing evidence as a matter of law that they would have terminated Plaintiff even absent her protected activity. First of all, Defendants contend that Shaffer fired Plaintiff based on her personality conflicts with Hashem and Mazar and based on Mazar's dissatisfaction with her performance. While Plaintiff does admit that there was a conflict among the three of them, Mazar stated that he did not believe he had a personality conflict with Plaintiff. (Mazar Dep. at 166.) Mazar stated that he had discussed some concerns about Plaintiff's job performance with Shaffer, (id. at 91-92), but he had not yet made the decision to terminate her and was planning to meet with her to discuss the problems. (Id. at 94-96.) Moreover, Mazar may have expressed some concerns to Shaffer, but he was not involved in the decision to terminate Plaintiff and did not learn of her termination until after the fact. (Id. at 89.) It appears that none of her supervisors ever met with Plaintiff to discuss her job performance or the personality conflicts prior to her termination. (Collins Dep. at 187.) Finally, the only discussion where Defendants discussed the potential termination of Plaintiff took place between Jones and Shaffer and did not involve Mazar, who was Plaintiff's direct supervisor and one of the individuals with whom Defendants stated that she had the personality conflict. Defendants in their representations to OSHA indicated that reasons for Plaintiff's termination were her "discontent with her job" and her "extreme unhappiness" with the company. (McCarthy Dep. Exs. 4,5) It is evident that Plaintiff made numerous complaints to her supervisors, many of which would not constitute protected activity under Sarbanes-Oxley. To allow Defendants 1381 to obtain summary judgment by singling out these complaints and insisting that only unprotected complaints were the basis for their action against Plaintiff would thwart the purpose of Sarbanes-Oxley. See Stone & Webster, 115 F.3d at 1570. Again, whether Defendants would have terminated Plaintiff absent her protected activity presents a close question. It appears that she got off on the wrong foot with some of her co-workers from the very beginning, (Collins Dep. at 206), and that her supervisors had some concerns about her ability to adapt to the home building industry. (Mazar Dep. at 91.) It also appears that Mazar thought she did a good job with respect to Internet marketing and the hiring of the new marketing firm, an area of purported dispute. (Id. at 93.) Though Defendants emphasize that Plaintiff was in her ninety day assessment period, the short history of Plaintiff's employment only makes it more difficult to discern whether the problems that Plaintiff had would have ultimately resulted in her termination absent participation in protected activity or whether they would have simply been addressed and resolved. Because there is a genuine issue of material fact whether Defendants have established by clear and convincing evidence that they would have fired Plaintiff absent her protected activity, Defendants are not entitled to judgment as a matter of law. IV. Florida's Whistleblower's Act Plaintiff has also asserted claims under the Florida Whistleblower's Act ("FWA"), Fla. Stat. § 448.102. Pursuant to the FWA An employer may not take any retaliatory personnel action against an employee because the employee has: (1) Disclosed, or threatened to disclose, to any appropriate governmental agency, under oath, in writing, an activity, policy, or practice of the employer that is in violation of a law, rule, or regulation.... (2) Provided information to, or testified before, any appropriate governmental agency, person, or entity conducting an investigation, hearing, or inquiry into an alleged violation of a law, rule, or regulation by the employer. (3) Objected to, or refused to participate in, any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation. Fla. Stat. § 448.102. Courts that have addressed the FWA have applied the analysis used in Title VII retaliation cases. Sierminski v. Transouth Fin. Corp., 216 F.3d 945, 950 (11th Cir.2000); Padron v. BellSouth Telecommunications, Inc., 196 F.Supp.2d 1250, 1255 (S.D.Fla.2002). To prove a prima facie case a plaintiff must establish: (1) participation in statutorily protected activity; (2) that there was an adverse employment action; and (3) that there was a causal link between the participation and the adverse employment action. Padron, 196 F.Supp.2d at 1255. The burden then shifts to the defendant to offer a legitimate non-discriminatory reason for the adverse employment action. Id. The defendant does not bear the burden of persuasion which remains with the plaintiff. Id. The plaintiff may carry that burden by showing that the plaintiff's engagement in the protected activity was a significant factor in the employer's decision. Id. (quoting Bigge v. Albertsons, Inc., 894 F.2d 1497, 1501 (11th Cir.1990)). Plaintiff contends that she engaged in protected activity under § 448.102(3) which prohibits retaliation against an employee who "[o]bjected to, or refused to participate in, any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation." Fla. Stat. § 448.102(3). Plaintiff states that she was asked to approve and pay invoices to Montello that were improper. (Collins Dep. at 171.) Plaintiff also asserts 1382 that the close temporal proximity of her complaints to her termination establishes the causal connection required to show a prima facie case. After Plaintiff spoke with Jones on August 5, 2002, Jones specifically spoke with Shaffer regarding payment of the Montello invoices. (Jones Dep. at 50.) The Court finds that the close temporal proximity establishes the required causal connection and Plaintiff has stated a prima facie case. See Shotz v. City of Plantation, 344 F.3d 1161, 1180 n. 30 (11th Cir.2003). As discussed above, Defendants state that Plaintiff was terminated for legitimate non-discriminatory reasons because of personality conflicts with her co-worker and manager, Mazar's dissatisfaction with her job performance, and Shaffer's belief that Plaintiff had made a presentation that was way off the mark. Once defendant has come forward with a legitimate reason, the presumption of discrimination is eliminated and Plaintiff is required to present evidence that the reason given by Defendants was not the real reason for the termination. Padron, 196 F.Supp.2d at 1256. Plaintiff contends that Defendants stated reasons are pretextual because Defendants terminated Plaintiff based on her complaints and Defendants' stated reasons have shifted over time. Although the Court acknowledges that Defendants' description of the stated reasons for terminating Plaintiff have shifted slightly over time, the Court agrees with Defendants that there is nothing inconsistent about its given reasons. Describing Plaintiff as having a "personality conflict" is not inconsistent with describing her as "not fitting in the division." The Court does find, however, that Plaintiff has presented evidence that Defendants terminated her because she engaged in protected conduct, including her refusal to pay the Montello invoices. As discussed above, Defendants' explanations that Plaintiff was "unhappy" and that she was terminated based on her "discontent" appear to be little more than recognition that she was terminated based on her complaints. Finally, Shaffer's explanation that Plaintiff made a presentation that was "way off the mark" appears to be an after the fact justification which at the time of Plaintiff's termination he neither relied on nor shared with others as a reason for Plaintiff's termination. (See Jones Dep. at 72; McCarthy Dep. at 34-35.) Given that Mazar, Plaintiff's direct supervisor did not believe he had a personality conflict with Plaintiff, it is impossible for the Court to say that Defendants are entitled to judgment as a matter of law on the grounds that Plaintiff was terminated based on a personality conflict. Conclusion Defendants' Motion to Strike Plaintiff's Designation of Expert Witnesses [32-1] is hereby DENIED. Defendants' Motion for Summary Judgment [39-1] is hereby DENIED. The parties are directed to file a consolidated pre-trial order within thirty (30) days of the date of entry of this Order. NOTES [1] Defendant Beazer Homes Corp. is a wholly-owned subsidiary of Beazer Homes Holding Corp. (See Feb. 17, 2004 Dep. of Jennifer Jones (hereinafter "Corp. Dep.") at 26-27.) Beazer Homes Holding Corp. is a wholly-owned subsidiary of Defendant Beazer Homes USA, Inc., which is a publicly-traded company based in Atlanta, Georgia. Defendant Beazer Homes, USA, Inc. is a publicly traded company "with a class of securities registered under section 12 of the Securities Exchange Act of 1934." (Corp. Dep. at 26-27.) [2] The U.S. Court of Appeals for the Eleventh Circuit adopted as binding precedent the decisions of the U.S. Court of Appeals for the Fifth Circuit handed down prior to September 30, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981). [3] On the same day that Sarbanes-Oxley was enacted, Plaintiff first spoke with Marilyn Gardner to express her concerns about the Jacksonville office. By August 19, 2002, less than a month after the enactment of Sarbanes-Oxley, Plaintiff had been terminated from employment. Notably, Plaintiff's complaint in this case was filed with this Court on May 20, 2003 and preceded the Regulations issued by the Department of Labor for the handling of discrimination complaints which became effective on May 28, 2003. It appears, therefore, that Plaintiff's claims are among the first to reach the federal courts on the merits. [4] Publicly traded companies include any "company with a class of securities registered under section 12 of the Securities Exchange Act of 1934 (15 U.S.C. 781), or that is required to file reports under section 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78o(d)), or any officer, employee, contractor, subcontractor, or agent of such company." 18 U.S.C. § 1514A(a). [5] The statute provides that an employee must file a complaint with the Secretary of Labor. 18 U.S.C. § 1514A(b)(1)(A). The Secretary of Labor has delegated that responsibility to OSHA. Secretary's Order 5-2002; Delegation of Authority and Assignment of Responsibility to the Assistant Secretary for Occupational Safety and Health, 67 Fed.Reg. 65008-01 (Oct. 22, 2002); see 29 C.F.R. § 1980.103(c). [6] The Regulations also provide that a plaintiff must file a notice of her intent to file a complaint in federal court fifteen days in advance of filing the complaint in federal court. 29 C.F.R. § 1980.114(b). [7] Defendants suggest that Plaintiff is not a covered "employee" as defined in Sarbanes-Oxley. The Sarbanes-Oxley Regulations define an employee as "an individual presently or formerly working for a company or company representative ... or an individual whose employment could be affected by a company or company representative." 29 C.F.R. § 1980.101. A "company representative" is defined as "any officer, employee, contractor, subcontractor, or agent of a company." Id. Plaintiff is within the definition of employee because her employment could be affected by officers of Beazer USA. (See Jones Dep. at 24-25 (stating that officers of Beazer USA had authority to affect the employment of employees of subsidiaries).) [8] The OSHA file suggests that the delay in issuing findings may have been attributable in some part to Plaintiff's failure to cooperate with OSHA investigators and misrepresentations to OSHA regarding representation by legal counsel. (OSHA file at 00058-61.) Moreover, it appears that the delay was due in some part to settlement negotiations and additional time requested by Plaintiff to consider settlement offers. (Id. at 00036-37.) It is unclear to the Court whether and to what extent OSHA's failure to issue findings within 180 days was due to the acts and/or omissions of Plaintiff, or whether these actions would be considered bad faith such that federal court jurisdiction would be improper. In this case, however, the mere suggestion of such in the OSHA file absent a greater showing is insufficient to defeat this Court's jurisdiction over Plaintiff's claims. [9] There is no evidence that Plaintiff gave fifteen days notice of her intent to file in federal court as is required pursuant to 29 C.F.R. § 1980.114(b). Even though this requirement is found in the portion of the Regulations covering "District Court jurisdiction of discrimination complaints" the Court need not determine whether this requirement is a jurisdictional prerequisite in this case because Plaintiff filed her complaint on May 20, 2003, eight days before the Regulations went into effect on May 28, 2003. [10] The parties have also cited the decisions of the Office of Administrative Law Judges from the United States Department of Labor. The Court acknowledges that these decisions may provide some guidance in that Sarbanes-Oxley provides the same evidentiary framework in those cases as in this one. They differ, however, in the standard to be applied. Whereas those cases determine whether the complainant is entitled to relief, the present case is before the Court on a motion for summary judgment. Therefore, unlike the ALJ decisions, this Court is required to view the facts in a light most favorable to the plaintiff non-movant. Moreover, this Court is bound to follow the decisions of the Eleventh Circuit Court of Appeals. [11] The evidentiary framework to be applied in Sarbanes-Oxley is an analysis different from that of the general body of employment discrimination law. Stone & Webster Eng'g, Corp. v. Herman, 115 F.3d 1568, 1572 (11th Cir.1997). In Stone & Webster, the plaintiff sued under the ERA, 42 U.S.C. § 5851. The parties disputed the extent to which the evidentiary framework in § 5851 drew on the general law of employment discrimination. Id. The Eleventh Circuit suggested that the confusion arose from the use of the term "prima facie" in the ERA because the phrase "invoked the sprawling body of general employment discrimination law." Id. The court noted, however, that in 1992 Congress had amended the ERA to codify a particular framework regarding burdens of proof where no statutory guidance existed before and that the ERA was clear and supplied its own free-standing evidentiary framework. Id. As the Court has noted, the legal burdens in Sarbanes-Oxley mirror the provisions in the ERA as discussed in Stone & Webster. Therefore, while reference to the general body of employment discrimination law may provide guidance in some areas, where the statute provides a specific framework the Court follows the statute. [12] Section 806 refers to the evidentiary framework in 49 U.S.C. § 42121(b) as governing both the administrative procedure before OSHA and the filing of a complaint in federal court. It also contains a "gatekeeper test" that permits OSHA to dismiss a complaint prior to an investigation if a complainant fails to make a prima facie showing or the defendant can show by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of such behavior. Stone & Webster, 115 F.3d at 1572; see 49 U.S.C. § 42121(b)(2)(B)(i)-(ii). Though stated in similar language, this is a separate inquiry from the one the court makes when a plaintiff files in federal court. See 49 U.S.C. § 42121(b)(2)(B)(iii)-(iv). [13] 49 U.S.C. § 42121(b)(2)(B)(iii) states in pertinent part that a determination that a violation occurred may be made only if "the complainant demonstrates that any [protected] behavior ... was a contributing factor in the unfavorable personnel action alleged in the complaint." In Dysert v. Sec'y of Labor, 105 F.3d 607 (11th Cir.1997), the Eleventh Circuit Court of Appeals examined the proper application of the statutory burdens of proof in the whistleblower protection provisions of the ERA, 42 U.S.C. § 5851(b)(3). Id. at 608. Notably, like the legal burden of proof in this case under 49 U.S.C. § 42121(b)(2)(B)(iii), the language in the ERA stated that a finding that a violation occurred was proper only if "the complainant has demonstrated" certain behavior. In Dysert the Eleventh Circuit found that the term "demonstrated" was ambiguous, and therefore, left room for an administrative interpretation. Id. at 609. The court noted that the Secretary had interpreted "demonstrated" to mean "proved by a preponderance of the evidence." The plaintiff in that case argued that he should only be required to prove a prima facie showing of discrimination before the burden shifted to the defendant to prove by clear and convincing evidence that it would have terminated him even absent his protected activity. The Eleventh Circuit noted that the Secretary believed that something more than a prima facie showing was required and that the Secretary emphasized that the party with the burden of persuasion must establish the elements of its case by a preponderance of the evidence. Id. at 609-10. The Eleventh Circuit held that to be a reasonable interpretation which was entitled to deference. Id. at 610. [14] The Court in Bechtel applied the legal burdens of proof from the general body of employment discrimination law because the plaintiff's claims in that case arose prior to the enactment of the 1992 amendment which codified the present evidentiary framework. [15] Section 13 of the Securities Exchange Act of 1934 requires companies to "devise and maintain a system of internal accounting controls." 15 U.S.C. § 78m(b)(2)(B). Section 13 further states that "No person shall knowingly circumvent or knowingly fail to implement a system of internal accounting controls." Id. at 78m(b)(3)(B)(5). [16] Defendants insist that OSHA found that "the preponderance of credible evidence did not support [Plaintiff's] contention that she provided information alleging a violation of any federal law regarding [Defendants'] conduct." (OSHA findings at 00003.) (emphasis added). First of all, this Court is charged with conducting a de novo review and is not required to give deference to the agency's findings. Furthermore, it is not for this Court on a motion for summary judgment to determine the credibility of the evidence, but only whether there exists a genuine issue of material fact. The Court finds that such an issue does exist. [17] Jones was involved in the development of the company's Standards of Corporate Conduct. They are used to "guide the company [in] the use of the assets of the company, for the benefit of the shareholders of the company." (Jones Dep. at 33.) She also recognized that the Standards of Corporate Conduct were part of the company's internal controls, meant to make sure that the company's assets are being used for the benefit of the company and the shareholders. (Id. at 35-36.) [18] Plaintiff emphasizes that although Defendants conducted an investigation, it was improperly conducted by Human Resources. According to Defendants' own policies it should have been conducted by an internal audit. The investigation was conducted by Jones, then the Vice President of Human Resources. Furlow, Executive Vice President and Chief Operating Officer stated that allegations of overpayment to an advertising agency and use of an agency for improper reasons should be investigated by an internal audit. (Furlow Dep. at 30-32.) He also stated that Jones, as Vice President of Human Resources would not be the appropriate person to conduct an investigation into these types of concerns because the allegations were not "human resources issues" because they involved operation of the division rather than complaints about an individual. (Id. at 30-34.) [19] Jones' investigation into Plaintiff's complaint regarding the Director of Sales, Mary Ann Hashem, ultimately resulted in Hashem being reprimanded and terminated. (Jones Dep. at 63; Mazar Dep. Ex. 10.) [20] Plaintiff states that she did not bring illegal activity to Shaffer's attention because she believed that he was involved in the wrongdoing. (Collins Dep. at 183.) [21] The parties frame their arguments in the language of general employment discrimination law discussing "legitimate non-discriminatory reasons" and "pretext." The Court analyzes Defendants' argument under the clear and convincing standard articulated in 49 U.S.C. § 42121.	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 99-7084 MASON THOMPSON, Plaintiff - Appellant, versus SHERIFF MITCHELL, Sheriff of Richmond City Jail; LYNN HENRY, Law Librarian, Defendants - Appellees. Appeal from the United States District Court for the Eastern Dis- trict of Virginia, at Norfolk. Rebecca B. Smith, District Judge. (CA-98-1170) Submitted: November 18, 1999 Decided: November 23, 1999 Before WILKINS, HAMILTON, and LUTTIG, Circuit Judges. Affirmed by unpublished per curiam opinion. Mason Thompson, Appellant Pro Se. Samuel Lawrence Dumville, Vir- ginia Beach, Virginia, for Appellees. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Mason Thompson appeals the district court’s order denying relief on his 42 U.S.C.A. § 1983 (West Supp. 1999) complaint. We have reviewed the record and the district court’s opinion and find no reversible error. Accordingly, we affirm on the reasoning of the district court. See Thompson v. Mitchell, No. CA-98-1170 (E.D. Va. Aug. 10, 1999).* We deny the motion for appointment of counsel and dispense with oral argument because the facts and legal conten- tions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED * Although the district court’s order is marked as “filed” on August 6, 1999, the district court’s records show that it was entered on the docket sheet on August 10, 1999. Pursuant to the Rules of Civil Procedure, it is the date that the order was entered on the docket sheet that we take as the effective date of the dis- trict court’s decision. See Wilson v. Murray, 806 F.2d 1232, 1234- 35 (4th Cir. 1986). 2	{ "pile_set_name": "FreeLaw" }
FILED NOT FOR PUBLICATION APR 7 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ANJUM NAWAZ KHAN, No. 18-71530 Petitioner, Agency No. A075-827-533 v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted April 3, 2020** Seattle, Washington Before: McKEOWN, N.R. SMITH, and NGUYEN, Circuit Judges. Anjum Nawz Khan petitions for review of the decision of the Board of Immigration Appeals (“BIA”), holding that Khan was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) for committing an aggravated felony under 8 U.S.C. § 1101(a)(43). We have jurisdiction to determine whether an offense is an * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). aggravated felony under the Immigration and Nationality Act. See Lopez-Jacuinde v. Holder, 600 F.3d 1215, 1217 (9th Cir. 2010). We grant the petition for review. The Department of Homeland Security issued a Notice to Appear, charging Khan with removability as an aggravated felon based on Khan’s conviction of rape in the second degree, Revised Code of Washington section 9A.44.050(1). The BIA concluded that all subsections of RCW § 9A.44.050(1) were a categorical match to the generic crime of rape. We disagree. Subsections (c), (d), and (e) of RCW § 9A.44.050(1) are overbroad, because they can be committed with consent and do not require that a person be “overcome by force or fear, or under other prohibitive conditions.” Castro-Baez v. Reno, 217 F.3d 1057, 1059 (9th Cir. 2000) (defining common law rape) (quoting Black’s Law Dictionary (6th ed.1990)); see also State v. Soderquist, 816 P.2d 1264, 1267 (Wash. Ct. App. 1991) (noting that subsection (c) “involve[s] a vulnerable victim and an abuse of trust”). Because RCW § 9A.44.050(1) is overbroad, we must next determine whether the statute is divisible. See Lopez-Valencia v. Lynch, 798 F.3d 863, 867- 68 (9th Cir. 2015). “[I]ndivisible statutes may contain multiple, alternative means of committing the crime, [whereas] only divisible statutes contain multiple, alternative elements of functionally separate crimes.” Rendon v. Holder, 764 F.3d 1077, 1084-85 (9th Cir. 2014). Whether the subsections of RCW § 9A.44.050(1) 2 are elements or means turns “on whether a jury must unanimously agree on which of the [six] statutory alternatives a defendant committed to return a conviction.” United States v. Robinson, 869 F.3d 933, 938 (9th Cir. 2017). “[A] statute is indivisible if the jury may disagree on the fact at issue yet still convict.” Lopez-Valencia, 798 F.3d at 869 (quotation marks and citation omitted). Here, the Washington Supreme Court has explained that the subsections of RCW § 9A.44.050(1) are “alternative means,” and that “jury unanimity as to the means by which [the defendant] committed the rape is not required.” State v. Ortega-Martinez, 881 P.2d 231, 233 (Wash. 1994). In Robinson, we analyzed another Washington statute, RCW § 9A.36.021. Relying on the Washington Supreme Court’s conclusion that the subsections were “alternative means,” we held that the statute was indivisible, because jury unanimity was not required. 869 F.3d at 939-41. The issue presented in the present case is indistinguishable from Robinson. RCW § 9A.44.050(1) allows prosecutors to allege more than one “alternative means” of committing rape in the second degree, and a jury need not agree on the means of committing the rape. See Ortega-Martinez, 881 P.2d at 234-35. Accordingly, Khan’s conviction under 3 RCW § 9A.44.050(1) does not categorically satisfy the definition of an aggravated felony.1 PETITION FOR REVIEW GRANTED and REMANDED. 1 Because we grant the petition, we need not reach Khan’s additional arguments raised on appeal. 4	{ "pile_set_name": "FreeLaw" }
jf ourtlj Court of September 30, 2014 No. 04-13-00593-CV Venus Minsal. Appellant v. Abel 11. Garcia, Appellee Trial Court Case No. 2012-CI-18466 O R D E R The Court has reviewed the record and briefs in this appeal and has determined thai oral argument will not significantly aid it in determining the legal and factual issues presented in the appeal. See TEX. R. APP. P. 39.8. Therefore, all requests for oral argument are denied, and the cause is advanced for ON BRIEFS submission on November 5, 2014, to the following panel: Justice Martinez, Justice Alvarez, and Justice Chapa. All parties will be notified of the Court's decision in this appeal in accordance with TEX. R. APP. P. 48. Either party may file a motion requesting the Court to reconsider its determination that oral argument will not significantly aid the Court in determining the legal and factual issues presented in the appeal. See TEX. R. App. P. 39.8. Such a motion should be filed within ten (10) days from the date of this order. It is so ORDERED on September 30, 2014. IN WITNESS WHEREOF, I have hereunto set my hand and a/fixed the seal court on this September 30. 2014. .Clerk7 /	{ "pile_set_name": "FreeLaw" }
144 F.3d 55 U.S.v.Foxx* NO. 97-4468 United States Court of Appeals,Eleventh Circuit. April 28, 1998 1 Appeal From: S.D.Fla. ,No. 2 Affirmed. * Fed.R.App.P. 34(a); 11th Cir.R. 34-3	{ "pile_set_name": "FreeLaw" }
535 U.S. 1081 LANDAUv.SHANNON. No. 01-9020. Supreme Court of the United States. May 20, 2002. 1 C. A. 3d Cir. Certiorari denied.	{ "pile_set_name": "FreeLaw" }
FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JAMES JOHN MCBRIDE, No. 12-17682 Plaintiff-Appellant, D.C. No. v. 1:10-cv-02229- AWI-BAM S. LOPEZ; R. RUGGLES; M. PEREZ; D. LOPEZ; S. KOCH; R. ATHEY, Sgt., Defendants-Appellees. OPINION Appeal from the United States District Court for the Eastern District of California Anthony W. Ishii, Senior District Judge, Presiding Argued and Submitted April 13, 2015—San Francisco, California Filed June 30, 2015 Before: Mary M. Schroeder and N. Randy Smith, Circuit Judges and Roger T. Benitez,* District Judge. Opinion by Judge Schroeder * The Honorable Roger T. Benitez, District Judge for the U.S. District Court for the Southern District of California, sitting by designation. 2 MCBRIDE V. LOPEZ SUMMARY Prisoner Civil Rights The panel affirmed the district court’s order granting defendants’ motion to dismiss a prisoner civil rights action for failure to exhaust administrative remedies under the Prison Litigation Reform Act. The panel held preliminarily that although exhaustion issues must generally be decided on a motion for summary judgment pursuant to Fed. R. Civ. P. 56, in this case there was no need for further factual development. The panel held that fear of retaliation may be sufficient to render an inmate grievance procedure effectively unavailable and thereby excuse the prisoner’s failure to exhaust administrative remedies. To determine whether failure to exhaust is excusable, the panel approved the test applied by the Eleventh Circuit in Turner v. Burnside, 541 F.3d 1077, 1084–85 (11th Cir. 2008). Under the test, a prisoner must provide both a subjective and objective basis for the fear of retaliation. The panel held that in this case, plaintiff failed to show an objective basis for his belief that prison officials would retaliate against him for filing a grievance. The panel determined that there was no objective indication that the officials’ statements were aimed at deterring plaintiff from filing a grievance and there was no allegation or evidence that officials believed that plaintiff was contemplating filing a grievance. This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. MCBRIDE V. LOPEZ 3 COUNSEL Tom Wyrwich (argued), Davis Wright Tremaine LLP, Seattle, Washington, for Plaintiff-Appellant. Kamala D. Harris, Attorney General of California, Thomas S. Patterson, Supervising Deputy Attorney General, Suzanne Antley (argued) and Neah Huynh, Deputy Attorneys General, San Diego, California, for Defendants-Appellees. OPINION SCHROEDER, Circuit Judge: The Prison Litigation Reform Act (“PLRA”) requires the exhaustion of available prison administrative remedies before a prisoner may file suit in federal district court. The requirement may, however, be excused under certain limited circumstances where the intervening actions or conduct by prison officials render the inmate grievance procedure unavailable. In this case, for the first time in our circuit, we consider a claim that a threat of retaliatory action by a prison guard had the effect of rendering the prison grievance system unavailable so as to excuse the prisoner’s failure to meet the time limitation for filing a grievance. We join other circuits in holding that fear of retaliation may be sufficient to render the inmate grievance procedure unavailable, and we approve the test applied in the Eleventh Circuit that requires both a subjective and objective basis for the fear. We hold in this case that McBride failed to show an objective basis for his belief that prison officials would retaliate against him for filing a grievance. We therefore affirm the district court’s dismissal of the complaint. 4 MCBRIDE V. LOPEZ We observe as a preliminary matter that we decide this appeal after our court’s decision in Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014) (en banc), which overruled our prior circuit practice of deciding exhaustion issues on the basis of an “unenumerated motion” to dismiss pursuant to Federal Rule of Civil Procedure 12(b). Id. at 1168. We held that exhaustion issues must instead generally be decided on a motion for summary judgment pursuant to Rule 56. Id. Albino does not affect our decision in this case because there is no need for further factual development. BACKGROUND The case arises out of an incident at Pleasant Valley State Prison in California, where the plaintiff-appellant James McBride was an inmate. On July 4, 2010, McBride allegedly began an altercation with guards by throwing an unknown “burning liquid” in the eyes of one guard, Lopez, after McBride was told that he and other inmates were to be housed in a different building. According to McBride, several guards, including defendants Lopez and Ruggles, then punched and kicked him repeatedly in the head, causing bleeding and swelling. The guards stated in their reports of the incident that they were using appropriate force to subdue McBride, while McBride claims the force the guards used was excessive. After the incident, McBride was placed in administrative segregation or “ad-seg.” McBride alleges that while he was in ad-seg, defendants Ruggles and Lopez came by his cell and told him that he was “lucky” because his injuries “could have been much worse.” According to McBride, the guards visited him with similar comments on a number of occasions. He alleges he interpreted these statements as threats and did not MCBRIDE V. LOPEZ 5 immediately file a grievance against the defendants for excessive force because he feared retaliation. McBride further alleges that after over two months had passed he began to fear that if he did not report the earlier incident he might suffer harm, so he initiated the grievance process by filing the Inmate/Parolee Appeal Form required for grievances within the California state prison system. McBride filed the form on September 16, 2010, approximately ten weeks after the incident. The filing was therefore approximately two months late, since California prison regulations then required grievances to be initiated within fifteen days. The prison’s appeals coordinator denied McBride’s grievance on October 6, informing him that it was not timely and that McBride needed to provide an explanation for why he could not file in a timely fashion. McBride responded on October 20, explaining that he did not file on time because he was afraid of retaliation for reporting the incident, due to threats he had received from Lopez and Ruggles. On October 25, the appeals coordinator again rejected McBride’s grievance, stating that McBride had failed to provide an adequate explanation for why he could not timely file. McBride filed his pro se complaint in federal district court, pursuant to 42 U.S.C. § 1983, in December 2010, claiming violation of his Eighth Amendment rights by use of excessive force in connection with the original altercation. He also attached the record of his grievances, including the explanation he had submitted to the appeals coordinator as to why he could not timely file. 6 MCBRIDE V. LOPEZ The district court granted defendants’ motion to dismiss. The magistrate judge (in an order adopted by the district court) first noted that while our court had not considered the issue, a number of district courts in this circuit have ruled that threats cannot excuse a failure to exhaust. The order then reviewed the decisions of other circuits recognizing that threats can excuse a failure to exhaust. The district court concluded that even if it were to agree that threats can excuse a failure to exhaust, the statements by Lopez and Ruggles were not overtly threatening, but merely stating a fact when they described McBride as being “lucky” that his injuries were not worse. McBride appealed, and we appointed counsel to represent him. DISCUSSION The Prison Litigation Reform Act states that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner . . . until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This court has previously emphasized that the PLRA requires only that a prisoner exhaust available remedies, and that a failure to exhaust a remedy that is effectively unavailable does not bar a claim from being heard in federal court. In Nunez v. Duncan, 591 F.3d 1217, 1225–26 (9th Cir. 2010), the official rejecting the prisoner’s grievance mistakenly relied on a particular regulation, and the prison obstructed the prisoner’s efforts to obtain the regulation, resulting in delay. We held that the mistake of the prison Warden “rendered [the prisoner’s] administrative remedies effectively unavailable” and that the prisoner’s failure to exhaust was therefore “excused.” Id. at 1226. In Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010), we held that a prison’s improper MCBRIDE V. LOPEZ 7 screening of a grievance can also render administrative remedies “‘effectively unavailable’ such that exhaustion is not required under the PLRA.” Finally, in Albino, 747 F.3d at 1177, we held that where a jail did not inform a prisoner of the process for filing a complaint even after repeated requests, the jail did not prove that there was any realistically “available” remedy for the prisoner to exhaust. While we have not yet explicitly addressed whether a threat of retaliation may be sufficient to render an administrative remedy “effectively unavailable,” other circuits have. At least four have recognized that when a prisoner reasonably fears retaliation for filing a grievance, the administrative remedy is effectively rendered unavailable and the prisoner’s failure to exhaust excused. See, e.g., Hemphill v. New York, 380 F.3d 680, 688 (2d. Cir. 2004) (holding that threats render ordinary grievance procedures effectively unavailable when they are serious enough to deter “a similarly situated individual of ordinary firmness”); Kaba v. Stepp, 458 F.3d 678, 684–86 (7th Cir. 2006) (citing with approval the objective “ordinary firmness” test from Hemphill); Turner v. Burnside, 541 F.3d 1077, 1084–85 (11th Cir. 2008) (holding that remedies “that rational inmates cannot be expected to use” because of threats are not available, and adopting a two-part test); Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011) (adopting the two-part test from Turner). Our recognition of such an exception today flows from our prior cases, since we have previously cited with approval the leading cases from the other circuits. See Sapp, 623 F.3d at 823 (citing Turner, Kaba, and a case from the Second Circuit that followed Hemphill); Nunez, 591 F.3d at 1224 8 MCBRIDE V. LOPEZ (same). Recognizing such an exception therefore is fully supported by our precedent. There are important reasons for recognizing such an exception. The PLRA imposes an exhaustion requirement in order to give an agency the opportunity to correct its own mistakes before being dragged into federal court and in order to promote greater efficiency and economy in resolving claims. Woodford v. Ngo, 548 U.S. 81, 89 (2006). Requiring inmates to first exhaust through the prison’s own process gives inmates an incentive to use the available remedies, i.e., to “pursue administrative proceedings that they might otherwise prefer to skip.” Sapp, 623 F.3d at 823 (citing Ngo, 548 U.S. at 90). At the same time, we must discourage prisons from actions that might deter prisoners from using grievance procedures. We therefore allow prison inmates to bring these claims in federal court when prison officials have rendered the grievance process effectively unavailable. This provides an important incentive for the prison: to allow prisoners to file grievances freely, and without fear of retaliation. See Turner, 541 F.3d at 1085 (“[Recognizing that threats can render administrative remedies unavailable] is beneficial because it reduces any incentive that prison officials otherwise might have to use threats to prevent inmates from exhausting their administrative remedies, and it thereby safeguards the benefits of the administrative review process for everyone.”). For these reasons it is now appropriate for our court to recognize expressly that the threat of retaliation for reporting an incident can render the prison grievance process effectively unavailable and thereby excuse a prisoner’s failure to exhaust administrative remedies. Such recognition is consistent with the overall aim of the PLRA, and with MCBRIDE V. LOPEZ 9 providing efficient administration of the prison grievance system. When we turn to the question of how to determine when a failure to exhaust is excusable, we find that the formulation of the test to determine excusability is not the same for all circuits. The Tenth and Eleventh Circuits apply a test that has both subjective and objective components, while the Second and the Seventh have a more generalized one-part test. The Eleventh Circuit test, later adopted by the Tenth, requires that two conditions be met: “(1) the threat [of retaliation] actually did deter the plaintiff inmate from lodging a grievance or pursuing a particular part of the process; and (2) the threat is one that would deter a reasonable inmate of ordinary firmness and fortitude from lodging a grievance or pursuing the part of the grievance process that the inmate failed to exhaust.” Id. By contrast, the Second and Seventh Circuits hold that threats of retaliation may excuse a failure to exhaust when the threats are serious enough to deter “a similarly situated individual of ordinary firmness.” Hemphill, 380 F.3d at 688 (internal quotation marks omitted). The Eleventh Circuit’s test is straightforward and conceptually simple to apply. To show that a threat rendered the prison grievance system unavailable, a prisoner must provide a basis for the court to find that he actually believed prison officials would retaliate against him if he filed a grievance. If the prisoner makes this showing, he must then demonstrate that his belief was objectively reasonable. That is, there must be some basis in the record for the district court to conclude that a reasonable prisoner of ordinary firmness would have believed that the prison official’s action communicated a threat not to use the prison’s grievance procedure and that the threatened retaliation was of sufficient 10 MCBRIDE V. LOPEZ severity to deter a reasonable prisoner from filing a grievance. In oral argument, both parties in the case before us indicated their satisfaction with the application of the Eleventh Circuit’s a test. We therefore adopt it. Applying the subjective prong of the test to McBride’s case, we consider whether McBride has sufficiently alleged that he was actually deterred from filing a grievance by the guards’ threats. Construing the facts in the light most favorable to McBride, his allegation that he perceived the statement that he was “lucky,” in that his injuries “could have been much worse,” to be a threat not to use the prison grievance system is sufficient to satisfy the subjective prong. Given the circumstance that McBride had recently been beaten by the same guards making the statements, McBride could have believed the guards bore him considerable hostility and therefore the statements could be interpreted as threatening. To the extent the district court ruled to the contrary, we disagree. Turning to the objective prong, we conclude that McBride failed to make the requisite showing. Even if McBride actually viewed the statements as threatening, the issue before us is whether the guards’ statements could reasonably be viewed as threats of retaliation if McBride filed a grievance. As the district court recognized, the statements themselves make no reference to a grievance or to anything else, beyond the preexisting hostility, that might trigger a future attack on the part of the guards. McBride’s case stands in stark contrast to the threats made to prisoners in Turner and Hemphill, which explicitly threatened retaliation if the prisoner used the prison’s grievance system. See Turner, 541 F.3d at 1081; Hemphill, 380 F.3d at 684. Although the threat need not explicitly reference the grievance system in order to deter a MCBRIDE V. LOPEZ 11 reasonable inmate from filing a grievance, c.f. Brodheim v. Cry, 584 F.3d 1262, 1270 (9th Cir. 2009), there must be some basis in the record from which the district court could determine that a reasonable prisoner of ordinary firmness would have understood the prison official’s actions to threaten retaliation if the prisoner chose to utilize the prison’s grievance system. Only then will the threat render the prison grievance system effectively unavailable. There was no objective indication the guards’ statements were aimed at deterring McBride from filing a grievance. There is no allegation or evidence that the guards believed McBride was contemplating filing a grievance. McBride had not asked for materials necessary to file a grievance or given any indication to prison officials that he intended to file a grievance. The only potentially relevant fact McBride alleges is that he was beaten, and that the guards (who beat him) made the statements. If this fact, standing alone, were sufficient, any hostile interaction between a prisoner and prison officials would render the prison’s grievance system unavailable. There is no reason to allow inmates to avoid filing requirements on the basis of hostile interactions with guards when the interaction has no apparent relation to the use of the grievance system. Hostile interaction, even when it includes a threat of violence, does not necessarily render the grievance system “unavailable.” Accordingly, McBride has failed to demonstrate that the prison’s grievance system was rendered effectively unavailable by the conduct of prison officials. Thus, he was required to exhaust his administrative remedies. By failing to timely file a grievance, McBride failed to satisfy this threshold requirement to review of his claims in federal court. The district court did not err by dismissing his complaint. 12 MCBRIDE V. LOPEZ AFFIRMED.	{ "pile_set_name": "FreeLaw" }
319 F.2d 860 TYSON'S POULTRY, INC., Appellant,v.UNITED STATES of America. No. 17357. United States Court of Appeals Eighth Circuit. July 17, 1963. James B. Blair of Crouch, Blair & Cypert, Springdale, Ark., for appellant. Charles M. Conway, U.S. Atty., Morton Hollander, Chief Appellate Section, and Terence N. Doyle, Washington, D.C., for appellee. PER CURIAM. 1 Appeal from District Court dismissed on dismissal of appeal by appellant. 216 F.Supp. 53.	{ "pile_set_name": "FreeLaw" }
4 F.Supp.2d 803 (1998) Kathryn HUBNER and Steven Hubner, Plaintiffs, v. GRINNELL MUTUAL REINSURANCE COMPANY, Defendant. No. 97-3266. United States District Court, C.D. Illinois, Springfield Division. June 24, 1998. 804 Gary L. Clark, Peoria, IL, for Plaintiffs. Michael T. Reagan, LaSalle, IL, for Defendant. OPINION RICHARD MILLS, District Judge. An insured obtained an insurance policy covering his truck and a separate policy covering his motorcycle. The uninsured motorist provision of the policy issued on his truck had a higher policy limit than the uninsured motorist provision of the policy issued on his motorcycle. If the insured is injured by an uninsured motorist while riding his motorcycle, may the insured recover under the uninsured motorist provision of the policy issued on his truck? No. I. BACKGROUND In the summer of 1996, Kathryn and Steven Hubner owned two vehicles, a 1979 Chevrolet pickup truck and a 1995 Honda motorcycle. Grinnell Mutual Reinsurance Company ("Grinnell") insured the Hubner's truck ("the Grinnell policy"); Dairyland Insurance Company ("Dairyland") insured their motorcycle ("the Dairyland policy") The Grinnell policy included uninsured motorist coverage with a policy limit of $50,000.00; likewise, the Dairyland policy included uninsured motorist coverage with a policy limit of $20,000.00. On July 4, 1996, the Hubners were riding their motorcycle when it was struck by another vehicle.[1] As a result of this accident, Kathryn Hubner suffered bodily injuries. Because the vehicle which struck their motorcycle was uninsured, Kathryn Hubner made a claim to Dairyland under the uninsured motorist provision of the Dairyland policy. Accordingly, Dairyland paid Kathryn Hubner $20,000.00, i.e., the policy limit. The Hubners have now filed the instant suit seeking a declaratory judgment from the Court. The Hubners argue that they are also entitled to recover $50,000.00 (i.e., the policy limit) under the uninsured motorist provision of the Grinnell insurance policy.[2] Thus, the Hubners ask the Court to enter an Order declaring that Grinnell must provide uninsured motorist coverage to Kathryn Hubner and that Grinnell must pay its proportionate share of her damages. II. STANDARD FOR SUMMARY JUDGMENT Federal Rule of Civil Procedure 56(c) provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is 805 entitled to judgment as a matter of law." Fed.R.Civ.Pro. 56(c); see Ruiz-Rivera v. Moyer, 70 F.3d 498, 500-01 (7th Cir.1995). The moving party has the burden of providing proper documentary evidence to show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue of material fact exists when "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining whether a genuine issue of material fact exists, the Court must consider the evidence in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Once the moving party has met its burden, the opposing party must come forward with specific evidence, not mere allegations or denials of the pleadings, which demonstrates that there is a genuine issue for trial. Howland v. Kilquist, 833 F.2d 639 (7th Cir.1987). III. ANALYSIS The Hubners argue that the clear language of the Grinnell policy establishes that the uninsured motorist portion of that policy provides coverage for Kathryn Hubner's injuries resulting from the July 4, 1996, accident. The Hubners rely upon the following language in the Grinnell policy: DEFINITIONS USED THROUGHOUT THIS POLICY (1) "You" and "your" means the policy holder named in the declarations. (2) "We" and "us" and "our" means the company providing this insurance. Part III UNINSURED MOTORIST/UNDERINSURED MOTORISTS. We will pay damages for bodily injury which an insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle. The bodily injury must be caused by accident and arise out of the ownership, maintenance, or use of an uninsured motor vehicle. (1) Insured person means: (d) Any occupant of any vehicle being operated by you or a relative. On the other hand, Grinnell denies that the policy covers Kathryn Hubner's injuries. In support of its position, Grinnell relies on the Illinois Insurance Code ("the Code") which provides in relevant part: Uninsured motor vehicle coverage does not apply to bodily injury, sickness, disease, or death resulting therefrom, of an insured while occupying a motor vehicle owned by, or furnished or available for the regular use of the insured, a resident spouse or resident relative, if that motor vehicle is not described in the policy under which a claim is made or is not a newly acquired or replacement motor vehicle covered under the terms of the policy. 215 ILCS 5/143a(1). The Court finds that the Hubners are not entitled to coverage under the uninsured portion of the Grinnell insurance policy. The United States Court of Appeals for the Seventh Circuit has recently noted: It is fundamental insurance law that "[e]xisting and valid statutory provisions enter into and form a part of all contracts of insurance to which they are applicable, and, together with settled judicial constructions thereof, become a part of the contract as much as if they were actually incorporated therein." 2 Lee R. Russ & Thomas F. Segalla, Couch on Insurance 3d § 19:1, at 19-2 to 19-4 (1996) (footnotes omitted). Policy terms that are in conflict with statutory provisions are invalid. Id. § 19:2, at 19-5 to 19-8; cf. 2 E. Allan Farnsworth, Farnsworth on Contracts § 5.1, at 2; id. § . 5.8, at 68- 75 (1990). This principle is part of the law of Illinois. Plumb v. Fluid Pump Serv., Inc., 124 F.3d 849, 861 (7th Cir.1997) (citations omitted). Thus, 215 ILCS 5/143a(1)'s restriction (i.e., that uninsured motor vehicle coverage does not apply when an insured is occupying a vehicle owned, etc., by the insured if that vehicle is not described in the policy under which a claim is made) is as much a part of the Grinnell insurance policy as if it were transcribed verbatim therein. Title 215 ILCS 5/143a(1) clearly prohibits the Hubners 806 from making a claim under the Grinnell policy because the accident occurred on a motor vehicle (i.e., their motorcycle) which is not described in that policy. The Hubners argue that the Grinnell policy previously contained an exclusion which would have prevented their claim. Later, in an amendment to the policy, Grinnell deleted that exclusion. Therefore, the Hubners assert that they should be allowed to make a claim under the policy as written. However, because 215 ILCS 5/143a(1) is a part of the Grinnell insurance policy, the statute itself serves as a de facto exclusion and, as stated above, prohibits the Hubner's claim for uninsured motorist coverage under the Grinnell policy. Even if the Court were to interpret the Grinnell insurance policy as the Hubners have, the Court would still deny their claim as violative of Illinois public policy. The Illinois Supreme Court has recently opined: In construing the language of an insurance policy, a court must ascertain and give effect to the intention of the parties as expressed in their agreement. To that end, terms utilized in the policy are accorded their plain and ordinary meaning. We will apply those terms as written unless such application contravenes public policy. State Farm Mut. Auto. Ins. Co. v. Villicana, 181 Ill.2d 436, 692 N.E.2d 1196, 1199, 230 Ill.Dec. 30, 33 (Ill.1998) (citations omitted). In the instant case, two public policies weigh against the Court adopting the Hubner's interpretation of the Grinnell insurance policy. First, if the Court were to find coverage under the Grinnell policy, it would encourage a consumer to purchase adequate uninsured motorist protection for one vehicle which he owns and little or no uninsured motorist protection on the other vehicle(s) which he might own. The Illinois Supreme Court has found that such a scenario contravenes public policy: Here, when the plaintiff insured his motorcycle with Pekin, he voluntarily elected to purchase uninsured-motorist coverage with limits of only $20,000 per person/$40,000 per accident. If we hold that he is nevertheless entitled to recover an additional $80,000 in uninsured-motorist coverage under his Allstate policy, we will simply encourage consumers to purchase adequate uninsured-motorist protection for one automobile and minimal or no uninsured-motorist protection for all other automobiles. Invalidating the exclusionary clause in All-state's policy would therefore discourage consumers from purchasing the maximum amount of uninsured-motorist coverage when insuring their automobiles. Luechtefeld v. Allstate Ins. Co., 167 Ill.2d 148, 159-60, 656 N.E.2d 1058, 1064, 212 Ill. Dec. 224, 230 (Ill.1995). Second, if the Court were to find coverage under the Grinnell policy, the Hubners would recover more under the Grinnell uninsured motorist coverage provision than they had originally selected for bodily injury liability coverage under the Dairyland policy.[3] The Illinois Supreme Court has opined that such a result also contravenes public policy: Thus, if the plaintiff was involved in an accident with his motorcycle in which he was at fault, only that amount of coverage would be available to injured third parties. The plaintiff is now attempting to recover more benefits for himself when injured by others than he elected to make available to third parties whom he injured. In Fuoss v. Auto Owners (Mutual) Insurance Co. (1987), 118 Ill.2d 430, 435, 114 Ill.Dec. 113, 516 N.E.2d 268, this court was critical of such a strategy in a different context. In Fuoss, an insured claimed that he was entitled to recover underinsured-motorist coverage in an amount greater than the liability coverage limits he had purchased. This court stated that, to allow him to do so: "would permit [the insured] to choose, after the fact, underinsurance coverage in an amount greater than he originally selected for bodily injury liability coverage with the result that [the insured] would be providing more protection for himself than he was originally willing to extend to the general public. Such an outcome would, as the appellate court 807 said, be `repugnant to our system of justice.'" Fuoss, 118 Ill.2d at 435, 114 Ill.Dec. 113, 516 N.E.2d 268, quoting Fuoss v. Auto Owners (Mutual) Insurance Co. (1986), 148 Ill.App.3d 526, 535, 101 Ill.Dec. 951, 499 N.E.2d 539. Luechtefeld, 167 Ill.2d at 160, 656 N.E.2d at 1064, 212 Ill.Dec. at 230. Finally, Plaintiff's reliance upon 215 ILCS 5/442 is inapposite. Title 215 ILCS 5/442 provides: Any contract or policy of insurance or any application, endorsement or rider form used in connection therewith issued in violation of any section of this Code requiring certain provisions to be inserted therein or the inclusion of provisions prohibited, or issued without submitting same for approval by the Director in accordance with section 143, shall nevertheless be held valid but shall be construed in accordance with the requirements of the section that the said policy, application, endorsement or rider violates, and when any provision in such contract, application, endorsement or rider is in conflict with any provision of this Code, the rights, and obligations of the company thereunder shall not be less favorable to the holder of the contract and the beneficiary or annuitant thereunder than is required by the provisions of this Code applicable thereto. The Hubners assert that 215 ILCS 5/442 "validates" their claim for uninsured motorist coverage under the Grinnell policy which is in conflict with the Illinois Insurance Code because the uninsured motorist provision is more favorable to them than the coverage required under the Code. However, § 442 requires that the rights and obligations of the insurer not be less favorable to the insured than is required by the provisions of the Illinois Insurance Code, not of the policy itself. Section 442 requires that all policy provisions which are in conflict with the Code be construed in accordance with the Code, not in accordance with the policy itself. Furthermore, "[s]tatutory provisions applicable to a contract of insurance are deemed to form a part of that contract and must be construed in connection therewith. Any attempt ... to dilute or diminish statutory provisions applicable to [the] contract of insurance is contrary to public policy and any conflict between statutory and policy provisions will be resolved in favor of the statutory provisions." DC Electronics, Inc. v. Employers Modern Life Co., 90 Ill.App.3d 342, 348, 413 N.E.2d 23, 26, 45 Ill.Dec. 690, 695 (1980) (citation omitted). Likewise, "[s]tatutory provisions applicable to contracts of insurance are deemed to form a part of such contract and must be construed in connection therewith; policy provisions in conflict with the statute are void." Harris v. St. Paul Fire & Marine Ins. Co., 248 Ill.App.3d 52, 57, 618 N.E.2d 330, 333, 187 Ill.Dec. 739, 742 (1993). In short, "the insured in question selected the policy and the uninsured motorist limits that apply to the owned vehicle in which the injury occurred. The insured was therefore bound by his or her choice of lower uninsured-motorist coverage for that owned vehicle." Illinois Farmers Ins. Co. v. Cisco, 178 Ill.2d 386, 394, 687 N.E.2d 807, 811, 227 Ill.Dec. 325, 329 (Ill.1997). Because the Court has found that the uninsured motorist provision of the Grinnell policy does not cover Kathryn Hubner's injuries resulting from her July 4, 1996, accident, the Court need not address the issue of policy limits. Ergo, Plaintiffs' Motion for Summary Judgment is DENIED, and Defendant's Motion for Summary Judgment on Count I of Plaintiffs' Complaint is ALLOWED. Accordingly, summary judgment is hereby entered in favor of Defendant and against Plaintiffs on Count I of Plaintiffs' Complaint. NOTES [1] Steven Hubner was operating the motorcycle, and Kathryn Hubner was a passenger. [2] The Hubner's truck was not involved in the accident. [3] The Dairyland policy had liability limits of $20,000.00 per person.	{ "pile_set_name": "FreeLaw" }
582 F.2d 25 John DOE and Richard H. Foster, Plaintiffs-Appellants,v.The STATE BAR OF CALIFORNIA, Michael E. Wald and David L.Frey, Jr., Defendants-Appellees. No. 76-2894. United States Court of Appeals,Ninth Circuit. Sept. 18, 1978. Richard H. Foster (argued), San Francisco, Cal., for plaintiffs-appellants. Ronald W. Stovitz (argued), San Francisco, Cal., for defendants-appellees. Appeal From The United States District Court For The Northern District of California. Before MERRILL and TANG, Circuit Judges, and TAYLOR, District Judge.* PER CURIAM: 1 This appeal is from the judgment of the district court dismissing this action to enjoin disciplinary proceedings of the State Bar of California against appellant John Doe. Appellants contend that the disciplinary proceedings violate the due process clause of the Fourteenth Amendment. 2 After a careful review of the record and the briefs of counsel, it is our opinion that the trial judge correctly concluded that the federal courts do not have jurisdiction to interfere with disciplinary proceedings of the State Bar of California for the reasons stated in his opinion. Doe v. State Bar of California, 415 F.Supp. 308 (N.D.Cal.1976). See also MacKay v. Nesbett, 412 F.2d 846 (9th Cir. 1969), Cert. denied 396 U.S. 960, 90 S.Ct. 435, 24 L.Ed.2d 425 (1969). 3 Affirmed. * For the District of Idaho, sitting by designation	{ "pile_set_name": "FreeLaw" }
In the United States Court of Federal Claims Nos. 17-1189L, 17-1191L, 17-1194L, 17-1195L, 17-1206L, 17-1215L, 17-1216L 17-1232L, 17-1235L, 17-1277L, 17-1303L, 17-1300L Filed: September 25, 2017 ************************************** Y AND J PROPERTIES, LTD., * individually and on behalf of all other * persons similarly situated, * Plaintiffs, * * BRYANT BANES, NEVA BANES, * CARLTON JONES, AND NB RESEARCH, * INC., on behalf of themselves and others * similarly situated, * Plaintiffs, * * MATTHEW SALO AND GABRIELA SALO,* on behalf of themselves and all other similarly * situated persons and entities, * Plaintiffs, * * ANGELA BOUZERAND, WAYNE * PESEK, AMY PESEK, AND FRED PAUL * FRENGER, individually and on behalf of all * other similarly situated, * Plaintiffs, * * VAL ANTHONY ALDRED, HAGAN * HAMILTON HEILIGBRODT, WILLIAM * LANGE KRELL, JR., BEVERLY FECEL * KRELL, AND SHAWN S. WELLING, * appearing individually and on behalf of * all persons similarly situated, * Plaintiffs, * * KENNETH LEE SMITH AND * CONSTANCE SMITH, * Plaintiffs, * * GARNER TIP STRICKLAND, IV AND * MEGAN K. STRICKLAND, * Plaintiffs, * * BONNIE CLARK GOMEZ AND * JORGE L. GOMEZ, * Plaintiffs, * VIRGINIA MILTON AND ARNOLD * MILTON, on behalf of themselves and all * other similarly situated persons, * Plaintiffs, * * CHRISTINA MICU, and all others * similarly situated, * Plaintiffs, * * ANTHONY ARRIAGA, et al., * Plaintiffs, * * WAYNE HOLLIS, JR. AND PEGGY * HOLLIS, individually and on behalf of all * other similarly situated, * Plaintiffs, * * v. * * THE UNITED STATES, * Defendant. * * ************************************** Michael D. Sydow, The Sydow Firm, Houston, Texas, Counsel for Plaintiff. Bryant Steven Banes, Neel, Hooper & Banes, PC, Houston, Texas, Counsel for Plaintiffs. Jay Edelson, Edelson PC, Chicago, Illinois, Counsel for Plaintiffs. Thomas M. Fulkerson, Fulkerson Lotz LLP, Houston, Texas, Counsel for Plaintiffs. Douglas Robert Salisbury, Potts Law Firm, LLP, Houston, Texas, Counsel for Plaintiffs. Christopher Stephen Johns, Johns, Marrs, Ellis & Hodge LLP, Austin, Texas and Houston, Texas, Counsel for Plaintiffs. Eric Reed Nowak, Harrell & Nowak, New Orleans, Louisiana, Counsel for Plaintiffs. Rand P. Nolen, Fleming, Nolen & Jez, L.L.P., Houston, Texas, Counsel for Plaintiffs. Charles W. Irvine, Irvine & Conner, LLC, Houston, Texas, Counsel for Plaintiffs. Timothy Micah Dortch, Cooper & Scully, PC, Dallas, Texas, Counsel for Plaintiffs. Clayton A. Clark, Clark, Love & Hutson, G.P., Houston, Texas, Counsel for Plaintiffs. 2 David Harrington, United States Department of Justice, Environmental and Natural Resources Division, Washington, D.C., Counsel for the Government. ORDER SCHEDULING STATUS CONFERENCE Counsel of record in the above-captioned twelve cases are hereby advised that the court will convene a status conference on Friday, October 6, 2017 at 10:00 AM (CST) in Courtroom 11-B in the United States District Court for the Southern District of Texas, 515 Rusk Street, Houston, Texas 77002. The purpose of the status conference is to ascertain counsel’s view on how these cases should proceed. Specifically, the above-captioned twelve cases have been randomly assigned to eight different judges of the court, including the undersigned judge. Eight of these cases have been filed as potential class actions; the other four are filed by individual plaintiffs and appear not to seek class action certification. Counsel should be prepared to advise about the following issues and others that may arise: 1. Whether some or all of these cases should be consolidated before one judge to supervise discovery and adjudicate liability; 2. Whether some or all of these cases should be consolidated before one judge to supervise discovery and adjudicate liability for all of the proposed class actions and one or more judges to supervise discovery and adjudicate liability for the individual plaintiffs’ cases; 3. Whether one of the proposed class actions should be designated as a lead case and the other proposed class actions be stayed; 4. Whether one of the individual cases should be designated as a lead case or should each case proceed separately or should any case be stayed; 5. An estimate of the amount of time counsel believes is required to conduct sufficient discovery to determine whether liability can be adjudicated by summary judgment; 6. Whether the parties anticipate requesting that the issue of liability be certified for an interlocutory appeal; and 7. Any other proposals counsel may have to assist the court reach an efficient and expeditious adjudication of liability. IT IS SO ORDERED. s/ Susan G. Braden SUSAN G. BRADEN Chief Judge 3	{ "pile_set_name": "FreeLaw" }
586 F.Supp. 402 (1984) Kenneth LANDSKRONER, Plaintiff, v. Vito TERNULLOW, Warden, Otisville Correctional Facility, Defendant. No. 83 Civ. 9035(CES). United States District Court, S.D. New York. April 12, 1984. 403 Herman Kaufman, Litman, Kaufman & Asche, New York City, for plaintiff. Vida M. Alvy, Asst. Atty. Gen., New York City, for defendant. MEMORANDUM DECISION STEWART, District Judge: Petitioner seeks a writ of habeas corpus asking this court to reinstate his state court appeal which he took following his criminal conviction for possession of cocaine. Petitioner claims that, in contravention of the federal constitution, he was denied effective assistance of appellate counsel. Because there are serious doubts as to whether petitioner has fairly presented his claim to the state courts, we dismiss the petition without prejudice to its renewal. Petitioner was convicted in the Albany County court in June of 1981 and sentenced to a 3 to 15 year prison term. The judgment of conviction was affirmed by the Appellate Division, Third Department, on December 23, 1982, and leave to appeal to the Court of Appeals was denied on March 8, 1983. Petitioner alleges that in late May of 1983, his mother learned for the first time that certain salient grounds for appeal were neither considered nor argued by petitioner's attorney when petitioner's direct appeal was taken. Subsequently, petitioner hired a new attorney and in late August of 1983, after counsel had investigated the matter, petitioner moved before the Appellate Division to reargue his appeal on the ground that the appeal had been the product of ineffective assistance of appellate counsel. In opposition to the reargument motion, the state argued only that the motion was barred from review for procedural reasons and did not address the merits of petitioner's claim. In particular, the state urged that the motion was not timely under section 800.14(f) of the Appellate Division, Third Department's rules, which states that "[m]otions for reargument must be made within 60 days" of the appeal. Section 800.14(f) is a time limitation promulgated pursuant to N.Y.Crim.Proc.Law § 470.50(2). Section 470.50 provides in relevant part: 1. After its determination of an appeal taken pursuant to article four hundred fifty, an appellate court, in the interest of justice and for good cause shown, may in its discretion, upon motion of a party adversely affected by its determination, or upon its own motion, order a reargument 404 or reconsideration of the appeal. ... 2. The court of appeals may promulgate rules limiting the time within which a motion for reargument of appeals determined by such court may be made, and the appellate division of each department may similarly promulgate such rules with respect to appeals determined by such appellate division ... In the absence of any such rule of limitation, a motion for reargument may be made at any time. Apparently for good measure, the state also opposed the reargument motion on the ground that "no interest of justice or good cause" had been shown, citing the language of section 470.50(1). We observe that this latter argument was made for good measure since, as we read section 470.50, the interest of justice/good cause criteria do not describe the circumstances under which time limits promulgated under section 470.50(2) (e.g., App.Div. Third Dep't Rule § 800.14(f)) may be relaxed, but rather the circumstances under which an otherwise timely motion to reargue should be granted. In any case, the Appellate Division denied the motion without opinion and since the state had raised only procedural arguments in opposition to the motion, both parties before us now agree that the motion was denied as procedurally barred, and that petitioner's ineffective appellate counsel claim was never heard on the merits. See Johnson v. Harris, 682 F.2d 49, 51 (2d Cir.), cert. denied, 459 U.S. 1041, 103 S.Ct. 457, 74 L.Ed.2d 609 (1982); Martinez v. Harris, 675 F.2d 51, 54 (2d Cir.), cert. denied, 459 U.S. 849, 103 S.Ct. 109, 74 L.Ed.2d 97 (1982). Accordingly, petitioner now urges that this court apply the "cause and prejudice" test of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Under that test, a claim which the state courts have refused to consider for procedural reasons may only be heard by a federal habeas court if the petitioner can surmount the significant hurdle of demonstrating "cause" for failing to comply with the state procedural requirements, as well as actual prejudice. Although we are aware of no cases directly on point, we agree with the state that application of Wainwright would be premature. We reach this conclusion 1) because of strong comity principles which dictate that a federal habeas court not pass on a habeas petition unless state courts have had a fair opportunity to pass on the claim first, 2) because the Wainwright cause and prejudice test anticipates that it will only be applied if the state courts will not, due to adherence to their own procedural rules, pass on the merits of a claim, and 3) because there is a real possibility that if petitioner were to return to state court and attempt one of several untested procedural avenues to have his claim heard, he would be successful. The first of these reasons requires no further explanation. It is beyond argument that the intent of the 28 U.S.C. § 2254 exhaustion requirement is that "the state courts [be afforded] a fair opportunity to pass upon [a petitioner's] federal claim." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir.1982) (en banc). It would therefore also seem manifest that if a state court has refused to pass on a federal claim because the petitioner has not followed a procedure which, according to state law, would entitle him to review of his claim, and avenues exist by which the claim could be heard, a federal habeas court must require the petitioner to follow one of those avenues before passing on his claim. Since it is undisputed that petitioner was barred for procedural reasons from having his ineffective assistance of appellate counsel claim heard in the state courts, the question we must now answer is whether other avenues exist by which he could have his claim heard. On this point state law is admittedly unclear. What is clear is that if a claim of ineffective assistance of appellate counsel is to be heard in the state courts, it must be by some method subsequent and collateral to the allegedly inadequate direct appeal. We are aware of no state cases or statutes 405 which prescribe the proper method for presenting this claim in New York, but authority exists which suggests that procedural methods other than that chosen by petitioner may be available. One method of review which might be available is a coram nobis proceeding either at the trial court level under N.Y. Crim.Proc.Law § 440.10, or at the Appellate Division level under common law principles. It is true that section 440.10 governs motions to "vacate a judgment" (emphasis added), but the practice commentary specifically points out that section 440.10 is a "catch-all collateral proceeding[]" for post judgment remedies and that it is noteworthy that, although the section pretends to be comprehensive and thus intended to be an exclusive codification, there is no express provision eliminating any inherent judicial authority to embrace and address and indeed fashion, as may be necessary and appropriate in a given situation, a post-judgment remedy outside the four corners of this section. Further, section 440.10 is deemed a proper procedural route for review of cases in which counsel improperly declined to file or perfect an appeal. E.g., People v. Adams, 12 N.Y.2d 417, 190 N.E.2d 529, 240 N.Y. S.2d 155 (1963); People v. Starkins, 23 A.D.2d 683, 257 N.Y.S.2d 606 (2d Dep't 1965). Lastly, we think it significant that the New York Court of Appeals has expressly left the door open for review of ineffective appellate counsel claims via section 440.10. People ex rel. Douglas v. Vincent, 50 N.Y.2d 901, 409 N.E.2d 990, 431 N.Y.S.2d 518 (1980). Before the court in Douglas was the question of whether state habeas corpus is a proper channel for review of such claims, a question the court decided in the negative. Apparently, not wishing to reach an issue not before it, the court thought it inappropriate to comment on "whether the ... effective assistance of counsel [claim] may be heard in a proceeding in the nature of coram nobis." 431 N.Y.S.2d at 518. A dissenting judge did reach that question and expressed the view that either a common law coram nobis proceeding at the Appellate Division level or a section 440.10 coram nobis proceeding at the trial court level would provide an appropriate procedure for review of an ineffective appellate counsel claim. Id. Another potentially available route for presentation of an ineffective appellate counsel claim is by motion to reargue to the New York Court of Appeals. As is the case with Rule 800.14(f) of the Appellate Division, Third Department's rules, N.Y. Crim.Proc.Law § 470.50 authorizes the Court of Appeals to place a limit on the amount of time which may pass before a motion to reargue must be made. The Court of Appeals has accordingly promulgated section 500.9(f)(3) which provides that a reargument motion be made within 30 days after the appeal or motion "[u]nless otherwise permitted by the court." The quoted language apparently has been relied upon by the Court of Appeals to permit it to pass on a reargument motion made nearly two years after the court denied leave to appeal. See Barnes v. Jones, 665 F.2d 427 (2d Cir.1981), rev'd, ___ U.S. ___, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). In addition, it is this language which sets Court of Appeals section 500.9(f)(3) apart from Appellate Division, Third Department section 800.14(f). The latter section, under which petitioner sought review of his ineffective appellate counsel claim, does not expressly allow for the making of reargument motions outside of the stated time period. The possible availability of the coram nobis and reargument to the Court of Appeals avenues of review leads us to decline to pass on petitioner's claim at this time, especially in view of the fact that petitioner sought review via a channel which, by its own terms, did not allow for review. An argument can be made that in a technical sense petitioner has exhausted his claim,[1]406 but the principle that state courts first have a fair opportunity to pass on federal habeas claims has not, with any certainty, been served. Put differently, we think that the cause and prejudice test should not be applied where there is substantial doubt as to whether, were he to follow alternate and available channels, a petitioner's claim would in fact be procedurally barred in the state courts. Cf. Brown v. Wilmot, 572 F.2d 404 (2d Cir.1978) (per curiam) (exhaustion would not be found where state courts were never presented with claim and possible procedure for review existed). Looking at the case from a different theoretical vantage point, even were we to conclude that the cause and prejudice test is available at this juncture, the fact that alternative channels of review might be available would seem to also mean that there could be no finding of cause and prejudice. A petitioner cannot justify his failure to have his claim heard in state court if in fact he can have it heard, thus defeating a showing of cause, nor demonstrate that he has sustained any definite harm, thus defeating a showing of prejudice. We express no view as to whether petitioner will be able to demonstrate cause and prejudice if the state courts ultimately refuse to hear his ineffective appellate counsel claim.[2] In this regard, however, it is our strong hope that the state courts will in passing on petitioner's claim, should petitioner choose to return there, indicate whether they have reached the merits of petitioner's claim, and, if they have not, indicate the precise reasons why. This will ensure that any subsequent federal review is premised on an accurate understanding, and not mere guesswork, as to what has preceded at the state level. The petition is dismissed without prejudice. SO ORDERED. NOTES [1] Ordinarily, if a petitioner has run into a non-appealable procedural bar in the state courts, his claim is considered exhausted. See Gulliver v. Dalsheim, 687 F.2d 655, 658 n. 4 (2d Cir. 1982). Indeed, in Gulliver the Second Circuit appeared to view this as the rule even in cases, like ours, in which the petitioner had run into a procedural bar because he had chosen the wrong procedural vehicle for raising his claim and other avenues arguably existed. Other decisions, however, seem to suggest that a claim is not exhausted if the wrong procedural avenue has been chosen and other avenues remain open, see, e.g., Engle v. Isaac, 456 U.S. 107, 125-26 n. 28, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982) (claim exhausted where petitioner failed to present it on direct state appeal and collateral relief unavailable); Daye v. Attorney General, 696 F.2d 186, 190 n. 3 (2d Cir.1982) ("Exhaustion ... requires presentation of the claim to the highest state court from which a decision can be had"; procedural bar exists, and exhaustion will be found, where "the state procedure for raising the challenge is no longer available" (emphasis added)), Brathwaite v. Manson, 527 F.2d 363, 366 (2d Cir.1975), rev'd on other grounds, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) (it is doubtful a claim has been exhausted if it was not fully heard on the merits and could be so heard in a collateral proceeding), and this construction would seem to comport best, in our view, with the language of 42 U.S.C. § 2254(b) and (c). [2] We are of the view, however, that a clear state court record from which it may be deduced what procedural avenues were open to petitioner, and why, if this is the final result, he is deemed to have waived his remedies, will be relevant not only to a determination of cause and prejudice, but also to a finding of whether adequate and independent state grounds barring federal review exist. See Wainwright v. Sykes, 433 U.S. 72, 86-87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).	{ "pile_set_name": "FreeLaw" }

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