text
stringlengths 1
1.21M
| meta
dict |
|---|---|
46 So.3d 1 (2010)
Jimmy RODEN
v.
Dorothy RODEN.
2080984.
Court of Civil Appeals of Alabama.
March 12, 2010.
Stephen P. Bussman, Fort Payne, for appellant.
Submitted on appellant's brief only.
THOMPSON, Presiding Judge.
Jimmy Roden ("the husband") appeals from the judgment of the DeKalb Circuit Court divorcing him from Dorothy Roden ("the wife"). For the reasons stated herein, we reverse the trial court's judgment and remand the cause for the entry of a new judgment.
The parties were married on October 31, 1970. Two children were born of the marriage. At the time of the trial, both children were adults. During the marriage, the parties lived in a house ("the marital residence") that was located on two acres.
On February 15, 2008, the wife filed an action seeking a divorce. Following a trial, the trial court entered a judgment divorcing the parties and dividing the marital property. As part of the distribution of the marital property, the trial court awarded the wife a life estate in the marital residence, and it awarded the parties' children the remainder interest. The husband was divested of his interest in the marital residence.
The husband filed a motion to alter, amend, or vacate the judgment or, in the alternative, for a new trial. At the hearing on that motion, he argued, among other things, that the trial court should not have awarded the remainder interest in the marital residence to the children. The trial court denied the husband's motion, and the husband filed a timely appeal to this court.
On appeal, the husband contends that the trial court erred in its division of the marital property by awarding the children an interest in the martial residence. He argues that the children were not parties to the action and that they had no property interest in the marital residence.
In support of his contention, the husband cites Ex parte Kirkley, 418 So.2d 118 (Ala.1982). In Kirkley, the trial court, in a judgment divorcing the parties and dividing their property, ordered the parties to sell their marital residence and to distribute to the husband's first wife $95,000 of *2 the proceeds of the sale. Our supreme court reversed the trial court's judgment, writing:
"The [first] wife has no claim to the property. The title to the marital home of [the husband] and his first wife was transferred to [the husband] by [their] divorce decree. Since the first wife had no right or title to the first house, it is obvious that she could not have any right or title to proceeds from the house which was later built by [the husband and the second wife].
"If [the husband] owed the [first] wife money under the terms of [their] divorce decree, she had the remedy of filing a contempt suit against him. The matter before the Court, however, is to adjudicate a property settlement between [the husband and the second wife], not to determine his compliance with the divorce decree dissolving his former marriage.
"As stated previously, we do not rule on whether or not the trial judge abused his discretion in regard to the division of property between [the husband] and his second wife. The trial judge must, however, consider the total proceeds from the sale of [the husband and the second wife]'s marital residence in determining the property settlement."
418 So.2d at 120.
In Johns v. Johns, 49 Ala.App. 317, 271 So.2d 514 (Civ.1973), the trial court entered a judgment divorcing the parties and dividing their marital property. That part of the property division pertaining to the marital residence was virtually identical to the property division in the present case the trial court awarded the wife a life estate in the marital residence and awarded the parties' children the remainder interest in the marital residence. This court reversed the trial court's judgment on the basis that the evidence did not support the reason for which the divorce had been sought. However, in dicta, this court addressed the trial court's property division as it pertained to the marital residence as follows:
"Any discussion by this Court of the question of abuse of discretion of the trial court in divesting title to the home from [the husband] would be of no benefit under the circumstances. However, in an effort to avoid possible appeal in event of a similar decree upon a new trial, we make some observations considered pertinent.
"It would appear that consideration should be given by the trial court to whether or not divesting title from [the husband] into the two sons with only a life estate in the [wife], would amount in fact, to awarding property of the [husband] to the sons. The sons are almost of legal age and not entitled to support from the [husband] after reaching that age. They would have no right to the property of the [husband] except for use as a home during minority or to proceeds from a sale for purposes of support. We are unaware of any power of a court in a divorce decree to take property from a husband and father and vest the title in his children when the purpose of such award is other than support, or unless such provisions are incorporated in the decree as a result of an agreement made between the husband and wife."
49 Ala.App. at 320, 271 So.2d at 516.
In the present case, it is undisputed that the two children of the marriage are adults to whom neither party owes a legal duty of support. Furthermore, neither of the children were parties to the divorce action, and the record does not disclose that either child has a property interest in, or has made a claim to, the marital residence. Based on the reasoning expressed in Ex *3 parte Kirkley, as well as on the reasoning expressed, albeit in dicta, in Johns, we conclude that the trial court erred when it conferred on the parties' children the remainder interest in the marital residence. As a result, we reverse the trial court's judgment and remand the cause to the trial court for the entry of a new judgment consistent with this opinion.[1]
The husband also argues on appeal that the trial court's division of the parties' personal property was inequitable, that the trial court erred in ordering him to pay $6,000 toward the wife's expenses and attorney's fee, and that the trial court erred in finding that there was sufficient evidence regarding the value of the marital residence. Because we are remanding the cause to the trial court for the entry of a new judgment that, in practical effect, may impact the validity of the husband's additional arguments, we do not address those arguments.
REVERSED AND REMANDED.
PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur.
NOTES
[1] In so holding, we do not mean to imply that, should the wife ultimately receive fee-simple title to the marital residence, she would not be allowed to divest herself of that title by conveying to herself a life estate in the marital residence and conveying to the children the remainder interest therein.
| {
"pile_set_name": "FreeLaw"
} |
588 F.2d 1322
Pas P. TORRES, Jr., Plaintiff-Appellant,v.FIRST STATE BANK OF SIERRA COUNTY, a New Mexico BankingCorporation, Defendant-Appellee.
No. 77-2055.
United States Court of Appeals,Tenth Circuit.
Submitted July 21, 1978.Decided Dec. 18, 1978.
Frederick A. Smith, Truth or Consequences, N. M., for plaintiff-appellant.
George J. Hopkins of Modrall, Sperling, Roehl, Harris & Sisk, Albuquerque, N. M., for defendant-appellee.
Before SETH, Chief Judge, and BREITENSTEIN and LOGAN, Circuit Judges.
LOGAN, Circuit Judge.
1
This case was brought pursuant to 42 U.S.C. § 1983 to recover for alleged deprivation of property rights and conversion. The trial court granted a motion by the defendant First State Bank of Sierra County (First State) to dismiss for failure to state a claim. The plaintiff Pas P. Torres, Jr. (Torres) appealed, and this court in Torres v. First State Bank, 550 F.2d 1255 (10th Cir. 1977), reversed and remanded for further proceedings. On remand, the trial court held a hearing on the issue of whether state action was involved, pursuant to First State's motion for summary judgment. Finding insufficient state action for subject matter jurisdiction under § 1983, the trial court granted summary judgment in favor of First State. Torres has appealed.
2
Torres operated a Chrysler automobile dealership, Sombrero Motors, in Truth or Consequences, New Mexico. In that capacity he obtained financing through First State, giving back various promissory notes. In January 1975 the bank made demands for payment. When it did not receive such payment, deeming itself insecure the bank filed a complaint in a New Mexico state court, seeking to declare seven promissory notes to be in default and immediately payable, requesting exemplary damages, and declaring its right to immediate possession of nine vehicles and one boat in which it had a security interest. The promissory notes permitted First State to repossess the cars upon default of Sombrero Motors.
3
The problem involved in this case arises because First State also requested a temporary restraining order to prevent Torres from disposing of any property he then owned. First State posted a $2,500 bond and obtained an Ex parte temporary restraining order expiring in eleven days, at which time a hearing was to be held to determine whether a temporary injunction should issue pending outcome of the primary suit.
4
Travis Waller, an officer of the bank, accompanied a county deputy sheriff to Sombrero Motors' office, and the deputy served the summons, restraining order and other papers on Torres. The deputy testified that he told Torres he had "a civil complaint for him, and part of it was a restraining order, and to read the restraining order." He said nothing about the keys or possession of the cars, and made no representations about the content of the court's order. While the bank officer and Torres conferred the deputy sheriff visited with a mechanic on the premises.
5
The restraining order, issued under N.M.Stat.Ann. § 21-1-1(65)(b) did not order surrender of any property, but restrained Torres, his agents, servants and employees, from "disposing of, conveying, or encumbering any property, real or personal, presently owned by him." Torres contends that the bank officer, Waller, demanded the keys to the cars and indicated that the papers served gave him the right to the cars on the lot. Waller asserts that Torres voluntarily turned over to him possession of the keys and automobiles, and that the contents of the temporary restraining order were not misrepresented. Torres assisted in the removal of one car that stalled enroute to the relocation lot, and it is agreed that First State only repossessed those vehicles in which it had a perfected security interest.
6
Torres' landlord locked the doors on the business the following day, asserting a landlord's lien to cover unpaid rent. Torres assumed he could no longer continue to operate the dealership nor dispose of any of his assets, and it is undisputed that he did cease operating Sombrero Motors. At the state court hearing on January 27 the bank's application for a writ of replevin was withdrawn by the bank, since it already had obtained possession of the vehicles, and no attempt was made to extend the order with respect to other assets of Torres.
7
Two elements are necessary for recovery under 42 U.S.C. § 1983. As succinctly stated in Adickes v. S. H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970):
8
First, the plaintiff must prove that the defendant has deprived him of a right secured by the "Constitution and laws" of the United States. Second, the plaintiff must show that the defendant deprived him of this constitutional right "under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory." This second element requires that the plaintiff show the defendant acted "under color of law."
9
Since the trial court declared that there was insufficient state action for subject matter jurisdiction we consider that issue.
10
The action taken here to obtain the temporary restraining order was under N.M.Stat.Ann. § 21-1-1(65)(b), which is identical to Fed.R.Civ.P. 65(b) with one minor exception.1
11
The lower court's order states that the constitutionality of that Section is not challenged. But Torres' attack on the order is based upon the line of Supreme Court decisions commencing with Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969)2 which did involve the constitutionality of state statutes allowing seizure of debtor's property without notice and hearing. He does not distinguish between the order and the statute under which it was made. Therefore we consider his complaint as directed toward both.
12
Neither the New Mexico Statute nor Fed.R.Civ.P. 65(b) has been before the courts on the question of constitutionality since Sniadach was decided.3 That section is not confined to creditors' suits but is a procedural rule which applies to a wide variety of litigation situations. Under its terms any Ex parte restraining order must be made by a judge. The order must define the injury, state why it is irreparable and why the order was granted without notice. It must expire by its own terms in not to exceed 10 days. On two days' or such shorter notice as the court prescribes the adverse party may appear and move its dissolution or modification, which the court shall hear "as expeditiously as the ends of justice require."
13
Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974), held that in some circumstances at least a statute may grant an Ex parte seizure order in a debtor-creditor situation, when an immediate post-seizure hearing is available. We think the statute here involved has the safeguards necessary to meet the Mitchell tests and satisfies the due process requirements of the Constitution.
14
Torres attacks the Order of the state court, arguing that it violates his rights of procedural due process because it prohibited him from dealing with any of his assets, not just those in which the bank had a security interest, and was issued without giving him notice and an opportunity to be heard. Indeed there are serious problems with the order. In the one case in which the Supreme Court has permitted a post-seizure hearing, reliance was placed upon the security interest which the creditor retained in the assets involved. Here there was no such security interest except in the automobiles and one boat. Of course, here the order did not authorize the creditor to take possession, it simply prohibited the debtor from disposing of the asset. In Sniadach v. Family Finance Corp., supra, however, the garnishment which was struck down did not transfer assets to the creditor, but rather enjoined the employer from paying them to the debtor wage earner.
15
Assuming, without deciding, that the court's order violated Torres' rights to procedural due process, there still must be action "under color of law" to make his claim cognizable under 42 U.S.C. § 1983. This litigation was between two private parties, in the state court, and the § 1983 claim is asserted only against the bank. Is there state action simply because in litigation in a state court that court exercised its authority to issue an order which we assume to be wrong and which did not give the debtor his rights to procedural due process? In answering the question it is important to consider what this case is not. It is not a situation where an unconstitutional statute, regulation or custom is being enforced by the state courts. See Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Nor is this a case where a private contract furthering discrimination or other unconstitutional conduct is being enforced by the courts. See Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948). This does not involve a state officer using his authority, or the appearance thereof, outside the scope of his statutory duties. Compare Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) With Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).
16
This is a case where private parties only were involved in state court litigation and it is alleged that the order granted by the court is not only erroneous but infringes one party's rights to procedural due process. While the Supreme Court has not yet ruled on this situation, See Stump v. Sparkman, 435 U.S. 349, 364 n. 13, 98 S.Ct. 1099, 1109, 55 L.Ed.2d 331 (1978), many circuit courts have done so. Kermit Constr. Corp. v. Banco Credito y Ahorro Ponceno, 547 F.2d 1 (1st Cir. 1976) is the only one we found which supports a finding of jurisdiction. And that opinion contains no discussion of the issue. Many other cases have held to the contrary. E. g., Hill v. McClellan, 490 F.2d 859, 860 (5th Cir. 1974) ("There is no cause of action under the Civil Rights Act if a case is private litigation in which the state does no more than furnish the forum and has no interest in the outcome." ) See also, Girard v. 94th Street & Fifth Avenue Corp., 530 F.2d 66 (2d Cir.), Cert. denied, 425 U.S. 974, 96 S.Ct. 2173, 48 L.Ed.2d 798 (1976); Henry v. First Nat'l Bank, 444 F.2d 1300 (5th Cir. 1971), Cert. denied, 405 U.S. 1019, 92 S.Ct. 1284, 31 L.Ed.2d 483 (1972); Guedry v. Ford, 431 F.2d 660 (5th Cir. 1970); Brown v. Dunne, 409 F.2d 341 (7th Cir. 1969); Haldane v. Chagnon, 345 F.2d 601 (9th Cir. 1965); Skolnick v. Spolar, 317 F.2d 857 (7th Cir.), Cert. denied, 375 U.S. 904, 84 S.Ct. 195, 11 L.Ed.2d 145 (1963); Skolnick v. Martin, 317 F.2d 855 (7th Cir.), Cert. denied, 375 U.S. 908, 84 S.Ct. 199, 11 L.Ed.2d 146 (1963); Hanna v. Home Ins. Co., 281 F.2d 298 (5th Cir. 1960), Cert. denied, 365 U.S. 838, 81 S.Ct. 751, 5 L.Ed.2d 747 (1961); Johnson v. Stone, 268 F.2d 803 (7th Cir. 1959); Smith v. Village of Lansing, 241 F.2d 856 (7th Cir. 1957); Moffett v. Commerce Trust Co., 187 F.2d 242 (8th Cir.), Cert. denied, 342 U.S. 818, 72 S.Ct. 32, 96 L.Ed. 618 (1951).
17
In fact the leading case is our own Bottone v. Lindsley, 170 F.2d 705 (10th Cir. 1948), Cert. denied, 336 U.S. 944, 69 S.Ct. 810, 93 L.Ed. 1101 (1949). There Judge Murrah said:
18
It is conceivable that persons, either individually or acting in concert might so use the state judicial process as to deprive a person of his property without due process of law, or of equal protection of the laws, yet we are certain that to make out a cause of action under the Civil Rights Statutes, the state court proceedings must have been a complete nullity, with a purpose to deprive a person of his property without due process of law. To hold otherwise would open the door wide to every aggrieved litigant in a state court proceedings, and set the federal courts up as an arbiter of the correctness of every state decision. "The Fourteenth Amendment did not alter the basic relations between the States and the national government." Screws v. United States, supra, 325 U.S. 91 at page 109, 65 S.Ct. 1031 at page 1039, 89 L.Ed. 1495, 162 A.L.R. 1330. Nor does it "assure uniformity of decisions or immunity from merely erroneous action * * * ." See Justice Frankfurter concurring in Snowden v. Hughes, 321 U.S. 1, 15, 64 S.Ct. 397, 404, 88 L.Ed. 497. . . .
19
Id. at 707.
20
We do not think that the "color of law" reference in § 1983 was intended to encompass a case such as this one, where the only infirmities are the excesses of the court order itself, subject to immediate modification by a court having jurisdiction over the parties, and subject to the normal processes of appeal.
21
If it was not state action simply to use the state court, was the involvement of the deputy to serve the temporary restraining order enough to bring it within § 1983? Police officers acting strictly within the scope of their statutory duties are immune from § 1983 claims. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). The deputy's testimony, which is not contradicted, is that he merely served the order, asked Torres to read it carefully, and then moved away. His mere physical presence on the premises under these circumstances, we do not consider to constitute state action. Had he colluded with the bank officer to misrepresent the contents of the order it would be a different matter.
22
Accepting Torres' version of the facts, that bank officer Waller misrepresented the contents of the state court order, we also do not regard as involving state action. The misrepresentation was by a private individual. Torres had in his hands a copy of the order, and while it had a number of attachments and hence might have made formidable reading, he was not entitled to take the representation of the bank employee as the authoritative word of the state court.
23
We therefore conclude that the district court was correct in its determination that there was not state action here within the meaning of 42 U.S.C. § 1983, and hence the court properly dismissed the suit.
24
The judgment is affirmed.
1
§ 21-1-1(65)(b) reads as follows; the italicized language does not appear in Fed.R.Civ.P. 65(b)
A temporary restraining order may be granted without written or oral notice to the adverse party or his attorney only if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition, and (2) the applicant's attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting his claim that notice should not be required. Every temporary restraining order granted without notice shall be endorsed with the date and hour of issuance; shall be filed forthwith in the clerk's office and entered of record; shall define the injury and state why it is irreparable and why the order was granted without notice; and shall expire by its terms within such time after entry, not to exceed ten (10) days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period, except that, if a party adverse to the party obtaining a restraining order shall disqualify the judge who would otherwise have heard the matter, then the order shall be deemed extended until ten days after the designation of another judge Or until such earlier time as may be fixed by the judge so designated. The reasons for the extension shall be entered of record. In case a temporary restraining order is granted without notice, the motion for a preliminary injunction shall be set down for hearing at the earliest possible time and takes precedence of all matters except older matters of the same character; and when the motion comes on for hearing the party who obtained the temporary restraining order shall proceed with the application for a preliminary injunction and, if he does not do so, the court shall dissolve the temporary restraining order. On two (2) days' notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification and in that event, the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.
2
The others are Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974); and North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975). See also, Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978)
3
United States v. Shaheen, 445 F.2d 6, 10 (7th Cir. 1971) involving Fed.R.Civ.P. 65(b) does cite Sniadach and appears to assume that rule is constitutional. See also, 11 Wright & Miller, Federal Practice and Procedure: Civil § 2951, at 505-506 (1973)
| {
"pile_set_name": "FreeLaw"
} |
CORRECTED 01/08/2010
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 15 2009
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
UNITED STATES OF AMERICA, No. 08-10237
Plaintiff - Appellee, D.C. No. 2:07-cr-135-GEB
v.
MEMORANDUM *
JOEL NATHAN WARD,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, District Judge, Presiding
Submitted October 6, 2009 **
San Francisco, California
Before: RYMER and TASHIMA, Circuit Judges, and ADELMAN, *** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Lynn S. Adelman, United States District Judge for the
Eastern District of Wisconsin, sitting by designation.
Joel Nathan Ward stole over $11 million of the $15 million entrusted to him
by investors. He pleaded guilty to five counts of wire fraud, two counts of mail
fraud, and two counts of money laundering under 18 U.S.C. § 1957. The district
court sentenced him to 108 months in prison and ordered restitution in the amount
of $11,300,501.53. Ward appeals his money laundering convictions based on the
intervening Supreme Court decision in United States v. Santos, 128 S. Ct. 2020
(2008), and his sentence. We affirm.
I
Where a criminal defendant seeks the benefit of a change in the law that
occurs while his appeal is pending, but he did not raise the issue in the district
court, review is for plain error. See United States v. Turmon, 122 F.3d 1167, 1169-
70 (9th Cir. 1997). In United States v. Van Alstyne, 584 F.3d 803 (9th Cir. 2009),
the Ninth Circuit interpreted the precedential impact of the Supreme Court’s
fractured opinion in Santos. The court concluded that after Santos, the word
“proceeds” in the federal money laundering statute, 18 U.S.C. § 1956, means
“profits,” rather than “receipts,” when interpreting “proceeds” as “receipts” would
present a merger problem. 584 F.3d at 814. A merger problem arises when
treating “proceeds” as “gross receipts” means a violation of a specified criminal
statute becomes a simultaneous violation of the money laundering statute, radically
increasing the sentence. See id. at 810. In Van Alstyne, the court reversed two
money laundering convictions that were each based on a payment that was a
“central component” of the underlying scheme to defraud, but upheld a money
laundering conviction that was based on a payment that was “distinct” from the
underlying mail fraud scheme and therefore, not a “crucial element” of the scheme
to defraud. Id. at 814-16.
Ward was convicted of two counts of money laundering pursuant to
18 U.S.C. § 1957. Assuming (without deciding) that Santos and Van Alstyne apply
to § 1957, Ward has not demonstrated plain error in his money laundering
convictions. Ward’s § 1957 convictions were premised on the purchase of two
cashier’s checks made payable to another of Ward’s businesses, a foreign currency
exchange trading school. Although persons who attended this school often became
investors in Ward’s fraudulent scheme, funding the school was not plainly a
“central component” or “crucial element” of Ward’s scheme to defraud. See Van
Alstyne, 584 F.3d at 814-16. The school can reasonably be viewed as existing and
operating independently of Ward’s scheme, therefore the purchase of the cashier’s
checks to fund the school can reasonably be considered “distinct” from the scheme
to defraud.
II
The undisputed Guidelines calculation recommended 108 to 135 months in
prison. Ward proposed no, or little, jail time so that he could freely begin currency
trading again, only this time in a controlled account, and try to make full
restitution. The district court rejected the proposal because it did not adequately
satisfy the sentencing goals articulated in 18 U.S.C. § 3553(a). We agree and
perceive no error. Ward’s proposal neglects almost all of the § 3553(a) sentencing
factors. The district court’s explanation for rejecting it was more than sufficient.
See United States v. Carty, 520 F.3d 984, 992-93 (9th Cir. 2008) (en banc).
We also conclude the within-Guidelines sentence was substantively
reasonable. Restitution is not the only sentencing goal of § 3553(a). Ward did not
attempt to show his case falls outside of the heartland of white-collar criminal
cases; nor did he offer any realistic sentencing alternative. There were over ninety
victims with losses in excess of $11 million. The district court thoughtfully
considered the nature, severity, and duration of Ward’s crimes, as well as Ward’s
personal history and characteristics, to reach a sentence at the low end of the
Guidelines range. This strikes us as perfectly reasonable, and well within the
district court’s discretion.
AFFIRMED.
| {
"pile_set_name": "FreeLaw"
} |
751 F.2d 385
Hunley (Arnold C.)v.Director, Office of Workers' Compensation Programs, U.S.Department of Labor
NO. 83-3831
United States Court of Appeals,sixth Circuit.
NOV 28, 1984
1
Appeal From: Ben.Rev.Bd.
2
AFFIRMED.
| {
"pile_set_name": "FreeLaw"
} |
ACCEPTED
12-15-00019-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
3/5/2015 11:11:45 PM
CATHY LUSK
CLERK
No. 12-15-00019-CR
LEE VINCENT § IN THE COURT OF APPEALS
FILED IN
Appellant § 12th COURT OF APPEALS
TYLER, TEXAS
§
vs. § 12TH JUDICIAL 3/5/2015
DISTRICT 11:11:45 PM
CATHY S. LUSK
§ Clerk
THE STATE OF TEXAS, §
Appellee § AT TYLER, TEXAS
APPELLANT’S FIRST MOTION FOR EXTENSION OF TIME TO FILE BRIEF
21-DAY REQUEST
TO THE HONORABLE COURT:
Now comes Austin Reeve Jackson, counsel for Appellant in the above entitled and
numbered cause, and makes this Motion, and for good cause shows the following:
I.
Appellant’s brief in this matter is due on 5 March 2015. No prior extensions have
been requested.
II.
Mr. Vincent’s mother notified counsel yesterday that he no longer desires to
pursue his appeal. Counsel is requesting an additional three weeks to either verify with
Mr. Vincent that that is his desire or to complete the brief in this matter. Should he in
fact wish to terminate this appeal, the resources of the Court and the State’s attorney
would be best served by permitting a brief extension to pursue that end.
II.
No prior extensions have been requested and is respectfully prayed that the in the
interest of justice, the Court grant this motion.
WHEREFORE, PREMISES CONSIDERED, undersigned counsel respectfully
prays that, in accordance with the applicable law, the Court grant this Motion and extend
the date by which to file a brief by twenty-one days.
Respectfully submitted,
/s/Austin Reeve Jackson
Texas Bar No. 24046139
112 East Line, Suite 310
Tyler, TX 75702
Telephone: (903) 595-6070
Facsimile: (866) 387-0152
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the above and foregoing document
was served on counsel for the State by facsimile concurrently with its filing.
/s/Austin Reeve Jackson
| {
"pile_set_name": "FreeLaw"
} |
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/21/2018 12:10 AM CDT
- 446 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
IN RE INTEREST OF PAXTON H.
Cite as 300 Neb. 446
In re I nterest of Paxton H., a child
under 18 years of age.
Nebraska Department of Health and Human
Services, appellant, v. Patrick H.
and Penny H., appellees.
___ N.W.2d ___
Filed July 6, 2018. No. S-17-1182.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juve-
nile cases de novo on the record and reaches a conclusion independently
of the juvenile court’s findings.
2. Juvenile Courts: Jurisdiction: Appeal and Error. In a juvenile case,
as in any other appeal, before reaching the legal issues presented for
review, it is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it.
3. Juvenile Courts: Costs: Final Orders. An order in a juvenile case
which directs the Department of Health and Human Services to pay for
the costs of treatment is a final order for purposes of Neb. Rev. Stat.
§ 25-1902 (Reissue 2016).
4. Juvenile Courts. Juvenile courts have the authority to assent to and
dissent from decisions of the Department of Health and Human Services
with respect to what care, placement, services, and expenditures are in
the best interests of juveniles under its care and custody.
5. Appeal and Error. Appellate courts will not consider issues on appeal
that were not presented to or passed upon by the trial court.
Appeal from the Separate Juvenile Court of Lancaster
County: Toni G. Thorson, Judge. Affirmed.
Douglas J. Peterson, Attorney General, and C.J. Roberts,
Special Assistant Attorney General, for appellant.
Lisa Gonzalez, of Johnson & Pekny, L.L.C., for appellees.
- 447 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
IN RE INTEREST OF PAXTON H.
Cite as 300 Neb. 446
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ., and Johnson, District Judge.
Papik, J.
The separate juvenile court of Lancaster County ordered the
Nebraska Department of Health and Human Services (DHHS)
to arrange and pay for Paxton H., a juvenile in its care and cus-
tody, to receive mental health services at a facility in Kansas.
DHHS challenges that order. While DHHS acknowledges that
Paxton requires certain services, it contends that Paxton can
receive those services in Nebraska and that local services
would better serve his needs. Following our de novo review of
the record, we determine that the juvenile court’s order was in
Paxton’s best interests, and we therefore affirm.
BACKGROUND
In the sections below, we set forth how Paxton came into the
custody of DHHS and the circumstances that led to the order
at issue in this appeal.
Paxton’s Placement in
DHHS Custody.
On December 29, 2014, the State of Nebraska filed a peti-
tion alleging that Paxton, then 11 years old, was without
proper support through no fault of his parents and there-
fore was a child within the meaning of Neb. Rev. Stat.
§ 43-247(3)(a) (Cum. Supp. 2014). Following a hearing, the
juvenile court adjudicated Paxton as a child within the mean-
ing of § 43-247(3)(a).
In its adjudication order, the juvenile court noted Paxton’s
diagnoses of posttraumatic stress disorder, attention deficit
hyperactivity disorder, traumatic brain injury, disruptive mood
dysregulation disorder, and reactive attachment disorder. The
juvenile court found that Paxton had been placed outside the
family home more than once due to assaultive, defiant, and
destructive behaviors that his parents could not control. It
- 448 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
IN RE INTEREST OF PAXTON H.
Cite as 300 Neb. 446
further found that Paxton had recently returned to the family
home from a residential treatment facility and, upon his return,
resumed his assaultive behavior. The juvenile court determined
that Paxton’s parents could not safely maintain him in their
home or provide the treatment and services he needed. The
juvenile court ordered DHHS to maintain Paxton in its care
and custody, pending placement at a psychiatric residential
treatment facility.
Paxton’s Placements at
KidsTLC in Kansas.
As a result of disruptions at past placements, no residen-
tial treatment facility in Nebraska would accept Paxton, but
KidsTLC, a residential treatment facility in Olathe, Kansas,
would. Paxton was admitted there in January 2015. Although
the record does not disclose Paxton’s discharge date, it appears
that he remained at KidsTLC for about a year.
Just a few months after returning to his parents’ home from
KidsTLC, Paxton was again removed due to aggressive behav-
iors. After placements in multiple foster homes and in respite
care, Paxton was returned to KidsTLC in July 2016.
July 2017 Review Hearing.
In July 2017, the juvenile court conducted a review hearing.
Paxton was still at KidsTLC at this point, but Laura Milburn,
Paxton’s DHHS caseworker, testified at the hearing that he was
having home visits with his parents almost every other week
and that these visits were going well. She stated that KidsTLC
recommended that Paxton transition to his parents’ home in
August 2017.
Milburn acknowledged that DHHS accepted the recom
mendations of a recent psychological evaluation of Paxton.
This evaluation recommended that Paxton receive various
services and treatment including regular meetings with a
physician and psychiatrist to manage his psychotropic medi-
cations as well as individual psychotherapy. Milburn also
- 449 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
IN RE INTEREST OF PAXTON H.
Cite as 300 Neb. 446
acknowledged that, if Paxton were discharged to his parents’
home, he would need services at school, individual therapy,
and weekly bloodwork to monitor his medications, as well as
other services. While Milburn had initiated the processes to
obtain some of these services, none of them were in place for
Paxton at the time of the July 2017 hearing.
In its order following the July 2017 hearing, the juvenile
court approved DHHS’ case plan, as modified. In particular,
the juvenile court ordered Paxton’s transition home upon
discharge from KidsTLC. The juvenile court ordered DHHS
“to ensure that necessary services are available to Paxton
. . . immediately upon his discharge to the family home.”
The juvenile court went on to provide a nonexclusive list of
necessary services consistent with the recent psychological
evaluation.
Dispute Regarding
Paxton’s Care.
Paxton was discharged from KidsTLC to his parents’ home
on September 30, 2017. Shortly thereafter, a dispute arose
between Paxton’s parents and DHHS regarding his care.
Paxton’s parents asked DHHS to arrange for Paxton to peri-
odically travel to and participate in a transition program at
KidsTLC. Paxton’s therapist during his time at KidsTLC
believed that Paxton’s participation would smooth his transi-
tion home and assist him in remaining there. DHHS refused to
arrange for participation in the KidsTLC transition program.
DHHS personnel concluded that Paxton and his family should
utilize services in Nebraska, rather than services multiple hours
away in Kansas.
Paxton’s parents then filed a motion for an order direct-
ing DHHS to arrange and pay for him to participate in
the KidsTLC transition program. The juvenile court held a
hearing on that motion on October 10, 2017. At the hear-
ing, Milburn acknowledged that DHHS had declined to pro-
vide the KidsTLC services requested by Paxton’s parents
- 450 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
IN RE INTEREST OF PAXTON H.
Cite as 300 Neb. 446
and recommended by his therapist. She testified that DHHS
regarded respite providers in Nebraska to be more suitable for
Paxton’s transition. Milburn conceded, however, that DHHS
had not provided services immediately upon Paxton’s dis-
charge, as ordered by the juvenile court. She also admitted
that Paxton’s Medicaid had not yet been activated and that
as a result, Paxton could not see the therapist his parents had
identified to work with him, obtain a refill of his medica-
tion, or see a psychiatrist concerning his medication. Milburn
acknowledged that Paxton had not received any type of ther-
apy in the 11 days since his discharge from KidsTLC.
At the close of the hearing, the juvenile court observed
that DHHS had not presented any viable alternative to the
KidsTLC transition program. The juvenile court noted that it
did not have information as to how long Paxton would need
services at KidsTLC, but that it was “in everyone’s best inter-
est” that Paxton eventually receive services in Nebraska.
In an order entered on October 11, 2017, the juvenile court
found that it was in Paxton’s best interests to participate in the
KidsTLC transition program and ordered that DHHS immedi-
ately arrange and pay for him to do so. It observed that DHHS
had not provided an alternative plan and that such a plan was
“critical” given previous failed transitions home as a result
of a gap in services. While directing Paxton’s participation in
the KidsTLC transition program, the juvenile court indicated
that it would continue to monitor services provided to Paxton
and review whether participation in the KidsTLC transition
program was necessary. The juvenile court scheduled a review
hearing for January 2018 and added that the review hearing
could be advanced upon request of the parties. DHHS then
filed this appeal.
ASSIGNMENT OF ERROR
DHHS assigns, rephrased, that the juvenile court erred in
ordering DHHS to arrange and pay for Paxton to participate in
the KidsTLC transition program.
- 451 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
IN RE INTEREST OF PAXTON H.
Cite as 300 Neb. 446
STANDARD OF REVIEW
[1] An appellate court reviews juvenile cases de novo on
the record and reaches a conclusion independently of the juve-
nile court’s findings. In re Interest of Josue G., 299 Neb. 784,
910 N.W.2d 159 (2018).
ANALYSIS
Jurisdiction.
[2,3] Before reaching the merits of DHHS’ appeal, we pause
to confirm our jurisdiction to do so. In a juvenile case, as in
any other appeal, before reaching the legal issues presented
for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it. In re
Interest of Becka P. et al., 296 Neb. 365, 894 N.W.2d 247
(2017). Neb. Rev. Stat. § 43-2,106.01(1) (Reissue 2016) gives
appellate courts jurisdiction to review “[a]ny final order or
judgment entered by a juvenile court.” We have held that an
order directing DHHS to pay for the costs of treatment is a
final order for purposes of Neb. Rev. Stat. § 25-1902 (Reissue
2016). See, In re Interest of J.M.N., 237 Neb. 116, 464 N.W.2d
811 (1991); In re Interest of B.M.H., 233 Neb. 524, 446
N.W.2d 222 (1989), citing In re Interest of G.B., M.B., and
T.B., 227 Neb. 512, 418 N.W.2d 258 (1988). We thus have
jurisdiction here.
Merits of DHHS’ Appeal.
Turning now to the merits, DHHS argues that the juvenile
court erred in ordering DHHS to arrange and pay for Paxton
to participate in a transition program at KidsTLC following
his discharge. DHHS contends that it is not in Paxton’s best
interests to participate in a transition program several hours
from his parents’ home. Instead, DHHS asserts that it would be
better for Paxton to receive “respite support” from providers in
Nebraska. Brief for appellant at 10.
DHHS does not have the authority to unilaterally determine
where Paxton should be placed and how he should be treated.
- 452 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
IN RE INTEREST OF PAXTON H.
Cite as 300 Neb. 446
Neb. Rev. Stat. § 43-285 (Reissue 2016) grants broad authority
to juvenile courts to make orders which are in the best inter-
ests of juveniles under their jurisdiction. Section 43-285(1)
provides, in relevant part:
When the court awards a juvenile to the care of [DHHS],
. . . the juvenile shall, unless otherwise ordered, become
a ward and be subject to the legal custody and care of
[DHHS]. . . . [DHHS] shall have authority, by and with
the assent of the court, to determine the care, place-
ment, medical services, psychiatric services, training,
and expenditures on behalf of each juvenile committed
to it.
(Emphasis supplied.)
[4] Through § 43-285(1), the Legislature removed from
DHHS complete control of minors whose care was given to
DHHS under the juvenile code. See In re Interest of Veronica
H., 272 Neb. 370, 721 N.W.2d 651 (2006). Pursuant to
§ 43-285, the juvenile court has the authority to assent to and
dissent from decisions of DHHS with respect to what care,
placement, services, and expenditures are in the best inter-
ests of juveniles under its care and custody. In re Interest of
Veronica H., supra. We agree with the juvenile court’s exercise
of that authority here.
Paxton has previously struggled with transitions from resi-
dential treatment facilities to his parents’ home. In light of
this history and the recommendations of a psychologist, the
juvenile court, after its July 2017 review hearing, ordered
DHHS to provide Paxton with various support and mental
health services immediately upon his discharge from KidsTLC.
DHHS personnel were aware of the specific services and the
urgency required. Yet as of the date of the hearing at issue,
11 days after Paxton’s discharge from KidsTLC, DHHS had
not arranged for these services to be provided to Paxton. By
contrast, the KidsTLC transition program was identified as
ready and available to assist Paxton in transitioning home.
Given Paxton’s undisputed need for immediate services and
- 453 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
IN RE INTEREST OF PAXTON H.
Cite as 300 Neb. 446
the fact that KidsTLC was the only identifiable provider of
such services at the time of the hearing, we agree that it was
in Paxton’s best interests to participate immediately in the
KidsTLC transition program.
DHHS’ argument that Paxton would be better served by
respite care provided locally does not alter our conclusion.
This argument hinges on the faulty premise that local respite
care was an available alternative as of the hearing on this mat-
ter. But the juvenile court was not presented with a choice
between the transition program at KidsTLC and ideal or even
functioning local respite care. Its options were to direct that
Paxton immediately receive transition services, which all agree
he urgently required, at KidsTLC, or to allow him to continue
to go without services until DHHS could arrange for them to
be provided locally. Faced with those alternatives and aware
of Paxton’s history, we do not hesitate to find that the juvenile
court acted in Paxton’s best interests.
[5] Neither are we moved by DHHS’ contention that, in the
long term, Paxton would be better served by local care than
care provided at KidsTLC. On this point, there actually appears
to be some agreement among everyone involved that, at some
time, it would be best for Paxton to leave the KidsTLC pro-
gram and receive any necessary care locally. But the question
of Paxton’s long-term participation in the KidsTLC program
was not presented to or decided by the juvenile court in the
order under appeal. Appellate courts will not consider issues on
appeal that were not presented to or passed upon by the trial
court. In re Interest of Ty M. & Devon M., 265 Neb. 150, 655
N.W.2d 672 (2003).
The juvenile court’s statement that it was in “everyone’s
best interest” that Paxton eventually receive local services, as
well as its stated willingness to continue to monitor whether
services at KidsTLC are necessary, strongly suggests that the
juvenile court is open to considering, presumably with the aid
of new evidence, whether it remains in Paxton’s best interests
to receive services at KidsTLC. This court, however, is not the
- 454 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
IN RE INTEREST OF PAXTON H.
Cite as 300 Neb. 446
place for that decision to be made in the first instance. We are
limited to reviewing the decision of the juvenile court based on
the record available to us. Having performed that review, we
find no basis to disagree with the juvenile court.
CONCLUSION
Upon our de novo review of the record, we conclude that
the juvenile court did not err in ordering DHHS to arrange and
pay for Paxton to receive services at KidsTLC. Accordingly,
we affirm.
Affirmed.
| {
"pile_set_name": "FreeLaw"
} |
276 P.3d 837 (2012)
MERTENS
v.
CITY OF CLEARWATER.
No. 106036.
Court of Appeals of Kansas.
May 11, 2012.
Decision Without Published Opinion
Affirmed.
| {
"pile_set_name": "FreeLaw"
} |
894 A.2d 702 (2006)
384 N.J. Super. 251
The COMMUNITY HOSPITAL GROUP, INC., t/a JFK Medical Center, Plaintiff-Appellant/Cross-Respondent,
v.
BLUME GOLDFADEN BERKOWITZ DONNELLY FRIED & FORTE, P.C., and Carol L. Forte, Esq., Defendants-Respondents/Cross-Appellants.
Superior Court of New Jersey, Appellate Division.
Argued March 28, 2006.
Decided March 30, 2006.
*703 Jeffrey M. Pollock, Lawrenceville, argued the cause for appellant/cross-respondent (Fox Rothschild, attorneys; Mr. Pollock, on the brief).
Cynthia M. Craig, Chatham, argued the cause for respondents/cross-appellants (Blume Goldfaden Berkowitz Donnelly Fried & Forte, attorneys; Ms. Craig, of counsel and on the brief).
Ross A. Lewin argued the cause for amicus curiae New Jersey Hospital Association (Windels Marx Lane & Mittendorf, attorneys; Mr. Lewin, of counsel and on the brief; Ellen M. Christoffersen, Princeton, on the brief).
Abbott S. Brown argued the cause for amicus curiae The Association of Trial Lawyers of America-New Jersey (Bendit Weinstock, attorneys; Mr. Brown, on the brief).
Edwin R. Matthews, Summit, argued the cause for amicus curiae Trial Attorneys of New Jersey (Bourne Noll & Kenyon, attorneys; Mr. Matthews, on the brief).
Before Judges COBURN, COLLESTER and LISA.
The opinion of the court was delivered by
COBURN, P.J.A.D.
Plaintiff, a hospital, sued defendants, a law firm and one of its principals, to enjoin the use or disclosure of confidential health information of its patients and to compel return of the information. The trial court dismissed plaintiff's action on the ground that it did not have standing to pursue its claim for injunctive relief on behalf of its patients. On November 2, 2005, we filed an opinion affirming the judgment and resolving all of the issues presented to us by the parties. Cmty. Hosp. Group, Inc. t/a JFK Med. Ctr. v. Blume Goldfaden Berkowitz Donnelly Fried & Forte, P.C., 381 N.J.Super. 119, 885 A.2d 18 (App.Div.2005). Plaintiff filed a petition for certification with the Supreme Court seeking reversal of our judgment, based in part on a theory that it had not presented to us; namely that it has standing in its own right to protect its business records. On February 10, 2006, the Court filed an order temporarily remanding the case to us for resolution of that issue. In pertinent part, the order reads as follows:
It is ORDERED that the petition for certification is summarily remanded to the Appellate Division, solely in respect of the question whether plaintiff has standing to bring this action on the ground it is protecting its own business records when a third party has obtained them in a manner other than through an authorization and release; and it is further
ORDERED that the Appellate Division shall expedite the briefing, argument, and disposition of the appeal on remand; and it is further
ORDERED that on the filing of its opinion disposition, the Appellate Division shall forward a copy to the Clerk of the Court, who shall thereafter instruct counsel on any supplemental briefing.
*704 Jurisdiction is otherwise retained.
As we noted in our previous opinion, plaintiff filed this action after it learned that defendants were in possession of a hospital record concerning two of its patients that had not been released based on the patients' authorization, and after defendants refused to advise plaintiff how they had obtained the record. At that point, plaintiff was entitled to infer that the record might have been obtained by improper means, possibly enabled by its own failure to adequately protect its records.
The Hospital Patients Bill of Rights Act, N.J.S.A. 26:2H-12.7 to 12.11, entitles patients to the "privacy and confidentiality of all records pertaining to [their] treatment," with certain exceptions that are not presently relevant. N.J.S.A. 26:2H-12.8g. That statute also provides for the imposition of administrative penalties if a hospital violates a patient's rights. Those penalties include fines and suspension or revocation of all licenses. N.J.S.A. 26:2H-13. As we noted in Kinsella v. NYT Television, 382 N.J.Super. 102, 107, 887 A.2d 1144 (App.Div.2005), "our courts held even before enactment of this legislation that a patient has a privacy interest in withholding disclosure of information concerning his or her hospital admittance." Obviously a hospital's breach of that duty could justify a civil action against the hospital for damages by the patient, Hague v. Williams, 37 N.J. 328, 181 A.2d 345 (1962); Estate of Behringer v. Med. Ctr. of Princeton, 249 N.J.Super. 597, 632-34, 592 A.2d 1251 (Law Div.1991); and just as obviously, a hospital that failed to protect patient records could expect injury to its reputation, affecting in turn its economic viability.
In Ferraiuolo v. Manno, 1 N.J. 105, 108, 62 A.2d 141 (1948), the Court endorsed the well-settled proposition that "`[a]cts destroying a complainant's business, custom and profits do an irreparable injury and authorize the issue of a preliminary injunction.'" (citations omitted). Of course the acts must be wrongful. Longo v. Reilly, 35 N.J.Super. 405, 410-11, 114 A.2d 302 (App.Div.1955), certif. denied, 25 N.J. 45, 134 A.2d 540 (1957). In other contexts, such as the disclosure of trade secrets, the power to grant corporate entities injunctive relief to protect their business, custom and profits is firmly established and not dependent on pre-existing express agreements with the individuals against whom the restraints are sought. Sun Dial Corp. v. Rideout, 16 N.J. 252, 259, 108 A.2d 442 (1954).
The parties have not submitted any authority directly on point, but the instant setting, though novel, appears to us to be analogous to trade secret protection since it too involves an attempt by a corporation to avoid or ameliorate allegedly wrongful acts destructive of its business. Moreover, as we observed in Longo, supra, 35 N.J.Super. at 413, 114 A.2d 302, "[t]he genius of the Anglo-American common law is its readiness to proliferate needed remedies for newly evident wrongs and to apply existing remedies with liberality to new aspects of recognized wrongs."
The right asserted here by the hospital is, if anything, weightier than the right of a corporation to protect its trade secrets because the foundation of that right is not merely self-protection. In addition, recognition of that right would tend to enhance patients' privacy, thus serving the mandate of the Hospital Patients Bill of Rights Act.
In Al Walker, Inc. v. Borough of Stanhope, 23 N.J. 657, 666, 130 A.2d 372 (1957), the Court found standing because "[t]here has been real and substantial interference with [the corporate plaintiff's] business and [because] the serious legal questions *705 [the corporate plaintiff] has raised should, in the interest of the public as well as the plaintiff, be passed upon without undue delay." The same may be said here. If the records were wrongly obtained, it could adversely affect the hospital's reputation and viability, and the form of injunctive relief to deal with such circumstances raises serious legal questions that should be answered. Therefore, we are satisfied that plaintiff has standing to pursue this action for itself.
Defendants have argued that this case is moot. But that argument depends on reference to materials from another case, and we have denied defendants' request to include those materials in this record. Since plaintiff is aware of those materials, it may be that although it has standing in general, further litigation in the trial court, in light of those materials, might be considered frivolous. We do not intend to suggest any view on that point. Rather, we simply want to indicate that our answer to the Supreme Court's question does not imply that further proceedings in the trial court in this particular case are necessarily warranted.
Since the Court has retained jurisdiction of this case, we are not free to enter a dispositive directive to the parties and the trial court. However, if our reasoning is correct, reversal of the trial court judgment would be appropriate with a remand for further proceedings.
In accordance with the Supreme Court's direction, the Appellate Division Clerk shall forward a copy of this opinion to the Clerk of the Supreme Court.
| {
"pile_set_name": "FreeLaw"
} |
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
KEENAN K. COFIELD, )
)
Plaintiff, )
)
v. ) Civil Action No. 13-1442 (ESH)
)
CORIZON, INC., et al., )
)
Defendants. )
__________________________________________)
MEMORANDUM OPINION AND ORDER
Plaintiff Keenan Cofield originally filed this action against thirty-one named and
unnamed defendants in the Superior Court of the District of Columbia on July 22, 2013. The
six-count complaint alleges, inter alia, that he was wrongfully arrested and imprisoned by U.S.
Marshals, and on another occasion he was attacked by prison employees and denied medical
treatment for his injuries while incarcerated in the Chesapeake Federal Detention Center in
Baltimore, Maryland.
On September 20, 2013, federal defendants1 removed the case to this Court pursuant to
28 U.S.C. § 1442(a)(1). (Notice of Removal of a Civil Action, Sept. 20, 2013 [Dkt. No. 1].)
Currently before the Court are Maryland defendants’2 motion to transfer venue to the U.S.
District Court for the District of Maryland (Mot. to Transfer Venue, Oct. 25, 2013 [Dkt. No.
1
The “federal defendants” include the United States of America, U.S. Attorney General Eric
Holder, the U.S. Probation and Pretrial Services System, the U.S. Marshals Service, Director of the U.S.
Marshal Services, U.S. Marshal for the District of Maryland Johnny L. Hughes, and the U.S. General
Services Administration.
2
The “Maryland defendants” include Governor Martin O’Malley, Attorney General Douglas
Gansler, Treasurer Nancy K. Kopp, Secretary of the Department of Public Safety and Correctional
Services Gary Maynard, and the Maryland Board of Public Works.
13]),3 and plaintiff’s motion to remand to the Superior Court of the District of Columbia.
(Emergency Response and Mot. to Remand, Nov. 20, 2013 [Dkt. No. 21].)
In his motion to remand, plaintiff argues that the federal defendants waived their rights of
removal by failing to remove within thirty days of receipt of the complaint, as required under 28
U.S.C. § 1446(b)(1). (Mot. to Remand at 2.) However, “a named defendant’s time to remove is
. . . not [triggered] by mere receipt of the complaint unattended by any formal service.” Murphy
Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347-48 (1999). Federal defendants
proffer, and there is no evidence to the contrary, that they were never properly served in this
case; accordingly, the thirty-day time limit for removal in section 1146(b)(1) had not even begun
to run, let alone lapsed, by the time federal defendants removed the case. For this reason,
removal was timely, and plaintiff’s motion to remand will be denied.
Further, the Court will grant the Maryland defendants’ motion to transfer venue pursuant
to 28 U.S.C. § 1404(a). To determine whether to transfer venue, a Court must ask (1) whether
the action could have originally been brought in the proposed transferee court, and, if so, (2)
whether the “convenience of the parties and witnesses” and the “interest of justice” counsel in
favor of transfer. Id. In this case, because “a substantial part of the events or omissions giving
rise to the claim[s]” allegedly occurred in Baltimore and Baltimore County, Maryland, this
complaint originally could have been brought in the U.S. District Court for the District of
Maryland. See 28 U.S.C. § 1391(a); see also 28 U.S.C. § 1391(e).
Moreover, the Maryland defendants have carried their burden of demonstrating that the
action should be transferred, notwithstanding plaintiff’s initial choice of forum. The District of
Columbia is not plaintiff’s home forum, nor does it have any “meaningful ties to the
3
Neither the federal defendants nor Corizon, Inc., object to the transfer of venue requested by the
Maryland defendants. (Mot. to Transfer Venue at 3.)
2
controversy.” See Robinson v. Eli Lilly & Co., 535 F. Supp. 2d 49, 52 (D.D.C. 2008). When
“the only real connection [the] lawsuit has to the District of Columbia is that a federal agency
[is] headquartered here . . . venue is not appropriate in the District of Columbia.” Aftab v.
Gonzalez, 597 F. Supp. 2d 76, 81 (D.D.C. 2009) (internal quotation marks omitted). In contrast,
the lawsuit’s connections to Maryland counsel in favor of transferring venue. The majority of
defendants are public officials or employees of the State of Maryland or otherwise are employed
or reside in Maryland, the causes of action accrued in Maryland, and plaintiff is incarcerated in
Maryland. See Thomas v. United States, 779 F. Supp. 2d 154, 158 (D.D.C. 2011). And because
the case raises state-law claims brought under Maryland law and against Maryland officials, the
public interest favors transfer of venue to Maryland courts. See Nat’l Ass’n of Home Builders v.
U.S. E.P.A., 675 F. Supp. 2d 173, 177 (D.D.C. 2009); Veney v. Starbucks Corp., 559 F. Supp. 2d
79, 84 (D.D.C. 2008). For these reasons, the Court will order transfer of the instant case to the
United States District Court for the District of Maryland.
* * *
Accordingly, it is hereby
ORDERED that plaintiff’s motion to remand [Dkt. No. 21] is DENIED; and
ORDERED that the motion to transfer venue [Dkt. No. 13] is GRANTED; and
ORDERED that the Clerk’s Office is directed to TRANSFER forthwith the instant case
to the United States District Court for the District of Maryland.
SO ORDERED.
/s/
ELLEN SEGAL HUVELLE
United States District Judge
Date: December 12, 2013
3
| {
"pile_set_name": "FreeLaw"
} |
431 F.2d 1115
Virvus JONES, Leroy David Parker, Walter William Fox, andthe Following Named Persons by and Through Their NextFriend, Claire E. Penny, To-Wit: Orin Robert Langelle andJames Lawrence Ozier, Respectively, Individually, and asRepresentatives of a Class of Individuals known as Studentsof Forest Park Community College, St. Louis, Missouri, Appellants,v.William Edward SNEAD, President, Forest Park CommunityCollege, Joseph P. Cosand, President, Junior CollegeDistrict of St. Louis, St. Louis County, Missouri, and theBoard of Trustees of the Junior College District of St.Louis, St. Louis County, Missouri, Appellees.
No. 20046.
United States Court of Appeals, Eighth Circuit.
Oct. 1, 1970.
Harold L. Sarner, St. Louis, Mo., for appellants.
John P. Emde, St. Louis, Mo., for appellees; Kenneth Teasdale and Fred Leicht, Jr., St. Louis, Mo., on the brief.
Before MATTHES, Chief Judge, and HEANEY and BRIGHT, Circuit Judges.
BRIGHT, Circuit Judge.
1
On 'Moratorium Day', October 15, 1969, the president of Forest Park Community College, St. Louis, Missouri, temporarily suspended five students for disruptive behavior on the college campus. Later, on October 29, 1969, following the pressing of formal written charges of specific acts of disorderly conduct against the students and a hearing thereon, the college administration suspended three of the students (appellants Virvus Jones, Leroy Parker and Orin Langelle) for the remainder of the semester ending in January, 1970, but reinstated the other two students (appellants Walter Fox and James Ozier). On November 6, these students filed a complaint in the United States district court, as individuals and as representatives of a class comprised of the other students attending the college, seeking injunctive and declaratory relief against the administrators of the junior college, a Missouri public institution, for deprivation of their civil rights. Upon bringing the action, plaintiffs moved for a preliminary injunction against the college authorities to require reinstatement of the still-suspended students and for other preliminary relief. The trial court, after conducting a full evidentiary hearing, denied the motion.
2
The students appeal from this denial. Their claims rest upon 42 U.S.C. 1983. No question is raised concerning federal jurisdiction or the propriety of this appeal. See 28 U.S.C. 1292(1), 1343(3), (4), 2201, 2202. Since collateral effects may flow from the penalty, the expiration of the semester suspensions does not moot this controversy. Esteban v. Central Missouri State College, 415 F.2d 1077, 1079, n. 1 (8th Cir. 1969).
3
Our scope of review is narrow. We consider only the district court's order denying the injunction and those questions presented by that specific order. See generally 6 Moore Federal Practice P54.08 (1), at p. 54 (2d ed. 1966). The trial court's discretion to grant or deny a preliminary injunction is subject to reversal only for abuse of discretion or error of law. E. W. Bliss Co. v. Struthers-Dunn, Inc., 408 F.2d 1108, 1113 (8th Cir. 1969); Societe Comptoir De L'industrie Cotonniere Etablissements Boussac v. Alexander's Department Stores, Inc., 299 F.2d 33, 36 (2d Cir. 1962).
4
The evidence adduced at the district court hearing, largely undisputed, supports Judge Meredith's finding that the students actively participated in the campus disruption. The trial court also noted that the college observed rudimentary principles of due process in affording the students written notice of charges, notice of hearing and a lengthy hearing at which they were represented by counsel.1
5
On this appeal, the students contend that the hearing and decision-making procedures violated their constitutional right to due process. They allege that the college president, who witnessed the events from which the charges arose, should not have sat in judgment of the students; that the students should have been afforded more time to prepare for the hearing; and that the junior college district president improperly relied upon 'secret' information, testimony not produced at the hearing, in suspending the three students. Appellants also claim that the college regulations governing student conduct are void for vagueness and overbreadth. They urge that we find the district court in error as a matter of law in declining to order the college to reinstate the students in question.
6
These arguments which rest upon a partial record fail to persuade us to reverse the trial court's preliminary order. Firstly, any determination that the students' college hearing violated due process will not necessarily mandate reinstatement, only a new hearing. See Esteban v. Central Missouri State College, 277 F.Supp. 649, 652 (W.D.Mo.1967), and this court's comment on that decision in Esteban v. Central Missouri State College, 415 F.2d 1077, 1081 (8th Cir. 1969). Moreover, the extent to which procedural due process must be applied on the college campus is presently in a state of great flux. For a discussion of the developing law, see generally Wright, The Constitution on the Campus, 22 Vand.L.Rev. 1027, 1059-1082 (1969). Courts also differ on whether colleges may rely on general, broad statements of purpose in regulating student conduct or whether colleges must adopt specific, detailed codes of conduct. Compare Soglin v. Kauffman, 295 F.Supp. 978, 990-991 (W.D.Wis.1968), aff'd, 418 F.2d 163, 167-168 (7th Cir. 1969), with Esteban v. Central Missouri State College, 290 F.Supp. 622, 629-630 (W.D.Mo.1968), aff'd 415 F.2d 1077, 1087-1089 (8th Cir.1969).
7
We apply the standard of reasonableness in determining whether or not a student has been deprived of his constitutional rights. Esteban, supra,415 F.2d at 1090. See Powe v. Miles, 407 F.2d 73, 84-85 (2d Cir. 1968); Wasson v. Trowbridge, 382 F.2d 807, 811-812 (2d Cir. 1967); Dixon v. Alabama State Board of Education, 294 F.2d 150, 158-159 (5th Cir. 1961). We have indicated that procedural due process must be afforded a student on the college campus 'by way of adequate notice, definite charge, and a hearing with opportunity to present one's own side of the case and with all necessary protective measures.' Esteban, supra, 415 F.2d at 1089. But, also, we have cautioned 'that it is not sound to draw any analogy between student discipline and criminal procedure * * *.' Esteban, supra, 415 F.2d at 1088.
8
With these considerations in mind, we believe appellate resolution of the issues raised by the students requires a complete record in the trial court including findings of fact and a final judgment on the merits. On the present partial record, lacking as it does a transcript of the college hearing, we cannot conclude that the college arrived at its decision by unreasonable or unfair processes.
9
No prejudice results from this restraint on our part. The relatively short period of suspension has expired. Appellants retain the opportunity to present additional evidence before the district court on final hearing.
10
We are unable to find either abuse of discretion or error of law by the district court in denying appellants' motion for preliminary relief.
11
Affirmed.
1
The district court announced preliminary findings from the bench as follows:
'* * * This is temporary preliminary injunction hearing, and it is not a final decision, as you know. But based on the evidence which the Court finds in this case, the Court finds that these plaintiffs participated on October 15th in conduct in relation to the desecration of the flag, that they engaged in obscene language, that the plaintiffs and each one of them were notified on October 23rd, 1969, in writing about the nature of the charges which the school authorities indicated on which they would be heard on October 28th; that these people have been represented by attorneys from October 21st on; that on the face of the evidence before this Court the Junior College observed the requirements of due process in their hearings, and that they had adequate reason to dismiss or suspend these students.'
| {
"pile_set_name": "FreeLaw"
} |
874 N.E.2d 651 (2007)
IN RE GUARDIANSHIP OF A.N.M.
No. 91A02-705-CV-443.
In the Court of Appeals of Indiana.
October 12, 2007.
RILEY, J.
Unpublished Memorandum Decision. Affirmed.
FRIEDLANDER, J. Concurs.
SHARPNACK, J. Concurs.
| {
"pile_set_name": "FreeLaw"
} |
496 So.2d 977 (1986)
Bertrand OBANION, Appellant,
v.
The STATE of Florida, Appellee.
No. 85-2230.
District Court of Appeal of Florida, Third District.
November 4, 1986.
Weiner, Robbins, Tunkey & Ross and Peter Raben, Miami, for appellant.
*978 Jim Smith, Atty. Gen., and Charles M. Fahlbusch, Asst. Atty. Gen., for appellee.
Before HUBBART, BASKIN and DANIEL S. PEARSON, JJ.
HUBBART, Judge.
This is an appeal by the defendant from a judgment of conviction and sentence for the crime of manslaughter entered after an adverse jury verdict below. The dispositive question presented for review is whether the trial court erred in denying a defense motion to discharge the defendant under the Florida speedy trial rule. For the reasons which follow, we conclude that the trial court so erred and reverse with directions to discharge the defendant.
I
The facts pertaining to the above issue are undisputed. On August 8, 1983, the defendant Bertrand Obanion was arrested for the murder of Charles Larkins, and, on August 25, 1983, was formally charged by information with second-degree murder in the Circuit Court for the Eleventh Judicial Circuit of Florida. After certain procedural skirmishes not relevant here, the defendant Obanion filed a motion for discharge under Fla.R.Crim.P. 3.191 [the speedy trial rule], which, on September 18, 1984, the trial court denied; no one questions the propriety of this ruling. At that time, however, the trial court correctly noted that the defendant Obanion was required to be brought to trial within ninety days thereafter under the Florida speedy trial rule. See Fla.R.Crim.P. 3.191(d)(3)(iv). The defendant Obanion was, in fact, never brought to trial within this time period which sets the stage for the speedy trial issue presented in this case. During the ninety-day speedy trial period stated above [September 18 December 17, 1984], the following events transpired.
On October 15, 1984, the trial court set a trial date of November 26, 1984 the sixtyninth day of the new speedy trial period. On November 16, 1984, the defendant Obanion amended his previously filed list of witnesses to include one additional witness. He also, on November 26, 1984, filed a motion to suppress his statements to the police, together with a notice of hearing for 1:00 P.M., November 26, 1984 the scheduled trial date. Plea negotiations were discussed, and the prosecuting attorney indicated that the state would make an offer to the defendant Obanion in a week or two.
On November 26, 1984, when the case was called for trial, the parties announced to the court that they had reached a plea negotiation impasse. The defendant Obanion was willing to plead guilty to the lesser offense of manslaughter if he would receive a five-year sentence; the state was willing to reduce the charge to manslaughter, but wanted a ten-year sentence. The trial court suggested that the parties "split it down the middle and give him [the defendant] seven [years]." When the state declined to lower its "ten year" offer, defense counsel asked the court to accept an open plea to the court with an assured five-year sentence. The trial judge declined an "open plea" and shifted the plea negotiations back to the state, stating:
"THE COURT: I take the position I do not get involved with homicides.
So why don't I set it over for tomorrow morning and why don't you [prosecuting attorney] go upstairs to your people and ask about manslaughter and seven [years] or second [degree murder] and seven [years].
[PROSECUTING ATTORNEY]: They won't. I can go, but all they are going to allow is what was said. I can go back, but
THE COURT: Okay. It is a triable case, if he wants to roll the dice.
[DEFENSE COUNSEL]: It is a triable case, and obviously there are some down points for the defense. There are some bad points with the State, and they are going to have to come in and rely on the defendant's statement. That is not much for them to go on.
THE COURT: Okay. I will set it over for tomorrow morning.
*979 (Thereupon, the proceedings were concluded.)"
The next day, it was announced that a negotiated plea had not been reached by the parties. The case was noted for trial and, when not reached that trial week, on Friday, November 30, 1984, a new trial date was announced:
"THE COURT: Bertrand Obanion.
We might as well reset it while Mr. Siegel is here.
[PROSECUTING ATTORNEY]: I don't have a really good time.
I guess whatever.
THE COURT: January 14th.
(Thereupon the proceedings were concluded.)"
The reset trial date was well past the ninety-day speedy trial period, and, on December 19, 1984, the defendant Obanion filed a second motion for discharge for failure to bring him to trial within the required ninety-day period established by Fla.R.Crim.P. 3.191(d)(3)(iv). The trial court entered a lengthy order finding that the defendant Obanion was not continuously available for trial during the aforesaid ninety-day period, and, accordingly, denied the motion for discharge under Fla.R. Crim.P. 3.191(d)(3)(iii). The defendant Obanion then filed a petition for a writ of prohibition in this court raising the same speedy trial claim as was raised in the trial court. This court ordered a response and stayed the trial. After the state filed a response and the defense filed a reply, this court, on April 18, 1985, entered the following order:
"Following review of the response and the reply to the petition for writ of prohibition, it is ordered that said petition is hereby denied."
The case was thereafter tried below, and the trial court reduced the charge to manslaughter at the close of all the evidence. The jury found the defendant Obanion guilty of manslaughter, and a sentence of eight years imprisonment was ultimately imposed. This appeal follows.
II
The defendant Obanion contends that the trial court committed reversible error in denying his second motion for discharge filed below. Without dispute, he was not brought to trial within ninety days of the denial of his first motion for discharge as required by Fla.R.App.P. 3.191(d)(3)(iv). On its face, then, it would appear that the defendant has presented a prima facie claim that his motion for discharge should have been granted below based on the controlling authority of Butterworth v. Fluellen, 389 So.2d 968 (Fla. 1980); Jay v. State, 443 So.2d 186 (Fla. 3d DCA 1983). To avoid this inevitable result, however, the state urges two positions. First, the state contends that the denial of the defendant's petition for a writ of prohibition establishes, as the law of the case, that the defendant's speedy trial rights were not violated below. Second, the state contends that the defendant was, for various reasons, not continuously available for trial during the subject ninety-day speedy trial period, and, consequently, his motion for discharge was properly denied under Fla.R.Crim.P. 3.191(d)(3)(iii). Both parties agree that if the state is correct in either position, the defendant's speedy trial claim must be rejected; on the other hand, all agree that if the state's positions have no merit, a reversal and discharge is required in this cause. We, accordingly, must carefully examine both of the state's positions in this matter.
A
At the outset, we are met with the state's law of the case argument based on our prior denial of the defendant's petition for writ of prohibition which raised the same speedy trial claim as is raised in the instant case. It is urged that by denying the defendant's prohibition petition, we passed on the merits of the defendant's speedy trial claim and rejected the said claim. That being so, the state urges that the defendant is precluded by law of the case principles from relitigating the same speedy trial claim.
*980 We turn, first, to the applicable law on this issue. It has been held that a denial of a petition for a writ of prohibition based on a claimed speedy trial violation does not constitute a ruling on the merits of the claim where the denial could have rested on other grounds, and, if this be the case, the denial of the petition does not constitute a law of the case bar to the defendant raising the speedy trial claim on an appeal from the final judgment of conviction. Thomas v. State, 422 So.2d 93, 94 (Fla. 2d DCA 1982); see Cappetta v. State, 471 So.2d 1290, 1291 (Fla. 3d DCA) (following Thomas), pet. for review denied, 480 So.2d 1296 (Fla. 1985). In this court, an order denying a petition for a writ of prohibition, as here, has traditionally covered a variety of grounds, including: (1) a technically defective petition, (2) insufficient supporting record, (3) undue delay by the petitioner in filing the petition on the eve of trial, and (4) an otherwise non-meritorious claim presented by the petition. This being so, it follows that past denials of a petition for a writ of prohibition by this court do not necessarily constitute a ruling on the merits of the petition, as the denial could have rested on procedural or other nonmerit grounds. We acknowledge, however, a certain looseness in our past practices and, accordingly, we serve notice to the bench and bar that in the future a denial of a petition for a writ of prohibition will, in fact, be a ruling on the merits, unless otherwise indicated.
Turning now to the case at bar, it is plain that this court's prior denial of the defendant's petition for a writ of prohibition could have rested on grounds other than the merits of the claim. This court's order denying relief states no grounds for the denial of the petition, and, given our past practices, it is therefore impossible to infer what those grounds were. The state invites us to infer that the only possible ground for the denial was that the speedy trial claim presented had no merit because the state's response filed in the cause presented arguments which went solely to the merits of the speedy trial claim. It does not follow, however, that we accepted any of those arguments in denying the subject petition as a court is always privileged to deny a prohibition petition based on any reason appearing in the record, even though not raised by the respondent. See Stuart v. State, 360 So.2d 406, 408 (Fla. 1978). We accordingly conclude that the prior denial of the defendant's petition for a writ of prohibition does not, in view of our past practices, constitute a law of the case bar to the defendant's speedy trial claim presented on this appeal. We again caution, however, that in the future such a denial, unless otherwise indicated, will constitute an adjudication on the merits.
B
We turn now to the state's position that the defendant was not continuously available for trial during the subject ninety-day period after his first motion for discharge was denied. The state argues that this is so primarily because the defendant, in effect, sought a one-day continuance in the cause on November 26, 1984, so that he could engage in further plea negotiations with the state. We cannot agree. Defense counsel at no time requested a continuance on November 26, 1984; it was the trial court which, sua sponte, put the case over for one day so that the prosecuting attorney could check with his superiors about lowering the state's plea offer. It is true that defense counsel all along was attempting to plea negotiate this case short of trial, but this is of no moment as it is well settled that defense participation in plea discussions does not, without more, constitute unavailability for trial under the speedy trial rule. Stuart v. State, 360 So.2d at 410; Fulk v. State, 417 So.2d 1121, 1124 (Fla. 5th DCA 1982); Ballard v. Kaney, 397 So.2d 1042, 1042 (Fla. 5th DCA 1981); State v. Bragg, 367 So.2d 1066, 1067 (Fla. 4th DCA 1979).
The state also argues that the defendant Obanion was unavailable for trial during the ninety-day speedy trial period [September 18 December 17, 1984] because (a) he filed an amended witness list, *981 adding an additional witness, on November 16, 1984, and (b) he filed a motion to suppress his statements to the police on November 26, 1984, and noticed the motion for hearing on the same day, which was the scheduled trial date. Again, we cannot agree. Neither of these pleadings indicates in the slightest that the defendant was not ready for trial prior to their filing.
The addition of one witness to a previously filed defense list, supplied to the state under the defendant's continuing duty to disclose under Fla.R.Crim.P. 3.220(f), meant only that the defendant had discovered an additional witness to call at trial, not that he was unprepared for trial without that witness. True, the defendant may have been better prepared to go to trial with this additional witness, but there is no showing in this record that the defendant was unprepared for trial without this witness. As for the filing of the motion to suppress which was noticed for hearing at the time of trial, the state at no time objected to hearing the motion to suppress at the time of trial. Indeed, this is common practice in cases of this nature in the Eleventh Judicial Circuit, as it is considered part and parcel of the trial proceedings. This being so, the filing of the motion to suppress in no way delayed the proceedings or indicated that the defendant was unprepared or unavailable for trial. As the Florida Supreme Court has stated, "the mere filing of a motion to suppress is not tantamount to a finding of law that the speedy trial demander does not have a bona fide desire to obtain trial, that he is not prepared and will not be prepared for trial." State v. Embry, 322 So.2d 515, 518 (Fla. 1975); see Perry v. State, 436 So.2d 426, 428 (Fla. 1st DCA 1983).
Finally, we address a point relied on by the trial court to support its finding of defense unavailability, although the point is not pressed by the state on this appeal. The trial court concluded that because the assistant public defender in this case represented another defendant in an unrelated probation revocation hearing before the same trial judge on November 26, 1984, the scheduled trial date, the defendant Obanion was not available for trial on that date. We cannot agree. In fact, the case at bar had already been set over to November 27, 1984, at the request of the trial court, when the above-stated probation revocation hearing began. This being so, the defendant Obanion was in no sense made unavailable for trial by his counsel's participation in this hearing. Beyond that, the speedy trial rule would be hollow indeed for a Public Defender client, as here, if the rule could be obviated by the simple expedient of scheduling for trial on the same day before the same trial judge a series of Public Defender cases represented by the same assistant public defender, a not infrequent occurrence in the Eleventh Judicial Circuit. Where, as here, one of those cases is tried and others continued by the court because of a crowded trial calendar, it does not follow that the hapless public defender clients who are not so tried have by some cruel fiction waived their speedy trial rights by being unavailable for trial.
III
For the above-stated reasons, we conclude that the defendant Obanion was not brought to trial within ninety days after the denial of his first motion for discharge, as required by Fla.R.Crim.P. 3.191(d)(3)(iv). Because the defendant was continuously available for trial during this time and in no way delayed the trial or waived his speedy trial rights, he was entitled to discharge pursuant to his timely motion made below. Moreover, our prior denial of the defendant's petition for a writ of prohibition in this case does not constitute a res judicata bar to the speedy trial claim raised. The trial court, accordingly, committed reversible error in denying the defendant Obanion's second motion for discharge under the speedy trial rule. This being so, it is unnecessary for us to reach the defendant's second point on appeal concerning the admissibility of his confession.
The final judgment of conviction and sentence under review is reversed and the *982 cause is remanded to the trial court with directions to discharge the defendant from the cause.
Reversed and remanded; defendant discharged.
| {
"pile_set_name": "FreeLaw"
} |
Affirmed and Memorandum Opinion filed February 15, 2011.
In The
Fourteenth Court of
Appeals
NO. 14-09-00786-CV
Harris County Appraisal
District, Appellant
V.
Riverway Holdings, L.P.,
South Post Oak Holdings, L.P. and Overland Riverway, L.P., Appellees
On Appeal from the 281st
District Court
Harris County, Texas
Trial Court Cause No. 2008-52869
MEMORANDUM OPINION
The Harris County Appraisal District (“HCAD”) appeals
from an order granting a traditional summary judgment in favor of Riverway
Holdings, L.P., South Post Oak Holdings, L.P., and Overland Riverway, L.P. (collectively,
“Riverway”). HCAD contends that the trial court erred because Riverway (1) failed
to establish its entitlement to judgment as a matter of law; and (2) is not
entitled to attorney’s fees. We affirm.
Background
Riverway owns real property in the Galleria area
identified as the One Riverway Office Building. The property encompasses 481,222
total net rentable square feet and a land area of 207,106 square feet or 4.7545
acres; it also includes a 1,843-space parking garage. This property sold for
$67 million in February 2005.
The present appeal arises in connection with HCAD’s
appraisal of the property’s value for the 2008 tax year. Riverway protested HCAD’s
appraisal with the Appraisal Review Board. The record does not establish HCAD’s
appraised value or the value determined by the Appraisal Review Board. See Tex.
Tax Code Ann. § 41.01 (Vernon 2008). After exhausting its administrative
remedies, Riverway filed a petition in district court on September 2, 2008 to
obtain de novo review of the valuation for property tax purposes. See
id. §§ 42.01, 42.23 (Vernon
2008).
Property generally is appraised for ad valorem taxes
at its market value as of January 1 of the tax year. Id. § 23.01(a)
(Vernon 2008). In its petition, Riverway alleged that the property’s appraised
market value for the 2008 tax year substantially exceeded its actual taxable
value. Riverway alleged that, although it “attempted to obtain a lower
valuation through the administrative remedies prescribed in the Texas Tax
Code,” HCAD and the Appraisal Review Board failed to reduce the property’s
valuation to reflect its actual taxable value. “If the court determines that
the appraised value of the property according to the appraisal roll exceeds the
appraised value required by law, the property owner is entitled to a reduction
of the appraised value on the appraisal roll to the appraised value determined
by the court.” Id. § 42.25 (Vernon 2008).
Riverway filed a combined traditional and no-evidence
motion for summary judgment on May 4, 2009. In support of its motion, Riverway
attached appraisal expert Stevan N. Bach’s two-page affidavit and supporting expert
report. Riverway argued that it was entitled to a no-evidence summary judgment
because HCAD (1) was required to designate its experts by April 2, 2009, but
failed to do so; and (2) bore the burden of proving the building’s appropriate
valuation, but failed “to produce timely and admissible expert information on
the valuation issue.”
Riverway also asserted its entitlement to a traditional
summary judgment under Rule 166a(c) because its expert “conducted a
comprehensive analysis of [Riverway’s property] under Section 42.25 of the
Texas Tax Code” and determined that the property’s assessed value as of January
1, 2008 exceeded the property’s market value as of that date. Bach’s affidavit
and his supporting 40-page expert report concluded that the property’s market
value as of January 1, 2008 was $55 million. Riverway also argued that it was
entitled to attorney’s fees under the Texas Tax Code. See Tex. Tax Code
Ann. § 42.29 (Vernon Supp. 2009).
HCAD filed its summary judgment response on May 26,
2009. It did not proffer a controverting affidavit. HCAD argued that Riverway
could not obtain a no-evidence summary judgment because HCAD did not plead a
counterclaim and had no burden of proof at trial. HCAD contended that Riverway
could not obtain a traditional summary judgment because such a judgment would
be “the procedural equivalent of a directed verdict without even giving HCAD
the opportunity to cross-examine Bach.” HCAD also argued that the absence of a
controverting valuation opinion did not “force[] the Court to accept at face
value Bach’s final number.” HCAD did not assert in its summary judgment
response that Bach’s affidavit and report were conclusory, or that the value
Bach computed rested on a deficient methodology. HCAD did not challenge Bach’s
qualifications to opine as an appraisal expert. Riverway filed a reply to
HCAD’s summary judgment response on June 4, 2009.
The trial court signed a final order granting summary
judgment in favor of Riverway on June 22, 2009. The trial court’s order did
not specify whether it granted a traditional or a no-evidence summary judgment.
HCAD filed a motion for new trial on July 21, 2009.
In this motion, HCAD argued that a no-evidence summary judgment was improper because
Riverway bore the burden of establishing that the property’s market value
differed from the appraised value. As it did in its summary judgment response,
HCAD asserted that the grant of summary judgment denied it an opportunity to
cross-examine Bach. HCAD also argued for the first time that (1) Bach’s
affidavit was conclusory; and (2) Bach used a deficient valuation methodology.
With respect to Bach’s methodology, HCAD’s motion for
new trial (1) asserted that the property’s $67 million sales price in 2005 indicated
a market value higher than Bach’s $55 million valuation for 2008; (2) questioned
why “the market value of [Bach’s] sales [comparables] located in the sales
analysis of his report are roughly 60% of their sales price;” (3) pointed out
that Bach “used a capitalization rate different than that indicated by his
sales;” (4) questioned why Riverway’s property — with a net operating income of
$14.29 per square foot — yields a lesser per square foot market value than
Bach’s sales comparables when the comparables have a lower net operating income
per square foot; and (5) challenged certain sales adjustments Bach relied upon
to compute the property’s appraised market value as of January 1, 2008. Riverway
filed a response to HCAD’s motion for new trial on August 20, 2009.
On August 31, 2009, the trial court vacated its June
22, 2009 summary judgment order and signed a modified summary judgment order in
which it expressly (1) granted Riverway’s traditional summary judgment motion;
and (2) denied Riverway’s no-evidence summary judgment motion. The trial court
did not expressly rule on the motion for new trial or on the objections to
Bach’s opinion testimony raised for the first time in the motion for new
trial.
HCAD now appeals the trial court’s August 31, 2009 order
granting a traditional summary judgment in favor of Riverway.
Analysis
As the appellate record stands, Riverway obtained a
traditional summary judgment in its favor determining the property’s value to
be $55 million as of January 1, 2008. Riverway proffered an affidavit and a
40-page report from appraisal expert Bach in support of its request for a
traditional summary judgment.
HCAD filed a summary judgment response, but did not
file a controverting affidavit or any other evidence addressing the property’s value.
HCAD’s summary judgment response did not challenge Bach’s methodology. After
the trial court signed an order granting summary judgment in favor of Riverway,
HCAD filed a motion for new trial in which it challenged certain aspects of Bach’s
methodology for the first time.
The trial court did not expressly rule on HCAD’s
motion for new trial, or on HCAD’s specific challenges to the expert’s
valuation methodology. The trial court signed a modified summary judgment
order granting only a traditional summary judgment under Rule 166a(c); that is
the order HCAD now appeals. Therefore, the propriety of a no-evidence summary
judgment under Rule 166a(i) is not at issue in this appeal.
A. Propriety of Granting a Traditional Summary
Judgment
In its first appellate issue, HCAD contends that the
trial court erred by granting a traditional summary judgment in Riverway’s
favor because (1) Riverway bore the burden to prove that the property’s market
value differed from its appraised value; (2) Bach’s uncontroverted affidavit
and supporting report do not establish the property’s market value as a matter
of law; (3) Rule 166a(c)’s reference to summary judgment based on
uncontroverted expert testimony is inapplicable here because the fact finder need
not be guided solely by expert opinion testimony in this context; (4) Bach’s expert
opinion was conclusory and used deficient methodology; and (5) the grant of
summary judgment impermissibly deprived HCAD of the opportunity to
cross-examine Bach. HCAD does not challenge Bach’s qualifications.
We review the trial court’s grant of summary judgment
de novo. Provident Life & Accident Ins. Co. v. Knott, 128
S.W.3d 211, 215 (Tex. 2003). Under Texas law, the party moving for a
traditional summary judgment carries the burden of establishing that no
material fact issue exists and that it is entitled to judgment as a matter of
law. Tex. R. Civ. P. 166a(c); M.D. Anderson Hosp. & Tumor Inst. v.
Willrich, 28 S.W.3d 22, 23 (Tex. 2000). The nonmovant has no burden to
respond to a summary judgment motion unless the movant conclusively establishes
its cause of action or defense. M.D. Anderson Hosp. & Tumor Inst.,
28 S.W.3d at 23.
Once the movant produces sufficient evidence
conclusively establishing his right to summary judgment, the burden of proof
shifts to the nonmovant to present evidence sufficient to raise a fact issue. See
Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). In
reviewing a traditional summary judgment, we examine the entire record in the light
most favorable to the nonmovant, indulging every reasonable inference and
resolving any doubts against the motion. Yancy v. United Surgical Partners
Int’l, Inc., 236 S.W.3d 778, 782 (Tex. 2007).
1. Availability
of traditional summary judgment
As a threshold matter, we agree with HCAD that Riverway
bore the burden of establishing its entitlement to judgment as a matter of law
under Rule 166a(c). We reject HCAD’s accompanying contention that a trial
court cannot grant a traditional summary judgment in favor of the
property-owner movant on the basis of uncontroverted and unchallenged expert
opinion evidence addressing property valuation.
Citing 2218 Bryan St., Ltd. v. City of Dallas,
175 S.W.3d 58, 67 (Tex. App.—Dallas 2005, pet. denied), HCAD asserts that (1) the
trial court was not obligated to accept Bach’s opinion regarding the property’s
valuation; and (2) therefore, Bach’s opinion could not establish Riverway’s
entitlement to judgment in its favor as a matter of law. In 2218 Bryan
Street, the trial court heard appellant’s expert’s valuation opinion at
trial and made a specific finding of fact that the expert’s opinion was not
credible; the trial court listed 31 reasons to support its credibility
determination. Id. at 66. Appellant contended on appeal that, because
it provided the only valuation evidence proffered below, the trial court was
obligated as a matter of law to accept this evidence and incorporate it into
its findings of fact without regard to credibility. Id. at 67. The
Dallas Court of Appeals rejected appellant’s argument and stated: “To accept
appellant’s argument would usurp the trial court’s role as the sole judge of
the credibility of the witnesses and the weight to give their testimony. We
may not impose our own opinions about the credibility of witnesses to the
contrary.” Id.
The present case is distinguishable from 2218
Bryan Street because the trial court here did not make express findings
determining that the expert opinion at issue lacked credibility. Rather, the
trial court granted summary judgment in Riverway’s favor based upon uncontroverted
opinion testimony from an expert whose methodology was not challenged until
after summary judgment already had been granted.
It is one thing to say that a trial court is not
compelled to accept expert testimony when it has determined that the proffered testimony
lacks credibility or probative force — even in the absence of controverting
testimony. It is quite another to argue, as HCAD does here, that a trial court
cannot grant summary judgment on the basis of uncontroverted and unchallenged expert
testimony in the absence of such a determination.
HCAD’s argument contravenes Rule 166a(c), which
recognizes that a movant can establish its right to summary judgment based
solely on the uncontroverted testimony of an expert witness if (1) the subject
matter is such that a trier of fact would be guided solely by the opinion
testimony of an expert; (2) the evidence is clear, positive and direct,
otherwise credible and free from contradictions and inconsistencies; and (3) the
evidence could have been readily controverted. See Tex. R. Civ. P.
166a(c); Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991). These
criteria are satisfied here. Cf. McGalliard v. Kuhlmann, 722 S.W.2d
694, 697 (Tex. 1986) (Trial court was not compelled to accept expert testimony in
bench trial to determine cost to repair and prevent water leakage in home;
“[t]he trial judge can form his own opinion from other evidence and by
utilizing his own experience and common knowledge.”); Gregory v. Tex. Emp’t
Ins. Assoc., 530 S.W.2d 105, 107-08 (Tex. 1975) (Jury could rely on other evidence
to determine that employee’s death in fall from roof was not suicide, contrary
to expert’s opinion that building dimensions and position of employee’s body indicated
that he had run to edge of roof and jumped).
HCAD tries to neutralize this provision of Rule
166a(c) by arguing that the property owner rule recognized in Porras v.
Craig, 675 S.W.2d 503 (Tex. 1984), forecloses exclusive reliance on expert
appraisal testimony to obtain summary judgment as to valuation for ad valorem
tax purposes.
Under Porras, property owners are deemed to
have sufficient expertise to opine about their own property’s value. Id.
at 504 (“[T]he owner of the property can testify to its market value, even if
he could not qualify to testify about the value of like property belonging to
someone else.”). The property owner’s valuation testimony must be based on
market value “rather than intrinsic or some other value of the property.” Id.
at 505. The supreme court rejected Porras’s testimony because he “referred to
personal rather than market value.” The court held that the property owner was
qualified to give opinion testimony about the market value of his property; he
simply failed to do so. Id.
Because a property owner can opine about valuation
under Porras, HCAD argues that this case is not one in which the trier
of fact would be guided solely by expert opinion testimony under Rule 166a(c).
It is not clear that Riverway, as an entity other
than a natural person, can invoke the property owner rule. Courts have split
on whether an entity other than a natural person can avail itself of the
property owner rule. See Speedy Stop Food Stores, Ltd. v. Reid Road Mun.
Util. Dist. No. 2, 282 S.W.3d 652 (Tex. App.—Houston [14th Dist] 2009, pet.
granted) (collecting cases). The Texas Supreme Court has granted a petition
for review on this issue in Speedy Stop. See id.
Even if the supreme court decides that the rule
applies to a property owner other than a natural person, the property owner
rule does not foreclose application here of Rule 166a(c)’s provision concerning
expert testimony. The rule treats valuation testimony from a property owner as
the functional equivalent of expert valuation testimony insofar as the owner’s
own property is concerned. See id. at 657 (“The Property Owner Rule is
based on the premise that property owners ordinarily know the market value of
their property and therefore have a sound basis for testifying as to its
value.”); see also id. at 659 n.1 (“The Property Owner Rule is
predicated entirely on ownership. It rests on the fact that an owner
ordinarily knows the value of his property.”) (Seymore, J., dissenting).
Because property owners are treated as having expertise regarding the value of
their own property, a valuation dispute like the one at issue here is a
“subject matter” on which the trier of fact is guided by “the opinion testimony
of experts” under Rule 166a(c) regardless of whether such testimony comes from
(1) a designated appraisal expert with expertise to opine about properties he
does not own; or (2) an individual property owner with sufficient expertise to
opine only about his own property.
Barring some cognizable infirmity in Bach’s opinion
or methodology, the trial court was entitled to rely upon Bach’s uncontroverted
expert valuation. HCAD argues on appeal that two such infirmities exist: (1)
Bach’s affidavit and supporting report are conclusory; and (2) his methodology
is flawed. We address each in turn.
2. Conclusory
affidavit
“An expert opinion is considered conclusory if it is
essentially a ‘conclusion without any explanation.’” Pink v. Goodyear Tire
& Rubber Co., 324 S.W.3d 290, 296-97 (Tex. App.—Beaumont 2010, no pet.)
(quoting Arkoma Basin Exploration Co. v. FMF Assocs. 1990-A, Ltd., 249
S.W.3d 380, 389 (Tex. 2008)). Relying on Amidei v. Harris Cnty. Appraisal
Dist., No. 01-08-00833-CV, 2009 WL 2050974, at *9 (Tex. App.—Houston [1st
Dist.] 2009, no pet.) (mem. op.). HCAD argues that Bach’s opinion is purely
conclusory. We disagree.
In Amidei, the court held that the property
owners’ affidavit was conclusory and, thus, incompetent summary judgment
evidence. The affidavit at issue stated that the property owners “are
qualified and authorized to make this affidavit. They [sic] have personal
knowledge of the facts stated herein which are true and correct. That their
[sic] property at [address], the subject of this suit, had in their [sic]
opinion the market value of $96,900 on January 1, 2007.” Amidei, 2009
WL 2050974, at *9.
Unlike the affidavit in Amidei, Bach’s
affidavit and 40-page report explained the computation of the proffered
valuation. Bach’s affidavit explained the approaches and methods he used in
the valuation of Riverway’s property and how the conclusions in his affidavit
were supported by the report he attached as Exhibit F to his affidavit. Bach
stated that his attached report reflects the analysis he performed under
section 42.25 of the Texas Tax Code to value the property for the 2008 tax year.
He also stated that the “information, methodology and data contained in Exhibit
F is appropriate based on accepted appraisal standards, technical or other
specialized knowledge that will assist in understanding and determining the
market value of the [building], as of January 1, 2008.” Bach then described
the valuation approaches and what each approach considered:
As shown in Exhibit F, the values set forth in my report
were determined after application of, and analysis by, the Income and/or Sales
Comparison Approaches to value.
I first used the Income Approach. This approach is
predicated on the assumption that there is a definite relationship between the
amount of income a property is capable of producing and its value. This
approach considers a property’s ability to produce income and recognizes that value
is the present worth of all future benefits relating from ownership. I set
forth in detail the steps used in this Approach in the Valuation section of
Exhibit F. In the analysis of the Property, I used the direct capitalization
technique. I analyzed the Income Approach to value by researching current
market rents, operating expenses, occupancies, and tenant improvements
allowances of comparable properties. As set forth in detail in Exhibit F,
under the Income Approach, the market value of the subject property as of
January 1, 2008 is $55,000,000.
I next considered the Sales Comparison Approach, which
looks at sales of comparable properties. My analysis contained five (5)
office-building sales in the Galleria/West Loop Area that occurred from January
2007 to April 2008 and in size from 196,217 square feet to about 567,396 square
feet. A summary of these five sales is contained in the Valuation section of
Exhibit F. The adjustments to these five sales are discussed in detail in the
Valuation section of Exhibit F. Also factored in are net differences per
square foot, deferred maintenance and capital expenditures, on-going tenant
improvements, leasing commissions, etc. The resulting adjusted sales price is an
indication of the subject’s value for ad valorem tax purposes. I concluded
that the market value of the Property using this approach is $57,500,000.
Bach explained that more
weight is given to the income approach because it “reflects how buyers and
sellers transact income-producing properties, and in the sales comparison
approach for this property, large adjustments needed to be made.” Bach stated
that the difference between the two valuation approaches he used was less than
five percent. At the end, Bach stated, “As set forth in detail in Exhibit F, I
have concluded that the market value of the Property as of January 1, 2008 is
$55,000,000.”
The 40-page
report Bach attached to his affidavit explained the methods and calculations he
used to obtain the valuation figures for Riverway’s property and for comparable
buildings. In his report, Bach explained that he gave the most weight to the
income approach because the “difficulty with the sales comparison approach is
that large adjustments were needed to be made” for “leased fee to fee simple,
for intangibles, NOI [net operating income] differences, age and size
differences, and occupancy differences; also a major adjustment was made for
rent loss costs and capital expenditures.” Bach’s valuation opinion is not
conclusory.
3. Challenge
to methodology
We likewise reject HCAD’s argument that the summary
judgment should be overturned because Bach relied on deficient methodology.
On appeal, HCAD challenges Bach’s methodology on
these grounds: (1) courts traditionally have favored the sales comparison
approach in determining a property’s market value, but Bach focused on the
income approach to determine the Riverway property’s market value; (2) Bach gave
insufficient consideration to the property’s 2005 sales price as an indicator
of market value; (3) Bach recognized the property’s 2005 sales price but discounted
that sale price in computing value for ad valorem tax purposes; (4) Bach used
five comparable office building sales and reduced all but one of the comparable
sales prices for ad valorem tax purposes; (5) “Bach’s five sales ‘comparables’
sold on ‘capitalization’ rates between 5.6% to 7.25%,” but Bach used “a base
cap rate of 9.0% and a tax loaded cap rate of 11.5237%;” and (6) Riverway’s property
— with a net operating income of $14.29 per square foot as calculated under the
income approach — yields a lesser per square foot market value than Bach’s
sales comparables even though the comparables have a lower net operating income
per square foot as calculated under the sales comparison approach.
Complaints about an expert’s deficient, flawed, or
unreliable valuation methodology must be asserted at the appropriate time in
the trial court. Graves v. Tomlinson, 14-08-00654-CV, 2010 WL 4825624,
at *6, *10 (Tex. App.—Houston [14th Dist.] Nov. 30, 2010, no pet. h.) (citing Coastal
Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233 (Tex. 2004),
and Nip v. Checkpoint Sys., Inc., 154 S.W.3d 767, 770-71 (Tex.
App.—Houston [14th Dist.] 2004, no pet.)).
HCAD did not challenge Bach’s valuation methodology
in its summary judgment response or at any other time before the trial court signed
an order granting summary judgment in Riverway’s favor. Therefore, HCAD cannot
now attack Bach’s methodology on appeal. See Pink, 324 S.W.3d at 297,
299-300 (applying Coastal Transp. Co. v. Crown Cent. Petroleum Corp. principles
in summary judgment context); see also Coastal Transp. Co., 136 S.W.3d
at 233; Graves, 2010 WL 4825624, at *6, *10; Nip, 154 S.W.3d at
770-71. Challenges to expert methodology raised for the first time in a motion
for new trial will not be considered on appeal. See Nip, 154
S.W.3d at 771 (court refused to consider challenges to reliability of expert
report raised for the first time in motion for new trial). Under these
circumstances, the trial court was entitled to rely on Bach’s unchallenged
expert testimony to conclude that Riverway established the building’s market
value.
4. Summary
We hold as follows: A trial court properly may grant
a property owner’s traditional motion for summary judgment establishing
valuation when that motion is supported by an appraisal expert’s non-conclusory
and uncontroverted valuation testimony. A contention that the supporting
expert’s testimony contains methodological deficiencies precluding summary
judgment for the property owner must be raised before the trial court grants
summary judgment and a ruling must be obtained. See Pink, 324 S.W.3d at
297, 299-300; see also Coastal Transp. Co., 136 S.W.3d at 233; Graves,
2010 WL 4825624, at *6, *10; Nip, 154 S.W.3d at 770-71.
We do not hold that HCAD always must proffer a
controverting expert opinion to preclude summary judgment when a property owner
moves for a traditional summary judgment on valuation supported by an appraisal
expert’s affidavit and report. We also do not hold that a property owner may
obtain a traditional summary judgment establishing property valuation when the
only proffered expert testimony is conclusory, or when the trial court is
presented with timely and valid challenges to the methodology relied upon by
the property owner. But when the property owner proffers uncontroverted and
non-conclusory expert valuation testimony in support of a traditional motion
for summary judgment establishing valuation, the non-movant cannot eschew
challenges to the expert’s methodology; wait until summary judgment has been
granted; and then belatedly attack the expert’s methodology.
Here, the property owner supported its request for a
traditional summary judgment establishing valuation with uncontroverted and
non-conclusory expert testimony. HCAD did not timely challenge the expert’s
methodology before summary judgment was granted. Summary judgment was
appropriate under these circumstances.
Finally, we reject HCAD’s argument that the trial
court’s ruling in favor of Riverway deprived HCAD of an opportunity to
cross-examine Bach regarding asserted “inconsistencies contained within the
[expert] report.” HCAD erroneously assumes that cross-examination can occur
only at trial. On this record, nothing prevented HCAD from (1) deposing Bach in
the course of pretrial discovery and questioning him about any alleged
deficiencies in his methodology; and then (2) highlighting these alleged
deficiencies in its summary judgment response.
Accordingly, we overrule HCAD’s first issue.
B. Attorney’s Fees
In its second issue, HCAD contends that, “[i]n the
event the summary judgment is reversed, Riverway is not entitled to attorney’s fees”
because section 42.29 of the Texas Tax Code is the only provision that allows a
taxpayer who prevails in an appeal to the court to recover attorney’s fees.
Because we affirm the trial court’s judgment, HCAD’s second issue presents
nothing for our review.
Accordingly, we overrule HCAD’s second issue.
Conclusion
We affirm the trial court’s judgment.
/s/ William
J. Boyce
Justice
Panel consists of Justices Seymore,
Boyce, and Christopher.
| {
"pile_set_name": "FreeLaw"
} |
Fourth Court of Appeals
San Antonio, Texas
August 9, 2019
No. 04-19-00190-CR
Joshua MOLINA,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2018CR0078
Honorable Catherine Torres-Stahl, Judge Presiding
ORDER
The Appellant’s Motion to Extend Time to File Appellant’s Brief is hereby GRANTED.
It is so ORDERED on August 9, 2019.
PER CURIAM
ATTESTED TO: _______________________
Keith E. Hottle
Clerk of Court
| {
"pile_set_name": "FreeLaw"
} |
413 F.2d 186
Winfield H. LYON, Jr., Appellant,v.UNITED STATES of America, Appellee.
No. 26189.
United States Court of Appeals Fifth Circuit.
June 26, 1969.
Winfield H. Lyon, Jr. pro se.
Robert C. Josefsberq, Miami, Fla., (Ct.Apptd.), for appellant.
Wm. A. Meadows, Jr., U.S. Atty., Michael J. Osman, Asst. U.S. Atty., Miami, Fla., for appellee.
Before JOHN R. BROWN, Chief Judge, and GEWIN and GOLDBERG, Circuit judges.
GEWIN, Circuit Judge.
1
The appellant, Winfield H. Lyon, Jr., was convicted in the United States District Court for the Southern District of Florida on eight counts of a ten-count indictment charging fraudulent use of the mail in violation of 18 U.S.C. 1341 (1964). He received a sentence of six months' imprisonment to be followed by two years' probation.
2
The trial below was the Government's second effort to convict the appellant of the offense charged. A previous attempt had ended in a mistrial when the jury was unable to reach a verdict. Among the witnesses called by the Government at the first trial was one Adderley, a citizen of Nassau, Bahamas, and a practicing attorney there. Adderley was not present at the second trial and, as a result, the Government was allowed, over the appellant's objection, to introduce the official transcript of Adderley's prior testimony.
3
The single issue presented on this appeal is whether this use at the second trial of Adderley's prior testimony violated the appellant's sixth amendment right of confrontation. The amendment provides that 'in all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him * * *.' Courts have traditionally recognized, however, that the right of confrontation is satisfied
4
where a witness is unavailable and has given testimony at previous judicial proceedings against the same defendant which was subject to cross-examination by that defendant.1
5
The rationale of this view of the confrontation clause was articulated by the Supreme Court in the early case of Mattox v. United States:
6
To say that a criminal, after having once been convicted by the testimony of a certain witness, should go scot free simply because death has closed the mouth of that witness, would be carrying his constitutional protection to an unwarrantable extent. The law, in its wisdom, declares that the rights of the public shall not be wholly sacrificed in order that an incidental benefit may be preserved to the accused.
7
The substance of the constitutional protection is preserved to the prisoner in the advantage he has once had of seeing the witness face to face, and of subjecting him to the orderal of a cross-examination. This, the law says, he shall under no circumstances be deprived of * * *.2
8
The appellant urges that the confrontation clause was not satisfied in the case sub judice for two reasons: (1) the witness, Adderley, was not 'unavailable' and (2) the appellant was denied an adequate opportunity to cross-examine him. After careful consideration of the appellant's position, we conclude that, for the reasons discussed below, his contentions must fail and that the introduction of Adderley's prior testimony was not reversible error.
9
* In Barber v. Page, the Supreme Court held that a witness is not 'unavailable' for the purpose of introducing his prior testimony unless 'the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.'3 The Court determined that the absent witness in Barber was not 'unavailable' because the state authorities had made no attempt to have the witness, who was then imprisoned in another state, present at the trial. The Court recognized that success in obtaining the witness would depend upon the cooperation of a sister state, but noted that 'the possibility of a refusal is not the equivalent of asking and receiving a rebuff.'4
10
The record before us contains some indication that the prosecutor asked and was rebuffed; however, because of the position taken by defense counsel at the trial, we find it unnecessary to determine whether the record is sufficiently replete to establish the good-faith effort required by Barber.5
11
As the appellant's second trial was about to commence, the prosecutor addressed the court as follows:
12
We have made attempts to make arrangements with Mr. Adderley to be here and testify in this case. He is presently involved in a lengthy case in Nassau, so he will be unable to attend.
13
In view of that, I feel I can proffer evidence to the Court indicating our efforts to have him here and his inability to attend. * * *
14
Last week he indicated to me that he would be here if his case did not go to trial.
15
The prosecutor expressed a desire to proffer immediately the evidence of his attempt to have Adderley present and to obtain a pre-trial ruling on the admissibility of the testimony, indicating that if the ruling should be adverse to the Government, it would seek a continuance. However, the court refused either to hear the evidence or to make an evidentiary ruling at that time. The appellant offered no suggestion as to how the court should proceed nor made any objection to its determination to commence the trial.
16
Once the Government's case had proceeded to the point at which the prosecutor wished to introduce Adderley's prior testimony, he again offered to present evidence of his attempts to have Adderley present. The court reacted by asking defense counsel what his position was concerning the introduction of the prior testimony. Counsel responded that he did not take issue with the prosecutor's representation that he had attempted to produce Adderley. He objected to the use of the testimony, however, on the ground that the issues at the first and second trials were not the same and that, therefore, introduction of the testimony would deny the appellant an opportunity for full and complete cross-examination. After stating this ground of objection, defense counsel was engaged by the court in the following colloquy concerning Adderley's unavailability:
17
The Court: What is your position on that, Mr. Rosen? Mr. Rosen: As to his representation to the Court? The Court: Yes. Mr. Rosen: He is not available for subpoena, being a non-resident and not being in the country. The Court: You are resting on your proposition that to use his prior testimony is prejudicial to your client for the reasons you have pointed out? Mr. Rosen: Absolutely. The Court: You do not challenge the authenticity of the testimony as was prepared by the Reporter, nor the unavailability of the witness? Mr. Rosen: I do not, your Honor.
18
In view of this position taken by defense counsel, we hold that the appellant is precluded from complaining on appeal that the Government did not carry its burden of proving Adderley's unavailability.6 The Government appeared ready, willing, and even eager to proffer evidence of its attempt to have Adderley present. Defense counsel's statements, however, made it appear that such a proffer was unnecessary. Counsel admitted that the witness was not available for subpoena; he stated that he did not take issue with the prosecutor's representation that he had attempted to have Adderley present; and he indicated, finally, that he did not challenge the unavailability of the witness. In these circumstances, the trial court was justified in requiring nothing more from the Government to establish unavailability.7
II
19
Although appellant's trial counsel extensively cross-examined Adderley at the first trial, the appellant contends that he was afforded no opportunity to cross-examine Adderley on new matters in issue at the second trial. This contention arises from the fact that subsequent to the appellant's first trial, the indictment against him was dismissed and a new one returned which differed in part from the original.
20
It is generally stated that the issue on the occasion when the testimony is originally taken must be substantially the same as the issue on the occasion when the testimony is subsequently offered.8 This rule recognizes that if the opportunity to cross-examine at an original proceeding is to be a meaningful substitute for the opportunity to cross-examine in a subsequent trial, then the purpose for which the testimony was originally offered and the purpose for which it is offered at the subsequent proceeding must be so similar in nature that the incentive to cross-examine and the motive of the cross-examination are substantially the same at each proceeding. Accordingly, this court held in Peterson v. United States9 that testimony, originally offered against the defendants for the purpose of proving substantive violations of the internal revenue laws, was inadmissible when, upon retrial, a conspiracy count was added to the indictment and the prior testimony was offered for the purpose of proving the conspiracy.
21
Relying heavily upon Peterson, the appellant urges that the changes in the new indictment rendered hollow his opportunity to cross-examine Adderley. We cannot agree. Moreover, we see a significant factual distinction between Peterson and the case now before us. The new indictment in Peterson charged a completely new and different offense from the one charged in the original indictment. On the other hand, the new matter contained in the second indictment against the appellant was merely, for the most part, a more detailed description of the offense previously charged. The issues at both trials were substantially the same.
22
At each of the appellant's trials, the Government sought to prove a scheme devised and executed by the appellant to defraud the Mellon National Bank and Trust Company of Pittsburgh, Pennsylvania. Evidence was offered to show that the appellant promoted the incorporation of the American Security Bank and Trust Company, Limited, in Nassau, a company which used a Nassau address, but maintained no banking facilities there. Bank mail arriving in Nassau was redirected to the appellant in Miami, Florida. It was the Government's theory that the appellant deposited to his account at the Mellon National Bank and Trust Company in Pittsburgh a series of checks drawn by him on the American Security Bank and Trust Company knowing that, upon receipt of the checks by the Pittsburgh bank, his account there would be credited immediately for the amount of the checks and that the checks would then be mailed to the bank in Nassau for collection and that upon arriving in Nassau, they would be redirected to him in Miami. The appellant then executed personal checks drawn against his account at the bank in Pittsburgh and the checks were honored because of the credit created by the appellant's deposit of checks drawn by him on the nebulous institution in Nassau.
23
The gist of Adderley's testimony was that the appellant and another person employed him to incorporate in Nassau the American Security Bank and Trust Company. Adderley's testimony also revealed that his address in Nassau was Post Office Box 4, the same address used by the American Security Bank and Trust Company and that he redirected to the appellant in Miami the bank mail which came to that address.
24
The Government states in its brief that the purpose of Adderley's testimony at each trial was to establish the means by which bank mail was redirected from Nassau to Miami. We agree that, although the indictments differed somewhat, Adderley's testimony served the same purpose at both trials. The differences in the indictments were, as far as Adderley's testimony was concerned, insignificant.10 The second indictment described in a more detailed manner than the first the fraudulent scheme which the Government sought to prove; nevertheless, both indictments charged the same scheme. The new indictment charged that the fraudulent activity commenced in May 1965 instead of August 1965, as originally alleged, and, unlike the first indictment, the second named a specific mailing address used by the American Security Bank and Trust Company and in the allegation concerning the redirection of bank mail from Nassau to Miami added that the mail was redirected unopened. We are convinced that the minor changes found in the new indictment did not render the appellant's opportunity to cross-examine Adderley at the original proceedings inadequate as a meaningful substitute for the opportunity to cross-examine him at the second trial.
25
For the reasons we have stated, the judgment of conviction is affirmed.
1
Barber v. Page, 390 U.S. 719, 722, 88 S.Ct. 1318, 1320, 20 L.Ed.2d 255 (1968); See Mattox v. United States, 156 U.S. 237, 240-244, 15 S.Ct. 337, 39 L.Ed. 409 (1895); Peterson v. United States, 344 F.2d 419, 423-424 (5th Cir. 1965)
2
156 U.S. 237, 243-244, 15 S.Ct. 337, 340, 39 L.Ed. 409 (1895)
3
390 U.S. 719, 724-725, 88 S.Ct. 1318, 1322, 20 L.Ed.2d 255 (1968). The trial proceedings in the case now before us occurred prior to the Barber decision. However, the principles articulated in Barber have been given retroactive application. Berger v. California, 393 U.S. 314, 89 S.Ct. 540, 21 L.Ed.2d 508 (1969)
4
Barber v. Page, 390 U.S. 719, 724, 88 S.Ct. 1318, 1322, 20 L.Ed.2d 255 (1968)
5
The Preliminary Draft of Proposed Rules of Evidence for the United States District Courts and Magistrates, prepared by a committee of the Judicial Conference of the United States, defines 'unavailability' in part as follows:
(d) Unavailability. 'Unavailability as a witness' includes situations in which the declarant is:
(4) Absent from the hearing and beyond the jurisdiction of the court to compel appearance and the proponent of his statement has exercised reasonable diligence but has been unable to procure his attendance.
Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, Preliminary Draft of Proposed Rules of Evidence for the United States District Courts and Magistrates, at 160 (1969). It may well be that the record in the case sub judice satisfies this definition of unavailability.
6
The appellant does not assert, nor could he successfully, that the position taken by defense counsel on the matter of unavailability effected the waiver of a constitutional right. The appellant's constitutional right of confrontation was vigorously and ably asserted by counsel. Faced with statements by the prosecutor that he had attempted to have the absent witness present but failed because he was outside the jurisdiction and requests by the prosecutor that he be allowed to prove his statements defense counsel apparently made a tactical and procedural determination that a showing of unavailability was inevitable, if not already made, and that rather than pursue a lost cause he should press what he considered to be his stronger argument concerning cross-examination. See Henry v. Mississippi, 379 U.S. 443, 451, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965)
7
The District of Columbia Circuit reached a similar result in Coppedge v. United States, 114 U.S.App.D.C. 79, 311 F.2d 128, 132-133 (1962), rev'd on other grounds, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). There, defense counsel had stated to the trial court: 'I certainly accept Mr. Flannery's word. I have no doubt that the witness is unavailable.' The court held that this foreclosed a contention on appeal that the Government failed to establish the witness's unavailability
8
5 Wigmore, Evidence 1387, 1937 (3d ed. 1940); See Peterson v. United States, 344 F.2d 419, 423-424 (5th Cir. 1965); Christoffel v. United States, 91 U.S.App.D.C. 241, 200 F.2d 734, 741-742 (1952)
9
344 F.2d 419, 423-424 (5th Cir. 1965)
10
Among the differences in the indictments were two additional counts contained in the new indictment. These new counts each charged mailings by the appellant to the Mellon National Bank and Trust Company which had not been charged previously. The appellant was acquitted on each of these new counts. Consequently, any error which might have resulted from the addition of these counts was harmless
| {
"pile_set_name": "FreeLaw"
} |
529 F.2d 605
ANTILLES INDUSTRIES, INC., Appellee,v.GOVERNMENT OF the VIRGIN ISLANDS et al., Appellants.
Nos. 75--1176 and 75--1458.
United States Court of Appeals,Third Circuit.
Argued Dec. 1, 1975.Decided Jan. 27, 1976.
Verne A. Hodge, Atty. Gen. of the V. I., Donald M. Bouton, Asst. Atty. Gen. of the V.I., Charlotte, St. Thomas, V.I., for appellants.
Robert H. Ruskin, Thomas Alkon, Geoffrey W. Barnard, Isherwood, Colianni, Alkon & Barnard, Christiansted, St. Croix, V.I., for appellee.
Before ALDISERT, WEIS and GARTH, Circuit Judges.
OPINION OF THE COURT
WEIS, Circuit Judge.
1
The payment of taxes is one of the expected responsibilities of citizenship. In order to preserve a resigned, if not a cheerful, acceptance of that burden, policy dictates that any waiver of the obligation by statute be not extended beyond that expressly allowed. Accordingly, in this appeal, we construe the terms of tax exemption legislation to say no more than the wording requires. Since the enactment did not speak to a right of assignment, we find none existed and vacate the district court judgment which held otherwise.
2
In an effort to encourage new business activity in the territory, the Virgin Islands Legislature enacted the Industrial Incentive Act of 1957, Act 224, which offered tax exemptions and subsidies to qualified enterprises. The Delaware Watch Company was granted such an exemption on December 7, 1961, effective as of December 16, 1960 and valid for a period of ten years thereafter. As a result, the company was not required to pay excise or gross receipts taxes and it received non-taxable subsidies equal to 75% of the income taxes and 100% of the import duties which it paid into the Treasury of the Virgin Islands. Shortly afterward, Delaware encountered financial difficulties. In June, 1962, it informed the Governor that it was ceasing business, but hoped to resume operations at some time in the future. Although the company continued to file annual reports, it did not resume its manufacturing activities.
3
Plaintiff Antilles Industries, Inc., a wholly-owned subsidiary of General Time, Inc., began to manufacture watches on St. Croix in 1961. On November 6, 1963 it applied for a tax exemption but a decision on its request, as well as on those of eleven other watchmaking companies,1 was deferred. Fearing that an influx of timepieces to the United States would imperil import policies favorable to Island industry, the Governor applied a 'freeze' on further exemptions for watchmaking concerns.
4
Antilles then arranged to secure an assignment of Delaware's exemption. On March 26, 1965, pursuant to the Act of 1961, 33 V.I.C. § 4106,2 Antilles petitioned the Tax Incentive Board for a transfer of Delaware's certificate. On April 6, 1965, Delaware executed a 'general assignment and bill of sale' which purported to sell all of its 'business and properties (other than its cash)' to Antilles for a consideration of $28,700.00. Nothing in the record suggests whether Delaware had anything to transfer other than its certificate.3
5
On August 5, 1965, Antilles withdrew its request for transfer of the Delaware certificate, but on September 27, 1968, resubmitted its petition.4 On May 7, 1969, the Board held a hearing to determine if the Delaware certificate should be revoked. The record does not reveal whether such an order was in fact issued. On July 22, 1970, the Board wrote to the Governor stating that there was 'no outstanding or active business (of Delaware) on which to predicate a transfer notwithstanding the eligibility of the applicant (Antilles).' The Governor agreed with the Board and denied Antilles' application.
6
Plaintiff then filed suit in the district court. Following the submission of an agreed statement of facts, the district court decided that (1) the exemptions were assignable; (2) Antilles was the lawful assignee of Delaware's exemption as of April 6, 1965; and (3) it was entitled to a refund of taxes paid thereafter. In a subsequent proceeding, the court entered a judgment fixing the amount of the refunds at $2,232,286.38 plus interest and awarding counsel fees.
7
The issue on appeal is simply whether an exemption granted under the 1957 Act is assignable. The district court, recognizing that the statute was silent on that point, held that such exemptions were transferable. It reasoned that since under the Act an exemption was 'in the nature of a contract,' traditional contract principles permitting assignment should govern. We disagree with that analysis because it did not utilize the proper standards for interpreting tax exemption legislation.
8
'In the interpretation of statutes, the function of the court is easily stated. It is to construe the language so as to give effect to the intent of (the legislative).' United States v. American Trucking Ass'ns, 310 U.S. 534, 542, 60 S.Ct. 1059, 1063, 84 L.Ed. 1345 (1940) (footnote omitted). On several occasions, we have stated the basic rule of construction which is to be applied in claims of tax exemption. In King Christian Enterprises, Inc. v. Government of the Virgin Islands, 345 F.2d 633 (3d Cir. 1965), Judge Maris wrote:
9
'It is a well settled rule that statutory exemptions from taxation, being a matter of grace, are to be strictly and narrowly construed.' (citations omitted) 345 F.2d at 637.
10
In Tracey Leigh Development Corp. v. Government of the Virgin Islands, 501 F.2d 439, 443 (3d Cir. 1974), Judge Adams repeated that language with approval, and added:
11
'This rule, when compounded with the precept that 'to supply (statutory) omissions transcends the judicial function,' makes the present case--a case involving a tax exemption--a particularly inappropriate occasion for judicial tampering with the clear language of a statute.' (footnote omitted).5
12
Viewed in the light of the correct rule of construction, therefore, the absence of any reference to assignability takes on particular significance in ascertaining the intent of the legislature. In the context of tax exemptions, silence implies not permission, but a denial of authorization. We do not find in the Act a legislative intention to include a right of transfer. Historically in the Virgin Islands, such permission has been articulated. For example, the predecessor legislation, Bill 293 (1954) of the Municipal Council of St. Thomas and St. John, provided at § 3(e):
13
'In the event of sale, transfer or assignment of any tax exempt or subsidized business or industry hereunder, the exemption or subsidy granted shall not be extended beyond the period originally authorized.'
14
By implication then, exemptions granted under that Act could be assigned--at least in connection with the transfer of the business to which it had been granted.
15
Act 798, 33 V.I.C. § 4106, the 1961 statute which succeeded Act 224, contained a provision for limited transferability after approval by a governmental board.
16
Thus, both before and after Act 224 transferability was expressed in statutory terms. The legislature has demonstrated that, when it chose to permit transferability, it knew how to do so. In these circumstances there is no principle of logic commanding the conclusion that, by absolute silence on the subject of transferability, the legislature meant to include it. Indeed the contrary conclusion is compelling, to-wit, that the legislature did not wish to provide transferability of Act 224 exemptions. See Vitex v. Government of the Virgin Islands, supra.
17
It may be argued that the Act of 1961, in allowing a qualified right of transfer, was meant to narrow a much wider privilege implied in the 1957 legislation. But it is far more consistent to adopt the contrary view and to regard the 1961 provisions as a step toward liberalizing the negative feature of the earlier enactment.
18
Antilles contends that, since the statute refers to an exemption as being 'in the nature of a contract' and generally contracts are assignable, therefore an exemption is transferable. We do not accept the proposition that a tax exemption is an ordinary contract, and, examined in context, the statutory language is not to the contrary.
19
The Act was intended to entice new business to the Islands with the promise of favorable tax treatment. To assure prospective entrepreneurs that there would be no change in the rules of the game after the initial investments, the legislature provided that:
20
'(e) In order that the encouragement tendered by this Act in the form of subsidies for the promotion of the business and industrial development of the Islands may be an incentive, having a real and unmistakably sure basis, the Government of the Virgin Islands hereby declares that it considers all orders granting subsidies and tax exemptions made available under the provisions of this Act as being in the nature of a contract or agreement between the Government of the Virgin Islands and the persons or corporations receiving the benefit of the subsidies or tax exemptions, and that it will not adopt any legislation which may impair or limit such subsidies or tax exemptions granted hereunder or which may defeat the purpose of this Act.' Act 224.
21
The statute thus establishes an arrangement which would not allow impairment of benefits once conferred to be diminished by legislative after-thought--a desirable protection for a prospective investor. But it does not follow that he is free to pass on to others what has been granted to him.
22
The personal nature of a tax exemption has been discussed by the Supreme Court in terms still appropriate today although the opinions were handed down many years ago. In Picard v. East Tennessee, Virginia & Georgia Railroad Co., 130 U.S. 637, 641, 9 S.Ct. 640, 642, 32 L.Ed. 1051 (1889), the Court said:
23
'Yielding to the doctrine that immunity from taxation may be granted, that point being already adjudged, it must be considered as a personal privilege not extending beyond the immediate grantee, unless otherwise so declared in expressed terms. The same considerations which call for clear and unambiguous language to justify the conclusion that immunity from taxation has been granted in any instance must require similar distinctness of expression before the immunity will be extended to others than the original grantee.'
24
Rochester Railway Co. v. City of Rochester, 205 U.S. 236, 247, 27 S.Ct. 469, 472, 51 L.Ed. 784 (1907), further explained:
25
'This court has frequently had occasion to decide whether an immunity from the exercise of governmental power which has been granted by contract to one, has by legislative authority been vested in or transferred to another, and in the decisions certain general principles, which control the determination of the case at bar, have been established. Although the obligations of such a contract are protected by the Federal Constitution from impairment by the State, the contract itself is not property which, as such, can be transferred by the owner to another, because, being personal to him with whom it was made, it is incapable of assignment. The person with whom the contract is made by the State may continue to enjoy its benefits unmolested as long as he chooses, but there his rights end, and he cannot by any form of conveyance, transmit the contract or its benefits, to a successor.' (citation omitted)
26
Later, the Court recited this language with approval in Morris Canal and Banking Co. v. Baird, 239 U.S. 126, 131, 36 S.Ct. 28, 60 L.Ed. 177 (1915). See also 173 A.L.R. § 118 (1948).
27
In substance then, the Supreme Court cases establish that a tax exemption is personal to the entity to which it was granted, and unless the legislation so provides, the privilege may not be assigned to another.6 That being so, the district court erred in applying the usual principles of contract law favoring assignability.
28
Because we have found no right of assignability under Act 224, we need not address the question of irregularities during the administrative proceedings concerning the transfer. The 1961 Act did not affect the exemptions granted under the 1957 legislation. Consequently, Antilles' petition for transfer and the Government's actions thereafter were nullities.
29
The judgment of the district court will be vacated, and we will enter judgment for the defendants.
1
Before that time, a total of 5 exemptions, including Delaware's, had been issued
2
The Act of November 3, 1961, No. 798, became effective on January 1, 1962. It repealed Act 224, but provided that no tax exemptions granted under that statute would be affected. However, there was to be no enlargement or expansion of the pre-existing exemptions
A continuing source of confusion throughout these proceedings was the failure of both Antilles and the Government to recognize that the Delaware exemption had been issued under the terms of the 1957 legislation, Act 224. The provision codified at 33 V.I.C. § 4106, which allowed transfer of an exemption by the Tax Incentive Board, was part of the 1961 Act and did not appear in the 1957 enactment. Consequently, the provision for transfer did not apply to the Delaware certificate. See Vitex Manufacturing Co. v. Government of Virgin Islands, 351 F.2d 313, 316 n. 4 (3d Cir. 1965).
3
The balance sheet of Delaware as of December, 1962 showed a merchandise inventory of $545.00. The only other assets listed were $364.00 cash in bank, loans receivable of $14,800.00, and an industry subsidy receivable of $1,878.24. A profit and loss statement for the same year included as other income the sale of fixed assets, $15,850.00. On the record in this case it is difficult to escape the conclusion that in fact nothing other than the exemption certificate was sold to Antilles in 1965
4
In a letter requesting resubmission, Antilles stated that one of the considerations for the withdrawal of its petition in August, 1965 was the decision of the district court of the Virgin Islands in Virgo Corporation v. Paiewonsky, 251 F.Supp. 279 (D.V.I.1966). Had the holding in that case remained in effect, Antilles would have been entitled to the exemption in its own right (under its 1963 request). The judgment in Virgo, however, was reversed by this court in the following year, 384 F.2d 569 (3d Cir. 1967)
Since the opinion of the district court in the Virgo case was dated March 14, 1966, it appears likely that the filing of the suit rather than that decision, furnished the impetus for Antilles' action in August, 1965.
5
Our opinion in Vitex Manufacturing Co. v. Government of the Virgin Islands, supra, is distinguishable. While there the language in the exemption legislation was construed against the drafter in accordance with the contractual rule, the statute contained verbiage which was pertinent. Here, there is a total lack of any wording in the statute on the crucial issue and, hence, no language to construe
6
The district court in indicating that '(t)he general law of assignments' required 'that in the absence of language prohibiting assignments, claims against the Government are freely assignable' relied upon Webster v. Luther, 163 U.S. 331, 341, 16 S.Ct. 963, 41 L.Ed. 179 (1896). That case involved the pre-entry assignment of lands granted to a Civil War veteran's widow under a special homestead act. The unique nature of a tax exemption distinguishes the case at bar and we find the district court's reliance on Webster was misplaced
| {
"pile_set_name": "FreeLaw"
} |
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-7033
JERRY GLENDON MODISETTE,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Liam O’Grady, District Judge. (1:18-cv-00533-LO-MSN)
Submitted: November 29, 2018 Decided: December 4, 2018
Before DUNCAN and KEENAN, Circuit Judges, and TRAXLER, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Jerry Glendon Modisette, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jerry Glendon Modisette appeals the district court’s order dismissing his civil
rights action without prejudice for failure to comply with the court’s prior order. We
have reviewed the record and find no reversible error. Accordingly, we affirm for the
reasons stated by the district court. Modisette v. United States, No. 1:18-cv-00533-LO-
MSN (E.D. Va. Aug. 7, 2018). We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before this court and argument
would not aid the decisional process.
AFFIRMED
2
| {
"pile_set_name": "FreeLaw"
} |
172 P.3d 764 (2007)
ALASKA TRADEMARK SHELLFISH, LLC, Appellant,
v.
STATE of Alaska, DEPARTMENT OF FISH AND GAME; Commissioner Frank Rue; Doug Mecum; Scott Marshall; and John Does 1-10, Appellees.
No. S-12120.
Supreme Court of Alaska.
November 23, 2007.
*765 Bruce B. Weyhrauch, Law Office of Bruce B. Weyhrauch, LLC, Juneau, for Appellant.
Joanne M. Grace, Assistant Attorney General, Anchorage, and David W. Márquez, Attorney General, Juneau, for Appellees.
Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
OPINION
EASTAUGH, Justice.
I. INTRODUCTION
Alaska Trademark Shellfish, LLC (ATS), applied to the State of Alaska for aquatic farming permits with concomitant rights to harvest wild geoducks. After the State of Alaska denied ATS's application, ATS claimed that because the state had promised ATS that it could harvest wild geoducks, the state was obligated to reimburse ATS for its expenses in seeking the permits. The superior court rejected this claim because it concluded that the state defendants were entitled to immunity. Because we conclude that no evidence would permit an inference that the state actually promised ATS that it could harvest wild geoducks, we affirm.
II. FACTS AND PROCEEDINGS
Alaska Trademark Shellfish applied for state permits early in 1999 to allow it to engage in geoduck farming.[1] ATS assertedly believed that these permits would allow it to harvest wild geoducks located on its farm sites; it therefore investigated farm sites with large stocks of wild geoducks. When the Alaska Department of Fish and Game (ADF & G) had not acted on ATS's permit applications by February 2000, ATS sued the state and requested an injunction, damages, and declaratory relief. ADF & G thereafter denied ATS's permit applications because ATS refused to agree not to harvest wild geoducks. ATS appealed the denial to the superior court, asking the court to order ADF & G to issue the permits and to rule that the permits allowed ATS to harvest wild geoducks. The superior court upheld ADF & G's decision to deny the permits, reasoning that the Alaska Constitution barred ADF & G from granting aquatic farmers the exclusive right to harvest wild geoducks. ATS appealed to this court; we affirmed on the alternative ground that ADF & G lacked the statutory authority to grant aquatic farmers the exclusive right to harvest wild stocks.[2]
*766 After we decided the permit appeal, ATS returned to the superior court and argued at a status hearing that it had a viable claim to recover the money it spent in reliance on ADF & G's alleged promises that ATS could harvest wild geoducks. The state defendants moved for declaratory judgment, contending that ATS's claim was not viable because ATS failed to adequately plead and preserve the claim, and because ADF & G and its officials were immune from suit. The superior court entered a declaratory judgment for the state defendants; it held that ADF & G and its officials were immune from suit under AS 09.50.250 and the doctrine of official immunity.
ATS appeals.[3]
III. STANDARD OF REVIEW
Although ATS's appeal challenges a declaratory judgment, because the declaratory judgment was in effect a complete summary judgment, we will apply the summary judgment standard of review.[4] We review a grant of summary judgment de novo.[5] Summary judgment is proper if there is no genuine factual dispute and the moving party is entitled to judgment as a matter of law.[6] We can also affirm a grant of summary judgment on alternative grounds, based on "any matter appearing in the record."[7]
IV. DISCUSSION
ATS raises four issues on appeal. First, it argues that it adequately pleaded and preserved its damages claim. Second, it argues that it presented sufficient evidence to support an estoppel claim. We treat this as a claim for promissory estoppel.[8] Third, it claims that the court erred in applying the doctrines of sovereign and official immunity. Fourth, it requests that we reverse the superior court's award of attorney's fees to the state.
For the purpose of this appeal, we assume but do not decide that ATS adequately pleaded and preserved its damages claim. Because we conclude that the record contains no evidence permitting an inference that the state actually promised ATS that it could harvest the wild geoducks, complete summary judgment in favor of the state defendants was proper. We therefore do not need to address the issues of sovereign immunity and official immunity.
A. ATS Cannot Prove Promissory Estoppel Because There Was No "Actual Promise."
Four elements are necessary to prove a claim of promissory estoppel: (1) an "actual promise" that induces the action or forbearance; (2) the action or forbearance was actually foreseen or reasonably foreseeable; (3) the action or forbearance amounted to a substantial change of position; and (4) enforcement of the promise is necessary in the interest of justice.[9] If there is no "actual *767 promise" that induces the action or forbearance, there can be no promissory estoppel.[10] As the state argues, the actual promise must be "definitive," must be "very clear," and must use "precise language."[11] An actual promise is "analytically identical" to the acceptance of an offer in contract law.[12] This means that an actual promise must manifest an unequivocal intent to be bound.[13]
ATS argues that ADF & G made an actual promise that ATS "could harvest and sell standing stocks of geoducks" located on its aquatic farm sites. ATS identifies three statements that it considers "unequivocal promises" to that effect. The state responds that although some rights to wild stock passed with stock acquisition permits (which are issued separately from aquatic farming permits), "those permits limited the farmers' use of the stock to providing brood or seed stock, or for growing out stock with controlled, enhanced cultivation."[14]
We will examine in turn the three statements identified by ATS.
The first statement was made by ADF & G's mariculture coordinator and was disseminated at an aquatic farming convention in 1996. It reads:
[A stock acquisition permit] authorizes you to acquire the target species you want to farm and transfers the ownership to you. The plant or animal acquired becomes private property at that point. It is the document that takes the resource out of the public domain and becomes yours to culture and sell.
ATS interprets this statement as a promise that a farmer may either culture or sell wild geoducks. The state has two responses. First, it argues that this statement merely explains what rights will pass with a stock acquisition permit, and asserts that it is not a promise that farmers may obtain such permits for the purpose of "harvesting and selling wild stocks for profit without cultivation." (Emphasis in original.) Second, it emphasizes that a farmer who obtains a stock acquisition permit can only use wild stocks "for the purposes allowed under the terms of the permit."
We agree with the state. As we previously observed in Alaska Trademark Shellfish, LLC v. State (ATS I), "[p]ertinent statutes do not authorize a farmer to use standing, wild stocks of geoducks for harvest and sale without having first `propagated, farmed, or cultivated' the wild geoducks."[15] Because ADF & G's first disputed statement does not promise farmers that they can acquire stock acquisition permits for the purpose of commercial harvest, and because farmers were required to "culture and sell" wild stocks if they obtained such a permit, this statement is not a promise that farmers could harvest wild geoducks for commercial purposes even if they successfully acquired a stock acquisition permit.
The second disputed statement comes from a 1999 letter from ADF & G's commissioner to shellfish growers: "The department believes that property rights to `standing stocks' pass to the permittee with the lease, operations permit[,] and stock acquisition permit." ATS does not analyze this statement in much detail, saying only that it was a reiteration of the first statement. The state argues that "[t]his letter merely states that if and when all of the necessary permits are in place, the standing stocks belong to the permittee. The commissioner did not assert, much less promise, that a stock acquisition permit would allow an applicant to acquire wild stocks for direct harvest and sale."
*768 We are again convinced by the state's argument. The commissioner's letter does not state that an aquatic farmer is entitled to a stock acquisition permit if he or she wishes to harvest standing wild stocks; it merely states that undefined "property rights" to the stocks pass to the farmer once he or she obtains the necessary permits. The limits on those property rights have already been discussed above.
The third disputed statement is contained in a 1999 ADF & G internal email that states: "Simply put, the standing stock (pre-existing wild stock) on a leased and permitted aquatic farm site becomes the property of the aquatic farm site operator, to be disposed of in any legal manner." As the state argues, this statement could not be interpreted by a reasonable fact finder to be a promise made to ATS because the statement was contained in an ADF & G internal email sent in September 1999, months after ATS had filed its permit applications. An actual promise must be made to the promisee, and it must be made before the promisee either acts or suspends action.[16]
Promissory estoppel "enable[s] the courts to enforce contract-like promises made unenforceable by technical defects or defenses."[17] Because there is no evidence that would allow a reasonable fact finder to infer that ADF & G promised ATS that geoduck farmers could obtain permits for the purposes of harvesting standing wild stocks, we conclude as a matter of law that ATS has no cause of action for promissory estoppel. The state was therefore entitled to complete summary judgment on the alternative ground that ADF & G never promised ATS the right to harvest wild geoducks on its farm sites.[18]
Further, given the nature of the ADF & G statements and the common property clauses in the Alaska Constitution, no reliance on the statements would be reasonable.[19]
V. CONCLUSION
We therefore AFFIRM the judgment on the alternative ground that ADF & G never made an actual promise to ATS.
NOTES
[1] The geoduck is "an unusually large, slow-growing species of clam that commands high market prices." Alaska Trademark Shellfish, LLC v. State (ATS I), 91 P.3d 953, 954 (Alaska 2004).
[2] Id. (holding that ADF & G lacks statutory authority to grant aquatic farmers exclusive rights to harvest wild geoducks on their farm sites).
[3] The appellees are the State of Alaska, ADF & G, and various state employees and officials. We refer to them collectively as the state, ADF & G, or the state defendants.
[4] Cf. Greater Anchorage Area Borough v. City of Anchorage, 504 P.2d 1027, 1030-31 (Alaska 1972) (holding that judgment can be final although superior court does not call it final judgment).
[5] McCormick v. Reliance Ins. Co., 46 P.3d 1009, 1011 (Alaska 2002).
[6] Id.
[7] Ransom v. Haner, 362 P.2d 282, 285 (Alaska 1961) (observing that appellate court can consider any matter appearing in record to affirm lower court's decree).
[8] Although ATS argues in its opening brief that it was entitled to "equitable estoppel," the state correctly contends in its appellee's brief that ATS is actually seeking promissory estoppel. As we have previously held, the "primary difference between promissory and equitable estoppels is that the former is offensive, and can be used for affirmative enforcement of a promise, whereas the latter is defensive, and can be used only for preventing the opposing party from raising a particular claim or defense." Simpson v. Murkowski, 129 P.3d 435, 440 n. 18 (Alaska 2006) (quoting Mortvedt v. State, Dep't of Natural Res., 858 P.2d 1140, 1143 n. 7 (Alaska 1993) (citation omitted)).
[9] Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1284 (Alaska 1985) (applying RESTATEMENT (SECOND) OF CONTRACTS § 90 (1979); State v. First Nat'l Bank, 629 P.2d 78, 81 (Alaska 1981); 1A ARTHUR L. CORBIN, CORBIN ON CONTRACTS § 200, at 215-21 (1963)).
[10] First Nat'l Bank, 629 P.2d at 81.
[11] Simpson v. Murkowski, 129 P.3d 435, 442-43 (Alaska 2006) (holding that governor's letter proposing phased elimination of longevity bonuses was not actual promise because it was not "sufficiently definite").
[12] Brady v. State, 965 P.2d 1, 6, 11 (Alaska 1998) (holding that state did not promise to sell timber even though state official said "we will begin preparation of a sale in the area requested upon receipt of the presale deposit").
[13] Id. at 10.
[14] See AS 16.40.120 (2004) (governing aquatic stock acquisition permits); AS 16.40.100 (2004) (governing aquatic farming permits).
[15] Alaska Trademark Shellfish, LLC v. State (ATS I), 91 P.3d 953, 955 (Alaska 2004).
[16] See Zeman, 699 P.2d at 1284 (applying RESTATEMENT (SECOND) OF CONTRACTS § 90 (1979); First Nat'l Bank, 629 P.2d at 81; 1A ARTHUR L. CORBIN, CORBIN ON CONTRACTS § 200, at 215-21 (1963)). Because the Restatement uses the language "promisor" and "promisee," the promise must be made to the person who subsequently acts or suspends action, unless the Restatement's third-party analysis applies. Because the promise must induce the action or forbearance, it must precede the action or forbearance.
[17] Brady, 965 P.2d at 10.
[18] Because ATS has failed to state a claim for promissory estoppel, we do not need to consider whether the state and its employees are immune from suit. ATS also argues that the superior court's award of attorney's fees against ATS must be overturned because on remand ADF & G will no longer be the prevailing party. Our rejection of ATS's liability claim disposes of this argument.
[19] Alaska Const. art. VIII, § 1.
| {
"pile_set_name": "FreeLaw"
} |
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-10-150-CV
IN RE GERALD ANTHONY W RIGHT RELATOR
------------
ORIGINAL PROCEEDING
------------
MEMORANDUM OPINION 1
------------
The court has considered relator’s petition for writ of mandamus and is of the
opinion that relief should be denied. This court does not have jurisdiction to issue
a writ of mandamus against either of the respondents except to protect our own
jurisdiction. See Tex. Gov’t Code Ann. § 22.221(b) (Vernon 2004); In re Dunn, 120
S.W .3d 913, 913 (Tex. App.—Texarkana 2003, orig. proceeding); see also In re
Stickhausen, 994 S.W .2d 936, 936 (Tex. App.—Houston [1st Dist.] 1999, orig.
proceeding). This court’s jurisdiction is not at issue in this case. Accordingly,
relator’s petition for writ of mandamus is denied.
1
See Tex. R. App. P. 47.4.
PER CURIAM
PANEL: GARDNER and MCCOY, JJ.
DELIVERED: May 20, 2010
2
| {
"pile_set_name": "FreeLaw"
} |
ACCEPTED
03-14-00683-CR
3834665
THIRD COURT OF APPEALS
AUSTIN, TEXAS
1/20/2015 4:51:08 PM
JEFFREY D. KYLE
CLERK
IN THE
COURT OF APPEALS
OF TEXAS
FILED IN
THIRD SUPREME JUDICIAL DISTRICT 3rd COURT OF APPEALS
AUSTIN, TEXAS
1/20/2015 4:51:08 PM
EX PARTE X JEFFREY D. KYLE
TAMMY MARIE YBARRA X Clerk
Appellant X No. 3-14-00683-CR
X 3-14-00684-CR
VS. X 3-14-00685-CR
X 3-14-00686-CR
THE STATE OF TEXAS, X 3-14-00687-CR
Appellee X
MOTION TO DISMISS FOR MOOTNESS
TO THE HONORABLE COURT OF APPEALS:
COMES NOW the State of Texas, by and through the Criminal District Attorney of
Caldwell County, Texas, and files this Motion to Dismiss for Mootness, and with respect thereto
would show unto the Court the following:
I.
Appellant, Tammy Marie Ybarra, was sentenced to serve time in the Caldwell County
Jail in multiple causes. Through counsel retained after her sentencing, Appellant objected to the
trial judge’s order that she remain in jail until her fines and court costs were discharged in full.
The trial judge declined to rule on this motion and Appellant appealed to this Court, alleging for
the first time that her prior motion was an application for a writ of habeas corpus. This Court has
ordered briefing on the issue of whether the trial judge erred in declining to rule on Appellant’s
motion and not issuing a writ of habeas corpus.
II.
This case is moot because Appellant was unconditionally released from custody on
December 23, 2014. See Attachment A. The Texas habeas corpus statute extends relief to
individuals that are in custody or under restraint. See TEX. CRIM. PROC. CODE art. 11.01 (West
2014). A criminal case is moot if it is shown that there is no possibility that any collateral legal
consequences will be imposed on the basis of the challenged conviction. Ex parte Ormsby, 676
S.W.2d 130, 131 (Tex. Crim. App. 1984).
III.
Here, Appellant has not challenged her underlying convictions. She has only challenged
the trial judge’s order that she remain in jail until all fines and costs have been discharged in full.
Appellant was discharged from jail on December 23, 2014, and therefore has already received
the relief sought from this Court. Furthermore, there is no possibility that collateral legal
consequences will be imposed on the sole basis of her continued confinement for fines and costs.
As a result, this case is moot and should be dismissed.
WHEREFORE, PREMISES CONSIDERED, the State prays that this Motion to Dismiss
be in all things heard and granted and that the Court dismiss this cause as moot.
Respectfully submitted,
FRED H. WEBER
CRIMINAL DISTRICT ATTORNEY
CALDWELL COUNTY, TEXAS
P. O. BOX 869
LOCKHART, TEXAS 78644
(512) 398-1811
FAX (512) 398-1814
By: /s/ Benjamin A. Gillis
BENJAMIN A. GILLIS
ASST. DISTRICT ATTORNEY
STATE BAR NO. 24081437
[email protected]
CERTIFICATE OF SERVICE
A true and correct copy of the foregoing Motion was mailed by electronic mail
transmission to Richard Banks, Attorney for the Appellant, at [email protected], on this the
20th day of January, 2015. Mr. Banks indicated to the undersigned Assistant District Attorney
that email is his preferred method of receiving documents filed with the Court.
By: /s/ Benjamin A. Gillis
BENJAMIN A. GILLIS
ASST. DISTRICT ATTORNEY
Caldwell Counl;y Sheriff's Office PAGE: I
Prison Jail Record
Printed : 1/20/2015
SID Number: 04257724 BAG:
wcso 00043429 CELL: W8
DL#: 14698379 State: TX
Name: YBARRA, TAMMY MARIE AKA
Date/Time: May24201410:15PM
Booking Officer
DOB: 1:1126/1970 Age: 43 Race: WHITE Sex: F Height 5.5 Weight: 140.0
Eyes: BROWN Hair: BROWN SSN XXX-XX-XXXX
Street Address : 214HICKORY ST
City : LULING State: TX Zip: 78648 Phone (830) 875-6400
Marital Status: MARRIED POB TEXAS Employer: UMEMPLOYED
Emergency Notification STATON, CATHY Phone (830) 875-6400
Address: 500 S HACKBERRY APT ll
Scars or Tattoos: TAT NECK; TAT CHEST; TAT L LEG; TAT R LEG; TATLARM; TAT R ARM
Place of Arrest : 2700 WEST PIERCE STREET LULING TEXAS
Arresting Officer I Agency : !NICKELL Transporting Officer I Agency
Searched By :
Warrant Number: 44176 County I Location <None>
Offense: EVADING ARREST DETENTION
Bond Amount 0.00 Magistrate: JDCOGGINS
Dispostion SENTENCED Disposition Date: 07/0&'2014
Warrant Number: County I Location
Offense: PUBLIC INTOXICATION W/3 PRIOR CONVICTIONS
Bond Amount 500.00 Magistrate: JDCOGGINS
Dispostion PENDING Disposition Date: NIA
Warrant Number: 42930 County I Location CALDWELL CO SO LOCKHART
Offense: MRP-CRIMINAL TRESPASS HABITiSUPERI'UNDnNFRASTRUCTION
Bond Amount 0.00 Magistrate: JDCOGGINS
Dispostion SENTENCED Disposition Date: 06/2512014
Warrant Number: 42741 County I Location CALDWELL CO SO LOCKHART
Offense: MRP-CRIMINAL TRESPASS
Bond Amount 0.00 Magistrate: JDCOGGINS
Dispostion SENTENCED Disposition Date: 06/25120I4
Warrant Number : 43238 County I Location CALDWELL CO SO LOCKHART
Offense: DRIVING WHILE INTOXICATED
Bond Amount 0.00 Magistrate: JDCOGGINS
Dispostion SENTENCED Disposition Date: 06/2512014
War(l!llt Number: 43890CT 1-4 County I Location <None>
Offense: POSS DANGEROUS DRUG
Bond Amount 0.00 Magistrate:
Dispostion SENTENCED Disposition Date: 06/2512014
Warrant Number: 44176 County I Location , <None>.
Ofiense: EVADING ARREST DETENTION
Bond Amount 0.00 Magistrate:
Dispostion SENTENCED Disposition Date: 07/0812014
VEHICLE NO HOLD PLACED:
WHERE
COlOR: YEAR 0 MAKE MODEL
LIC#: STATE: TX
HOW TIME SERVED/PO FINES
SERVED Yrs: 0 Dys: 0 Hrs: 0 RELEASING JULIAN RAMIREZ
RELEASED DATE/TIME: Dee 23 2014 9:02PM
RELEASE INFORMATION: SERVED REMAINDER OF TIME AND PAID FINES IN THE AMOUNT OF $432.92
PRISONER SIGNATURE IN:
PRISONER SIGNATURE OUT: - - - - - - - - - - - - - - - - -
INMATES INMATES BONDSMAN:
INMATES RELEASED PAID FINESffiME SERVED AGENCY
DATE/TIMEOFRELEASE: Dcc232014 9:02PM
| {
"pile_set_name": "FreeLaw"
} |
978 F.2d 150
BRENDLE'S STORES, INCORPORATED; Brendle's Incorporated,Plaintiffs-Appellants,v.OTR, an Ohio General Partnership Acting on Behalf of theBOARD OF TRUSTEES OF the STATE TEACHERS RETIREMENTSYSTEM OF OHIO; TG & Y Stores Company,Defendants-Appellees,v.NALLEY CONSTRUCTION COMPANY, INCORPORATED; Easley LumberCompany, Third Party Defendants-Appellees,andJoe W. Hiller, Third Party Defendant.BRENDLE'S STORES, INCORPORATED; Brendle's Incorporated,Plaintiffs-Appellees,v.OTR, an Ohio General Partnership Acting on Behalf of theBOARD OF TRUSTEES OF the STATE TEACHERS RETIREMENTSYSTEM OF OHIO, Defendant-Appellant,andTG & Y Stores Company, Defendant,v.NALLEY CONSTRUCTION COMPANY, INCORPORATED; Easley LumberCompany; Joe W. Hiller, Third Party Defendants.
Nos. 90-1848, 90-1855.
United States Court of Appeals,Fourth Circuit.
Argued April 8, 1991.Decided Oct. 26, 1992.
Orville Gibert Calhoun, Haynsworth, Marion, McKay & Guerard, Greenville, S.C., argued (Donald A. Harper, Amy M. Snyder, Haynsworth, Marion, McKay & Guerard, on the brief), for plaintiffs-appellants.
David W. Robinson, II, Robinson, McFadden & Moore, P.C., Columbia, S.C., argued (J. Kershaw Spong, Robinson, McFadden & Moore, P.C., on the brief), for appellee OTR.
Theron Garnett Cochran, Love, Thornton, Arnold & Thomason, Greenville, S.C., argued (Raymond A. Tate, Jr., Doyle & O'Rourke, Anderson, S.C., on the brief), for appellee Nalley.
Charles E. Carpenter, Jr., Franklin J. Smith, Jr., Deborah L. Harrison, Richardson, Plowden, Grier & Howser, Columbia, S.C., for appellee TG & Y.
Before RUSSELL and WIDENER, Circuit Judges, and WILLIAMS, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.
OPINION
PER CURIAM:
1
Brendle's Stores, Inc. and Brendle's Incorporated (hereinafter jointly called "Brendle's") appeal from the district court's orders granting summary judgment for all defendants, including the third party defendants, and awarding damages to defendants OTR1 and TG & Y Stores Company ("TG & Y"), and attorneys' fees to OTR. We find that the district court correctly decided all issues with the exception of the award of attorneys' fees. Accordingly, we affirm on all issues except the award of attorneys' fees.
2
In 1980, OTR entered into an arrangement with TG & Y whereby TG & Y would acquire store sites, arrange construction of stores, and then sell the stores to OTR for the cost of acquiring and building the facilities. OTR would then lease the stores back to TG & Y. Each lease provided that the tenant was responsible for paying all property expenses and stated that the lease generally would not terminate regardless of the condition of the premises. TG & Y could assign the lease without notice to OTR. One of the stores covered by this arrangement was located in Greenwood, South Carolina. TG & Y arranged for Nalley Construction Company ("Nalley") and its sister company, Easley Lumber Company ("Easley"), to build the store. After OTR leased this store to TG & Y, Nalley enlarged the shopping center and added stores adjoining the eastern wall ("east wall" or "party wall") of OTR's store. Nalley and OTR entered a Party Wall Agreement in 1982 which defined each party's ownership rights and future obligations concerning the east wall.
3
In 1986 TG & Y closed the Greenwood store and assigned all rights and obligations under the lease to Brendle's. In addition to the lease assignment, Brendle's and TG & Y entered into a Consideration Agreement under which Brendle's agreed to make yearly payments to TG & Y above the rent payments due to OTR.
4
Although no one had previously observed any problems with the east wall, in December 1988 employees of Brendle's noticed that pieces of cinder block were falling from the top of the wall. Brendle's immediately notified OTR verbally and in writing. An engineer retained by Brendle's found evidence of joist bearing failure and crumbling cinder blocks along the top of the wall at points where the roof joists were supported. Then on December 23, 1988, Brendle's notified OTR that unless OTR repaired the wall, it would vacate the store on January 10, 1989. Nalley began repair work on January 10, 1989, which it completed on January 16, 1989. However, Brendle's had vacated the premises on January 10, 1989. Brendle's stopped making rental payments after January 1989 and had stopped making the supplementary payments to TG & Y under the Consideration Agreement in 1988.
5
On January 31, 1989, Brendle's sued OTR and TG & Y to recover damages allegedly incurred due to the structurally defective wall. TG & Y and OTR counterclaimed against Brendle's and filed third party complaints against Nalley and Easley. In addition, OTR cross claimed against TG & Y.2 Brendle's then brought third party claims against Nalley and Easley. OTR, TG & Y, Nalley, and Easley all moved for summary judgment on the claims Brendle's asserted against them. The district court granted the motions and then held a jury trial to determine the amounts Brendle's owed to OTR and TG & Y under the lease and Consideration Agreement. The court directed verdicts for both defendants, awarding OTR $272,497.13 and TG & Y $106,530.00. Pursuant to post-trial motions filed by OTR and TG & Y, the district court awarded OTR and TG & Y prejudgment interest and costs and awarded OTR attorneys' fees. Following its unsuccessful motion for judgment notwithstanding the verdict, Brendle's timely appealed.
A. OTR's Lease Obligations
6
In the district court, Brendle's alleged that OTR breached the lease by failing to repair the east wall. On appeal, Brendle's asserts that the district court erroneously found that Brendle's was responsible for repairing the east wall. The central finding made by the district court, however, was that OTR was under no express or implied obligation to repair the wall. Whether Brendle's had a duty to repair the wall is irrelevant to the issue of OTR's lease obligations. If OTR had no contractual duty to repair the wall, then Brendle's has no claim against OTR for breach of the lease.
7
As TG & Y's assignee under the lease between OTR and TG & Y, Brendle's acquired only those rights and obligations afforded to TG & Y under the lease. See W.M. Kirkland, Inc. v. Providence Washington Ins. Co., 264 S.C. 573, 216 S.E.2d 518, 521 (1975) (assignee has no higher rights than assignor and subrogee has no higher rights than subrogor). There are no express provisions in the lease obligating the lessor to repair the property. The only provisions concerning repairs address the lessee's obligations.
8
Absent an express agreement, a landlord in South Carolina has no obligation to maintain commercial leased property in good repair because South Carolina law does not recognize an implied warranty of fitness or habitability in a commercial lease. Edwards, Inc. v. Arlen Realty & Dev. Corp., 466 F.Supp. 505, 509 (D.S.C.1978). As the district court noted, the original lessee, TG & Y, actually handled the construction of the store and then conveyed it to OTR with a warranty that the building was built "in a good workmanlike manner and such improvements meet all existing applicable codes and ordinances." Thus, no warranties from the landlord concerning the fitness of the building could be implied in this situation because the landlord would be guaranteeing the building's fitness to the party responsible for constructing the building or that party's assignee. Because OTR neither expressly nor implicitly agreed to maintain and repair the Greenwood store, it owed no such duty to Brendle's, and the district court properly granted OTR's motion for summary judgment.
9
B. Effect of the Party Wall Agreement on the Lease
10
Brendle's complaint alleged that the Party Wall Agreement contained express warranties for the benefit of the building occupant and that OTR and Nalley breached those warranties due to the structural defects in the east wall. It also claimed that the Party Wall Agreement amended the lease, releasing the tenant or the tenant's assignee from any obligations to maintain or repair the wall. Finally, Brendle's argued that by executing the Party Wall Agreement, OTR was retaining control over the east wall and was obligated to maintain and repair it. The district court rejected all these arguments.
11
On appeal, Brendle's claims that there is an issue of fact precluding summary judgment because neither TG & Y nor Brendle's was a party to the Party Wall Agreement. Therefore, Brendle's argues, the Agreement is in "derogation" of the lease between OTR and TG & Y and may have released the tenant from responsibility for maintaining the east wall. The fact that TG & Y and Brendle's did not sign the Party Wall Agreement does not mean that the Agreement was in "derogation" of the lease. "Derogation" is defined as "[t]he partial repeal or abolishing of a law, as by a subsequent act which limits its scope or impairs its utility and force." Blacks Law Dictionary 444 (6th ed. 1990). The Party Wall Agreement did not partially repeal or abolish the lease. Under paragraph two of the lease, the landlord gave the tenant exclusive control over the Greenwood store. When Nalley expanded the shopping center and converted the east wall into a party wall, TG & Y not only did not object, but actually drafted the Party Wall Agreement for OTR and Nalley. Thus, TG & Y waived its right to exclusive possession of the east wall. Because Brendle's received only those rights to which TG & Y was entitled when the lease was assigned, Brendle's never had the right to exclusive possession of the east wall. However, the fact that Brendle's did not have exclusive possession of the wall did not affect its obligation to maintain the wall.
12
Through the Party Wall Agreement, OTR and Nalley, the wall's owners, divided between themselves the responsibility for maintaining and repairing the wall. The Agreement did not reduce the lessee's obligations to OTR. Prior to the Party Wall Agreement, OTR could look to its lessee for maintenance of the east wall. After the Party Wall Agreement was executed, OTR still could look to its lessee for repair and maintenance, but also could require Nalley to contribute to repair and maintenance. Nalley's promise to OTR did not reduce Brendle's obligation because Brendle's was not a party to the agreement.
C. Constructive Eviction
13
Brendle's contends that OTR's failure to repair the east wall resulted in Brendle's constructive eviction from the Greenwood store. Two elements are necessary to establish a cause of action for constructive eviction: (1) the tenant must be deprived of possession by the landlord's intentional act or omission or that act or omission must interfere substantially with the tenant's use or enjoyment of the leased property; and (2) the tenant must abandon the premises as a result of the landlord's act or omission. Pleasantburg Warehouse Co. v. Global Distrib., Inc., 287 S.C. 422, 339 S.E.2d 135, 136 (Ct.App.1985) (citing Thomas v. Hancock, 271 S.C. 273, 246 S.E.2d 604 (1978)). As discussed above, OTR owed no duty to Brendle's to repair the east wall. Therefore there was no act or omission by OTR which deprived Brendle's of possession of the Greenwood store or substantially interfered with Brendle's use or enjoyment of the store. Brendle's abandonment of the premises was not caused by any act or omission by OTR. Because Brendle's failed to establish the necessary elements for a constructive eviction, the district court properly granted OTR summary judgment.
D. Alleged Breach of Assignment Agreement
14
Paragraph four of the Assignment Agreement between TG & Y and Brendle's provides that TG & Y "has performed all of [its] obligations" under the lease between OTR and TG & Y and would continue to perform those duties until the lease was assigned to Brendle's. Brendle's claims that it is entitled to indemnity from TG & Y for the wall repair payments it owes to OTR because the structural defects in the east wall existed before TG & Y assigned the lease to Brendle's.
15
Under paragraph nine of the lease, the tenant was obligated to repair or rebuild the leased building "[i]f during the Lease term the demised premises shall be damaged or destroyed by fire, or by any other cause whatsoever." Even if the problems with the east wall were attributable to defective construction or design, the actual wall damage did not occur until December 1988. TG & Y had assigned the lease to Brendle's in 1986. Thus, the wall became damaged within the lease term after TG & Y had assigned all of its rights and responsibilities under the lease to Brendle's, and TG & Y had no obligation to indemnify Brendle's for any repair costs Brendle's owed to OTR.
16
E. Brendle's Breach of Consideration Agreement
17
Under the Consideration Agreement between Brendle's and TG & Y, Brendle's agreed to make yearly payments to TG & Y (above the rental payments owed to OTR) until 2022. Brendle's was obligated to continue these payments unless the "Lease terminate[d] for any reason other than as a result of Brendle's default." After 1988, Brendle's stopped making the annual payments to TG & Y. Because it concluded that the failure of the east wall did not relieve Brendle's of its obligations under the lease, the district court held that Brendle's was in default of payments owed to TG & Y under the Consideration Agreement.
18
Claiming that there is an issue of fact concerning whether the lease was terminated for a reason other than Brendle's default, Brendle's contends that the district court erred in granting summary judgment. This argument is without merit. Paragraph five of the lease states that the tenant has no "right to terminate this lease or be entitled to the abatement of any rent or any reduction thereof, nor shall the obligations hereunder of Tenant be otherwise affected, by reason of any damage to or destruction of all or any part of the demised premises from whatever cause." Thus, Brendle's was not excused from its lease obligations due to the failure of the east wall. Because Brendle's was not released from its lease commitments, it was obligated to continue payments to TG & Y under the Consideration Agreement. There was no issue of fact concerning whether Brendle's breached the Consideration Agreement, and summary judgment in favor of TG & Y was appropriate.
F. Claims Against Nalley and Easley
1. Indemnification
19
The district court held that Brendle's was liable to OTR and TG & Y for damages for breach of contract. Brendle's argues that Nalley and Easley should indemnify it for these damages on the ground that as parties to the Party Wall Agreement, they were responsible for the east wall.
20
In South Carolina, "a right of indemnity exists ... where one person is exposed to liability by the wrongful act of another in which he did not join." Stuck v. Pioneer Logging Mach., Inc., 279 S.C. 22, 301 S.E.2d 552, 553 (1983). Brendle's was exposed to liability because it breached its obligations to OTR and TG & Y. Whether Nalley and Easley ultimately were responsible for the east wall failure is irrelevant. Brendle's contracts with TG & Y and derivative obligations to OTR required Brendle's to perform its duties even if damage occurred to the leased building. The abandonment by Brendle's of its contractual obligations constituted wrongdoing for which Nalley and Easley were not responsible, and the district court properly denied indemnification.3
21
2. Negligence Claims Against Nalley and Easley
22
Brendle's also appeals the district court's grant of summary judgment for Nalley and Easley on the issue of negligence. Brendle's claims that Nalley and Easley negligently constructed the party wall and that Brendle's sustained economic losses such as moving expenses and lost profits when it vacated the Greenwood store due to the defective wall. To establish a cause of action for negligence, a plaintiff must show three elements: (1) a duty owed by the defendant to the plaintiff; (2) a breach of that duty; (3) and injury proximately caused by the breach. Bullard v. Ehrhardt, 283 S.C. 557, 324 S.E.2d 61, 62 (1984).
23
South Carolina recognizes that contractors have a duty not to injure parties lawfully on the premises, including tenants leasing store space. See Addy v. Bolton, 257 S.C. 28, 183 S.E.2d 708, 709 (1971) (tenant recovered from contractor for damage to merchandise); Edward's of Byrnes Downs v. Charleston Sheet Metal Co., 253 S.C. 537, 172 S.E.2d 120, 122-23 (1970) (tenant of one building entitled to recover from contractor of adjacent site for damage to merchandise). However, South Carolina has awarded damages to commercial tenants in such cases only for tangible losses such as property damage. Addy, 183 S.E.2d at 709; Edward's, 172 S.E.2d at 122.
24
In 2000 Watermark Ass'n v. Celotex Corp., 784 F.2d 1183, 1187 (4th Cir.1986), this Court held that under South Carolina law, a negligence action cannot be maintained for economic losses. New home buyers are excluded from this rule and may recover economic losses from negligent builders. Kennedy v. Columbia Lumber & Mfg. Co., 299 S.C. 335, 384 S.E.2d 730, 737 (1989). However, South Carolina courts have not carved out other exceptions to the economic loss rule. But cf. Kershaw County Bd. of Educ. v. United States Gypsum Co., 302 S.C. 390, 396 S.E.2d 369, 371 (1990) (economic loss rule does not preclude tort recovery if damage is not solely economic). We conclude that South Carolina law does not permit a commercial tenant to recover in tort from a builder for purely economic losses. Moreover, we note that any recovery for economic loss would be particularly inappropriate in this case as Nalley was prepared to perform prompt repairs in order to avoid any economic loss to Brendle's. The district court did not err by granting Nalley and Easley summary judgment on Brendle's negligence claim.
G. OTR's Damages
1. Damages Awarded to OTR
25
The district court directed a verdict in favor of OTR for rent, exterminator bills, maintenance and repair costs, and insurance. Brendle's asserts that a directed verdict was improper because whether Brendle's was responsible for such expenses under the lease is a question of fact for the jury.
26
A federal court exercising diversity jurisdiction applies federal law to determine whether there is sufficient evidence to submit a question to a jury. Owens v. Bourns, Inc., 766 F.2d 145, 149 (4th Cir.), cert. denied, 474 U.S. 1038, 106 S.Ct. 608, 88 L.Ed.2d 586 (1985). A directed verdict is appropriate where a district court, viewing the evidence in the light most favorable to the non-moving party and drawing all reasonable inferences in favor of that party, nevertheless finds no evidence supporting that party. Garraghty v. Jordan, 830 F.2d 1295, 1302 (4th Cir.1987).
27
When Brendle's accepted assignment of the lease from TG & Y, it assumed all of TG & Y's obligations under the lease. The lease required the tenant to return the Greenwood store to the lessor in the same condition it was delivered to the tenant. Because Brendle's assumed TG & Y's responsibilities, it was obligated to return the store to OTR in the same condition as when OTR delivered it to TG & Y. The lease did not require the tenant to repair ordinary wear and tear, but provided no other exceptions from maintaining the building.
28
OTR presented expert witnesses who testified as to the condition of the building. Brendle's did not present expert evidence concerning the condition of the building (with the exception of the east wall). Instead, Brendle's relied on the Greenwood store manager's observations that he did not see any problems with the store. In light of the overwhelming expert evidence introduced by OTR in contrast to the non-expert observations of Brendle's' store manager, the district court did not err by directing a verdict in OTR's favor.
2. Costs Not Awarded to OTR
29
OTR challenges the district court's exclusion from the damage award of OTR's repair costs for the east wall. If the Greenwood store was damaged during the lease period, Brendle's was obligated by the lease to repair or rebuild it "on the same plans or designs as existed immediately before such damage or destruction occurred." The east wall failed due to design defects. The repairs made by OTR were made to correct those defects and were not made on the same plans as the original wall. Accordingly, Brendle's was not obligated to reimburse OTR for those expenses or for the architectural and engineering costs associated with the repair of the east wall.
30
OTR also claims that it was entitled to recover costs associated with an appraisal of the property, a marketing study of the Greenwood area, and travel to inspect the premises. The witness through whom OTR attempted to introduce these expenses admitted that they were incurred primarily in preparation for the trial of this case. Given this testimony, the district court properly rejected OTR's attempt to recover these costs as damages.
H. Mitigation
31
Under the lease, OTR was obligated to "use its best efforts to let or relet the demised premises at a reasonable rental value." Brendle's contends that the district court erred in directing a verdict for OTR for damages because there was a factual question concerning OTR's efforts to sell or relet the store.
32
In South Carolina, the burden of showing failure to mitigate falls on the party asserting the claim. Alala v. Peachtree Plantations, Inc., 292 S.C. 160, 355 S.E.2d 286, 290 (1987). OTR hired a realtor to sell or lease the store. The evidence adduced by Brendle's that OTR listed the property at a price higher than its appraisal value fails to establish lack of mitigation. OTR's duty was to try to relet the building--not to sell it. Furthermore, although OTR did not expedite repairs of the building, Brendle's failed to present evidence showing that this inaction discouraged any prospective tenants or that extensive advertising would have resulted in a new tenant.
I. Attorneys' Fees
33
The district court awarded OTR attorneys' fees and expenses incurred in defending the lawsuit filed by Brendle's. Absent a contract or statute providing otherwise, attorneys' fees generally are not recoverable in South Carolina. Hegler v. Gulf Ins. Co., 270 S.C. 548, 243 S.E.2d 443, 444 (1978). The court based the award in this case on section (b) of paragraph ten of the lease which provides in part:
34
Tenant ... agrees to assume legal liability for, indemnify and hold free and harmless Landlord, ... from any and all loss, damages, liability, cost or expenses (including, but not limited to, attorneys' fees, reasonable investigative and discovery costs and court costs) and all other sums which Landlord ... may reasonably pay or become obligated to pay on account of any, all, and every demand, claim, assertion of liability or action arising or alleged to have arisen out of any act or omission of Tenant ... made by any person, group or organization, whether employed by either of the parties hereto or otherwise.
35
In Tony Guiffre Distrib. Co. v. Washington Metro. Area Transit Auth., 740 F.2d 295, 298 (4th Cir.1984), this Court held that a similar indemnification clause allowed the award of attorneys' fees only in suits brought by third parties against the indemnitee. The language of paragraph ten indicates that the parties did not envision it to cover lawsuits between them: the indemnity provision reaches suits brought against OTR by third parties arising out of acts of Brendle's, not suits brought by Brendle's. Because the lease does not provide for attorneys' fees in the instant lawsuit, the district court erred in awarding OTR attorneys' fees.
Conclusion
36
The district court properly granted summary judgment in favor of all defendants. It also was correct in awarding rent, maintenance, and repair costs to OTR, but excluding from damages the repair costs for the structurally defective east wall. Accordingly, we affirm the district court's orders on these issues. However, we reverse the award of attorneys' fees to OTR because the lease did not provide for attorneys' fees for lawsuits between the lessor and lessee.
37
AFFIRMED IN PART AND REVERSED IN PART.
1
OTR is an Ohio General Partnership acting on behalf of the Board of Trustees of the State Teachers Retirement System of Ohio
2
OTR, TG & Y, and Brendle's also asserted third party complaints against Joseph W. Hiller, the architect who prepared the plans for the Greenwood store. The district court granted summary judgment for Hiller and on appeal all parties stipulated to Hiller's dismissal from the action
3
Brendle's cites two recent South Carolina Court of Appeals decisions in support of its argument that it is entitled to indemnification from Nalley and Easley. In both Town of Winnsboro v. Wiedeman-Singleton, Inc., 303 S.C. 52, 398 S.E.2d 500 (Ct.App.1990), and Griffin v. Van Norman, 302 S.C. 520, 397 S.E.2d 378 (Ct.App.1990), the indemnitor had a contractual relationship with the indemnitee which entitled the indemnitee to compensation. No such contractual relationship exists between Brendle's and either Nalley or Easley. Without a contractual relationship, indemnification is awarded in South Carolina only if a special relationship exists between the indemnitor and indemnitee, such as master and servant. Town of Winnsboro, 398 S.E.2d at 503. Brendle's has no special relationship with Nalley and Easley which would justify granting indemnification
| {
"pile_set_name": "FreeLaw"
} |
862 F.2d 870Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Virgil JOHNSON, Jr., Petitioner-Appellant,v.J.H. GRIFFIN; Attorney General of the State of NorthCarolina, Respondents- Appellees.
No. 88-6767.
United States Court of Appeals, Fourth Circuit.
Submitted: Oct. 31, 1988.Decided: Nov. 23, 1988.
Virgil Johnson, Jr., appellant pro se.
Richard Norwood League (Office of the Attorney General), for appellees.
Before JAMES DICKSON PHILLIPS and WILKINS, Circuit Judges, and BUTZNER, Senior Circuit Judge.
PER CURIAM:
1
Virgil Johnson, Jr., seeks to appeal the district court's order refusing habeas corpus relief pursuant to 28 U.S.C. Sec. 2254. Our review of the record and the district court's opinion accepting the recommendation of the magistrate discloses that this appeal is without merit. Accordingly, we deny a certificate of probable cause to appeal and dismiss the appeal on the reasoning of the district court. Johnson v. Griffin, C/A No. 87-1159-HC (E.D.N.C. June 30, 1988). We dispense with oral argument because the dispositive issues recently have been decided authoritatively.
2
DISMISSED.
| {
"pile_set_name": "FreeLaw"
} |
810 F.Supp. 887 (1993)
AM DIAGNOSTICS, INC.; Eugene Schuster; Quest Biotechnology, Inc.; and Venture Funding, Ltd., Plaintiffs,
v.
Jerry DENNEY; The National Commercial Bank; Monitor Bioscience, Ltd.; William Waddington; and Patrick Maguire, Defendants.
No. 92-71157.
United States District Court, E.D. Michigan, S.D.
January 14, 1993.
*888 Mayer Morganroth, Southfield, MI, for plaintiffs.
Ralph W. Barbier, Jr., Grosse Pointe Woods, MI, for defendant Jerry Denney.
Martin Domb, New York City, for defendant National Commercial Bank.
*889 Philip T. Carter, Bloomfield Hills, MI, for defendant NCB.
Laurie S. Gill, Boston, MA, for defendants Monitor and Maguire.
David H. Oermann, Detroit, MI, for defendants Monitor, Waddington and Maguire.
OPINION AND ORDER ON MOTIONS TO DISMISS AND FOR TRANSFER
GADOLA, District Judge.
On May 12, 1992, defendant Jerry Denney filed a motion to dismiss for lack of personal jurisdiction; defendant the National Commercial Bank ["NCB"] filed a motion to dismiss for lack of personal jurisdiction or, in the alternative, to transfer venue; and defendants Monitor Bioscience, Ltd. ["Monitor"], William Waddington, and Patrick Maguire filed a joint motion to dismiss for lack of personal jurisdiction. On June 26, 1992, plaintiffs AM Diagnostics, Inc. ["AMD"], Eugene Schuster, Quest Biotechnology, Inc. ["Quest"], and Venture Funding, Inc. ["Venture"] filed joint "answers" to the motions to dismiss; Denney filed a reply July 16, 1992; NCB filed a reply July 17, 1992; and Monitor, Waddington, and Maguire filed a reply July 17, 1992.
FACTS
In August 1990, the London branch of NCB, a Saudi Arabian bank, extended a £740,000.00 loan facility ["Facility"] to American Monitor (UK) Ltd. ["AMUK"], an English corporation. AMUK's business was to sell laboratory testing machines called "analyzers" and chemical reagents to customers in the United Kingdom. The analyzers and reagents were made and shipped to AMUK in England by AMUK's parent company, plaintiff AMD, an Indiana corporation. The Facility was evidenced by a letter agreement between NCB and AMUK. As security for the loan, AMUK and NCB entered into a debenture whereby AMUK granted NCB a security interest in all of AMUK's assets. Both the Facility and the debenture were negotiated and executed in England, and both are by their terms governed by English law. The debenture gave NCB the right, in the event of a default by AMUK, to appoint a receiver in accordance with English law.
As additional security for the loan, NCB had requested the guarantee of plaintiff AMD (AMUK's parent company) and AMD's directors. AMD and its directors refused to give these guarantees. Instead, NCB was offered and subsequently accepted the guarantees of plaintiffs Schuster and Venture. Accordingly, Schuster and Venture each entered into a guarantee with NCB dated August 7, 1990.[1] The guarantees of Schuster and Venture are by their terms governed by New York law. In addition, each guarantor, in the language of the guarantees, (a) submitted to the jurisdiction of New York courts, (b) appointed an agent for service of process in New York, (c) waived any right to a jury, (d) waived any defenses of the borrower AMUK, and (e) waived any counterclaims against NCB.
Schuster, a Michigan citizen, and Venture, a Michigan corporation, are shareholders of AMD. AMD is the sole shareholder of AMUK. The fourth plaintiff in this case, Quest, is also a shareholder of AMD. AMUK is not a party to this action.
The Facility was to expire, by its terms, June 30, 1991. On June 28, 1991, AMUK and NCB entered into a "side letter" whereby NCB extended the Facility to December 31, 1991, but with new drawings permitted only until September 30, 1991.
On September 16, 1991, AMUK defaulted under the Facility by failing to pay and admitting its inability to pay an invoice in the amount of £19,963.00. NCB advised AMUK that this constituted an event of default, that as a result NCB had no further commitment to AMUK under the Facility, *890 and that the advances outstanding under the Facility continued to be repayable on demand at any time. However, NCB did not demand payment in full at that time. NCB sent a copy of its default notice to the guarantors Schuster and Venture.
Within days of this default notice, AMUK asked NCB to advance an additional £50,000.00 to enable AMUK to meet payroll and other current expenses. AMUK informed NCB that AMUK's parent, plaintiff AMD, was unable or unwilling to advance any funds to AMUK. NCB agreed to advance the funds requested by AMUK to avert its imminent collapse. By mid-October 1991, AMD still had not provided any financial help to its subsidiary AMUK; and AMUK requested a further advance from NCB of nearly £70,000.00. NCB informed AMUK by letter that it would consider making such further advances only upon certain conditions, including a guarantee from AMD and other forms of security. NCB sent copies of this letter to the guarantors. The following week, AMD informed NCB that AMD would not agree to any of these conditions. On October 31, 1991, NCB wrote (a) to AMUK, demanding payment of the £554,299.00 then outstanding under the Facility and (b) to each guarantor, demanding payment of that same sum under the guarantees.
On November 1, 1991, in accordance with its alleged rights under the debenture and English insolvency law, NCB appointed two licensed insolvency practitioners from the London office of Ernst & Young, chartered accountants, as administrative receivers of AMUK. That same day the receivers accepted their appointment and assumed their duties. Thereafter, the receivers notified all creditors of AMUK of their appointment and activities.
After analyzing the precarious financial condition of AMUK, the receivers concluded that, to maximize the return to creditors, AMUK should be sold as a going concern, rather than liquidated. Accordingly, the receivers advertised the business for sale while they continued to operate the business. They received only one offer, that from a group that included the English-based managers of AMUK itself. After negotiating with the group and increasing the amount of their offer, the receivers recommended accepting the group's offer. On December 4, 1991, the receivers sold AMUK's business, including most of its assets, to defendant Monitor, an English corporation newly formed by AMUK's management group, for the purchase price of £120,000.00.[2] The receivers have since continued to collect AMUK's assets and tried to sell its remaining assets not included in the sale to Monitor.
On March 4, 1992, the instant suit was filed by plaintiffs. In essence, plaintiffs allege that (1) defendants conspired to steal away AMUK and thereby deprive plaintiffs, as direct and indirect shareholders of AMUK, of their allegedly valuable interest in AMUK; and (2) defendants made various misrepresentations to plaintiffs concerning (a) the Facility and related loan agreements and (b) AMUK's efforts to obtain alternative sources of financing.
As of April 30, 1992, after accounting for all receipts by and operating expenses of the receivers, there remained approximately £413,000.00 due to NCB under the Facility, not including the receivers' and attorneys' fees. On May 5, 1992, NCB filed an action in the Southern District of New York against the two guarantors, defendants Schuster and Venture, to recover the deficiency due NCB.
STANDARD OF REVIEW
It is plaintiffs' burden to establish the existence of personal jurisdiction over defendant. Serras v. First Tenn. Bank Nat'l Ass'n, 875 F.2d 1212, 1214 (6th Cir. 1989); Welsh v. Gibbs, 631 F.2d 436, 438 (6th Cir.1980). A court must interpret the pleadings and affidavits in the light most *891 favorable to plaintiffs. Id. Where the court finds that there are no issues of credibility or disputed issues of fact, it may decide the motion on the basis of written materials. Andrews Univ. v. Robert Bell Indus., 685 F.Supp. 1015, 1017 (W.D.Mich. 1988).
APPLICABLE LAW
Michigan's general personal jurisdiction statute, Mich.Comp.Laws Ann. § 600.701, reads in relevant part:
The existence of any of the following relationships between an individual and the state shall constitute a sufficient basis of jurisdiction to enable the courts of record of this state to exercise general personal jurisdiction over the individual or his representative and to enable such courts to render personal judgments against the individual or representative.
(1) Presence in the state at the time when process is served.
(2) Domicile in the state at the time when process is served.
(3) Consent, to the extent authorized by the consent and subject to the limitations provided in section 745.
Michigan's limited personal jurisdiction statute, Mich.Comp.Laws Ann. § 600.705, reads in relevant part:
The existence of any of the following relationships between an individual or his agent and the state shall constitute a sufficient basis of jurisdiction to enable a court of record of this state to exercise limited personal jurisdiction over the individual and to enable the court to render personal judgments against the individual or his representative arising out of an act which creates any of the following relationships:
(1) The transaction of any business within the state.
(2) The doing or causing any act to be done, or consequences to occur, in the state resulting in an action for tort.
Michigan's corporate general personal jurisdiction statute, Mich.Comp.Laws Ann. § 600.711, reads in relevant part:
The existence of any of the following relationships between a corporation and the state shall constitute a sufficient basis of jurisdiction to enable the courts of record of this state to exercise general personal jurisdiction over the corporation and to enable such courts to render personal judgments against the corporation.
(1) Incorporation under the laws of the state.
(2) Consent, to the extent authorized by the consent and subject to the limitations provided in section 745.
(3) The carrying on of a continuous and systematic part of its general business within the state.
Michigan's corporate limited personal jurisdiction statute, Mich.Comp.Laws Ann. § 600.715, reads in relevant part:
The existence of any of the following relationships between a corporation or its agent and the state shall constitute a sufficient basis of jurisdiction to enable the courts of record of this state to exercise limited personal jurisdiction over such corporation and to enable such courts to render personal judgments against such corporation arising out of the act or acts which create any of the following relationships:
(1) The transaction of any business within the state.
(2) The doing or causing any act to be done, or consequences to occur, in the state resulting in an action for tort.
ANALYSIS
In the instant case, five defendants have filed three separate motions to dismiss for lack of personal jurisdiction; and one defendant had filed a motion for change of venue. This opinion will address each defendant's personal jurisdiction argument and then address NCB's transfer of venue argument.
I
The basis for any challenge to personal jurisdiction must begin with an examination of the state's long-arm statutes. In the instant case, it is quite obvious that this court does not have general personal jurisdiction over Denney. Denney was not *892 present in Michigan when process was served upon him. Denney was also not domiciled in Michigan when process was served upon him. Denney has been a resident of Montreal, Quebec, Canada, since 1989. Finally, Denney did not consent to the jurisdiction of this state. Therefore, section 600.701 does not apply.
The more complicated question is whether this court has limited personal jurisdiction over Denney under Section 600.705. Because Denney does not conduct any business within the state of Michigan, Section 600.705(1) will not apply. Further, this court finds that Denney has not caused "consequences to occur[] in the state resulting in an action for tort." Id. at § 600.705(2). Michigan and federal case law is replete with examples of business transactions that have occurred outside the state of Michigan which have "resulted" in an action for tort. See, e.g., Schmidt v. Wilbur, 775 F.Supp. 216, 221 (E.D.Mich.1991); Sifers v. Horen, 385 Mich. 195, 199 n. 2, 188 N.W.2d 623 (1971); cf. Lanier v. American Bd. of Endodontics, 843 F.2d 901, 906 (6th Cir.1988).[3] In essence, "any nexus between transaction and tort shall allow limited personal jurisdiction to operate." Brabeau v. SMB Corp., 789 F.Supp. 873, 876 (E.D.Mich.1992).
However, plaintiffs have failed to allege any act or consequence done or caused by Denney in Michigan. Plaintiffs' response and complaint fail to state any act committed by Denney that resulted in any consequence in Michigan. Further, Denney has affirmatively stated that he
did not cause any act to be done in Michigan resulting in an action for tort.... Plaintiffs have failed to identify one phone call made by Denney, one piece of correspondence to Plaintiffs signed by Denney, or one meeting attended by Denney.
Denney reply at 2-3. This court agrees with this uncontroverted statement. Plaintiffs have utterly failed to show any nexus between Denney and the state of Michigan. Defendant Denney cannot be brought under this court's jurisdiction pursuant to Mich.Comp.Laws Ann. § 600.705(2). Therefore, Denney's motion to dismiss will be granted pursuant to Fed.R.Civ.P. 12(b)(2).
II
The next issue is whether this court may exercise personal jurisdiction over defendant NCB. Again, it is quite obvious that this court does not have general personal jurisdiction over NCB. NCB is and was not incorporated under the laws of the state of Michigan. NCB also did not consent to the jurisdiction of this state. Finally, NCB has not carried on a continuous and systematic part of its general business in this state. NCB's three unrelated loans to a Michigan borrower are insufficient for this court to exercise general personal jurisdiction over NCB. These loans represent a minute fraction of NCB's entire loan portfolio. Therefore, general personal jurisdiction and section 600.711 do not apply.
The more complicated question is whether this court has limited personal jurisdiction over NCB under section 600.715. Arguably, the three unrelated loans made by NCB to a Michigan borrower constitute "[t]he transaction of any business within the state." Mich.Comp.Laws Ann. § 600.715(1). However, in Michigan,
The concept of "limited personal jurisdiction" recognizes that the claim must arise out of the act or acts which create the basis for jurisdiction. In other words, the cause of action must result from the situation creating the jurisdictional relationship between the defendant and the state.
Lazzaro v. Charlevoix Lakes, 108 Mich. App. 120, 123-24, 310 N.W.2d 295 (1981) (footnote omitted); see also First Sec. Bank v. McMillan, 627 F.Supp. 305, 309 (W.D.Mich.1985). The claims brought by plaintiffs emerge from NCB's Facility, debenture, and guaranty agreements. The unrelated loans made to an undisclosed *893 Michigan borrower are not the subject of this lawsuit. Therefore, section 600.715(1) does not apply.
However, this court finds that NCB may have caused "consequences to occur[] in the state resulting in an action for tort." Mich.Comp.Laws Ann. § 600.715(2). The guaranty agreements, admittedly not executed in Michigan, did adversely affect Schuster and Venture when compensation was demanded by NCB. Further, NCB officials apparently made telephone calls to Schuster and Venture officials concerning the signing and delivery of the guarantees, AMUK's default, and NCB's demand upon the guarantors. Again, any nexus between transaction and tort allows limited personal jurisdiction to operate. See Brabeau, 789 F.Supp. at 876. Therefore, limited personal jurisdiction through section 600.715(2) arguably applies.
After establishing that the state allows for limited personal jurisdiction to attach through its long-arm statute, this court must decide whether the exercise of personal jurisdiction comports with the "traditional notions of fair play and substantial justice." Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940). After close examination of the case law on point, this court holds that the exercise of limited personal jurisdiction over NCB would offend defendant's due process rights under the fourteenth amendment.
The United States Court of Appeals for the Sixth Circuit has set out three criteria that must be met in order for personal jurisdiction to comport with due process:
(1) defendant must purposefully avail itself of the privilege of acting in the forum state or causing a consequence in the foreign state;
(2) the cause of action must arise from defendant's activities in the forum state; and
(3) the acts of defendant or consequences must have a substantial enough connection with the forum state to make the exercise of jurisdiction over defendant reasonable.
LAK, Inc. v. Deer Creek Enters., 885 F.2d 1293, 1299 (6th Cir.1989), cert. denied, 494 U.S. 1056, 110 S.Ct. 1525, 108 L.Ed.2d 764 (1990); Southern Mach. Co. v. Mohasco Indus., 401 F.2d 374, 381 (6th Cir.1968); Brabeau, 789 F.Supp. at 877; Ag-Chem Equip. Co. v. Avco Corp., 666 F.Supp. 1010, 1013 (W.D.Mich.1987).
First, NCB has not purposefully availed itself of the state of Michigan. In fact, the realistic view of the transactions at issue would point to an avoidance of, not purposeful availment of, the forum state. Brabeau, 789 F.Supp. at 879.
The Supreme Court has stopped short of allowing jurisdiction whenever an out-of-state Defendant contracts with a forum resident.... The actual course of dealing need[s] to be addressed to evaluate, in a "highly realistic" way, the intended future consequences that are the real object of the business transaction.
Lanier, 843 F.2d at 910. NCB made telephone calls to Schuster and Venture in Michigan about drawing up guaranty agreements. NCB then mailed the agreements to Schuster and Venture in Michigan. Finally, the guarantees are to be read in accordance with New York law.
The instant case is very similar to Telecast, Inc. v. Pacific Cablevision, 731 F.Supp. 1319 (E.D.Mich.1990). In Telecast, the plaintiff, a Michigan corporation, negotiated with the defendant, a California corporation, for the sale of plaintiff's assets located in California. The negotiations consisted of telephone calls to Michigan, correspondence sent to Michigan, and a contract and promissory note both executed in California. Both the note and the contract were to be construed in accordance with California law. United States District Court Judge Patrick J. Duggan held that defendant's contacts with Michigan were too attenuated to sustain limited personal jurisdiction. Judge Duggan stated that "defendant's conduct did not look toward further involvement in Michigan...." Id. at 1321. The same is true in the instant case. Here, NCB's securing of two guaranty agreements did not pave the way for further involvement in this state's financial markets.
*894 In Capital Dredge & Dock Corp. v. Midwest Dredging Co., 573 F.2d 377 (6th Cir. 1978), the Sixth Circuit concluded that personal jurisdiction did not exist in an Ohio district court over a Minnesota defendant where the Minnesota corporation was not doing business in Ohio, the contract it entered into with the plaintiffs called for no activity in Ohio, and the negotiations did not take place in Ohio.
The only direct contact between [defendant] and plaintiffs ... was its vice-president['s] delivering the final contract to the offices of Capital in Ohio and his receiving the first payment under the contract. Plaintiff was to produce no goods in Ohio, nor was any of its performance under the contract to have any impact on Ohio other than its obligation to pay money under the agreement. These facts are simply insufficient to establish long-arm jurisdiction over defendant.
Id. at 380. In the instant case, NCB does not conduct business in Michigan, the guaranty agreements call for no activity in Michigan, and the negotiations did not take place in Michigan. Furthermore, no NCB official traveled to Michigan to deliver the contract. Therefore, the contacts present here are less than those in Capital Dredging.
The plurality opinions of Justices Stevens and O'Connor in Asahi Metal Indus. v. Superior Ct., 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987), are also instructive. Justice O'Connor, with whom the Chief Justice, Justice Powell and Justice Scalia joined, stated that purposeful availment is not met where defendant neither conducts nor solicits business in the state; has no offices, agents, employees or property in the state; and neither advertises in nor designs its products for sale in the state. Id. at 112-13, 107 S.Ct. at 1032. Justice Stevens, with whom Justice White and Justice Blackmun joined, assumed that purposeful availment must take into account the volume, value and hazardous character of the products. Id. at 122, 107 S.Ct. at 1037. ("over 100,000 units annually over a period of several years would constitute `purposeful availment'"). The two guaranty agreements, along with their preliminary negotiations, do not rise to the level stated by Justice Stevens.
Also, telephone calls and mailings into the state do not rise to the level of minimum contacts where personal jurisdiction attaches. See Michigan Coalition of Radioactive Material Users, Inc. v. Griepentrog, 954 F.2d 1174, 1177 (6th Cir.1992); LAK, 885 F.2d at 1301; Rann v. W.P. McInnis, 789 F.2d 374, 376 (6th Cir.1986). Finally, as mentioned before, the guaranty agreements contain a choice of law provision that looks squarely to New York as the forum. The Supreme Court has declared that a choice of law provision in a contract is a factor which a district court should consider in its jurisdictional analysis. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 482, 105 S.Ct. 2174, 2178, 85 L.Ed.2d 528 (1985). Along with the choice of law factor, this court holds that NCB's attenuated contacts with this forum are insufficient to comprise "some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958). Therefore, factor number one of the LAK test has not been met.
Second, the two activities of defendant in Michigan, the two guaranty agreements, may have given rise to plaintiffs' alleged damages. Plaintiffs do ask for declaratory judgments resolving the guaranty agreements. Therefore, factor number two of the LAK test has been met.
Finally, it appears unreasonable to subject NCB to jurisdiction in the state of Michigan. In determining the reasonableness of the exercise of personal jurisdiction, a court must consider
(1) the burden upon defendant;
(2) the interests of the forum state;
(3) plaintiffs' interest in obtaining relief; and
(4) the procedural and substantive policies of other nations whose interests are affected by the assertion of jurisdiction.
*895 See Asahi, 480 U.S. at 113, 115, 107 S.Ct. at 1033, 1034 (O'Connor, J., for a unanimous court); Brabeau, 789 F.Supp. at 878. The burden placed upon NCB is severe. NCB must not only travel great distances but must also defend itself in a foreign tribunal.
The unique burdens placed upon one who must defend oneself in a foreign legal system should have significant weight in assessing the reasonableness of stretching the long arm of personal jurisdiction over national borders.
Asahi, 480 U.S. at 114, 107 S.Ct. at 1033 (O'Connor, J., for a unanimous court).
The interests of the forum state are admittedly great. Every state wishes to shield its citizens from harm and provide an avenue for redress. Further, it is surely in plaintiffs' interests to obtain relief. However, there are international procedural and substantive policies that might cause concern in this case. A number of plaintiffs' claims appear to involve the laws of England and not of a jurisdiction within this country. It must be remembered, though, that these are factors to be weighed only when certain minimal contacts have been established. Id. (O'Connor J., for a unanimous court). In the instant case, insufficient contacts have been shown. See id. at 112, 107 S.Ct. at 1032 (O'Connor, J., for a four justice plurality); id. at 122, 107 S.Ct. at 1037 (Stevens, J., for a three justice plurality). Therefore, LAK factor number three is also inapplicable.
LAK shows that NCB's due process rights would be violated if this court exercised limited personal jurisdiction. Cf. Fielder v. First City Nat'l Bank of Houston, 807 F.2d 315, 317 (2d Cir.1986) (out-of-state bank's telephone calls and mailings "cannot confer jurisdiction on this court.") (decided on New York's long-arm statute, N.Y.Civ.Prac. L & R. 302(a)). Therefore, this court determines that it does not have personal jurisdiction over NCB and NCB's motion to dismiss will be granted pursuant to Fed.R.Civ.P. 12(b)(2).
III
Third, this court also lacks personal jurisdiction over defendant Monitor. Monitor is and was not incorporated under the laws of the state of Michigan. Monitor also did not consent to the jurisdiction of this state. Finally, Monitor has not carried on a continuous and systematic part of its general business in this state. Therefore, general personal jurisdiction and section 600.711 do not apply.
Further, this court also may not exercise limited personal jurisdiction over Monitor. Plaintiffs have put forth no proof that Monitor "transact[s] ... any business within the state." Mich.Comp.Laws Ann. § 600.715(1). Additionally, if Monitor did transact business in Michigan, such business must emanate from the nexus of facts leading to this lawsuit. See Lazzaro, 108 Mich.App. at 123-24, 310 N.W.2d 295; see also McMillan, 627 F.Supp. at 309. There is no indication that such is the case. Therefore, section 600.715(1) does not apply.
Additionally, this court finds that Monitor did not cause "consequences to occur[] in the state resulting in an action for tort." Mich.Comp.Laws Ann. § 600.715(2). Plaintiffs have put forth no proof that Monitor did anything throughout this entire transaction other than offer to buy AMUK as a going concern.[4] This purchase was consummated in England. Without the purchase, Schuster and Venture would still be liable under their guaranty agreements. Also, any alleged conspiracy between Monitor and the remaining defendants is a tenuous link to this forum at best. A better, although not necessarily sufficient argument, would be that an alleged conspiracy between defendants to drive AMUK out of business harmed AMD, the sole shareholder of AMUK. Because AMD is located in Indiana, this jurisdictional argument would *896 also be unavailing. Therefore, this court finds that section 600.715(2) is inapplicable and limited personal jurisdiction is lacking.
IV
Fourth, this court also lacks personal jurisdiction over defendant Waddington. Waddington was not present in Michigan when process was served upon him. Waddington was also not domiciled in Michigan when process was served upon him. Waddington is a citizen of the United States and a resident of the United Kingdom since 1979. Finally, Waddington did not consent to the jurisdiction of this state. Therefore, section 600.701 does not apply.
This court also finds that limited personal jurisdiction over Waddington is lacking under Section 600.705. Because Waddington does not conduct any business within the state of Michigan, Section 600.705(1) will not apply. Further, this court finds that Waddington has not caused "consequences to occur[] in the state resulting in an action for tort." Mich.Comp.Laws Ann. § 600.705(2). It is true that "any nexus between transaction and tort shall allow limited personal jurisdiction to operate." Brabeau, 789 F.Supp. at 876. However, this court notes that plaintiffs have asserted only one type of contact between Waddington and the forum state. Apparently, Waddington made telephone calls to Schuster and Venture officials concerning AMUK. Nevertheless, telephone calls alone are insufficient to convey personal jurisdiction over defendant. See Griepentrog, 954 F.2d at 1177; LAK, 885 F.2d at 1301. Further, these telephone calls did not culminate in tortious injury to Schuster and Venture, at best indirect shareholders and guarantors of AMUK. Defendant Waddington cannot be brought under this court's jurisdiction pursuant to Mich.Comp. Laws Ann. § 600.705(2). Therefore, Waddington's motion to dismiss will be granted pursuant to Fed.R.Civ.P. 12(b)(2).
V
Finally, this court does not have personal jurisdiction over defendant Maguire. Maguire was not present in Michigan when process was served upon him. Maguire was also not domiciled in Michigan when process was served upon him. Maguire is a citizen of Ireland and a resident of the United Kingdom. Finally, Maguire did not consent to the jurisdiction of this state. Therefore, section 600.701 does not apply.
This court also finds that limited personal jurisdiction over Maguire is lacking under Section 600.705. Because Maguire does not conduct any business within the state of Michigan, Section 600.705(1) will not apply. Further, this court finds that Maguire has not caused "consequences to occur[] in the state resulting in an action for tort." Mich.Comp.Laws Ann. § 600.705(2). Again, it is true that "any nexus between transaction and tort shall allow limited personal jurisdiction to operate." Brabeau, 789 F.Supp. at 876. However, this court notes that plaintiffs have asserted only that Maguire made telephone calls to Schuster and Venture officials concerning AMUK. Again, telephone calls alone are insufficient to convey personal jurisdiction over defendant. See Griepentrog, 954 F.2d at 1177; LAK, 885 F.2d at 1301. Further, these telephone calls did not culminate in tortious injury to Schuster and Venture, at best indirect shareholders and guarantors of AMUK. Defendant Maguire cannot be brought under this court's jurisdiction pursuant to Mich.Comp.Laws Ann. § 600.705(2). Therefore, Maguire's motion to dismiss will be granted pursuant to Fed. R.Civ.P. 12(b)(2).
VI
Because this court finds that personal jurisdiction over NCB is lacking, this court will deny NCB's motion for transfer of venue as moot.
ORDER
Therefore, it is hereby ORDERED that Denney's motion to dismiss is GRANTED.
It is further ORDERED that NCB's motion to dismiss is GRANTED.
It is further ORDERED that Monitor, Waddington and Maguire's motion to dismiss is GRANTED.
*897 It is further ORDERED that NCB's motion to transfer venue is DENIED as moot.
SO ORDERED.
NOTES
[1] Apparently, the guarantees were not executed in Michigan. The only reference made to the execution of the guarantees is the admission by plaintiffs that "NCB did not send a representative to Michigan." Plaintiffs' resp. at 5. NCB affirmatively states that "[t]he Guarantees were negotiated, signed and delivered to NCB solely through the mail and by telephone." NCB's br. at 7.
[2] The group that formed Monitor to purchase AMUK's assets included two of the English-based managers of AMUK defendants Waddington and Maguire and certain other investors including defendant Denney, who is alleged to be a former president and director of AMD, and whose company, Synermed, Inc., became a shareholder of Monitor in December 1991.
[3] The court concludes that judicial pronouncements on sections 600.705 and 600.715 are interchangeable. See Schmidt, 775 F.Supp. at 221.
[4] This court also questions whether it may exercise personal jurisdiction over a defendant corporation which had not been incorporated during most of the time span at issue. See Brake Shop, Inc. v. Dacey, 793 F.Supp. 154, 156 (E.D.Mich.1992). However, this court will not address this issue because it is not necessary to the resolution of the motion.
| {
"pile_set_name": "FreeLaw"
} |
Volume 1 of 2
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
No. 05-10067
v.
D.C. No.
COMPREHENSIVE DRUG TESTING, MISC-04-234-SI
INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Susan Illston, District Judge, Presiding
MAJOR LEAGUE BASEBALL PLAYERS
ASSOCIATION,
Petitioner-Appellee, No. 05-15006
v. D.C. No.
CV-04-00707-JCM
UNITED STATES OF AMERICA,
Respondent-Appellant.
Appeal from the United States District Court
for the Southern District of Nevada
James Mahan, District Judge, Presiding
19783
19784 UNITED STATES v. COMPREHENSIVE DRUG TESTING
IN RE: SEARCH WARRANTS EXECUTED
ON APRIL 8, 2004 AT CDT, INC.,
No. 05-55354
SEAL 1,
Plaintiff-Appellant, D.C. No.
CV-04-02887-FMC
v.
OPINION
SEAL 2,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Florence-Marie Cooper, District Judge, Presiding
Argued and Submitted
November 15, 2005—San Francisco, California
Filed December 27, 2006
Before: Diarmuid F. O’Scannlain, Sidney R. Thomas, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge O’Scannlain;
Partial Concurrence and Partial Dissent by Judge Thomas
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19789
COUNSEL
Erika R. Frick, Assistant United States Attorney, San Fran-
cisco, California, argued the cause for defendant-appellant
United States of America; United States Attorney Kevin V.
Ryan, Appellate Chief Hannah Horsley, Assistant United
States Attorney Barbara J. Valliere, San Francisco, California;
and Assistant United States Attorneys Matthew A. Parrella,
Ross W. Nadel, Jeffrey D. Nedrow, Carter M. Stewart, San
Jose, California, were on the briefs.
Elliot R. Peters, Keker & Van Nest, LLP, San Francisco, Cali-
fornia, argued the cause for movants-appellees Comprehen-
sive Drug Testing, Inc., and Major League Baseball Players
Association; Ethan A. Balogh, Keker & Van Nest, LLP, San
Francisco, California, and David P. Bancroft and Jeffrey C.
Hallam, Sideman & Bancroft, LLP, San Francisco, California,
were on the brief.
19790 UNITED STATES v. COMPREHENSIVE DRUG TESTING
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether the United States may retain evi-
dence it seized from Major League Baseball’s drug testing
administrator (and enforce an additional subpoena) as part of
an ongoing grand jury investigation into illegal steroid use by
professional athletes.
I
These three consolidated cases arise from the federal inves-
tigation of the Bay Area Lab Cooperative (“Balco”) and its
alleged distribution of illegal steroids to professional baseball
athletes. The investigation began in August 2002 and, over
the following several years, produced evidence—including
grand jury testimony—establishing probable cause to believe
that at least ten major league baseball players received illegal
steroids from Balco. Today we decide the government’s
appeals from the separate adverse orders of three different
district courts: (1) an order by Judge Florence-Marie Cooper
in the Central District of California, requiring the government
to return property seized from Comprehensive Drug Testing,
Inc. in Long Beach, California (“CDT”),1 (2) an order by
Judge James Mahan in the District of Nevada, requiring the
government to return property seized from Quest Diagnostics,
Inc. in Las Vegas, Nevada (“Quest”),2 and (3) an order by
Judge Susan Illston in the Northern District of California,
quashing the government’s May 6, 2004, subpoenas to CDT
and Quest that related to the grand jury sitting in San Fran-
cisco, California.
1
The courts also required the government to turn over all notes made by
agents who reviewed the challenged evidence.
2
Again, the government was also required to give up all notes made by
reviewing agents.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19791
A
As part of its investigation into Balco, the government in
November 2003 served a grand jury subpoena on Major
League Baseball (“MLB”),3 seeking drug testing information
for eleven players4 with connections to Balco. One month
later, MLB responded that it had no such information.
The government then reasoned that because CDT5 and Quest6
had tested urine samples from MLB players during 2003,
those entities—rather than MLB—had to possess the samples
and testing records in question. Therefore, the government
issued subpoenas both to CDT and to Quest, seeking drug
testing information for all MLB players. The subpoenas were
returnable on February 5, 2004, but the government extended
that date to March 4, 2004, after CDT and Quest promised not
to destroy or to alter any of the evidence requested.
Despite protracted negotiations, CDT and Quest resisted
producing any of the subpoenaed materials, explaining that
they would fight production of even a single drug test all the
3
“Major League Baseball,” an unincorporated association, consists of
two professional baseball leagues—the National League of Professional
Baseball Clubs and the American League of Professional Baseball Clubs.
4
The names of the players are under seal and are not disclosed in this
opinion.
5
CDT is a third-party administrator of “drug and alcohol testing pro-
grams” that was hired to oversee MLB’s drug use evaluation program. The
company includes “top experts in pharmacology, forensic toxicology, lab-
oratory management, medical review, legal, and administrative compli-
ance.” See Comprehensive Drug Testing: About Us, http://
www.cdtsolutions.com/about_us.html (last visited Nov. 10, 2006).
6
Quest offers laboratories that conduct “drugs of abuse testing and ther-
apeutic drug monitoring” with “the most advanced methodologies avail-
able.” See Quest Diagnostics: Diagnostic Testing & Services, http://
www.questdiagnostics.com/brand/business/b_bus_lab_index.html (last
visited Nov. 10, 2006). Quest’s laboratory in Las Vegas performed the
drug testing on the player specimens at issue in these consolidated appeals.
19792 UNITED STATES v. COMPREHENSIVE DRUG TESTING
way to the Supreme Court. Following further negotiations, the
government, believing that a narrower subpoena might be
effective, issued new subpoenas on March 3, 2004, seeking
documents related only to eleven7 players with Balco connec-
tions. These new subpoenas were returnable on April 8, 2004.
Two days before the new return date, the Major League
Baseball Players’ Association—the union representing ath-
letes who play for Major League Baseball8 —informed the
government that it intended to file a motion to quash the sub-
poenas. The following day, as promised, CDT and the Play-
ers’ Association filed such a motion in the Northern District
of California before United States District Judge Jeffrey
White.
B
After learning of the planned motion to quash, the govern-
ment applied on April 7 and April 8, 2004, for warrants to
search CDT’s Long Beach office and Quest’s Las Vegas labo-
ratory. Magistrate Judge Jeffrey Johnson issued a search war-
rant for the office in his jurisdiction, the Central District of
California, and Magistrate Judge Lawrence Leavitt issued a
search warrant for the laboratory in his jurisdiction, the Dis-
trict of Nevada.9 Affidavits submitted to support the warrants
noted that the information sought was already the subject of
7
The government later decided not to seek drug testing evidence related
to one of the eleven players, and on April 22, 2004, sent a letter to the
counsel for CDT withdrawing requests for documents related to that
player.
8
The testing records at issue in these cases were created pursuant to a
collective bargaining agreement between Major League Baseball and the
players of Major League Baseball (represented by the Major League Base-
ball Players’ Association).
9
The pursuit of search warrants in different districts was proper under
the applicable federal rule, which gives a magistrate judge the authority
“to issue a warrant to search for and seize a person or property located
within the district,” “to issue a warrant for a person or property outside the
district if the person or property is located within the district when the
warrant is issued but might move or be moved outside the district before
the warrant is executed,” or “in an investigation of domestic terrorism or
international terrorism . . . [to] issue a warrant for a person or property
within or outside that district.” Fed. R. Crim. P. 41(b).
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19793
grand jury subpoenas and that a motion to quash was expected.10
Contrary to appellee’s arguments, the government never
claimed in its affidavits that any evidence was in danger of
being destroyed.11
The April 7 and April 8 warrants authorized the seizure of
drug test records and specimens for ten named Balco-
connected players, as well as “[a]ll manuals, pamphlets, book-
lets, contracts, agreements and any other materials detailing or
explaining” CDT’s or Quest’s “administration of Major
League Baseball’s drug testing program.”12 The warrants also
authorized the search of computer equipment, computer stor-
age devices, and—where an on-site search would be
impracticable—seizure of either a copy of all data or the com-
puter equipment itself. “[L]aw enforcement personnel trained
in searching and seizing computer data” (designated “com-
puter personnel”) were responsible for choosing the appropri-
ate course of action to capture the electronic data sought. If
seizure of all data or equipment was necessary, “appropriately
trained personnel” would review the data, retaining the evi-
dence authorized by the warrant and designating the remain-
der for return.
On the morning of April 8, 2004, Special Agent Jeff
Novitzky (the lead case agent) and eleven other federal agents
—including Computer Investigative Specialist Agent Joseph
Abboud—executed the search warrant for CDT’s Long Beach
office. Although CDT personnel were initially cooperative,
10
The affidavit for the search warrant in the District of Nevada advised
the court that Quest “intend[ed] to move to quash the subpoena.” Later,
that language was crossed out and replaced with a handwritten note: “A
motion to quash has been filed. 4.7.04,” followed by Judge Leavitt’s ini-
tials.
11
See infra Section III.A.2.
12
The April 8 warrant also expressly authorized the seizure of “corre-
spondence” and “e-mails” detailing or explaining Quest’s administration
of the drug testing program.
19794 UNITED STATES v. COMPREHENSIVE DRUG TESTING
one of CDT’s directors—after speaking with counsel—
informed Agent Novitzky that CDT would not assist federal
officers in locating the evidence they were authorized to seize
and that the agents should “do what they needed to do.” When
informed that agents might be forced to seize all computer
equipment for up to sixty days, the director again contacted
counsel, exclaiming that such a seizure would “shut[ ] the
business down.”
Throughout the morning and early afternoon, Agent
Novitzky spoke several times with CDT’s attorney, David
Bancroft. Bancroft asked Agent Novitzky not to seize any-
thing while he attempted to work out a beneficial solution
with the United States Attorney’s Office in San Francisco.
Later, Bancroft told the agent that CDT had only one hard-
copy document eligible for seizure. Around noon, both Agent
Novitzky and Assistant United States Attorney Jeff Nedrow
spoke with Bancroft and CDT’s directors via conference call.
Bancroft emphasized that any help CDT provided should not
be construed to constitute consent and then informed Nedrow
and Agent Novitzky that CDT had two computers on which
agents would find information relevant to the search warrant.
During this conference call, Agent Novitzky learned that
agents had discovered a hard-copy document with names and
identifying numbers for all MLB players, including some of
the ten named Balco players. Agent Novitzky faxed the docu-
ment, which was not the “only document eligible for seizure”
to which Bancroft had alluded, to Nedrow for preparation of
another search warrant to seize specimen samples from Quest
based on the identifying numbers.13 One of CDT’s directors
13
A separate group of federal agents had simultaneously executed a sep-
arate search warrant at Quest’s Las Vegas laboratory, but they were unable
to locate the specimens to be seized, because the specimens were identi-
fied by number only. Agents used the master list from CDT to apply for
a third search warrant. The new warrant for Quest was authorized by
Judge Leavitt in the District of Nevada at 6 p.m. that evening, and agents
seized the then-identifiable Balco players’ specimens later that same night.
This opinion focuses on the search of CDT, because the motions for return
of property were premised on the government’s conduct during that
search.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19795
became visibly upset when she noticed the document being
faxed. She left the premises, but when she returned, she
opened a locked drawer and presented agents with a docu-
ment that contained drug testing results for the ten named
Balco players—the document previously described as the
only seizable hard-copy document on site.14
At 2:35 p.m., a CDT director finally identified a computer
directory containing all of the computer files for CDT’s sports
drug testing programs. This directory, labeled by its original
compiler as the “Tracey” directory, contained numerous sub-
directories and hundreds of files. Seeing this, Agent Abboud
recommended copying the entire directory for off-site analy-
sis, because of the time and intrusiveness involved in search-
ing the voluminous directory on site. Knowing that the
warrant required them to rely upon the advice of a computer
analyst—here the advice of Computer Investigative Specialist
Agent Joseph Abboud—agents copied the directory and
removed the copy for later review at government offices.
The search of the CDT facility concluded shortly after 5
p.m., but before he left the premises, Agent Novitzky
reviewed with CDT directors the evidence seized during the
search. The documents seized included a twenty-five-page
master list of all MLB players tested during the 2003 season
and a thirty-four-page list of positive drug testing results for
eight of the ten named Balco players, intermingled with posi-
tive results for twenty-six other players.15
14
Some time later, agents located a billing document for CDT’s off-site
Long Beach storage locker. After agents obtained a fourth warrant, which
allowed them to search and seize evidence in the locker, a CDT director
agreed to open the compartment for the agents.
15
Copies of all seized documents were provided to CDT by the govern-
ment on April 16, 2004.
19796 UNITED STATES v. COMPREHENSIVE DRUG TESTING
C
Upon returning to his office in San Jose, California, Agent
Novitzky briefly reviewed the contents of the Tracey direc-
tory, identifying five subdirectories related to MLB. Within
these directories, Agent Novitzky identified files authorized
by magistrate judges for seizure, including the master file of
positive drug test results.16 On April 26, 2004, the Players’
16
On April 30, the government applied for a fifth search warrant in the
Northern District of California, asking for authorization to “seize” all elec-
tronic data “regarding drug specimens, drug testing, specimen identifica-
tion numbers, athlete identification numbers, and drug test results, retained
by [CDT] . . . pertaining to the drug testing of Major League Baseball
players, located within the copy of a CDT computer sub-directory cur-
rently in the possession of the [Internal Revenue Service (“IRS”)] in San
Jose, California, identified as the ‘Tracey’ sub-directory, bearing the fol-
lowing computer file group names: (1) ‘MAJOR LEAGUE GROUP’ (2)
‘MLB BILLING’ (3) ‘MLB Drug SubCommittee’ (4) ‘MLB Follow UP’
(5) ‘MLB IOC.’ ” Because this copy of the Tracey directory was in the
hands of the IRS in San Jose, in the Northern District of California, the
government sought the search warrant in that district. Magistrate Judge
Howard Lloyd approved the warrant. The government did not notify CDT,
presumably because the IRS already had in its possession the copy of the
entire directory containing the relevant materials.
The Players’ Association subsequently filed a Fed. R. Crim. P. 41(g)
motion in the Northern District of California seeking return of any prop-
erty taken pursuant to the April 30 search warrant, and on August 9, 2004,
Judge Illston granted this motion. The government did not appeal the order
and does not dispute it now. Instead, the government asserts that it retains
the right to review the Tracey directory based upon the April 7 search war-
rants, a contention we address in this consolidated appeal.
Insofar as the dissent suggests that the pursuit of the April 30 search
warrant evidences bad faith harassment by the government and an attempt
to evade a possibly adverse order on the motion for return of property filed
in the Central District of California, we decline to speculate. We have no
reason to believe that the government sought the April 30 warrant for pur-
poses of harassment, rather than to avoid an additional search of CDT that
would have followed from authorization to seize the original copy in the
Central District. Since no district court has ever held an evidentiary hear-
ing, and the government complied with the commands of the criminal
rules to secure search warrants from the magistrate judges in whose dis-
tricts the property was located, based upon a showing of probable cause
that incriminating evidence would be found, we see no signs of bad faith
to support the district courts’ contrary conclusion.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19797
Association filed motions under Federal Rule of Criminal
Procedure 41(g)17 seeking return of the property seized.
On May 5, using information culled from the Tracey direc-
tory, the government applied for new search warrants to seize
all specimens and records relating to the over-one hundred
non-Balco players who had tested positive for steroids. Mag-
istrate Judge Leavitt in the District of Nevada authorized sei-
zure of the specimens from Quest, and Magistrate Judge
Rosalyn M. Chapman in the Central District of California
authorized the seizure of records from CDT. Again, the gov-
ernment sought and obtained each warrant from the district
court whose jurisdiction encompassed the situs of the property
to be searched, as directed by Fed. R. Crim. P. 41(b).18 The
government executed the warrants on May 6, and the Players’
Association immediately filed Fed. R. Crim. P. 41(g) motions
seeking return of the specimens and records seized.
On August 19, 2004, Judge Mahan granted the Fed. R.
Crim. P. 41(g) motion brought by the Players’ Association in
the District of Nevada and ordered the government to return
all specimens seized from Quest and all notes and memoranda
compiled by agents who reviewed the evidence, other than
those pertaining to the ten Balco players named in the original
search warrant.19 He made findings—without conducting an
17
Fed. R. Crim. P. 41(g) reads:
Motion To Return Property. A person aggrieved by an unlawful
search and seizure of property or by the deprivation of property
may move for the property’s return. The motion must be filed in
the district where the property was seized. The court must receive
evidence on any factual issue necessary to decide the motion. If
it grants the motion, the court must return the property to the
movant, but may impose reasonable conditions to protect access
to the property and its use in later proceedings.
18
See supra note 9.
19
The government moved for a stay of this order because the evidence
was otherwise lawfully in its possession pursuant to the subpoena of May
6, 2004. Judge Mahan denied the motion on November 1, 2004, based on
the government’s failure to raise the subpoena argument at the original
hearing.
19798 UNITED STATES v. COMPREHENSIVE DRUG TESTING
evidentiary hearing—that “[t]he government callously disre-
garded the affected players’ constitutional rights” and that the
government unreasonably refused “to follow the procedures
set forth in United States v. Tamura, 694 F.2d 591 (9th Cir.
1982),” with regard to the intermingled records. Almost six
weeks later, and again without conducting an evidentiary
hearing, Judge Cooper rejected the government’s suggestion
that the documents were seizable under the warrant exception
that applies to plain-view evidence of contraband,20 and
granted the Players’ Association’s Fed. R. Crim. P. 41(g)
motion in the Central District of California. The order, which
also cited the government’s failure to follow Tamura’s proce-
dures, mandated return to CDT of any evidence seized that
was not connected to the ten players named in the warrant.
Judge Cooper denied the government’s motion for reconsider-
ation of this order on February 9, 2005.
These orders are the subjects of two of the appeals consoli-
dated here.
D
The third appeal concerns grand jury subpoenas issued to
Quest and CDT on May 6, 2004, which were to be returned
by June 10, 2004. These subpoenas reached all specimens and
records of positive steroid drug tests for more than one hun-
dred MLB players, not simply the results for the ten Balco
players named in the earlier subpoenas.21 This evidence was
20
We discuss the inapplicability of this warrant exception in Section
III.A.4. See infra note 39.
21
These subpoenas were not the earliest ones issued in the investigation.
The first subpoenas dated to January 16, 2004, and mandated the provision
of all MLB drug testing records. On March 3, 2004, the government
obtained narrower subpoenas for eleven Balco-connected players.
On April 22, 2004, the government sent a letter to CDT withdrawing the
January 2004 subpoenas. In the same letter, the government reduced the
March 3, 2004, subpoenas to ten, not eleven, Balco players. At the time
the government obtained the May 6 subpoenas, the only outstanding sub-
poenas were those of March 3, which sought the records of ten players
with Balco connections.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19799
also pursued in the government’s May 5 search warrants. The
government sought these later search warrants and subpoenas
on the ground that the April 8 seizures did not provide all
information needed for the investigation.22
Quest complied with the May 6 subpoena, providing the
government with hundreds of pages of documents, but the
government agreed to defer CDT’s compliance pending reso-
lution of the search warrant litigation. On August 31, 2004,
however, the government revoked the indefinite deferral and
instructed CDT to comply with the subpoena by September
14, 2004. The Players’ Association filed a motion to quash the
subpoenas on September 13, 2004.
In December 2004, after Judge Illston heard argument on
the motion but took no testimony, she found that the govern-
ment’s conduct was unreasonable and constituted harassment.
She then filed an order quashing the subpoenas, which the
government timely appealed.
II
Before we review the orders granting the Fed. R. Crim. P.
41(g) motions in the Central District of California and the
District of Nevada, we must decide two jurisdictional issues:
whether the Players’ Association has standing to challenge the
search and seizure of evidence from Quest and whether the
government timely appealed Judge Cooper’s order to return
22
Recognizing that the documents they seized from CDT pursuant to the
April 7 search warrant might not have included all documents relevant to
the investigation (even with regard to Balco-related players, see infra note
37), and deciding that the positive test results uncovered for MLB players
beyond the ten with Balco connections could be valuable to the investiga-
tion, the government asked for a broader warrant on May 6 in the Central
District of California.
19800 UNITED STATES v. COMPREHENSIVE DRUG TESTING
the materials seized from CDT in the Central District of Califor-
nia.23
A
The government contends that the Players’ Association
lacks standing to file the Fed. R. Crim. P. 41(g) motion,
because it lacked access, control, and ownership over the
records and specimens seized from Quest. Furthermore, it
argues that the Players’ Association may not base its interest
in the property (the urine specimens and test results) on the
privacy interests of the individual players.24
[1] An association has standing to sue on behalf of its
members when they would otherwise have independent stand-
ing to sue, the interests sought to be protected are germane to
the organization’s purpose, and the claim asserted does not
require the participation of individual members in the lawsuit.
Pennell v. City of San Jose, 485 U.S. 1, 7 n.3 (1988) (citations
omitted); see also Hunt v. Wash. Apple Adver. Comm’n, 432
U.S. 333, 343 (1977).
23
We need not decide whether the Players’ Association has standing to
challenge the CDT seizures because CDT is a party and has standing on
its own to seek return of the property seized from its office and storage
locker.
24
The Supreme Court has clearly rejected “vicarious” or “target” stand-
ing to assert Fourth Amendment rights. See Rakas v. Illinois, 439 U.S.
128, 133-34 (1978) (refusing to extend standing to a party who was not
a “victim” of the search); see also United States v. Taketa, 923 F.2d 665,
669-70 (9th Cir. 1991) (following Rakas, 439 U.S. at 134, and holding that
a defendant did not have standing to challenge a search of another defen-
dant’s office). “A person who is aggrieved by an illegal search and seizure
only through the introduction of damaging evidence secured by a search
of a third person’s premises or property has not had any of his Fourth
Amendment rights infringed.” Rakas, 439 U.S. at 134 (emphasis added).
Because we are satisfied that the Players’ Association has met the require-
ments of associational standing, we do not reach its argument that it has
an ownership interest in the seized items sufficient to establish standing
in its own right. We leave that question for another day.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19801
[2] We are satisfied that the Players’ Association satisfies
each prong of this test. First, the Players’ Association repre-
sents all MLB players, each one of whom could certainly sue
in his own right to seek return of his own drug test records.
Second, the interests sought to be protected—the players’ pri-
vacy interests in their drug testing records—are related to the
organization’s sole purpose: to represent the best interests of
MLB players. Third, the Players’ Association sought only the
return of the players’ drug testing information and specimens;
for this type of prospective relief, the individual players need
not be a party to the action. See Warth v. Seldin, 422 U.S.
490, 515 (1975) (holding that an association lacked standing
where it sought damages rather than “a declaration, injunc-
tion, or some other form of prospective relief”).
[3] We therefore conclude that the Players’ Association has
standing to assert the Fourth Amendment rights of its mem-
bers and to file Fed. R. Crim. P. 41(g) motions seeking return
of seized property in which their members hold privacy inter-
ests.
B
[4] The Players’ Association, for its part, contends that the
government failed to appeal in a timely manner Judge Coo-
per’s order for the return of property. In order to be timely
when the United States, its officer, or its agency is a party, a
notice of appeal must be filed “within 60 days after the judg-
ment or order appealed from [was] entered.” Fed. R. App. P.
4(a)(1)(B). Where a district court entertains a motion for
reconsideration, the 60-day period is tolled until the motion is
decided. See Scott v. Younger, 739 F.2d 1464, 1467 (9th Cir.
1984) (noting that a timely filed motion “tolls the running of
the time limitations for filing the notice of appeal until the
district court rules on the motion”).
The “United States’ Motion for Reconsideration and Modi-
fication of Court’s October 1, 2004 Order Granting Return of
19802 UNITED STATES v. COMPREHENSIVE DRUG TESTING
Property” was filed on November 19, 2004. In its opposition
to that motion, the Players’ Association stated that the “gov-
ernment neither invoke[d] nor satisfie[d] any of the require-
ments of Local Rule 7-18 [“Motion for Reconsideration”] to
support its request for reconsideration.” The appellees’ reply
brief suggests that the motion was merely “styled as one for
reconsideration,” and does not actually qualify as such
because the motion only “asked the court to water down its
findings” without claiming that “the Court failed to evaluate
the merits.”
We disagree. Like the dissent, we believe the motion was
properly construed as one for reconsideration. Unlike the dis-
sent, however, we apply the local rule governing motions for
reconsideration, and do not recharacterize the motion as a
request for “Relief from Judgment or Order” under Fed. R.
Civ. P. 60(b) (“Rule 60(b)”).
[5] The motion falls squarely within the definition of a
“Motion for Reconsideration” under C.D. Cal. Local R. 7-18
(“Local Rule 7-18”). Judge Cooper recognized this when she
chose to analyze the motion under Local Rule 7-18. This anal-
ysis was proper, for Local Rule 7-18 permits a party to bring
a “Motion for Reconsideration” on the basis of a “manifest
showing of a failure to consider material facts presented to the
Court before such decision.” C.D. Cal. Local R. 7-18(c). The
government made its motion on precisely these grounds.
The dissent agrees that Local Rule 7-18 applies to such
motions, and correctly notes that the “Federal Rules of Civil
Procedure do not provide for ‘Motions for Reconsideration.’ ”
Dissent at 19858. Instead, “such motions are creatures of local
rule or practice.” Id. The dissent then points out a caveat:
“Where a conflict arises between the two, federal rules must
prevail.” Id. (citations omitted). From this point, the dissent
draws a far more sweeping conclusion: “For the purposes of
appeal, when a local rule based post-judgment motion for
reconsideration is made, we construe it either as (1) a motion
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19803
to alter or amend a judgment under Rule 59(e) or (2) a motion
filed under 60(b) for relief from judgment.” Dissent at 19859
(citing Am. Ironworks & Erectors v. N. Am. Constr. Corp.,
248 F.3d 892, 898 99 (9th Cir. 2001)). So broad a conclusion
is not justified. Am. Ironworks does not even mention a local
rule in its discussion of Rule 59(e) or Rule 60(b). The case
simply addresses which federal rule to apply to a motion not
already treated as a motion for reconsideration under a local
rule.
Even more problematically, the dissent places the cart
before the horse by assuming an inconsistency between the
federal and local rules before stating which federal rule even
applies.25 We decline so hastily to dispose of a local rule.
“Local rules are ‘laws of the United States,’ ” Marshall v.
Gates, 44 F.3d 722 (9th Cir. 1995) (quoting United States v.
Hvass, 355 U.S. 570, 575 (1958)), and “valid if . . . ‘not
inconsistent’ with the Federal Rules of Civil Procedure,’ ” id.
(citing Fed. R. Civ. P. 83). Unlike the dissent, we look to the
text of the rules in order to discern whether such an inconsis-
tency exists. Rule 60(b) reads:
On motion and upon such terms as are just, the court
may relieve a party or a party’s legal representative
from a final judgment, order, or proceeding for the
following reasons: (1) mistake, inadvertence, sur-
prise, or excusable neglect; (2) newly discovered
evidence which by due diligence could not have
been discovered in time to move for a new trial
under Rule 59(b); (3) fraud (whether heretofore
denominated intrinsic or extrinsic), misrepresenta-
25
An initial analysis of the specific local and federal rules is necessary
in order to decide whether the rules conflict. Rule 59(e) and Rule 60(b)
differ greatly, and a local rule that appears inconsistent with one may well
be consistent with the other. See Fed. R. Civ. P. 59(e) (“Motion to Alter
or Amend Judgment. Any motion to alter or amend a judgment shall be
filed no later than 10 days after entry of the judgment.”); see infra at
19803-04 (citing Fed. R. Civ. P. 60(b)).
19804 UNITED STATES v. COMPREHENSIVE DRUG TESTING
tion, or other misconduct of an adverse party; (4) the
judgment is void; (5) the judgment has been satis-
fied, released, or discharged, or a prior judgment
upon which it is based has been reversed or other-
wise vacated, or it is no longer equitable that the
judgment should have prospective application; or (6)
any other reason justifying relief from the operation
of the judgment.
Fed. R. Civ. P. 60(b). In contrast, Local Rule 7-18 provides:
A motion for reconsideration of the decision on any
motion may be made only on the grounds of (a) a
material difference in fact or law from that presented
to the Court before such decision that in the exercise
of reasonable diligence could not have been known
to the party moving for reconsideration at the time of
such decision, or (b) the emergence of new material
facts or a change of law occurring after the time of
such decision, or (c) a manifest showing of a failure
to consider material facts presented to the Court
before such decision.
C.D. Cal. Local R. 7-18 (emphasis added). The government’s
motion clearly falls under Local Rule 7-18(c), because, as the
dissent points out, the government “assert[ed] that the court
had ignored evidence and arguments.” Dissent at 19863. In
contrast, the motion does not fall within Rule 60(b), for the
government did not request relief “from the operation of the
judgment” but simply and expressly asked the court to “re-
consider and modify several aspects of this order which inac-
curately characterize the government’s actions.”26
The government neither requested Rule 60(b) relief nor
cited the grounds for such relief, which include “mistake,
26
For the same reason, the motion is not one to “alter or amend the judg-
ment” under Fed. R. Civ. P. 59(e).
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19805
inadvertence, surprise, or excusable neglect,” “newly discov-
ered evidence,” “fraud . . . misrepresentation, or other miscon-
duct of an adverse party, a change in the binding nature of the
judgment, or “any other reason justifying relief from the oper-
ation of the judgment.” Fed. R. Civ. P. 60(b)(1)-(6). In the
absence of a clear inconsistency between the local and federal
rules, we will not apply a general federal rule where a specific
local rule is directly on point. As the dissent aptly points out,
“[w]e are . . . under an obligation to construe local rules so
that they do not conflict with the federal rules, and we have
exercised our ingenuity in doing so.” Marshall, 44 F.3d at 725.27
[6] Satisfied that the district court correctly analyzed the
motion under Local Rule 7-18, we turn to its timeliness, in
order to decide whether it tolled the period to file an appeal.
Local Rule 7-18 does not expressly set a time frame in which
to file a motion for reconsideration. However, the rule has
been read to “provid[e] for a reasonable time within which to
seek reconsideration.” Meredeth v. Erath, 2001 WL 1729626,
*1 (C.D. Cal.) (Cooper, J.) (defining the relevant period for
filing a “Motion for Reconsideration” under then-C.D. Cal.
Local R. 7-16, the same rule now codified as C.D. Local R.
7-18). In Meredeth, the district judge—the same Judge Coo-
per whose order is appealed here—found that an eleven-
month delay in filing a motion for reconsideration was unrea-
27
Marshall does not hold that the possibility of conflict between local
and federal rules should be avoided by ignoring the local rule. Indeed, in
Marshall the court found the local rule applicable, although “the local rule
appear[ed] to be inconsistent with the federal rule governing summary
judgment to the extent that it bars a party from submitting affidavits in
opposition to summary judgment prior to the day of the hearing.” 44 F.3d
at 724. The court “engage[d] in an interpretation in order to produce con-
sistency,” id. at 725, and concluded that the federal rule “d[id] not uncon-
ditionally require a district court to accept affidavits up to the date set for
hearing on the motion for summary judgment.” Id. Marshall avoided con-
flict by refusing to interpret the federal rule in a way that would render
invalid the local rule. Harmonizing federal and local rules may often leave
both intact.
19806 UNITED STATES v. COMPREHENSIVE DRUG TESTING
sonable, making the motion untimely under Local Rule 7-18.
Id. In contrast, Judge Cooper did not conclude that the two-
month delay in the motion here was unreasonable and did not
view the government’s motion in this case as untimely
(although the government advised her that it had filed “out-
side of the normal time frame”). We agree with her determi-
nation that the shorter delay here was reasonable. One factor
supporting its “reasonableness” is that neither the government
nor the movants received the order until November 2, 2004.
Given these circumstances, we do not believe Judge Cooper’s
decision to hear the motion was impermissible under the “rea-
sonable time” period permitted under Local Rule 7-18. See
Meredeth, 2001 WL 1729626, at *1.
[7] Thus, we are satisfied that the motion for reconsidera-
tion was timely filed. Judge Cooper denied the motion on
February 9, 2005, tolling the deadline for any appeal until
April 9, 2005. The government filed its appeal on March 9,
2005, with thirty days remaining before the filing deadline.
The timely nature of that appeal, and of the motion for recon-
sideration before it, gives us jurisdiction to consider the origi-
nal order.28
III
The government contends that Judge Cooper and Judge
28
The dissent takes a curious position, at once arguing that “the district
court did not have jurisdiction to consider the original motion” and at the
same time stating that the district court’s denial of the motion for
reconsideration—following a three-page discussion of the merits of the
motion—was “proper.” In the absence of jurisdiction, a discussion of the
merits is inappropriate. See Firestone Tire & Rubber Co. v. Risjord, 449
U.S. 368, 379 (1981) (noting the familiar rule that a “court lacks discretion
to consider the merits of a case over which it is without jurisdiction”). In
the absence of jurisdiction, dismissal—not denial on the merits—is appro-
priate.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19807
Mahan improperly exercised equitable discretion to hear and
to grant the respective Fed. R. Crim. P. 41(g) motions.29
A district court may exercise equitable jurisdiction to hear
such motions only after analyzing the four factors set out in
Ramsden v. United States, 2 F.3d 322 (9th Cir. 1993). Specifi-
cally, the court must consider
1) whether the Government displayed a callous dis-
regard for the constitutional rights of the movant; 2)
whether the movant has an individual interest in and
need for the property he wants returned; 3) whether
the movant would be irreparably injured by denying
return of the property; and 4) whether the movant
has an adequate remedy at law for the redress of his
grievance.
Id. at 325. Both district courts here found that all four factors
weighed in favor of equitable jurisdiction.
Because the government now concedes that the parties have
no adequate remedy at law, we only need to discuss the first
three Ramsden factors.
A
Interestingly, the Players’ Association does not challenge
the validity of the warrants authorizing the April 8 searches.
Thus, we assume that probable cause existed to support issu-
ance of the search warrants for the property to be seized from
the places named in each warrant. Nevertheless, the Players’
Association defends the grant of its motions for return of
29
We review a district court’s decision to exercise equitable jurisdiction
under Fed. R. Crim. P. 41(g) for abuse of discretion. Ramsden, 2 F.3d 322,
324 (9th Cir. 1993). We review the district court’s interpretation of Fed.
R. Crim. P. 41(g) de novo. Id. The lawfulness of a search and seizure is
also reviewed de novo. United States v. Mendoza-Ortiz, 262 F.3d 882, 885
(9th Cir. 2001) (per curiam).
19808 UNITED STATES v. COMPREHENSIVE DRUG TESTING
property, arguing that the government acted in callous disre-
gard of the Fourth Amendment rights of the Players’ Associa-
tion, the MLB players, and CDT, offering a farrago of
arguments to that end. We consider each in turn.
1
[8] The Players’ Association first argues that the govern-
ment sought search warrants in an attempt to avoid judicial
review of the overboard January 2004 subpoenas. We are
aware of no authority that the simultaneous pursuit of search
warrants and subpoenas in aid of an ongoing grand jury inves-
tigation constitutes a violation of the Fourth Amendment.
Neither can we accept that the government could not have
obtained and executed a search warrant had the January sub-
poenas been quashed. The government argues—and we have
previously recognized—that subpoenas and search warrants
are not the same. See In re Grand Jury Subpoenas Dated
December 10, 1987, 926 F.2d 847, 854 (9th Cir. 1991); see
also infra Section V. Unlike a subpoena, a search warrant
may be obtained only upon a showing of probable cause—a
burden the government sometimes considers necessary to
establish in order to obtain certain production of evidence.30
In contrast, a grand jury subpoena may issue simply because
an Assistant United States Attorney believes the evidence
may assist the grand jury in furthering the progress of an
ongoing investigation which may never establish probable
cause to charge anyone. The “[grand jury] . . . has the right
to every man’s evidence,” United States v. Calandra, 414
U.S. 338, 345 (1974) (internal quotation marks omitted; sec-
ond alteration in original), and an indictment may be obtained
30
Significantly, while a subpoena may be quashed, a “person to be
searched has no lawful way to prevent execution of the warrant.” In re
Grand Jury Subpoenas Dated December 10, 1987, 926 F.2d at 854. His
remedy for an unlawful search and seizure or for the deprivation of prop-
erty is to seek return of anything seized under Fed. R. Crim. P. 41(g), or,
if charges are filed, to move to suppress use of the evidence against him
at trial, see Fed. R. Crim. P. 12(b).
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19809
even on the basis of illegally seized evidence. Id. at 351-52.
In any event, persons aggrieved later may litigate the seizure
and subsequent use of the evidence, as provided in the Federal
Rules of Criminal Procedure. We fail to see how the govern-
ment’s compliance with the procedural and evidentiary bur-
dens necessary to obtain a search warrant from a neutral and
detached magistrate can be interpreted as callous disregard of
the Fourth Amendment.
2
Next, the Players’ Association accuses the government of
making “misleading representations” in applying for the
search warrants. In her October 1 order, Judge Cooper
accepted this argument, finding that:
[I]n seeking the warrant (not the correct procedure
for obtaining documents from a third party who is
not a suspect), the Government explained to the
Magistrate that the records in question were in dan-
ger of being destroyed. This is a blatant misrepresen-
tation, as demonstrated by the records in this case.
Unfortunately, Judge Cooper’s conclusion misstates estab-
lished Fourth Amendment jurisprudence,31 under which “valid
warrants may be issued to search any property, whether or not
31
To the extent that Judge Cooper relied on any failure by the govern-
ment to comply with the United States Attorney’s Manual, such reliance
is unwarranted. The Manual “does not create any substantive or proce-
dural rights,” United States v. Fernandez, 231 F.3d 1240, 1246 (9th Cir.
2000), and thus any violation of procedures established therein cannot
independently establish a Fourth Amendment violation. We do not suggest
that deviations from United States Attorney’s Manual have no signifi-
cance. Rather, we conclude that such deviations in the case at bar do not
rise to the level of a constitutional or statutory violation that would render
granting a motion for return of property appropriate. It certainly does not
support an order depriving the grand jury of the use of such evidence in
aid of its expanded criminal investigation.
19810 UNITED STATES v. COMPREHENSIVE DRUG TESTING
occupied by a third party, at which there is probable cause to
believe that fruits, instrumentalities, or evidence of a crime
will be found.” Zurcher v. Stanford Daily, 436 U.S. 547, 554
(1978).
[9] More importantly, Judge Cooper’s finding derives no
support from the record. Magistrate Judge Johnson expressly
found to the contrary, and neither judge heard any evidence
from witnesses as the Player’s Association had urged. In
applying for the search warrants in this case, the government
never informed any judge that evidence was in danger of
being destroyed. Remarkably, despite its submission of four-
teen volumes of supplemental excerpts of record, the Players’
Association provides only a solitary citation to show such
“blatant misrepresentation.” Tellingly, the only arguable allu-
sion to destruction of evidence is found in the government’s
opposition to the Players’ Association’s Fed. R. Crim. P.
41(g) motion—made after execution of the search warrants,
not to obtain them. There, the government retrospectively
explained that it “had good-faith reasons to believe that CDT
was detrimentally delaying the investigation, and that there
was some danger of the availability of the sought-after
records being jeopardized.” The government never suggested
this concern as a reason for any court to grant a search war-
rant in the first place. The district court’s finding to the con-
trary was clearly erroneous.
The Players’ Association also accuses the government of
repeatedly failing to inform judges from whom search war-
rants were obtained that CDT was seeking to quash the sub-
poena. The dissent accepts this argument and paints a picture
of deliberate concealment. Unfortunately, this picture is not
supported by the record. The dissent contends that “[t]he gov-
ernment never brought to the magistrate judge’s attention that
there was a motion pending in the Northern District of Cali-
fornia to quash the grand jury subpoena.” Dissent at 19836.
However, in his search warrant affidavit filed on April 7,
2004, Agent Novitsky expressly advised the court that “CDT
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19811
has declined to comply with the [March 3 grand jury] sub-
poena and has stated its intent to attempt to quash the subpoe-
na.”
The government had no reason to refer to a pending motion
to quash the grand jury subpoena, as no such motion was filed
prior to April 7, 2004. Indeed, Agent Novitsky filed for the
search warrant in the Central District on the same day that
CDT moved to quash the grand jury subpoena in the Northern
District.32 Parties must reveal relevant facts, but they are not
required to be prophetic.
[10] The record reflects similar candor on the part of gov-
ernment agents in the District of Nevada, where the govern-
ment submitted affidavits for a search warrant also on April
7. There, too, the government advised the court of the existing
subpoena as well as Quest’s intention “to move to quash the
subpoena.” Alerted to the impending motion to quash, Judge
Leavitt noted the date when the motion ultimately was filed.33
As in the Central District of California, the record contradicts
any suggestion that the government failed to reveal a pending
motion to quash.
3
The Players’ Association next argues that the government
used the search warrants for the records of the ten named
Balco players as a pretext to seize the records of other MLB
players. In support, they cite United States v. Rettig, 589 F.2d
418 (9th Cir. 1978), where the police obtained a warrant for
marijuana paraphernalia after failing a day earlier to obtain a
warrant to search for evidence of a cocaine smuggling con-
spiracy. Id. at 422-23. During the ensuing search, officers told
32
The record does not contain evidence that the motion to quash was
filed in the Northern District early enough in the day for the government
to know of it before filing its affidavit in the Central District.
33
See supra note 10.
19812 UNITED STATES v. COMPREHENSIVE DRUG TESTING
the suspect’s wife to “tell us where [the cocaine] is so we
don’t have to mess up your house.” Id. at 422 n.1.
Such egregious police misconduct did not occur here.
Agents executing the warrant at CDT were authorized to seize
the drug testing records of the ten named Balco players. In
their lawful search for those records, they found paper and
electronic data related to those players, intermingled with data
pertaining to additional MLB players not mentioned in the
search warrant. One document, at issue here, was a spread-
sheet of positive drug test results, where results for eight of
the ten named Balco players were intermingled with results
for other MLB players. Because the agents saw that the
spreadsheet clearly contained information within the scope of
the warrant, they seized the spreadsheet for off-site review.
[11] The record contains no support for the assertion that
agents specifically targeted and seized records unrelated to the
players mentioned in the search warrant. To the contrary, the
agents narrowed their seizures to files containing information
on the named Balco players, and during the May 6 search at
Quest, they seized specimens belonging only to the ten Balco
players. Finally, the agents copied relevant files in order to
avoid an excessively long and intrusive on-site search,
although duplication risked the loss of deleted documents that
would only be visible on the original drives.
[12] We see no evidence of bad faith or pretext here.
4
Nor does the seizure of intermingled documents demon-
strate “a callous disregard for the constitutional rights of the
movant.” Ramsden, 2 F.3d at 325 (stating the first factor
weighing in favor of equitable jurisdiction over a motion for
return of property). In this analysis, we focus on the Fourth
Amendment and note that “[a]s always under the Fourth
Amendment, the standard is reasonableness.” United States v.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19813
Hill, 322 F. Supp. 2d 1081, 1088 (C.D. Cal. 2004) (Kozinski,
Circuit J., sitting by designation). Reasonableness can be
especially difficult to define in the computer context, given
the well-known “difficulties of examining and separating
electronic media at the scene.” Hill, 322 F. Supp. 2d at 1090.
Fortunately, our prior precedent reveals that agents can avoid
the opposing errors of leaving behind essential information
and sweeping up excessive evidence.
[13] In United States v. Beusch, 596 F.2d 871 (9th Cir.
1979), this court addressed a motion to suppress seized evi-
dence consisting of ledgers containing items covered by the
search warrant intermingled with items not covered by the
search warrant. Id. at 876-77. The Beusch court concluded
that no Fourth Amendment violation occurred when agents
seized “single files and single ledgers, i.e., single items which,
though theoretically separable, in fact constitute one volume
or file folder.” Id. at 877.
The Beusch court expressly limited its reach, however:
“[T]he reasons we have given for allowing [such] seizure may
not apply to sets of ledgers or files, but because that is not the
case here, we find it unnecessary to discuss it further.” Id.
Three years later, the court addressed the seizure of sets of
files. See Tamura, 694 F.2d 591. In Tamura, the court
reviewed the conduct of officers executing a search warrant,
which authorized seizure of three specific categories of
records from a Los Angeles office. Id. at 594. In that case,
agents seized—without any limiting effort—files unrelated to
the items mentioned in the search warrant. Id. at 595. The
Tamura court condemned such “wholesale seizure for later
detailed examination of records not described in a warrant.”
Id.
Unfortunately, the Tamura court did not answer a more dif-
ficult question: “Because seizable materials are seldom found
neatly separated from their non-seizable counterparts, how
much separating must police do at the scene to avoid taking
19814 UNITED STATES v. COMPREHENSIVE DRUG TESTING
items that are neither contraband nor evidence of criminal
activity?” Hill, 322 F. Supp. 2d at 1088. As the Hill court
noted, the answer turns upon “reasonableness,” id., a standard
that offers little guidance to government agents. Understand-
ably, the Tamura court sought to give more concrete advice
to help agents remain within the bounds of the Fourth Amend-
ment. The court suggested:
In the comparatively rare instances where documents
are so intermingled that they cannot feasibly be
sorted on site, we suggest that the Government and
law enforcement officials generally can avoid violat-
ing fourth amendment rights by sealing and holding
the documents pending approval by a magistrate of
a further search, in accordance with the procedures
set forth in the American Law Institute’s Model
Code of Pre-Arraignment Procedure.
Tamura, 694 F.2d at 595-96 (emphasis added). Given that the
Tamura court found that the agents had violated Fourth
Amendment rights by making a “wholesale seizure,” id. at
595, this alternative, protective approach was advisory dicta
in that case. See Hill, 322 F. Supp. 2d at 1090 (noting that
after the Tamura court “held that the government’s wholesale
seizure of company documents was illegal because the agents
intentionally seized materials they knew were not covered by
the warrant . . . the Tamura court suggested, albeit in dicta,
that [for such seizure of all computer storage media] a warrant
would be appropriate.” (emphasis added)).34
[14] The Tamura court also stated that substitute protective
procedures could be specified in a search warrant, pursuant to
which “all items in a set of files may be inspected during a
search.” Id. at 595 (emphasis added). In the cases at bar, the
34
The Tamura court suggested that the American Law Institute’s Model
Code of Pre-Arraignment Procedure could guide agents to avoid constitu-
tional violations. 694 F.3d at 595-96.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19815
search warrants spelled out such specific procedures that the
agents were to follow. We believe that the agents in the cases
at bar complied with the procedures specified in the warrant:
Upon searching the premises, law enforcement per-
sonnel trained in searching and seizing computer
data (the “computer personnel”) . . . [to] make an ini-
tial review of any computer equipment and storage
devices to determine whether these items can be
searched on-site in a reasonable amount of time and
without jeopardizing the ability to preserve the data.
...
If the computer personnel determine that it is not
practical to perform an on-site search or make an on-
site copy of the data within a reasonable amount of
time, then the computer equipment and storage
devices will be seized and transported to an appro-
priate law enforcement laboratory for review.
The government executed the warrant under the guidance of
Agent Abboud—a Computer Investigative Specialist,35 and
took care to avoid unreasonable seizures.
Even so, the Players’ Association contends that the govern-
ment breached the warrant’s protocol, because Agent
Novitzky opened and viewed the contents of the Tracey direc-
tory, rather than leaving Agent Abboud to search alone.
Under this view, only Agent Abboud qualified as the “appro-
priately trained personnel” and no other agent had authority
to open and to view CDT computer data. However, the plain
35
We note that these requirements are not the mandates of the Fourth
Amendment. If the warrant had not specified the need for computer ana-
lysts, police would have been “free to hire such experts to help them con-
duct a search . . . and it may well be praiseworthy for them to do so. . . .
But the Fourth Amendment does not require it.” Hill, 322 F. Supp. 2d at
1088 (citing Tamura and other cases that suggest the involvement of spe-
cialized personnel) (citations omitted).
19816 UNITED STATES v. COMPREHENSIVE DRUG TESTING
language of the search warrant does not exclude the assistance
of other law enforcement officers—especially for tasks
involving non-digital work (such as seeking cooperation from
persons on site). The warrant only required that computer per-
sonnel assess the possibility of on site search completion. It
did not preclude others from assisting the computer personnel.36
The sort of assistance provided by Agent Novitzky, a non-
specialized law enforcement officer, was permissible under
the search warrant and was reasonable under the Fourth
Amendment.
[15] Moreover, the agents did not remove files without a
relation to the Balco investigation and did not seize entire cat-
egories of documents to coerce employees into cooperation,
as did the agents in Tamura. See 694 F.2d at 595. Their ulti-
mate decision to remove a relevant number of files for off-site
review stemmed not from disregard of privacy rights, but
from sensitivity to the ongoing disruption caused by the
search to CDT—an innocent third party in the underlying
36
We do not believe that the warrant can be fairly read to require com-
puter personnel to execute all aspects of the search. For example, the more
basic computer recoveries could easily be completed by nonspecialized
law enforcement officers, considering that the type of files at issue were
simple spreadsheets. In today’s world anyone with the most rudimentary
computer skills qualifies as “appropriately trained” when it comes to open-
ing and viewing basic spreadsheets on a modern computer: presumably
any computer user can double-click a selected document or press the
“Enter” key after selecting the desired file.
We recognize that, had CDT stored test results in a Relational Database
Management System requiring specialized expertise to extract data, only
an agent specifically trained in using such a system might be considered
“appropriately trained.” However, we do not interpret the warrant to
require only Computer Investigative Specialists to perform elementary
tasks such as scan a spreadsheet for the persons named in a search warrant,
particularly when, in the end, the spreadsheets would still have been
seized. The search warrant form employed in these cases authorized a
search by “Any Special Agent[s] with the United States Internal Revenue
Service or any other authorized officer,” and was not restricted to searches
only by computer investigative specialists.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19817
investigation. The agents permitted CDT to retain the original
Tracey directory, even though they later explained that this
decision may have prevented them from accessing deleted or
temporary files that could not be transferred by duplication.37
The agents took only a limited set of clearly relevant disks
and a copy of the Tracey directory, which included informa-
tion on players specifically named in the search warrant. Fur-
thermore, just eight days after the search warrant, the agents
provided copies of all seized documents to CDT. Here again,
the agents demonstrated the careful regard absent in Tamura.38
We reject the dissent’s view that government officials
should limit their computer searches to key words suggested
by a searched party. Criticizing the government for “cop[y-
ing] the entire directory” rather than “copying only the subdi-
rectories that pertained to Major League Baseball,” the dissent
suggests that the government should have trusted CDT to
37
Recognizing that the documents they seized on April 8 may not have
included all documents relevant to the investigation, Agent Novitzky
asked for a broader warrant on May 5 in the Central District of California.
He explained that “IRS Special Agent Jeff Jack, a Computer Investigative
Specialist . . . gave me specific examples of deleted files or temporary files
created when printing a file that cannot be[ ] seen or retrieved from a sim-
ple copy of a computer sub-directory, but may be retrievable using foren-
sic tools, if allowed to examine the entire computer system.” Had the
government engaged in a “wholesale seizure” of all possibly relevant
material, as in Tamura, they surely would have seized the entire comput-
ers, rather than made duplicates so as to allow CDT to continue its use of
the originals. See also United States v. Scott-Emuakpor, 2000 WL 288443,
*8 (W.D. Mich.) (“[T]he agents were not confined to searching the files
on the hard drive and disks but could also lawfully search for deleted
material . . . the seizure of [items other than hard drives and disks] was
reasonable because it allowed the agents to preserve the computer system
as it existed for the computer analysts . . . without taking the risk of losing
any files.”).
38
In Tamura, the agents retained master volumes they knew held infor-
mation not covered by the search warrant “for at least six months after
locating the relevant documents.” Tamura, 694 F.2d at 597. In contrast,
the agents in the cases at bar never seized the master hardware with the
Tracey directory.
19818 UNITED STATES v. COMPREHENSIVE DRUG TESTING
point out the relevant files. Dissent at 19839. The dissent
explains that this approach would have allowed the govern-
ment to select the relevant files on-site: “Dr. Jean Joseph of
CDT later stated in an affidavit that the directory was easily
searched by key word and would have provided the test infor-
mation about the ten players in a short period of time.” Id.
[16] The government had no duty to rely on CDT to illumi-
nate the files seizable under the warrant. Like most searched
parties, CDT had an incentive to avoid giving over documents
the government might not know to miss. The government had
no reason to confine its search to “key words” such as the
names of the baseball players. Such a limited search could
easily have overlooked relevant documents, as it would have
in the case of the seizures at Quest. There, testing results were
not saved by key word at all. They were labeled with identifi-
cation numbers, whose connection to specific players could
not be found within the document or at the facility, but were
linked in a document kept in a storage locker located at a dif-
ferent address. See supra Section I.B, notes 13-14 and accom-
panying text.
[17] The government was not required to believe, and had
no reason to assume, that all relevant documents in the Tracey
Directory would be listed under the names of the baseball
players in the warrant. The government’s decision to copy the
entire directory represented a conscientious effort to seek out
all the evidence covered by the search warrant. We do not dis-
cern bad faith or “callous disregard” simply because the
agents determined, after an initial review, that certain inter-
mingled files needed to be reviewed off site, as permitted
under our applicable precedents and the warrant itself.39
39
We do not reach the government’s argument that the “plain view”
exception to the warrant requirement justified seizure of the intermingled
evidence, because the evidence fell within the scope of the search warrant.
See Beusch, 596 F.2d 871 (“Because we hold that the items seized were
covered by the terms of the warrant, we find it unnecessary to deal with
the Government’s contentions that they were admissible under the ‘plain
view’ exception to the warrant requirement.”).
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19819
5
[18] In light of these considerations, we conclude that the
government properly considered and respected the privacy
interests, intrusiveness, and law enforcement needs posed by
the searches in question by removing a copy of the Tracey
directory (not the original) and taking only limited diskettes
and documents containing relevant information. In seizing
these files, the government did not show “callous disregard
for the constitutional rights of the movant,” Ramsden, 2 F.3d
at 325, but instead displayed attentiveness both to the war-
rant’s precautionary procedures and to the importance of
avoiding unnecessary disruption of CDT’s business opera-
tions. For these reasons, we conclude that the first prong of
the Ramsden analysis (the existence of “callous disregard”)
weighs against invocation of the district court’s equitable
jurisdiction over the Fed. R. Crim. P. 41(g) motions. The dis-
trict courts’ conclusions to the contrary were based on faulty
conclusions of law and unsupported assertions of fact. They
cannot survive appellate review.
B
As to the second of the four Ramsden factors (the movants’
individual interests in the evidence seized), the Players’ Asso-
ciation argues that its interests in the property mirror those of
its members. We agree that the members possess strong pri-
vacy interests in both their drug test results and the actual
specimens. See Roe v. Sherry, 91 F.3d 1270, 1274 (9th Cir.
1996) (recognizing an individual’s “strong interest in protect-
ing the confidentiality of [one’s] HIV status”). Because the
Players’ Association exists to represent such interests, the dis-
trict courts properly found that this factor weighed in favor of
equitable jurisdiction.
C
The district courts also found satisfied the third Ramsden
factor (likelihood of irreparable injury if the evidence were
19820 UNITED STATES v. COMPREHENSIVE DRUG TESTING
not returned). As the Players’ Association notes, the public
release of positive drug testing evidence could irreparably
damage the careers of the affected players, even if the positive
results were not actually caused by illegal steroid use. Based
on this danger, we agree that the third factor also weighs in
favor of equitable jurisdiction.
D
[19] Although we conclude that the district courts erred in
finding callous disregard of Fourth Amendment rights, the
three other equitable jurisdiction factors weigh in favor of
hearing the motions by the Players’ Association and CDT. See
Ramsden, 2 F.3d at 326 (holding that three factors justified
exercise of equitable jurisdiction to hear Fed. R. Crim. P.
41(g) motion). As such, we cannot say that either district
court’s initial choice to hear the motion constituted an abuse
of discretion.
IV
We turn now to the merits of the substantive rulings issued
by Judge Cooper and Judge Mahan that ordered return of all
property other than evidence directly related to the ten players
named in the search warrants.
A
With respect to property taken during search warrants, Fed.
R. Crim. P. 41(g) provides that a person who is deprived of
property may move for its return. When such a motion is
granted, the property in question must be returned to the mov-
ing party, but a court “may impose reasonable conditions to
protect access to the property and its use in later proceed-
ings.” Id. Although the rule itself does not set a standard for
determining when property should be returned to a moving
party, an advisory committee note explains that “reasonable-
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19821
ness under all of the circumstances must be the test.” Fed. R.
Crim. P. 41 advisory committee’s note.
[20] We have repeatedly held that a Fed. R. Crim. P. 41(g)
motion is properly denied if “the government’s need for the
property as evidence continues.” United States v. Fitzen, 80
F.3d 387, 388 (9th Cir. 1996) (internal quotation marks omit-
ted); United States v. Mills, 991 F.2d 609, 612 (9th Cir. 1993)
(same). The advisory committee note explains: “If the United
States has a need for the property in an investigation or prose-
cution, its retention of the property generally is reasonable.”
Fed. R. Crim. P. 41 advisory committee’s note.
[21] It is when the government no longer needs the prop-
erty as evidence that a presumption arises, giving the owner
a right to have the property returned. Fitzen, 80 F.3d at 388.
Here, the government already has provided copies of all docu-
ments seized, and it states that the remaining evidence is
essential to its investigation and prosecution of the distribu-
tion of illegal steroids. This legitimate law enforcement pur-
pose makes return of the intermingled evidence improper, as
the files were seized legally under the search warrant and our
precedent.
Moreover, even in cases where agents seized too much evi-
dence, we have noted that return of property should follow
only a particularly egregious violation: “The issue is whether
the Government’s conduct was sufficiently reprehensible in
this case to warrant this sanction.” Ramsden, 2 F.3d at 327.
In Ramsden, we refused to impose this extreme sanction on
police who had time to obtain a warrant but made no effort
to do so and “simply chose not to comply with [their] obliga-
tions under the Fourth Amendment.” Id. at 325, 327.
[22] Our governing precedent offers no support for a full
return of the intermingled evidence. Indeed, both the Beusch
and Tamura courts underscored the need for effective crimi-
nal law enforcement. Thus, the Beusch court resolved: “As
19822 UNITED STATES v. COMPREHENSIVE DRUG TESTING
long as an item appears, at the time of the search, to contain
evidence reasonably related to the purposes of the search,
there is no reason—absent some other Fourth Amendment
violation—to suppress it.” 596 F.2d at 877. Even the Tamura
court—which determined that the agents unambiguously
flouted the limits of the search warrant—concluded: “[W]e
cannot say, although we find it a close case, that the officers
so abused the warrant’s authority that the otherwise valid war-
rant was transformed into a general one, thereby requiring all
fruits to be suppressed.” Tamura, 694 F.2d at 597.
In Tamura, the government did not seek to use evidence at
trial that fell outside the scope of the warrant. Therefore, the
court found return of the seized property inappropriate, even
though some evidence had been unlawfully taken. In the cases
before us today, the government has made clear that it desires
to use only information related to the ten named Balco players
and to other players who tested positive—and who therefore
may have become targets of an expanded grand jury
investigation—as a result of intermingled information we
have determined was seized lawfully under the warrant.
While we agree that some information still retained by the
government, at least in duplicate, may fall outside the scope
of the warrant, we do not believe a return of the lawfully
seized intermingled evidence properly remedies that wrong.40
[23] Thus, the district courts erred in granting the Fed. R.
Crim. P. 41(g) motions and ordering the government to return
all evidence seized from CDT and Quest—and all related
notes by agents who reviewed the evidence—that did not
relate to the ten Balco players expressly named in the search
warrants.
40
The orders of the two district courts would require the return of all
evidence other than that related to the ten named players. We have
described in detail why this view misinterprets Tamura in a way that
would invalidate lawful and reasonable searches and seizures. It would
also hamper the public interest in full and comprehensive investigations as
leads unfold in the course of the grand jury’s inquiries.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19823
B
[24] We are persuaded that the government’s seizure of
intermingled evidence for off-site review was lawful and rea-
sonable, and we view the two orders requiring return of all
property related to players not specifically named as both
unjustified and improper. However, the government has yet to
comply with its duty of adequate off-site review. Tamura
offered a suggested procedure for review by a neutral magis-
trate, and we conclude that such review is necessary to ensure
that the seizure of intermingled computer records remains rea-
sonable.
The Tamura court urged that off-site review be conducted
by a magistrate, in order to avoid giving the task to a party
with an interest in retaining too much.41 We cannot accept the
government’s argument that it may retain all evidence simply
because it assured the Players’ Association and CDT (without
signs of bad faith) that it did not intend to use all the files. In
the case of a lawful and reasonable seizure of intermingled
computer records for off-site review, as at bar, our precedents
and the general reasonableness mandate of the Fourth Amend-
ment require the supervision of a magistrate. It is not reason-
able to allow the government to seize an indeterminately
bounded array of computer data only later to set its own stan-
dards for review and retention thereof.42
41
It is not necessary that a magistrate always give advance authorization
for seizures of intermingled evidence. Here, as in United States v. Hay,
231 F.3d 630 (9th Cir. 2000), we do not read Tamura to require prior
authorization for off-site review. See id. at 637 (finding Tamura “inappo-
site . . . for its suggestion that magistrate judges should approve seizure
of materials beyond those described in the warrant before wholesale
removal occurs” (emphasis added)). However, we still read Tamura to
apply in a significant way in the context of lawful seizures of intermingled
computer data.
42
We do not belabor the government’s alleged failure to follow its own
internal guidelines. The dissent takes note that the U.S. Attorney’s manual
states “that a search warrant should normally not be used to obtain confi-
19824 UNITED STATES v. COMPREHENSIVE DRUG TESTING
It is true that Tamura proposed a pragmatic approach, and
not a constitutional rule. We recognize that some courts in
other circuits have questioned the procedures advised in
Tamura. One district court in Michigan explained: “The Court
declines to follow Tamura, at least in this case, because
Tamura did not involve computer files and therefore did not
consider the specific problems associated with conducting a
search for computerized records.” Scott-Emuakpor, 2000 WL
288443, at *8. Although declining to apply Tamura’s prag-
matic approach to computer searches, Judge Quist stated:
“This is not to suggest that seizure of all computer disks is
permissible whenever the warrant authorizes the seizure of
computer records.” Id. Another court, also referencing
Tamura, noted that in the modern computer context a “ ‘sug-
gestion’ by a panel of the Ninth Circuit in a 20-plus year old
case is not persuasive.” United States v. Kaufman, 2005 WL
2304345, at *4 n.3 (D. Kan).
Like these district courts from other circuits, we recognize
that the computer era adds new complexity to the test of rea-
sonableness under the Fourth Amendment. Precisely for this
reason, we view Tamura as especially important in the com-
puter context. Although indeed writing over two decades ago,
the Tamura court appreciated the same dual—and sometimes
conflicting—interests of minimizing the intrusiveness of
searches and containing the breadth of seizures. The Tamura
court stated that “large-scale removal of material” can be jus-
tified “where on-site sorting is infeasible and no other practi-
cal alternative exists,” Tamura, 694 F.2d at 596, but also
dential materials such as treatment records,” and that the Department of
Justice’s guidelines disfavor use of a search warrant where a subpoena
would suffice. See Dissent at 19866. The existence of those guidelines is
not disputed. Yet, quite simply, the government’s guidelines do not dictate
what is “reasonable” under the Fourth Amendment. If its guidelines did
so, the government would have every reason to enact permissive internal
rules. We have no reason or authority to give the government that perverse
incentive.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19825
advised that a magistrate should oversee the off-site review of
documents. We conclude that upon a proper post-seizure
motion by the aggrieved parties, the record should be sealed
and reviewed by a magistrate—such as the one who originally
issued the warrant.43 This procedure affords the necessary pro-
tection against unreasonable retention of property after a sei-
zure of intermingled computer data.
Insofar as the dissent emphasizes the crucial need to set
parameters on government seizures and retention of intermin-
gled computer evidence, we agree. On the other hand, the dis-
sent attempts to limit computer searches and seizures to an
unreasonable degree—one neither warranted by the Constitu-
tion nor by our precedent. The dissent would affirm the dis-
trict courts’ Fed. R. Crim. P. 41(g) orders in toto, relying upon
Tamura yet failing to recognize the continued relevance of
Beusch. This extreme approach, which would forbid the sei-
zure of intermingled data, would compel law enforcement
agents, when unexpectedly confronted with intermingled
computer data, to give up the search and leave. They could
only return to the scene if equipped with a new warrant autho-
rizing removal of the specific intermingled evidence, repeat-
ing this procedure until all relevant intermingled evidence
were obtained. After many such warrants and intrusions, the
intermingled evidence might well no longer be intact. More-
over, rather than limit the intrusiveness of a search and sei-
43
The dissent mistakenly concludes that this procedure allows the gov-
ernment to establish “what the Fourth Amendment required it to do in the
first : instance: [that] probable cause exists to seize and search the proper-
ty.” Dissent at 19894. The point of the Tamura procedure is to ensure that
intermingled documents, legitimately seized for off-site review under a
warrant supported by probable cause, do not contain documents that turn
out, upon scrutiny, to be easily separable. In a seizure of a plethora of doc-
uments containing relevant material interspersed with irrelevant docu-
ments, it is predictable that some documents, although legitimately seized
for off-site review, turn out to be separable without changing the nature
of the relevant documents. The purpose of the Tamura procedure is to
monitor the off-site separation process, not to establish probable cause.
19826 UNITED STATES v. COMPREHENSIVE DRUG TESTING
zure of intermingled computer data by allowing the
government to remove the whole for off-site review, the dis-
sent’s approach would magnify unnecessarily the burdens
imposed by computer search warrants, both on the govern-
ment and on the parties searched, with no corresponding ben-
efit in light of the constitutional linchpin of reasonableness in
Fourth Amendment jurisprudence.
[25] We conclude that, while the government may seize
intermingled data for off-site review to minimize intrusive-
ness of a computer search, it may not retain or use the evi-
dence after proper objections are raised, unless a magistrate
subsequently reviews and filters the evidence off-site.44 The
magistrate must adhere to our precedent in a balanced man-
ner. In her review, the magistrate should apply our precedent,
including Beusch, which permits the seizure of single ledgers
or files with intermingled data. In the context of computer
files, we believe that most seized materials can be pared down
considerably, but that certain files—spreadsheets of only a
few pages, for example—may be retained in whole.45
After the magistrate determines which sealed items fall
within the search warrant, the government may retain and use
44
We note that the government has little to lose by following this pre-
caution. A magistrate will allocate to the government whatever property
it may legitimately retain under the warrant. Yet if agents rely on their
own judgment, they may err on the side of retaining items outside the
search warrant or err on the side of returning evidence our precedents
would permit them to retain.
45
In this analysis, the magistrate may consider relevant, among other
factors: 1) whether evidence mentioned in the search warrant can be sepa-
rated from unrelated evidence by copying or moving files, but without cre-
ating new documents, 2) whether the file, if printed, would fill more than
a typical paper ledger (of the sort in Beusch), 3) whether excision of the
unrelated portions of the document would distort the character of the origi-
nal document. This list is neither exhaustive nor mandatory, but offers rel-
evant considerations for a magistrate to determine what evidence the
government can reasonably retain after a lawful seizure of intermingled
digital data.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19827
such items; all others must be returned to the person or entity
searched.46 The government is always free to seek judicial
authorization, either through subsequent search warrants or
district court authorization on review of the magistrate’s rul-
ings, to justify expansion of the investigation upon proper
showing of any item’s relevancy to suspected criminal behav-
ior uncovered during review of the evidence initially seized.
[26] In this case, we conclude that the proper remedy is to
remand these Fed. R. Crim. P. 41(g) matters to the appropriate
district courts, for the purpose of sealing the materials seized
under the search warrants and transferring them to a magis-
trate for expeditious review and isolation of the files that the
government may legally retain.
V
Finally, we consider the government’s appeal of Judge Ills-
ton’s order quashing the May 6 subpoenas, which sought drug
testing records and specimens for all MLB players who tested
positive for steroids.47
[27] Under Fed. R. Crim. P. 17(c)(2), a “court may quash
. . . [a] subpoena if compliance would be unreasonable or
oppressive.” The district court found that the May 2004 sub-
poenas constituted harassment and were unreasonable.48
46
This approach does not permit the government to seize computer files
“wholesale,” without any effort to limit the documents seized. Nothing we
suggest lifts the Fourth Amendment’s bar on “unreasonable searches and
seizures.” U.S. Const. amend. IV. Like the Beusch and Tamura courts, we
point out the parameters of a reasonable search and seizure in the complex
context of intermingled files. Case-by-case evaluation remains essential,
because our Founding Fathers chose a general prohibition on unreasonable
searches; they did not create a rigid rule that could at times prove too per-
missive and at times prove too strict.
47
We review a district court’s decision to quash a grand jury subpoena
for abuse of discretion. In re Grand Jury Subpoenas, 803 F.2d at 496.
48
The district court did not find that the subpoenas were oppressive.
19828 UNITED STATES v. COMPREHENSIVE DRUG TESTING
To support its finding, the district court pointed to United
States v. American Honda Motor Co., 273 F. Supp. 810 (N.D.
Ill. 1967). In American Honda, the government issued sub-
poenas that were “substantially identical” to one another but
in different locations. Id. at 819. As a result, Honda was faced
with producing the same documents repeatedly, and the court
found this to be harassment. Id. at 819-20. American Honda,
however, does not preclude the government from pursuing the
same information through the contemporaneous issuance of
subpoenas and applications for search warrants.
We addressed the issuance of contemporaneous search war-
rants and subpoenas in In re Grand Jury Subpoenas Dated
December 10, 1987, 926 F.2d at 854. There we upheld the
validity of the subpoenas against the challenge that “the sub-
poenas were served at the same time as the search warrants
and the federal agents attempted to ‘enforce’ the subpoenas
through immediate seizure of the documents.” Id. at 854. Not-
ing that the challenge to the subpoenas received no support in
precedent, we clarified the differences between subpoenas and
search warrants:
Subpoenas are not search warrants. They involve dif-
ferent levels of intrusion on a person’s privacy. A
search warrant allows the officer to enter the per-
son’s premises, and to examine for himself the per-
son’s belongings. The officer, pursuant to the
warrant, determines what is seized.
Id. By comparison:
Service of a forthwith subpoena does not authorize
an entry into a private residence. Furthermore, the
person served determines whether he will surrender
the items identified in the subpoena or challenge the
validity of the subpoena prior to compliance.
Id. We concluded that “[t]hese differences are not eliminated
by the fact that the search warrants and subpoenas were deliv-
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19829
ered at the same time” and observed that the complaining
party had “failed to show that the papers that are described in
the subpoenas are outside the scope of a legitimate investiga-
tion by the grand jury.” Id. at 854-55. In addition, we specifi-
cally emphasized the fact that the defendant was given almost
a month to comply with the subpoenas. Id. at 854.
[28] Therefore, the district court erred in finding the issu-
ance of subpoenas and the contemporaneous execution of
search warrants to be unreasonable. The Players’ Association
has not argued that the evidence sought by the subpoenas is
“outside the scope of a legitimate investigation by the grand
jury.” Id. at 855. The subpoenas were not returnable on the
same day that the search warrants were executed. As in In re
Grand Jury Subpoenas, the return dates on the subpoenas
were over a month from the date on which the warrants were
executed. The district court declared the May 6 subpoenas an
“unreasonable insurance” policy, but it failed to recognize the
different purposes and requirements of the warrant as com-
pared to the subpoena and the legitimate concern that produc-
tion of relevant evidence to the grand jury would be unduly
delayed. See id. at 854. It was error to conflate the two dis-
tinct tools. Insurance it may have been; but, under the Fourth
Amendment, unreasonable it was not.
The district court also deemed the government’s actions
unreasonable because it found that the agents sought search
warrants in three separate districts in an attempt to avoid a
ruling on the motion to quash the existing subpoenas of Janu-
ary and March 2004. We note that granting the motion to
quash would not have prevented the government from seeking
the search warrants, particularly given the existence of proba-
ble cause. As the Fourth Circuit has noted, “the fact that a
grand jury subpoena existed . . . at the time of the search obvi-
ously had no effect upon whether probable cause existed to
search . . . for documents which were properly included
within the warrant’s scope.” United States v. Photogrammet-
ric Data Servs., Inc., 259 F.3d 229, 238 (4th Cir. 2001), over-
19830 UNITED STATES v. COMPREHENSIVE DRUG TESTING
ruled on other grounds by Crawford v. Washington, 541 U.S.
36 (2004).
[29] As such, the district court rested its order on legally
insufficient grounds, and abused its discretion in granting the
motion to quash. See United States v. Iverson, 162 F.3d 1015,
1026 (9th Cir. 1998).
VI
Finally, we address the Non-Party Journalist’s Motion To
Unseal, filed on November 23, 2005 by Joshua A. Gerstein.
Gerstein seeks access to “the dockets for these appeals and the
cases below, the district court opinions and/or orders that are
the subject of these appeals, and all briefs filed with this Court.”49
We have jurisdiction over these documents, because the dis-
trict courts’ records transferred to us upon appeal. See Fed. R.
App. P. 11.
Although not a party, Gerstein enjoys standing to file the
motion based upon his constitutional interest in the proceed-
ings:
Under the first amendment, the press and the public
have a presumed right of access to court proceedings
and documents. . . . This presumed right can be over-
come only by an overriding right or interest “based
on findings that closure is essential to preserve
higher values and is narrowly tailored to serve that
interest.”
49
Oral proceedings before this court on November 15, 2005, were open
to the public. On November 9, 2005, CDT and MLB filed an unopposed
Motion To Seal Courtroom During Oral Argument. We denied the motion
the next day. On November 14, 2005, CDT and MLB filed a Motion for
Reconsideration of Motion To Seal Courtroom During Oral Argument,
which the government joined. We denied the motion the same day.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19831
Oregonian Publ’g Co. v. District Court, 920 F.2d 1462, 1465
(9th Cir. 1990) (quoting Press-Enterprise Co. v. Superior
Court, 464 U.S. 501, 510 (1985)).50 The Supreme Court has
noted the particular interest of media members in “publish[-
ing] information concerning the operation of government.”
Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978).
To decide whether Gerstein’s interest justifies unsealing
portions of the records, the court also must consider the pri-
vacy interests of the litigants, for “the right to inspect and
copy judicial records is not absolute.” Id. In the appeals at bar,
the records contain extremely sensitive information, espe-
cially the drug-testing records. If revealed, this information
could adversely affect the reputations of many competitive
baseball players. Therefore, the motion to unseal requires a
careful balancing of the interests at stake. See id. (noting that
access to judicial records may be limited to protect the pri-
vacy interests of the litigants, such as to avoid disclosure of
“sources of business information that might harm a litigant’s
competitive standing”).
Although we have jurisdiction to conduct a merits analysis
of the motion to unseal, the district courts—having greater
familiarity with the records51 —are in a better position to bal-
ance the privacy interests and to determine which materials
are protected grand jury materials. See Fed. R. Crim. P. 6(e).
50
Gerstein premises his motion on Ninth Circuit Rule 27-13(c). That
rule states: “During the pendency of an appeal, any party may file a
motion with this court requesting that matters filed under seal either in the
district court or in this court be unsealed. Any motion shall be served on
all parties.” Id. (emphasis added). Although Joshua Gerstein is not a
“party” under this rule, his standing derives from his constitutional interest
and does not depend upon the applicability of Ninth Circuit Rule 27-13(c).
51
Sensitive portions of the records were neither revealed nor discussed
at oral argument before this court. See supra note 49.
19832 UNITED STATES v. COMPREHENSIVE DRUG TESTING
Therefore, we refer the Gerstein motion to the district courts
for consideration upon remand.52
VII
We now summarize the resolution of these consolidated
appeals. We conclude that the government’s seizures were
reasonable under the Fourth Amendment, and that the district
courts erred in ruling that Fed. R. Crim. P. 41(g) required
return of all property and agent review notes unrelated to the
ten expressly named Balco players.
At the same time, we recognize limits to the government’s
right to retain evidence seized, even where a broad seizure is
reasonable in order to avoid lengthy and intrusive on-site
inspection. Our Fourth Amendment precedents explain that
the government may retain single “ledgers” of intermingled
evidence, but may not keep separate, unrelated evidence. A
magistrate is in the best position to sort through the actual evi-
dence and to determine those files that may be kept when
aggrieved parties seek relief. Readily separable evidence
unrelated to persons named in the search warrants must be
returned. The Fed. R. Crim. P. 41(g) cases must be remanded
to the District of Nevada and Central District of California to
permit such review of the sealed documents by magistrates.
With regard to the May 6 subpoenas, which covered the
same evidence as the contemporaneous search warrants, we
conclude the order of the Northern District of California
quashing the subpoenas was an abuse of discretion. The
record, illuminated by caselaw, reveals that the subpoenas
were not unreasonable and did not constitute harassment.
52
In the Central District of California and District of Nevada, the motion
can be addressed during the remand pursuant to this opinion. See infra
Section VII. The motion will need to be separately decided in the Northern
District of California.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19833
[30] Therefore, the orders of the Central District of Califor-
nia, the District of Nevada, and the Northern District of Cali-
fornia cannot stand. The three cases consolidated in this
appeal are hereby
REVERSED in part and REMANDED in part.
THOMAS, Circuit Judge, concurring in part and dissenting in
part:
One of the three extremely able district court judges who
rejected the government’s argument summarized it best, stat-
ing: “What happened to the Fourth Amendment? Was it
repealed somehow?”
Although it only had a search warrant for data concerning
eleven Major League Baseball players, the government seized
thousands of medical records and test results involving every
single Major League Baseball player. The government did not
stop there, seizing thousands of other medical records for
individuals in thirteen other major sports organizations, three
unaffiliated business entities, and three sports competitions.
The government now seeks to retain all of the medical infor-
mation it obtained about persons who were not the subject of
any criminal inquiry.
The stakes in this case are high. The government claims the
right to search—without warrant or even a suspicion of crimi-
nal activity—any patient’s confidential medical record con-
tained in a computer directory so long as it has a legitimate
warrant or subpoena for any other individual patient’s record
that may be contained as part of data stored on the same com-
puter. The government attempts to justify this novel theory on
a breathtaking expansion of the “plain view” doctrine, which
clearly has no application to intermingled private electronic
data.
19834 UNITED STATES v. COMPREHENSIVE DRUG TESTING
As radical as the government’s position is, the majority
goes even further. It holds that the government—without war-
rant or even a suspicion of criminal activity—may seize,
retain, and view all confidential records in any electronic
database on which private data responsive to a warrant
resides. Under the majority’s holding, a magistrate would be
required to review the seized data for probable cause after sei-
zure only if an aggrieved party made a motion. Even then, if
the magistrate concluded that the irrelevant data was “co-
mingled,” the government would be entitled to retain the con-
fidential medical records. This new theory was not argued by
any party, nor presented to any district judge at any time dur-
ing the course of these protracted and hotly contested pro-
ceedings.
The scope of the majority’s new holding in the digital age
could not be greater; it removes confidential electronic
records from the protections of the Fourth Amendment. The
holding also squarely conflicts with the sound and sensible
procedural protections detailed in United States v. Tamura,
694 F.2d 591 (1982), which direct the government to seal and
hold documents containing intermingled data pending
approval of a magistrate of a further search.
I agree with the careful findings and conclusions of the
three district judges who rejected the government’s position.
For that reason, and because of the profound consequences of
the majority’s opinion on the privacy of medical records
throughout the United States, I respectfully dissent.
I
The investigation in this case ostensibly involved Bay Area
Lab Co-Operative, popularly referenced as “Balco.” The gov-
ernment suspected Balco of distributing illegal steroids to cer-
tain athletes, including some Major League Baseball players.
The government knew that, pursuant to a collective bargain-
ing agreement between the Major League Players Association
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19835
(“Players Association” or “MLBPA”) and Major League
Baseball, confidential testing had been analyzed by Compre-
hensive Drug Testing, Inc. (“CDT”), and other laboratories,
for the sole purpose of determining whether Major League
Baseball should adopt an individualized steroid testing pro-
gram.
Through the collective bargaining agreement, the players
were assured that the testing would be anonymous and confi-
dential, and that the samples and individual data would be
destroyed upon tabulation of the results. The only object of
the exercise was to determine the approximate magnitude of
apparent steroid use with the goal of fashioning appropriate
policies to address it. The collective bargaining agreement
acknowledged and anticipated that the tests for some players
might well yield positive results due to the ingestion of legal
and proper over-the-counter supplements.
Although information developed by the government in its
criminal investigation pointed only to specific individuals
who might be involved with Balco, the government served a
grand jury subpoena on CDT on January 16, 2004, seeking
drug tests for all major league baseball players. After receiv-
ing the subpoena, the Players Association and CDT contacted
the United States Attorneys’ Office to discuss their concerns
with the breadth of the subpoena. At the government’s
request, the Players Association, CDT, and Major League
Baseball prepared and presented a “white paper” to the gov-
ernment detailing the provisions of the collective bargaining
agreement pertaining to testing, with emphasis on the many
confidentiality provisions, and raising concerns about the
invasion of the constitutionally-protected privacy interests of
the players who were not involved in the Balco investigation.
The Players Association and CDT assured the government
in writing that CDT would maintain all of the subpoenaed
records until the disputes were resolved by negotiation or liti-
gation. On February 4, 2003, the Chief of the Criminal Divi-
19836 UNITED STATES v. COMPREHENSIVE DRUG TESTING
sion wrote the counsel for CDT indicating that the
government had accepted the assurances by CDT that none of
the materials sought by the subpoena would be destroyed or
altered pending the government’s reconsideration of the sub-
poena and a motion to quash the subpoena, if filed.
On February 12, 2004, the grand jury returned a 42-count
indictment against Victor Conte, Jr. (Balco’s founder), James
J. Valente (Balco’s Vice President), Greg F. Anderson (a
trainer), and Remi Korchemny (a track coach). The charges
against the defendants included conspiracy to possess with
intent to distribute anabolic steroids, possession with intent to
distribute anabolic steroids, introduction and delivery of mis-
branded drugs into interstate commerce with intent to defraud,
and misbranding of drugs held for sale with intent to defraud.
On March 3, the government served a second grand jury
subpoena on CDT, seeking information on only eleven named
baseball players. However, it did not withdraw the January 16
subpoena. On April 7, with no compromise reached and with
a return date passed, the Players Association filed a motion in
the Northern District of California in San Francisco to quash
the CDT subpoena. The motion was assigned to Judge Jeffery
S. White.
After learning that a motion to quash would be filed but
before the motion could be heard, the government applied for
a search warrant to search the CDT offices for the same infor-
mation it was seeking in the grand jury subpoena. The search
warrant application was made some 240 miles away in
another federal judicial district, without notice to the Players
Association or to the district court in the Northern District of
California.
In the search warrant proceedings in the Central District of
California, the government never brought to the magistrate
judge’s attention that there was a motion pending before
Judge White in the Northern District of California to quash
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19837
the grand jury subpoena. The affidavit did not disclose that
the Players Association had joined the motion. Rather, the
affidavit stated:
The referenced grand jury subpoena, for the items
listed in Attachment B, was issued; however, while
not denying that they have the requested materials,
CDT has declined to comply with the subpoena and
has stated its intent to attempt to quash the subpoena.1
The affidavit did not disclose that CDT had agreed in writ-
ing to keep the data and other materials secured until the
scope of the grand jury subpoena was settled, either through
negotiation or a ruling on a motion to quash. Rather, the affi-
davit justified removing computer data and equipment from
the searched premises on the basis that the computer data
could be concealed, altered, or destroyed by the user.
The affidavit also informed the magistrate judge that
“[c]omputer hardware and storage devices may contain
‘booby traps’ that destroy or alter data if certain procedures
are not scrupulously followed.” It noted that computer data
was “particularly vulnerable to inadvertent or intentional
modification or destruction.”
The government did not have any evidence or reason to
believe that CDT had engaged in steganography, booby-
trapping computers, or any type of data destruction or alter-
1
Some months later, Judge Illston asked the government: “Did you
explain to Judge Johnson what was happening before Judge White, even
on the day that you got him to issue the warrant?” Government counsel
replied, “We did inform Judge Johnson of the existence of the grand jury
subpoena and it’s in the warrant application of Judge Johnson that defense
had indicated that it wanted to move to quash the subpoena. So we did
indicate to Judge Johnson there was a disputed grand jury issue. Yes, it
was disclosed to Judge Johnson.” Neither the warrant application nor the
affidavit filed in support of the application contain any reference to pend-
ing proceedings before Judge White.
19838 UNITED STATES v. COMPREHENSIVE DRUG TESTING
ation. To the contrary, it had accepted in writing CDT’s assur-
ances “that CDT will maintain and preserve all materials
called for by the first subpoena as well as any materials called
for by the new subpoena” and that “CDT would not destroy
or alter any of the materials called for by either of the subpoe-
nas.” However, the plain import of the application was that
CDT was improperly resisting compliance with a valid grand
jury subpoena and data was in jeopardy of being destroyed.
Based on the government’s application, a search warrant
was issued by Magistrate Judge Jeffery W. Johnson in the
Central District of California in Los Angeles. The warrant
authorized the seizure of records regarding drug specimens,
testing, and test results of only ten specifically named Major
League baseball players. The warrant also provided that if the
computer data seized did not fall within any of the items to
be seized or is not otherwise legally seized, the government
would return the data. The affidavit provided by Special
Agent Novitzky in support of the issuance of the warrants
stated that obtaining information to link the test results to
individual players was necessary “to ensure that samples of
individuals not associated with Balco are left undisturbed.”
The warrant was issued one day after the motion to quash
the grand jury subpoena had been filed in the Northern Dis-
trict of California. Upon arrival at the premises of CDT on the
morning of the search, Special Agent Novitzky and other
agents discussed with CDT’s attorney the need to search
CDT’s computers.
The information sought in the search warrant was contained
in three places: a segregated list only containing information
about the ten athletes that were subject of the search warrant;
a master list of the drug test results for all Major League
Baseball players; and a computer directory (often referred to
as the “Tracey directory”) that contained information and
medical test results for hundreds of other baseball players and
athletes engaged in professional sports. Counsel for CDT
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19839
requested that all material pertaining to the specific items
listed in the warrant be reviewed and redacted by a magistrate
judge or special master before it was seen by the government.
The government refused the request.2 The government also
rejected CDT’s offer to provide the records it had already seg-
regated concerning the small subset of players at issue.
In addition to the segregated materials, the government
seized the master list, the entire Tracey Directory (which con-
sisted of more than 2,900 files), lists of teams and players and
drug testing details, and eleven diskettes, all of which con-
tained drug-test results on hundreds of Major League Baseball
players and other athletes. The agents searching the Tracey
directory at the scene concluded that certain of the subdirecto-
ries appeared to contain information not called for by the war-
rant. Rather than copying only the subdirectories that
pertained to Major League Baseball, the agents copied the
entire directory. In fact, the directory contained 2,911 files
that had nothing to do with Major League Baseball drug test-
ing, but rather contained test results for numerous other sports
entities and business organizations. Dr. Jean Joseph of CDT
later stated in an affidavit that the directory was easily
searched by key word and would have provided the test infor-
mation about the ten players in a short period of time.
Judge Cooper later specifically found that “[o]nce the items
were seized the requirement of the search warrant that any
seized items not covered by the warrant be first screened and
segregated by computer personnel was completely ignored.”
She further found that Agent Novitzky himself reviewed the
seized computer data and used what he learned to obtain the
subsequent search warrants issued in the Northern District of
California, the Central District of California, and Nevada.
2
Department of Justice Guidelines provide that, in cases involving con-
fidential patient information, a search warrant “shall be executed in such
a manner as to minimize, to the greatest extent practicable, scrutiny of
confidential materials.” 28 C.F.R. § 59.4(b)(4).
19840 UNITED STATES v. COMPREHENSIVE DRUG TESTING
After the initial search, and based on the search results, the
government sought and obtained that day a second search
warrant from Magistrate Judge Johnson for a search of a stor-
age facility maintained by CDT.
On the same day, the government also applied for a search
warrant in the District of Nevada. The warrant sought infor-
mation in the business files of Quest Diagnostics, Inc., a labo-
ratory that had also been involved in the administration of
Major League Baseball’s drug testing program in 2003. The
warrant was limited to information concerning the ten base-
ball players identified in the Los Angles search warrant. The
affidavit filed in support of the warrant did not disclose the
history of the issuance of the grand jury subpoena or the filing
of a motion to quash the subpoena. Based on the information
provided by the government, Magistrate Judge Lawrence
Leavitt issued the warrant, and the warrant was executed.
On April 9, 2004, the Players Association arranged an
emergency hearing before Judge White, before whom the
motion to quash the grand jury subpoena was pending. The
Players Association sought an order restricting the govern-
ment from disseminating any information it had obtained until
the Players Association had an opportunity to litigate the
motion to quash or a Rule 41 motion to return the seized prop-
erty. The government argued that Judge White had no juris-
diction over the items seized pursuant to the search warrants,
even though the grand jury subpoena sought the same materi-
als.
The government represented to the court that it would not
disseminate the information and would negotiate in good faith
about the seized items. Judge White accepted that representa-
tion. He noted that he did not have jurisdiction over the items
seized pursuant to the warrants, but that the motions to quash
the grand jury subpoenas remained pending before him. Judge
White acknowledged that the position of the Players Associa-
tion was “well taken with respect to the U.S. Attorney’s man-
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19841
ual and the government allegedly not following proper
procedure,” but that the Players Association had other avail-
able remedies to resolve that issue on the merits.
On April 22, 2004, the government wrote CDT indicating
that it was withdrawing the January 16, 2004, subpoena and
modifying the subpoena of March 3, 2004. The government
did not inform Judge White of these actions and the January
16 subpoena was never withdrawn.
On April 24, CDT and the Players Association filed a
motion in the Central District of California for return of the
seized property or, in the alternative, appointment of a special
master to redact those records so that the government retained
drug test results for only the ten players named in the warrant.
On April 30, 2004, the government filed its opposition to
the motion to return property in the Central District. In its
opposition, despite the existence of an agreement with CDT
that CDT would not destroy or alter documents, the govern-
ment argued that it “had good-faith reasons to believe that
CDT was detrimentally delaying the investigation, and that
there was some danger of the sought-after records being jeop-
ardized.” The government also argued that this jeopardy justi-
fied proceeding with a search warrant under DOJ guidelines.
On the same date, April 30, 2004, based on what it had
found in the first search, the government sought a new search
warrant in the Northern District of California in San Jose for
CDT electronic files it already had in its possession in the
Tracey Directory concerning all players whose test results
were positive.
In contrast to the affidavit supplied in the first warrant
application, which purported to “to ensure that samples of
individuals not associated with Balco are left undisturbed,”
the affidavit of Agent Novitzky in support of this warrant
application sought “authorization to conduct a thorough
19842 UNITED STATES v. COMPREHENSIVE DRUG TESTING
review of all major league baseball-related computer data”
and “to seize all data pertaining to illegal drug use by any
member of major league baseball.”
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19843
Volume 2 of 2
19844 UNITED STATES v. COMPREHENSIVE DRUG TESTING
The affidavit conceded that no specific information had
been uncovered linking Balco to any individual baseball play-
ers beyond the ten listed in the April 7, 2004, search warrant.
However, in contrast to the first warrant application, Agent
Novitzky averred that even though there was no evidence that
had been developed to link the ballplayers who were not listed
in the first warrant to Balco, “it is logical to assume that a
review of the drug testing records for other players may pro-
vide additional evidence of the use of similar illegal
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19845
performance-enhancing drugs which establishes a link to the
charged defendants in the charged [Balco] case, given the rel-
atively small number of professional baseball players and the
closely-knit professional baseball community.”
The affidavit in support of issuance of the warrant did not
disclose that a grand jury subpoena had been issued for the
same material and that a motion to quash the subpoena was
pending in the very same district.
The affidavit also did not disclose that the parties were liti-
gating in the Central District of California a motion for return
of the seized property — the very property which was subject
of the new search warrant request. Based on the information
provided by the government, Magistrate Judge Howard W.
Lloyd issued a new search warrant for the same material that
the government had already searched and seized.
On May 5, 2004, the government sought a search warrant
in the District of Nevada for information contained in the files
at Quest Diagnostics concerning all baseball players who,
according to the information collected in the CDT search, had
tested positive for steroids. The application conceded that
there was no specific evidence linking these players to Balco.
The warrant was issued by Magistrate Judge Leavitt. A large
number of physical samples of bodily fluids were taken (later
reported by the government to be 250 to 300 because of mul-
tiple samples given by the players), which the government
transported to a lab in Los Angeles.
On May 5, 2004, the government sought a search warrant
in the Central District of California in Los Angeles before a
different magistrate judge for all information contained in the
files at CDT concerning all baseball players who, according
to the information collected in the CDT search, had a positive
marker for steroids. The application conceded that there was
no specific evidence linking these players to Balco. Neither
the application nor the affidavit filed in support of the applica-
19846 UNITED STATES v. COMPREHENSIVE DRUG TESTING
tion disclosed the pending proceedings concerning the grand
jury subpoenas. Based on the information provided by the
government, the warrant was issued by Magistrate Judge
Rosalyn Chapman.
On May 6, 2004, after it had executed the search warrants,
the government served grand jury subpoenas on CDT and
Quest for the same materials it had sought in the April 30 and
May 5 search warrants. The subpoena contained the names of
the baseball players that had allegedly tested positive, even
though the government knew that the information Quest pos-
sessed was only identifiable by number and even though the
government had assured the Players Association and Judge
White that it would not disclose the names. The government
sent a letter to Quest Diagnostics instructing the company not
to disclose to anyone the government’s request for documents
“indefinitely” because “[a]ny such disclosure could impede
the investigation being conducted and thereby interfere with
the enforcement of the law.”
On May 21, 2004, CDT and the Players Association filed
a motion in the District of Nevada for a return of the property
seized from Quest Diagnostics. On June 7, 2004, CDT and the
Players Association filed a motion in the Northern District of
California for return of the electronic documents seized from
CDT pursuant to the April 30 search warrant issued by Magis-
trate Judge Lloyd in the Northern District.
On July 9, 2004, Judge White held a hearing on the motion
to quash the grand jury subpoenas, but deferred action pend-
ing rulings on the motions for return of property seized pursu-
ant to the search warrants.
On August 9, 2004, Judge Susan Illston held a hearing on
the motion for return of the electronic data seized by the gov-
ernment pursuant to the April 30 warrant. When asked by
Judge Illston why the government hadn’t just waited to let
Judge White rule on the motions to quash the grand jury sub-
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19847
poena rather than seeking search warrants for the same mate-
rial, the government responded:
What the government really perceived ultimately as
a conscious decision on the part of the Major League
Baseball Players Association and the other parties
associated with it just refused to comply with what
the government felt was [sic] legitimate grand jury
subpoenas.
Later in the hearing the government argued that the search
warrant was necessary because a motion to quash had been
filed.
Counsel: The concern here was, to say, okay, we’re
going to face a brick wall from this legal
avenue . . . .
Judge: What brick wall?
Counsel: The brick wall was . . .
Judge: Judge White?
Counsel: No, no, not at all. It was the concern that
the requests or that discussions about
moving to quash the subpoena would be
something that would be dragged out.
At a later hearing, counsel for government confirmed that
it would not have sought to obtain the search warrants if the
affected parties had not filed a motion to quash the grand jury
subpoena.3 However, the Department of Justice Guidelines
3
A hearing on December 10, 2004, discussed infra, contains this collo-
quy:
Counsel: And the government never would have done the
search warrants if the grand jury process could have
19848 UNITED STATES v. COMPREHENSIVE DRUG TESTING
provide that “The fact that the disinterested third party pos-
sessing the materials may have grounds to challenge a sub-
poena or other legal process is not in itself a legitimate basis
for the use of a search warrant.” 28 C.F.R. § 59.4.
The government primarily argued that, even though the
material seized may not have been authorized under the
search warrant, seizure was appropriate under the “plain
view” doctrine. The court engaged in an extensive colloquy
about the search, ascertaining that the data was contained in
a file that could not be accessed readily without assistance,
and that the agent had to scroll through 1,200 results to obtain
the positive tests that formed the basis of the later search war-
rants. After noting that the government had not provided any
case to support its contention that the plain view doctrine
applied in the computer context, Judge Illston made the fol-
lowing findings:
I find absolutely staggering the implications about
what you say about the plain view doctrine in the
computer set up. In a way nothing is in plain view
because with the disk you look at it, you don’t see
anything until you stick it in the computer and it
does take quite a lot of work really to bring it up on
the screen.
worked out. But it didn’t. I feel —
Court: Say that last thing one more time. What you —
Counsel: What I just said was we may not have ever done the
search warrants if the subpoena process worked out.
Court: But, I mean, there was a subpoena process pending in
this building before Judge White.
Counsel: Yes.
Court: At the time you went and got your search warrants,
and you didn’t allow that process to complete itself.
Counsel: That is true.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19849
So, it’s not in plain view in the sense of walking into
the room and seeing the scale on the desk. It takes
a whole lot of work to get there.
First off, none of it is cursory, there are whole indus-
tries that have developed in order to make it possible
for the disk to show up on the screen that way. So
it’s not cursory review. I don’t think it’s plain view.
I don’t think I have to go that far or make that kind
of choice with respect to issues that are certainly
going to arise. . . . Where it requires sorting through
information which really is on a data base, somehow
it’s being organized in different formats, you could
organize it in a format based on the ten names,
instead of taking it in other kinds of formats, then
scrolling across and taking names and information
off the screen, when it’s clearly information that
isn’t part of what was originally within the autho-
rized search warrant, I just think is impermissible.
Judge Illston then granted the motion for return of seized
property, with the following findings from the bench:
So, having looked at the Ramsden factors set out,
[there are] apparently four factors. One, whether the
government displayed a callous disregard for the
constitutional rights, two, whether the [movant] has
an individual right and need for the property he
wants returned, three, whether the [movant] would
be irreparably injured by denying the motion for
return of property, and four, whether the [movant]
has an adequate remedy at law for a redress of his
grievance. I find all four factors have been met here.
I think the government has displayed, in the chro-
nology of things that we’ve seen, in the way that the
case was taken from one judge to another judge, in
the way that as soon as it was challenged in one
19850 UNITED STATES v. COMPREHENSIVE DRUG TESTING
court, it was immediately litigated in another court
without full information being shared among the
courts, that to me makes it a callous disregard for
constitutional rights. I think, it’s a seizure beyond
what was authorized by the search warrant, therefore
it violates the Fourth Amendment.
Number two, I think [that both movants] here
have an interest and need for the property returned.
I think they need it returned and not so much
because they need it back, they got it, you got it, I
think what they need to get back from you what they
have, what you’ve taken from them because of the
privacy rights and the circumstances under which
this material was given.
Whether the [movant] would be irreparably
injured by denying the return of the property, I think
they would, and I think indeed there would be, that
the injury that will be suffered by volunteers not
being able to confidently provide testing under
promise of privacy would irreparably injure not only
major league baseball, I can’t imagine that there’s
going to be any voluntary agreement to do this kind
of testing, that’s probably over with already, but also
just has implications that are very negative for these
[movants], and whether the [movant] has an ade-
quate remedy at law, I don’t think there is any rem-
edy at law for the redress of these grievances.
I’m going to grant the motion.
On August 13, in the Central District of California, Magis-
trate Judge Johnson issued a report and recommendation rec-
ommending denial of the motion for return of property seized
at CDT.
On August 19, in the District of Nevada, Judge James C.
Mahan held a hearing on the motion filed by the Players
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19851
Association for the return of the property seized at Quest
Diagnostics pursuant to the search warrants. The government
did not disclose to Judge Mahan or the Players Association
that it had served on Quest a grand jury subpoena for the same
materials, coupled with a letter instructing Quest to keep that
fact confidential indefinitely. At the conclusion of the hearing,
Judge Mahan orally granted the motion. On September 7,
Judge Mahan filed a written order granting the motion for
return of the property. Judge Mahan found, in relevant part,
that:
2. Under Ramsden v. United States, 2 F.3d 322
(9th Cir. 1993), this Court has equitable jurisdic-
tion to order return of that seized property. All
of the factors identified in Ramsden supporting
jurisdiction are present. The government cal-
lously disregarded the affected players’ constitu-
tional rights. The MLBPA, as representative for
the players, has an individual interest in and
need for the property that it wants returned. The
MLBPA would be irreparably injured if the
property were not returned. And the MLBPA
has no adequate remedy at law for redress of the
grievances.
3. Under the particular circumstances of this case,
it was unreasonable for the Government to
refuse to follow the procedures set forth in
United States v. Tamura, 694 F.2d 591 (9th Cir.
1982), upon learning that drug-testing records
for the ten athletes named in the original April
8 warrants executed at Quest and at Comprehen-
sive Drug Testing, Inc. were co-mingled with
records for other athletes not named in those
warrants.
After issuance of the order, the government declined to
return the material seized from Quest in Nevada, contending
19852 UNITED STATES v. COMPREHENSIVE DRUG TESTING
it was entitled to retain it under the authority of the new May
6 grand jury subpoena. To that end, the government filed a
stay motion with Judge Mahan, arguing that it had a right to
retain the data and samples based on the May 6 grand jury
subpoena, which had issued after the seizures of the material
had occurred. The government argued that Judge White was
the only judge who had jurisdiction to decide that issue. Judge
Mahan denied the stay motion. The government maintained
that the May 6 grand jury subpoenas independently authorized
retention of the data and specimens; therefore, the Players
Association and CDT filed a motion to quash the May 6 sub-
poena in the Northern District of California.
On October 1, 2004, in the Central District of California,
Judge Cooper declined to adopt Magistrate Judge Johnson’s
recommendation, and granted the motion for return of the
seized CDT property. She noted that she joined “an appar-
ently ever increasing number of district judges who have held
that the Government’s execution of the Search Warrant at
issue in this case demonstrated a callous disregard for the con-
stitutional rights of the movants and their members.”
With respect to the Ramsden factors, Judge Cooper found:
All four considerations weigh in favor of the mov-
ing parties in this case. In assessing whether the gov-
ernment displayed a callous disregard for the rights
of the persons whose records were seized, it is
important to focus on the Ninth Circuit opinion in
United States v. Tamura, 694 F.2d 591 (1982). At
the time of the search, Tamura was certainly settled
law in the Circuit, and Tamura establishes a proce-
dure to be followed when documents to be seized are
intermingled with other documents. “. . . . [T]he
wholesale seizure for later detained examination of
records not described in a warrant is significantly
more intrusive, and has been characterized as ‘the
kind of investigatory dragnet that the fourth amend-
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19853
ment was designed to prevent.’[citation].” Id. at 595.
Therefore, law enforcement officials are to seal and
hold such intermingled documents “pending
approval by a magistrate of a further search . . . .
Wholesale removal must be monitored by the judg-
ment of a neutral, detached magistrate.” Id. at 596.
It is particularly telling in this case that just such a
procedure was proposed to the Government at the
time of the search, and rejected.
Nor is the viewing of the seized files legitimized
by the Plain View doctrine. Under the exception to
the warrant requirement, an officer may seize what
he plainly views, so long as he has a lawful right to
access the evidence itself and its incriminating char-
acter is immediately apparent. Horton v. California,
496 U.S. 128, 136 (1990). Here, the agent did not
have a lawful right to access the computer records
and diskettes, and, as evidence provided in connec-
tion with the Motion reveals, the evidence observed
is not necessarily incriminating. The Declaration of
Dr. Joseph states that the ingestion of nutritional
supplements can produce a “positive” test for ste-
roids.
The Government demonstrated a callous disregard
for the rights of persons whose records were seized
and searched outside the warrants.
The second consideration, whether the moving
party has an interest and need for return of the prop-
erty, is easily answered. The athletes in question vol-
untarily submitted to urine testing for steroids, as
part of an agreement that all results would remain
confidential and be used only for statistical analysis.
Their interest in privacy is obvious.
The third consideration, whether the moving party
has an interest and need for return of the property is
19854 UNITED STATES v. COMPREHENSIVE DRUG TESTING
easily answered. The careers of these athletes could
be profoundly, negatively affected by release of
these records, and their return is vitally important.
The harm they would suffer if the records were
released (even if the positive tests are shown to be
innocuous) would be irreparable.
Finally, it is evident that the movants have no
other legal remedy. No motion to suppress the evi-
dence is available to them; they are neither defen-
dants nor suspects, and no case exists in which this
issue could be litigated.
In addition to her findings and conclusions, Judge Cooper
added these comments in a section labeled “Serious Con-
cerns:”
The documents presented to the Court in connec-
tion with this Motion reveal extremely troubling
conduct on the part of the Government. The picture
painted is one of almost desperate effort to acquire
evidence by whatever means could be utilized. The
Government negotiated with movants’ attorneys
over the breadth of the grand jury subpoenas;
received assurances in writing that the records of the
ten athletes would be secured while the Court
resolved the issue, and the day after the issue was
presented to a Court, went to another district and
sought a search warrant. That conduct would be sus-
pect in itself. But in seeking the warrant (not the cor-
rect procedure for obtaining documents for a third
party who is not a suspect), the Government
explained to the Magistrate that the records in ques-
tion were in danger of being destroyed. This is bla-
tant misrepresentation, as demonstrated by the
records in this case.
Four days after Movants filed a motion before
Magistrate Judge Johnson for return of the property,
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19855
the Government obtained a further warrant from a
Magistrate Judge in the Northern District of Califor-
nia. And while a motion for return of that property
was pending, the Government obtained two more
warrants in the Central District of California (not
from Magistrate Judge Johnson) and in Nevada. The
image of quickly and skillfully moving the cup so no
one can find the pea would be humorous if the mat-
ter were not so serious.
Noting that “the Government is held to a far higher stan-
dard than has been demonstrated in this case,” and that “this
is the third District Court Order compelling the Government
to return property illegally seized,” Judge Cooper ordered
return of the seized CDT property forthwith.
On December 10, 2004, Judge Illston held a hearing on the
Players Association motion to intervene and to quash the May
6, 2004 grand jury subpoenas served on CDT and Quest. At
the conclusion of the hearing, Judge Illston made the follow-
ing oral findings and conclusions:
I find that the MLBPA has the right to intervene
in this matter under Federal Rule of Civil Procedure
24(a), as it has an interest in the samples and test
results in the possession of CDT and Quest, which
were created with the promise of anonymity under
the mandatory testing of the 2002 collective bargain-
ing agreement.
The May 6th, 2004 subpoenas were the culmina-
tion of a series of actions taken by the government
in order to prevent MLBPA and CDT’s attempt to
move to quash the January and March subpoenas.
Instead of allowing the matter to be resolved in a sin-
gle proceeding before Judge White, the government
executed a series of search warrants in three different
19856 UNITED STATES v. COMPREHENSIVE DRUG TESTING
districts once it learned that petitioners would move
to quash the January and March subpoenas.
The government has provided no substantial
explanation of why this course of action was neces-
sary. Given that the government had no other basis
for issuing the April search warrants and preempting
the subpoenas served of Quest and CDT, the deci-
sion appears to have been a tactical decision to pre-
vent the parties from raising objections before Judge
White, which is unreasonable and constitutes harass-
ment similar to the conduct in United States v. Amer-
ican Honda.
Furthermore, the May 6th subpoenas were served
after the government had obtained evidence pursuant
to the April 7 and April 30 search warrants, which
has now been determined to have been illegally
seized. Some of the information sought in the May
6th subpoena was already in the government’s pos-
session at the time the subpoena was served on CDT
and Quest; therefore, the Court finds that the May
6th subpoena served as an unreasonable insurance
policy as recognized in the motion for the return of
seized property cited in the papers, 681 F.Supp. [sic]
For these reasons the court grants petitioner’s
motion to quash the May 6th subpoena served on
Quest and CDT as an abuse of the grand jury process
and unreasonable under Federal Rule of Criminal
Procedure 17(c).
On October 18, 2005, as a result of a plea agreement, Balco
founder Victor Conte received a sentence of eight months
imprisonment, with four months of the sentence to be served
in home confinement. James Valente, Balco’s vice president,
was sentenced to probation. Trainer Greg Anderson was sen-
tenced to six months imprisonment, with three of the six
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19857
months to be spent in home confinement. On February 25,
2006, track coach Remi Korchemny was sentenced to one
year of probation.
In reviewing both the order quashing the grand jury sub-
poena and the orders granting the motions for return of prop-
erty pursuant to Fed. R. Crim. P. 41(g), we review the factual
findings of the district courts for clear error. In re Grand Jury
Subpoenas Dated Dec. 10, 1987, 926 F.2d 847, 854 (9th Cir.
1991) (orders to quash grand jury subpoenas); United States
v. Marolf, 173 F.3d 1213, 1216 (9th Cir. 1999) (orders on
motions for return of property). We review orders quashing
subpoenas for abuse of discretion. United States v. Bergeson,
425 F.3d 1221, 1224 (9th Cir. 2005) (citing In re Grand Jury
Subpoena, 357 F.3d 900, 906 (9th Cir. 2004)). We review de
novo a district court’s denial of a motion for return of prop-
erty pursuant to Rule 41(g). Marolf, 173 F.3d at 1216.
II
There are two preliminary jurisdictional questions: (1)
whether the Players Association had standing to file the Fed.
R. Civ. P. 41(g) motions for return of property on behalf of
its members, and (2) whether the government timely appealed
Judge Cooper’s order granting the Rule 41(g) motion.
I agree with the majority that the Players Association had
organizational standing to file the Rule 41(g) motion for
return of the records and specimens seized from Quest. For
the same reasons—although the majority does not reach this
issue—I would also hold that the Players Association had
organizational standing to file the Rule 41(g) motion for
return of the property seized from CDT.
However, I respectfully disagree that the government
timely appealed Judge Cooper’s order granting the motion for
return of property.
19858 UNITED STATES v. COMPREHENSIVE DRUG TESTING
A
It is undisputed that the government’s notice of appeal was
filed more than sixty days after judgment was entered which,
in the ordinary course, would make the appeal untimely. Fed.
R. App. P. 4(a)(1)(B).4 “A timely appeal is required to vest
this court with jurisdiction.” Fiester v. Turner, 783 F.2d 1474,
1475 (9th Cir. 1986). The Players Association contends that
we lack jurisdiction due to the government’s untimely filing.
The government contends that the time for filing an appeal
was tolled by its filing of a “Motion for Reconsideration” with
the district court.
The Federal Rules of Civil Procedure do not provide for
“Motions for Reconsideration.” Rather, such motions are
creatures of local rule or practice. In this case, the govern-
ment’s motion was filed pursuant to Local Rule 7-18 of the
Central District of California. Federal Rule of Civil Procedure
83 authorizes district courts to make rules governing their
own practices so long as they are “not inconsistent with [the
Federal Rules].” Where a conflict arises between the two, fed-
eral rules must prevail. Colgrove v. Battin, 413 U.S. 149, 161
n.18 (1973); see also Loya v. Desert Sands Unified Sch. Dist.,
721 F.2d 279, 280 (9th Cir. 1983); 28 U.S.C.A. § 2071(a)
(providing that rules adopted by district courts must be con-
sistent with the federal rules of procedure).
Thus, when faced with a motion for reconsideration under
local rules, we must either harmonize the rule, or reject it as
in conflict with the national uniform rules. See Marshall v.
Gates, 44 F.3d 722, 725 (9th Cir. 1995) (“We are, however,
under an obligation to construe local rules so that they do not
conflict with the federal rules, and we have exercised our
ingenuity in doing so.”)
4
The judgment was filed October 10, 2004. The Notice of Appeal was
filed March 9, 2005.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19859
For the purposes of appeal, when a local rule based post-
judgment motion for reconsideration is made premised on an
argument that there was a “manifest showing . . . of a failure
to consider material facts,” we construe it either as (1) a
motion to alter or amend a judgment under Rule 59(e) or (2)
a motion filed under 60(b) for relief from judgment under
Rule 59(e). Fuller v. M.G. Jewelry, 950 F.2d 1437, 1441-42
(9th Cir. 1991).5 Whether we construe the motion as filed
under Rule 59(e) or Rule 60(b) depends on the timing. Am.
Ironworks & Erectors Inc. v. N. Am. Constr. Corp., 248 F.3d
892, 898-99 (9th Cir. 2001). If the motion for reconsideration
is filed within ten days of the entry of judgment, we construe
it as filed under Rule 59(e). Shapiro ex rel. Shapiro v. Para-
dise Valley Unified School Dist. No. 69, 374 F.3d 857, 863
(9th Cir. 2004); Am. Ironworks, 248 F.3d at 898-99; United
States v. Nutri-cology, Inc., 982 F.2d 394, 397 (9th Cir. 1992).
This construction is in accord with Rule 59(e), which provides
that a motion to alter or amend the judgment “shall be filed
no later than 10 days after entry of the judgment.” Fed. R.
Civ. Pro. 59(e).
If the motion is filed more than ten days after entry of judg-
ment, we construe it as being filed under Rule 60(b). Am.
Ironworks, 248 F.3d at 899; Mt. Graham Red Squirrel v.
Madigan, 954 F.2d 1441, 1463 n.35 (9th Cir. 1992); Straw v.
5
The majority admits that the government’s motion was made “pre-
cisely on these grounds,” but contends that a motion on these grounds
does not conflict with either Federal Rule 59(e) or 60(b). That conclusion
is squarely precluded by a long line of precedent, as I have cited, in which
we have held that a local-rule based motion on those grounds is to be con-
strued under one of the two Federal Rules. Fuller, 950 F.2d at 1442;
Schroeder v. McDonald, 55 F.3d 454, 459 (9th Cir. 1995). Fuller itself
involved the local rule of the Central District of California governing
motions for reconsideration—the precise rule at issue here. A contrary rule
would not make any sense and would leave the critical question of appel-
late jurisdiction to the whim of local rule. We have to determine as a mat-
ter of appellate jurisdiction whether the appeal is timely under the Federal
Rules of Appellate Procedure.
19860 UNITED STATES v. COMPREHENSIVE DRUG TESTING
Bowen, 866 F.2d 1167, 1171-72 (9th Cir. 1989); Gould v.
Mutual Life Ins. Co. of New York, 790 F.2d 769, 772 (9th Cir.
1986),
The difference between the rules is important. A timely
filed motion pursuant to Rule 59(e) will toll the time for filing
a notice of appeal from the underlying judgment until the dis-
trict court denies the Rule 59(e) motion. Shapiro, 374 F.3d at
863. However, the filing of an untimely Rule 59(e) motion
does not toll the running of the appeal period. Scott v. Youn-
ger, 739 F.2d 1464, 1467 (9th Cir. 1984) (citing Cel-A-Pak v.
California Agric. Labor Relations Bd., 680 F.2d 664, 666 (9th
Cir. 1982)). The ten day time limit in Rule 59(e) “is jurisdic-
tional and cannot be extended by the court.” Id. Indeed, Fed-
eral Rule of Civil Procedure 6(b), which allows for
enlargement of time to file, states that a court “may not extend
the time for taking any action under . . . [59(e)] . . . , except
to the extent and under the conditions stated [in the section
itself].” Fed. R. Civ. Pro. 6(b).
The filing of a Rule 60(b) does not toll the time for appeal-
ing from the underlying judgment. Nutri-Cology, 982 F.2d at
397. Therefore, unlike an appeal from a denial of a Rule 59(e)
motion, “ ‘[a]n appeal from a denial of a Rule 60(b) motion
brings up only the denial of the motion for review, not the
merits of the underlying judgment.’ ” Briones v. Riviera Hotel
& Casino, 116 F.3d 379, 380 (9th Cir. 1997) (quoting Floyd
v. Laws, 929 F.2d 1390, 1400 (9th Cir. 1991)); see also Mol-
loy v. Wilson, 878 F.2d 313, 315 (9th Cir. 1989); Straw v.
Bowen, 866 F.2d at 1171; Schanen v. United States Dept. of
Justice, 762 F.2d 805, 807 (9th Cir. 1985), as modified, 798
F.2d 348 (1986).
Here, it is undisputed that the government’s post-judgment
motion for reconsideration of the order was not timely filed.
Judge Cooper filed the order on October 1, 2004; the govern-
ment did not file its motion to reconsider until November 23,
2004. Because the government’s motion to reconsider was
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19861
filed outside the ten day time limit specified in Rule 59(e), we
must construe the motion as filed under Rule 60(b). Am. Iron-
works, 248 F.3d at 899; Mt. Graham Red Squirrel, 954 F.2d
at 1463 n.35.
For these reasons, I disagree with the analysis offered by
the parties and by the majority. The government’s argument
that “courts liberally construe post-judgment motions as ade-
quate to toll the time for filing a notice of appeal” is squarely
foreclosed by circuit law under these circumstances. The
cases cited by the government pertain only to motions timely
filed within the ten day period described in Rule 59(e), not to
motions filed outside the ten day window. See, e.g., Taylor v.
Knapp, 871 F.2d 803, 805 (9th Cir. 1988) (construing a vari-
ety of post judgment motions as filed under Rule 50(e) so
long as the motions were filed within ten days after the order
or judgment).
Although I agree with the Players Association that we lack
jurisdiction over the merits of Judge Cooper’s original Rule
41(g) order, I disagree that we lack jurisdiction over Judge
Cooper’s denial of the motion for reconsideration. The gov-
ernment’s notice of appeal was filed within sixty days after
the denial, so the appeal is timely as to the motion for recon-
sideration.
I respectfully, but strongly, disagree with the majority that
the Central District’s local rule served to override the Federal
Rules of Civil Procedure or our prior controlling precedent,
which requires post-judgment motions to be filed within ten
days of the order or judgment in order to toll the time for fil-
ing a notice of appeal. Nutri-Cology, 982 F.2d at 397. The
time limits established for filing an appeal are “mandatory
and jurisdictional.” Browder v. Director, Dept. of Corrections
of Illinois, 434 U.S. 257, 264 (1978). The majority’s contrary
view, as I have explained, is contrary to the plain language of
Rule 83, 28 U.S.C. § 2071(a), and controlling precedent.
19862 UNITED STATES v. COMPREHENSIVE DRUG TESTING
To summarize: Consistent with our precedent and the rules,
I would hold that the government’s untimely motion for
reconsideration should be construed as a Rule 60(b) motion.
Because the government did not file a notice of appeal of the
original order within the period required by Rule 4(a)(1)(B),
we lack jurisdiction to consider the merits of the original
order. I would hold that we have jurisdiction to consider the
district court’s denial of the motion for reconsideration, but
our review is confined to it.
B
We review the denial of a motion for reconsideration con-
strued as a Rule 60(b) motion for an abuse of discretion, Sch.
Dist. No. 1J, Multnomah County v. ACandS, Inc., 5 F.3d
1255, 1262 (9th Cir. 1993), and we will reverse a district
court’s ruling on a Rule 60(b) motion “ ‘only upon a clear
showing of abuse of discretion.’ ” Pena v. Seguros La Comer-
cial, S.A., 770 F.2d 811, 814 (9th Cir. 1985) (quoting Ellis v.
Brotherhood of Railway, Airline & Steamship Clerks, 685
F.2d 1065, 1071 (9th Cir. 1982)). Therefore, our review is
confined to whether Judge Cooper abused her discretion in
denying the government’s motion for reconsideration and
does not extend to the merits of the underlying order.
When we review a motion for reconsideration under Rule
60(b), we analyze the district court’s decision under the usual
Rule 60(b) factors, “which provide[ ] for reconsideration only
upon a showing of (1) mistake, surprise, or excusable neglect;
(2) newly discovered evidence; (3) fraud; (4) avoid judgment;
(5) a satisfied or discharged judgment; or (6) ‘extraordinary
circumstances’ which would justify relief.” Fuller, 950 F.2d
at 1442. In its reconsideration motion, the government did not
contend there was any mistake, surprise, excusable neglect,
newly discovered evidence, fraud, void judgment, satisfied or
discharged judgment, or extraordinary circumstances. Rather,
the government simply asked the district court to modify its
finding, suggesting that the court had failed to consider evi-
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19863
dence already in the record. A district court does not abuse its
discretion in denying a Rule 60(b) motion when it simply
repeats its earlier arguments. Backlund v. Barnhart, 778 F.2d
1386, 1388 (9th Cir. 1985).
In response to the government’s motion, the district court
examined each of the government’s assertions that the court
had ignored evidence and arguments. In its order denying
reconsideration, the district court carefully explained how it
had considered the evidence and arguments in the first
instance, but found them unconvincing. As the district court
properly concluded, the motion for reconsideration amounted
only to “[t]he Government’s mere disagreement with the
Court’s interpretation of the evidence and its opinions . . . .”
Under these circumstances, the district court certainly did not
abuse its discretion in denying the government’s motion.6 I
would affirm the order of the district court denying the gov-
ernment’s motion for reconsideration.
III
I agree with the majority that the district courts properly
exercised equitable jurisdiction over the Rule 41(g) motions.7
6
The local rule under which the motion was filed contains similar
restrictions to those contained in Rule 60(b). It provides that “[a] motion
for reconsideration on any motion may be made only on the grounds of
(a) a material difference in law or fact from that presented to the Court
before such decision that in the exercise of reasonable diligence could not
have been known to the party moving for reconsideration at the time of
such decision, or (b) the emergence of new material factors or a change
of law occurring after the time of such decision, or (c) a manifest showing
of a failure to consider material facts presented to the Court before such
decision.” Local Rule 7-18. Clearly, the government offered no new evi-
dence that was not available to it at the time the motion was made and no
suggestion of a change in law. Its only argument was that the district court
failed to consider material facts already presented, a contention that the
district court squarely addressed in its order.
7
For the purposes of this section, I will analyze Judge Cooper’s order
granting Rule 41(g) relief on the merits along with Judge Mahan’s similar
order, even though I believe that we lack jurisdiction to consider the mer-
its of Judge Cooper’s original order as I explained in Section II.
19864 UNITED STATES v. COMPREHENSIVE DRUG TESTING
Ramsden identified four factors that district courts must con-
sider before exercising equitable jurisdiction to order the
return of property, namely whether: (1) the government dis-
played a callous disregard for the constitutional rights of the
movant; (2) the movant has an individual interest in and the
need for the property he wants returned; (3) the movant would
be irreparably injured by denying return of the property; and
(4) the movant has an adequate remedy at law for the redress
of his grievance. 2 F.3d at 324.
Although I agree with the majority that the district courts
properly exercised equitable jurisdiction, I disagree with the
majority’s analysis in reaching that conclusion. Because the
equitable jurisdictional analysis in large part drives the analy-
sis of the merits of the Rule 41(g) decisions, it is important
to detail my differences with the majority on the issue.
A
The first Ramsden factor is whether the government dis-
played a callous disregard for the constitutional rights of the
movant. The majority concludes the government did not. I
respectfully disagree with that conclusion. The record amply
supports the conclusion of the district courts that the govern-
ment displayed callous disregard for the constitutional rights
of the movants.
1
The district judges concluded, among other things, that the
government sought and executed the search warrants and took
subsequent legal action as a tactical measure to prevent the
Players Association and CDT from litigating their motion to
quash and other objections to the wholesale production of
CDT data. The record supports this conclusion. The govern-
ment applied for, and executed, the initial search warrants
after CDT and the Players Association informed the govern-
ment it would be filing a motion to quash the grand jury sub-
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19865
poenas. Government counsel conceded on the record that the
motivation for seeking the search warrants was the “brick
wall” presented by the filing of the motions to quash, even
though DOJ guidelines state that “[t]he fact that the disinter-
ested third party possessing the materials may have grounds
to challenge a subpoena or other legal process is not in itself
a legitimate basis for the use of a search warrant.” 28 C.F.R.
§ 59.4.
The majority repeatedly points out that the DOJ guidelines
do not give rise to substantive rights. That may be so, but it
is beside the point. The guidelines form a baseline from which
to judge the reasonableness of unjustified deviations from the
standard practices they outline. The guidelines plainly state
that it is not legitimate to use a search warrant because a party
may be challenging a subpoena; the government admitted that
this was precisely the reason it issued the warrants in this
case.
Further, as Judge Cooper found, the use of a search warrant
to obtain documents from a third party is inappropriate. The
Department of Justice Guidelines address this point specifi-
cally:
A search warrant should not be used to obtain docu-
mentary materials believed to be in the private pos-
session of a disinterested third party unless it appears
that the use of a subpoena, summons, request, or
other less intrusive alternative means of obtaining
the materials would substantially jeopardize the
availability or usefulness of the materials sought, and
the application for the warrant has been authorized
as provided in paragraph (a)(2) of this section.
28 C.F.R. § 59.4(a)(1); see also U.S. Attorney’s Manual § 9-
19.210.
19866 UNITED STATES v. COMPREHENSIVE DRUG TESTING
The U.S. Attorney’s Manual also provides that a search
warrant should normally not be used to obtain confidential
materials such as treatment records. §§ 9-19.220, 9-19.230.
The simple and undisputed fact is that the government
deviated from its usual and appropriate protocol. Documents
held in the possession of third parties are appropriately
obtained through use of grand jury subpoena, not search war-
rant. The record is quite clear that the government used the
vehicle of a search warrant only because it thought its grand
jury subpoenas might be contested. As the DOJ Guidelines
recognize, that is an inappropriate use of a search warrant.
The district judges were entitled on the basis of the record to
find that the government undertook this action in an attempt
to prevent the Players Association and CDT from litigating
the merits of their objections to the grand jury subpoenas.
Further, the entire record of the case shows a repeated pat-
tern of the government attempting to prevent a full hearing on
the merits of the Players Association legal challenges. In vir-
tually each hearing in which CDT and the Players Association
articulated their objections, the government argued that
another court had primary jurisdiction or that the action of
another court dictated the result.8 The record supports the dis-
trict courts’ collective conclusion that, as Judge Cooper put it,
the government’s actions constituted a “desperate effort to
8
To provide but a few examples: Before Judge White, who was consid-
ering the initial motion to quash, the government argued that he should
defer ruling because he had no jurisdiction over the materials seized by the
warrant. The government urged Judge Illston to wait to decide the Rule
41(g) motion until Magistrate Judge Johnson had ruled on the separate
Rule 41(g) motion. The government urged Judge Johnson to consider that
probable cause had already been established by the issuance of a search
warrant by Magistrate Judge Lloyd. The government contended Judge
Mahan lacked jurisdiction to order the property seized under the warrant
returned because it had separately obtained a grand jury subpoena for the
same item, urging him to wait until Judge White had ruled on the motion
to quash (not disclosing that it had asked Judge White to defer until the
Rule 41(g) motions had been decided).
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19867
acquire evidence by whatever means could be utilized,” by
means of “quickly and skillfully moving the cup so no one
can find the pea.”
2
The record also amply supports the conclusion of the dis-
trict courts that the government made misleading statements
in its application for search warrants.
The application contained lengthy representations about
how computer data could be destroyed and stated that “while
not denying that they have the requested materials, CDT has
declined to comply with the subpoena and has stated its intent
to quash the subpoena.” The affidavit did not disclose that
CDT had agreed in writing to keep the data and other materi-
als secured until the scope of the grand jury subpoena was set-
tled, either through negotiation or a ruling on a motion to
quash. The affidavit did not disclose that the Chief of the
Criminal Division of the United States Attorney’s Office had
accepted the assurances in writing.
Rather, the affidavit justified removing computer data and
equipment from the searched premises on the basis that:
Computer users can attempt to conceal data within
computer equipment and storage devices through a
number of methods, including the use of innocuous
or misleading filenames and extensions. . . . Com-
puter users can also attempt to conceal data by using
encryption, which means that a password or device,
such as a “dongle” or “keycard,” is necessary to
decrypt the data into readable form. In addition,
computer users can conceal data within another
seemingly unrelated and innocuous file in a process
called “steganography.” For example, by using ste-
ganography, a computer user can conceal text in an
image file which cannot be viewed when the image
19868 UNITED STATES v. COMPREHENSIVE DRUG TESTING
file is opened. Therefore, a substantial amount of
time is necessary to extract and sort through data that
is concealed or encrypted to determine whether it is
evidence, contraband or instrumentalities of a crime.
The affidavit also informed the magistrate judge that
“[c]omputer hardware and storage devices may contain
‘booby traps’ that destroy or alter data if certain procedures
are not scrupulously followed.” It noted that computer data
was “particularly vulnerable to inadvertent or intentional
modification or destruction.”
The government did not have any evidence or reason to
believe that CDT had engaged in steganography, booby-
trapping computers, or any type of data destruction or alter-
ation. To the contrary, it had accepted in writing CDT’s assur-
ances “that CDT will maintain and preserve all materials
called for by the first subpoena as well as any materials called
for by the new subpoena” and that “CDT would not destroy
or alter any of the materials called for by either of the subpoe-
nas.” The plain import of the application was that CDT was
improperly resisting compliance with a valid grand jury sub-
poena and data was in jeopardy of being destroyed. It implied
that CDT was not being forthright about the information it
possessed, when in fact there was no suggestion that CDT
was attempting to mislead the government in any respect.
The search warrant application did not disclose that the
Players Association, on behalf of the individuals whose medi-
cal files were at issue, had intervened and had joined CDT’s
motion to quash the grand jury subpoena. The application did
not disclose the history of negotiations between the parties,
and that the concern was about the breadth of the subpoena.
The application did not disclose that the written assurances
made by CDT and accepted by the government contemplated
resolving the disputed issues through a motion to quash if
necessary. Rather, the application implied that CDT was tak-
ing unjustified unilateral action.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19869
Given these undisputed facts, the district judges were enti-
tled to find that the government had made misleading state-
ments in the search warrant applications.
3
The record amply supports that finding that the actions of
the government in executing the search warrants were a mere
pretext for inappropriately obtaining confidential medical data
about Major League Baseball players who were not under any
particularized suspicion of criminal activity. The government
first sought the information about all Major League Baseball
players in its initial grand jury subpoena. After objection from
the Players Association and CDT, the government (without
withdrawing its initial subpoena) issued a new subpoena lim-
ited to information about players about whom the government
had a reasonable suspicion were connected to Balco.
The initial search warrant purported to be limited to the
players associated with Balco. Indeed, the affidavit purported
to justify obtaining information to link test results to individ-
ual players “to ensure that samples of individuals not associ-
ated with Balco are left undisturbed.” However, once it had
taken all of the data off site, it proceeded with new warrants
to search the data it already possessed for evidence of positive
steroid markers. There was no evidence in the exhaustive
Balco investigation that any of these players had any connec-
tion to Balco, as the government concedes.
When the entire record is examined, it appears that the gov-
ernment was attempting to obtain all medical data about all
Major League Baseball players, and using the search warrant
for the limited number of players as a pretext for doing so.
The procedure employed by the government at the search but-
tresses this conclusion. CDT had segregated the information
about the ballplayers who were the subject of the search war-
rant. However, the agents insisted on taking the entire direc-
tory of information about all players. To the extent the data
19870 UNITED STATES v. COMPREHENSIVE DRUG TESTING
responsive to the warrant had not been provided in the segre-
gated material, the information could have easily been iso-
lated on site. Yet the government insisted on removing the
entire directory.
CDT suggested using the Tamura procedure, under which
a magistrate judge would first examine the data and segregate
the non-confidential material. However, the government
rejected that approach. Instead, the government seized every-
thing, then examined it, then sought additional search war-
rants as protection against its unauthorized search.
These facts, among many others from the record, more than
adequately support the conclusion that the government used
the limited warrants as a pretext for conducting an unautho-
rized general search—a tactic we rejected in United States v.
Rettig, 589 F.2d 418 (9th Cir. 1978).
4
The majority finally justifies the government’s actions by
concluding that the government had the right to seize all of
the medical data because the data was “intermingled” with
data responsive to the warrant. This conclusion is the one with
which I have the most profound disagreement with the major-
ity.
There is no doubt that the agents did not comply with the
warrant. They seized an enormous amount of personal prop-
erty belonging to individuals not under any suspicion of crim-
inal activity. A warrantless search is, of course, presumptively
unreasonable. United States v. Karo, 468 U.S. 705, 714-15
(1984). As the Supreme Court explained in Coolidge v. New
Hampshire, 403 U.S. 443, 454-55 (1971):
Thus the most basic constitutional rule in this area is
that searches conducted outside the judicial process,
without prior approval by judge or magistrate, are
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19871
per se unreasonable under the Fourth Amendment—
subject only to a few specifically established and
well delineated exceptions. The exceptions are jeal-
ously and carefully drawn, and there must be a
showing by those who seek exemption [ ] that the
exigencies of the situation made that course impera-
tive. The burden is on those seeking the exemption
to show the need for it. (quotation marks and cita-
tions omitted).
The government concedes that it had no probable cause or
even particularized reasonable suspicion that could have
formed the basis for the issuance of a search warrant to obtain
the physical samples, and the data obtained from testing the
samples, concerning the players who were not involved in the
Balco investigation. The government’s particularized warrants
were limited to ten identified players whom the government
alleged it had reason to believe were involved with Balco.
The majority endorses the warrantless seizure and search of
confidential medical information pertaining to individuals not
under any criminal suspicion, reasoning that the existence of
a handful of relevant records justifies the seizure and subse-
quent search of thousands of irrelevant records. I respectfully
disagree.
The majority’s holding squarely conflicts with our prior
precedent. For decades, we have eschewed the indiscriminate
search and seizure of materials that are not responsive to a
valid search warrant. In Tamura, we stated that “the whole-
sale seizure for later detailed examination of records not
described in a warrant . . . has been characterized as ‘the kind
of investigatory dragnet that the fourth amendment was
designed to prevent.’ ” 694 F.2d at 595 (quoting United States
v. Abrams, 615 F.2d 541, 543 (1st Cir. 1980)). Tamura held
that “the government’s wholesale seizure of company docu-
ments [is] illegal [when] the agents intentionally seize[ ]
materials they [know] were not covered by the warrant.”
19872 UNITED STATES v. COMPREHENSIVE DRUG TESTING
United States v. Hill, 322 F. Supp. 2d 1081, 1088 (C.D. Cal.
2004) (Kozinski, J., sitting by designation).
Here, it was clear to the investigating officers that they
were seizing a sizable amount of data that was not responsive
to the warrant. Indeed, the Tracey directory itself was deter-
mined to contain 2,911 files, with an unknown amount of data
in each file, that were not connected with Major League Base-
ball player drug testing at all. The directory contained test
results for thirteen other sports organizations, two business
entities, and three sports competitions. The sub-directories
were quite clearly named, so that it was obvious to the casual
observer that if the files in the directories correlated to the
name—and there was no reason to think otherwise—the mate-
rial had nothing to do with the ten players listed in the war-
rant. In the files that concerned Major League Baseball
players, there was information on approximately 1,200 play-
ers, with multiple test results.9
The majority relies on United States v. Beusch, 596 F.2d
871 (9th Cir. 1979), to establish that the government’s seizure
of the entire Tracey directory was reasonable. However, as
the majority acknowledges, this court “limited the reach of
Beusch’s holding to ‘single files and single ledgers, i.e., single
items which, though theoretically separable, in fact constitute
one volume or file folder.’ ”
9
The majority tries to distinguish what the agents did here from what
transpired in Tamura by stating that, here, the agents took only a copy of
the Tracey Directory and not the master files as was the case in Tamura.
Yet when the countervailing interest is privacy and not merely the disrup-
tion of business, that interest suffers whether it is copies or originals that
are seized. The majority also points out that the agents here did not take
the whole computer or all of the computers in CDT’s office. This distinc-
tion fails to recognize the difference between the computer age and the
paper age. All of the files in one directory on one computer in today’s
world could very well constitute the equivalent of all the files in an entire
office in yesterday’s paper era.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19873
Here, the government seized the entire Tracey directory,
not only the individual spreadsheet containing the Major
League Baseball players’ test results. In Beusch, we specifi-
cally stated that “[t]he reasons we have given for allowing
their seizure may not apply to sets of ledgers or files . . . .”
596 F.2d at 877. On many computers, all of a user’s docu-
ments are found in a single directory. To apply Beusch to the
computer context in the way the majority suggests would per-
mit the government to seize all the documents on a given
computer if only one document therein was responsive to the
warrant. This is precisely what Beusch explicitly said it did
not intend to permit in the paper documents context.
The majority’s holding that the government was entitled to
seize all records in the file because the non-Balco drug test
results were “intermingled” in the same file puts Americans’
most basic privacy interests in jeopardy. Such a rule would
entitle the government to seize the medical records of anyone
who had the misfortune of visiting a hospital or belonging to
a health care provider that kept patient records in any sort of
master file which also contained the data of a person whose
information was subject to a search warrant. I agree entirely
with Judge Illston’s observation that the implications of
approving such behavior are staggering. Under the majority’s
holding, no laboratory or hospital or health care facility could
guarantee the confidentiality of records.
The majority attempts to discount this possibility, but offers
no principled reason why it does not apply in hundreds of
other contexts. Indeed, under questioning from the district
judges, the government did not discount the possibility of
other widespread searches.10
10
For example, a hearing before Magistrate Judge Johnson contained the
following colloquy between government counsel and the Court:
Court: * * * If there is some other drug testing lab apart
from CDT, would you ever use — but the test for the
ten were at CDT. Would you ever use this informa-
19874 UNITED STATES v. COMPREHENSIVE DRUG TESTING
As the Supreme Court has observed, “[i]t is familiar history
that indiscriminate searches and seizures conducted under the
authority of ‘general warrants’ were the immediate evils that
motivated the framing and adoption of the Fourth Amend-
ment.” Payton v. New York, 445 U.S. 573, 583 (1980). It was
for this reason that the particularity requirement in warrants
was adopted. As the Court noted in Maryland v. Garrison,
480 U.S. 79, 84 (1987):
tion to go and say — just demand that you can get the
drug testing results from other labs that test profes-
sional athletes . . . . Based on the theory that it’s sys-
temic. And so there’s a problem, there’s a problem.
And we know that these other labs test athletes, too.
So can you just go search?
Counsel: Yes, your honor.
Similarly, in another hearing Judge Illston asked government counsel
whether he thought it was possible to take the information from the Tracey
directory concerning other sports organizations and use individual test
results of athletes to launch another investigation. Strikingly, Judge Illston
posed it as a hypothetical, but the government did not appear to deny that
officers may have viewed individual records in other sports:
Court: What if hockey had a subdirectory that had positive
results and he clicked on it to make sure it was what
it said it was, by George, that’s what it was, what
about that?
Counsel: I don’t know in checking to make sure it was hockey
that didn’t happen. If it did happen, I would think that
theoretically Agent Novitsky would have the right to
either request a search warrant or, I suppose, if you
looked at it enough, it’s possible that it was obvious,
it was plain view, it was other drug use by hockey
players. So there might be a legal entitlement for
Agent Novitzsky to use that and do something with
it. It hasn’t happened in this case. I suppose that’s
theoretically possible, again, you would have, I
believe, probable cause to believe that evidence in
there would lead to other persons potentially involved
in disputable criminal drugs, which is the crime that’s
under investigation.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19875
The Warrant Clause of the Fourth Amendment cate-
gorically prohibits the issuance of any warrant
except one “particularly describing the place to be
searched and the persons or things to be seized.” The
manifest purpose of this particularity requirement
was to prevent general searches. By limiting the
authorization to search to the specific areas and
things for which there is probable cause to search,
the requirement ensures that the search will be care-
fully tailored to its justifications, and will not take on
the character of the wide-ranging exploratory
searches the Framers intended to prohibit.
Unfortunately, the majority’s theory—as well as the
government’s—causes just this type of result. The more sensi-
ble theory with respect to electronic data is to enforce the pro-
cedure outlined in Tamura and require that a neutral
magistrate examine the co-mingled data that the government
proposes to seize to make sure that private information that
the government is not authorized to see remains private.
Agents who expect to encounter intermingled data or who
unexpectedly encounter it may not review the data unabated,
but must seek a magistrate’s guidance on how to proceed.
This procedure need not impose impossible burdens on law
enforcement. After seizure, the data is secure and may be
reviewed in an “informed and deliberate” manner by a “neu-
tral and detached” magistrate, rather than being secreted for
indiscriminate examination by government officials.
Tamura described a procedure that would impose a check
on the government’s ability to engage in such behavior. We
advised that where “documents are so intermingled that they
cannot be feasibly sorted on site,” that law enforcement offi-
cers should “seal[ ] and hold[ ] the documents pending
approval by a magistrate . . . .” Id. at 595-96. As we noted:
The essential safeguard required is that wholesale
removal must be monitored by the judgment of a
19876 UNITED STATES v. COMPREHENSIVE DRUG TESTING
neutral, detached magistrate. In the absence of an
exercise of such judgment prior to the seizure in the
present case, it appears to us that the seizure, even
though convenient under the circumstances, was
unreasonable.
Id. at 596 (footnote omitted).11
The majority overrules the Tamura procedure, allowing the
government to search and seize documents without prior mag-
istrate approval. This holding conflicts with Tamura.
Therefore, I respectfully disagree with the majority’s asser-
tion that the government’s action in this case complied with
the Fourth Amendment, and that the procedures outlined in
Tamura should be rejected. There is no doubt that the agents
violated the terms of the search warrant.
5
The government did not advocate the position adopted by
the majority. The government’s sole justification for the war-
rantless seizure of the data of the unlisted players is that it was
in “plain view,” which is one of the limited exceptions to the
Fourth Amendment’s warrant requirement. Although the
majority did not reach this question, the theory formed the
entire basis for the government’s legal justification for its
actions and was the primary focus of the proceedings before
the district courts. Therefore, it is important to address it to
11
The Tenth Circuit adopted the Tamura approach specifically in the
computer context in Carey, holding that:
Where officers come across relevant documents so intermingled
with irrelevant documents that they cannot feasibly be sorted at
the site, the officers may seal or hold the documents pending
approval by a magistrate of the conditions and limitations on a
further search through the documents.
172 F.3d at 1275.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19877
demonstrate the soundness of the various decisions by the dis-
trict courts.
The plain view doctrine is based on the assumption that if
there is probable cause for the search, and the officer is
legally entitled to be at the premises under the Fourth Amend-
ment, seizure of an object in plain view that is contraband or
evidence of a crime does not involve an invasion of privacy.
Payton, 445 U.S. at 586-87. The Supreme Court has identified
several conditions that must be satisfied before a plain view
seizure of an object is upheld: (1) the officer conducting the
seizure must lawfully arrive at the position from which the
object is plainly seen; (2) the object must be in plain view; (3)
the object’s incriminating character must be “immediately
apparent,” that is, the officer must have probable cause to
believe the object is contraband or evidence of a crime; and
(4) the officer must have a lawful right of access to the object
itself. Minnesota v. Dickerson, 508 U.S. 366, 375 (1993);
Horton, 496 U.S. at 136-37; Texas v. Brown, 460 U.S. 730,
737 (1983).
Under the circumstances presented by this case, not only is
it clear that the government had not met its burden of estab-
lishing that the seizure of the data was justified under the
plain view doctrine, but it is also clear why the plain view
doctrine would be inappropriate to apply in the computer con-
text.
a
The fundamental requirement of the plain view doctrine is
that the object seized be in “plain view,” that is, “obvious to
the senses.” United States v. Sifuentes, 504 F.2d 845, 848 (4th
Cir. 1974). After an extensive colloquy, Judge Illston con-
cluded that the computer data seized was not in “plain view.”
Not only is this factual conclusion not clearly erroneous, the
undisputed record completely supports her conclusion under
any standard of review.
19878 UNITED STATES v. COMPREHENSIVE DRUG TESTING
As Judge Illston pointed out, this was not a case in which
an incriminating photo or similar evidence could be viewed
on a computer screen; rather, at best, it involved scrolling
through thousands of records none of which were immedi-
ately visible. In its application for a search warrant, the gov-
ernment justified removal of data and computer equipment on
the basis that:
The volume of data stored on many computer sys-
tems and storage devices will typically be so large
that it will be highly impractical to search for data
during the execution of the physical search of the
premises. A single megabyte of storage space is the
equivalent of 500 double-spaced pages of text. A
single gigabyte of storage space, or 1,000
megabytes, is the equivalent of 500,000 double-
spaced pages of text. Storage devices capable of
storing fifteen gigabytes of data are now common-
place in desktop computers. Consequently, each non-
networked desktop computer found during a search
can easily contain the equivalent of 7.5 million pages
of data, which, if printed out, would completely fill
a 10′ x 12′ x 10′ room to the ceiling.
The government also indicated in its affidavit that it would
be using consulting computer specialists to analyze the data.
The affidavit explained:
Searching computer systems is highly technical pro-
cess which requires specific expertise and special-
ized equipment. There are so many types of
computer hardware and software in use today that it
is impractical to bring to the search site all of the
necessary technical manuals and specialized equip-
ment to conduct a thorough search. In addition, it
may also be necessary to consult with computer per-
sonnel who have specific expertise in the type of
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19879
computer software application or operating system
that is being searched.
According to the government, the search of the computers
at CDT could not be completed at the scene. There were, in
fact, 16 computers. However, one computer was eventually
isolated and data retrieved. As Special Agent Novitsky’s
memorandum of activity stated:
At approximately 2:35 p.m., S/A Abboud began
working on a computer with [a CDT employee].
[She] directed us to a computer in the office labeled
“E” for purposes of the search warrant and sketch.
At this computer, [she] identified a sub-directory
entitled “Tracey”, which she said contained all of the
computer documents for CDT’s sports drug testing
division. A cursory review of the subdirectory indi-
cated multiple further subdirectories and several
hundred computer files. As authorized by the war-
rant, because of the length of time it would take to
search each file and the intrusiveness it would cause
on CDT, it was decided to make a complete copy of
the “Tracey” subdirectory in order to perform a
search of it in the IRS-CID offices at a later time.
Agent Novitsky later explained in a subsequent affidavit
that:
This subdirectory contained hundreds of files and a
significant amount of computer data. After consult-
ing with agents at the scene specifically trained in
the search of computers, we determined that we
could not realistically search the entire directory on-
site in a reasonable amount of time. We therefore
made the determination to copy the entire sub-
directory.
After it was examined, the Tracey directory itself was
determined to contain 2,911 files, with an unknown amount
19880 UNITED STATES v. COMPREHENSIVE DRUG TESTING
of data in each file, that were not connected with Major
League Baseball player drug testing at all. In the files that
concerned Major League Baseball players, there was informa-
tion on approximately 1,200 players, with multiple test
results.
Given these circumstances, the data seized cannot be con-
sidered to be in “plain view.” As the Supreme Court has
noted, “If, however, the police lack probable cause to believe
that an object in plain view is contraband without conducting
some further search of the object — i.e., if its incriminating
character is not immediately apparent, the plain view doctrine
cannot justify its seizure.” Dickerson, 508 U.S. at 375 (alter-
ations and quotations omitted). The data now sought by the
government was not “obvious to the senses” at the scene, nor
were the positive tests in “plain view” from a glance at a com-
puter screen. The data required analysis and thorough exami-
nation off-site before the data at issue was discovered.
The “plain view” doctrine is inapplicable in the general
electronic context because it is at complete odds with the
underlying theory of the doctrine. As the Supreme Court has
explained:
The theory of that doctrine consists of extending to
nonpublic places such as the home, where searches
and seizures without a warrant are presumptively
unreasonable, the police’s longstanding authority to
make warrantless seizures in public places of such
objects as weapons and contraband. And the practi-
cal justification for that extension is the desirability
of sparing police, whose viewing of the object in the
course of a lawful search is as legitimate as it would
have been in a public place, the inconvenience and
risk—to themselves or to preservation of the
evidence—of going to obtain a warrant.
Horton, 480 U.S. at 326-27 (internal citations omitted).
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19881
Neither of those considerations is present when we consider
the off-site examination of electronic data. As the government
essentially acknowledged in its search warrant applications,
examination of computer data is a forensic exercise. It neces-
sarily involves the application of software to interpret the
data; without external software aid, the data would appear
only as binary numbers. In addition, as in this case, the gov-
ernment often requires computer specialists to decipher the
data. Electronic data is simply not the kind of evidence that
forms a natural extension of an officer’s discovery of obvious
contraband in a public place. The fact that further careful
electronic assistance is required outside the searched premises
to interpret the data belies the “practical” justification that
there is insufficient time to obtain a warrant. Indeed, electron-
ically assisted searches of binary numbers bear a closer
resemblance to the thermal imaging searches of homes that
the Supreme Court rejected as violative of the Fourth Amend-
ment in Kyllo v. United States, 533 U.S. 27 (2001).
The ultimate fact that, after the assistance of electronic soft-
ware programs, the data may be observed “in plain view”
does not alter this conclusion. As the Supreme Court has
warned:
[I]n the vast majority of cases, any evidence seized
by the police will be in plain view, at least at the
moment of seizure. The problem with the “plain
view” doctrine has been to identify the circum-
stances in which plain view has legal significance
rather than being simply the normal concomitant of
any search, legal or illegal.
Coolidge, 403 U.S. at 465.
The off-site forensic examination of computer data is sim-
ply not one of those circumstances that fits the “plain view”
paradigm. Indeed, to hold otherwise would be to write out the
Fourth Amendment’s particularity requirement with respect to
19882 UNITED STATES v. COMPREHENSIVE DRUG TESTING
electronic data and to transform particularized search warrants
into general search warrants, with the government authorized
to conduct indiscriminate, dragnet searches.
b
The government also failed to sustain its burden to estab-
lish the plain view exception because, as the district courts
found, the incriminating character of the information was not
“immediately apparent.” It was clear under the testing proto-
col that positive tests did not necessarily reflect steroid use;
the use of nutritional supplements—which is common in pro-
fessional sports—could also yield a false positive. In addition,
there are a whole host of legitimate reasons for individuals to
be prescribed steroid products. The CDT testing was not
undertaken to test individual players; but rather to provide a
survey for the possible establishment of an individual drug
testing protocol.
What the government relied on was sheer speculation that
the presence of positive steroid markers would mean that the
athlete had received steroids without prescription from some
unknown person. The crime that the government was inter-
ested in pursuing was the illegal distribution of steroids. The
evidence of a positive test was not affirmative evidence of any
distribution. The government’s theory was that, armed with
the test results, the government could then summon the athlete
before a grand jury to see if it could obtain evidence from
whom and under what circumstances the athlete may have
obtained steroids.
However, the mere suspicion of criminal activity or the sus-
picion of knowledge of a criminal activity is not sufficient to
sustain a seizure of evidence under the plain view doctrine.
As the Supreme Court has made abundantly clear, the “imme-
diately apparent” requirement means that the law enforcement
officer must have probable cause to seize the property that the
officer observed in plain view. As the Court explained:
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19883
We now hold that probable cause is required. To say
otherwise would be to cut the “plain view” doctrine
loose from its theoretical and practical moorings. . . .
Dispensing with the need for a warrant is worlds
apart from permitting a lesser standard of cause for
the seizure than a warrant would require, i.e., the
standard of probable cause. No reason is apparent
why an object should routinely be seizable on lesser
grounds, during an unrelated search and seizure, than
would have been needed to obtain a warrant for that
same object if it had been known to be on the prem-
ises.
Arizona v. Hicks, 480 U.S. 321, 326-27 (1987).
The government conceded that it did not have probable
cause to search or seize any data or specimens beyond the ten
players listed in the warrant. For those players, the govern-
ment provided extensive information showing their alleged
connection to Balco. However, the government conceded that
it had no information connecting any of the other players to
Balco. Indeed, it made that clear in both its affidavits and sub-
sequent hearings. The affidavit provided to Judge Lloyd spec-
ulated that evidence might be developed linking the players
who tested positive to Balco “because of the closely-knit pro-
fessional baseball community,” but also speculated that the
positive test results could suggest “another significant source
of illegal performance-enhancing drugs.” In fact, the govern-
ment had no evidence whatsoever that it tendered in support
of either theory. The government did not have any informa-
tion concerning who might be involved in any distribution
scheme; in fact, it had no idea at all.12
12
For example, the government engaged in the following colloquy at
one hearing:
Counsel: Your honor, it’s evidence because it’s evidence of an
illegal distribution of steroids to other people.
Court: From where?
Counsel: From where? That’s an excellent question, and that is
why we need the evidence.
19884 UNITED STATES v. COMPREHENSIVE DRUG TESTING
The government did not submit any evidence contradicting
the affidavits indicating the possibility of false positives and
that a positive result did not necessarily indicate illegal steroid
use. There was no specific target of the investigation against
whom the government sought incriminating evidence.
Mere speculation is not sufficient to establish probable
cause. United States v. Howard, 828 F.2d 552, 555 (9th Cir.
1987). Perhaps the government had reasonable suspicion, but
that is not sufficient to justify a seizure under the plain view
doctrine. See Hicks, 480 U.S. at 326 (holding that “probable
cause is required”); Payton, 445 U.S. at 587 (explaining the
plain view requirement that there be “probable cause to asso-
ciate the property with criminal activity.”).
6
For all of these reasons, I would hold that the finding that
the government acted in callous disregard of the rights of the
players is completely supported by the record. The district
courts made no error, much less a clear error, in finding that
the first Ramsden factor was satisfied. The district courts
rightfully rejected the government’s “plain view” justifica-
tion, and I respectfully disagree with the majority’s new rule
rejecting the sound procedures described in Tamura.
B
The second Ramsden factor is whether the movant has an
individual interest in and the need for the property he wants
returned. I agree with the majority and the district courts that
the Players Association satisfied this requirement. At issue are
the Fourth Amendment rights of the players. As we know, the
Fourth Amendment protects people from unreasonable
searches and seizures into areas in which they have a legiti-
mate expectation of privacy. Katz v. United States, 389 U.S.
347, 360-61 (1967) (Harlan, J., concurring). There is no doubt
that the affected baseball players had a justified,
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19885
constitutionally-protected privacy interest in the seized prop-
erty, including the computer data and the physical urine sam-
ples. However, I believe that the majority significantly
discounts and underestimates the importance of the privacy
interests at stake.
The legitimate expectation of privacy in medical informa-
tion is as old as the Hippocratic Oath.13 Indeed, “[o]ver the
last thirty years, the federal courts have uniformly accepted
the principle that medical records are private and entitled to
protection.” Joel Glover and Erin Toll, The Right to Privacy
of Medical Records, 79 Denv. U. L. Rev. 540, 541 (2002). In
this context, the Supreme Court has recognized at least two
distinct kinds of constitutionally-protected privacy interests:
“One is the individual interest in avoiding disclosure of per-
sonal matters, and another is the interest in independence in
making certain kinds of important decisions.” Doe v. Attorney
General, 941 F.2d 780, 795 (9th Cir. 1991) (quoting Whalen
v. Roe, 429 U.S. 589, 599-600 (1977)).
We have long applied Whalen and its progeny in holding
that “[i]ndividuals have a constitutionally protected interest in
avoiding ‘disclosure of personal matters,’ including medical
information.” Tucson Woman’s Clinic v. Eden, 379 F.3d 531,
551 (9th Cir. 2004); see also Norman-Bloodsaw v. Lawrence
Berkeley Laboratory, 135 F.3d 1260, 1269 (9th Cir. 1998)
(“The constitutionally protected privacy interest in avoiding
disclosure of personal matters clearly encompasses medical
information and its confidentiality.”); Yin v. California, 95
F.3d 864, 870 (9th Cir. 1996) (noting that “individuals have
a right protected under the Due Process Clause of the Fifth or
Fourteenth Amendments in the privacy of personal medical
information and records.”); Doe, 941 F.2d at 795-96 (holding
13
STEDMAN’S MEDICAL DICTIONARY, 799 (26th ed. 1995) (“All that may
come to my knowledge in the exercise of my profession or outside of my
profession, or in daily commerce with men, which ought not to be spread
abroad, I will keep secret and will never reveal.”)
19886 UNITED STATES v. COMPREHENSIVE DRUG TESTING
that individual has privacy interest in medical information,
including diagnosis); Caesar v. Mountanos, 542 F.2d 1064,
1067 n.9 (9th Cir. 1976) (noting that the right to privacy
encompasses the doctor-patient relationship). As we have
observed, “[o]ne can think of few subject areas more personal
and more likely to implicate privacy interests . . . .” Norman-
Bloodsaw, 135 F.3d at 1269.
If there were any doubt, the Supreme Court held in Fergu-
son v. City of Charleston, 532 U.S. 67, 78 (2001), that indi-
viduals enjoyed a reasonable expectation of privacy in
medical test results and that “the results of those tests will not
be shared with nonmedical personnel without [the patient’s]
consent.”
Congress has also recognized the importance of privacy in
medical records in a variety of contexts, most prominently in
the Health Insurance Portability and Accountability Act of
1996 (“HIPAA”), Pub. L. No. 104-191, 110 Stat. 1936 (1996).14
14
HIPAA was far from Congress’s first foray into privacy protection. As
the United States Department of Heath and Human Services noted:
In the 1970s, individual privacy was paramount in the passage of
the Fair Credit Reporting Act (1970), the Privacy Act (1974), the
Family Educational Rights and Privacy Act (1974), and the Right
to Financial Privacy Act (1978). These key laws were followed
in the next decade by another series of statutes, including the Pri-
vacy Protection Act (1980), the Electronic Communications Pri-
vacy Act (1986), the Video Privacy Protection Act (1988), and
the Employee Polygraph Protection Act (1988). In the last ten
years, Congress and the President have passed additional legal
privacy protection through, among others, the Telephone Con-
sumer Protection Act (1991), the Driver’s Privacy Protection Act
(1994), the Telecommunications Act (1996), the Children’s
Online Privacy Protection Act (1998), the Identity Theft and
Assumption Deterrence Act (1998), and Title V of the Gramm-
Leach-Bliley Act (1999) governing financial privacy.
In 1997, a Presidential advisory commission, the Advisory
Commission on Consumer Protection and Quality in the Health
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19887
In the regulations promulgated pursuant to HIPAA, the
United States Department of Health and Human Services
emphasized the importance of maintaining the privacy of
medical information, concluding that “[p]rivacy is a funda-
mental right” and that “[a] right to privacy in personal infor-
mation has historically found expression in American law.”15
65 Fed.Reg. at 82,464.
In sum, given controlling legal authority, there is no ques-
tion that the baseball players who participated in the random
testing had a justified expectation of privacy in the test results
and, in particular, that the test results would not be disclosed.16
Care Industry, recognized the need for patient privacy protection
in its recommendations for a Consumer Bill of Rights and
Responsibilities (November 1997). In 1997, Congress enacted the
Balanced Budget Act (Public Law 105-34), which added lan-
guage to the Social Security Act (18 U.S.C. 1852) to require
Medicare+Choice organizations to establish safeguards for the
privacy of individually identifiable patient information. Similarly,
the Veterans Benefits section of the U.S. Code provides for confi-
dentiality of medical records in cases involving drug abuse, alco-
holism or alcohol abuse, HIV infection, or sickle cell anemia (38
U.S.C. 7332).
Standards for Privacy of Individually Identifiable Health Information, 65
Fed.Reg. 82,462, 82,469 (Dec. 28, 2000) (codified at former 45 C.F.R. pts.
160, 164 (2002)).
15
The Department also emphasized that “While privacy is one of the
key values on which our society is built, it is more than an end in itself.
It is also necessary for the effective delivery of health care, both to indi-
viduals and to populations. . . . The need for privacy of health information,
in particular, has long been recognized as critical to the delivery of needed
medical care.” 65 Fed.Reg. at 82,467.
16
That the athletes had a justified, reasonable expectation of privacy in
the urine samples themselves that were seized by the government is
beyond question. See Skinner v. Railway Labor Executives’ Ass’n, 489
U.S. 602, 615-617 (1989) (“it is clear that the collection and testing of
urine intrudes upon expectations of privacy that society has long recog-
nized as reasonable . . . .”).
19888 UNITED STATES v. COMPREHENSIVE DRUG TESTING
Of course, under appropriate circumstances, justified pri-
vacy expectations may be altered by contract. Yin, 95 F.3d at
872. In this instance, the ballplayers’ privacy expectations
were heightened, not diminished, by the collective bargaining
agreement between the Major League Baseball Players Asso-
ciation and Major League Baseball. The agreement was
forged after years of impasse concerning steroid testing and,
as I have discussed, called for anonymous testing to determine
the scope of the problem. To that end, the agreement pro-
vided, in relevant part that:
1. During the 2003 season (which shall include
spring training but not include the post-season), all
Players will be subject to two tests (one initial test
and one follow-up test conducted not less than five
and not more than seven days following the initial
test) at unannounced times for the presence of
Schedule III steroids (“Survey Testing”). In addition
the Office of Commissioner shall have the right to
conduct additional Survey Testing in 2003 in which
up to 240 players, selected at random, may be tested.
2. If the results of the Survey Testing conducted in
2003 show that more than 5% of Players tested test
positive for Steroids, all Players will be subject to
two unannounced tests (an initial test and a followup
test five to seven days later) for Steroids during the
2004 season (“Program Testing”). If a Player tests
positive in the Program Testing, he shall immedi-
ately be placed on the Clinical Track and shall be
subject to discipline for further violations. The Pro-
gram Testing shall continue each season until less
than 2.5% of the Players tested test positive for Ste-
roids for two consecutive seasons combined.
In short, the only objective of the 2003 testing was to ascer-
tain whether the threshold had been exceeded; it was not
intended to test and monitor individual baseball players.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19889
Indeed, the testing protocol was designed to prevent the iden-
tification of individual players and the matching of players
with test results. The record does not reflect whether any indi-
vidual player was even informed of his testing results for the
2003 sample year.
The collective bargaining agreement contains numerous
provisions assuring confidentiality. For example, the section
concerning the testing protocol provides:
The confidentiality of the Player’s participation in
the Program is essential to the Program’s success.
Except as provided in Section 8, the Office of the
Commissioner, the Association, HPAC, Club per-
sonnel, and all of their members, affiliates, agents,
consultants and employees are prohibited from pub-
licly disclosing information about the Player’s test
results, Initial Evaluation, diagnosis, Treatment Pro-
gram (including whether a Player is on either the
Clinical or Administrative Track), prognosis or com-
pliance with the Program.
The collective bargaining agreement specified in great
detail the manner of collection of data and, in particular pro-
vided that:
At the conclusion of any Survey Test, and after the
results of all tests have been calculated, all test
results, including any identifying characteristics, will
be destroyed in a process jointly supervised by the
Office of the Commissioner and the Association.
The record contains many more references to the assurance
given Major League Baseball players that the 2003 tests
would be anonymous and kept confidential, which are unnec-
essary to detail. There simply is no doubt whatsoever that the
players had a justified, constitutionally protected privacy
interest in the test results — an interest that was further
19890 UNITED STATES v. COMPREHENSIVE DRUG TESTING
enhanced by the many protections and contractual obligations
contained in the collective bargaining agreement under which
the tests were conducted.
In sum, the players had a significant privacy interest in the
medical records and physical specimens. There is no doubt
that the players have an individual interest in and a need for
the property to be returned. Thus, the second Ramden factor
is satisfied.
C
I agree with the majority and the district courts that the
players would be irreparably injured by denying the return of
property. As the majority notes, the government has already
conceded that the players have no adequate remedy at law for
the redress of their grievances. Therefore, the third and fourth
Ramsden factors are satisfied.
For these reasons, I agree with the majority that the district
courts properly exercised equitable jurisdiction. However, I
would hold that the district courts correctly found that all four
Ramsden factors were satisfied. I disagree with the majority
that the government’s actions properly respected the privacy
rights of the players.
IV
We review a district court decision to exercise its equitable
jurisdiction under Rule 41(g) under the deferential abuse of
discretion standard. Ramsden, 2 F.3d at 324. I not only fail to
see any abuse of discretion in the decisions by the district
judges to exercise their equitable jurisdiction, I agree entirely
with the district courts that the seized property should be
returned.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19891
A
The Advisory Committee Notes to the 1989 amendments to
Rule 41(g) tell us that “reasonableness under all of the cir-
cumstances” should be the governing standard for determin-
ing whether property should be returned. (emphasis added).
Those same notes state that “[i]f the United States has a need
for the property in an investigation or prosecution, its reten-
tion of the property generally is reasonable,” but that “in cer-
tain circumstances . . . equitable considerations might justify
requiring the government to return or destroy all copies.” Id.17
Deciding between the two hinges on “whether the Govern-
ment’s conduct was sufficiently reprehensible in this case to
warrant this sanction.” Ramsden, 2 F.3d at 327. As the actions
I have discussed make clear, the government’s behavior was
sufficiently reprehensible and the privacy interests of the
players who were neither named in the warrant nor implicated
in any criminal activity sufficiently important to affirm the
granting of the 41(g) motions. Simply put, there is no reason
for the government to retain confidential medical information
and bodily fluids of citizens who are not under any particular-
ized suspicion of criminal activity.
B
I have already detailed my disagreement with the majori-
ty’s evisceration of the Tamura procedure. In addition to that,
I strongly disagree with the new procedure adopted by the
majority to supplant Tamura. The majority proposes that the
17
The cases the majority cites for the proposition that return of property
is inappropriate when the government still needs it as evidence are hardly
analogous to the present case. In both United States v. Mills, 991 F.2d 609,
612-13 (9th Cir. 1993), and United States v. Fitzen, 80 F.3d 387, 388-89
(9th Cir. 1996), the person seeking return of the property was the criminal
defendant himself, not an innocent third party, and the court found in both
cases that the defendants didn’t even have a legitimate claim of ownership
to the property.
19892 UNITED STATES v. COMPREHENSIVE DRUG TESTING
government may seize all computer databases containing
intermingled evidence, and if an objection is raised, must then
turn the material over to a magistrate judge for review. Under
the majority’s new rule, the magistrate judge is to allow the
government to retain the data if it is not feasible to segregate
material responsive to the warrant without altering the origi-
nal character of the information.
1
The majority’s remedy violates the “neutral and detached
magistrate” requirement. As the Supreme Court observed
many decades ago:
The point of the Fourth Amendment, which often is
not grasped by zealous officers, is not that it denies
law enforcement the support of the usual inferences
which reasonable men draw from evidence. Its pro-
tection consists in requiring that those inferences be
drawn by a neutral and detached magistrate instead
of being judged by the officer engaged in the often
competitive enterprise of ferreting out crime.
Johnson v. United States, 333 U.S. 10, 13 (1948).
The protections of requiring a “neutral and detached magis-
trate” to make “informed and deliberate determinations” con-
cerning probable cause are lost when the magistrate’s review
comes after the material has been seized and searched. As the
Supreme Court explained in Aguilar v. Texas, 378 U.S. 108
(1964):
The reasons for [the neutral and detached magistrate]
rule go to the foundations of the Fourth Amendment.
A contrary rule “that evidence sufficient to support
a magistrate’s disinterested determination to issue a
search warrant will justify the officers in making a
search without a warrant would reduce the Amend-
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19893
ment to a nullity and leave the people’s homes
secure only in the discretion of police officers.”
Id. at 111 (quoting Johnson, 333 U.S. at 14).
For a magistrate’s role to be effective, it must come before
the privacy interests have been compromised. Under the
majority’s holding, the government is newly empowered to
search the data before the magistrate authorizes the search.
This flips the traditional relationship of the magistrate to the
searching officer on its head. In all other contexts, the magis-
trate stands between the government and the privacy of indi-
viduals; in the majority’s proposed world, the magistrate only
appears after the privacy interests have been invaded.
Worse, under the majority’s holding, the seized material is
not presented to a magistrate at all except upon a “proper
post-seizure motion by the aggrieved parties.” In other words,
if no motion is made, there is never an “informed and deliber-
ate” examination of probable cause by a “neutral and
detached magistrate.” The government simply keeps and
searches the confidential data it seized without any suspicion
of criminal activity. But how precisely is an honest citizen to
know if his or her confidential medical records have been
seized by the government so that he or she may seek redress?
The search warrant is not directed to the innocent party; it is
served on the data repository. In the case at bar, the parties
knew of the seizure of data pursuant to the search warrant
because they were litigating (or at least thought they were liti-
gating) the production of the material pursuant to a grand jury
subpoena. However, at least until this opinion has been
issued, no one in the National Hockey League knew that the
government had seized medical records pertaining to its play-
ers without a warrant. Indeed, in the normal case, when a
search warrant is directed to a third party, the innocent citizen
whose privacy interests are at stake will have no notice what-
soever that his privacy interests have been compromised.18
18
This problem is one of the reasons why the use of search warrants
against third parties is strongly discouraged.
19894 UNITED STATES v. COMPREHENSIVE DRUG TESTING
Without notice, the “aggrieved party” will have no opportu-
nity to make a “proper post-seizure motion” to have the mate-
rial reviewed by the magistrate. The oddity of the majority’s
holding is readily apparent: those suspected of crime or
involved in some manner in the underlying criminal investiga-
tion will learn of the seizure and can take steps to protect their
Fourth Amendment rights. However, the completely innocent
citizen with no involvement in the underlying investigation
whose data has been seized will not have notice or any oppor-
tunity to protest. It is quite difficult to understand how this
procedure protects the right of law-abiding citizens “to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.”
Even if, as in this case, a representative of the innocent “ag-
grieved party” had sufficient notice of the seizure, the inno-
cent citizen is now required under the majority holding to hire
an attorney and make a “proper post-seizure motion” to
require the government do to what the Fourth Amendment
required it to do in the first instance: establish before a neutral
and detached magistrate that probable cause exists to seize
and search the property.
In sum, under the majority’s holding, the eversion of the
Fourth Amendment is thus rendered complete. The govern-
ment is entitled to warrantless searches and seizures without
probable cause or particularized suspicion, and the honest citi-
zen bears the cost and the burden of showing that the govern-
ment should have demonstrated probable cause before seizing
and searching the law-abiding citizen’s personal property.
2
The majority’s holding unfortunately does not stop with
requiring citizens to force the government to establish proba-
ble cause. Under the majority holding, even if a neutral and
detached magistrate concludes after an informed and deliber-
ate examination of the data that the government has not estab-
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19895
lished probable cause, the magistrate is not directed to limit
the seizure. To the contrary, if the magistrate determines that
confidential data cannot be separated, or cannot be separated
“without creating new documents,” or that the unrelated con-
fidential information cannot be excised “without distorting the
character of the original document,” then the government is
entitled to keep the unrelated confidential data without show-
ing probable cause or reasonable suspicion. In the age of elec-
tronic data, this holding virtually eliminates Fourth
Amendment protections for confidential data. The usual prac-
tice is to err on the side of redaction for the protection of
those whose privacy interests may be unnecessarily jeopar-
dized. Unfortunately, the majority tilts the balance in the
opposite direction, encouraging magistrates to allow the gov-
ernment to retain all unrelated data if the original data is co-
mingled in some fashion.
Placing restrictions on magistrate’s ability to redact infor-
mation and allowing the government to retain whole data-
bases of confidential electronic information on the theory that
some data relevant to the warrant is “co-mingled” defies com-
mon sense and the realities of electronic data storage. One of
the chief advantages of electronic data storage is that it allows
large volumes of information to be retained in a very small
space, such as a computer hard drive. Another advantage of
electronic data storage is the ease of searching and examining
data. A relational database, such as the one at issue in this
case, is one in which the database is organized and accessed
according to the relationships between data items without the
need for any consideration of physical orientation and rela-
tionship. Software programs allow the examination and corre-
lation of information. A relational database provides the
perfect vehicle for segregating non-relevant information. For
example, in this case, a simple search would have yielded the
information responsive to the search warrant.19 However, an
19
The majority suggests that I would place the searching agents under
a duty to rely on CDT to guide their search, but I suggest no such thing.
19896 UNITED STATES v. COMPREHENSIVE DRUG TESTING
inherent feature of a relational database is that data is “co-
mingled.” Instead of using the power of a relational database
to protect legitimate privacy interests, the majority would
adopt a rule discouraging—if not precluding—such a use.
Under the majority’s approach, the government would be
entitled to retain all electronic information if “co-mingled.”
Given that “co-mingling” is an inherent aspect of electronic
databases, this restriction renders the Fourth Amendment a
nullity in the electronic context.
The logic is circulate and the result completely predictable.
The government is entitled to seize property without a warrant
only if it is “co-mingled” and cannot be segregated. Then, if
a party objects the seizure, the data must be presented to a
magistrate judge who must release it back to the government
intact if the magistrate judge determines that the irrelevant
data is “co-mingled” and cannot be segregated. The exercise
is purely illusory and can only lead to an intellectual cul-de-
sac. The Fourth Amendment’s probable cause requirement is
neatly and entirely eliminated.
The majority not only countenances this procedure, but
encourages it. I cannot agree. In the electronic age, magistrate
judges should be required to use all available tools—software
as well as black marker—to redact confidential information
not responsive to a warrant in order to protect the privacy of
innocent citizens who are not suspected of any crime.
3
The profound consequences of the majority rule are readily
demonstrated by the case at bar. Because they had no notice
When data searching functions are available, as they were here, agents or
their consultants are perfectly capable of conducting key word searches
themselves, with or without any information from the party being
searched. Here, CDT—a third party entity not suspected of any crime—
offered to segregate the data utilizing the functions of the program. A fur-
ther, and much better alternative, would be to transfer the data to a magis-
trate judge for segregation and management.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19897
of the governments’s seizure, no objections were filed by the
thirteen other major sports organizations, three unaffiliated
business entities, and three sports competitions whose data
was seized. Therefore, a magistrate will never review that
unauthorized seizure under the majority holding. Under the
majority’s rule, the government will also be allowed to retain
all of the information it seized from those who did object
because the information is co-mingled and cannot be segre-
gated without changing its original character.
There is no need to reinvent the wheel. The Tamura proce-
dure has been part of our court’s precedent for almost a quar-
ter of a century. Tamura provides a practical and sensible
method by which the government may obtain data to which
it is rightfully entitled without violating the constitutional
rights of honest citizens. We should reaffirm Tamura, not
supplant it.
V
For similar reasons, I would also affirm Judge Illston’s
decision to quash the May 6, 2004, subpoenas. The majority
contends that Judge Illston abused her discretion by resting
her decision to quash the subpoenas on legally insufficient
grounds, citing In re Grand Jury Subpoenas Dated Dec. 10,
1987, 926 F.2d 847 (9th Cir. 1991), for the proposition that
subpoenas and search warrants serve different purposes and
therefore arguing that it cannot be considered an abuse to use
both methods of obtaining information. However, in this case,
the government’s conduct went beyond seeking warrants and
subpoenas for the same information at the same time. As dis-
cussed previously, the government alternately sought subpoe-
nas and warrants to obtain highly sensitive information from
every Major League Baseball player and to continue to keep
that information after being ordered to return it. Further, as
previously noted, there were no substantiated risks justifying
the use of a warrant to obtain the documentary evidence from
a third party under 28 C.F.R. § 59.1(b).
19898 UNITED STATES v. COMPREHENSIVE DRUG TESTING
In addition, it is worth nothing that the May 6 subpoenas
requested much of the same information sought in the April
30 and prior search warrants. The affidavit to obtain the April
30 search warrant from Judge Lloyd averred that the material
was necessary in part because the records may “establish a
link to the charged defendants in this case.” It is an abuse of
the grand jury process to use grand jury subpoenas to develop
post-indictment trial material. See, e.g., In Re Grand Jury
Subpoena Duces Tecum Dated January 2, 1985 (Simels), 767
F.2d 26, 29 (2d Cir.1985) (timing of subpoena, first issued
after indictment, suggested that its purpose was to obtain trial
material). The Balco indictments were returned in February.
Therefore, the issuance of the May 6 grand jury subpoena,
following on the heels of the search warrant application for
the same information indicating that its partial purpose was to
develop links to Balco, suggests an abuse of grand jury pro-
cess.
Given the history of this case, the district court’s conclu-
sion that the filing of these subpoenas was “the culmination
of a series of actions taken by the government in order to pre-
vent the MLBPA and CDT’s attempt to move to quash the
January and March subpoenas” is fully supported by the
record and certainly cannot be said to be an abuse of discre-
tion.
VI
I concur in the majority’s conclusion that the media has
standing on appeal to file a motion to unseal records. I also
agree that, under the circumstances presented by this case, the
motion should be referred to the district courts on remand.
I write separately to comment on what I view as a regretta-
ble effort by both parties in the district courts to circumvent
the procedures we have established to balance the First
Amendment rights of the press with the confidentiality that is
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19899
required for some criminal proceedings.20 Specifically, I note
that all of the district court proceedings were closed by insis-
tence of the parties, without notice to the press or public.
In some instances, courtroom closures were obtained with-
out prior notice to the district court itself. For example, the
transcript of one of the hearings before one of the district
court judges reflects the following colloquy:
Court: Why is that, that you are locking the door?
Clerk: Since the case was filed under seal.
Court: Is this all under seal? * * * You want the
hearings under seal. There was no motion
made to seal the hearing. I wasn’t aware
you wanted it that way.
Counsel: Your honor, we filed the pleadings under
seal. We think this proceeding should be
under seal. The information at issue is
highly confidential.
After some colloquy, the court allowed the courtroom to be
sealed, but admonished counsel to file an appropriate motion
if they wished any further courtroom proceedings to be closed
in the future. However, neither the public nor the press were
notified that the doors were to be locked and the public
barred.
“Under the first amendment, the press and the public have
a presumed right of access to court proceedings and docu-
ments.” Oregonian Pub. Co. v. District Court, 920 F.2d 1462,
1465 (9th Cir. 1990) (citing Press-Enterprise Co. v. Superior
20
The government and the Players Association also sought to have oral
argument in the court of appeals closed to the public. We denied that
motion, and a subsequent motion for reconsideration.
19900 UNITED STATES v. COMPREHENSIVE DRUG TESTING
Court, 464 U.S. 501, 510 (1985)(“Press-Enterprise I”). “This
presumed right can be overcome only by an overriding right
or interest ‘based on findings that closure is essential to pre-
serve higher values and is narrowly tailored to serve that
interest.’ ” Id. (quoting Press-Enterprise I, 464 U.S. at 510)
In determining questions of public and press access to the
courts, courts are to examine whether a right attaches to a par-
ticular proceeding, using the Supreme Court’s “logic and
experience” test articulated in Press-Enterprise v. Superior
Court of California for the County of Riverside, 478 U.S. 1,
8-9 (1986) (“Press-Enterprise II”). “If a proceeding fulfills
both parts of the test, a qualified First Amendment right of
access arises, to be overcome ‘only by an overriding interest
based on findings that closure is essential to preserve higher
values and is narrowly tailored to serve that interest.’ ” Phoe-
nix Newspapers, Inc. v. District Court, 156 F.3d 940, 946 (9th
Cir. 1998) (quoting Press-Enterprise II, 478 U.S. at 9-10).
Provisions for narrow tailoring may include later release of
transcripts, or redacted transcripts. Id. at 947.21 In making its
decision to close proceedings, “[t]he trial court must articulate
this interest ‘along with findings specific enough that a
reviewing court can determine whether the closure order was
properly entered.’ ” Id. at 946-47. None of these procedural
steps were undertaken in the district courts.
To be sure, the right of access to court proceedings is not
absolute. Id. at 946. Both parties have legitimate privacy
interests to protect. The Federal Rules of Criminal Procedure
require “matters affecting a grand jury proceeding to be
closed to the extent necessary to prevent disclosure of matters
occurring before a grand jury.” Fed. R. Crim. P. 6(e)(5). In
addition, as I have discussed, the athletes represented by the
Players Association have a very strong privacy interest in
their medical records. However, there are non-grand jury
21
Indeed, transcripts of court proceedings “must be released when the
factors militating in favor of closure no longer exist.” Id. at 947-48.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19901
materials involved in this case, and there are some proceed-
ings that do not appear to have involved confidential material.22
In any case, these are matters best considered in the first
instance by the district court, with public notice so that the
First Amendment right of access may be balanced with the
privacy interests of the parties. Unfortunately, the parties
presented hearing closure and record sealing as a fait accom-
pli to the district courts, without notice to the press or public.
Now that we have remanded the motion to unseal, this issue
may be addressed.
VII
In discussions of the alleged use of steroids by baseball
players, much is made about “the integrity of the game.” Even
more important is the integrity of our legal system. Perhaps
baseball has become consumed by a “Game of Shadows,”23
but that is no reason for the government to engage in a “Pros-
ecution of Shadows.” The district judges were entirely right
to order the government to return the thousands of private
medical records it wrongfully seized by use of pretext and
artifice.
I would affirm the orders of the district court and must
respectfully dissent from the majority’s contrary conclusion.
I concur in the remand of the motion to unseal records.
22
The government, in at least one proceeding, seemed to indicate that
it might not oppose unsealing some material, with government counsel
stating before Judge Mahan: “As a matter of DOJ regulation and policy,
we actually have taken the position and we do take the position that there
isn’t a need to have these proceedings actually sealed, and that is because
of the paramount interest in having actual public proceedings in court-
rooms held in public.” However, the government did not object formally
to sealing the transcript of that hearing, and the transcript has, to date,
been sealed.
23
Mark Fainaru-Wada and Lance Williams, Game of Shadows (2006).
| {
"pile_set_name": "FreeLaw"
} |
203 P.3d 220 (2009)
226 Or. App. 199
STATE of Oregon, Plaintiff-Respondent,
v.
Emmett Woodrow MARTIN, Defendant-Appellant.
C052083CR; A131522.
Court of Appeals of Oregon.
Argued and Submitted September 23, 2008.
Decided February 25, 2009.
*221 Timothy M. Bowman argued the cause and filed the brief for appellant.
Christina M. Hutchins, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.
Before LANDAU, Presiding Judge, and SCHUMAN, Judge, and ORTEGA, Judge.
ORTEGA, J.
Defendant was convicted of two counts of sexual abuse in the first degree. ORS 163.427. His sole assignment of error on appeal is that the trial court erred in denying his motion, made pursuant to OEC 412, to allow evidence of the victim's prior allegations of sexual abuse by others.[1] We reverse and remand.
We take the following facts from the record. Defendant was a friend of the 10-year-old victim's grandfather. Because the grandfather's driving privileges had been suspended, he depended on defendant for transportation. One day in the summer of 2004, the victim rode with defendant and her grandfather to the bank. The victim sat in the middle of the vehicle's front seat, between the two men. The victim alleged that, while her grandfather was in the bank, defendant *222 placed his hand over her clothed vaginal area and rubbed her vagina. She further alleged that defendant placed her hand on his penis and invited her to squeeze it.
In May 2005, after the victim disclosed the incident to her mother, she was evaluated at CARES Northwest in Portland. Reilly, a pediatric nurse practitioner, conducted a physical examination of the victim that, not surprisingly, did not disclose any physical evidence of abuse. Reilly also observed another staff member's interview of the victim from behind a one-way mirror. Reilly diagnosed the victim as having been sexually abused.
Defendant was charged with two counts of first-degree sexual abuse. Before trial, he moved for the admission of evidence pertaining to three prior allegations of sexual abuse made by the victim: evidence of the then-two-year-old victim's 1997 allegation of inappropriate touching by a man who lived in her household; evidence pertaining to a CARES Northwest evaluation of the victim in 2001, when she was nearly six years old, based on possible sexual abuse by an adult male family friend; and evidence pertaining to a 2003 evaluation of possible sexual abuse by another adult male family friend. As pertinent here, defendant contended that the evidence was admissible under OEC 412(2)(b)(B) to rebut or explain Reilly's diagnosis of sexual abuse by defendant. Specifically, defendant contended that Reilly's diagnosis constituted medical evidence; that, in the absence of any physical evidence of abuse, the diagnosis was based entirely on the victim's history; and that, accordingly, he was entitled to question Reilly regarding the significance of the victim's prior allegations of abuse.
At the hearing on defendant's motion, Reilly testified that the CARES evaluation of the victim consisted of a full physical examination plus the victim's history as provided by the victim's mother and by the victim during her physical examination and the interview. During the evaluation, Reilly learned that there were "other individuals who may or may not have molested" the victim. Reilly testified that her diagnosis that the victim had been sexually abused by defendant did not "depend" on the information about other possible incidents of abuse. She also testified, however, that "you want to rule out all other possible explanations for why the child is saying what she's saying"; that "certainly you always look at past experiences of abuse, and differentiating those from current concerns is taken into the evaluation process"; that anything the victim previously had said and any history that a parent disclosed would be factors in the diagnosis; and that it was "important" to "know what may have occurred to someone in the past" and to "know the details of a previous report."
On cross-examination, Reilly testified that, when CARES evaluates children for sexual abuse, it uses a "classic diagnostic process" that is not different from other types of medical diagnosis. She testified that patient history is "very important" in a medical evaluation "[s]o that you can understand and interpret the signs and symptoms and arrive at a diagnosis and treatment recommendation." Reilly also testified that, although it is "important to know about" prior allegations, it is not the purpose of a CARES evaluation to reinvestigate those events.
Reilly testified that, in this case, she based her diagnosis of sexual abuse on a combination of the victim's history and the absence of physical findings.[2] When counsel asked Reilly whether she had read or relied in part on the three prior evaluations of the victim for sexual abuse, Reilly responded that she had seen only one of the evaluationsthe report that had been prepared when the victim alleged abuse by a family friend in 2001.[3] When asked whether the existence of prior allegations of sexual abuse that had not been either proved or disproved was "a concern" in the context of making the current diagnosis, she responded that "those types of considerations *223 are taken intoare put into the diagnostic process." When asked whether, by not having seen two of the prior reports, she was lacking information that might be "significant" to the current diagnosis, Reilly responded, "Mm-hmm."
Later, on cross-examination, Reilly clarified that she had learned of "prior DHS concerns" relating to the victimthat is, the existence of prior allegations of abusefrom the victim, the victim's mother, and the police. Reilly testified that, during the victim's interview at CARES in this case, the victim had stated that "Kyle" had put a blanket over her face and touched her "front and back privates" with his hand, and that "Rob" had "touch[ed] her in wrong places." Reilly testified that she was able to distinguish those events from the victim's current allegations against defendant because, although they were similar in regard to the nature of the touching, they were "different in the individuals who were involved."
On redirect, Reilly agreed that she was "not here to speculate" whether the victim's previous reports were false. She reiterated that she had read the 2001 evaluation of alleged abuse and that she had "confidence" that the report "alert[ed]" her to make sure that the victim was not "blurring or blending" that incident and the current incident in her mind.
At the conclusion of Reilly's hearing testimony, the state argued that, even if the evidence sought by defendant was relevant to rebut medical evidence, the court should exclude it as unduly prejudicial. Defendant reiterated that, because Reilly had clearly testified that she had based her diagnosis on the victim's history, he was entitled to cross-examine Reilly about her awareness and consideration of the victim's previous allegations as part of that history. Without stating the basis for its ruling, the trial court denied defendant's motion.[4]
At trial, Reilly testified that she specialized in child abuse assessment and that sexual abuse has been a recognized medical diagnosis since at least the early 1980s. Reilly testified that the protocol for making such a diagnosis includes a medical examination and an interview. She testified that the victim in this case was brought to CARES Northwest by her mother, who gave Reilly information about the victim; in addition, Reilly reviewed police reports in the case. Reilly testified that she then conducted a physical examination of the victim, which included talking to the victim about why she was at CARES; according to Reilly's testimony, the victim told her that defendant had "showed me what his private looked like and he touched my private. He made me touch his private." After concluding her physical examination of the victimwhich, as previously noted, disclosed no abnormalitiesReilly watched another staff member's interview of the victim through a one-way mirror. Reilly testified that she based her diagnosis that the victim had been sexually abused on the victim's history, on her physical examination of the victim, and on laboratory testinghere, a negative test for sexually transmitted diseases. Reilly was not questioned about, and provided no testimony regarding, either the existence or the significance of the victim's previous allegations of sexual touching by other persons.
As noted, defendant was convicted of two counts of first-degree sexual abuse. On appeal, as he did below, he argues that the requested evidence was admissible to rebut or explain medical evidenceReilly's diagnosis of sexual abuseby casting doubt on Reilly's methodology, thoroughness, and competence. Defendant contends that Reilly's diagnosis of sexual abuse was based primarily, if not entirely, on what the victim and others told Reilly of the victim's history and that, because Reilly was either unfamiliar with or discounted certain aspects of that history, he was entitled to present evidence of that circumstance to the jury.
In determining the admissibility of evidence under OEC 412, the trial court conducts a three-step inquiry. State v. Muyingo, 171 Or.App. 218, 224, 15 P.3d 83 (2000), *224 rev. den., 332 Or. 431, 30 P.3d 1184 (2001). If the evidence concerns the victim's past sexual behavior, but is offered in the form of opinion or reputation evidence, the court must deny admission. Id. If it is offered in some other form, the trial court then determines whether the evidence qualifies for admission under one of the exceptions in OEC 412(2)(b); if it does not, again, the trial court must deny admission. Id. Finally, if the evidence fits within an exception, the court must balance the probative value of the evidence against its prejudicial effect. Id.; see also State v. Lajoie, 316 Or. 63, 69, 849 P.2d 479 (1993) (the purpose of the rule is to encourage victims to report sexual crimes and to assist in the prosecution of their attackers); State v. Beden, 162 Or.App. 178, 187, 986 P.2d 94 (1999) (OEC 412 is intended to protect against "unfair prejudice" by protecting victims of sexual crimes from the "degrading and embarrassing disclosure of intimate details about their private lives that might provide an improper basis for a juror to weigh the credibility of a victim-witness or for making a decision in the case." (Quoting Legislative Commentary to Rule 412, reprinted in Laird C. Kirkpatrick, Oregon Evidence 202 (2d ed. 1989))). We review the trial court's ruling on the latter issue for an abuse of discretion. State v. Wattenbarger, 97 Or.App. 414, 418, 776 P.2d 1292, rev. den., 308 Or. 331, 780 P.2d 222 (1989).
The parties do not dispute that the challenged evidence constitutes evidence, not offered in the form of reputation or opinion evidence, of the victim's past sexual behavior. See Muyingo, 171 Or.App. at 222-24, 15 P.3d 83 (evidence of the victim's historythat she previously was allegedly raped by males other than the defendantwas evidence of the victim's past sexual behavior). We therefore turn to whether the evidence was admissible under the exception for evidence offered to rebut or explain scientific or medical evidence. OEC 412(2)(b)(B).
As an initial matter, we agree with defendant that a diagnosis of sexual abuse is scientific or medical evidence for the purpose of OEC 412(2)(b)(B). Cf. State v. Sanchez-Cruz, 177 Or.App. 332, 337-41, 33 P.3d 1037 (2001), rev. den., 333 Or. 463, 42 P.3d 1245 (2002) (a diagnosis of sexual abuse is scientific evidence subject to the foundational requirements for such evidence). State v. Nab, 245 Or. 454, 421 P.2d 388 (1966), and State v. Wright, 97 Or.App. 401, 776 P.2d 1294, rev. den., 308 Or. 593, 784 P.2d 1100 (1989), relied on by the state, are not to the contrary. Nab, a pre-OEC 412 case, involved an unrelated issue regarding the propriety of cross-examination regarding the victim's previous accusations of sexual conduct. 245 Or. at 455-57, 421 P.2d 388. In Wright, this court determined that evidence that the victim was aware of sexual matters only because the defendant had abused her was not medical evidence for the purpose of OEC 412(2)(b)(B). 97 Or.App. at 407, 776 P.2d 1294.
Nor is it significant, as urged by the state, that Reilly's diagnosis was not based on physical evidence of abuse, the context in which this court determined that evidence of the victim's past allegations of sexual abuse was admissible in Muyingo. 171 Or.App. at 221-23, 225, 15 P.3d 83. Reilly herself testified that a diagnosis of sexual abuse properly can be based on other factors, including the victim's history. Accordingly, as in Muyingo, defendant generally was entitled, under OEC 412(2)(b)(B), to present evidence to rebut or explain that diagnosis.
In addition, the specific evidence at issue in this case was relevant for that purpose. As discussed above, in Reilly's testimony in the OEC 412 hearing, she repeatedly asserted the importance of patient history in the diagnostic process. Specifically, Reilly testified that "certainly you always look at past experiences of abuse," that it was "important" to "know what may have occurred to someone in the past" and to "know the details of a previous report" of sexual abuse, and that it was important to "differentiat[e]" past experiences from the current incident. Reilly testified that the one report she saw, relating to the victim's 2001 allegation, "alert[ed]" her to make sure that the victim was not "blurring or blending" that incident and the current incident in her mind. Finally, Reilly agreed that not having seen the reports of the victim's other allegations of sexual abuse meant that she had lacked information *225 that might have been "significant" to her diagnosis. By the logic of Reilly's own testimony, the victim's previous allegations of sexual abuse had considerable relevance to the issue whether Reilly had correctly diagnosed the victim as having been sexually abused by defendant. Particularly in this case, where the absence of any physical or laboratory evidence meant that Reilly ultimately based her diagnosis of sexual abuse almost entirely on the victim's history, evidence of Reilly's inability or failure to consider the victim's previous allegations of sexual abuse was "necessary to rebut or explain" that diagnosis as provided in OEC 412(2)(b)(B). Defendant was entitled to examine Reilly regarding her knowledge of the victim's previous allegations and the extent to which she did or did not factor such allegations into her diagnosis.
We turn to whether the probative value of the evidence nevertheless was outweighed by its prejudicial effect. State v. Beeler, 166 Or.App. 275, 999 P.2d 497, rev. den., 331 Or. 244 (2000), is exemplary. In that case, the defendant sought to admit evidence that the victim had consensual sexual relations with her boyfriend the day after the defendant allegedly raped her, in furtherance of his theory that the victim had consented to have sex with him. Id. at 277-79, 999 P.2d 497. The trial court concluded that the evidence was admissible. On appeal, this court determined that the evidence was only marginally relevant to the defendant's theory of his defense and that, conversely, the value of the evidence for that purpose was outweighed by the state's interest in protecting victims of sexual crimes from having to make embarrassing disclosures regarding their personal lives. Id. at 285, 999 P.2d 497. We therefore reversed and remanded.
By contrast, in this case, in light of Reilly's own testimony regarding her diagnostic protocol, the challenged evidence was of significantly greater relevance and, hence, of significantly more probative value to defendant's defense. Conversely, although evidence that a child previously has made allegations of sexual abuse has the potential to embarrass the child, it arguably does not constitute the sort of embarrassing disclosure of intimate details of a victim's private life that were at issue in Beeler. On balance, the value of the evidence to the defense is not outweighed by its prejudicial effect. Accordingly, the trial court erred in excluding the evidence.
Finally, we address the state's argument that any error in excluding the evidence was harmless, that is, that there was little likelihood that it affected the verdict. See OEC 103(1) (evidential error is not presumed to be prejudicial but is reversible only where it affects a substantial right of a party); State v. Keller, 315 Or. 273, 285-86, 844 P.2d 195 (1993) (under OEC 103(1), the verdict shall be affirmed if there is little likelihood that the error affected the verdict). The state points to the victim's consistent and detailed statements throughout the investigation and prosecution of the case and the fact that the jury was able to assess her credibility at trial. The state also points to testimony by the victim's grandfather that defendant asked the grandfather to forgive himalthough, as the grandfather testified, "there was nothing specific said about forgiveness for a specific thing."
In Keller, a CARES physician was one of four prosecution witnesses at the defendant's trial on child sexual abuse charges. The other witnesses were the child, the child's mother, and the deputy sheriff who had investigated the crime. 315 Or. at 286, 844 P.2d 195. The defendant was convicted; on appeal, he assigned error to the admission of a portion of the CARES physician's testimony. The Supreme Court determined that admission of the testimony was error. It therefore proceeded to consider whether the error was harmless and concluded that it was not. The court reasoned, in part, that the witness was "a medical doctor with extensive professional experience in the area of child sexual abuse," that she had "testified in an authoritative and detailed manner about that subject," and that her testimony "presumably was persuasive to the trier of fact" under circumstances where the child's credibility was important to the outcome of the case. Accordingly, the court could not say with certainty that there was "little likelihood" *226 that the expert's testimony affected the jury's verdict. Id.
The same reasoning applies here. As in Keller, the victim in this case testified; in addition, in both cases, relatives of the victim testified in support of the victim's testimony. Nevertheless, analogously to the physician witness in Keller, Reilly was a health care professional with extensive experience in the area of child sexual abuse who testified in an authoritative manner regarding her credentials and her diagnosis of the victim. As in Keller, Reilly's testimony presumably was persuasive to the factfinder. Accordingly, we cannot say that the exclusion of evidence bearing on the issue of the accuracy and competency of Reilly's diagnosis had "little likelihood" of affecting the jury's verdict. For all the described reasons, defendant was entitled to examine Reilly regarding her knowledge of the victim's previous allegations of sexual abuse and the significance of those allegations to her diagnosis.
Reversed and remanded.
NOTES
[1] OEC 412 provides, in part:
"(2) Notwithstanding any other provision of law, in a prosecution for a crime described in ORS 163.355 to 163.427, or in a prosecution for an attempt to commit one of these crimes, evidence of a victim's past sexual behavior other than reputation or opinion evidence is * * * not admissible, unless the evidence other than reputation or opinion evidence:
"(a) Is admitted in accordance with subsection (4) of this section [establishing procedural requirements for admission]; and
"(b) Is evidence that:
"(A) Relates to the motive or bias of the alleged victim;
"(B) Is necessary to rebut or explain scientific or medical evidence offered by the state; or
"(C) Is otherwise constitutionally required to be admitted."
For the purposes of OEC 412, "past sexual behavior" means "a volitional or non-volitional physical act that the victim has performed for the purpose of the sexual stimulation or gratification of either the victim or another person," including sexual contact, or an attempt to engage in such contact. State v. Wright, 97 Or.App. 401, 406, 776 P.2d 1294, rev. den., 308 Or. 593, 784 P.2d 1100 (1989).
[2] Reilly testified that she regarded the absence of physical findings in this case as being "consistent with the child's statements" about the type of touching at issue. She conceded, however, that such absence also was consistent with not being touched at all.
[3] Reilly apparently obtained access to the 2001 evaluation through CARES Northwest, which had prepared it. According to Reilly, the report characterized the 2001 incident as "concerning for abuse." The trial court eventually conducted an in camera inspection of the report.
[4] Before the hearing on defendant's motion, the trial court had opined that the evidence was not relevant.
| {
"pile_set_name": "FreeLaw"
} |
909 F.Supp. 315 (1995)
Comfort A. ANYANGWE
v.
NEDLLOYD LINES, et al.
Civ. No. JFM-95-24.
United States District Court, D. Maryland.
November 27, 1995.
*316 *317 *318 Donald Louis Schlemmer, Washington, DC, Bokwe Godwill Mofor, Silver Spring, MD, for plaintiff.
Manfred W. Leckszas, George H. Falter, III, Ober, Kaler, Grimes & Shriver, Baltimore, MD, for defendant Nedlloyd Lines (U.S.A.) Corp.
Onkar N. Sharma, Silver Spring, MD, for defendant Export of International Appliances, Inc.
MEMORANDUM
MOTZ, Chief Judge.
Plaintiff is Comfort Anyangwe. Defendants are Nedlloyd Lines (U.S.A.) Corp. ("Nedlloyd") and Export of International Appliances, Inc. ("EIA"). Plaintiff brings this action for breach of contract against both defendants arising out of agreements to ship Plaintiff's belongings from Silver Spring, Maryland to Douala, Cameroon. Discovery has been completed and both defendants have moved for summary judgment.
I.
In late September 1993, Plaintiff Anyangwe needed to ship certain personal belongings and food from Silver Spring, Maryland to Douala, Cameroon. Anyangwe first contacted Bhadresh Dhila, Vice President of Defendant EIA, to help make arrangements. EIA provides freight forwarding services, including the packaging of cargo, transportation to the nearest port and the selection of a shipping company to carry goods by sea. Anyangwe contends that during their negotiations she told Dhila about her wedding scheduled for January 1, 1994 and that she needed delivery in Cameroon by early December, 1993. Anyangwe's Dep. at 21-26; Dhila Dep. at 30. She further contends that he assured her delivery would be made by December 6. See Anyangwe Dep. at 33.[1] Plaintiff brought her belongings to EIA for shipment on October 11, 1993, at which point EIA issued to her an invoice representing the terms of their agreement. See Def. Nedlloyd's Ex. D. The invoice is silent as to the time of delivery.
EIA hired Hydra Management, Inc. to transport Plaintiff's cargo by truck to the port at Norfolk, and selected Defendant Nedlloyd to ship Plaintiff's goods by sea from Norfolk to Douala. The cargo arrived at Norfolk undamaged, and Nedlloyd issued a clean bill of lading to Plaintiff. The S. Performance, with Plaintiff's container aboard, left Norfolk for Felixstowe, England on October 23, arriving there sometime in mid-November.
In Felixstowe, the cargo was scheduled to be transferred to the ship Therese Delmas which left Felixstowe for Douala on November 11. According to Nedlloyd, the S. Performance did not arrive in time for the relay to the Therese Delmas. See Aviles Dep. at 42, 45. Plaintiff's cargo was therefore loaded onto the St. Roch in Felixstowe which left for Douala on December 13. The St. Roch stopped in Abidjan, Ivory Coast on its way to Douala to unload other cargo and, in the process, Nedlloyd had to remove Plaintiff's container and restowe it. Plaintiff alleges *319 that the St. Roch also stopped at Apapa, Nigeria for the same purpose. Plaintiff further contends that Nedlloyd wrongfully discharged her container in Apapa, delaying shipment to Cameroon by several weeks.
Plaintiff's container arrived in Douala on January 11, 1994, eleven days after her wedding. Plaintiff asserts that the wedding was a "fiasco" without the food and other items she had shipped. She further alleges that as a result, she prematurely gave birth to a child who requires constant medical attention, and that she continues to suffer pain, severe trauma, and depression.
II.
As a preliminary matter, Nedlloyd asserts that Plaintiff has sued the wrong party. Defendant Nedlloyd Lines (U.S.A.), Inc. is only an agent of the carrier Nedlloyd Lijnen, a Dutch corporation. Since Plaintiff is suing for breach of the contract for carriage, she should be suing the carrier (Nedlloyd Lijnen), not its agent (Nedlloyd Lines (U.S.A.)) which merely quotes rates, takes bookings and arranges to have goods loaded onto Nedlloyd Lijnen ships. The bill of lading clearly notes Nedlloyd Lijnen as the carrier.
Defendant Nedlloyd's argument seems to be meritorious. However, Nedlloyd commendably has addressed Plaintiff's claims on the merits, and I will do likewise, assuming that Plaintiff brought suit against the correct Nedlloyd entity.[2]
III.
Plaintiff's claim against Nedlloyd is asserted under The Carriage of Goods By Sea Act ("COGSA"), 46 U.S.C.App. § 1300 et seq. Enacted in 1936, COGSA is a comprehensive statute intended to limit the liability of carriers (shipping companies) engaged in international shipping. Unimac Co., Inc. v. C.F. Ocean Service, Inc., 43 F.3d 1434, 1436 (11th Cir.1995); SPM Corp. v. M/V Ming Moon, 965 F.2d 1297, 1300-01 (3rd Cir.1992). At the same time, the statute provides a basis for liability up to $500 per package in case of carrier fault causing damage to a shipper's cargo, even if the parties contract out of carrier liability. See 46 U.S.C.App. § 1304(5); SPM Corp., 965 F.2d at 1300-01. Shippers can avoid the $500 dollar limitation by (1) declaring the excess value of cargo before shipment, or (2) showing that the carrier unreasonably deviated from course during shipment. 46 U.S.C.App. § 1304(4)-(5); see Caterpillar Overseas, S.A. v. Marine Transport, Inc., 900 F.2d 714, 719, 721 (4th Cir.1990). A shipper must bring an action for damages within one year after delivery of the goods. 46 U.S.C.App. § 1303(6).[3]
Section 1312 provides that COGSA applies to "all contracts for carriage of goods by sea to or from ports of the United States *320 in foreign trade." 46 U.S.C.App. § 1312. Furthermore, COGSA only "covers the period from the time when the goods are loaded on to the time they are discharged from the ship." § 1301(e). Since the dispute here between Plaintiff and Defendant Nedlloyd arises out of a contract for carriage of Plaintiff's goods from Norfolk, Virginia to Douala, Cameroon, COGSA governs the contract. The contract is the bill of lading that Nedlloyd issued to Plaintiff after receiving Plaintiff's cargo at Norfolk, stating the terms of shipment. See Wemhoener Pressen v. Ceres Marine Terminals, Inc., 5 F.3d 734, 738 (4th Cir.1993); B. Elliott (Canada) Ltd. v. John T. Clark & Son, 704 F.2d 1305, 1307 (4th Cir.1983); see generally, Gilmore, G., & C. Black, Jr., The Law of Admiralty § 3-1 (2nd ed. 1975).
A.
Plaintiff claims that her contract with Nedlloyd guaranteed shipment of her Cargo to Cameroon by December 6, 1993. The bill of lading itself clearly negates any such guarantee. Paragraph 7(4) specifically provides: "The Carrier does not undertake that the Goods shall arrive at the Port of Discharge or Place of Delivery at any particular time or to meet any particular market or use and the Carrier shall in no circumstances whatsoever and howsoever arising be liable for direct, indirect or consequential loss or damage caused by delay."
Plaintiff contends, however, that Defendant EIA, allegedly as Nedlloyd's agent, orally guaranteed delivery by December 6th. If such guarantees were made by EIA, evidence of them clearly would be barred by the parol evidence rule since the terms of the bill of lading directly contradict any prior or contemporaneous representation that was made concerning the timing of delivery. See generally Delmarva Drilling Co. v. Tuckahoe Shop. Ctr., Inc., 268 Md. 417, 302 A.2d 37, 41 (1973). Moreover, there is no evidence in the record to support Plaintiff's claim that EIA was Nedlloyd's agent. The doctrine of apparent agency, upon which Plaintiff seemingly relies, applies when a principal holds someone out as his agent and a third party justifiably relies on these representations. See Metco Prods., Inc. v. NLRB, 884 F.2d 156, 159 (4th Cir.1989). Here, there is no evidence that Nedlloyd ever held EIA out as its agent or that EIA claimed it was an agent of Nedlloyd when it negotiated with Plaintiff. Indeed, Plaintiff admits she never heard of Nedlloyd before this litigation began.[4]
B.
Plaintiff next claims that Defendant Nedlloyd deviated from course during the shipment of Plaintiff's cargo. By raising the issues of deviation, Plaintiff attempts to accomplish two things. First, deviation itself will provide the basis for her breach of contract claim, entitling her to damages resulting therefrom. Second, proving unreasonable deviation would oust the contract from COGSA's $500 per package ceiling on liability. See Caterpillar Overseas, S.A., 900 F.2d at 721. Plaintiff therefore alleges deviation in three respects: (1) Nedlloyd geographically departed from course when it sent Plaintiff's shipment to Apapa, Nigeria before Douala, Cameroon, (2) Nedlloyd's ship stopped at Abidjan, Ivory Coast and restowed Plaintiff's cargo, and (3) Nedlloyd unreasonably delayed shipment and Plaintiff's packages arrived several weeks behind schedule.
The doctrine of deviation developed before COGSA was enacted. Its purpose was to alleviate the harsh losses suffered by shippers when carriers contracted out of liability and then took risks not contemplated by the parties. Sedco, Inc. v. S.S. Strathewe, 800 F.2d 27, 31 (2nd Cir.1986); see generally, Michael F. Sturley, 2A Benedict on Admiralty § 121 at 12-1 to 12-6 (7th ed. 1992). When the ship, without excuse, voluntarily departed from the usual contractual *321 or commercial route, the contractual provision barring liability was nullified, and the carrier became the insurer for liability purposes. Sedco, Inc., 800 F.2d at 31. Some courts after COGSA have continued application of the doctrine where carriers invoke the $500 dollar limitation on liability. In short, these courts have held that where carriers unreasonably deviate from course, the contracts for carriage are ousted from COGSA's $500 per package ceiling and carriers are subject to unlimited liability. See, e.g., Sedco, Inc., 800 F.2d at 30-32; but see, e.g., Atlantic Mut. Ins. Co. v. Poseidon Schiffahrt, 313 F.2d 872, 874 (7th Cir.1963) (deviation doctrine no longer applies in post-COGSA era; $500 limit applies "in any event"), cert. denied, 375 U.S. 819, 84 S.Ct. 56, 11 L.Ed.2d 53 (1963).
Those courts that have applied the doctrine post-COGSA recognize its tenuous status and its penal effect on carriers. Unimac, 43 F.3d at 1437 (citations omitted). They have applied the doctrine sparingly, limiting it to geographical departures and unauthorized on deck stowage. See, e.g., Sedco, Inc., 800 F.2d at 31-32. For instance, Sedco rejected extension of the doctrine, holding that delay in shipment does not constitute unreasonable deviation. Id. at 32 n. 2. Although the Fourth Circuit has not expressly marked the bounds of unreasonable deviation, it has adopted the Sedco decision in dictum. Caterpillar Overseas, S.A., 900 F.2d at 721.
Turning to the facts of this case, Plaintiff's contention that Nedlloyd's delay in shipment constituted unreasonable deviation clearly is without merit. Unreasonable delay alone does not constitute deviation. Sedco, Inc., 800 F.2d at 32 n. 2. Furthermore, Nedlloyd did not unreasonably delay shipment. The carrier left Norfolk, Virginia on October 23, 1993 and arrived in Cameroon on January 11, 1994, nineteen days after the estimated 60-day period. This delay was due, in part, to port congestion at Felixstowe, England. See Aviles Dep. at 45. "It is just such a potential for ... port congestion which prohibits carriers from making hard and fast promises such as the one plaintiff contends existed here." Parnass Intern. Trade & Oil, 595 F.Supp. at 156 (transoceanic shipping involves many risks and 18-day delay is not in and of itself unreasonable); see also Quesoro USA, Inc. v. Lykes Bros. Steamship Co., Inc., 1995 WL 329301, 1-2 (S.D.N.Y.1995) (7 day delay not unreasonable; parol evidence rule barred evidence of prior oral representations); Pioko Fashions, Inc. v. American President Lines, Ltd., 1993 WL 597151, 2 (W.D.Wash.1993) (two-week delay in 10,000 mile cargo delivery not unreasonable). Thus, the 19-day delay, in and of itself, did not constitute breach or deviation.
Equally untenable is Plaintiff's contention that Nedlloyd geographically deviated when it stopped at Abidjan, Ivory Coast to deliver other cargo and restowed Plaintiff's shipment in the process. Intentional restowage at an intermediate port is neither a deviation nor a quasi-deviation. SPM Corp., 965 F.2d at 1304. "Conduct that is customary in the trade is not a deviation from the contractual voyage because such contracts ordinarily presume that the parties will follow the customs and usages of the maritime trade." Id. (citing Caterpillar Overseas, S.A., 900 F.2d at 721-22). While the bill of lading did not mention that Nedlloyd would be stopping at Abidjan, it was customary for Nedlloyd to do so since it was an intermediate port, and therefore Plaintiff's claim of deviation on this basis must fail. Id.; see also Parnass Intern. Trade & Oil, 595 F.Supp. at 156 (dictum) (relay system using several ships and ports of call is customary in the shipping trade).
Finally, Plaintiff alleges that Plaintiff's container landed in Apapa, Nigeria, and that this constituted an unreasonable deviation from the normal and customary route. Assuming that Plaintiff's claim in this regard is legally cognizable, but see Caterpillar Overseas S.A., 900 F.2d at 721, Sedco, Inc., 800 F.2d at 31-32, the claim fails on the evidence on the summary judgment record. There is, as Plaintiff asserts, at least a factual question presented as to whether the ship carrying the containers stopped at Apapa on its way to Cameroon; Nelson Aviles, Nedlloyd's Claim Manager, stated on deposition that it did. However, a stop at Apapa to discharge other cargo would not constitute deviation in and of itself since Apapa is an *322 intermediate port along the customary route to Douala, Cameroon. See SPM Corp., 965 F.2d at 1304. The material issue is whether, as the Plaintiff contends, Nedlloyd mistakenly discharged the container in Apapa only to discover several weeks later that it was intended for Douala, Cameroon.
To this end, Plaintiff points to the "Transhipment Pre-Advice" dated November 5, 1993 which indicated that the container would be loaded at Felixstowe aboard a ship called the Therese Delmas, and that its final destination was Apapa, Nigeria (code QAP). See Pl.'s Ex. F. This is the only competent evidence Plaintiff proffers suggesting that her package was wrongfully discharged.[5] Nedlloyd persuasively argues that this was merely typographical error. See Def. Nedlloyd's Reply at 11-16. Indeed, the November 5 Pre-Advice itself suggests that this was the case. See Def. Nedlloyd's Ex. F. Plaintiff's package was marked for Apapa, to arrive on December 6, 1993. Id. Yet all the other containers marked for Apapa on the Pre-Advice had an ETA November 28. Id. Clearly, the ship was to arrive in Douala on December 6, after it had made its stop in Apapa on November 28. Nedlloyd discovered this error and issued an Amended Transhipment Pre-Advice on December 9. Id. This Amendment correctly identified Douala, Cameroon as the destination for Plaintiff's container and rescheduled the estimated times for departure from Felixstowe and discharge at Douala, December 13, 1993 and January 8, 1994 respectively.[6] Most importantly, this Amendment was issued before the Plaintiff's container left Felixstowe. An interoffice memorandum dated January 4, 1994 confirmed that Plaintiff's container was loaded aboard the St. Roch on December 13. Def. Nedlloyd's Ex. F. It arrived in Douala on January 11. Aviles Dep. at 53. Since Plaintiff offers no other evidence that her container was discharged in Apapa to rebut Nedlloyd's clear explanation of the error in the November 5 Transhipment Pre-Advice, no reasonable juror could find that the container was wrongly discharged in Apapa.
III.
Plaintiff initially contacted Mr. Dhila, Vice President of EIA, to arrange shipment of her goods to Douala. EIA essentially agreed to provide freight forwarding services. In effect, EIA agreed to act as Plaintiff's agent in getting her belongings to Douala, Cameroon. See Ferrex Intern., Inc. v. M/V Rico Chone, 718 F.Supp. 451, 453 (D.Md.1988); see also Ingersoll Mill. Mach. Co. v. M/V Bodena, 829 F.2d 293, 302 (2nd Cir.1987) (implying that agreement between freight forwarder and shipper is one of agency).
In determining whether EIA breached its agreement with Plaintiff, I must look to the terms of the contract. The final written expression of EIA's agreement with Plaintiff is not the bill of lading which constitutes Nedlloyd's contract with her, but EIA's shipment invoice dated October 11, 1993. See Pl.'s Ex. E. This invoice provides that EIA would ship a container with Plaintiff's household goods and personal effects (including a new deep freezer and two blenders it purchased from EIA) to Douala, Cameroon for a total price of $4,270. Nowhere does the invoice provide that EIA guaranteed delivery in Douala by a date certain, nor does it suggest that "time is of the essence."
Plaintiff proffers evidence that she and EIA had a prior oral understanding that, as part of the overall agreement, her cargo would arrive in Cameroon before her wedding. Assuming there was a prior understanding to this effect, such evidence is *323 barred by the parol evidence rule. "Parol evidence is inadmissible to vary, alter or contradict a writing which is complete and unambiguous...." Delmarva Drilling Co., Inc., 302 A.2d at 41. When written contracts are silent as to the time for performance, most courts hold that such a contract has an implied "reasonable time" provision. Williston, A Treatise on the Law of Contracts, § 640 (3d ed. 1961). Plaintiff's proffer of contemporaneous oral agreements indicating an agreed on time for delivery would therefore conflict with or vary this implied term. Thus, her proffer is barred by the rule that "evidence of a parol agreement that performance should be made at a particular time is inadmissible where the writing specifies no time for performance." Id.
IV.
Assuming that Nedlloyd and/or EIA did breach their contracts with Plaintiff, her claims would still fail. Plaintiff admits that her cargo suffered no physical damage, or loss in market value, due to the shipping delay. Anyangwe Dep. at 63. Plaintiff instead seeks consequential damages resulting from the alleged breach. Such damages, she contends, are the result of the emotional distress and pain inflicted upon her by defendants when they did not deliver her goods in time for her wedding. Her wedding was "a fiasco" and Plaintiff suffered such emotional trauma from the experience that she gave premature birth to her child who requires constant medical attention.[7]
Consequential and special damages are recoverable for breach of contracts for carriage under COGSA since the difference between the market value of the damaged goods and their value had they not been damaged at the port of destination is not always the appropriate measure of damages. See, e.g., Affiliated Foods v. Puerto Rico Marine Management, Inc., 645 F.Supp. 838, 840-44 (D.P.R.1986) (quoting extensively from Hadley v. Baxendale, 156 Eng.Rep. 145 (1845)). However, if consequential damages are to be awarded, the breaching party must have had reason to foresee that such harm would result.[8]Id. at 841. In order to foresee such harm, special circumstances must be actually communicated to the breaching party, and the harm done must be the natural consequence of the breach. See id. at 841-842 (quoting Hadley); see also Mojica v. Autoridad de las Navieras de Puerto Rico, 1993 WL 724807, 3 (D.P.R.1993) (special circumstances must be brought home to the party to be charged). Here, Plaintiff has put forth no evidence that she communicated to Nedlloyd the special circumstances of her wedding. Indeed, she admits she never spoke with Nedlloyd representatives, and never even heard of Nedlloyd Lines until after this lawsuit began. Anyangwe Dep. at 76-77. Therefore, the claim against Nedlloyd for damages resulting from breach must fail as a matter of law.
As to EIA, assuming that it had knowledge of Anyangwe's wedding, Plaintiff still could not recover the damages for the extreme pain and suffering that she allegedly experienced, and certainly not the damages sustained by virtue of the premature birth of her child. Under the law, these damages are not the natural and foreseeable consequences of EIA's alleged breach. See Affiliated Foods, 645 F.Supp. at 841-42; see also Mojica, 1993 WL 724807, 3 (pain, suffering, and mental anguish from delayed shipment of truck not foreseeable consequence of breach). Thus, the claim for damages against EIA must likewise fail.
While it is regrettable that Plaintiff's shipment did not arrive in time to help make her wedding the joyous occasion it should have been, her factual allegations against the defendants *324 are simply not actionable. Accordingly, defendants' motions for summary judgment will be granted. A separate order to that effect is being entered herewith.
ORDER
For the reasons stated in the memorandum entered herewith, it is this 27th day of November 1995
ORDERED that
1. The motions for summary judgment filed by Defendants Nedlloyd Lines U.S.A. Corp. and Export of International Appliances, Inc. are granted; and
2. Judgment is entered in favor of Defendants against Plaintiff.
NOTES
[1] Dhila denies these contentions but for summary judgment purposes they must, of course, be assumed to be true.
[2] Nedlloyd also contests this court's subject matter jurisdiction. To the extent that Plaintiff is relying upon the parties' diversity of citizenship, Nedlloyd's argument seems correct. Plaintiff is an alien and, as such, clearly has the right to sue in federal court. However, diversity jurisdiction does not encompass suits between citizens of different foreign states, and, as indicated in the text, Nedlloyd Lijnen, a Dutch corporation, appears to be the proper Nedlloyd defendant.
Plaintiff also relies, however, upon this court's federal question jurisdiction. Nedlloyd argues that Plaintiff has no claim under the Carriage of Goods By Sea Act ("COGSA"), 46 U.S.C.App. § 1300 et seq., because COGSA provides no remedy for delays in discharging cargo (as opposed to loss or damage to cargothe only type of claim that Plaintiff asserts here.) The fallacy in this argument is that the extent of the coverage of COGSA is itself a federal question. Moreover, although Plaintiff does not invoke it, it appears that this court has federal maritime jurisdiction under 28 U.S.C. § 1333(1).
[3] Defendant Nedlloyd claims that the one-year limitation provision in section 1303(6) of COGSA does not apply to claims for "loss or damage" due to delay. Def. Nedlloyd's Reply at 9-11. According to Nedlloyd, that limitation only applies to claims for physical loss or damage, and therefore the 9-month limitation period provided in their bill of lading governs. Most courts have found the statutory language broad enough to encompass claims of loss due to delay. See Commercio Transito Internazionale, Ltd. v. Lykes Bros. S.S. Co., 243 F.2d 683, 686 (2nd Cir.1957); Badhwar v. Colorado Fuel & Iron Corp., 138 F.Supp. 595 (S.D.N.Y.1955), aff'd, 245 F.2d 903 (2nd Cir.1957), cert. denied, 355 U.S. 862, 78 S.Ct. 95, 2 L.Ed.2d 68 (1957); American Oil Co. v. S.S. Ionian Challenger, 257 F.Supp. 540 (S.D.N.Y.1965), aff'd, 366 F.2d 509 (2nd Cir. 1966); but see United Merchants & Mfrs. v. United States Lines Co., 204 Misc. 989, 126 N.Y.S.2d 560 (N.Y.Sup.Ct.1953).
[4] Plaintiff makes an alternative argument that Nedlloyd's shipping schedules guaranteed delivery within 45-60 days. This argument also fails. Shipping schedules provide no guarantee of delivery by a certain date, only an estimate. See Parnass Intern. Trade & Oil Corp. v. Sea-Land Service, Inc., 595 F.Supp. 153, 155-56 (S.D.N.Y. 1984). If they are not incorporated into a bill of lading (which they were not here), they are not part of the parties' contract.
[5] She also offers several hearsay and double hearsay declarations by her brother and others who say her cargo was discharged in Nigeria. Anyangwe Aff. at ¶¶ 35, 46. These statements cannot be considered on a motion for summary judgment. See Fed.R.Civ.P. 56(e).
[6] Apparently the S. Performance, the ship that took Plaintiff's container from Norfolk, Virginia to Felixstowe, arrived late in Felixstowe due to port congestion. See Aviles Dep. at 44-45. The record indicates that the container was supposed to be transferred to the Therese Delmas, leaving Felixstowe on November 11, 1993 and arriving in Douala on December 6. Since the S. Performance did not arrive in Felixstowe in time, the container was put on the next ship to Douala, the St. Roch. The Amended Transhipment Pre-Advice of December 9 reflects these changes. See Def. Nedlloyd's Ex. F.
[7] Plaintiff also seeks punitive damages. She clearly is not entitled to them because she has failed to offer evidence of intentional, tortuous conduct on the part of Nedlloyd or EIA. See, e.g., B.F. McKernin & Co., Inc. v. U.S. Lines, Inc., 416 F.Supp. 1068, 1073 (S.D.N.Y.1976) (even if defendant acted with gross indifference to plaintiff's rights, neither intentional nor morally culpable conduct was present).
[8] The scope of foreseeability in claims for consequential damages resulting from breach of contract is much narrower than the scope of foreseeability of damages in tort. See Affiliated Foods, 645 F.Supp. at 841 n. 3.
| {
"pile_set_name": "FreeLaw"
} |
970 P.2d 14 (1998)
132 Idaho 221
Judy MARESH, Plaintiff-Appellant,
v.
STATE of Idaho, DEPARTMENT OF HEALTH AND WELFARE, by and through its Director, Linda CABALLERO, Defendant-Respondent.
No. 23964.
Supreme Court of Idaho, Moscow, September 1998 Term.
November 24, 1998.
Rehearing Denied January 15, 1999.
*16 J. Carl Mickelsen, Moscow, for appellant.
Alan G. Lance, Attorney General; Marcy J. Spilker, Deputy Attorney General, Lewiston, for respondent. Marcy J. Spilker argued.
SILAK, Justice.
NATURE OF THE CASE
This is an appeal to determine whether respondent Department of Health and Welfare (the Department) was required to follow the procedures which govern contested cases as established in the Idaho Administrative Procedure Act (IDAPA) when the Department denied the application of appellant Judy Maresh to participate in a day treatment group conducted by the Department. For the reasons explained below, we affirm the judgment of the district court.
I.
FACTS AND PROCEDURAL BACKGROUND
On June 19, 1995, Judy Maresh applied for mental health services from the Department by requesting that she be allowed to participate in the Division of Mental Health's Moscow Positive Action Club (MPAC), a day treatment group. Maresh went through the normal screening process conducted by the group's organizer, a Department employee.
In a letter dated July 10, 1995, Maresh was informed by the Department that she would not be allowed to join the MPAC group because the services provided by the MPAC group did not fit her needs, and would not be clinically appropriate. The Department did not inform Maresh of any available procedures or time limits for reconsideration, or other administrative relief pertaining to the denial of her request to join the MPAC treatment group.
Maresh filed a complaint for declaratory judgment claiming that a process for appeal of the Department's denial of her application for access to the MPAC group is required under the IDAPA. In granting the Department's motion for summary judgment, the district court held that the Department's denial of group treatment is not an "order" which triggers the contested case provisions of the IDAPA, and that the right to participate in the MPAC group is not a property interest protected by due process under either the Idaho or United States Constitutions. Maresh appeals from the district court's order granting the Department's motion for summary judgment.
II.
ISSUES ON APPEAL
Maresh raises the following issues on appeal:
1. Whether the district court erred in holding that the Department was not required to follow the contested case provisions of the IDAPA;
2. Whether the district court erred in holding that Maresh was not entitled to the protection of procedural due process pursuant to the Fourteenth Amendment of the United States Constitution.
3. Whether the district court erred in holding that Maresh was not entitled to the protection of procedural due process pursuant to Article I, Section 13 of the Constitution of the State of Idaho.
III.
STANDARD OF REVIEW
The parties do not controvert any material facts involved in this case. Indeed, the parties entered into a Stipulation of Facts before the district court. Thus, only questions of law are presented on this appeal. *17 This Court exercises free review over a district court's conclusions of law. Marshall v. Blair, 130 Idaho 675, 679, 946 P.2d 975, 979 (1997). Hence, this Court may substitute its view for that of the district court on the issues of law presented by this appeal. Id.; Standards of Appellate Review in State and Federal Courts, Idaho Appellate Handbook § 4.2 (1996).
IV.
ANALYSIS
A. The District Court Correctly Held That The Department Was Not Required to Follow The Provisions of The IDAPA Governing Contested Cases.
Maresh contends that the Department failed to comply with the procedures required by IDAPA when it denied her request to participate in the MPAC group therapy treatment. In particular, she contends that the Department was required to follow the provisions of the IDAPA which govern contested cases.
With regard to contested cases, Section 67-5240 of the Idaho Code states, in pertinent part, that, "[a] proceeding by an agency, ... that may result in the issuance of an order is a contested case and is governed by the provisions of this chapter." I.C. § 67-5240. Consequently, the provisions of IDAPA governing contested cases must be followed when an agency engages in a proceeding that may result in the issuance of an order. I.C. § 67-5240 (1995).
It is undisputed that the Department is an agency as defined by IDAPA. As defined by IDAPA, "[o]rder' means an agency action of particular applicability that determines the legal rights, duties, privileges, immunities, or other legal interests of one or more specific persons." I.C. § 67-5201(12) (Supp.1998). Whether there was a determination of the "legal rights, duties, privileges, immunities, or other legal interests" of Maresh turns on the interpretation of both the Regional Mental Health Services Act, I.C. §§ 39-3123 to 3139, and Title XIX of the Social Security Act, 42 U.S.C. §§ 1396-1396v. Maresh contends these statutes are sources of her legal right or other legal interest in the particular treatment for which she applied. For the reasons discussed hereafter Maresh's contentions are unpersuasive.
1. The Regional Mental Health Services Act.
The stated purpose of the Regional Mental Health Services Act (the Act) is to delegate the "responsibility and authority to establish and maintain regional comprehensive mental health services in order to extend appropriate mental health services." I.C. § 39-3123 (1998) (emphasis added). The Act recognizes that "it is the policy of the state to provide mental health services to all citizens in need of such care." Id. (emphasis added). It further recognizes that citizens have a right to "the best mental health services that the state is able to provide." I.C. § 39-3125 (emphasis added). These several parts of the Act indicate that no legal right, privilege or other legal interest is established absolutely in any particular type of treatment for any individual.
Moreover, Section 39-3127 does not mandate that every service be provided. Section 39-3127 of the Idaho Code merely lists services that may be offered in a comprehensive health center; it does not require that any particular services be provided nor that every service must be available to every applicant. I.C. § 39-3127 (1998). Section 39-3127 states in pertinent part as follows:
"A regional mental health service shall include one (1) or more of the services leading to the establishment of a regional comprehensive mental health center. A comprehensive mental health center may include such services as:
(1) Short-term hospitalization for psychiatric treatment in an approved medical facility within the region;
(2) Partial hospitalization;
(3) Outpatient diagnosis and treatment;
(4) 24-hour emergency psychiatric services;
(5) Community consultation and education;
*18 (6) Diagnostic services for other agencies;
(7) Rehabilitative services;
(8) Precare and postcare services in co-operation with a state mental hospital;
(9) Training of mental health personnel;
(10) Research and evaluation. [1969, ch. 202, § 5, p. 589.]"
I.C. § 39-3127. By its terms, this section does not establish a legal right, privilege, or other legal interest in any particular treatment in favor of any individual. Section 39-3127 does not establish a legal right, privilege, or other legal interest of Maresh in participating in the MPAC treatment.
The statutory scheme of the Act allows for the type of clinical determination at issue in the instant case. The Department's denial of Maresh's application to participate in the MPAC group did not determine that Maresh had no right to any treatment; rather it determined that the particular treatment she applied for was not appropriate. In fact, the Department determined that the MPAC treatment services were not clinically appropriate because Maresh's needs would not be met through the group and that her disruptive behavior in past interactions caused concern for the welfare of the other clients in the group.
2. Title XIX of the Social Security Act.
"Title XIX of the Social Security Act establishes Medicaid and authorizes grants to states in order to finance medical care for indigent Americans." McCoy v. State, 127 Idaho 792, 794, 907 P.2d 110, 112 (1995); 42 U.S.C. §§ 1396-1396v (1992). Although states participating in the Medicaid program are required to give care to eligible individuals in at least seven general categories, they are given considerable flexibility in determining the scope of coverage they must provide. McCoy v. State, 127 Idaho at 794, 907 P.2d at 112. Title XIX does not require that a state provide funding for all medical treatment falling within one of these general service categories. Id. (citing Beal v. Doe, 432 U.S. 438, 444, 97 S.Ct. 2366, 2371, 53 L.Ed.2d 464 (1977)).
Further, neither Title XIX nor the federal regulations explicitly provide that coverage of every procedure that a physician deems medically necessary is required. McCoy v. State, 127 Idaho at 794, 907 P.2d at 112. "The Medicaid program is not intended to meet all the medical needs of recipients. Rather, the goal is to provide medical assistance `as far as practicable under the conditions in [each] state.'" Bumpus v. Clark, 702 F.2d 826, 827 (9th Cir.1983). There is no indication in the Medicaid statutes upon which Maresh relies that Congress intended to establish legal rights or other legal interests in the particular type of treatment services which Maresh requested. Consequently, the Medicaid provisions relied upon by Maresh do not confer upon her a legal right or interest in the particular treatment she sought. See, e.g., O'Bannon v. Town Court Nursing Center, 447 U.S. 773, 100 S.Ct. 2467, 65 L.Ed.2d 506 (1980) (holding that similar Medicaid provisions upon which the claimants relied did not confer a right to residence in the nursing home of one's choice).
In sum, the Department's denial of Maresh's application to participate in the MPAC treatment was not a determination of any legal right or other legal interest, because no such right or interest existed by virtue of the Act or the Medicaid statutes. Thus, the decision that the MPAC group therapy was not appropriate was not an order which would trigger the application of the requirements of IDAPA provisions governing contested cases. We thus affirm the summary judgment of the district court with respect to Maresh's statutory claim.
B. The District Court Correctly Held That Maresh Was Not Entitled to The Protection of Procedural Due Process Pursuant to The Fourteenth Amendment to The United States Constitution.
Maresh contends that she has a legal interest in participating in the MPAC group therapy which entitles her to the protection of due process pursuant to the Fourteenth Amendment to the United States Constitution. The due process clause of the Fourteenth Amendment "prohibits deprivation of life, liberty, or property without `fundamental *19 fairness' through governmental conduct that offends the community's sense of justice, decency and fair play." Moran v. Burbine, 475 U.S. 412, 432-34, 106 S.Ct. 1135, 1146-48, 89 L.Ed.2d 410 (1986). Also, it should be noted at the outset that, "due process is not a concept rigidly applied to every adversarial confrontation, but instead is a flexible concept calling for such procedural protections as are warranted by the particular situation." Boise Orthopedic Clinic v. Idaho State Ins. Fund, 128 Idaho 161, 167, 911 P.2d 754, 760 (1996).
"To determine whether an individual's due process rights under the Fourteenth Amendment have been violated, a court must engage in a two-step analysis. It must first decide whether the individual's threatened interest is a liberty or property interest under the Fourteenth Amendment." Schevers v. State, 129 Idaho 573, 575, 930 P.2d 603, 605 (1996) (citing Smith v. Meridian Joint Sch. Dist. No. 2., 128 Idaho 714, 722, 918 P.2d 583, 591 (1996)); see also, True v. Dep't of Health and Welfare, 103 Idaho 151, 645 P.2d 891 (1982) (citing Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975)). Only after a court finds a liberty or property interest will it reach the next step of analysis, in which it determines what process is due. Schevers v. State, 129 Idaho 573, 575, 930 P.2d 603, 605.
As stated by the United States Supreme Court, "[t]he requirements of procedural due process apply only to the deprivation of interest encompassed by the Fourteenth Amendment's protection of liberty and property." Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972). Accordingly, the existence of Maresh's right to due process protections regarding her request to participate in the MPAC group therapy treatment depends on whether her interest in participating in the MPAC treatment is within the scope of the liberty or property language of the Fourteenth Amendment.
The United States Supreme Court has noted that property interests are "created ... by existing rules, ... such as state law." Id. Likewise, this Court has indicated that "determination of whether a particular right or privilege is a property interest is a matter of state law." Ferguson v. Bd. of Trustees of Bonner Cty. Sch., 98 Idaho 359, 564 P.2d 971, 975 (1977) (citing Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976)). Further, determining the existence of a liberty or property interest depends on the "construction of the relevant statutes," and the "nature of the interest at stake." True, 103 Idaho at 154, 645 P.2d 891 (citing Tribe, American Constitutional Law, § 10-9, at 515-16 (1978)). Hence, whether a property interest exists can be determined only by an examination of the particular statute or ordinance in question. Bishop, 426 U.S. 341, 96 S.Ct. 2074.
While a valid statutory scheme may set forth requirements in such a manner as to create a legitimate claim of entitlement to property, the statutory schemes at issue in the instant case do not. See, e.g., Powers v. Canyon County, 108 Idaho 967, 703 P.2d 1342, (1985) (a valid statutory scheme requiring county aid to indigents creates a legitimate claim of entitlement to property). As previously discussed, neither the language of the relevant Idaho Code provisions, nor the language of Title XIX of the Social Security Act, which establishes Medicaid, creates an expectation or leads to an understanding that a particular type of service, such as that requested by Maresh, must be provided. Neither statutory scheme creates a property interest, or legitimate claim of entitlement to participate in the MPAC treatment for Maresh.
"The Fourteenth Amendment's procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits." Board of Regents v. Roth, 408 U.S. 564, 576, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Maresh had not already acquired an interest in the specific benefits of the particular type of treatment that she requested by virtue of any statutory scheme. Rather, she had the hope of receiving the services of MPAC. "That hope is not a property right and the frustration of such a hope does not trigger the right to a hearing." Loebeck v. Idaho State Board of Education, 96 Idaho 459, 461, 530 P.2d 1149, 1151 (1975) (quoting Perrin v. *20 Oregon State Board of Education, 15 Or. App. 268, 515 P.2d 409 (1973)).
A person must have more than an abstract need or desire for a benefit in order to have a property interest therein. Board of Regents, 408 U.S. 564, 569, 92 S.Ct. 2701. Further, that person must have more than a unilateral expectation in the benefit; instead, she must have a "legitimate claim of entitlement to it." Id. at 577, 92 S.Ct. 2701. Maresh has no legitimate claim of entitlement to the particular type of treatment she requested. Consequently, her interest in participating in that treatment is not a property interest protected by due process under the Fourteenth Amendment to the United States Constitution. Therefore, we affirm the decision of the district court regarding Maresh's Fourteenth Amendment claim.
C. The District Court Correctly Held That Maresh Was Not Entitled to The Protection of Procedural Due Process Pursuant to Article I, § 13 of The Idaho Constitution.
Similar to the Federal Constitution, the Idaho Constitution includes a due process clause, which states that "[n]o person shall ... be deprived of life, liberty or property without due process of law." Idaho Const. art. I, Section 13. While this Court has recognized that this clause is "substantially the same" as its federal counterpart, it has also indicated that "the scope is not necessarily the same." Cootz v. State, 117 Idaho 38, 40, 785 P.2d 163, 165 (1989) (citing State v. Peterson, 81 Idaho 233, 236, 340 P.2d 444, 446 (1959)).
Although the due process clause of the Idaho Constitution is interpreted independently, the Idaho Supreme Court is not necessarily bound by the federal interpretation of due process, this Court "consider[s] the rationale used by the United States Supreme Court in deciding Fourteenth Amendment due process cases." Schevers v. State, 129 Idaho 573, 577, 930 P.2d 603, 607 (1996); see, e.g., Cootz, 117 Idaho at 41, 785 P.2d at 166. More significantly, this Court has applied the United States Supreme Court's standard for interpreting the due process clause of the United States Constitution to art. I, Section 13 of the Idaho Constitution. See, e.g., Smith v. Idaho Dep't of Correction, 128 Idaho 768, 771, 918 P.2d 1213, 1216 (1996) (due process case involving the deprivation of a liberty interest). Furthermore, in the present case, there is no reasonable basis upon which to expand the due process concepts of liberty or property under the Idaho Constitution beyond the contemplation of the Fourteenth Amendment, to encompass the interest that Maresh claims to have in the particular type of treatment she requested.
Therefore, in the present case, the same analysis used for determining whether Maresh was entitled to procedural due process under the Federal Constitution should be used to determine whether Maresh was entitled to procedural due process under the Idaho Constitution. Application of that same analysis demonstrates that her interest in participating in the MPAC group therapy treatment is not a liberty or property interest protected by due process under the Idaho Constitution. Hence, the district court's decision regarding Maresh's Idaho constitutional claim is affirmed.
V.
CONCLUSION
For the foregoing reasons, the district court's order granting summary judgment to the Department is affirmed. No attorney fees or costs are awarded to the Department on appeal.
Justices SCHROEDER and WALTERS, concur.
Justice JOHNSON, Dissenting.
I respectfully dissent. Simply stated, this case involves the application of a person for mental health services authorized by statute and provided by the Department at its regional mental health service. The letter denying the application began as follows: "I regret to inform you that when your case was staffed at our June 20, 1995 staff meeting, it was determined that at this time we do not provide the services which would fit your needs, or services that would be clinically appropriate." The question presented to us is not whether the Department should have granted the application, but whether the applicant was given the process to which she *21 was entitled. In my view, Maresh was entitled to appeal the denial of her request and should have been afforded reasonable notice and opportunity for a fair hearing by the Department. I would not reach the constitutional issues because the state statutes provide the process to which Maresh is entitled.
The director of the Department is required to "[a]dminister public assistance and social services to eligible people." I.C. § 56-202(a). "Public assistance" is defined to include "medical assistance." "Medical assistance" is defined to mean "payments for part or all of the cost of such care and services allowable within the scope of title XIX of the federal social security act as amended as may be designed by department rule." I.C. § 56-201(o). "Social services" is defined to mean "activities of the department in efforts to bring about economic, social and vocational adjustment of families and persons." I.C. § 56-201(d).
The letter denying Maresh's application describes the service she sought as "an educational group that offers our clients more than an opportunity for socialization. We offer our clients a range of skill building classes which include, symptom management, daily living skills, development of provocation skills, etc." This service fits within the definition of "public assistance." This does not mean that Maresh was entitled to the service she sought, only that she is entitled to whatever process the state provides upon the denial of her application.
I.C. § 56-216 provides this process:
Appeal and fair hearing.An applicant or recipient aggrieved because of the state department's decision or delay in making a decision shall be entitled to appeal to the state department in the manner prescribed by it and shall be afforded reasonable notice and opportunity for a fair hearing by the state department.
I would declare that Maresh was entitled to this process.
Chief Justice TROUT CONCURS IN DISSENT.
| {
"pile_set_name": "FreeLaw"
} |
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-6541
MICHAEL SAMUEL EVANS,
Plaintiff - Appellant,
v.
CHRIST FOSTER; PAUL S. WILKERSON, JR., D.P.M.; SANDRA
WILLIAMS; THIRTEENTH CIRCUIT OFFICE,
Defendants.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. David C. Norton, District Judge.
(6:15-cv-00573-DCN)
Submitted: July 23, 2015 Decided: July 28, 2015
Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael Samuel Evans, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Samuel Evans appeals the district court’s order
accepting the recommendation of the magistrate judge and
dismissing his 42 U.S.C. § 1983 (2012) complaint under 28 U.S.C.
§ 1915A (2012). On appeal, we confine our review to the issues
raised in the Appellant’s brief. See 4th Cir. R. 34(b). Because
Evans’ informal brief does not challenge the bases for the district
court’s disposition, Evans has forfeited appellate review of the
court’s order. Accordingly, we affirm the district court’s
judgment. 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"
} |
[Cite as State v. Simon, 2020-Ohio-3841.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 5-19-47
v.
EARL R. SIMON, OPINION
DEFENDANT-APPELLANT.
Appeal from Hancock County Common Pleas Court
Trial Court No. 1997 CR 00008
Judgment Affirmed
Date of Decision: July 27, 2020
APPEARANCES:
Brian A. Smith for Appellant
Phillip A. Riegle for Appellee
Case No. 5-19-47
ZIMMERMAN, J.
{¶1} Defendant-appellant, Earl R. Simon (“Simon”) appeals the December
3, 2019 judgment entry of the Hancock County Common Pleas Court classifying
him as a sexual predator under Ohio’s version of Megan’s Law. For the reasons
that follow, we affirm.
{¶2} The genesis of this case is the sexual conduct that occurred in January
through April 1996 involving Simon and a four-year-old-child victim. On January
14, 1997, the Hancock County Grand Jury indicted Simon on three criminal counts
including: Count One of rape in violation of R.C. 2907.02(A)(1)(b) with a penalty
specification under R.C. 2907.02(B), an aggravated-first-degree felony, and Counts
Two and Three of felonious sexual penetration in violation of R.C.
2907.12(A)(1)(b) also with penalty specifications under R.C. 2907.12(B),
aggravated-first-degree felonies.1 (Doc. No. 1).
{¶3} On January 22, 1997, Simon appeared for arraignment and entered
pleas of not guilty.2 (Doc. No. 5). Thereafter, on May 15, 1997, Simon withdrew
his pleas of not guilty and entered guilty pleas, under a written plea agreement, to
Counts Two and Three as amended. (Doc. Nos. 45, 46, 50, 113); (Dec. 3, 2019 Tr.
at 4). Specifically, in exchange for his guilty pleas, the State dismissed Count One
1
Because of the age of the victim at the time the offenses were committed, Simon was subject to a mandatory-
life sentence on all three criminal counts, if convicted. (See Doc. Nos. 1, 25).
2
On May 5, 1997, Simon underwent a pretest interview for a stipulated-polygraph examination where Simon
made admissions to the indicted conduct. (State’s Ex. 10); (Dec. 3, 2019 Tr. at 40, 43).
-2-
Case No. 5-19-47
and the penalty specifications as to Counts Two and Three. (Doc. Nos. 45, 46, 50).
The trial court accepted Simon’s guilty plea, and immediately sentenced Simon to
consecutive-indeterminate-prison terms of not less than 10 years nor more than 25
years as to Counts Two and Three, for an aggregate prison sentence of 20 years to
50 years in prison. (Doc. Nos. 50, 113); (Dec. 3, 2019 Tr. at 4). Importantly, Simon
was advised by the trial court that pursuant to his guilty plea and under R.C.
2950.09, he would be classified as a sex offender under Megan’s Law, the sex-
offender-classification law in effect at that time. (Id.); (Id. at 4-5). However, no
sex-offender-classification hearing was conducted at the time of sentencing. (Id.);
(Id.).
{¶4} Before the trial court journalized its sentence and on May 21, 1997,
Simon filed a motion in the trial court challenging the constitutionality of R.C.
2950.09. (Doc. Nos. 48, 49). Further, on March 18, 1999, Simon filed a motion
under R.C. 2947.06(B) requesting that the trial court grant him shock probation.3
(Doc. Nos. 61, 62). On July 27, 1999, the trial court took both of Simon’s motions
under advisement and ultimately denied both requests. (Doc. No. 64). After a status
conference with the trial court on September 2, 1999 (journalized on September 14,
1999) the parties agreed that Simon’s sex-offender-classification hearing under R.C.
3
R.C. 2947.06 is captioned as “Testimony after verdict to mitigate penalty; reports confidential”. R.C.
2947.06(1996) (current version of R.C. 2947.06 (2004)).
-3-
Case No. 5-19-47
2950.09 be continued until further order of the trial court.4 (Doc. Nos. 65, 113);
(Dec. 3, 2019 Tr. at 5).
{¶5} On December 3, 2019, the trial court conducted a sexual-classification
hearing for Simon.5 (Doc. No. 97). Simon was personally present for the hearing,
and after taking evidence, the trial court classified Simon as a sexual predator under
Megan’s Law.6 (Doc. Nos. 102, 113); (Dec. 3, 2019 Tr. at 5).
{¶6} Simon filed his notice of appeal on December 12, 2019. (Doc. No. 105).
He raises one assignment of error for our review.
Assignment of Error
Because the record does not show competent, credible evidence
that the Appellant met the criteria for classification as a “sexual
predator” under R.C. 2950.09(B), the trial court erred in
classifying Appellant as a “sexual predator” under Megan’s Law.
4
Simon filed a writ of habeas corpus and following our dismissal of his writ on March 3, 2000 for his failure
to comply with the mandates of R.C. 2725.04(D), Simon filed a petition for postconviction relief in the trial
court on July 13, 2000. See State v. Simon, 3d Dist. Hancock No. 5-00-06. (Case No. 5-00-06, Mar. 3, 2000
JE); (Doc. Nos. 66, 67, 68). The trial court denied his request for an evidentiary hearing and his petition on
August 17, 2000. (Doc. Nos. 69, 70, 71). On September 1, 2000, Simon filed a motion requesting the trial
court issue findings of fact and conclusions of law addressing its denial of his petition for postconviction
relief. (Doc. No. 72). Thereafter, Simon appealed the trial court’s denial of his petition for postconviction
relief and ultimately voluntarily dismissed his appeal. See State v. Simon, 3d Dist. Hancock No. 5-00-23;
(Case No. 5-00-23, Oct. 3, 2000 JE). (Doc. Nos. 73, 74, 75). Simon filed a successive petition for
postconviction relief on October 16, 2000, a motion to supplement evidentiary matters in support of his
petition on February 14, 2001, and a motion for appointment of counsel on March 7, 2001, all of which the
trial court denied. (Doc. Nos. 79, 80, 81, 84, 85, 86, 87, 88). Subsequently, Simon appealed the denial of
his successive petition for postconviction relief which was later dismissed for want to prosecution. See State
v. Simon, 3d Dist. Hancock No. 5-01-16; (Case No. 5-01-16, Oct. 3, 2001 JE). (Doc. Nos. 89, 90, 91).
5
While Simon’s maximum prison term is not set to expire until January 5, 2047, he was scheduled to be
released from prison on parole supervision on December 4, 2019. (Doc. Nos. 101, 113). (Dec. 3, 2019 Tr.
at 8, 51); (State’s Ex. 5).
6
The parties do not contest that Megan’s Law was applicable under the facts presented. (Doc. No. 113);
(Dec. 3, 2019 Tr. at 6, 11-13).
-4-
Case No. 5-19-47
{¶7} In his sole assignment of error, Simon argues that the trial court erred
by classifying him as a sexual predator. Specifically, he argues that the trial court
did not have competent, credible evidence to meet the criteria for classifying Simon
as a sexual predator under R.C. 2950.09(B) since the factors weighed in his favor.
For the reasons that follow, we disagree.
Standard of Review
{¶8} Because sex-offender-classification proceedings under R.C. Chapter
2950 are civil in nature under Megan’s Law, “[o]n appeal, this Court reviews a trial
court’s sexual-predator designation ‘under the civil manifest-weight-of-the-
evidence standard and [the trial court’s determination] may not be disturbed when
the judge’s findings are supported by some competent, credible evidence.’” State
v. Johnson, 3d Dist. Wyandot Nos. 16-13-07 and 16-13-08, 2013-Ohio-4113, ¶ 9,
quoting State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, syllabus.
Analysis
{¶9} The term “sexual predator” is defined as a “person [who] has been
convicted of or pleaded guilty to committing a sexual oriented offense and is likely
to engage in the future in one or more sexually oriented offenses.” R.C. 2950.01(E)
(1997) (current version R.C. 2950.01(E)(1) (2019)). Felonious sexual penetration
was a “sexually oriented offense.” 2907.12(A)(1)(b) (1993), repealed in Am.H.B.
No. 445, 1996 Ohio Laws 155 (1996); 2950.01(D)(1) (1997) (current version R.C.
-5-
Case No. 5-19-47
2950.01(A) (2019)). See also R.C. 2907.01(A) (1991), (current version of R.C.
2907.01(A) (2019)); 2907.02(A)(1)(b) (1993), (current version of R.C.
2907.02(A)(1)(b) (2002)).
{¶10} R.C. 2950.01 provides in its pertinent part:
(G) An offender is “adjudicated as being a sexual predator” if any of
the following applies:
***
(2) Regardless of when the sexually oriented offense was
committed, on or after the effective date of this section, the offender
is sentenced for a sexually oriented offense, and the sentencing judge
determines pursuant to division (B) of section 2950.09 of the Revised
Code that the offender is a sexual predator.
* * *.
R.C. 2950.01(G)(2) (1997) (current version of R.C. 2950.01(E), (F) (2019)). Here,
the trial court found that Simon had been “convicted of two (2) sexually oriented
offenses, two (2) counts of Felonious Sexual Penetration each aggravated felonies
of the first degree, in violation of Ohio Revised Code §2907.12(A)(1)(b), both
involving a four (4) year old child.” (Doc. No. 102). Thus, Simon’s hearing was
conducted under R.C. 2950.09.
{¶11} R.C. 2950.09(A) states that
a person who * * * has been convicted of * * * a sexually oriented
offense may be classified as a sexual predator for the purposes of this
chapter only in accordance with division (B) or (C) of this section.
-6-
Case No. 5-19-47
R.C. 2950.09(A) (1996) repealed in Am.S.B. No. 10, 2007 Ohio Laws 10 (2007).
R.C. 2950.09(B)(1) requires the trial court “conduct a hearing to determine whether
the offender is a sexual predator” providing Simon and the State with “notice of the
date, time, and location of the hearing.” R.C. 2950.09(B)(1) (1996) repealed in
Am.S.B. No. 10, 2007 Ohio Laws 10 (2007). Importantly, Simon and the State were
properly notified of the classification hearing and presented evidence in the trial
court. (Dec. 3, 2019 Tr. at 1-76, 100); (Doc. No. 113).
{¶12} When making the determination regarding a sexual-predator
designation under R.C. 2950.09(B)(2), the
* * * judge shall consider all relevant factors, including, but not
limited to, all of the following:
(a) The offender’s age;
(b) The offender’s prior criminal record regarding all offenses,
including, but not limited to, all sexual offenses;
(c) The age of the victim of the sexually oriented offense for which
sentence is to be imposed;
(d) Whether the sexually oriented offense for which sentence is to
be imposed involved multiple victims;
(e) Whether the offender used drugs or alcohol to impair the victim
of the sexually oriented offense or to prevent the victim from
resisting;
(f) If the offender previously has been convicted of or pleaded guilty
to any criminal offense, whether the offender completed any
sentence imposed for the prior offense and, if the prior offense
-7-
Case No. 5-19-47
was a sex offense or a sexually oriented offense, whether the
offender participated in available programs for sexual offenders;
(g) Any mental illness or mental disability of the offender;
(h) The nature of the offender’s sexual conduct, sexual contact, or
interaction in a sexual context with the victim of the sexually
oriented offense and whether the sexual conduct, sexual contact,
or interaction in a sexual context was part of a demonstrated
pattern of abuse;
(i) Whether the offender, during the commission of the sexually
oriented offense for which sentence is to be imposed, displayed
cruelty or made one or more threats of cruelty;
(j) Any additional behavioral characteristics that contribute to the
offender’s conduct.
R.C. 2950.09(B)(2)(a)-(j) (1996) repealed in Am.S.B. No. 10, 2007 Ohio Laws 10
(2007). At the conclusion of the hearing, “the judge shall determine by clear and
convincing evidence whether the offender is a sexual predator” under R.C.
2950.09(B)(3). R.C. 2950.09(B)(3) (1996) repealed in Am.S.B. No. 10, 2007 Ohio
Laws 10 (2007).
{¶13} Here, the parties stipulated to the trial court’s taking of judicial notice
of contents of the trial court’s file folder on Simon, the admission of State’s Exhibits
1-11, and the identification of Simon.7 (Doc. No. 102); (Dec. 3, 2019 Tr. at 6-9).
At Simon’s classification hearing, the State presented two witnesses: Kathy Elliot
(“Elliot”), a former investigator for Hancock County Job and Family Services and
7
The parties agreed that State’s Exhibits 2, 3, 4, and 6 were to remain under seal. (Doc. Nos. 102, 113);
(Dec. 3, 2019 Tr. at 11).
-8-
Case No. 5-19-47
Dana Dunbar (Dunbar), an investigator for the Hancock County Prosecutor’s
Office. (Doc. Nos. 102, 113); (Dec. 3, 2019 Tr. at 13-63). Only Simon testified for
the defense at the sexual-classification hearing. (Doc. Nos. 102, 113); (Dec. 3, 2019
Tr. at 63-76).
{¶14} In addressing the relevant-statutory factors in the instant case, the
record supports that the trial court heard testimony with regard to R.C.
2950.09(B)(2)(a) as to Simon’s age. Specifically, the State presented the testimony
of Elliot (with 25 years’ experience in child welfare) who testified that Simon’s
advanced age of 73 did not lessen his risk of reoffending, given that, the offenses
involved digital penetration. (Dec. 3, 2019 Tr. at 16-17, 25-28).
{¶15} As to the factor under R.C. 2950.09(B)(2)(b), the State presented the
testimony of Dunbar regarding Simon’s criminal history that included a passing-
bad-checks conviction from Allen County, a record of public intoxication and
criminal trespass from Fort Lauderdale, Florida (in 1968), and an arrest for
aggravated assault in Tampa, Florida (in 1987). (Id. at 52). Further, at the time of
Simon’s arrest in the case sub judice, he had an unexecuted warrant for his arrest
for an insufficient-funds charge out of Pike County, Ohio. (Id. at 54).
{¶16} As to the factor under R.C. 2950.09(B)(2)(c), Elliot testified as to the
minor-child-victim’s age and the barriers young children have when disclosing
sexual conduct with adults. (Id. at 28). Specifically, Elliot testified that children in
-9-
Case No. 5-19-47
this victim’s age range have difficulty explaining details and are compliant and
trustful when instructed not to disclose. (Id.). According to Elliot, Simon’s choice
of a minor-child victim in this age range also placed him in a higher-risk category.
(Id.)
{¶17} The record further supports that the trial court considered the factor
under R.C. 2950.09(B)(2)(d), in regards to Elliot’s testimony that this case involved
a single-minor-child victim; however, Elliot also testified of her awareness of at
least one unsubstantiated allegation that Simon had been previously accused of
“sexually assaulting another sibling’s child” in this same time frame. (Id. at 41-42).
{¶18} The trial court considered the factor under R.C. 2950.09(B)(2)(e)
when it heard testimony from Elliot that Simon did not use any drugs or alcohol to
impair the victim. (Id. at 35).
{¶19} The record also supports that the trial court considered R.C.
2950.09(B)(2)(f) regarding sex-offender treatment when Simon testified that he
participated in three-to-four months of sex-offender classes while in prison, even
though Simon could not recall the specific time frames of the classes. (Id. at 67).
{¶20} The record also supports that the trial court considered R.C.
2950.09(B)(2)(g) regarding Simon’s mental illness or disability when Elliot and
Dunbar testified that they were unaware if Simon suffered from any mental illness
or disability. (Id. at 36, 58). Moreover, the parties stipulated to the admission of
-10-
Case No. 5-19-47
State’s Exhibits 3 and 4 which addressed Simon’s intelligence quotient as being 81,
“which falls within the range of Borderline intelligence.” (State’s Exs. 3, 4).
{¶21} Under R.C. 2950.09(B)(2)(h), the trial court considered Elliot’s
testimony as to Simon’s pattern of abuse on the minor-child victim wherein Simon
had admitted to fondling, digitally penetrating, performing cunnilingus on, exposing
his penis to, and having the minor-child victim touch his penis. (Id. at 40, 43);
(State’s Ex. 10). Importantly, Simon’s abuse of the child occurred while he acted
as her primary caretaker/daycare provider (on a weekly basis) over a four-month
time frame in 1996. (Id. at 18-21, 31, 39).
{¶22} The trial court also considered R.C. 2950.09(B)(2)(i) when Elliot
testified that Simon’s continued-sexual conduct with the minor-child victim (after
the child told him that he hurt her) was cruel and resulted in the intentional infliction
of pain on the minor-child victim. (Id. at 36-37).
{¶23} The trial court also considered R.C. 2950.09(B)(2)(j) when Elliot
testified as to Simon’s failure to accept responsibility for his actions and the impact
that such lack of acceptance has on successful outcomes of sex-offender
programming. (Id. at 26, 32).
{¶24} Finally, the record supports that the trial court noted in open court and
in its judgment entry that it considered “the arguments of counsel * * * the evidence
presented * * * the factors set forth in R.C. §2950.09, [] the recidivism and
-11-
Case No. 5-19-47
seriousness factors” in R.C. 2929.12 “(B), (C), (D) and (E) * * * [, and] the
legislative intent of R.C. Chapter 2950.” (Doc. No. 102). (See Dec. 3, 2010 Tr. at
95-99, 101). See R.C. 2950.09(B). Ultimately, the trial court determined by clear
and convincing evidence that Simon was “likely to engage in the future in one or
more sexually oriented offenses under R.C. 2950.01(E)(1)” and classified Simon as
a sexual predator under R.C. 2950.09(B)(3).8
{¶25} In challenging his sexual-predator designation, Simon argues that
there was a lack of evidence demonstrating that he is likely to commit future
offenses. Compare Johnson, 2013-Ohio-4113, at ¶ 19. Simon supports this
argument by noting his convictions involve a single victim (as in Johnson) as well
as evidence of his remorse. He further points to his lack of prior sexual-oriented-
offense convictions, his frailty, his limited-criminal record, the lack of impairment
and cruelty (to the child victim), his professed-mental disability, and his inability to
locate housing.9 Id. (See Appellant’s Brief at 7-13). However, when making these
8
Although the trial court applied the 2007 versions of R.C. 2950.01 and 2950.09 and we apply the 1997
version of R.C. 2950.01 and 1996 version of R.C. 2950.09, the result is the same. (See Doc. Nos. 102, 113).
9
We note that the remorse of and prejudice to an offender are not enumerated factors under R.C.
2950.09(B)(2); however, they may be considered under R.C. 2950.09(B)(2)(j), the catch-all provision. See,
State v. Clutter, 4th Dist. Washington No. 99CA19, 2000 WL 134730, *4 (Jan. 28, 2000) (considering
Clutter’s irresponsible lifestyle under the catch-all provision of R.C. 2950.09(B)(2)(j)); State v. Leonard,
10th Dist. Franklin No. 00AP-1229, 2001 WL 697999, *5 (June 21, 2001), (considering Leonard’s
characterization of the victim as a seductress and instigator under R.C. 2950.09(B)(2)(j)’s catch-all
provision); State v. Harris, 9th Dist. Lorain No. 00CA007691, 2001 WL 866258, *5 (Aug. 1, 2001),
(considering Harris’s love letters to the victim under the catch-all provisions of R.C. 2950.09(B)(2)(j)); State
v. Davis, 11th Dist. Lake No. 2003-Ohio-6741, 2003 WL 22952574, *4 (Dec. 3, 2003), (considering Davis’s
admissions to other uncharged sexual conduct involving different victims under R.C. 2950.09(B)(2)(j), as a
catch-all provision).
-12-
Case No. 5-19-47
arguments, Simon neglects to consider that the factors listed in R.C. 2950.09(B)(2)
were drafted by the legislature to assist the trial court in determining an offender’s
likelihood of recidivism. Id., citing State v. Thompson, 92 Ohio St.3d 584, 587-588
(2001).
{¶26} Upon our review of the record, it is clear that the trial court considered
the totality of the circumstances of Simon’s likelihood of recidivism, and under the
evidence presented, the sexual-predator designation was warranted. (See Doc. No.
102). As such, we conclude that the findings of the trial court are supported by
competent, credible evidence.
{¶27} For these reasons, we cannot conclude that the trial court erred in
designating Simon as a sexual predator. Accordingly, Simon’s sole assignment of
error is overruled.
{¶28} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued in his assignment of error, we affirm the judgment
of the trial court.
Judgment Affirmed
SHAW, P.J. and PRESTON, J., concur.
/jlr
-13-
| {
"pile_set_name": "FreeLaw"
} |
159 F.Supp. 769 (1958)
SEL-O-RAK CORPORATION, a Florida Corporation, Plaintiff,
v.
The HENRY HANGER & DISPLAY FIXTURE CORPORATION OF AMERICA, a New York corporation, and The Henry Hanger and Display Fixture Corporation of Florida, a Florida corporation, Defendants.
Civ. No. 4843-M.
United States District Court S. D. Florida, Miami Division.
February 26, 1958.
*770 *771 Leonard Michaelson, Washington, D. C., Karl W. Flocks, Washington, D. C., Jack A. Abbott, Miami Beach, Fla., for plaintiff.
Milton Mokotoff, New York City, Martin Yelen, Miami, Fla., for defendants.
LIEB, District Judge.
This cause having come on to be heard on objections to the report of the Special Master, J. Edward Worton, appointed herein by order of this Court, dated the 19th day of November, 1956, and the Court having heard arguments of counsel and the briefs of counsel having been fully considered, together with the Master's report as amended and the evidence taken before the Master, the Court now makes the following findings of fact and conclusions of law, based upon the evidence, the Master's report as amended, and the objections raised thereto. Since these findings and conclusions supersede said Master's report and are made after due consideration of the objections thereto, said objections are rendered moot hereby.
Findings of Fact
1. Plaintiff, Sel-O-Rak Corporation, is a corporation organized under the laws of, and doing business in, the State of Florida and is engaged in the principal business of manufacturing a circular garment rack, on which there has been issued a valid design patent No. D-168,143, dated November 11, 1952, application filed July 23, 1952.
2. The plaintiff corporation is the assignee of design patent No. D-168,143, from the original patentee, Maurice Cohen.
3. The defendant corporation, The Henry Hanger and Display Fixture Corporation of America, is a New York corporation, said corporation being engaged primarily in the sale and distribution of garment display racks and fixtures of any and all descriptions. This defendant's objection to the Court's jurisdiction was overruled by order dated the 11th day of January, 1954, and it has since defended on the merits.
4. The defendant corporation, The Henry Hanger and Display Fixture Corporation of Florida, a Florida corporation, was engaged in the City of Miami, Florida, in the sale and distribution of garment display fixtures. It is now, to all intents and purposes, a moribund, if not actually defunct corporation.
5. This is an action brought by Sel-O-Rak Corporation, setting out in one cause of action a claim for damages for infringement of design patent No. D-168,143, and for unfair competition against The Henry Hanger and Display Fixture Corporation of America and against The Henry Hanger and Display Fixture Corporation of Florida.
6. The Henry Hanger and Display Fixture Corporation of America, a New York corporation; The Henry Hanger and Display Fixture Corporation of Florida, a Florida corporation; The Henry Hanger and Display Fixture Corporation of Chicago (not a defendant herein), an Illinois corporation; and The Henry Hanger and Display Fixture Corporation of California (not a defendant *772 herein), a California corporation, are interlocking corporations. Henry Spitz, Birdie Spitz, and Bernard Spitz are officers and directors of the New York corporation; Henry Spitz, Arthur Spitz, Bernard Spitz and Herbert Spitz are officers and directors of the Chicago corporation; Henry Spitz, Bernard Spitz and Arthur Spitz are officers and directors of the Florida corporation; Henry Spitz, Bernard Spitz and Herbert Spitz are officers and directors of the California corporation.
7. Wire Specialties, Inc., is a corporation organized under the laws of the State of New York, with place of business located at Merrimac Street, Lawrence, Massachusetts; Henry Spitz is its president and it is interlocked with and owned by The Henry Hanger Corporation of New York, or the officers and directors of the defendant corporations. Wire Specialties, Inc., is engaged in the manufacture of certain wire products which include the arms or hangers used in the garment display racks in question.
8. World Display Manufacturing Corporation is a New York corporation, designated by The Henry Hanger and Display Fixture Corporation of America to manufacture for the latter wooden garment display racks. World Display manufactured for The Henry Hanger and Display Fixture Corporation of America garment display racks for which the latter assumed the liability for infringement.
9. Artistic Wrought Iron is a concern designated by The Henry Hanger and Display Fixture Corporation of America to manufacture for it, garment display racks made of wrought iron.
10. The patent in suit covers a design for a garment display rack. It consists of two drums of wood (or other material), one superimposed on the other in such a way that the upper drum revolves; attached to the upper drum are trouser hangers which remain rigid and extended for the display of merchandise; attached to the lower drum or cylinder of smaller diameter than the upper, in proper proportion to the size of the entire article, are three verticle fins which, in the shape of a boomerang with convex side out, extend below the lower drum and form legs in the nature of a tripod to hold the rack. The validity of the patent has been unheld by the Court of Appeals for this Circuit in Sel-O-Rak Corp. v. Henry Hanger & Display Fix. Corp., 232 F.2d 176.
11. An officer of defendant corporations first obtained some of plaintiff's racks for resale, and photographs thereof for advertising purposes, at least as early as summer, 1952.
12. Early in November, 1952, while still ordering display racks from plaintiff, The Henry Hanger Company of America sent to World Display Corporation one of plaintiff's racks, with instructions to copy it. The copy was made by World Display and delivered on November 21, 1952, ten days after the patent issued.
13. The Defendant Corporation, The Henry Hanger and Display Fixture Corporation of America, used representations of a rack constructed according to the plaintiff's patented design to advertise and sell to the trade generally, its own racks copied from the same design, said practice continuing through at least the 3rd day of September, 1954. Defendant's advertising brochure contained a representation of a rack constructed according to plaintiff's patented design, which was designated as a rack manufactured by the defendant, The Henry Hanger and Display Fixture Corporation of America. It further appears from said brochure that the defendant cautioned the trade in general to "beware of inferior imitations."
14. On February 9, 1953, formal notice of infringement was given to The Henry Hanger and Display Fixture Corporation of Florida; no patent marking appears on the articles manufactured by plaintiff.
15. The so-called oral stipulation, entered into before Master Fleming, on May 14, 1954, is at best ambiguous. There appear, at page 191 of the transcript *773 of the record before Master Fleming, the following proceedings:
"The Master: Let the record show that pursuant to the questioning this morning the Defendant has produced before the Special Master a new type of slack rack which is here for inspection by the parties, counsel and the Special Master but since this new slack rack is not involved in this law suit by any of the pleadings as now framed it is my view that the new slack rack doesn't enter into this litigation.
"Is that correct?
"Mr. Mokotoff (for Defendant): Yes. So stipulated.
"The Master: I kind of think that is right.
"Mr. Mokotoff: So stipulated. Yes I think so. Is that right, Mr. Michaelson?
"Mr. Michaelson (for Plaintiff): We will stipulate to that."
It is defendants' contention in their brief that "since `the pleadings as now framed' include reference to `colorable imitation', it would seem too clear for any serious argument that the parties have duly stipulated PX3-A is no `colorable imitation' and, therefore, no infringement; a fortiori it was stipulated all the other racks of Defendants, except PX7, did not infringe." Plaintiff contends in its brief that "The parties did not (emphasis in original) stipulate before Master Fleming that any rack was not an infringement and such was never their intention. The wording of the stipulation specifically states that the pleadings before Master Fleming did not yet (emphasis in original) include the new rack."
The stipulation was not relied upon or called to this Court's attention on hearing on the order of reference. This order, directing Master Worton to consider all phases of the case, including infringement by colorable imitation was never directly attacked. The defendants attempted, belatedly before Master Worton, to raise the stipulation but continued to and did defend fully on the merits.
16. Defendants have built up a profitable business in the manufacture and sale of racks which follow plaintiff's patented design with but minor differences of detail observable by experts and in side by side comparison, but not sufficient to prevent confusion among ordinary purchasers of racks of this sort. In other words the ordinary purchaser of revolving racks, who was acquainted with the patented design would, upon viewing any of defendants' racks, including the wrought iron rack, PX-13A, assume that he was viewing an identical or slightly modified version of the patented design.
17. The plaintiff's witness, Mr. William George, in November of 1953, was actually misled into buying from defendants at their Biscayne Boulevard Store, in Miami, Florida, a rack which was a colorable imitation of the patented design, thinking it was a rack of the plaintiff.
18. After the defendants made colorable modifications to their copy of plaintiff's rack, the defendants sold the modified copies interchangeably with defendants' exact copy. Which imitation rack was received by a customer of defendants depended upon which imitation was then in stock. Defendants made no distinction in their records between the various models, each of which is either a colorable imitation or an exact copy of plaintiff's patented rack.
19. All of the racks which were before the Court in this suit, (being exhibit Nos. PX7 [exact copy], PX3A, PX6A, PX12A, PX21A, PX25A, and PX13A) and which were manufactured by and for the defendants and sold by them, infringe plaintiff's patent.
20. The defendants sold portions of racks (tops) like the upper portion of plaintiff's patented design, without the base. These tops constituted a material part of the patented design and were especially made and adapted, and were known by the defendants to be so adapted, *774 for use in an infringement of such patent, and were not a staple article or commodity of commerce suitable for substantial non-infringing use.
21. The defendant corporations and their aforesaid interlocking corporate affiliates sold 710 infringing wooden pants racks, between the time of the giving of the notice of infringement and the time of this accounting, for a total sales volume of $96,596.39.
This finding is based upon defendants' admission of 714 sales of racks which infringe, but is reduced by the four racks which plaintiff admits were sold before the notice of infringement was given. Defendants, although admitting that 714 racks were sold, have made no attempt to show which of the racks were sold before the notice of infringement, and it is impossible to arrive at any definite conclusion from the invoices. However, plaintiff has admitted that at least four racks were sold prior to the notice of infringement.
22. The defendant corporations and their aforesaid interlocking corporate affiliates sold 90 infringing wrought iron clothing racks, between the time of the giving of the notice of infringement and the time of the accounting, for a total sales volume of $6,063.55.
This finding is based upon Master Worton's finding which is accepted by this Court.
23. The defendant corporations and their aforesaid interlocking corporate affiliates sold 59 infringing wooden pants rack tops, between the time of the giving of the notice of infringement and the time of the accounting, for a total sales volume of $7,258.
This finding is based upon Master Worton's finding which is accepted by this Court.
24. The defendant corporations and their aforesaid interlocking corporate affiliates sold 126 infringing wooden skirt racks, between the time of the giving of notice of infringement and the time of the accounting, for a total sales volume of $17,726.87.
This finding is based upon Master Worton's finding, which is accepted by this Court.
25. The defendant corporations and their aforesaid interlocking corporate affiliates sold 7 infringing wooden skirt rack tops, between the time of the giving of the notice of infringement and the time of the accounting, for a total sales volume of $904.50.
This finding is based upon Master Worton's finding, which is accepted by this Court.
26. Defendants' allowed cost of manufacture of wooden pants racks is $80.35 each.
This finding is based upon Master Worton's finding, which is accepted after a consideration of the objections raised thereto.
27. Defendants' allowed cost of manufacture of wrought iron clothing racks is $40.46 each.
This finding is based upon Master Worton's finding, which is accepted after a consideration of the objections raised thereto.
28. Defendants' allowed cost of manufacture of wooden pants rack tops is $51.17 each.
This finding is based upon Master Worton's finding, which is accepted after a consideration of the objections raised thereto.
29. Defendants' allowed cost of manufacture of skirt racks is $80.35 each.
This finding is based upon Master Worton's finding, which is accepted after a consideration of the objections raised thereto.
30. Defendants' allowed cost of manufacture of skirt rack tops is $51.17 each.
This finding is based upon Master Worton's finding, which is accepted after a consideration of the objections raised thereto.
31. The total cost to the defendants for 710 wooden pants racks sold was $57,048.50. Sales by defendants for 710 wooden pants racks amounted to $96,596.39. *775 The difference, $39,547.89 represents defendants' profits on these sales.
32. The total cost to defendants for 90 wrought iron clothing racks sold was $3,641.40. Sales by defendants for wrought iron clothing racks amounted to $6,063.55. The difference $2,422.15, represents defendants' profits on these sales.
33. The total cost to the defendants for 59 wooden pants rack tops sold was $3,019.03. Sales by defendants for wooden pants rack tops amounted to $7,258. The difference, $4,238.97 represents defendants' profits on these sales.
34. The total cost to the defendants for 126 wooden skirt racks sold was $10,124.10. Sales by defendants for wooden skirt racks amounted to $17,726.87. The difference, $7,602.77 represents defendants' profits on these sales.
35. The total cost to the defendants for 7 wooden skirt rack tops sold was $358.19. Sales by defendants for wooden skirt rack tops amounted to $904.50. The difference, $546.31 represents defendants' profits on these sales.
36. Defendants are a nationwide chain, selling garment display fixtures of all types. At the time of the infringement there were other companies selling display fixtures. By testimony of plaintiff's own witness there were other companies selling racks which were alleged to be infringing models of plaintiff's racks. Plaintiff has failed to show that if defendant had not made the sales of the infringing models, plaintiff would have made such sales; in the light of the testimony as to defendants' nationwide clientele, and the presence of other competitors in the market, it would be rank speculation to find that plaintiff would have sold to all these customers. There is no basis in the testimony to show to how many of these customers plaintiff might have been able to sell.
37. Plaintiff has offered testimony to show that it reduced its prices at about the time the infringement began. However, there is also testimony that plaintiff's salesmen and jobbers were competing with each other and that price cutting was going on. There were, as noted above, other competitors in the market. Plaintiff has failed to show that any general reduction in price was directly attributable to the infringement. Furthermore plaintiff has completely failed to show that on any particular sale the price was reduced by reason of the presence of the infringing models in the market.
Conclusions of Law
1. The Court has jurisdiction of the parties and of the subject matter of this action under the Patent Laws of the United States.
2. The plaintiff, Sel-O-Rak Corporation, as assignee of design patent No. D-168,143, is the proper party to maintain this suit.
3. Even if the so called "oral stipulation" before Master Fleming could be construed to have the limiting effect which defendant now urges, a point which I do not find necessary to decide for this decision, the stipulation must be held to have been abandoned by the conduct of the parties themselves, and the cause is decided on the testimony as submitted.
4. The defendants, and those in privity with defendants, have directly infringed the plaintiff's patent by copying plaintiff's design and by manufacturing, selling and offering for sale exact copies and colorable imitations of plaintiff's patented design.
5. Defendant has contributorily infringed in regard to the skirt rack tops and the pants rack tops.
6. Plaintiff has failed to make out a cause of action for unfair competition, distinct from patent infringement.
Plaintiff is being compensated under the patent laws for the infringement of its patent. Whatever harm plaintiff has shown, arises directly from the infringement and the acts in furtherance thereof. In the absence of patent, copying of the design does not per se constitute unfair competition. The first Master, *776 Fleming, concluded as a matter of law that there was no unfair competition. No objection was raised to this conclusion. Judge Holland adopted Master Fleming's report with certain modifications, not here pertinent, and dismissed the one-count complaint. The Court of Appeals, 5 Cir., 232 F.2d 176, in reversing this dismissal on the ground that the patent was valid and infringed, made no mention of the claim for unfair competition. Although this Court's order to Master Worton, the second Master, referred the question of unfair competition as well as infringement and accounting, Master Worton made no finding on unfair competition and no objection was raised to this failure to find. Neither in the briefs, nor in the oral argument before me, was unfair competition directly urged, although it was alluded to for the purpose of bolstering the claim for treble damages. I am persuaded on the basis of the pleadings and the subsequent course of the litigation that there is not now before me an independent claim predicated on unfair competition. In any event it is my conclusion that there is not sufficient evidence specifically directed to such a claim to warrant any finding or conclusion other than that set out above.
7. Plaintiff is entitled to an injunction against further infringement and an accounting of damages, the accounting period to start on February 9, 1953, the date of the notice of infringement.
In view of the fact that an accounting was necessary as to the identical copy admitted to infringe, it was deemed expedient to have a complete accounting, at the same time, of all colorable imitations, in the event they were found to constitute infringement. This accounting has been had before the Master and is the basis of the findings herein.
8. The plaintiff shall recover from defendants the following sums:
Defendants' profits from wooden pants racks ................ $39,547.89
Defendants' profits from iron racks ........................ 2,422.15
Defendants' profits from pants rack tops ................... 4,238.97
Defendants' profits from skirt racks ....................... 7,602.77
Defendants' profits from skirt rack tops ................... 546.31
__________
amounting to a Total of $54,358.09
plus interest from the date hereof, and costs.
This sum represents the defendants' profit on all infringing structures. 35 U.S.C. § 289 makes the total profits of the infringer one of the measures of damages in design patent cases. If plaintiff had been able to show further general damages under § 284, 35 U.S.C., such as forced price reduction, lost profits in excess of those made by defendant, or loss of good will, it would be entitled to compensation for these other general damages as well, but in view of the failure of proof on these items, infringer's profits are taken as the measure of general damages. Since these damages are in excess of a reasonable royalty, plaintiff has been fully compensated under § 284. Plaintiff argues, and Master Worton recommended, that plaintiff is entitled to a reasonable royalty in addition to infringer's profits. The inconsistency of such an award seems apparent. A "reasonable royalty" is a legal fiction resorted to upon a failure of proof as to an established royalty or other general damages, and is made the minimum limit of recovery. However, this legal fiction envisions that the royalty agreement is operative ab initio.[1]*777 Certainly if defendant is required to pay a royalty for the right to make, use, and sell, he is not then to be deprived of his profits earned from such making, using, and selling. Conversely, if the infringer is to be deprived of its profits for unlawfully making, using, and selling, it is not to be charged a royalty for such making, using, and selling, which has availed it nothing. The concepts of "royalty" and "infringer's profits" are contradictory. Either there is a royalty agreementconsensual or legally imposedand defendant is entitled to his profits, or there is no royalty agreement and defendant, as an infringer, must turn over its profits. All plaintiff is entitled to is a compensatory award, not a vindictive one. While it may be true that plaintiff would have an election between infringer's profits or reasonable royalty, if infringer's profits were less than such royalty, here, even assuming that the 20% of established selling price adopted by Master Worton is reasonable, the infringer's profits are greater, and plaintiff is being compensated in a sum not "less than a reasonable royalty" as required by the statute.
Judge Yankwich, construing the effect of the recent amendments to the Patent Laws, has expressed much the same idea in the following excerpt from Laskowitz v. Marie Designers, Inc.:[2]
"* * * Whatever may have been the practice prior to the recent statutory amendments, the general damages now (emphasis in original) recoverable are the detriment suffered by the plaintiffs through the infringement. The profits of the infringer may be the measure, when no other is adequate. Whichever determinative method is used, the aim is to `compensate (the plaintiff) for the infringement', as the statute declares specifically. And when the profits or (emphasis supplied) a reasonable royalty are chosen as a basis, there is no room for the award of other damages. In ascertaining damages, the object has always been to approximate, as nearly as possible, the actual loss (emphasis in original) suffered by the patentee."
9. Plaintiff is not entitled to recover attorney's fees nor treble damages.
In regard to the infringement itself it cannot be said that defendants were wilful and wanton. The patent had probably not been issued when defendants directed World Wide to make the copy, and admittedly had not been adjudicated before this suit. Mr. Fleming, the first Master, and also Judge Holland of this Court, found the patent to be invalid, so that the validity of the patent was doubtful, at best, until passed upon by the Court of Appeals of this Circuit. Defendants were legally entitled to challenge the validity when sued for infringement, and I cannot say that their contention that the patent was invalid and that, therefore, their copy could not infringe, was made in bad faith. Long before the patent was held to be valid, defendant had changed its model in an attempt to avoid infringing. These modified models have only now been found to infringe, and that only after protracted litigation and careful consideration by the Master and Court. While some of the alleged business methods of defendants are reprehensible at best, so also is the recent use the plaintiff has made, in its advertising, of Master Worton's report. For all of these reasons, in the exercise of the discretion vested in me by the statute, I cannot conscientiously award plaintiff increased damages. The case was vigorously prosecuted, and strenuously defended, but this is true of any case in which the question of validity and infringement is a close one. It does not seen to me that this is such an exceptional case as to warrant the award of attorney's fees.
10. Plaintiff shall recover its costs from defendants.
11. Defendants and those in privity with them shall be permanently enjoined from:
*778 A. Directly or indirectly manufacturing, using or selling, or exposing for sale or advertising for sale racks of the design embodied in Patent No. D-168,143, or colorable imitations thereof.
12. Master Worton is awarded a fee in the amount of $3,000; payment to be made half by plaintiff and half by defendants.
13. A final decree shall be entered herein in accordance with these findings and conclusions.
NOTES
[1] Enterprise Mfg. Co. v. Shakespeare, 6 Cir., 1944, 141 F.2d 916, 919; cf. also Krieger v. Colby, S.D.Cal.1952, 106 F. Supp. 124, 130 and Wedge v. Waynesboro Nurseries, Inc., D.C.W.Va.1940, 31 F. Supp. 638, 642.
[2] D.C.S.D.Cal.1954, 119 F.Supp. 541, 554.
| {
"pile_set_name": "FreeLaw"
} |
554 F.2d 848
Charles Edward SMITH et al., Appellants,v.Edward J. KLECKER et al., Appellees.
No. 77-1140.
United States Court of Appeals,Eighth Circuit.
Submitted April 13, 1977.Decided April 19, 1977.
Charles E. Smith, August T. Vogel and Timothy R. Lewis, pro se.
Before HEANEY, ROSS and HENLEY, Circuit Judges.
PER CURIAM.
1
This is an appeal from the dismissal of appellants' civil rights action (D.N.D., Judge Van Sickle). Appellees have moved to dismiss the appeal pursuant to Local Rule 9(b) for lack of jurisdiction. We decline to dismiss under Rule 9(b) but on our own motion dismiss the appeal as frivolous under Local Rule 9(a).
2
In January 1977 a committee of North Dakota House of Representatives had under consideration bills concerning good time for prisoners and interest on prisoners' earnings. A hearing was scheduled at the state penitentiary, at which inmates would be allowed to testify. It was cancelled, however, following a committee meeting at which Edward Klecker, Director of Institutions, advised the committee that the hearings would be subject to the North Dakota open meetings law and warned of problems with security and false testimony. The committee decided to hear testimony at the statehouse and tour the penitentiary at a later date.
3
The Bismarck Tribune published a story relating the events discussed above written by Jane Wilson, a staff writer. The story included accounts of disparaging comments on the value of inmate testimony made by Klecker and Representative Oben Guderson. Klecker reportedly stated:
4
Bear in mind what these people are, * * * and bear in mind that some are very young and have very little feeling of right and wrong.
Guderson reportedly stated that:
5
the inmates are in prison for breaking the law and he would not have much confidence in the truth of their testimony.
6
On January 28, 1977, three inmates at the North Dakota penitentiary commenced the instant § 1983 action against Klecker, Guderson, Wilson, and Glenn Sorlie, editor of the Bismarck Tribune. They alleged that the statements concerning the value of inmate testimony were false, malicious, and defamatory; and that the ensuing cancellation of the hearings at the prison denied them their rights to communicate their views to the legislature in violation of due process, equal protection, and the first amendment. Plaintiffs sought a variety of monetary and injunctive relief on behalf of a class. The district court dismissed the action for failure to state a claim, citing Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), and for lack of jurisdiction. This appeal and appellees' motion to dismiss followed. Appellants have filed a response. We affirm.
7
In light of the Supreme Court's recent holding in Paul v. Davis, supra, appellants' allegations of defamation fail to state a federal claim. In the context of this case the appellees were free to express their views with respect to the reliability of inmate testimony regardless of whether those views are supported or not. By the same token the inmates were free to express their views by letter or in person when the committee toured the penitentiary. Finally, all of the defendants would likely be immune from any damage claim under settled principles of immunity: Klecker and Guderson under legislative immunity, and Wilson and Sorlie under the doctrine of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).
8
The judgment of the trial court is affirmed.
| {
"pile_set_name": "FreeLaw"
} |
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In Re: J.D. II, J.D., & K.D. FILED
November 24, 2014
No. 14-0653 (Calhoun County 13-JA-65 through 13-JA-67) RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother, by counsel Erica Brannon Gunn, appeals the June 11, 2014, order of
the Circuit Court of Calhoun County that terminated her parental rights to seven-year-old J.D. II,
five-year-old J.D., and four-year-old K.D. The children’s guardian ad litem, Tony Morgan, filed
a response in support of the circuit court’s order. The Department of Health and Human
Resources (“DHHR”), by its counsel Lee A. Niezgoda, also filed a response in support of the
circuit court’s order. On appeal, petitioner argues that the circuit court erred in making the
following findings: (1) that petitioner should have recognized signs that another child in the
home, S.D., was being abused by her father,1 (2) that petitioner’s testimony about her lack of
knowledge about the sexual abuse was “not credible and was misleading,” and (3) that
petitioner’s testimony about where her children slept in the household was also misleading, not
credible, and indicative of her continued failure to cooperate and acknowledge her lack of
judgment. Petitioner also argues that the circuit court erred by not making the proper findings
necessary to terminate parental rights, denying petitioner an improvement period, and
terminating her parental rights.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.
In November of 2013, the DHHR filed an abuse and neglect petition against petitioner,
petitioner’s husband, and S.D.’s parents. The petition alleged that all of the parents, subject
children, S.D., and S.D.’s brother lived in the same home when S.D.’s father was sexually
abusing S.D. The petition alleged that all four parents had knowledge of this sexual abuse and
failed to protect S.D. and the other children from this abuse and incest. The petition alleged that,
instead, the parents blamed S.D. for “bringing the sexual abuse upon herself.” The petition also
alleged that the parents threatened the children’s health through their inability to supply them
with a safe and stable home environment and through their inadequate health and dental care, as
1
Child S.D. is not petitioner’s biological child and is not a subject child as it relates to
this appeal. S.D.’s father and mother were also named in the underlying abuse and neglect
petition. S.D. is the sister of petitioner’s husband.
1
exhibited by the children’s tooth decay, chronic head lice, and periods of hunger. The petition
also alleged that due to the aggravated circumstances of sexual abuse, the DHHR was not
required to offer services in the home.
After multiple adjudicatory hearings, including one in camera hearing with S.D., the
circuit court adjudicated the parents as abusing parents and the children as abused and neglected
children. The circuit court found that when the entire family previously resided together in
Braxton County, there were multiple serious referrals and allegations made to Child Protective
Services against the adults concerning incest and sexual misconduct; although investigations
were made, the children were never removed from the home. The circuit court further found that
sexual abuse against S.D., by her father, had occurred when the family lived in Braxton County
and continued when the family moved to Calhoun County, and was continuing at the time of the
children’s removal. The circuit court adjudicated petitioner and her husband based upon the
following: exposing the children to the risk of possible abuse by S.D.’s father; their failure to
take any remedial action to protect S.D. from further sexual abuse even after petitioner walked in
on S.D.’s brother sexually abusing S.D.; petitioner and her husband’s decision to allow their
children to live in the same home as S.D.’s parents and to sleep in an adjoining room to S.D.’s
parents, despite signs that S.D. was being sexually abused by her father; their failure to take
action after witnessing S.D.’s father physically assault S.D., who was then pregnant with his
child, by punching her on the floor, causing her to suffer a blackened eye; and their failure to
provide the children with adequate health and dental care.
Thereafter, petitioner filed a motion for an improvement period prior to the circuit court’s
dispositional hearing. Following the dispositional hearing, the circuit court denied this motion
and terminated the parental rights of petitioner and her husband. The circuit court found that the
serious sexual assault in the home made efforts to preserve the family unreasonable and
impossible; that S.D.’s sexual abuser would be a serious threat to any children in the home; and
that the parents’ failure to appear for two scheduled psychological evaluations indicated their
defensiveness, guilt, and unwillingness to participate and cooperate with a family case plan. The
circuit court also found that petitioner’s testimony concerning her children’s sleeping
arrangements, and her belief that S.D. was not being sexually abused, was not credible and was
evidence of her denial that sexual abuse was occurring in the home. The circuit court also found
that the subject children displayed significant symptoms of trauma from continual abuse and did
not have a bond with their parents. After also finding that the parents lacked the ability to parent
and protect the children, that there was no reasonable likelihood that the abuse and neglect could
be substantially corrected, and that termination of parental rights was in the children’s best
interests, the circuit court terminated the parents’ parental rights to the children. Petitioner now
appeals.
This Court has previously established the following standard of review:
“Although conclusions of law reached by a circuit court are subject to de
novo review, when an action, such as an abuse and neglect case, is tried upon the
facts without a jury, the circuit court shall make a determination based upon the
evidence and shall make findings of fact and conclusions of law as to whether
such child is abused or neglected. These findings shall not be set aside by a
2
reviewing court unless clearly erroneous. A finding is clearly erroneous when,
although there is evidence to support the finding, the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been
committed. However, a reviewing court may not overturn a finding simply
because it would have decided the case differently, and it must affirm a finding if
the circuit court’s account of the evidence is plausible in light of the record
viewed in its entirety.” Syl. Pt. 1, In Interest of Tiffany Marie S., 196 W.Va. 223,
470 S.E.2d 177 (1996).
Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011).
Upon our review of the record, we find no error in the circuit court’s findings, its denial
of petitioner’s motion for an improvement period, and its termination of petitioner’s parental
rights. We have held that “in the context of abuse and neglect proceedings, the circuit court is the
entity charged with weighing the credibility of witnesses and rendering findings of fact.” In re
Emily, 208 W.Va. 325, 339, 540 S.E.2d 542, 556 (2000) (citing Syl. Pt. 1, in part, In re Travis
W., 206 W.Va. 478, 525 S.E.2d 669 (1999)). Under West Virginia Code § 49-1-3(1)(A), an
“abused child” is one “whose health or welfare is harmed or threatened by [] [a] parent, guardian
or custodian who knowingly or intentionally inflicts, attempts to inflict or knowingly allows
another person to inflict, physical injury or mental or emotional injury, upon the child or another
child in the home.” We also bear in mind the following:
The term “knowingly” as used in West Virginia Code § 49–1–3(a)(1)
(1995) does not require that a parent actually be present at the time the abuse
occurs, but rather that the parent was presented with sufficient facts from which
he/she could have and should have recognized that abuse has occurred.
Syl. Pt. 7, W.Va. Dept. of Health and Human Res. ex rel. Wright v. Doris S., 197 W.Va. 489, 475
S.E.2d 865 (1996). The record reveals that petitioner testified that she once walked into a room
where S.D. and S.D.’s brother were together and sitting very close to each other, but with their
clothes on. After seeing them together like this, petitioner testified that she did not feel
uncomfortable, but that she worried about S.D. and told her husband that he should go check on
S.D. and S.D.’s brother and “make sure everything was okay.” In contrast to petitioner’s
testimony, S.D. previously testified, in camera, that when petitioner walked in on S.D. and her
brother, S.D.’s brother was sexually abusing S.D. and that petitioner thereafter notified her
husband of this abuse, but that neither petitioner nor her husband did anything to remedy the
abuse. When petitioner was questioned about S.D.’s testimony, petitioner testified that she would
have no reason to believe that S.D. would lie about being abused, but insisted that she never
witnessed S.D.’s brother sexually abusing S.D. Further, petitioner testified that her children
would fall asleep in the living room beside S.D.’s father’s room, but she was not concerned. The
record also reveals that petitioner and her husband were present when S.D. and S.D.’s father
would leave the home for unexplained periods of time and that they were present when S.D.’s
father physically assaulted her. This evidence supports the circuit court’s findings in its orders
below. We find no reasons to overturn these findings.
3
This Court further finds no error with the circuit court’s termination of petitioner’s
parental rights without an improvement period. Under West Virginia Code § 49-6-12(c), circuit
courts have the discretion to grant an improvement period at disposition if the subject parent
demonstrates by clear and convincing evidence that he or she will likely fully participate in the
improvement period. We have also held as follows:
[f]ailure to acknowledge the existence of the problem, i.e., the truth of the basic
allegation pertaining to the alleged abuse and neglect or the perpetrator of said
abuse and neglect, results in making the problem untreatable and in making an
improvement period an exercise in futility at the child’s expense.
W.Va. Dept. of Health and Human Res. v. Doris S., 197 W.Va. 489, 498, 475 S.E.2d 865, 874
(1996). Moreover, West Virginia Code § 49-6-5(a)(7)(A) directs that the DHHR is not required
to make reasonable efforts to preserve the family if the circuit court determines that the parent
has subjected the children in the home to aggravated circumstances of sexual abuse.
The record reveals that, at the dispositional hearing, petitioner continued to deny that she
ever witnessed any sexual abuse against S.D. or had any reason to believe that sexual abuse
existed in the home. Petitioner also missed appointments for her psychological evaluation both
times it was scheduled. Our review of the record shows that petitioner did not meet her burden in
proving that she would fully participate in an improvement period. Under these circumstances,
the DHHR was not required to make reasonable efforts to preserve the family. Accordingly, we
find no error in the circuit court’s denial of an improvement period for petitioner.
Petitioner also argues that, in terminating her parental rights, the circuit court erroneously
failed to make a finding that there was no reasonable likelihood that the conditions of abuse and
neglect could be substantially corrected. However, our review of the record shows that the circuit
court clearly made this specific finding as its twenty-fourth finding of fact on the sixth page of
the dispositional order.2 The circuit court further found that the children’s welfare would be
seriously threatened if they were returned to their parents. Pursuant to West Virginia Code § 49
6-5(a)(6), circuit courts are directed to terminate parental rights upon such findings.
For the foregoing reasons, we affirm the June 11, 2014, order of the Circuit Court of
Calhoun County terminating petitioner’s parental rights to J.D. II, J.D., and K.D.
Affirmed.
2
The circuit court clearly found as follows:
24. There is no reasonable likelihood that the conditions of child abuse and
neglect can be substantially corrected in the foreseeable future considering the
[children’s] need for continuity of care and caretakers and the amount of time
required for the children to be integrated into a stable and permanent home
environment.
4
ISSUED: November 24, 2014
CONCURRED IN BY:
Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
5
| {
"pile_set_name": "FreeLaw"
} |
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued September 29, 2006
Decided October 3, 2006
Before
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 05-4729 Appeal from the United
States District Court for the
LINDSAY JENKINS, Northern District of Illinois,
Plaintiff-Appellant, Eastern Division.
v.
No. 05 C 4037
ANTHONY MARTIN, et al., James F. Holderman, Chief
Defendants-Appellees. Judge.
Order
Through litigation in New York’s state courts, the Ulster County Department of
Human Services sought to collect—from an account at Washington Mutual Bank
held jointly by Lindsay Jenkins and Anthony Martin—a $70,000 child-support obli-
gation that Martin owes to Roswitha Tisch. Jenkins removed that proceeding to
federal court in New York; a remand ensued after the district court concluded that
the domestic-relations exception to the diversity jurisdiction applies. Jenkins then
filed this suit in federal court in Illinois, seeking a declaration that she owns all of
the funds in the account, which exceeds $75,000 in value. Defendants maintained
that the suit should be dismissed for lack of jurisdiction; without reaching the ques-
tion whether the requirements of 28 U.S.C. §1332 have been satisfied, the district
court invoked the doctrine of Younger v. Harris, 401 U.S. 37 (1971).
No. 05-4729 Page 2
It is unfortunate that the district court bypassed the motion to dismiss for lack
of jurisdiction, as subject-matter jurisdiction is the first issue in every case. Younger
is not a jurisdictional doctrine; it concerns abstention, and it applies only to suits
under 42 U.S.C. §1983 (which this is not) and otherwise within federal jurisdiction
(as all §1983 suits are). For diversity litigation, it is the Anti-Injunction Act, 28
U.S.C. §2283, that limits the remedies available in federal litigation running in
parallel to state litigation, and §2283 is not a limit on jurisdiction.
It is also unfortunate that the appellate lawyers have ignored the jurisdictional
questions. Jenkins’s appellate brief asserts that diversity jurisdiction is present but
omits all of the details required by Circuit Rule 28(a)(1). Instead of remedying this
deficiency, Ulster County’s brief states that the appellant’s jurisdictional statement
is “complete and correct”—which it transparently is not. Ulster County has not at-
tempted to explain why, after maintaining in the district court that the require-
ments of §1332 are unsatisfied, it switched grounds and supported the plaintiff’s in-
vocation of the diversity jurisdiction. Only Tisch, who filed a brief pro se, noted the
jurisdictional problems. She has our warm thanks; the lawyers should be ashamed
to have a pro se litigant show them up on this vital topic.
Tisch observed that at least one defendant (the County) is a citizen of New York,
see Moor v. County of Alameda, 411 U.S. 693 (1973), and that Jenkins also appears
to be a citizen of New York. She owns two parcels of real estate in New York, and
the fact that she asked all papers associated with this litigation to be sent to her in
New York strongly implies that she lives there. When asked at oral argument
whether he had any reason to believe that Jenkins is a domiciliary of Florida, as her
complaint asserts—a Florida driver’s license, for example, or registration to vote
there—counsel said that he had none. Instead Roy P. Amatore, who represents Jen-
kins on this appeal, took the position that because he was not counsel in the district
court he had no obligation to consider jurisdictional questions. Our Rule 28 (and
Fed. R. App. P. 28), and two centuries of jurisprudence, say otherwise. Every lawyer,
at every stage of the case, has an obligation to consider jurisdictional questions.
It is not as if the subject came as a bolt out of the blue. It was raised in the dis-
trict court. Under Rule 28, it had to be covered in the appellant’s opening brief. It
was raised in Tisch’s brief—yet Amatore’s reply brief on Jenkins’s behalf ignored
the subject. At oral argument Amatore asked for an opportunity to deal with juris-
diction in a supplemental filing, but that is too late. The plaintiff, as the proponent
of jurisdiction, bears the burden of production and persuasion. See Brill v. Country-
wide Home Loans, Inc., 427 F.3d 446 (7th Cir. 2005) (collecting authority). Twice
presented with apparently well-grounded challenges to the existence of complete
diversity (once in the district court, again by Tisch’s brief), Jenkins chose to remain
silent. That is enough; a plaintiff is not entitled to a third opportunity. See Guar-
anty National Title Co. v. J.E.G. Associates, 101 F.3d 57 (7th Cir. 1996).
Not that another opportunity would have mattered. Even if complete diversity
could be established (which is impossible because Washington Mutual Bank, as a
federal savings and loan association, does not appear to be a citizen of any state for
purposes of §1332, see Bankers Trust Co. v. Texas & Pacific Ry., 241 U.S. 295
(1916)), and even if the amount in controversy exceeds $75,000 (there is doubt on
No. 05-4729 Page 3
that score too, see Macken v. Jensen, 333 F.3d 797 (7th Cir. 2003); Gardynski-
Leschuck v. Ford Motor Co., 142 F.3d 955 (7th Cir. 1998)), a federal court would not
interfere with a quasi in rem proceeding pending in state court. The question in the
New York litigation is not whether Martin owes a particular amount to Tisch. It is
whether Martin owns part or all of the bank account; the dispute, in other words, is
about how to apportion ownership interests in a single fund. It has long been settled
that a federal court will not interfere with a state-court proceeding of this kind, pro-
vided that the state court has jurisdiction over the asset. See, e.g., Penn General
Casualty Co. v. Pennsylvania, 294 U.S. 189, 195–96 (1935). Jenkins does not deny
that the New York court properly exercised jurisdiction over this fund. She must
litigate there, or nowhere.
The judgment of the district court is modified to reflect dismissal for lack of sub-
ject-matter jurisdiction under 28 U.S.C. §1332, and as so modified is affirmed.
One final observation. Defendant Anthony Martin, also known as Anthony Mar-
tin-Trigona, is the subject of an injunction designed to curb his penchant for frivo-
lous and vexatious litigation. See In re Martin-Trigona, 573 F. Supp. 1245 (D. Conn.
1983), modified, 592 F. Supp. 1566 (1984). This injunction prohibits Martin-Trigona
from initiating new litigation, directly or by proxy, without steps that he did not
take before this case began. The district court should consider whether it would be
prudent to open an inquiry into whether Martin-Trigona recruited Jenkins to act as
his proxy in an effort to avoid satisfying his child-support obligations. If that oc-
curred, then Martin-Trigona is in criminal contempt of court. The injunction was
not issued within this circuit, however, though it applies to Martin-Trigona’s con-
duct of litigation in any federal court, so perhaps the Northern District of Illinois
should refer the matter to the District of Connecticut—or perhaps to the Depart-
ment of Justice, which is principally responsible for initiating proceedings in crimi-
nal contempt of court. The Clerk will forward this order, and the short record in the
case, to the United States Attorneys for the Northern District of Illinois and the
District of Connecticut.
| {
"pile_set_name": "FreeLaw"
} |
902 P.2d 1189 (1995)
322 Or. 160
Ruth BENDL, Petitioner,
v.
Theodore R. KULONGOSKI, Attorney General, State of Oregon, and Phil Keisling, Secretary of State, State of Oregon, Respondents, and
Joan Biggs, Daniel A. Rooney, Jr., and Phil Dreyer, Intervenors.
Arthur HONEYMAN, Petitioner,
v.
Theodore R. KULONGOSKI, Attorney General, State of Oregon, and Phil Keisling, Secretary of State, State of Oregon, Respondents,
and
Joan Biggs, Daniel A. Rooney, Jr., and Lloyd K. Marbet, Intervenors.
SC S42393; SC S42394.
Supreme Court of Oregon, In Banc.
Argued and Submitted July 25, 1995.
Decided October 5, 1995.
Daniel W. Meek, Portland, argued the cause for petitioners and filed the petition for petitioner Honeyman. Gregory Kafoury, Portland, filed the petition for petitioner Bendl.
Richard D. Wasserman, Assistant Attorney General, Salem, argued the cause and filed the answering memoranda for respondents.
Charles F. Hinkle, Portland, filed a memorandum for intervenors Biggs and Rooney.
Daniel W. Meek, Portland, filed memoranda for intervenors Dreyer and Marbet.
GRABER, Justice.
In this original proceeding, two petitioners challenge the ballot title for a proposed initiative measure. Petitioners are electors who, in a timely manner, submitted written comments about the Attorney General's draft ballot title, pursuant to ORS 250.067(1). Accordingly, petitioners are entitled to seek a different title in this court. ORS 250.085(2). Most of the arguments that petitioners make *1190 differ from the comments that they made during the administrative process, but those arguments in several respects "concern[ ] language added to or removed from the draft title after expiration of the comment period provided in ORS 250.067." ORS 250.085(6). We consider both the arguments that correspond to the ones presented in writing to the Secretary of State and those relating to new wording chosen after the close of the comment period. We modify the ballot title in certain respects and, as modified, certify it to the Secretary of State.
The proposed initiative measure would add the following new subsections to Article IV, section 1, of the Oregon Constitution:
"(6) The initiative and referendum powers of the people shall not be restricted except by the use of the initiative power. Other than provisions enacted by the use of the initiative power, all constitutional or statutory provisions pertaining to the initiative or referendum power or process enacted after March 30, 1995 shall be without effect.
"(7) Any administrative rule or action shall employ the least restrictive means necessary to allow the people to exercise the initiative or referendum power."
For that measure, the Attorney General certified this ballot title to the Secretary of State:
"AMENDS CONSTITUTION: REMOVES LEGISLATURE'S POWER TO PROPOSE RESTRICTING INITIATIVE, REFERENDUM
"QUESTION: Shall constitution remove legislature's authority to refer constitutional restrictions on initiative, referendum powers to voters, and to regulate those powers?
"SUMMARY: Amends constitution. Legislature now may adopt statutes on people's initiative, referendum powers not inconsistent with constitution. Legislature also may refer proposed constitutional changes in those powers to voters. Measure would remove legislature's power to refer such constitutional amendments to voters, and to enact laws pertaining to initiative or referendum. Measure nullifies any constitutional or statutory provisions pertaining to initiative or referendum enacted after March 30, 1995, except through initiative. Administrative rules, actions must use least restrictive means necessary so people may exercise initiative or referendum."
This court reviews that ballot title for "substantial compliance with the requirements of ORS 250.035 and 250.039." ORS 250.085(5) (1993).[1] ORS 250.035(1)(a) (1993) required that a ballot title contain a "caption of not more than 10 words which reasonably identifies the subject of the measure." ORS 250.035(1)(b) (1993) required that a ballot title also contain a "question of not more than 20 words which plainly phrases the chief purpose of the measure." ORS 250.035(1)(c) (1993) required that a ballot title contain a "concise and impartial statement of not more than 85 words summarizing the measure and its major effect." Finally, ORS 250.039 (1993) required that a ballot title meet "a standard of minimum readability."
With respect to the Caption, petitioners argue that it is too narrow to identify reasonably the subject of the measure. Specifically, they contend that the proposed measure does more than remove the legislature's authority in the future to refer constitutional restrictions on the initiative and referendum to the voters. For example, they point out, the measure also would nullify any constitutional or statutory provisions pertaining to the initiative or referendum enacted after March 30, 1995, unless those provisions themselves resulted from an initiative. Petitioners also assert that the measure would prevent the legislature from changing the process, as well as the power, of the initiative and referendum.
*1191 The Attorney General responds that the more specific alternative that he has chosen complies substantially with the statutory mandate to identify the subject of the proposed measure, because it "focuses precisely on how the measure would change the current constitution." We agree that the proposed measure removes "an existing legislative power (and thereby also remov[es] the people's power to approve a referendum proposed by the legislature)." But we disagree that the Attorney General's ballot title conveys the full scope of the proposed measure. Even if some aspects of the proposed measure are redundant of existing constitutional provisions, as the Attorney General argues, the subject of the concededly non-redundant portions is not conveyed sufficiently to meet the statutory standard.
Based on the text of the proposed measure, we agree with petitioners that the Caption fails to identify reasonably the measure's subject. Accordingly, we modify the Caption. In addition, we make conforming changes to the Question.
The Summary, however, complies substantially with the statutory requirements.
One of the petitioners also brings a readability challenge. We conclude that it is not possible to improve the readability of the ballot title significantly, because the key terms of the proposed measure, which must be included in order to convey its scope to voters, are long words: e.g., constitution, initiative, referendum, and legislature.
We certify the following ballot title for use with the proposed initiative measure:
AMENDS CONSTITUTION: REGULATE INITIATIVE, REFERENDUM POWERS, PROCESSES ONLY BY INITIATIVE
QUESTION: Shall constitution forbid regulating initiative, referendum powers, processes except by initiative; nullify such provisions if enacted after March 30, 1995?
SUMMARY: Amends constitution. Legislature now may adopt statutes on people's initiative, referendum powers not inconsistent with constitution. Legislature also may refer proposed constitutional changes in those powers to voters. Measure would remove legislature's power to refer such constitutional amendments to voters, and to enact laws pertaining to initiative and referendum. Measure nullifies any constitutional or statutory provisions pertaining to initiative or referendum enacted after March 30, 1995, except through initiative. Administrative rules, actions must use least restrictive means necessary so people may exercise initiative, referendum power.
Ballot title certified as modified. This decision shall become effective in accordance with ORAP 11.30(9).
UNIS, J., filed a dissenting opinion.
UNIS, Justice, dissenting.
I adhere to my view that, to the extent that ORS 250.085(5) (1993) gives this court jurisdiction to draft and certify a ballot title for a proposed initiative measure that is different than the one certified by the Attorney General, that statute violates the principle of separation of powers embodied in Article III, section I, of the Oregon Constitution. Rooney v. Kulongoski (Elections Division #13), 322 Or. 15, 55, 902 P.2d 1143 (1995) (Unis, J., dissenting). I would, therefore, dismiss this case for lack of jurisdiction.
NOTES
[1] The 1995 legislature amended ORS 250.035 and repealed ORS 250.039. Or Laws 1995, ch 534, §§ 1 & 19. Those changes, however, do not apply to the ballot title in this case. See id. at § 20(1)(a) (act applies to initiative petitions for which prospective petition is filed on or after effective date of act). The prospective petition in this case was filed before the effective date of the 1995 act, July 7, 1995.
| {
"pile_set_name": "FreeLaw"
} |
Affirmed and Opinion filed May 7, 2009
Affirmed and Opinion filed May 7, 2009.
In The
Fourteenth Court of
Appeals
____________
NO. 14-08-00310-CV
____________
TOMMY CHAMPION, Appellant
V.
GREAT DANE LIMITED PARTNERSHIP, Appellee
On Appeal from the 189th
District Court
Harris County, Texas
Trial Court Cause No. 2005-52056
O P I N I O N
The
underlying products-liability case arose from injuries sustained by appellant,
a truck driver, in attempting to unload a truck trailer manufactured by
appellee. The truck driver complains on appeal that the trial court erred in
excluding testimony from his expert witness as to the trailer=s alleged design defect and in
granting a motion for a directed verdict in favor of the manufacturer on the
design-defect claim. We affirm.
I. Factual and
Procedural Background
Appellant
Tommy Champion, a truck driver, filed suit against appellee Great Dane Limited
Partnership (hereinafter AGreat Dane@) for injuries he sustained in an incident involving a truck
trailer manufactured by Great Dane. The trailer was owned by Penske Trucking
Leasing Company,[1] which leased
the trailer to Champion=s employer.
Great
Dane designed and manufactured the refrigerated trailer according to Champion=s employer=s specifications. The trailer had
ridged flooring that allowed cold air to circulate beneath the freight. An
uncovered gutter[2] spanned the
width of the trailer in the rear, which allowed for condensation and liquids
from leaky freight to drain away from the freight. Liquids flowed into
drainpipes on each side of the gutter to prevent pooling. A Alift gate platform@ was attached to the rear of the
trailer, which facilitated loading and unloading cargo. Champion had not used
this particular trailer before the incident in question.
On the
day of the incident, Champion was transporting freight that did not require
refrigeration. He was scheduled to deliver pallets of freight to several
locations. He was supposed to use a pallet jack[3]
to pull the load off of the trailer. At the first location, Champion
discovered the lift gate platform attached to the trailer was not level. He
noted on a vehicle inspection form that Athis ramp needs to be fixed, drops
downhill.@ During the course of Champion=s trip, he unloaded about twelve to
fifteen pallets before arriving at his last stop. He used a pallet jack to
unload these pallets and encountered no problems in crossing the trailer=s gutter, although he admitted the
pallets were relatively light. He explained at trial that in unloading these
pallets, the wheels of the pallet jack Ahit@ the gutter and Abumped@ the gutter, so that the pallet jack Abounced across@ the gutter as he pulled cargo out of
the trailer.
Champion=s last load was to be delivered to
Filter Fresh Coffee in San Antonio, where he was to unload four pallets.
Although he unloaded the first two pallets without incident, he Ahit@ the gutter both times. The third
and fourth pallets contained bottled water and cans of coffee, which were
wrapped in plastic Ashrinkwrap.@ These pallets were heavier and stacked higher than the
other pallets. Champion slid the forks of the pallet jack under the third
pallet and used the pallet jack to lift the pallet off of the trailer=s floor. The pallet became unstable
and almost fell as he maneuvered to the lift gate platform. Champion
attributed the unstable load to the wheels of the pallet jack, which he claims
became lodged in the trailer=s gutter. Filter Fresh Coffee employees assisted Champion by
removing some of the bottled water from the pallet. He then moved the pallet
into the Filter Fresh Coffee building.
In
unloading the last pallet, Champion lifted and moved the pallet and approached
the lift gate platform from within the trailer. The wheels of the pallet jack
fell into the gutter at the rear of the trailer. The palletized load shifted,
and Champion stabilized it with his hands. Champion Awiggled@ the load and then used the pallet
jack hydraulics to lower the load. He pulled back so that the pallet jack
wheels were clear of the gutter and then lifted the load with the pallet jack.
Champion maneuvered onto the lift gate platform, where the pallet jack rolled
6-7 inches on its own. He then heard a Apop.@[4] The lift gate platform dropped
several inches. Champion lowered the load to prevent the pallet jack from
rolling off the end of the lift gate platform, and boxes fell from the pallet,
hitting him in the head and knocking out some of his teeth. He jumped off of
the trailer and injured his heel, ankle, elbow and thumb. Champion underwent
numerous surgeries for his injuries.
Champion
brought suit against Great Dane, among others, alleging causes of action for
negligence, strict liability for a design defect and marketing defect, breach
of warranty, and gross negligence. He complained that the trailer=s uncovered gutter subjected him to
an unreasonable risk of harm. At trial, Champion sought to elicit testimony
from an expert witness regarding alleged marketing and design defects of the
trailer=s gutter. The expert witness
testified briefly; however, the trial court excluded the expert=s testimony as to defective design
and permitted the expert to testify only for marketing defect.
At the
close of Champion=s evidence,[5] by oral
motion, Great Dane moved for a directed verdict on Champion=s defective-design claim. Great Dane
argued that Champion failed to produce evidence of a safer alternative design
for the trailer=s gutter and that had the safer alternative design existed,
Champion presented no evidence that it would have prevented the injuries he
sustained. The trial court granted this motion.
The
trial court submitted questions to the jury on Champion=s marketing-defect and negligence
claims. The jury returned a verdict in favor of Great Dane, concluding that
Champion was 100% negligent and responding Ano@ to a question regarding marketing
defect. The trial court entered a Atake nothing@ judgment in favor of Great Dane,
confirming the jury=s verdict. Champion now appeals, asserting that the trial
court erred in excluding the expert=s testimony and in granting Great
Dane=s motion for directed verdict.
II. Issues and Analysis
A. Did the trial court err in
granting a directed verdict for the manufacturer on the issue of design defect?
In his first issue, Champion argues that the trial court
erred in granting Great Dane=s oral motion for a directed verdict on
the issue of design defect.
A trial court may instruct a verdict in favor of a
defendant if no evidence of probative force raises a fact issue on the material
questions in the suit. See Prudential Ins. Co. of Am. v. Fin. Review
Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000). A directed verdict in
favor of a defendant may be proper when (1) a plaintiff fails to present
evidence raising a fact issue essential to the plaintiff=s right of
recovery; or (2) the plaintiff admits or the evidence conclusively establishes
a defense to the plaintiff=s cause of action. See id.
We review the trial court=s granting of a directed verdict by
following the same standard for assessing legal sufficiency of the evidence. See
City of Keller v. Wilson, 168 S.W.3d 802, 809B828 (Tex. 2005). When reviewing the legal sufficiency
of the evidence, we consider the evidence in the light most favorable to the
nonmovant and indulge every reasonable inference that would support the
verdict. Id. at 823. When reviewing a directed verdict, we must credit
favorable evidence if a reasonable factfinder could and disregard contrary
evidence unless a reasonable factfinder could not. See id. at 827.
In his live petition, Champion alleged, among other things,
strict liability in design defect of the trailer=s Auncovered floor
gutter at the rear of the trailer that interfered with the transportation of
loads out of the trailer.@ A design defect renders a product
unreasonably dangerous as designed, thereby warranting strict liability, when
taking into consideration the utility of the product and the risk involved in
its use. See General Motors Corp. v. Sanchez, 997 S.W.2d 584,
588 (Tex. 1999).
To establish a design defect, Champion had to show by a
preponderance of the evidence that (1) there was a safer alternative design;
and (2) the defect was the producing cause of the personal injury. Tex. Civ. Prac. & Rem. Code Ann. ' 82.005(a) (Vernon
2005). A Asafer alternative design@ under section
82.005[6]
of the Texas Civil Practice and Remedies Code means that a product design other
than the one at issue would have prevented or significantly reduced the risk of
injury without substantially impairing the product=s utility and that
the safer alternative design was both technologically and economically feasible
when the product left the control of the manufacturer. Id. ' 82.005(b); see
Sanchez, 997 S.W.2d at 588. Generally, the requirements to prove a design
defect necessitate competent expert testimony and objective proof that a defect
caused the injury. See Nissan Motor Co., Ltd. v. Armstrong, 145 S.W.3d
131, 137 (Tex. 2004) (concluding this premise was not peculiar to unintended acceleration
cases); DeGrate v. Executive Imprints, Inc., 261 S.W.3d 402, 410B11 (Tex. App.CTyler 2008, no
pet.) (providing that an expert=s conclusory statements as to design
defect are not competent evidence and are insufficient to defeat or support
summary judgment for design defect).
Great Dane moved for a directed verdict, alleging that
Champion offered no evidence of a safer alternative design that was both
technologically and economically feasible when the trailer left Great Dane=s control in 1999.
Great Dane also alleged that Champion offered no evidence that a safer
alternative design, had it existed, would have prevented Champion=s injuries. The
trial court granted Great Dane=s motion.
At trial, Champion sought to show that the trailer was
defectively designed because of the hazard created when the wheels of a pallet
jack became lodged in the trailer=s rear gutter in
the course of loading and unloading cargo.[7]
On appeal, Champion maintains that he produced evidence of safer alternative
designs because James Hofstetter, Great Dane=s Vice President
of Product Safety and Compliance, testified that Great Dane manufactures
refrigerated trailers without any gutters or with gutters located in the front
of the trailer. He also points to testimony from both Hofstetter and Greg
Scoggins, another representative for Great Dane, who testified about Adock plates@[8] that cover the
gutters in refrigerated trailers. Finally, as evidence of a safer alternative
design, Champion points to his own testimony about his experience in the 1970s
and 1980s driving a refrigerated trailer with a mesh grate that covered the
rear gutter, a trailer that was not manufactured by Great Dane.[9]
1. Alternative
Designs of a Trailer Without Any Gutters or with No Rear Gutter
As
evidence of an alternative design, Champion points to Hofstetter=s testimony that a refrigerated
trailer without any gutters would have reduced or eliminated the risk of injury
in this case. Although Hofstetter testified that, at a customer=s request, Great
Dane had manufactured a refrigerated trailer with flat flooring and no gutters,
that design was an entirely different class of flooring for refrigerated
trailers, and unlike the trailer in this case, which featured ridged flooring.
See, e.g., Allen v. W.A. Virnau & Sons, Inc., 28 S.W.3d 226,
232B33 (Tex. App.CBeaumont 2000,
pet. denied) (providing that safer alternative design did not diminish utility
of product involving same model tractor). Furthermore, Scoggins testified that a trailer
without any gutter is not feasible in this type of trailer with ridged
flooring. See Tex. Civ. Prac.
& Rem. Code Ann. ' 82.005(b)(2) (requiring technological and
economic feasibility for an alternative design); Smith v. Aqua-Flo, Inc., 23 S.W.3d 473, 477
(Tex. App.CHouston [1st Dist.] 2000, pet. denied) (requiring separate proof for
technological and economic feasibility); see also Uniroyal Goodrich
Tire Co. v. Martinez, 977 S.W.2d 328, 335 (Tex. 1998) (providing that a safer
alternative design must be implemented without destroying the utility of the
product). Champion claims he
is entitled to a reasonable inference as to economic feasibility of this design
even though he acknowledges in his appellate brief that Hofstetter did not
explicitly testify regarding the economic feasibility of a refrigerated trailer
without any gutters. But because technological feasibility and economic feasibility
are different concepts, separate proof is required for each. See Smith,
23 S.W.3d at 477. Champion
points to no other evidence that an alternative design of a refrigerated
trailer with this type of ridged flooring but without any gutters was either
technologically or economically feasible when it left Great Dane=s control in 1999. See
Tex. Civ. Prac. & Rem.
Code Ann. ' 82.005(b)(2) (requiring technological and
economic feasibility);
Smith, 23 S.W.3d at 477 (requiring separate proof for technological and
economic feasibility). On this record, Champion has not produced evidence to show that this
alternative design would be a safer alternative design as contemplated by section
82.005(b). See Tex. Civ. Prac.
& Rem. Code Ann. ' 82.005(b); Smith, 23 S.W.3d at 480B81 (concluding directed verdict on
design-defect claim was proper); see also General Motors Corp. v. Harper,
61 S.W.3d 118, 130, 133 (Tex. App.CEastland 2001, pet. denied)
(concluding evidence was legally insufficient to support a safer alternative
design).
Champion
claims he is entitled to a reasonable inference from the evidence that an
alternatively designed trailer without a rear gutter would have reduced or
eliminated the risk of pallet-jack wheels Afalling@ into the rear gutter. Champion=s contention that utilization of this
alternative design might have avoided injuries does not prove that the trailer
was defective. See Harper, 61 S.W.3d at 124B25. In reference to the feasibility of
an alternative design with only a front gutter and no rear gutter, Hofstetter testified that
customers should be told of potential problems that may arise without a drain in
the rear. Hofstetter acknowledged one problem with this design is that because
the trailer naturally slopes downward toward the rear, liquid can pool there.
Hofstetter explained that without a rear gutter to drain the liquid, the
trailer=s refrigeration
system may cause the liquid to freeze, which would pose a potential hazard for
slipping or falling. As
a general rule, a manufacturer should not be liable for failing to adopt an
alternative design that, in some circumstances, would impose an equal or
greater risk of harm. See Uniroyal Goodrich Tire Co., 977 S.W.2d at
337B38. To prevail on his design-defect
claim with this alternative design, Champion was required show that the safety
benefits from his proposed alternative design would not impose an equal or
greater risk of harm. See id. The safety benefits of the alternative
design must be Aforeseeably greater than the resulting costs, including any
diminished usefulness or diminished safety.@ Id. Champion has not
pointed to any evidence that the safety benefits from this proposed alternative
design would not impose an equal or greater risk of harm. See id. at
338. Champion has not offered evidence to demonstrate that the alternative
design was as safe as the current design in terms of protecting from risk of
injury. See Harper, 61 S.W.3d at 124B25. Furthermore, Champion points to
no other evidence in the record that establishes this alternative design would
reduce the risk of injury without substantially impairing the utility of the
gutter for this trailer with ridged flooring. See Tex. Civ. Prac. & Rem. Code Ann.' 82.005(b)(1); Harper, 61 S.W.3d at 128 (AUnsupported statements that an
alternative design would be safer is not evidence.@). Champion has not met the burden
of showing that this alternative design would be a safer alternative design as
contemplated by section 82.005(b). See Tex. Civ. Prac. & Rem. Code Ann. ' 82.005(b); see also Smith, 23
S.W.3d at 480 (affirming directed verdict granted on design defect claim);
Harper, 61 S.W.3d at 130.
2. Alternative
Designs of a Trailer with a Covered Gutter
Champion
claims he is entitled to a reasonable inference from the evidence that an
alternatively designed trailer with a covered rear gutter would have reduced or
eliminated the risk of pallet-jack wheels Afalling@ into the rear gutter. He points to
his own trial testimony that a steel mesh covering[10]
like the covering he saw in the 1970s would have reduced the risk of the
hazard. However, Champion acknowledged that the trailer in the 1970s was not
manufactured by Great Dane and that he did not use a pallet jack to unload
cargo at that time. See, e.g., Allen, 28 S.W.3d at 232B33 (involving
safer alternative design implemented on same model tractor); see also Harper,
61 S.W.3d at 127 (concluding a test constituted no evidence that an alternative
design for seat-belt webbing would protect a driver from the principal risk of
impacting a steering wheel when test did not involve steering wheels or
steering columns). The
fact that another manufacturer uses an alternative design may be evidence of
the technical feasibility of that design. See Honda of Am. Mfg., Inc. v.
Norman, 104 S.W.3d 600, 607 (Tex. App.CHouston [1st Dist.] 2003, pet. denied).
However, economic feasibility refers to the cost of producing a particular
design. Id. Absent testimony that an alternative design is
economically feasible, evidence suffices to support a directed verdict. Smith,
23 S.W.3d at 477. Even if we were to presume without deciding that Champion
was a qualified witness to testify to this alternative design, both Hofstetter
and Scoggins rejected the technological and economical feasibility of a metal
grate covering in refrigerated trailers designed by Great Dane.[11]
See Smith, 23 S.W.3d at 477 (requiring separate proof for
technological and economic feasibility); see also Nissan Motor Co.,
Ltd.,
145 S.W.3d at 137 (indicating that expert testimony may be necessary to prove a
design defect).
Hofstetter testified that a steel or aluminum grate for gutters in Great Dane=s trailers was
neither technologically nor economically feasible because such metals posed problems of corrosion, added extra
weight, and would need to be very thick to sustain heavy loads. Champion does not point to any other
evidence that such grates would be technologically or economically feasible in
1999, when this trailer left Great Dane=s control. See Tex. Civ. Prac. & Rem. Code Ann. ' 82.005(b)(2); Smith, 23
S.W.3d at 478. Therefore, Champion has not shown that this alternative design
would be a safer alternative design under section 82.005(b). See Tex. Civ. Prac. & Rem. Code Ann. ' 82.005(b); Smith, 23 S.W.3d
at 480; see also Harper, 61 S.W.3d at 130.
Finally,
Champion claims that use of the Adock plates@ manufactured by Great Dane would
have reduced or eliminated the risk of injury. However,A[u]nsupported statements that an
alternative design would be safer is no evidence.@ Harper, 61 S.W.3d at 128.
At trial, Hofstetter testified that alternative designs to prevent pallet jack
wheels from Afalling@ into the gutter could not be implemented without seriously affecting the
utility of the trailer=s ridged floor. Hofstetter admitted that it was
technologically and economically feasible to manufacture dock plates, because
Great Dane manufactures such devices for other purposes, and installs them only
at a customer=s request. However, Hofstetter and Scoggins each explained that dock
plates are evenly spaced across the threshold of the gutter, but not spanning
the entire gutter. No evidence reflects that the use of dock plates, when used
as intended and spaced evenly over the gutter, would reduce or eliminate the
hazard of pallet-jack wheels Afalling@ into the gutter. See Tex. Civ. Prac. & Rem, Code Ann. ' 82.005(b)(1); see, e.g.,
Harper, 61 S.W.3d at 130. Therefore, Champion has not produced evidence to
show that this alternative design, featuring dock plates spaced evenly across
the gutter=s threshold, would be a safer alternative design as contemplated by
section 82.005. See generally Tex.
Civ. Prac. & Rem Code Ann. ' 82.005; see also Harper, 61
S.W.3d at 130. To the extent that Champion suggested at trial that dock
plates may be used to cover the gutter entirely, when shown a picture of a
gutter with a solid metal cover over the entire gutter, Hofstetter indicated
that such a design was not technologically feasible because the drains and
gutter need to be accessible for cleaning or else liquid will collect in the
floor and freeze.[12] See Uniroyal Goodrich
Tire Co., 977 S.W.2d at 337 (providing that a manufacturer should not be liable for failing to adopt
an alternative design that would impose an equal or greater risk of harm); see
also Tex. Civ. Prac. & Rem. Code
Ann.' 82.005(b)(2)(requiring feasibility). On this record, no
evidence reflects that the use of dock plates to cover the gutter entirely is a
safer alternative design under section 82.005(b). See Tex. Civ. Prac. & Rem. Code Ann.' 82.005(b); Smith, 23 S.W.3d at 480;
see also Harper, 61 S.W.3d at 130.
Furthermore, the record contains no expert testimony that
any of the proposed alternative designs satisfied both requirements of
subsection 82.005(b) as a safer alternative design. See Nissan Motor Co.,
Ltd., 145 S.W.3d at 137; see also Tex. Civ. Prac. & Rem.
Code Ann. ' 82.005. Even presuming without deciding that Champion has met the
requirements of section 82.005(b), the requirements to prove a design defect
generally necessitate competent expert testimony and objective proof that a
defect caused the injury. See Nissan Motor Co., Ltd., 145 S.W.3d at
137. Although Champion suggested at submission that no expert witness was
necessary, as discussed above, no lay witness testimony established that any of
these alternative designs would meet all of the requirements of section 82.005Cparticularly in light of Champion=s own testimony at trial that (1) the
trailer=s ridged flooring and gutter did not
have any influence over his pallet jack or whether it would roll toward him;
and (2) had the lift gate platform not malfunctioned, the accident would not
have occurred.[13] See Tex. Civ. Prac. & Rem. Code Ann.' 82.005(a)(2) (requiring proof of
producing cause). In this case, no expert evidence established that the trailer
or gutter was the producing cause of Champion=s injuries, as
contemplated by subsection 82.005(a)(2)Cespecially when
considering evidence in the record that Champion=s palletized load
stabilized after encountering the gutter and before it was maneuvered onto the
lift gate platform. See id.
Therefore, because on this record, no evidence of probative
force raised a fact issue on the material questions as to design defect, the
directed verdict in favor of Great Dane was proper. See Prudential Ins. Co.
of Am., Inc., 29 S.W.3d at 77; Smith, 23 S.W.3d at 480.
Accordingly, we overrule Champion=s first issue.
B. Did the
trial court commit reversible error in excluding expert testimony?
In his second issue, Champion argues the trial court abused
its discretion in excluding the testimony of expert witness, Dr. Waymon
Johnston, regarding design defect. Dr. Johnston testified briefly; however, the trial court
excluded his testimony as to defective design and permitted him to testify only
about marketing defects and warnings. Dr. Johnston=s deposition testimony, however, was
included in the record for our review.
The trial court has broad discretion to determine the
admissibility of evidence; as such, a reviewing court will reverse only if
there is an abuse of that discretion. Helena Chem. Co. v. Wilkins, 47
S.W.3d 486, 499 (Tex. 2001). A trial court abuses its discretion only when it
acts in an unreasonable and arbitrary manner, or when it acts without reference
to any guiding principles. Strauss v. Cont=l Airlines, Inc., 67 S.W.3d 428,
448 (Tex. App.CHouston [14th Dist.] 2002, no pet.). We must uphold
the trial court=s evidentiary ruling if there is any
legitimate basis for it. Owens-Corning Fiberglas Corp. v. Malone, 972
S.W.2d 35, 43 (Tex. 1998).
Texas Rule of Evidence 702, entitled ATestimony by
Experts,@ provides, AIf 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.@ Tex. R. Evid. 702. Expert testimony is
admissible if the expert is qualified and the testimony is relevant and based
on a reliable foundation. Helena Chem. Co., 47 S.W.3d at 499. Once the
party opposing the expert testimony objects, the proponent bears the burden of
demonstrating the admissibility of the testimony. See E.I. du Pont de
Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995).
Champion argues that the trial court excluded the expert=s testimony for
the improper reason that Dr. Johnston could not offer an opinion as to whether
the proposed safer alternative designs were technologically and economically
feasible or could reduce or eliminate risk without substantially impairing the
product=s utility, as
contemplated by section 82.005(b). According to Champion, an expert was not
required to provide testimony on those elements because he offered this proof
through his own testimony and through Great Dane=s representatives.
To the extent that we have determined above that Champion did not present this
evidence under section 82.005(b) through testimony from Champion or Great Dane=s representatives,
the requirements of design defect generally necessitate competent expert
testimony and objective proof that a defect caused the injury. See Nissan
Motor Co., 145 S.W.3d at 137; DeGrate, 261 S.W.3d at 410B11. We,
therefore, consider whether Dr. Johnston was qualified to offer an opinion as
to defective design.
The party calling the witness must show the expert is
qualified by having Aknowledge, skill, experience, training, or
education@ to testify on the specific issue before the court. See
Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718 (Tex. 1998).
Rule 702 permits expert testimony if such testimony would assist the trier of
fact in understanding the evidence or determining a fact issue. Tex. R. Evid. 702; see Gammill,
972 S.W.2d at 718. Whether an expert is qualified under Rule 702 is a
preliminary matter to be determined by the trial court. See Gammill,
972 S.W.2d at 718. A trial court Amust ensure that
those who purport to be experts truly have expertise concerning the actual
subject matter about which they are offering an opinion.@ Id. at
719 (quoting Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996)). AGeneral experience
in a specialized field is insufficient to qualify a witness as an expert.@ General
Motors Corp. v. Burry, 203 S.W.3d 514, 526 (Tex. App.CFort Worth 2006,
pet. abated). If the expert is not qualified to offer a particular opinion in
a particular case, then the expert=s testimony is not
admissible because it does not rise above mere speculation, and, accordingly,
does not offer genuine assistance to the jury. Broders v. Heise, 924
S.W.2d 148, 150B54 (Tex. 1996).
Champion asserts that the trial court incorrectly framed
the issue in evaluating Dr. Johnston=s qualifications
by requiring Dr. Johnston to be an expert in all aspects of refrigerated
trailer design. Champion argues that the focus of this case was about a
particular design feature, the uncovered gutter of the trailer, and that Dr.
Johnston was well-qualified to discuss potential hazards associated with truck
drivers crossing the uncovered gutter in the course of a job duty. The record
reflects that the trial court engaged in a lengthy discussion with the parties
outside of the jury=s presence about the admissibility of Dr.
Johnston=s testimony for
design defect. In this exchange, the trial court characterized this case as
involving Aa refrigerated trailer with a specialized flooring
system and specialized drainage needs.@ On this basis,
the trial court did not require Dr. Johnston to be an expert in all aspects of
refrigerated trailer design.
Dr. Johnston holds advanced degrees in industrial
engineering and an undergraduate degree in mechanical engineering. He is an
expert in product safety engineering and human factors engineering. Over the
course of a twenty-four year career as the head of the Safety Engineering
Program at Texas A&M University, Dr. Johnston taught more than one thousand
graduate and undergraduate students in the fields of industrial safety
engineering, product safety engineering, and human factors engineering. In
that capacity, he taught those students how to properly and safely design all
types of products for the workplace.
Dr. Johnston equated the hazard posed in this caseCi.e., pallet-jack
wheels falling into the uncovered rear gutterCwith similar
hazards he had examined, including a gutter or crack in a sidewalk or walking
surface in which a child=s roller blade or wheel could become
lodged, or a wheel chair ramp. Dr. Johnston characterized the hazard in this
case as Anothing more than
a gap in a walking surface, a surface that truck drivers have to walk across
and also have to run dollies and so forth.@ His solution was
to cover or fill the gutter. Dr. Johnston acknowledged that he had not
designed and did not intend to design a safer alternative. Champion sought to
use Dr. Johnston=s testimony to establish that the
alternative designs, as previously described at trial by Hofstetter and
Champion, met the requirements of section 82.002(b) in substantially reducing
or eliminating the risk of injury.
As with one of the experts in the products-liability case Gammill
v. Jack Williams Chevrolet, Inc., Dr. Johnston in this case is not
qualified to offer testimony as to any alleged design defect with the trailer=s uncovered rear
gutter.[14]
See 972 S.W.2d at 719. AJust as not every physician is qualified
to testify as an expert in every medical malpractice case, not every mechanical
engineer is qualified to testify as an expert in every products liability case.@ Id. Dr.
Johnston may have demonstrated his experience in designing workplace products
and in designing solutions for hazards in walking surfaces, but he was not
shown to have any training, experience, or special knowledge in the design or
manufacture of refrigerated trailers or their relevant components, i.e, the
rear uncovered gutter of refrigerated trailers that served a particular purpose
for the trailer=s drainage. See id. at 718.
Although Dr. Johnston held the same undergraduate degree in
mechanical engineering as some of Great Dane=s engineers, this
degree did not demonstrate that Dr. Johnston possessed specialized knowledge
about the refrigerated trailer=s uncovered gutter and drainage system. See
id. (requiring an expert to possess special knowledge on the very matter
for which the opinion is offered). Dr. Johnston=s deposition
revealed that he had participated in cases with accidents involving pallet
jacks and loading or unloading cargo in trailers. However, he had no
experience or specialized knowledge involving uncovered gutters or alternative
designs for the gutters in refrigerated trailers. On this record, Dr. Johnston
was not shown to have any expertise that would qualify him to testify about
any alleged design defects in a refrigerated trailer=s uncovered gutter
or the proposed alternative designs. See id.
Dr. Johnston demonstrated no specialized knowledge
regarding the particular design of this uncovered gutter, and, accordingly, his
testimony as to Champion=s proposed alternative designs did not
rise above mere speculation. See Broders, 924 S.W.2d at 150B54. For this
reason, Dr. Johnston was not qualified to offer an opinion as to any alleged
design defect of the gutter at issue. See
Tex. R. Evid. 702; Gammill,
972 S.W.2d at 719. Therefore, the trial court did not abuse its discretion in
excluding Dr. Johnston=s testimony as to design defect. See
Gammill, 972 at 719. Because we conclude Dr. Johnston was not qualified
under Rule 702, we do not address the merits of whether the trial court
assessed the expert=s reliability under an improper standard.
Accordingly, we overrule Champion=s second issue.
Having overruled Champion=s two issues on
appeal, we affirm the trial court=s judgment.
/s/ Kem Thompson Frost
Justice
Panel consists of Chief Justice Hedges, Justice Frost, and
Senior Justice Hudson.*
[1] Although Champion also asserted claims against
Penske and another party, the record reflects that Champion accepted settlement
offers from those two parties and that the claims against those parties were
dismissed with prejudice.
[2] The parties used the terms Agutter@ or Adrain@
interchangeably in reference to this open space. For consistency, we use the
term Agutter.@
The gutter measured approximately 2-1/3 inches wide and 1-1/4 inches deep.
[3] The parties refer to a pallet jack as a
manually-operated piece of equipment that allows a single operator to place
fork-like arms beneath a pallet, lift the pallet with the aid of hydraulics,
and move the pallet on small wheels.
[4] Although he could not determine the source of the
noise, Champion said the noise could have been attributed to kinks in the chain
that attached the lift gate platform to the trailer.
[5] Champion had rested subject to calling Champion=s wife as a witness the following day.
[6] Unless otherwise specified, all references to a Asection@
are to the Texas Civil Practice and Remedies Code.
[7] The record reflects that Great Dane representatives
discouraged use of pallet jacks on the type of ridged flooring found in this
refrigerated trailer because the pallet jacks damaged the floor. Great Dane
manufactures refrigerated trailers with flat floors intended for use with
pallet jacks.
[8] Although at trial the parties referred to two
different kinds of dock plates used by trailers, a Adock plate@ as
used in this circumstance is an L-shaped piece of metal that is several inches
wide. The shorter piece of metal rests in the gutter of the trailer, and the
longer piece covers the open gutter and is tack-welded to the trailer=s ridged floor. The dock plates are evenly spaced
across the threshold of the gutter to cover the gutter in spots, but not
entirely. The dock plates were designed by Great Dane to protect the edges of
the ridged flooring where the ridged flooring meets the gutter when loading and
unloading cargo at a warehouse loading dock.
[9] At submission, Champion made reference to a fifth
alternative design, filling the gutter with square boxed tubing. Champion
claims evidence of this design was raised at trial through the testimony of a
representative of the manufacturer of the lift gate platform. However,
Champion, in his appellate brief, neither identified nor addressed this fifth
alternative design and he has provided no analysis or citations to the
record or legal authorities as to this alternative design. Therefore, Champion
has waived this issue. See Tex.
R. App. P. 38.1(h); San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex. App.CHouston [14 Dist.] 2005, no pet.)
(holding that, even though courts interpret briefing requirements reasonably
and liberally, a party asserting error on appeal still must put forth some
specific argument and analysis citing the record and authorities in support of
the party=s argument).
[10] Champion described this alternative design at trial
as a piece of steel or Awire mesh@
with diamond-shaped square holes.
[11] Champion=s
attorney questioned Hofstetter about an alternative design involving a metal
grate, made of aluminum or steel, which he described as being similar to a
grate used in a barbecue pit.
[12] Furthermore, Hofstetter could not determine from the
picture whether the trailer in the photo had ridged flooring like the trailer
at issue in this case. At submission, Champion suggested that Great Dane could
have manufactured wider dock plates to span the length of the gutter, leaving
only the ends of the gutter near the drain exposed. Champion does not point to
evidence in the record that this design was raised as an alternative design at
trial. Likewise, Champion did not identify this alternative design in his
appellate brief nor address how this design meets the requirements of section
82.005. See Tex. R. App. P.
38.1(h); San Saba
Energy, L.P., 171
S.W.3d at 338.
[13] In his appellate brief, Champion points to his
testimony at trial that the accident would not have occurred if the rear gutter
had been covered. This testimony was in reference to the steel grate like the
one he saw in the 1970s. As discussed above, Champion did not produce evidence
to establish that this alternative design met the requirements of section
82.005.
[14] In contrast, a second expert witness in Gammill
was shown to be qualified to testify about defects concerning a rear seat belt
of the automobile at issue. See Gammill, 972 S.W.2d at 719. Although
this second expert in Gammill, a licensed engineer, had a long academic
career, similar to Dr. Johnston in this case, this second expert researched
vehicle restraint systems, including systems like the one at issue, and had published
articles on the subject. See id. This expert testified in numerous
cases involving allegations of seat belt defects. See id. We factually
distinguish Dr. Johnston from this expert in Gammill because, as shown
in his deposition testimony, Dr. Johnston had not conducted research on
uncovered gutters in refrigerated trailers, nor had he published articles on
the subject or testified in any cases involving this type of allegation. See
id.
* Senior Justice J. Harvey Hudson sitting by
assignment.
| {
"pile_set_name": "FreeLaw"
} |
375 F.Supp. 722 (1974)
Mimi CUTLER et al., Plaintiffs,
v.
CIVIL AERONAUTICS BOARD, Defendant.
Civ. A. No. 74-8.
United States District Court, District of Columbia.
April 3, 1974.
*723 Larry P. Ellsworth, Ronald L. Plesser, Washington, D. C., for plaintiffs.
Paul M. Tschirhart, Asst. U. S. Atty., Washington, D. C., for defendant.
MEMORANDUM AND ORDER
GESELL, District Judge.
The Aviation Consumer Action Project (ACAP) and Mimi Cutler, a financial analyst for ACAP, brought this action under the Freedom of Information Act, 5 U.S.C. § 552, seeking to compel production by the Civil Aeronautics Board (CAB) of certain contingency plans for the cutback of airline services in the event that the available fuel supply is reduced by 15 percent from the November 1, 1973, allocation level. Defendant resists production on the ground that these documents fall within the third and fourth exemptions from the Act's requirement of disclosure. The matter is now before the Court on defendant's motion to dismiss or, in the alternative, for summary judgment, the plaintiffs' cross-motion for partial summary judgment as to the applicability of the third exemption, and the defendant's opposition thereto.
The contingency plans at issue were filed with the CAB by twenty air carriers at the Board's specific request. Shortly thereafter, plaintiffs sought access to the plans, but the CAB staff refused to comply on the ground that the plans were confidential. Plaintiffs appealed that refusal to the Board. Before the Board acted on the appeal, three of the carriers involved formally requested that their plans be kept confidential under 49 U.S.C. § 1504, which provides that:
The [Civil Aeronautics] Board or Administrator shall order [any document filed pursuant to this chapter] withheld from public disclosure when [any person has filed a written objection to such disclosure and], in their judgment, a disclosure of such information would adversely affect the interests of such person and is not required in the interest of the public.
When the Board failed to take any action on their appeal within the period provided under its regulations, plaintiffs proceeded to file this action on January 3, 1974. Five days later, the Board issued Order 74-1-54, barring public disclosure of any of the submitted plans. In so doing, it treated the three requests for confidentiality as inferentially expressing the desire of all of the carriers involved. On the following day, the Board informed plaintiffs of its Order and declined to produce any of the requested plans.
The Board relies primarily on the third exemption in the Freedom of Information Act, which provides that the Act does not require disclosure of "matters that are . . . specifically exempted from disclosure by statute." 5 U.S.C. § 552(b)(3). The House Report on the Act indicates that there were in existence in 1967 nearly 100 federal statutes which would qualify under this exemption, but no effort was made to enumerate them.[1] The Board argues *724 that section 1504 is such a statute, because it sets up an administrative procedure for regulating disclosure which arguably dispenses with the need for legislative regulation under the Freedom of Information Act.
The Board fails, however, to give sufficient meaning to the Act's requirement that documents be specifically exempted by statute. If these words are to have any meaning at all, they must require that the statutes in question either clearly identify some class of documents to be kept confidential or, at the very least, prescribe specific standards by which an administrative agency can determine the propriety of disclosure. Stretch v. Weinberger, 495 F.2d 639 (3d Cir. 1974); Dellums v. H. E. W., No. 181-72 (D.D.C. July 11, 1973).[2]
Section 1504 satisfies neither of these criteria. It does not require the CAB to withhold all documents submitted to it, nor does it give the Board guidance in determining which documents to disclose. Instead, it leaves the question of public access to the virtually unbridled discretion of the Board. By providing that requests for confidentiality may only be rejected upon a finding that disclosure is required "in the interest of the public," section 1504 does little more than formalize the procedure normally followed by all administrative agencies prior to the enactment of the Freedom of Information Act. Documents withheld under such a procedure are exempted from disclosure by the CAB, not by statute, and there is no indication that Congress intended to sanction such broad discretion to impose secrecy in the face of its clear desire to increase public access to government information. See Environmental Protection Agency v. Mink, 410 U.S. 73, 80, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973); Getman v. N. L. R. B., 146 U.S.App.D.C. 209, 450 F.2d 670, 672 (1971); Soucie v. David, 145 U.S.App.D.C. 144, 448 F.2d 1067, 1080 (1971).
On the other hand, it appears that some of the information contained in the contingency plans may constitute confidential commercial or financial information within the terms of the fourth exemption. 5 U.S.C. § 552(b)(4). However, the Court cannot accept the Board's conclusory assertion that all of the plans must be withheld in their entirety. The United States Court of Appeals for the District of Columbia Circuit has established a procedure for determining the applicability of the Act's exemptions, see Vaughn v. Rosen, 157 U.S.App.D.C. 340, 484 F.2d 820 (1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974), and that procedure should be carried out promptly in this action.
Accordingly, the Board shall index the plans in question to indicate precisely which portions of which documents are privileged under the fourth exemption, specifying in a detailed, nonconclusory manner the reasons why each designated portion must be kept confidential. Opposing counsel should meet and attempt to reach agreement on as many of these *725 allegedly privileged portions as possible. To facilitate these negotiations, concealed portions should be described to plaintiffs with as much particularity as possible, consistent with the Board's perceived duty of confidentiality. Thereafter, the Board shall, by April 17, 1974, submit for the Court's in camera inspection all portions still in controversy, if any, along with the index indicating the precise reasons for refusing to disclose each portion. Plaintiffs shall respond by April 22, 1974, addressing their arguments to the specific portions indicated.
For the reasons and to the extent set forth in this Memorandum and Order, plaintiffs' motion for partial summary judgment is granted and defendant's motion to dismiss is denied. Defendant's motion for summary judgment is denied without prejudice to renewal after completion of the procedure described above.
So ordered.
NOTES
[1] H.R.Rep.No.1497, 89th Cong., 2d Sess. 10, U.S.Code Cong. & Admin.News, p. 2418 (1966). The emphasis that the parties and some courts have placed upon this comment in the House Report is unwarranted. In the first place, this Circuit has held that the Senate rather than the House Report is the authoritative interpretation of the Freedom of Information Act. Getman v. N.L.R.B., 146 U.S.App.D.C. 209, 450 F.2d 670, 673 n. 8 (1971). Moreover, attempts to track down the "nearly 100 statutes" in question have proved frustrating. The Attorney General's Memorandum on the Public Information Section of the Administrative Procedure Act (1967), at 31, indicated that Congress had been relying upon a 1962 survey by the Administrative Conference of the United States, but the Conference has since announced that no such survey was ever conducted. Memorandum to Staff Attorneys by John F. Cushman, Executive Director, Administrative Conference of the United States, March 15, 1974. Kenneth Culp Davis has suggested that a Committee Print entitled Federal Statutes on the Availability of Information, House Committee on Government Operations, 86th Cong., 2d Sess. (1960), might prove to be a useful compilation, see K. Davis, The Information Act: A Preliminary Analysis, 34 U.Chi.L.Rev. 761, 786 (1967), but at least one statute in that list has already been found insufficiently specific to fall within the third exemption. See Grumman Aircraft Engineering Corp. v. Renegotiation Bd., 138 U.S.App.D.C. 147, 425 F.2d 578, 580 n. 5 (1970). The difficulties inherent in this kind of speculation enforce the Court's conclusion that the third exemption should be interpreted simply by construing its terms.
[2] This reasoning may also have prompted the Court in Robertson v. Shaffer, C.A. No. 1970-71 (D.D.C.1972) to order, without opinion, the disclosure of various CAB documents in the face of § 1504. The Government is presently appealing that decision, but unless and until the Court of Appeals rules otherwise, this Court will apply the principles set forth in this Memorandum and apparently adopted in both Robertson and Dellums.
| {
"pile_set_name": "FreeLaw"
} |
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/27/2018 09:09 AM CDT
- 210 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
CULLINANE v. BEVERLY ENTERS. - NEB.
Cite as 300 Neb. 210
Thomas Cullinane, as Special A dministrator for the
Estate of Helen Cullinane, deceased, appellee, v.
Beverly Enterprises - Nebraska, Inc., doing business
as Golden LivingCenter - Valhaven, appellant, and
Thomas Larson, Jr., DPM, et al., appellees.
___ N.W.2d ___
Filed June 15, 2018. No. S-17-486.
1. Arbitration and Award. Arbitrability presents a question of law.
2. ____. Whether a stay of proceedings should be granted and arbitration
required is a question of law.
3. Judgments: Jurisdiction. A jurisdictional issue that does not involve a
factual dispute presents a question of law.
4. Judgments: Appeal and Error. When reviewing questions of law, an
appellate court resolves the questions independently of the lower court’s
conclusions.
5. Arbitration and Award: Appeal and Error. The standard of review as
to the issue of arbitrability summarily tried to the court is the same as in
a bench trial of a law action.
6. Judgments: Appeal and Error. In a bench trial of a law action, a trial
court’s factual findings have the effect of a jury verdict and will not be
set aside on appeal unless clearly wrong.
7. ____: ____. In reviewing a judgment awarded in a bench trial of a law
action, an appellate court does not reweigh evidence, but considers the
evidence in the light most favorable to the successful party and resolves
evidentiary conflicts in favor of the successful party, who is entitled to
every reasonable inference deducible from the evidence.
8. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it, and this is so even
where neither party has raised the issue.
9. Jurisdiction: Final Orders: Appeal and Error. For an appellate court
to acquire jurisdiction of an appeal, there must be a final order entered
- 211 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
CULLINANE v. BEVERLY ENTERS. - NEB.
Cite as 300 Neb. 210
by the court from which the appeal is taken; conversely, an appellate
court is without jurisdiction to entertain appeals from nonfinal orders.
10. Federal Acts: Arbitration and Award: Final Orders: Appeal and
Error. In order to determine whether state law governs the finality for
purposes of appeal of an order denying a motion to compel arbitration
under the Federal Arbitration Act, courts must first apply state proce-
dural rules to determine whether the order is final for purposes of appeal
and then determine whether the result of that inquiry would undermine
the goals and policies of the act.
11. ____: ____: ____: ____. A direct appeal from an order denying a motion
to compel arbitration furthers the objectives of the Federal Arbitration
Act by permitting final resolution of the issue of arbitrability without
having to first conclude a judicial proceeding on the merits, at which
point the arbitral remedy would be rendered essentially meaningless.
12. Final Orders: Appeal and Error. Under Neb. Rev. Stat. § 25-1902
(Reissue 2016), the three types of final orders which may be reviewed
on appeal are (1) an order which affects a substantial right and which
determines the action and prevents a judgment, (2) an order affecting
a substantial right made during a special proceeding, and (3) an order
affecting a substantial right made on summary application in an action
after judgment is rendered.
13. Arbitration and Award: Final Orders. The denial of a motion to com-
pel arbitration is a final, appealable order because it affects a substantial
right and is made in a special proceeding.
14. Arbitration and Award. Arbitration is a matter of contract, and a party
cannot be required to submit to arbitration any dispute which he or she
has not agreed so to admit.
15. Federal Acts: Arbitration and Award: Contracts. If arbitration arises
from a contract involving interstate commerce, it is governed by the
Federal Arbitration Act.
16. Constitutional Law: Waiver: Intent. A party has a constitutional
right to adjudication of a justiciable dispute, and the law will not find a
waiver of that right absent direct and explicit evidence of actual intent
of a party’s agreement to do so.
17. Arbitration and Award. Unless the parties clearly and unmistakably
provide otherwise, the question of whether the parties agreed to arbitrate
is to be decided by the court, not the arbitrator.
18. Arbitration and Award: Contracts. Disputes about arbitrability for
a court to decide include threshold questions such as whether the par-
ties are bound by a given arbitration clause or whether an arbitration
clause in a concededly binding contract applies to a particular type of
controversy.
- 212 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
CULLINANE v. BEVERLY ENTERS. - NEB.
Cite as 300 Neb. 210
19. Arbitration and Award: Intent. Parties can agree to arbitrate gateway
questions of arbitrability, such as whether the parties have agreed to
arbitrate or whether their agreement covers a particular controversy, if
they do so with clear and unmistakable intent.
20. Arbitration and Award. A valid delegation clause requires the court to
refer a claim to arbitration to the arbitrator to decide gateway arbitrabil-
ity issues.
21. Arbitration and Award: Contracts. Enforcement of an arbitration
agreement involves two analytical steps: The first is contract forma-
tion—whether the parties entered into any arbitration agreement at all.
The second involves contract interpretation to determine whether this
claim is covered by the arbitration agreement.
22. Federal Acts: Arbitration and Award: Words and Phrases. A delega-
tion clause is an agreement to arbitrate a threshold issue and is simply
an additional, severable, antecedent arbitration agreement the party
seeking arbitration asks the court to enforce, and the Federal Arbitration
Act operates on this additional arbitration agreement just as it does on
any other.
23. Federal Acts: Arbitration and Award: Contracts. Arbitration in
Nebraska is governed by the Uniform Arbitration Act as enacted in
Nebraska, but if arbitration arises from a contract involving interstate
commerce, it is governed by the Federal Arbitration Act.
24. Federal Acts: Arbitration and Award. Where a transaction falls within
the scope of the Federal Arbitration Act, the substantive issue of whether
the motion to compel arbitration should be granted is a question of fed-
eral law.
25. ____: ____. Under 9 U.S.C. § 4 (2012) of the Federal Arbitration Act,
the court shall hear the parties, and upon being satisfied that the mak-
ing of the agreement for arbitration or the failure to comply therewith
is not in issue, the court shall make an order directing the parties to
proceed to arbitration in accordance with the terms of the agreement. If
the making of the arbitration agreement or the failure, neglect, or refusal
to perform the same be in issue, the court shall proceed summarily to
the trial thereof, if no jury trial be demanded by the party alleged to be
in default.
26. Arbitration and Award. Under Neb. Rev. Stat. § 25-2603(a) (Reissue
2016), on application of a party showing a valid arbitration agreement
and the opposing party’s refusal to arbitrate, the court shall order the
parties to proceed with arbitration, but if the opposing party denies the
existence of the agreement to arbitrate, the court shall proceed summar-
ily to the determination of the issue so raised and shall order for the
moving party; otherwise, the application shall be denied.
- 213 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
CULLINANE v. BEVERLY ENTERS. - NEB.
Cite as 300 Neb. 210
27. Federal Acts: Arbitration and Award. Neb. Rev. Stat. § 25-2603
(Reissue 2016) does not defeat the Federal Arbitration Act’s objective,
expressed in 9 U.S.C. § 4 (2012), that if the making of the arbitration
agreement or the failure, neglect, or refusal to perform the same be in
issue, the court shall proceed summarily to the trial thereon.
28. Appeal and Error. An appellate court will not consider an issue on
appeal that was not passed upon by the trial court.
29. Federal Acts: Arbitration and Award: Contracts. The Federal
Arbitration Act makes arbitration agreements valid, irrevocable, and
enforceable, save upon such grounds as exist at law or in equity for the
revocation of any contract.
30. Contracts: Fraud. In the absence of fraud, one who signs an instrument
without reading it, when one can read and has had the opportunity to do
so, cannot avoid the effect of one’s signature merely because one was
not informed of the contents of the instrument.
31. ____: ____. The doctrine that the carelessness or negligence of a party
in signing a writing estops him or her from afterward disputing the
contents of such writing is not applicable in a suit thereon between the
original parties thereto when the defense is that such writing, by reason
of fraud, does not embrace the contract actually made.
32. ____: ____. Fraud in the execution goes to the very existence of the
contract, such as where a contract is misread to a party or where one
paper is surreptitiously substituted for another, or where the party is
tricked into signing an instrument he or she did not mean to execute.
33. ____: ____. Fraud in the inducement goes to the means used to induce
a party to enter into a contract; in such cases, the party knows the char-
acter of the instrument and intends to execute it, but the contract may be
voidable if the party’s consent was obtained by false representations.
34. Fraud: Proof. A fraudulent misrepresentation claim requires a plaintiff
to establish the following elements: (1) A representation was made; (2)
the representation was false; (3) when made, the representation was
known to be false or made recklessly without knowledge of its truth and
as a positive assertion; (4) the representation was made with the inten-
tion that the plaintiff should rely on it; (5) the plaintiff did so rely on it;
and (6) the plaintiff suffered damage as a result.
35. Fraud. Fraudulent misrepresentations may consist of half-truths calcu-
lated to deceive, and a representation literally true is fraudulent if used
to create an impression substantially false.
36. ____. Whether a party’s reliance upon a misrepresentation was reason-
able is a question of fact.
37. ____. A party is justified in relying upon a representation made to the
party as a positive statement of fact when an investigation would be
required to ascertain its falsity.
- 214 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
CULLINANE v. BEVERLY ENTERS. - NEB.
Cite as 300 Neb. 210
38. Fraud: Proof: Circumstantial Evidence. In fraud case, direct evidence
is not essential, but proof of fraud drawn from circumstantial evidence
must not be guesswork or conjecture; such proof must be rational
and logical deductions from facts and circumstances from which they
are inferred.
39. Trial. Under Neb. Rev. Stat. § 25-1127 (Reissue 2016), in the absence
of a request by a party for specific findings, a trial court is not required
to make detailed findings of fact and need only make its findings gener-
ally for the prevailing party.
40. Trial: Judgments: Evidence: Appeal and Error. Where trial is to the
court and no request for specific findings is made, if there is a conflict
in the evidence, an appellate court, in reviewing the judgment rendered,
will presume that controverted facts were decided by the trial court
in favor of the successful party and the findings will not be disturbed
unless clearly wrong.
41. Affidavits. An affidavit is admissible in certain enumerated situations,
including motion practice, which includes the use of affidavits relating
to preliminary, collateral, and interlocutory matters.
42. Judgments: Evidence: Appeal and Error. Even though an appellate
court is, in the absence of oral testimony, equally capable as the trial
court of examining the evidence and drawing conclusions therefrom
and is under a duty to do so, and even though a case was submitted
to the trial court without oral evidence, the duty of the appellate court
to evaluate the facts does not extend to the right or duty to make an
independent evaluation thereof without regard to the findings below.
In such a case, an appellate court is loath to overturn the findings of
an experienced trial judge unless in the opinion of the court they are
clearly wrong.
43. Affidavits. Statements in affidavits as to opinion, belief, or conclusions
of law are of no effect.
Appeal from the District Court for Douglas County: Gregory
M. Schatz, Judge. Affirmed.
Jeanelle R. Lust and Charles E. Wilbrand, of Knudsen,
Berkheimer, Richardson & Endacott, L.L.P., for appellant.
Shayla M. Reed, of Reed Law Offices, P.C., L.L.O., for
appellee Thomas Cullinane.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, and
Funke, JJ.
- 215 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
CULLINANE v. BEVERLY ENTERS. - NEB.
Cite as 300 Neb. 210
Funke, J.
Beverly Enterprises - Nebraska, Inc., doing business as
Golden LivingCenter - Valhaven (GLCV), appeals the denial
of its motion to dismiss or stay proceedings and compel
arbitration. GLCV moved to enforce an agreement to arbi-
trate against Thomas Cullinane, as special administrator for
the estate of his mother, Helen Cullinane; Thomas had filed
a wrongful death action against GLCV. Thomas objected to
GLCV’s motion, and the court ruled in his favor, finding the
execution of the “Alternative Dispute Resolution Agreement”
(the ADR Agreement) was not binding upon Helen or her
estate. GLCV appealed, and for the reasons set forth below,
we affirm.
I. BACKGROUND
Helen was a resident of GLCV, a skilled nursing facility
located in Valley, Nebraska. She was 88 years old at the time of
her admission in 2010 and suffered from dementia. She passed
away on February 2, 2015. Thomas became the special admin-
istrator of Helen’s estate and filed a wrongful death action
against GLCV on behalf of the estate.
GLCV filed a motion to dismiss or, in the alternative,
stay proceedings and compel arbitration pursuant to § 4 of
the Federal Arbitration Act (FAA),1 in accordance with the
terms of a written arbitration agreement between GLCV and
Helen. GLCV asserted that Eugene Cullinane, Helen’s hus-
band, age 84, while acting as Helen’s attorney in fact, agreed to
resolve disputes through arbitration when he signed the ADR
Agreement on September 28, 2010, the date Eugene and Helen
were admitted to the facility.
The front page of the ADR Agreement contains a title
written in bold and capitalized letters and large font which
states: “Alternative Dispute Resolution Agreement.” The fol-
lowing language, in bold and capitalized letters, appears
1
9 U.S.C. §§ 1 to 16 (2012).
- 216 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
CULLINANE v. BEVERLY ENTERS. - NEB.
Cite as 300 Neb. 210
below the title: “This agreement is not a condition of admis-
sion to or continued residence in the facility.” The ADR
Agreement states:
The Parties agree that any disputes covered by this
Agreement (“Covered Disputes”) that may arise between
them shall be resolved exclusively by an ADR process
that shall include mediation and, where mediation is
not successful, binding arbitration. The parties to this
Agreement acknowledge and agree that upon execu-
tion by Resident, this Agreement becomes part of the
Admission Agreement, and that the Admission Agreement
evidences a transaction in interstate commerce governed
by the [FAA].
The ADR Agreement further includes the following lan-
guage, in bold and capitalized letters:
The parties understand, acknowledge, and agree that
they are selecting a method of resolving disputes without
resorting to lawsuits or the courts, and that by entering
into this agreement, they are giving up their constitutional
right to have their disputes decided in a court of law by a
judge or jury . . . .
The ADR Agreement provides: “Covered Disputes, includ-
ing the determination of the scope or applicability of this
Agreement, shall be determined by arbitration . . . .” A sec-
tion in the agreement titled “Resident’s Understanding” states:
“The Resident understands that . . . his or her signing of this
Agreement is not a condition of admission to or residence in
the Facility . . . .” The signature page of the document states in
bold and capitalized letters and in large font: “This agreement
governs important legal rights. Please read it carefully and in
its entirety before signing.”
At the hearing on GLCV’s motion to compel arbitration,
GLCV offered the affidavit of Trisha Weberg, the business
manager of GLCV. The affidavit included a copy of the
durable power of attorney signed by Helen on July 23, 2008,
which appointed Eugene as her attorney in fact. Weberg, who
- 217 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
CULLINANE v. BEVERLY ENTERS. - NEB.
Cite as 300 Neb. 210
was not present when the ADR Agreement was executed,
stated her personal knowledge concerning the facility’s rou-
tine procedure with respect to its resident admissions. Weberg
stated that when she assisted in the admission process, she
would do the following: present the ADR Agreement to the
resident and allow the resident and the resident’s family mem-
bers to read the paperwork; explain that by signing the ADR
Agreement, the resident would waive his or her right to a
trial and agree to submit any dispute to arbitration, but state
that signing the ADR Agreement was not required to become
a resident at the facility; obtain the resident’s signature; and
sign the document on behalf of GLCV. Weberg stated it is her
belief that the normal procedure was followed with regard
to Helen’s admission. GLCV did not present an affidavit
from its employee who executed the ADR Agreement on
its behalf.
Thomas offered affidavits from himself and Eugene.
According to Eugene’s affidavit, he and Helen sought admis-
sion to GLCV when Helen was transferred from the hospital
on September 28, 2010. Helen was taken to a room, and a
GLCV staff member led Eugene and Thomas into a small
office. Eugene stated, “[W]e sat down and the female staff
member presented me with a stack of papers which she said
was ‘the paperwork I needed to sign to admit my wife’ and
another stack to admit myself.” He stated, “The staff member
handled the papers, turned the pages and told me she needed
my signature ‘here’ and directed me where to sign.” Eugene
conceded that he signed the ADR Agreement, but stated that he
did so because it was his understanding that if he did not sign
the paperwork, Helen would not have been admitted to receive
health care. He stated he was not informed that any docu-
ment in the stack of papers was optional, that the paperwork
included an arbitration agreement, or that he was waiving his
or his wife’s right to a jury trial. Eugene stated he would have
not signed the ADR Agreement had he known what it meant
and that it was not required.
- 218 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
CULLINANE v. BEVERLY ENTERS. - NEB.
Cite as 300 Neb. 210
Thomas stated in his affidavit that when he and Eugene met
with the staff member in the office, she specifically stated that
“‘these are standard forms we need you to sign.’” Thomas
stated she turned the stack of papers to face Eugene, flipped
up the bottom half of the pages, and pointed to the place where
she wanted him to sign. He stated that he was present during
the entire meeting and that at no time did the staff member
state any of the documents were optional or would have the
effect of waiving legal rights.
Based on the evidence, the district court entered an order
which found that “Eugene[’s] execution of the arbitration
agreement cannot be binding upon Helen . . . , nor her estate,
and that [GLCV’s] motion should be dismissed, and [GLCV]
given two weeks to further plead to [Thomas’] Complaint.”
II. ASSIGNMENTS OF ERROR
GLCV assigns, summarized, that the district court erred in
(1) dismissing GLCV’s motion to dismiss or stay proceed-
ings and compel arbitration, (2) failing to compel Thomas
to arbitration, (3) determining that Eugene’s execution of the
ADR Agreement was not binding upon Helen or her estate,
(4) implicitly ruling that Eugene’s signature was obtained
by fraud, and (5) failing to support its decision with any
legal analysis.
III. STANDARD OF REVIEW
[1-4] Arbitrability presents a question of law.2 Whether a
stay of proceedings should be granted and arbitration required
is also a question of law.3 Likewise, a jurisdictional issue
that does not involve a factual dispute presents a question of
law.4 When reviewing questions of law, an appellate court
2
Citizens of Humanity v. Applied Underwriters, 299 Neb. 545, 909 N.W.2d
614 (2018).
3
Good Samaritan Coffee Co. v. LaRue Distributing, 275 Neb. 674, 748
N.W.2d 367 (2008).
4
State v. Irish, 298 Neb. 61, 902 N.W.2d 669 (2017).
- 219 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
CULLINANE v. BEVERLY ENTERS. - NEB.
Cite as 300 Neb. 210
resolves the questions independently of the lower court’s
conclusions.5
[5] We have not yet had the opportunity to determine a
standard of review when the issue of arbitrability is summar-
ily tried to the court. However, we see no reason why the stan-
dard of review would be different from the standard of review
in a bench trial of a law action.
[6,7] In a bench trial of a law action, a trial court’s fac-
tual findings have the effect of a jury verdict and will not
be set aside on appeal unless clearly wrong.6 In reviewing a
judgment awarded in a bench trial of a law action, an appel-
late court does not reweigh evidence, but considers the evi-
dence in the light most favorable to the successful party and
resolves evidentiary conflicts in favor of the successful party,
who is entitled to every reasonable inference deducible from
the evidence.7
IV. ANALYSIS
1. Jurisdiction
[8,9] Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it.8 This is so even where,
as here, neither party has raised the issue.9 For an appel-
late court to acquire jurisdiction of an appeal, there must be
a final order entered by the court from which the appeal is
taken; conversely, an appellate court is without jurisdiction to
5
Frohberg Elec. Co. v. Grossenburg Implement, 297 Neb. 356, 900 N.W.2d
32 (2017).
6
See Wynne v. Menard, Inc., 299 Neb. 710, 910 N.W.2d 96 (2018). See,
also, Webb v. American Employers Group, 268 Neb. 473, 684 N.W.2d 33
(2004).
7
Eicher v. Mid America Fin. Invest. Corp., 275 Neb. 462, 748 N.W.2d 1
(2008).
8
Boyd v. Cook, 298 Neb. 819, 906 N.W.2d 31 (2018).
9
Karo v. NAU Country Ins. Co., 297 Neb. 798, 901 N.W.2d 689 (2017).
- 220 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
CULLINANE v. BEVERLY ENTERS. - NEB.
Cite as 300 Neb. 210
entertain appeals from nonfinal orders.10 In this case, we must
decide whether the order denying GLCV’s motion to compel
arbitration was a final, appealable order.
Nebraska has adopted the Uniform Arbitration Act (UAA),
which is codified in Neb. Rev. Stat. §§ 25-2601 to 25-2622
(Reissue 2016). Section 25-2603(a) of the UAA authorizes a
party to a judicial proceeding to apply for an order compelling
arbitration of the dispute. The UAA further provides that an
appeal may be taken from an order denying such an applica-
tion, pursuant to § 25-2620(a)(1).11
But GLCV did not invoke the UAA in its motion to compel
arbitration. Instead, GLCV filed its motion to compel arbitra-
tion pursuant to the FAA. Thus, the provision of the UAA
permitting an appeal from an order denying an application to
compel arbitration is inapplicable to this case.
Section 4 of the FAA authorizes a U.S. district court to enter-
tain a petition to compel arbitration if the court would have
jurisdiction, save for the arbitration agreement, over a suit aris-
ing out of the controversy between the parties,12 while § 16 of
the FAA governs appeals and provides in part that “[a]n appeal
may be taken from . . . (1) an order . . . (B) denying a petition
under section 4 of this title to order arbitration to proceed.”13
The FAA, however, does not indicate whether its provisions
relating to appeals are applicable in state court actions, such as
the instant matter, where a party seeks to enforce an arbitration
clause under the FAA.
[10,11] In Webb v. American Employers Group,14 we con-
cluded that in order to determine whether state law governs the
finality for purposes of appeal of an order denying a motion
10
Gillpatrick v. Sabatka-Rine, 297 Neb. 880, 902 N.W.2d 115 (2017).
11
Pearce v. Mutual of Omaha Ins. Co., 293 Neb. 277, 876 N.W.2d 899
(2016).
12
9 U.S.C. § 4.
13
9 U.S.C. § 16.
14
Webb, supra note 6.
- 221 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
CULLINANE v. BEVERLY ENTERS. - NEB.
Cite as 300 Neb. 210
to compel arbitration under the FAA, we must first apply our
state procedural rules to determine whether the order is final
for purposes of appeal and then determine whether the result
of that inquiry would undermine the goals and policies of the
FAA. We determined that State procedural rules, which do
not defeat the FAA’s objectives, govern the determination of
whether an order denying a motion to compel arbitration is
final for purposes of appeal.15 We found that a direct appeal
from an order denying a motion to compel arbitration furthered
the objectives of the FAA by permitting final resolution of the
issue of arbitrability without having to first conclude a judicial
proceeding on the merits, at which point the arbitral remedy
would be rendered essentially meaningless.16
[12,13] Under Neb. Rev. Stat. § 25-1902 (Reissue 2016),
the three types of final orders which may be reviewed on
appeal are (1) an order affecting a substantial right in an
action that, in effect, determines the action and prevents a
judgment; (2) an order affecting a substantial right made dur-
ing a special proceeding; and (3) an order affecting a substan-
tial right made on summary application in an action after a
judgment is rendered.17 Ultimately, in Webb, we held that the
denial of a motion to compel arbitration under the FAA is a
final, appealable order under the second of these categories,
because it affects a substantial right and is made during a spe-
cial proceeding.18
In the instant matter, the order denying GLCV’s motion to
compel arbitration was made pursuant to a special proceed-
ing. The order affected GLCV’s substantial rights, namely its
legal, contractual right to the benefits of arbitration, which
15
See id. See, also, Speece v. Allied Professionals Ins. Co., 289 Neb. 75, 853
N.W.2d 169 (2014); Kremer v. Rural Community Ins. Co., 280 Neb. 591,
788 N.W.2d 538 (2010).
16
Webb, supra note 6.
17
In re Interest of Dana H., 299 Neb. 197, 907 N.W.2d 730 (2018).
18
Webb, supra note 6.
- 222 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
CULLINANE v. BEVERLY ENTERS. - NEB.
Cite as 300 Neb. 210
right was available to GLCV prior to the court’s order. The
district court’s order is therefore a final, appealable order.
2. ADR Agreement
[14] The U.S. Supreme Court has held that arbitration “‘is
a matter of contract and a party cannot be required to sub-
mit to arbitration any dispute which he has not agreed so to
submit.’”19 Thus, we must determine whether the district court
clearly erred when it determined that the ADR Agreement was
not binding upon Helen or her estate. In order to make that
determination, we must consider whether the ADR Agreement
comes within the scope of the FAA, whether the trial court
had the authority to decide the enforceability of the ADR
Agreement, and whether the trial court used the correct proce-
dure to decide the arbitrability of the agreement.
(a) ADR Agreement Within
Scope of FAA
[15] It is well settled that if arbitration arises from a con-
tract involving interstate commerce, it is governed by the
FAA.20 “Commerce” as defined by the FAA includes “com-
merce among the several States.”21 The U.S. Supreme Court
has held that the phrase “‘“involving commerce”’” requires a
broad interpretation in order to give effect to the FAA’s basic
purpose, which is to put arbitration provisions on the same
footing as a contract’s other terms.22
19
AT&T Technologies v. Communications Workers, 475 U.S. 643, 648, 106
S. Ct. 1415, 89 L. Ed. 2d 648 (1986). See, also, Zweiback Family L.P.
v. Lincoln Benefit Life Co., 299 Neb. 180, 907 N.W.2d 700 (2018), and
Kelley v. Benchmark Homes, Inc., 250 Neb. 367, 550 N.W.2d 640 (1996),
disapproved on other grounds, Webb, supra note 6.
20
Karo, supra note 9; Aramark Uniform & Career Apparel v. Hunan, Inc.,
276 Neb. 700, 757 N.W.2d 205 (2008).
21
9 U.S.C § 1.
22
Webb, supra note 6, 268 Neb. at 478, 684 N.W.2d at 39 (citing Allied-
Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 115 S. Ct. 834, 130 L. Ed.
2d 753 (1995)).
- 223 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
CULLINANE v. BEVERLY ENTERS. - NEB.
Cite as 300 Neb. 210
In the instant matter, GLCV brought the motion to com-
pel under § 4 of the FAA. In addition, Thomas’ complaint
alleges that Helen was a resident of Nebraska and that Beverly
Enterprises - Nebraska, Inc., doing business as GLCV, was a
California corporation; the ADR Agreement specifically states
that the admission agreement evidences a transaction involv-
ing interstate commerce; and neither party contends that the
FAA is not the applicable statutory authority. As a result, we
conclude that this case involves a transaction within the scope
of the FAA.
(b) Court Decides Enforceability
of ADR Agreement
[16-18] A party has a constitutional right to adjudication of
a justiciable dispute, and the law will not find a waiver of that
right absent direct and explicit evidence of actual intent of a
party’s agreement to do so.23 “Unless the parties clearly and
unmistakably provide otherwise, the question of whether the
parties agreed to arbitrate is to be decided by the court, not the
arbitrator.”24 This rule creates a rebuttable presumption that
the issue of arbitrability—whether the parties have agreed to
subject a dispute to arbitration—is an issue for judicial deter-
mination.25 Disputes about arbitrability for a court to decide
include threshold questions such as whether the parties are
bound by a given arbitration clause or whether an arbitration
clause in a concededly binding contract applies to a particular
23
Smith Barney, Inc. v. Painters Local Union No. 109, 254 Neb. 758, 579
N.W.2d 518 (1998); Tracy Broadcasting Corp. v. Telemetrix, Inc., 17 Neb.
App. 112, 756 N.W.2d 742 (2008).
24
AT&T Technologies, supra note 19, 475 U.S. at 649.
25
Id. See, BG Group PLC v. Republic of Argentina, ___ U.S. ___, 134 S. Ct.
1198, 188 L. Ed. 2d 220 (2014); Oxford Health Plans LLC v. Sutter, ___
U.S. ___, 133 S. Ct. 2064, 186 L. Ed. 2d 113 (2013); Howsam v. Dean
Witter Reynolds, Inc., 537 U.S. 79, 123 S. Ct. 588, 154 L. Ed. 2d 491
(2002); First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 115 S. Ct.
1920, 131 L. Ed. 2d 985 (1995).
- 224 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
CULLINANE v. BEVERLY ENTERS. - NEB.
Cite as 300 Neb. 210
type of controversy.26 Disputes over “formation of the par-
ties’ arbitration agreement” and “its enforceability or appli-
cability to the dispute” at issue are “matters . . . ‘the court’
must resolve.”27
[19,20] Conversely, parties can agree to arbitrate gateway
questions of arbitrability, such as whether the parties have
agreed to arbitrate or whether their agreement covers a particu-
lar controversy, if they do so with “clear and unmistakable”
intent.28 A contractual provision that delegates to the arbitra-
tor all questions regarding the scope or enforceability of an
arbitration provision is referred to as a “delegation clause.”29
A valid delegation clause requires the court to refer a claim
to arbitration to the arbitrator to decide gateway arbitrabil-
ity issues.30
[21,22] Enforcement of an arbitration agreement involves
two analytical steps: The first is contract formation—whether
the parties entered into any arbitration agreement at all. The
second involves contract interpretation to determine whether
this claim is covered by the arbitration agreement.31 Thus, if
the party seeking arbitration points to a purported delegation
clause, the court’s analysis is limited. It performs the first
step—an analysis of whether there is an agreement to arbitrate
any set of claims—as it always does.32 But the only question,
after finding that there is in fact a valid agreement, is whether
the purported delegation clause is in fact a delegation clause—
that is, if it evinces an intent to have the arbitrator decide
26
BG Group PLC, supra note 25.
27
Granite Rock Co. v. Teamsters, 561 U.S. 287, 299-300, 130 S. Ct. 2847,
177 L. Ed. 2d 567 (2010).
28
Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 69 n.1, 130 S. Ct. 2772,
177 L. Ed. 2d 403 (2010).
29
See, id.; Citizens of Humanity, supra note 2.
30
See id.
31
Kubala v. Supreme Production Services, Inc., 830 F.3d 199 (5th Cir. 2016).
32
Id.
- 225 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
CULLINANE v. BEVERLY ENTERS. - NEB.
Cite as 300 Neb. 210
whether a given claim must be arbitrated.33 A delegation clause
is an agreement to arbitrate a threshold issue and is simply
an additional, severable, antecedent arbitration agreement the
party seeking arbitration asks the court to enforce, and the FAA
operates on this additional arbitration agreement just as it does
on any other.34
In the instant matter, we note the plain language of the ADR
Agreement does not clearly and unmistakably empower an
arbitrator to determine enforceability issues such as the chal-
lenge Thomas raises here. In addition, GLCV did not argue to
the trial court, nor does it argue to this court, that the parties
agreed to allow an arbitrator to decide issues of arbitrability.
Further, Thomas specifically challenged the validity of the
agreement to arbitrate based upon fraud. Accordingly, if the
claim is fraud in the inducement or fraud in the execution of
the arbitration clause itself—an issue which goes to the mak-
ing of the agreement to arbitrate—the court may proceed to
adjudicate it.35
Thus, Thomas’ enforceability challenge to the ADR
Agreement is a matter for judicial determination.
(c) Motion to Compel
Arbitration Proceedings
The parties put forth different understandings about the
procedure the trial court followed when it ruled on GLCV’s
motion to compel arbitration. Thomas claims the court denied
arbitration using a motion for summary judgment standard
of viewing the evidence in the light most favorable to the
33
Id.
34
Citizens of Humanity, supra note 2.
35
Prima Paint v. Flood & Conklin, 388 U.S. 395, 87 S. Ct. 1801, 18 L. Ed.
2d 1270 (1967). See, also, Burden v. Check Into Cash of Kentucky, LLC,
267 F.3d 483 (6th Cir. 2001); Ferro Corp. v. Garrison Industries, Inc., 142
F.3d 926 (6th Cir. 1998); R.M. Perez & Associates, Inc. v. Welch, 960 F.2d
534 (5th Cir. 1992); Matterhorn, Inc. v. NCR Corp., 763 F.2d 866 (7th Cir.
1985).
- 226 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
CULLINANE v. BEVERLY ENTERS. - NEB.
Cite as 300 Neb. 210
nonmoving party. Thomas further claims he is entitled to a jury
trial on the issue of the formation of the ADR Agreement. To
support his contentions, Thomas relies on 9 U.S.C. § 4.36
GLCV contends that neither of Thomas’ claims is correct.
First, it contends that the district court’s order did not reference
the motion for summary judgment standard. Second, it con-
tends that since the court summarily denied the application to
compel arbitration, the issue is fully decided and no jury trial
would be warranted.
[23,24] Arbitration in Nebraska is governed by the UAA as
enacted in Nebraska, but if arbitration arises from a contract
involving interstate commerce, it is governed by the FAA.37
Where a transaction falls within the scope of the FAA, the
substantive issue of whether the motion to compel arbitration
should be granted is a question of federal law.38 However,
the U.S. Supreme Court has never held that § 4 of the FAA,
which is a procedural section, applies to state courts.39 There
is no federal policy favoring arbitration under a certain set of
procedural rules, and the federal policy is simply to ensure the
enforceability of private agreements to arbitrate.40
[25] Section 4 of the FAA authorizes an aggrieved party to
seek an order directing arbitration to proceed in the manner
provided for in the parties’ agreement.41 The court shall hear
36
See, BOSC, Inc. v. Bd. of Cnty. Com’rs Bernalillo Cnty, 853 F.3d 1165
(10th Cir. 2017); Nebraska Machinery Co. v. Cargotec Solutions, LLC,
762 F.3d 737 (8th Cir. 2014); Howard v. Ferrellgas Partners, L.P., 748
F.3d 975 (10th Cir. 2014); John M. Gradwohl, Arbitration: Interface of the
Federal Arbitration Act and Nebraska State Law, 43 Creighton L. Rev. 97
(2009).
37
Aramark Uniform & Career Apparel, supra note 20.
38
Webb, supra note 6.
39
Vaden v. Discover Bank, 556 U.S. 49, 129 S. Ct. 1262, 173 L. Ed. 2d 206
(2009); Volt Info. Sciences v. Leland Stanford Jr. U., 489 U.S. 468, 109 S.
Ct. 1248, 103 L. Ed. 2d 488 (1989); Kremer, supra note 15.
40
Kremer, supra note 15.
41
9 U.S.C. § 4.
- 227 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
CULLINANE v. BEVERLY ENTERS. - NEB.
Cite as 300 Neb. 210
the parties, and upon being satisfied that the making of the
agreement for arbitration or the failure to comply therewith is
not in issue, the court shall make an order directing the parties
to proceed to arbitration in accordance with the terms of the
agreement.42 If the making of the arbitration agreement or the
failure, neglect, or refusal to perform the same be in issue, the
court shall proceed summarily to the trial thereof, if no jury
trial be demanded by the party alleged to be in default.43
[26] Under § 25-2603(a) of the UAA, on application of a
party showing a valid arbitration agreement and the opposing
party’s refusal to arbitrate, the court shall order the parties to
proceed with arbitration, but if the opposing party denies the
existence of the agreement to arbitrate, the court shall proceed
summarily to the determination of the issue so raised and shall
order for the moving party; otherwise, the application shall
be denied.
[27] Section 25-2603 does not defeat the FAA’s objective,
expressed in § 4, that if the making of the arbitration agree-
ment or the failure, neglect, or refusal to perform the same be
in issue, the court shall proceed summarily to the trial thereon.
Further, nothing in our record indicates that Thomas requested
a jury trial on the enforceability of the ADR Agreement,
and as a result, the trial court summarily tried the issue of
arbitrability.
[28] On appeal, Thomas did not object to the procedure
followed by the district court, and he did not cross-appeal
or assign error to the fact that the district court did not order
a jury trial on the issue. Because an appellate court will not
consider an issue on appeal that was not passed upon by the
trial court,44 we do not address Thomas’ contention that he is
entitled to a jury trial on the issue of enforceability.
42
Id.
43
Id.
44
Thorson v. Nebraska Dept. of Health & Human Servs., 274 Neb. 322, 740
N.W.2d 27 (2007).
- 228 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
CULLINANE v. BEVERLY ENTERS. - NEB.
Cite as 300 Neb. 210
(d) Enforceability of
ADR Agreement
[29] The FAA makes arbitration agreements “‘valid, irrevo-
cable, and enforceable, save upon such grounds as exist at law
or in equity for the revocation of any contract.’”45 Under § 2
of the FAA, arbitration agreements can be declared unenforce-
able “‘upon such grounds as exist at law or in equity for the
revocation of any contract,’”46 including contract defenses like
fraud or unconscionability.47 State law governs the formation of
contracts, as well as the validity, revocability, and enforceability
of contracts generally.48 The U.S. Supreme Court has declared
that state contract law applies to contracts with arbitration agree-
ments governed by the FAA.49
In this matter, neither party disputed that Eugene signed the
ADR Agreement and that he had authority to bind Helen and
her estate under the durable power of attorney. Instead, Thomas
argues that the ADR Agreement was not enforceable, because
it was obtained by fraud.
In overruling GLCV’s motion to compel arbitration, the
court did not explicitly state that Eugene signed the ADR
Agreement as a consequence of a fraudulent misrepresenta-
tion made by GLCV’s agent. However, a logical reading of
the court’s order is that it implicitly determined that the ADR
Agreement is void or should be voided due to fraud.
GLCV claims that if the court denied the motion on a fraud
theory advanced by Thomas, a proper fraud analysis would
45
Kindred Nursing Centers L.P. v. Clark, ___ U.S. ___, 137 S. Ct. 1421,
1426, 197 L. Ed. 2d 806 (2017) (quoting 9 U.S.C. § 2).
46
AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339, 131 S. Ct. 1740, 179
L. Ed. 2d 742 (2011).
47
Id. See, also, Prima Paint, supra note 35.
48
Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681, 116 S. Ct. 1652, 134
L. Ed. 2d 902 (1996); First Options of Chicago, Inc. v. Kaplan, 514 U.S.
938, 115 S. Ct. 1920, 131 L. Ed. 2d 985 (1995). See Koricic v. Beverly
Enters. - Neb., 278 Neb. 713, 773 N.W.2d 145 (2009).
49
Aramark Uniform & Career Apparel, supra note 20.
- 229 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
CULLINANE v. BEVERLY ENTERS. - NEB.
Cite as 300 Neb. 210
have analyzed the six elements of fraud.50 Accordingly, GLCV
argues that no representation was made, any representation
made was not false, any false representation made was not
known to be false, and there was no fraudulent intent, nor
was there any reasonable reliance. GLCV asserts there was
no fraud in the execution, nor was there any fraud in the
inducement.
[30] Generally, in the absence of fraud, one who signs an
instrument without reading it, when one can read and has had
the opportunity to do so, cannot avoid the effect of one’s sig-
nature merely because one was not informed of the contents
of the instrument.51
“[C]ourts will not permit a party to avoid a contract into
which that party has entered on the grounds that he or she
did not attend to its terms, that he or she did not read the
document which was signed and supposed it was differ-
ent from its terms, or that it was a mere form.”52
To permit a party to admit that he or she signed an instrument
but did not read it or know its provisions would absolutely
destroy the value of contracts.53
[31] However, the rule that one who fails to read a con-
tract cannot avoid the effect of signing it applies only in the
50
See deNourie & Yost Homes v. Frost, 289 Neb. 136, 854 N.W.2d 298
(2014).
51
In re Claims Against Pierce Elevator, 291 Neb. 798, 868 N.W.2d 781
(2015); Eicher v. Mid America Fin. Invest. Corp., 270 Neb. 370, 702
N.W.2d 792 (2005); Ray Tucker & Sons v. GTE Directories Sales Corp.,
253 Neb. 458, 571 N.W.2d 64 (1997); Todd Brothers v. Federal Crop Ins.
Corp., 178 Neb. 211, 132 N.W.2d 778 (1965); Case Co. v. Hrubesky, 125
Neb. 588, 251 N.W. 169 (1933).
52
In re Claims Against Pierce Elevator, supra note 51, 291 Neb. at 826, 868
N.W.2d at 802 (quoting In re Claims Against Atlanta Elev., Inc., 268 Neb.
598, 685 N.W.2d 477 (2004) (superseded by statute as stated in Telrite
Corp. v. Nebraska Pub. Serv. Comm., 288 Neb. 866, 852 N.W.2d 910
(2014)).
53
Todd Brothers, supra note 51.
- 230 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
CULLINANE v. BEVERLY ENTERS. - NEB.
Cite as 300 Neb. 210
absence of fraud54 or an inability to read.55 The doctrine that
the carelessness or negligence of a party in signing a writing
estops him or her from afterward disputing the contents of
such writing is not applicable in a suit thereon between the
original parties thereto when the defense is that such writ-
ing, by reason of fraud, does not embrace the contract actu-
ally made.56
[32,33] A variety of different types of fraud may be at issue
in a given case. We have emphasized, for example, that “fraud
in the execution” and “fraud in the inducement” are distinct
theories of fraud.
Fraud in the execution goes to the very existence of the
contract, such as where a [contract] is misread to the
[party], or where one paper is surreptitiously substituted
for another, or where a party is tricked into signing an
instrument he or she did not mean to execute. In such
cases, . . . there was no meeting of the minds, . . . in
other words, it is not a question of a contract voidable for
fraud, but of no contract at all. Fraud in the inducement,
by contrast, goes to the means used to induce a party to
enter into a contract. In such cases, the party knows the
character of the instrument and intends to execute it, but
the contract may be voidable if the party’s consent was
obtained by false representations—for instance, as to
the nature and value of the consideration, or other mate-
rial matters.57
54
Walters v. Sporer, 298 Neb. 536, 905 N.W.2d 70 (2017); Eicher, supra
note 7; Todd Brothers, supra note 51.
55
Gonzalez v. Union Pacific RR. Co., 282 Neb. 47, 803 N.W.2d 424 (2011);
NJI2d Civ. 15.21.
56
Eicher, supra note 7; Lippire v. Eckel, 178 Neb. 643, 134 N.W.2d 802
(1965); West v. Wegner, 172 Neb. 692, 111 N.W.2d 449 (1961); Ward v.
Spelts, 39 Neb. 809, 58 N.W. 426 (1894).
57
Gonzalez, supra note 55, 282 Neb. at 66, 803 N.W.2d at 442. Accord
Heritage Bank v. Bruha, 283 Neb. 263, 812 N.W.2d 260 (2012).
- 231 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
CULLINANE v. BEVERLY ENTERS. - NEB.
Cite as 300 Neb. 210
[34] In this matter, Thomas contends that Eugene was
induced into executing the ADR Agreement by GLCV’s
fraudulent misrepresentation. A fraudulent misrepresentation
claim requires a plaintiff to establish the following elements:
(1) A representation was made; (2) the representation was
false; (3) when made, the representation was known to be
false or made recklessly without knowledge of its truth and
as a positive assertion; (4) the representation was made with
the intention that the plaintiff should rely on it; (5) the plain-
tiff did so rely on it; and (6) the plaintiff suffered damage as
a result.58
[35-37] Fraudulent misrepresentations may consist of half-
truths calculated to deceive, and a representation literally true
is fraudulent if used to create an impression substantially
false.59 A plaintiff must show that the defendant intended the
plaintiff to rely on a false representation.60 Whether a party’s
reliance upon a misrepresentation was reasonable is a ques-
tion of fact.61 A party is justified in relying upon a representa-
tion made to the party as a positive statement of fact when
an investigation would be required to ascertain its falsity.62
A plaintiff fails to exercise ordinary prudence only when the
plaintiff’s reliance is wholly unreasonable, given the facts
open to the plaintiff’s observation and his or her own skill
and experience.63
58
deNourie & Yost Homes, supra note 50; Zawaideh v. Nebraska Dept. of
Health & Human Servs., 285 Neb. 48, 825 N.W.2d 204 (2013); Cao v.
Nguyen, 258 Neb. 1027, 607 N.W.2d 528 (2000). See Hayes v. Equine
Equities, 239 Neb. 964, 480 N.W.2d 178 (1992).
59
Knights of Columbus Council 3152 v. KFS BD, Inc., 280 Neb. 904, 791
N.W.2d 317 (2010).
60
Id.
61
InterCall, Inc. v. Egenera, Inc., 284 Neb. 801, 824 N.W.2d 12 (2012);
Cao, supra note 58.
62
InterCall, Inc., supra note 61; Schuelke v. Wilson, 250 Neb. 334, 549
N.W.2d 176 (1996); Hayes, supra note 58.
63
deNourie & Yost Homes, supra note 50.
- 232 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
CULLINANE v. BEVERLY ENTERS. - NEB.
Cite as 300 Neb. 210
[38] In a fraud case, direct evidence is not essential, but
proof of fraud drawn from circumstantial evidence must not be
guesswork or conjecture; such proof must be rational and logi-
cal deductions from the facts and circumstances from which
they are inferred.64
We now turn to whether the district court’s decision to deny
GLCV’s motion was clearly wrong.
[39,40] Under Neb. Rev. Stat. § 25-1127 (Reissue 2016),
in the absence of a request by a party for specific findings,
a trial court is not required to make detailed findings of
fact and need only make its findings generally for the pre-
vailing party.65 In a case tried to the court without a jury, a
motion for specific findings of fact pursuant to § 25-1127
must be made before the final submission of the case to the
court.66 Where trial is to the court and no request for spe-
cific findings is made, if there is a conflict in the evidence,
this court, in reviewing the judgment rendered, will presume
that controverted facts were decided by the trial court in
favor of the successful party and the findings will not be dis-
turbed unless clearly wrong.67 In such a case, it is not within
the province of this court to resolve conflicts or to weigh
evidence.68
In the instant matter, the record does not reflect that either
party made a request for detailed findings. The trial court,
however, did address the issue raised by GLCV’s motion and
made findings generally in Thomas’ favor.
64
Four R Cattle Co. v. Mullins, 253 Neb. 133, 570 N.W.2d 813 (1997);
Schuelke, supra note 62.
65
See Lange Indus. v. Hallam Grain Co., 244 Neb. 465, 507 N.W.2d 465
(1993).
66
Stuczynski v. Stuczynski, 238 Neb. 368, 471 N.W.2d 122 (1991).
67
Burgess v. Curly Olney’s, Inc., 198 Neb. 153, 251 N.W.2d 888 (1977); C.
Goodrich, Inc. v. Thies, 14 Neb. App. 170, 705 N.W.2d 451 (2005).
68
Bailey v. Karnopp, 170 Neb. 836, 104 N.W.2d 417 (1960).
- 233 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
CULLINANE v. BEVERLY ENTERS. - NEB.
Cite as 300 Neb. 210
We note that the evidence before the district court consisted
of affidavits from Weberg, Eugene, and Thomas, as well the
ADR Agreement and Helen’s durable power of attorney.
[41] We recently set forth that “under Neb. Rev. Stat.
§ 25-1244 (Reissue 2016), an affidavit is admissible in
certain enumerated situations, including ‘motion practice,’
which includes the use of affidavits relating to prelimi-
nary, collateral, and interlocutory matters.”69 The Nebraska
Legislature has authorized the use of affidavits to support
a wide range of common civil motions.70 Congress has pro-
vided that unless otherwise expressly provided, any applica-
tion to the court brought under the FAA shall be made and
heard in the manner provided by law for the making and
hearing of motions.71 The policy underlying § 6 of the FAA
“is to expedite by ordinary motion practice judicial treatment
of matters pertaining to arbitration.”72 For example, over 40
years ago in Prima Paint v. Flood & Conklin,73 in reviewing
a claim of fraud in the inducement of an arbitration contract,
the U.S. Supreme Court considered affidavit evidence to
decide the issue of whether the contract was a transaction in
interstate commerce.
[42] Although we are less deferential to a trial court’s find-
ings given that the case was presented wholly on documents
and affidavit statements rather than through live witnesses,
that does not alter our standard of review in this case.74 Rather,
GLCV’s burden of proving that the district court’s findings
69
TransCanada Keystone Pipeline v. Nicholas Family, 299 Neb. 276, 283,
908 N.W.2d 60, 66 (2018).
70
See Neb. Rev. Stat. §§ 25-1144, 25-1330 to 25-1336, 25-2160, and
25-2301.01 (Reissue 2016 & Supp. 2017).
71
9 U.S.C. § 6.
72
Tepper Realty Company v. Mosaic Tile Company, 259 F. Supp. 688, 693
(S.D.N.Y. 1966).
73
Prima Paint, supra note 35.
74
See Matter of Bohart, 743 F.2d 313 (5th Cir. 1984).
- 234 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
CULLINANE v. BEVERLY ENTERS. - NEB.
Cite as 300 Neb. 210
were clearly wrong is “‘“‘to some extent ameliorated.’”’”75
Even though an appellate court is, in the absence of oral testi-
mony, equally capable as the trial court of examining the evi-
dence and drawing conclusions therefrom and is under a duty to
do so, and even though a case was submitted to the trial court
without oral evidence, the duty of the appellate court to evalu-
ate the facts does not extend to the right or duty to make an
independent evaluation thereof without regard to the findings
below. In such a case, an appellate court is loath to overturn the
findings of an experienced trial judge unless in the opinion of
the court they are clearly wrong.76
[43] Thomas adduced evidence that an agent of GLCV made
a representation to Eugene that he was required to sign the
ADR Agreement in order for Helen to become a resident of
the facility. Though Weberg’s affidavit stated her belief that
this representation was not made, she was not present when
the ADR Agreement was signed, and the trial court appears to
have given little or no weight to her submission. Further, state-
ments in affidavits as to opinion, belief, or conclusions of law
are of no effect.77
If the representation was made, the evidence indicates
that the representation was false. The language of the ADR
Agreement states that execution of the ADR Agreement was
not a condition for admission.
There is also evidence that the representation was known
to be false when it was made, or was made recklessly. The
disclaimer at the top of the first page of the ADR Agreement,
written in bold and capitalized letters, suggests that anyone
who had an opportunity to read and sign the agreement,
including a GLCV staff member, would have known that it
was optional.
75
Id. at 325 n.12.
76
Commercial Standard Ins. Co. v. Universal Underwriters, 282 F.2d 24
(10th Cir. 1960).
77
See Boyle v. Welsh, 256 Neb. 118, 589 N.W.2d 118 (1999).
- 235 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
CULLINANE v. BEVERLY ENTERS. - NEB.
Cite as 300 Neb. 210
There is also evidence that the false representation was
made with the intention that Thomas should rely upon it. Both
Eugene and Thomas claimed they were not given an oppor-
tunity to review the contract. Eugene stated the staff member
handled the paperwork, flipped through the pages, and told
him to sign “‘here.’” Thomas stated the staff member showed
Eugene only the bottom half of the pages. This conclusion is
supported by the ADR Agreement itself, because everything
other than Eugene’s signature appears to have been filled out
in advance.
The evidence also indicates that Eugene reasonably relied
upon the false representation. Both Eugene and Thomas
stated that the staff member claimed these were “‘standard
forms,’” that she did not provide them with a copy of the
ADR Agreement, that she did not explain its legal effect, and
that she did not state that it was not required in order to admit
Eugene and Helen. Additionally, Eugene stated that he would
not have signed the ADR Agreement if he had known it was
not mandatory.
Lastly, the evidence shows that Helen suffered damage as a
result of the false representation. If GLCV’s motion to compel
arbitration would be sustained, Thomas, on behalf of Helen’s
estate, would lose the right to bring suit for her alleged wrong-
ful death.
Recognizing that direct evidence is not required in fraud
cases, and viewing the evidence in the light most favorable
to Thomas, we find Thomas satisfied each element required
for a claim of fraudulent representation and the determination
that the ADR Agreement is not binding upon Helen. We con-
clude from our review that the evidence supports the outcome
reached by the district court.
V. CONCLUSION
In the absence of a contractual provision evidencing clear
and unmistakable intent to the contrary, the issue of whether
- 236 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
CULLINANE v. BEVERLY ENTERS. - NEB.
Cite as 300 Neb. 210
an arbitration agreement is enforceable is for a court to decide
and not an arbitrator. The district court did not err in determin-
ing that the ADR Agreement was not binding upon Helen or
her estate. We therefore affirm the district court’s decision.
A ffirmed.
Wright and K elch, JJ., not participating.
| {
"pile_set_name": "FreeLaw"
} |
874 So.2d 48 (2004)
WFTV, INC., Appellant,
v.
The SCHOOL BOARD OF SEMINOLE, etc., et al, Appellee.
No. 5D03-2118.
District Court of Appeal of Florida, Fifth District.
May 14, 2004.
Jonathan D. Kaney, Jr., Jonathan D. Kaney, III, and Andrea M. Kurak, Daytona Beach, for Appellant.
David S. Bralow, Senior Counsel, Tribune Company, Orlando, Amici Curiae, Florida Media Organizations.
Ned N. Julian, Sanford, for Appellee.
PER CURIAM.
WFTV, Inc., ("WFTV"), appeals the trial court's denial of access to student records maintained by the School Board of Seminole County. We affirm the denial, adopt in part, the opinion authored by Judge McIntosh and certify a question with respect to the extent of an exemption applicable to student records:
I. The Stipulated Facts.
WFTV, is a Florida corporation having its principal place of business in *49 Orlando, Florida where it operates a broadcast television station as WFTV Channel 9 within a viewing area that includes Seminole County and East Central Florida. The School Board of Seminole County, Florida, (the "Board"), is a body corporate of the State of Florida in which is vested the power to act as the governing body of the School District of Seminole County pursuant to section 230.21, Florida Statutes (2002). The Board operates a school bus transportation system including approximately 420 buses and 350 routes that transported students over a total of 7.1 million miles in the past school year.
The Superintendent is the executive officer of the Board in whom is vested among other powers, the custody of all records and properties of the Board. § 230.21; 230.33(3) and (4). The Board and its Superintendent are agencies of the State of Florida within the meaning of section 119.011(2), Florida Statutes (2002), and "public officers" of the state within the meaning of Art. I, section 24(a), Florida Constitution. At all times and in all respects relevant to this complaint, the Superintendent and his subordinate employees and attorneys have been acting on behalf of the Board in their official capacities.
The Board, the Superintendent, or any subordinate employees, or either or any of them, are custodians of the public records to which WFTV seeks access in this suit.[1] Patti Parker, (the "Producer"), is a news producer employed by WFTV and assigned to reporting and gathering news for use by WFTV in broadcasting news. In all respects material to this complaint, the Producer has been acting on behalf of WFTV in her capacity as an investigative news producer engaged in news gathering activities for WFTV. During December of 2001 and January of 2002, by and through the written and oral communications of the Producer, WFTV requested access to the Requested Records.
Certain records were made or received by the Board, the Superintendent, or their subordinates in the course of performing their duties as the governing body, chief executive officer, or subordinates thereof, of the public schools of the Seminole County School District. Certain of these records are the subject of this action. Solely for purposes of definitional clarity in this case, the parties stipulated and agreed with respect to each of the following terms that when such terms are used with initial capital letters, they shall have the precise meaning stipulated in the following paragraphs:
WFTV has requested access to certain records for inspection or copying, but the scope of the request is limited to such records as redacted to exclude Personally Identifiable Information. The term, "Requested Records" means the records described as follows:
i. Transportation Student Discipline Forms (redacted).
ii. Surveillance Videotape (redacted).
It was not intended that the Requested Records would include any information, files, or data which permit the personal identification of a student. WFTV made reasonable requests for access to the Requested Records. The Board and Superintendent through various delegates and agents denied WFTV's request for access to the Requested Records.
*50 The Subject Records include "Transportation Student Discipline Forms." The Transportation Student Discipline Forms are incident reports which reflect incidents among students aboard the buses that require follow up in some manner by school district administrators. The Transportation Student Discipline Forms are "records and reports" within the meaning of section 228.093(2)(e) and are maintained by the Defendants by reference to the names of particular students.
The Subject Records also include "Surveillance Videotape." The Surveillance Videotape shows views of students while riding on the school buses, including identifiable facial features. The Board does not maintain the Surveillance Videotape permanently. When a segment of Surveillance Videotape is relevant to a student disciplinary question, the tape or portion thereof is filed and retained by the Board as an Education Record. In other cases, the Surveillance Videotape is not preserved and the tape is re-used, which erases the former images and replaces them with new images.[2] WFTV's request is addressed to those Surveillance Video Tapes which are maintained as Education Records as described above. All segments of Surveillance Videotape now in the custody of the Board are Education Records maintained by the Defendants by reference to the names of particular students.
* * *
II. The Stipulated Issue of Law.
Whether the School Board is obligated to produce records and reports (as defined in section 228.093(2)(e)) under Art. I, section 24(a), Florida Constitution and section 119.07(l) and (2), or whether those records and reports and any information contained therein are exempt under section 228.093, Florida Statutes (2001).[3]
III. Conclusions of Law and Analysis.
The court's analysis of the legal issue presented begins with review of Art. I, section 24 of the Florida Constitution. Art. I, section 24, Access to public records and meetings, provides, in relevant part, as follows:
(a) Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution. This section specifically includes the legislative, executive, and judicial branches of government and each agency or department created thereunder; counties, municipalities, and districts; and each constitutional officer, board, and commission, or entity created pursuant to law or this Constitution.
(b) * * *
(c) This section shall be self-executing.
*51 * * *
(d) All laws that are in effect on July 1, 1993 that limit public access to records or meetings shall remain in force, until they are repealed.[4] * * *
Section 228.093(3), Florida Statutes (2001) provides for the rights of students and their parents with regard to the student's educational records, in relevant part, as follows:
(3) RIGHTS OF PARENT, GUARDIAN, PUPIL OR STUDENT.The parent or guardian of any pupil or student who attends or has attended any public school, area vocational technical training center, community college, or institution of higher education in the State University System shall have the following rights with respect to any records or reports created, maintained, and used by any public educational institution in the state. However, whenever a pupil or student has attained 18 years of age, or is attending an institution of postsecondary education, the permission or consent required of, and the rights accorded to, the parents of the pupil or student shall thereafter be required of and accorded to the pupil or student only, unless the pupil or student is a dependent pupil or student of such parents as defined in 26 U.S.C. s. 152 (s. 152 of the Internal Revenue Code of 1954). The State Board of Education shall formulate, adopt, and promulgate rules whereby parents, guardians, pupils, or students may exercise these rights:
(a) Right of access.
(b) Right of waiver of access to confidential letters or statements.
* * *
(c) Right to challenge and hearing.
* * *
(d) Right of privacy. Every pupil or student shall have a right of privacy with respect to the educational records kept on him or her. Personally identifiable records or reports of a pupil or student, and any personal information contained therein, are confidential and exempt from the provisions of § 119.07(1). No state or local educational agency, board, public school, area technical center, community college, or institution of higher education in the State University System shall permit the release of such records, report or information without the written consent of the pupil's or student's parent or guardian, or of the pupil or student himself or herself if he or she is qualified as provided in this subsection, to any individual, agency, or organization. However, personally identifiable records or reports of a pupil or student may be released to the following persons or organizations without the consent of the pupil or the pupil's parent: 1.-13.
* * *
The purpose of section 228.093 is stated in section 228.093(1) as follows:
(1) PURPOSE.The purpose of this section is to protect the rights of pupils and student and their parents or guardians with respect to pupil and student records and reports as created, maintained, and used by public educational institutions in the state. The intent of the Legislature is that *52 pupils and students and their parents or guardians shall have rights of access, rights of challenge, and rights of privacy with respect to such records and reports, and that rules shall be available for the exercise of these rights.
The terms "records" and "reports" are defined in section 228.093(2)(e), in relevant part, as follows:
(e) "Records" and "Reports" mean any and all official records, files, and data directly related to pupils and students which are created, maintained, and used by public educational institutions, including all material that is incorporated into each pupil's or student's cumulative record folder and intended for school use or to be available to parties outside the school or school system for legitimate educational or research purposes. Materials which shall be considered as part of a pupil's or student's record include, but are not necessarily limited to: identifying data, including a student's social security number; academic work completed; level of achievement records, including grades and standardized achievement test scores; attendance data; scores on standardized intelligence, aptitude, and psychological tests; interest inventory results, health data; family background information; teacher or counselor ratings and observations' verified reports of serious or recurrent behavior patterns; and any other evidence, knowledge, or information recorded in any medium, including, but not limited to, handwriting, typewriting, print, magnetic tapes, film, microfilm, and microfiche, and maintained and used by an educational agency or institution. However, the terms "records" and "reports" do not include:
* * *
6. Other information, files or data which do not permit the personal identification of a pupil or student.
WFTV urges the court to conclude that the School Board's reliance on section 228.093(3) to deny public access to the Requested Records is erroneous. WFTV argues this reliance is misplaced because the exemption from section 119.07(1) provided for in section 228.093(3)(d) applies only to personally identifiable information within the "records and reports." WFTV argues that the School Board is required to redact the personally identifiable information from the Surveillance Videotape and Transportation Student Discipline Forms pursuant to the requirement of section 119.07(2) and provide public access to the redacted documents.
Chapter 119 of the Florida Statutes, The Florida Public Records Act, was enacted to promote public awareness and knowledge of government actions in order to ensure that governmental officials and agencies remain accountable to the people. Forsberg v. Housing Authority of the City of Miami Beach, 455 So.2d 373, 378 (Fla.1984). The Florida Public Records Act creates a state policy that government records, with specific exceptions, should be open at all times to the public. Section 119.07(1) requires every person who has custody of a public record to permit the record to be inspected and examined by any person desiring to do so. Section 119.07(2)(a) provides as follows:
(2)(a) A person who has custody of a public record and who asserts that an exception provided in subsection (3) or in a general or special law applies to a particular public record or part of such record shall delete or excise from *53 the record only that portion of the record with respect to which an exemption has been asserted and validly applies, and such person shall produce the remainder of such record for inspection and examination.
* * *
Most importantly, while The Florida Public Records Act is to be liberally construed in favor of open government, exemptions from disclosure are to be narrowly construed. Seminole County v. Wood, 512 So.2d 1000, 1002 (Fla. 5th DCA 1987), review denied, 520 So.2d 586 (Fla.1988). Because the School Board has denied access to public records based on its contention that the requested records are exempt from the requirements section 119.07, the burden of proof and persuasion rests with the School Board. The agency bears the burden of proving its right to the claimed exemption. See Woolling v. Lamar, 764 So.2d 765, 767 (Fla. 5th DCA 2000).
WFTV argues that the School Board is required to redact the personally identifiable information from the Subject Records (the Transportation Student Discipline Forms and Surveillance Videotapes) and provide access to the Requested Records (the Subject Records redacted of all personally identifiable information) pursuant to the requirements of Art. I, section 24, Florida Constitution and section 119.07(1) and (2). WFTV argues that the confidentiality and exemption provision in section 228.093(3)(d) applies only to Personally Identifiable Information within the Subject Records.
The School Board urges the court to conclude that section 228.093(3)(d) prohibits WFTV from having any access to the Surveillance Videotape and Transportation Student Discipline Form even if all personally identifying information is redacted from the documents. Even with such redaction, the School Board argues that the Requested Records are still confidential and exempt from section 119.07(1) and may not be disclosed, without written parental consent, to the public, except as specifically provided in section 228.093(3)(d) 1.-13. The court agrees with the School Board. Pursuant to section 228.093(3)(d), the Requested Records are confidential and specifically exempted from the requirements of section 119.07(1). The School Board is prohibited from disclosing the Requested Records to WFTV, without written parental consent.
A. The confidentiality and exemption provisions in section 228.093(3)(d) apply to the Requested Records.
In the instant case, the Requested Records are both confidential and exempt from section 119.07(1) and, hence, the School Board is prohibited from disclosing the Requested Records to WFTV.
There is a difference between records the Legislature has determined to be exempt from The Florida Public Records Act and those which the Legislature has determined to be exempt from The Florida Public Records Act and confidential. If information is made confidential in the statutes, the information is not subject to inspection by the public and may only be released to the persons or organizations designated in the statute. In Lee County v. State Farm Mutual Automobile Ins. Co., 634 So.2d 250 (Fla. 2d DCA 1994), a county policy requiring notarized signature on all release forms was determined a valid means of protecting records made confidential by the Legislature. In Alice P. v. Miami Daily News, Inc., 440 So.2d *54 1300 (Fla. 3d DCA 1983), rev. denied 467 So.2d 697 (Fla.1985) confidential information contained in a license application submitted to a state agency was determined not subject to disclosure).
If records are not confidential but are only exempt from the Public Records Act, the exemption does not prohibit the showing of such information. As stated in Williams v. City of Minneola, 575 So.2d 683, 687 (Fla. 5th DCA), review denied, 589 So.2d 289 (Fla.1991), appeal after remand, 619 So.2d 983 (Fla. 5th DCA 1993), "the exemption does not prohibit the showing of such information. There are many situations in which investigators have reasons for displaying information which they have the option not to display." The focus in determining whether a record loses its public record exemption is on the policy behind the exemption and not the simple fact the information has changed agency hands. See Ragsdale v. State, 720 So.2d 203, 206 (Fla.1998). Once an agency released to the public certain information the Legislature has protected from disclosure by a Public Records Act exemption, no further purpose is served by the exemption and full public access to the information is warranted. Downs v. Austin, 522 So.2d 931, 935 (Fla. 1st DCA 1988).
Four Florida cases have dealt with the confidentiality and exemption provisions of section 228.093(3)(d). In Human Rights Advocacy Committee For Developmental Services For District VIII v. Lee County School Board, 457 So.2d 522, 525 (Fla. 2d DCA 1984), the court stated that section 228.093(3)(d) of the Florida School Code "recognizes a strong privacy interest of every student with regard to his educational records." Since section 228.093(3)(d) did not contain specific language giving the Human Rights Advocacy Committee access to certain school records, the court declined "to usurp the legislative function by creating a judicially prescribed exception to the protection afforded by the statute." Id.
In Tampa Television, Inc. v. School Board of Hillsborough County, 659 So.2d 331 (Fla. 2d DCA 1995), Judge Parker specially concurred that a videotape recording produced by a mounted video camera taping students while riding on public school buses are student "records and reports" pursuant to section 228.093 because these recordings could be utilized to produce "verified reports of serious or recurrent behavior patterns," which section 228.093(2)(e) includes in its lists of materials considered as part of a student's record. The issue before the court in Tampa Television has been agreed to in the instant case. WFTV agrees, at least for purposes of this case, that the Surveillance Tapes and Transportation Student Discipline Forms are "records and reports" under section 228.093(2)(e).
In F.A.T. v. State of Florida, 690 So.2d 1347 (Fla. 1st DCA 1997), the court addressed the issue of whether attendance records were subject to disclosure under section 228.093. Once the court decided that the attendance records fell within the definition of "records and reports," the court concluded that the attendance records were not subject to public disclosure. At that juncture, the only other issue considered by the court in the F.A.T. case was whether any of the statutory exceptions to nondisclosure applied. In the instant case, WFTV stipulated that the Subject Records are "records and reports," and WFTV does not argue that any of the statutory exceptions to nondisclosure apply. Because it does not appear that redaction was an issue in the F.A.T. *55 case, the F.A.T. decision is not instructive on that issue.
Finally, in Florida State University v. Hatton, 672 So.2d 576 (Fla. 1st DCA 1996), a Florida State University ("FSU") student, in a Chapter 120 administrative rule challenge, sought a prehearing subpoena of "formal orders applying to Student Conduct Code cases brought against any FSU student over the most recent two years, with any and all information by which a student could be identified redacted from the orders." Id at 577.
On appeal of the non-final administrative order requiring FSU to produce the formal orders redacted of any and all information by which a student could be identified, FSU argued that the redacted records sought to be produced were confidential pursuant to section 228.093(3)(d). The First District Court of Appeal reversed the administrative order and found an abuse of discretion by the hearing officer in requiring FSU to produce redacted, confidential student records. It was only after the Hatton court expressly concluded that the redacted records were confidential that the court conducted a balancing test for discovery purposes. The FSU student's interest in obtaining the confidential documents (the redacted formal orders) was "outweighed by the substantial privacy interest in the documents which the legislature has accorded to the subject students and their parents, and the interest of the University in avoiding penalties which may ensue from disclosure." Id. at 580.
Regarding the confidentiality of the redacted records, the Hatton court stated that, "The right of privacy set forth in section 228.093(3)(d), Florida Statutes, attaches to records or reports which permit the personal identification of a pupil or student." Id. at 578. Noting that section 228.093(2)(e)6. contains no definition of "data which permit[s] the personal identification of a pupil or student," the Hatton court found guidance in "the federal counterpart of this statutory provision"FERPA.[5]Id. See Footnote 3 in Hatton. Utilizing the definition of "Personally Identifiable Information" contained in FERPA, the court then concluded, "We find that the formal orders regarding FSU students are confidential records and reports within the meaning of section 228.093(3)(d), Florida Statutes (2001), because they contain identifying information about the subject student and other students who are accomplices, witnesses and victims." Id. at 579.
The FSU student argued that the documents could be edited to delete all personally identifying information from them, thus rendering the redacted documents unprotected. The same argument has been made by WFTV. The Hatton court rejected this redaction argument as follows:
This argument assumes that the editing and release of edited reports and records is permissible pursuant to section 228.093(3)(d). However, there is only one provision in section 228.093 section 228.(3)(a) 2.which provides for partial release of information contained in confidential records and reports. Section 228.093(3)(x) 2. does not provide for the release of edited information regarding persons other than the student requesting the release. Rather, it provides, in pertinent part, as follows:
(a) Right of access.
*56 * * *
2. Such parent, guardian, pupil, or student shall have the right, upon request, to be shown any record or report relating to such pupil or student maintained by any public educational institution. When the record or report includes information on more than one pupil or student, the parent, guardian, pupil, or student shall be entitled to receive, or be informed of, only that part of the record or report which pertains to the pupil or student who is the subject of the request.
Thus, even under Section 228.093(3)(a) 2., only "that part of the record or report which pertains to the pupil or student who is the subject of the request" is permitted to be released. (Emphasis added.)
Further, such excised portions of confidential records and documents can only be released to the subject student, or to the specified persons and organizations set forth in section 228.093(3)(d) 1.-12. Id. at 579. (Emphasis added.)
The Hatton court found the redaction argument without merit. Because neither the Division of Administrative Hearings nor its hearing officers were "a court of competent jurisdiction" or otherwise included in the specified persons or organization authorized to receive confidential student information under section 228.093(3)(d)1.-12, release of even the redacted student records was prohibited. Because the FSU student was not represented by an attorney in the proceedings below, the "attorney of record" exception in the then section 228.093(3)(d)10.a. also did not apply. The Hatton court held that the hearing officer abused his discretion in requiring FSU to produce the redacted, confidential student records.
WFTV argues that Hatton does not deal with the public's right of access to "records and reports." WFTV asks the court to construe Hatton as only deciding the authority of the ALJ in discovery disputes under chapter 120 and deciding the specific right of access granted to adult students under FERPA. The court declines to do so. The Hatton court decided the same confidentiality and redaction issues raised by WFTV in the instant case. When the FSU student sought access to the redacted records of other students, the FSU student was in the same shoes as WFTV regarding the confidentiality and redaction issues.
* * *
Based upon Hatton, the court finds that the Requested Records are confidential and exempt from section 119.07(1) and can only be released to the particular student to whom the records pertain or to the specified persons and organizations set forth in section 228.093(3)(d)1.-13., without written parental consent. In the instant case, disclosure of the Requested Records to WFTV is prohibited pursuant to section 228.093(3)(d).
Finally, WFTV asks the court not to expand the Hatton decision to restrict the rights guaranteed to all Floridians by Art. I, section 24(a) and section 119.07(1). The court has not done so. The Hatton decision that the redacted student records were confidential was based on section 228.093(3)(d). Art. I, section 24(d) of the Florida Constitution states that all laws in effect on July 1, 1993 that limit public access to records shall remain in force. Section 228.093, in effect on July 1, 1993, limits public access to records as expressly allowed by Art. I, section 24(d) of the Florida *57 Constitution. Additionally, section 228.093(3)(d) exempts the Requested Records from section 119.07(1).
B. The court declines to construe section 228.093 in pari materia with FERPA.
WFTV asks the court to construe section 228.093 in pari materia with the provisions of 20 U.S.C. section 12320, the Family Educational Rights and Privacy Act of 1974, which is sometimes referred to as the Buckley Amendment or the Buckley/Pell Amendment ("FERPA"). The court declines to do so.
As accurately pointed out by WFTV, "the purpose of the ACT is two-fold to assure parents of students access to their education records and to protect such individuals' rights to privacy by limiting the transferability of their records without their consent."[6]FERPA does not prohibit the disclosure of any educational records. FERPA only operates to deprive an educational agency or institution of its eligibility for applicable federal funding based on their policies and practices regarding public access to educational records if they have any policies or practices that run afoul of the rights of access and disclosural privacy protected by FERPA.
Two sections in FERPA are designed to ensure that recipients of federal education funds protect students' and their parents' rights to disclosural privacy. The first specifically provides when education records can be released without written parental consent, as follows:
(1) No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein other than directory information, as defined in paragraph (5) of subsection (a) of this section) of students without the written consent of their parents to any individual, agency, or organization, other than to the following:
(A)-(J)
* * *
20 U.S.C. § 1232 g(b)(1).
The second prohibits the disclosure of any personally identifiable information in education records unless permitted under section (1), above, or with written parental consent. The second provides, in relevant part, as follows:
No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of releasing, or providing access to, any personally identifiable information in education records other than directory information, or as is permitted under paragraph of this subsection, unless... there is written consent from the student's parents....
20 U.S.C. § 1232 g(b)(2).
As correctly argued by WFTV, there is an important difference in the wording of these two subsections. Subsection 1 permits the transfer of the entire education record, including personally identifiable information contain therein, to those specifically listed, without written parental consent. Subsection 2 prohibits only the release of personally identifiable information contained in education records, except to those listed in subsection 1, without written parental consent. The School Board acknowledges in its Response that various *58 courts have interpreted FERPA to allow federal fund recipients to release education records redacted of personally identifiable information contained therein.
The court declines to construe section 228.093 in harmony with FERPA because FERPA has been construed to protect only Personally Identifiable Information. This is because 20 U.S.C. section 1232g(b)(2) prohibits funding to any educational agency which has a policy or practice of releasing "education records or any personally identifiable information" contained in education records. There is no parallel provision in section 228.093(3)(d). Section 228.093(3)(d) prohibits the release of, or access to "personally identifiable records or reports of a pupil or student, and any personal information contained therein, ..." The State of Florida goes beyond the funding conditions specified in FERPA and protects the privacy of its students in its educational institutions by preventing the release of "any personal information" contained in records or reports which permit the personal identification of a student.[7] "Personal information" is more encompassing than "Personally Identifiable Information."
Additionally, the court declines to construe section 228.093(3)(d) in pari materia with FERPA because the Hatton court decided that section 228.093 protects as confidential even those "records or reports" that are redacted of any and all personally identifying information.
BASED ON THE ABOVE, it is hereby ORDERED and ADJUDGED as follows:
1. Declaratory Judgment is entered in favor of the Defendants, the School Board of Seminole County and its Superintendent. The Requested Records are confidential and exempt from the requirements of section 119.07 pursuant to section 228.093(3)(d), Florida Statutes (2001). The Defendants are prohibited from disclosing the Requested Records to WFTV.
The judgment is affirmed, but we certify the following question to be of great public importance:
Do the provisions of section 228.093(3)(d) create an exemption from the Public Records Law for the entire contents of a student's record within which there is a student's personally identifiable information or does it create an exemption only for such personally identifiable information within that record so that upon a proper request, the custodian must redact the personally identifiable information and produce the balance of the record for inspection under section 119.07(2)(a)?
AFFIRMED; QUESTION CERTIFIED.
PETERSON, PALMER and ORFINGER, JJ., concur.
NOTES
[1] The trial court refers to both the Defendants (the Board and its Superintendent) as the "School Board".
[2] The Court does not address maintenance issues that could arise from the reuse of the Surveillance Videotape. See, e.g., Tampa Television, Inc. v. School Board of Hillsborough County, 659 So.2d 331 (Fla. 2d DCA 1995).
[3] Chapter 2002-387, section 1058 repealed section 228.093, effective January 7, 2003. Section 228.093 was recodified as section 1002.22, Florida Statutes (2002). The 2002 recodification did not amend the provisions of section 228.093. Because this action was filed before the 2002 recodification became effective, the trial court utilized section 228.093, Florida Statutes (2001).
[4] Section 228.093, Florida Statutes (2001), was in effect on July 1, 1993, and has not been repealed.
[5] The Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 12320.
[6] See 120 Cong.Rec.39862 (Dec. 13, 1974)(Joint Statement in Explanation of Buckley/Pell Amendment).
[7] The Florida Legislature also provides any aggrieved parent, guardian, pupil, or student with a private cause of action for violation of any provision of section 228.093. The aggrieved party shall have an immediate right to bring an action in the circuit court to enforce the violated right by injunction. The aggrieved party who brings such an action and whose rights are vindicated may be awarded attorney's fees and court costs. See § 228.093(5), Fla. Stat. (2001). FERPA does not provide a private cause of action. Krebs v. Rutgers, 797 F.Supp. 1246. FERPA's nondisclosure provisions created no personal rights to enforce under section 1983. Gonzago Univ. v. Doe, 536 U.S. 273, 122 S.Ct. 2268, 153 L.Ed.2d 309.
| {
"pile_set_name": "FreeLaw"
} |
89 F.3d 828
NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.John A. HAYNES, Petitioner-Appellant,v.STATE of South Carolina; Benjamin Montgomery, Warden; T.Travis Medlock, Attorney General of the State ofSouth Carolina, Respondents-Appellees.
No. 95-7969.
United States Court of Appeals, Fourth Circuit.
Submitted April 9, 1996.Decided June 19, 1996.
John A. Haynes, Appellant Pro Se. Donald John Zelenka, Chief Deputy Attorney General, Columbia, South Carolina, for Appellees.
Before HALL, MURNAGHAN, and LUTTIG, Circuit Judges.
PER CURIAM:
1
Appellant seeks to appeal the district court's order denying relief on his 28 U.S.C. § 2254 (1988) petition. We have reviewed the record and the district court's opinion accepting the recommendation of the magistrate judge and find no reversible error. Accordingly, we deny a certificate of probable cause to appeal and dismiss the appeal on the reasoning of the district court. Haynes v. South Carolina, No. CA-94-2390-3-6BC (D.S.C. Nov. 17, 1995). We deny Appellant's motion for an investigation, along with his "Informal Motion" that a subsequently filed appeal be required to be considered by a separate panel. 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.
2
DISMISSED.
| {
"pile_set_name": "FreeLaw"
} |
18 B.R. 851 (1982)
In re Henry W. MUELLER and Bonnie I. Mueller, Debtors.
NEWTON COUNTY BANK, JASPER, ARKANSAS, an Arkansas Corporation, Plaintiff,
v.
Henry W. MUELLER and Bonnie I. Mueller and A.L. Tenney, Trustee, Defendants.
Bankruptcy No. HA-81-67, Adv. No. 82-36.
United States Bankruptcy Court, W.D. Arkansas, W.D.
March 15, 1982.
Bill F. Doshier, Harrison, Ark., for plaintiff.
Claude R. Jones, Harrison, Ark., for defendants.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL JUDGMENT DENYING PLAINTIFF'S COMPLAINT FOR RELIEF FROM THE AUTOMATIC STAY OR FOR RECLAMATION
DENNIS J. STEWART, Bankruptcy Judge.
The plaintiff seeks an adjudication in the nature of relief from the stay and reclamation of real property which the debtors have sought to make part of their chapter 13 estate and which is more fully described in the complaint in this action. The parties have agreed to the following facts:
"The Debtors borrowed $28,000.00 from Plaintiff on March 21, 1980, to purchase real property to be used as the principal residence of the Debtors. The Debtors gave to the Plaintiff their Promissory Note secured by a Mortgage on the real estate and residence thereon, and said Mortgage was duly recorded, and a copy of the Note and Mortgage are already filed in this case. The Note provides for acceleration on default of payments and for reasonable attorney fees. The Debtors were erratic in their payments during the latter part of 1980, and only made one payment on the principal in 1981, and in September of 1981, the Plaintiff filed its foreclosure action in the Boone County Chancery Court, accelerating said delinquent Note and asking for Judgment against the Debtors and a foreclosure sale of the property securing the Note. On November 5, 1981, the Plaintiff surrendered said Note and Mortgage to the Boone County Chancery Court in exchange for a Judgment and Foreclosure Decree, and the Plaintiff's Note and Mortgage has been merged into a Judgment of foreclosure filed in the Boone County Chancery Court on November 5, 1981, and a certified copy of said Foreclosure Decree is attached hereto. The foreclosure sale under said Decree was set and advertised for December 16, 1981, but was not held because of notice received from the Bankruptcy Clerk that the Debtors had filed a Chapter 13 Bankruptcy Petition on December 1, 1981. *852 "Plaintiff filed its claim herein on January 8, 1982, based on the Judgment, in the amount of $30,727.05, which is the amount of the Judgment rendered by the Boone County Chancery Court, plus interest accruing before the Bankruptcy Petition was filed. Actually, the total debt of the Plaintiff as of February 5, 1982, including all interest accrued and the insurance premium, court costs, and attorney fees allowed to Plaintiff, is $31,438.59. If the Debtors had made their payments according to the Note, the principal balance on February 5, 1982, would have been $26,112.94, making a default of $5,325.65, not counting future insurance premiums which the Plaintiff will be obliged to pay in order to keep the property insured."
A hearing has been conducted in Harrison, Arkansas, on February 5, 1982, on the issue of confirmation of the debtors' plan of arrangement under chapter 13 of the Bankruptcy Code. It was then determined by the court that the debtors have proposed a satisfactory plan of arrangement in respect to this real property, proposing to bring arrearages current and maintain current payments in such a manner as to "adequately protect" the plaintiff within the meaning of §§ 361(3) and 1325 of the Bankruptcy Code. The issue which was at that time left open for resolution of the court was that raised by this action, that of whether, under the agreed facts quoted above, the real property can be considered as part of the estate.
The crucial material fact in this regard is that, while the state foreclosure judgment had been entered, it had not been enforced by the consummation of the foreclosure sale. In the latter instance, in cases in which the foreclosure sale has actually been consummated, this court has previously held that the real property cannot be regarded as part of the chapter 13 estate. Matter of Booth, 18 B.R. 816 (Bkrtcy.E.D.Ark. 1982). But, when the foreclosure sale has not yet been consummated, the automatic stay remains applicable. "[E]ven when a mortgage is deemed to place all of the legal title in the mortgagee, the courts have held that the interests of the debtor warrant the application of the automatic stay in chapter XIII proceedings. Hallenbeck v. Penn Mutual Life Ins. Co., 323 F.2d 566, 573 (4th Cir. 1963). Cf. In re Townsend, 348 F.Supp. 1284 (W.D.Mo.1972)." Matter of Smith, 2 B.R. 417, 419 (Bkrtcy.W.D.Mo.1979). And, when the automatic stay is in effect at the inception of a chapter 13 case, it may be kept in effect, as in the case at bar, on terms which provide for the curing of arrearages and the maintaining of current payments. Hallenback v. Penn Mutual Life Ins. Co., supra; Advisory Committee Notes to Rules 13-401 of the Rules of Bankruptcy Procedure[1]; 15 Collier on Bankruptcy, ¶ 13-401.01, p. 13-401-4 (1978). The same principles are made applicable by the concepts of "adequate protection" in §§ 361-363 of the Bankruptcy Code. See also, In re Taddeo, 9 B.R. 299, 4 C.B.C.2d 185 (Bkrtcy.E.D.N.Y.1981), to the effect that it is "implicit that the language of § 1322(b)(5) contains the right of the chapter 13 debtor, at any time prior to the actual sale of the foreclosed property, to attempt cure of the pre-acceleration defaults and reinstate the original mortgage payment schedule." Cf. In re Soderlund, 7 B.R. 44, 3 C.B.C.2d 255 (Bkrtcy.S.D.Ohio 1980).
The cases cited and relied upon by the plaintiff, In re Pearson, 10 B.R. 189, 4 C.B.C.2d 57 (Bkrtcy.E.D.N.Y.1981); In re Canady, 9 B.R. 428, 4 C.B.C.2d 113 (D.Conn. 1981); In re Lockwood, 5 B.R. 294, 2 C.B.C.2d 781 (Bkrtcy.S.D.Fla.1980); In re Coleman, 5 B.R. 812 (Bkrtcy.W.D.Ky.1980), and In re Robertson, 4 B.R. 213 (Bkrtcy.D.Colo. 1980), do not suffice to dispel the fundamental and governing propositions set forth above. A judgment lien, without more, *853 without transfer of title and possession thereunder prior to bankruptcy proceedings, is subject to avoidance by either the trustee or the debtor under § 522(f)(1) of the Bankruptcy Code. And the valid and perfected security or ownership interest which may underlie the judgment is one which may be the subject of "adequate protection" under §§ 361-363 and 1325 of the Bankruptcy Code. Accordingly, it has been held that, under the concepts of "adequate protection," it is fair and equitable, even in the face of an acceleration clause, to provide for prompt curing of arrearages and maintaining of payments at the contract rate. In re Taddeo, supra. For such provisions grant the creditor all which it initially contracted for.
It is therefore
ORDERED AND ADJUDGED that the plaintiff's complaint for relief from the automatic stay or for reclamation be, and it is hereby, denied.
NOTES
[1] It is there said that the bankruptcy court "has the power to stay foreclosure of liens on real property, and . . . such power is properly exercised where the debtor has an equity in the property or it is necessary to his performance under the plan, the creditor's security is not impaired by the stay, and the stay is conditioned upon appropriate provision for curing defaults and maintaining payments on the secured claim."
| {
"pile_set_name": "FreeLaw"
} |
86 F.3d 1166
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Larry MUKES, Plaintiff-Appellant,v.Dolores RAMSEY, Jack Cowley, Linda Branham, Steve Bennett,and John Doe, Defendants-Appellees.
No. 95-6364.
United States Court of Appeals, Tenth Circuit.
May 24, 1996.
Before BRORBY, EBEL, and HENRY, Circuit Judges.
1
ORDER AND JUDGMENT*
2
Plaintiff-appellant Larry Mukes, a prisoner in the custody of the Oklahoma Department of Corrections (DOC) appearing pro se, appeals the dismissal of his 42 U.S.C. § 1983 action against DOC officials, a corrections officer, and a DOC counselor. Mr. Mukes charged that the defendants had violated his Fourteenth Amendment rights to due process and equal protection in a disciplinary proceeding against him arising from an incident in which Mr. Mukes hit defendant Branham with a water hose. The district court dismissed the action on the grounds that the claims against Ramsey and Cowley were time-barred, see Okla. Stat. Ann. tit. 12 § 95(3) (West 1996), and that Branham and Bennett had not been served within 120 days of filing of the complaint, see Fed.R.Civ.P. 4(m). We affirm.1
I. BACKGROUND
3
Mr. Mukes was convicted at a disciplinary hearing of battery and received punishment of 30 days' disciplinary segregation, loss of 365 earned credits, and a fifteen dollar fine. His final administrative appeal was denied on October 31, 1991. He filed this action on February 2, 1995, and the matter was assigned to a magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B). Subsequently, defendants Ramsey and Cowley filed a Motion to Dismiss/Motion for Summary Judgment, arguing in part that the statute of limitations had expired. Mr. Mukes failed to respond to this motion, despite the magistrate judge's filing an order advising him that his failure to respond would result in the motion being deemed confessed. The magistrate judge therefore recommended that summary judgment be awarded to Cowley and Ramsey. The magistrate also found that the complaint had not been successfully served on defendants Bennett and Branham within 120 days of filing, and that, in any event, the action as to those defendants was also time-barred.
4
Mr. Mukes filed an objection to the magistrate's report, though he did not dispute that his action was barred by the statute of limitations. The district court adopted the magistrate's Report and Recommendation, granting the motion to dismiss by Cowley and Ramsey and sua sponte dismissing the action against Bennett and Branham.
II. DISCUSSION
5
In a § 1983 action, the relevant statute of limitations is the state's statute applicable to personal injury actions. Wilson v. Garcia, 471 U.S. 261, 276-79 (1985). In Oklahoma, the statute of limitations for § 1983 claims is two years. Meade v. Grubbs, 841 F.2d 1512, 1522-24 (10th Cir.1988); Okla. Stat. Ann. tit. 12 § 95(3). The district court's finding that this action was initiated more than two years after the statute of limitations began to run is not clearly erroneous.
6
Mr. Mukes claims for the first time on appeal that he initiated this action on October 20, 1992. However, because he failed to raise this below, or to allege any facts to support this new claim, he cannot raise it here. See Hinds v. General Motors Corp., 988 F.2d 1039, 1045 (10th Cir.1993) (issues not raised in trial court are waived on appeal unless plain error is demonstrated). He also argues for the first time that his incarceration constitutes a "disability," which tolls the statute of limitations, although he fails to cite any authority for the proposition that the mere status of incarceration tolls the time for filing a § 1983 claim. Moreover, because none of the exceptions to the rule prohibiting new issues on appeal are present here, see Hicks v. Gates Rubber Co., 928 F.2d 966, 970 (10th Cir.1991) (citing exceptions including: jurisdictional issues, sovereign immunity, and questions of law whose resolution is necessary to prevent a miscarriage of justice), neither of these arguments can now be raised.
7
Finally, Mr. Mukes argued below that he was unable to find current addresses for Branham and Bennett and that he had sought the assistance of the clerk of the Eastern District of Oklahoma in attempting to serve them. Failure to effect proper service within 120 days of filing a complaint is grounds for dismissal of the complaint, in the absence of "good cause" for the failure. Fed.R.Civ.P. 4(m); Espinoza v. United States, 52 F.3d 838, 840-41 (10th Cir.1995). The district court found that Mr. Mukes had made an insufficient showing of justification for his failure to serve Linda Branham. With respect to Steve Bennett, the court concluded that because the claim against him would have been time-barred "additional attempts at service would not promote any interest of justice or serve any useful purpose." Rec. doc. 11 at 3. We find this reasoning to be sound and we adopt it with respect to the action against Branham as well as that against Bennett.
8
For the foregoing reasons, we AFFIRM the order of the district court.
9
The mandate shall issue forthwith.
*
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3
1
After examining the briefs and appellate record, this panel has determined that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument
| {
"pile_set_name": "FreeLaw"
} |
524 Pa. 415 (1990)
573 A.2d 1001
MARITRANS G.P., INC., Maritrans Partners L.P. and Maritrans Operating Partners L.P., Petitioners,
v.
PEPPER, HAMILTON & SCHEETZ and J. Anthony Messina, Jr., Respondents.
Supreme Court of Pennsylvania.
Decided April 12, 1990.
*416 MEMORANDUM OPINION
NIX, Chief Justice.
Petitioners filed an Emergency Application For A Stay Or An Order Restoring The Preliminary Injunction Pending Disposition On Application For Petition For Review (In The Nature Of An Appeal) on April 5, 1990, together with an Emergency Motion for A Hearing. Respondents filed a Brief In Opposition To The Emergency Application For A Stay of the March 29, 1990, Judgment Of A Panel Of The Superior Court. A hearing was held April 9, 1990, in chambers. Petitioners unsuccessfully sought to meet the *417 requirements for the grant of a stay. At the close of the day, April 9, 1990, my Order denying petitioners' Application was entered.
Petitioners, Maritrans G.P., Inc., Maritrans Partners L.P. and Maritrans Operating Partners L.P. ("Maritrans") obtained a preliminary injunction against respondents, Pepper, Hamilton & Scheetz and J. Anthony Messina, Jr., Esquire ("Pepper") in the Court of Common Pleas of the First Judicial District (Philadelphia County) on April 26, 1989.
On February 2, 1988, Maritrans filed a civil suit against Pepper seeking millions of dollars in damages as well as a preliminary and permanent injunction restraining Pepper from representing certain clients of Pepper's which Maritrans calls "competitors." The request for preliminary injunction was denied. An appeal to the Superior Court from that denial was orally argued. Prior to a ruling thereon by the Superior Court but while the appeal was pending, Maritrans filed an amended complaint in the court of common pleas and then withdrew its appeal. The amended complaint added counts of Breach of the Duties Owed by an Attorney to His Client, Deceit and Constructive Fraud, and Legal Malpractice to the original counts of Misappropriation of Trade Secrets, Breach of Contract and Breach of Fiduciary Duty.
After twenty-eight trial days spanning a three-month period on Maritrans' renewed motion for a preliminary injunction, the trial court again denied the request for injunction on Friday, April 21, 1989. Five days later, however, the trial court, sua sponte, reversed itself and granted the request to prohibit Pepper from representing its alleged "competitor" clients in labor negotiation. The trial court issued an order, in light of the April 26, 1989, decision, dated May 1, 1989 (amended by orders dated May 15, 1989, June 19, 1989, and July 7, 1989).
Meanwhile, on May 9, 1989, Pepper appealed the grant of the preliminary injunction to the Superior Court. On March 20, 1990, a decision of a Superior Court panel reversed the order of the court of common pleas dated May 1, 1989, *418 which granted the preliminary injunction, and judgment was entered by the Superior Court. On March 30, 1990, the Superior Court, by Judge James Cavanaugh, stayed the effect of the panel's decision until 5:00 p.m., April 6, 1990. On April 4, 1990, a per curiam denial of the Application for Stay was entered by the Superior Court, Judge Donald Wieand being noted as having not participated in the denial decision. This was the procedural posture when Maritrans' Emergency Application for a Stay was heard in this Court.
Maritrans is a Philadelphia-based maritime transportation company while respondents are a law firm and a partner of that law firm. Maritrans had been a client of Pepper for more than eleven years. In the fall of 1987 Maritrans became cognizant of Pepper's representation of five New York-based marine transportation companies in, inter alia, negotiating labor agreements with a New York local of the International Longshoremen's Association ("ILA"). In January of 1988 two other New York-based marine transportation companies became clients of Pepper, bringing the total of New York-based transportation companies represented by Pepper to seven.
In the latter part of 1987 Maritrans objected to Pepper's representation of the New York companies in labor matters, although the New York labor negotiations were not with the union with which Maritrans had its labor contract, the Seafarers' International Union ("SIU"). Pepper attempted to reach an agreement through negotiations with Maritrans which would remove the client's objections. Peter Hearn, Esquire, a partner in the firm not involved with Pepper's representation of Maritrans, was given the task of effectuating the removal of Maritrans' objections. Pepper suggested their two attorneys (D'Angelo and Haller) designated to handle Maritrans legal matters would not convey any information received from Maritrans to Pepper's attorney (Messina) designated to represent the New York firms in the labor negotiations with a local of the ILA. This proposal, called a Chinese Wall, was not accepted and on December 1, 1987, Pepper ended its representation of Maritrans.
*419 However, shortly before Pepper terminated its representation of Maritrans and while Maritrans was objecting, a meeting was held with Pepper lawyers, D'Angelo and Haller, and two Maritrans executives, Heyward Coleman, Executive Vice-President in Charge of Sales and Marketing, and John J. Burns, Jr., Manager of Labor Relations. The events of this November 5, 1989, meeting were disputed by the Pepper attendees and Maritrans' Mr. Coleman. The trial court found as facts that the meeting lasted thirty-five minutes; that strategies were discussed regarding Maritrans' desire to seek the marine transportation business in New York harbor if the New York firms' labor contract negotiations broke down and a strike was called; that these strategies were discussed with D'Angelo and Haller from both a legal standpoint and a sound business perspective; and that the information conveyed by Maritrans at the November 5th meeting was deemed confidential by Maritrans and was not to be conveyed to Messina. D'Angelo and Haller conceded this above ultimate fact.
After Pepper no longer represented Maritrans and a representation letter from Seymore Kurland of the law firm of Wolf, Block, Shorr and Solis-Cohen, on behalf of Maritrans, had been received by Pepper, Peter Hearn called a meeting of D'Angelo, Haller, Messina and himself. The meeting occurred in either late December 1987 or early January 1988. At that meeting Messina and Hearn were told of information given D'Angelo and Haller by Maritrans' executives in the November 5th meeting. This revealment was characterized by the trial court as "a disclosure in direct contradistinction to a specific request of an attorney not to tell [Messina] something." N.T., Wednesday, April 26, 1989, p. 37. Maritrans' allegations that Pepper disclosed confidential information to Maritrans' "competitors" were not accepted by the trial court, N.T. Wednesday, April 26, 1989, p. 37, and Maritrans does not assert here that there has been an actual disclosure of Maritrans' information to "competitors." Counsel for Maritrans *420 affirmatively stated at the hearing held on the present application that there was no actual disclosure.
On an application for a stay pending appeal the movant is required to make a substantial case on the merits and to show that without the stay, irreparable injury will be suffered. Additionally, before granting a request for a stay, the court must be satisfied the issuance of the stay will not substantially harm other interested parties in the proceedings and will not adversely affect the public interest. Pennsylvania Public Utility Commission v. Process Gas Consumers Group, 502 Pa. 545, 552-54, 467 A.2d 805, 808-09 (1983) (adopting the standards set forth in Virginia Petroleum Jobbers Association v. Federal Power Commission, 259 F.2d 921 (D.C.Cir.1958), as refined by Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 559 F.2d 841 (D.C.Cir.1977), as the criteria of Pennsylvania courts for the issuance of a stay pending appeal).
We examined whether Maritrans had made a substantial case on the merits and found that it had not. In its Emergency Application For A Stay, paragraphs 37 through 45, Maritrans identified the underlying cause of action relied upon as one for Breach of Fiduciary Duty.[1]
Maritrans claims there is a substantive law in this Commonwealth establishing, in attorney-client relationships, civil liability for breach of a fiduciary duty to not undertake representation of a client whose interests are materially adverse to a former client in a substantially related matter; that the breach is the undertaking of the representation of a client whose interests are materially adverse to the former client in a substantially related matter, not actual disclosure of any confidential information; and that such a breach renders the attorney liable for damages. Maritrans cites no authority for this claim. Rather Maritrans relies *421 on the authority of cases all of which are inapposite since the cases either involve actions for disqualification of attorneys, or do not involve attorney-client relationships. Reliance upon Section 396 of the Restatement of Agency (Second) and Comment (i) on Clause (c) of Section 396 is misplaced because 1) the trial court did not find Pepper had made a profit by the sale or use of confidential information, and 2) this Court has not adopted Section 396 of the Restatement of Agency (Second).
Maritrans urges its unsupported theory of the case in the face of the Superior Court's decision. That court held the lower court improperly used the Rules or Code of Professional Responsibility to augment the substantive law of this Commonwealth and thus establish a right to relief, citing to the Scope of the Rules of Professional Conduct, 42 Pa.C.S.; the Preliminary Statement to the Code of Professional Responsibility; Reilly by Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 489 A.2d 1291 (1985); and In re Estate of Pedrick, 505 Pa. 530, 482 A.2d 215 (1984) (plurality decision: two of seven justices concurring and two justices dissenting on other grounds).
In Goodheart v. Casey, 523 Pa. 188, 565 A.2d 757 (1989), I wrote:
Having rejected the argument that the due process claim requires the vacation of the judgment previously entered, we now turn to the asserted violation of the Code of Judicial Conduct. Specifically, Canon 3(C) which addresses the issue of disqualification provides: "(1) a judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, . . ."; (d)(iii) where he has "an interest that could be substantially affected by the outcome of the proceeding,. . . ." Even if there was a clear violation of this provision, it would not support SERB's position that the judgment must be vacated. Canon 3(C) does not confer substantive rights upon the parties to the litigation in question. Reilly by Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 489 A.2d 1291 (1985); Estate of *422 Pedrick, 505 Pa. 530, 482 A.2d 215 (1984). The Code of Judicial Conduct, of which Canon 3 is a part, provides standards of conduct "to be referred to by a judge in his self-assessment" of his conduct as a jurist. Reilly by Reilly v. Southeastern Pennsylvania Transportation Authority, supra 507 Pa. at 219, 489 A.2d at 1298. If the norm of conduct set for judges is violated, that is a matter for this Court to address under the powers vested in it pursuant to Article 5, section 18 of the Constitution of this Commonwealth. (Emphasis added.)
523 Pa. at 198, 565 A.2d at 762.
The holding that the Code of Judicial Conduct does not confer substantive rights upon the parties is bottomed on the legal principles enunciated in Reilly by Reilly v. Southeastern Pennsylvania Transportation Authority, supra. The law is clear that the Codes and Rules of Professional Responsibility may not be used in a fashion that, according to the Superior Court, the lower court did.
Understandably then, Maritrans seeks to avoid that path. It asserts the lower court did not use the Code or Rules of Professional Responsibility to create a cause of action but rather the Code and Rules of Professional Responsibility, introduced in this case by Maritrans and relied upon by the trial court, condemn violations of common law duties which have an independent existence. See paragraphs 36 and 37 of petitioners' Emergency Application. However, Maritrans does not establish an independent cause of action encompassing the asserted duty, asserted breach and requested relief. Thus I conclude Maritrans failed to show a substantial case on the merits.
In view of that failure, we need not scrutinize compliance with the remaining three criteria of Process Gas, supra. However, it is noted the requirement of irreparable injury to Maritrans was not met independent of Rule 1.9(a) of the Rules of Professional Conduct.
In its Emergency Application at paragraph 47, Maritrans alleges:
*423 47. The lower court's order of May 1, 1989 has constituted the status quo for nearly one year in prohibiting the harm from a flow of information about Maritrans to the New York-based competitors whose interests are materially adverse to those of Maritrans. The allowance of any break in the dam created by the May 1, 1989 order, pending appeal to this Court of the Judgment of the Superior Court of March 29, 1989, risks irreparable injury to Maritrans from the improper use or disclosure by Pepper and Messina even inadvertent of its confidential information.
The language "irreparable injury to Maritrans from the improper use or disclosure by Pepper and Messina even inadvertent of its confidential information" is clearly an adaptation of the trial court's finding of irreparable harm via Rule 1.9(a) of the Rules of Professional Conduct. The trial court said, at pp. 15-16 of the N.T. dated April 26, 1989:
Finally, and most importantly, this Court did not give full weight to the fact that Rule 1.9(a) is indeed prophylactic in nature. . . . Possibility of disclosure, even inadvertent, is a significant concern of 1.9(a).
At p. 20 of the N.T. dated April 26, 1989, that court stated:
The irreparable harm to Maritrans is apparent in the confidential information presumed to be within Pepper's knowledge, and which this Court further found to be of value to competitors, which is now subject to use or disclosure, inadvertent or otherwise, of which Maritrans may have a legitimate fear.
Thus, there is no question but that the trial court used Rule 1.9(a) to meet the irreparable harm requirement. However, the irreparable harm requirement of Process Gas is not met by the assertions of paragraph 47 of the Emergency Application.
While one legal commentator views a coalescence of malpractice law and disciplinary law positively because of needed deterrence, Lerman, Lying to Clients, 138 U.Pa.L. *424 Rev. 659, 748 (1990), there is a total vacuum of judicial decisions coalescing the Rules of Professional Responsibility with actions for breach of fiduciary duty and criteria required for the issuance of a stay of a court order. In Illinois Tool Works, Inc. v. Kovac, 43 Ill.App.3d 789, 2 Ill.Dec. 472, 357 N.E.2d 639 (1976), a manufacturer of plastic multipack carriers for packing beer, soft drinks and juice ("Tool Works") sought injunctive and other relief from an attorney (Kovac) formerly employed by it as an in-house patent attorney. Tool Works, the plaintiff, claimed a breach of the attorney-client relationship by defendant Kovac's representation of others adversely in matters that were substantially related to confidential information he had acquired while representing the Tool Works.[2] The court affirmed the lower court's dismissal of the complaint, noting the case was neither a disciplinary proceeding nor an attempt to disqualify the lawyer and finding no breach of a fiduciary or confidential relationship. That case stands for the proposition that without evidence of imminent or actual disclosure, the violation of the prophylactic rule against representation of a former client's adversary in a substantially related matter will not sustain an injunction against continued representation of the new client.[3]
Here it is emphasized the present record does not disclose either an imminent or actual disclosure to the alleged competitors. The reasoning of the Illinois Court in Illinois Tool Works, Inc. v. Kovac, supra, reflects our view of the matter.
Finally, it would have been most inappropriate and erroneous to begin such an unchartered course in response to an Emergency Application For A Stay of a lower appellate court's order. Therefore the stay request was denied.
NOTES
[1] The alleged cause of action for Breach of Fiduciary Duty was one of the three causes set forth in the original complaint. Since no reference is made to the other two, as well as the three counts added by amendment, see p. 2 of this Memorandum Opinion, the five other alleged causes have been abandoned and thus will not be addressed.
[2] The claim is remarkably similar to Maritrans' claim in this case.
[3] See, Developments-Conflicts of Interest, 94 Harv.L.Rev. 1244, 1491-92 (1981).
| {
"pile_set_name": "FreeLaw"
} |
772 F.2d 1282
NORTH AMERICAN TELECOMMUNICATIONS ASSOCIATION, Petitioner,v.FEDERAL COMMUNICATIONS COMMISSION and United States ofAmerica, Respondents.New England Telephone and Telegraph Co., et al., InterveningRespondents.U.S. WEST, INC., Petitioner,andAMERICAN INFORMATION TECHNOLOGIES CORPORATION, et al.,Intervening Petitioners,v.FEDERAL COMMUNICATIONS COMMISSION and United States ofAmerica, Respondents.Rolm Corporation, et al., Intervening Respondents.U.S. WEST, INC., Petitioner,andAMERICAN INFORMATION TECHNOLOGIES CORPORATION et al.,Intervening Petitioners,v.FEDERAL COMMUNICATIONS COMMISSION and United States ofAmerica, Respondents.North American Telecommunications Association, et al.,Intervening Respondents.
Nos. 84-2216, 84-2853 and 85-1425.
United States Court of Appeals,Seventh Circuit.
Argued (Nos. 84-2216, 84-2853)June 13, 1985.Submitted (No. 85-1425)July 22, 1985.Decided Aug. 27, 1985.
Denise Bonn, Albert H. Kramer, on the brief, Wood, Lucksinger & Epstein, North American Telecommunication Assn'n. , Washington, D.C., for petitioner.
Linda L. Oliver, F.C.C., Washington, D.C., for respondents.
Before BAUER and POSNER, Circuit Judges, and SWYGERT, Senior Circuit Judge.
POSNER, Circuit Judge.
1
Last summer, in Illinois Bell Tel. Co. v. FCC, 740 F.2d 465 (7th Cir.1984), we upheld an order by the Federal Communications Commission establishing conditions under which the Bell operating companies, having been divested from American Telephone and Telegraph Company as part of the settlement of the government's antitrust suit against AT & T, could resume the marketing of telephone handsets and other "customer premises equipment" (as well as "enhanced services," but they are not important in the present case) to their subscribers. We had thought that, having upheld the order, and review by the Supreme Court of our decision not having been sought, we were through with the matter; but, alas, no. Two of the three review proceedings that we have consolidated for decision involve challenges to aspects of the order that were not before us last year, under the guise of challenging the Commission's denial of petitions to reconsider the order we upheld. The third involves a challenge to a subsequent order of the Commission further reaffirming a provision of the original order. The reason that there are three petitions to review two orders is that two petitions challenging one order were originally filed in two circuits, the District of Columbia circuit and this circuit, and the Court of Appeals for the District of Columbia Circuit transferred its petition to us. See North American Telecommunications Ass'n v. FCC, 751 F.2d 207, 208 (7th Cir.1984) (per curiam).
2
Until 1984 the American Telephone and Telegraph Company had a powerful hold over the market for telephone handsets and other customer premises equipment. AT & T's Western Electric subsidiary manufactured the equipment and sold it to the Bell operating companies, which in turn leased (or in recent years, sold) the equipment to their subscribers. The operating companies also bought some equipment from independent manufacturers to sell or lease to their subscribers and in recent years their subscribers bought or leased some equipment from independent manufacturers directly. But most of the customer premises equipment in areas served by the Bell operating companies was equipment that the companies had bought from Western Electric and leased to their subscribers.
3
This condition changed completely in 1984, when the consent decree settling the government's massive antitrust suit against AT & T took effect. The decree spun off the operating companies from AT & T but did not make them free-standing. Instead it authorized the creation of a new tier of companies, the "Regional Bell Operating Companies," each a holding company set up to own several former Bell operating companies serving contiguous areas. Another provision of the decree transferred to AT & T all of the customer premises equipment formerly owned by the Bell operating companies and leased to subscribers. Hence the regional companies, and their Bell operating company subsidiaries, were out of the equipment business. But the decree did not require that they keep out; it left it up to the FCC to decide under what conditions they could come in.
4
The order we upheld last summer was the order setting those conditions. Policy and Rules Concerning the Furnishing of Customer Premises Equipment, Enhanced Services and Cellular Communications Services by the Bell Operating Companies, 95 F.C.C.2d 1117 (1984). We shall call this, the first of the three orders involved in this case, the "separate-subsidiary" order. It requires the regional companies if they want to get into the equipment business to create subsidiaries for this purpose that have their own personnel and premises. The Bell companies challenged this requirement as too harsh but we upheld it. The North American Telecommunications Association, which comprises independent companies (i.e., not affiliated with telephone companies) that make, sell, or install customer premises equipment, challenged the Commission's order as too gentle but we dismissed the Association's challenge as untimely. 740 F.2d at 477. The Association had appeared as an intervening respondent, filing its brief at the same time as the parties supporting the Commission's order rather than the parties attacking it, even though the Association was one of the attackers. By filing when it did the Association prevented the Commission and the true intervening respondents from filing a responsive brief, and this could not be allowed. But cf. California Public Broadcasting Forum v. FCC, 752 F.2d 670, 683 n. 10 (D.C.Cir.1985).
5
That did not stop the Association, however, for along with other parties it had filed motions asking the Commission to reconsider the separate-subsidiary order, and three days before we upheld that order the Commission had reaffirmed it in In re Petitions for Reconsideration of an Order in Policy and Rules Concerning the Furnishing of Customer Premises Equipment, Etc., 49 Fed.Reg. 26056 (June 26, 1984), the "reconsideration order." The Association has filed a petition for judicial review of the reconsideration order and that is one of the petitions before us. In addition, some of the regional companies, in their motions asking the Commission to reconsider the separate-subsidiary order, had questioned the Commission's jurisdiction over them, as distinct from over the operating companies; and two of the regional companies have filed petitions for review challenging the part of the reconsideration order in which the Commission held that it had jurisdiction and that the regional companies must get the Commission's approval for their plans of capitalization.
6
Finally, the same two regional companies ask us to set aside a third order by the Commission, in which it reaffirmed its jurisdictional holding and made clear that the regional companies face sanctions if they do not file the required plans of capitalization. In re American Information Technologies, Inc., et al., Capitalization Plans for the Furnishing of Customer Premises Equipment and Enhanced Services, FCC Mimeo No. 85-28 (Feb. 4, 1985). This is the "capitalization order." We accelerated briefing on the petitions to review this order so that we could resolve as many of the related controversies among the parties as possible at the same time. This, then, is the set of challenges that we have consolidated for decision today.
7
The Association's challenge is to three exceptions that the Commission allowed to the stringent separation required between the Bell operating companies and the equipment subsidiaries of the regional companies. Before taking up the merits of the challenge we remark its unusual procedural posture. Having a year ago dismissed the Association's challenge to the FCC's separate-subsidiary order as untimely, we are now asked to consider the identical challenge on review of the FCC's refusal on reconsideration to change the order.
8
This duplication of review proceedings would be impossible if the reconsideration order had been issued by a district court rather than the Federal Communications Commission. A party to a district court proceeding who wants the court to reconsider its judgment must within 10 days file a motion under Fed.R.Civ.P. 59(e) to alter or amend the judgment. See A.D. Weiss Lithograph Co., v. Illinois Adhesive Products Co., 705 F.2d 249 (7th Cir.1983) (per curiam). A timely filing precludes an appeal from the district court's decision until the motion is decided, Fed.R.App.P. 4(a)(4), at which time both the original judgment and the decision (if itself a final decision within the meaning of 28 U.S.C. Sec. 1291) on the Rule 59(e) motion are appealable within the time provided by Fed.R.App.P. 4(a)(1), see, e.g., Sutliff, Inc. v. Donovan Cos., 727 F.2d 648, 652 (7th Cir.1984). If the party does not file a Rule 59(e) motion within the appointed time, then he may of course appeal the district court's decision immediately. But if he fails to take a timely appeal, he cannot get appellate review of that decision indirectly, by filing a motion under Fed.R.Civ.P. 60(b) to vacate the district court's judgment and then appealing from the denial of that motion. See, e.g., Bank of California v. Arthur Andersen & Co., 709 F.2d 1174, 1176-78 (7th Cir.1983); Schildhaus v. Moe, 335 F.2d 529, 531 (2d Cir.1964) (Friendly, J.). This is essentially the end run tried by the North American Telecommunications Association in this case; and if successful it will nullify our action in dismissing its challenge to the Commission's original order as untimely.
9
But we conclude, although with reluctance, that the Association's end run has succeeded. Section 405 of the Communications Act of 1934, as amended, 47 U.S.C. Sec. 405, gives a person aggrieved by an FCC order 30 days to petition the Commission for reconsideration, and his time for obtaining judicial review of the order does not begin to run till the Commission has acted on the petition. See, e.g., Spanish Int'l Broadcasting Co. v. FCC, 385 F.2d 615, 621 (D.C.Cir.1967); cf. Samuel B. Franklin & Co. v. SEC, 290 F.2d 719, 725 (9th Cir.1961). (Section 405 has the distinct function, noted briefly later in this opinion, of making sure that the FCC has an opportunity to consider any challenge, legal or factual, to its order before the challenge is brought to court. See, e.g., Washington Ass'n for Television & Children v. FCC, 712 F.2d 677, 680-83 (D.C.Cir.1983).) But unlike the counterpart situation in district court proceedings, the petitioner for reconsideration need not wait for the Commission to act on his petition before he can seek judicial review. See Samuel B. Franklin & Co. v. SEC, supra, 290 F.2d at 725. Hence we could be faced with a case where, the Commission having issued an order and we having upheld it, a party to the review proceeding could come back to us on a petition to review an order denying a petition for reconsideration filed within 30 days of the original order. This is essentially the present case except that the Association's previous challenge in this court to the separate-subsidiary order was dismissed as untimely rather than rejected on the merits.
10
Inefficient as such procedural redundancy is, its defects would be tolerable if the Commission had stringent criteria for reconsideration, since on the second judicial review the only issue open is whether the Commission erred in denying the petition to reconsider, not whether it erred in its original order. The Commission's rules of procedure, however, contain a catch-all provision that allows the Commission to reconsider its decision de novo even if no new material is presented, see 47 C.F.R. Sec. 1.429(b)(3), and apparently that is the basis on which the Commission proceeded in the present case. The Commission did not deny the petition for reconsideration on the ground that there was nothing new in the petition; it just repeated that the Association's criticisms of the separate-subsidiary order lacked merit. And no party in this court has questioned the propriety of the Association's end run. As neither the statute nor the Commission's rules forbid it to deny a motion for reconsideration on the ground that the original order was correct, and as denying judicial review of such denial would be a harsh sanction for the Association's untimely filing of its previous review proceeding and a sanction that as we have said no party asks us to impose, we shall take up the merits, and decide whether the separate-subsidiary order was correct in the particulars challenged by the Association.
11
The Association's first challenge is to a provision allowing each of the regional companies, for a period of four years after divestiture (that is, four years after January 1, 1984), to send to persons who both subscribe to the service of the regional company's telephone company subsidiary and lease customer premises equipment from the regional company's equipment subsidiary a single bill for telephone service and equipment. The Commission's purpose in allowing a joint-billing exception to the strict separation of telephone services from equipment was to prevent confusion of customers. Until divestiture, the customers of the Bell operating companies were accustomed to obtaining both service and equipment from the same company, the Bell operating company, and to paying a single charge for both, denominated as a service charge. During the four-year transition those customers who obtain their equipment from the telephone company will be charged separately but on one bill that will list separate charges for telephone service and for equipment. In this way they will gradually get accustomed to the fact that these are separate things for which they are paying, and they will be less surprised when eventually they start to receive separate bills, from separate subsidiaries of the regional companies, one for service and one for equipment.
12
The thinking behind the transition period may seem paternalistic and the period itself too long, but judicial review of an agency's determination that the customers for a regulated service need a specific form of protection from confusion or deception is particularly narrow, because the determination is judgmental. United Air Lines, Inc. v. CAB, 766 F.2d 1107, 1112-13 (7th Cir.1985). Although prices for customer premises equipment--prices that the FCC once regulated as part of its regulation of telephone service--are no longer regulated, the Commission can relinquish control of prices while rationally believing that customers continue to need protection from deception, just as Congress decided to eliminate rate and entry regulation in the airline industry while continuing to allow regulation designed to prevent deceptive and unfair practices. See id. at 1109-12.
13
The Association, however, views the transition period itself as an engine of deception. It argues that a person who receives a bill on which a charge for equipment appears alongside a charge for telephone service will fear that if he doesn't pay the equipment charge, his telephone service will be cut off; and fearing this he will pay up and the equipment company will not be plagued by deadbeats, while the Association's members will be and this will make them less able to compete with the Bell operating companies. Now as a matter of fact a telephone company is not allowed to cut off telephone service as a way of collecting a debt owed to the company's equipment subsidiary, but many consumers may not know this. Since the members of the Association are independent providers of telephone equipment, no customer of theirs will fear the cutting off of his telephone service if he fails to pay for equipment he has bought or leased, and the Association's members are therefore at a disadvantage in getting paid and hence in competing with the equipment subsidiaries of the regional companies. No effort to set a price tag on this disadvantage has been made, however, and we do not think the Commission was required to give great weight to an argument left in so highly speculative a posture.
14
Moreover, on the speculative plane that the argument inhabits it overlooks several possibilities. One is that if people who buy customer premises equipment from a telephone company's affiliate do not know that the telephone company cannot cut off their service if they fail to pay for the equipment, people who buy equipment from an independent supplier may not know that the supplier cannot get the telephone company to cut them off if they default, much as an ordinary creditor might get his debtor's employer to garnish the debtor's wages. If people do not know that, the Association will not be at a competitive disadvantage; it will benefit from consumer ignorance as much as companies that have affiliates that provide telephone service.
15
Another possibility is that a telephone subscriber who has a choice between leasing his equipment from a firm that (he thinks) can terminate his telephone service if he gets into a dispute with it and leasing it from a firm that does not have this fell power will prefer the latter firm. To offset this preference the equipment subsidiaries of the regional companies will have to offer customers more favorable terms. Any extra profit from having fewer deadbeats will be used to pay for the inducements necessary to get people to submit to what they think is a harsh collection device. Granted, the offset may not be perfect. Moreover, customers may sort themselves into the potential deadbeat and the predictably reliable, with the members of the Association getting the former and the regional companies the latter. In that event the regional companies will offer no inducements, being happy to cede the deadbeats to the independents. But all this just shows that the issue of consumers' mistakenly ascribing greater powers of debt collection to the regional companies than to the independent companies is too speculative to invalidate the Commission's rule. Everyone is making guesses; the principles of judicial review of administrative action require deference to the agency's guesses.
16
Next the Association challenges a provision in the order that allows, without limit of time, the same Bell operating company employees who install basic (single-line) telephone service for a home or business also to install and maintain a single-line telephone for the customer. This is an exception to the requirement that the separate subsidiaries for telephone service and customer premises equipment must have separate personnel. The Commission's reason for allowing this exception is that the installation and maintenance of the simplest telephone--the single-line telephone--are such simple operations that distinguishing the costs of the equipment from the costs of the telephone service will be easy. The Commission of course rejected accounting separation as an alternative to the physical separation of staff and premises required by its separate-subsidiary order, but did so because of the difficulty of separating common costs by the methods of accounting, and it thinks the difficulty will be slight in the case of the basic telephone handset.
17
Since most telephone service is basic residential and small-business service--most homes, and most very small businesses, have telephones with just a single line and no other telecommunications equipment--this is a major exception to (some might say a loophole in) the requirement of physically separate subsidiaries for service and equipment, although the trend toward "modular" phones, which simply plug into a telephone jack and hence do not require installation, may eventually make the exception of academic significance. But an agency has, in the nature of things, a particularly broad discretion when balancing considerations left formless and unmeasured because of the parties' failure to present empirical evidence. See Illinois Bell Tel. Co. v. FCC, supra, 740 F.2d at 474. This is such a case.
18
On one side of the ledger was the danger that the regional companies would gain an uneconomical advantage over their independent competitors in the equipment market, either by allocating some of the costs of equipment to telephone service in order to make the equipment look cheaper to the customer or by forcing the customer to take their equipment as a condition of obtaining adequate service. The parties made no effort to measure the danger. On the other side were the costs (also unquantified) in forgone economies of scope from forcing the regional companies to provide such closely related goods as telephone service and customer premises equipment with different staffs and from different premises. The balance differs with the kind of equipment. In the case of the simplest equipment, the danger is small that a regional company whose telephone company subsidiary is allowed to provide the personnel who install and maintain the equipment will smuggle the costs of installation and maintenance into the line (service) charges. Those costs can readily be determined and the regional companies made to account for them effectively. At the same time, the economies of joint provision are large: the fewer people needed for joint provision, the less economical it would be to insist that the same people can never provide both. This can be seen most clearly by imagining that it takes only one person to install both the telephone line and the telephone handset.
19
Balancing intangibles is an administrative responsibility par excellence. Reviewing courts should not attempt to second-guess the performance of this task, for they can do little to improve it. Unless the agency commits a logical error or overlooks evidence contrary to its result, its judgment will not be rejected. It did neither here. The Commission was not compelled as a matter of law to require featherbedding in the provision of closely related goods (the telephone line and the telephone) in order to shield the members of the North American Telecommunications Association from all risk of unfair competition.
20
This brings us to the third and most serious challenge mounted by the Association against the Commission's order, the challenge to "dial-tone referral." The Commission's order provides that when a customer telephones a Bell operating company to order telephone service (the usual way of ordering such service), and asks about getting a telephone or other customer premises equipment, the operator must tell him that as a result of the antitrust consent decree the company no longer provides equipment, but that many companies, including an affiliate of the operating company, do. In addition--and here is the part that the Association challenges--the operator after saying this may ask the customer ("in a neutral fashion") whether he would like the call transferred to the telephone company's equipment affiliate and may, if the customer says "yes," transfer the call so that the customer does not have to dial again. This privilege, which like the joint installation and maintenance of single-line telephone service and equipment has no expiration date, the Association regards as giving the regional companies an unfair competitive advantage over its members.
21
Dial-tone referral must confer some advantage on the regional companies even if the operators always inflect their voices neutrally. It pretty much ensures that the regional company's equipment subsidiary will get first crack at most potential residential and small-business customers for telephone equipment. But whether first crack confers a big advantage over independent providers of equipment is not so clear. That depends on the level of customer awareness of the intensely competitive character of the telecommunications equipment market. Thus the lack of a time limitation on the right of dial-tone referral may be harmless, since customer awareness of the competitive nature of the industry will certainly grow rather than decline.
22
Two factors support dial-tone referral. The first is AT&T's powerful headstart in the market for customer premises equipment by virtue of taking over the existing Bell system equipment. The Commission wants the Bell operating companies to be able to compete effectively with AT&T, starting as they are from zero market shares. Second--and this distinguishes the Bell operating companies from other new entrants into the equipment market--the Commission was concerned that without dial-tone referral, customers would be confused. As we noted in connection with joint billing, customers long were accustomed to getting the line and the telephone from the same company, the telephone company, usually a Bell operating company. It was not like electricity, where you get the line from the electric company but not the toaster, or the blender, or the electric tooth brush. The telephone line has for the ordinary user only one use, and he therefore has difficulty understanding why he must deal with more than one supplier. If the telephone company just installed the line and said to the subscriber, "you have your line, now find something to plug into it," the subscriber, at least the subscriber who does not follow developments in antitrust and regulation raptly, would be as perplexed as the buyer of an automobile who was told by the auto dealer to go buy the tires for the car elsewhere.
23
The most questionable feature of dial-tone referral is allowing the operator, if the caller requests, to transfer the call directly to the equipment subsidiary. If the caller were just given the subsidiary's phone number, the subsidiary would be placed on a more equal plane with the independent providers of customer premises equipment. But we cannot say that call transfer (the feature of dial-tone referral that gives it its name) condemns the Commission's order. It is after all a legitimate convenience to the caller not to make him call twice. And no doubt some callers would think it distinctly odd for the telephone company to make them place a second call, to the telephone company's own affiliate, in order to get equipment necessary to make telephone service worth anything to them.
24
And as with the allowance of joint billing, which rests on a similar concern with potential confusion of customers, we are not in a position to second-guess the Commission's determination that the benefits of dial-tone referral in reducing customer confusion and disaffection outweigh the costs in reduced competition in the equipment market. As the Association has made no effort to gather any evidence on the effects of dial-tone referral, which has been in force now for more than a year and a half--not even to the extent of monitoring the neutrality of the operators' responses, as the Association could easily have done by calling up the operating companies on a random basis--we are again being asked, and we decline, to reverse a judgmental determination by the Commission.
25
An obvious alternative to dial-tone referral would be call transfer to a randomly selected equipment supplier, which would sometimes be the phone company's affiliate and sometimes an independent provider. The operator could say to the customer, "If you don't have any preference regarding a supplier of customer premises equipment, I can connect you to an approved supplier chosen at random." This is the technique that has been adopted for equalizing competition in the long-distance telephone service market between AT&T and the independent providers of that service. But we cannot fault the Commission for not having used this technique here, when for all that appears none of the parties has suggested that it do so. We add that as there are many more suppliers of equipment than suppliers of long-distance service, the problems inherent in random assignment (who should be eligible? how often should a given firm get a random assignment?) would be amplified if the technique were used in the equipment market.
26
Admittedly it is difficult to understand, given the close relation between the joint-billing and dial-tone-referral rules, why the former is to expire after four years and the latter is to go on indefinitely. But this inconsistency is not serious enough to invalidate either or both rules, especially since, as we have noted, the competitive effects of dial-tone referral will diminish over time. Moreover, it will be open to the Association, after four years or even sooner if it wants, to go back to the Commission and say, there is no longer a danger of customer confusion, so rescind dial-tone referral. The Commission will be obliged at least to consider the argument. Cf. 47 C.F.R. Sec. 1.429(b); Atchison, Topeka & Santa Fe Ry. v. United States, 284 U.S. 248, 261-62, 52 S.Ct. 146, 150, 76 L.Ed. 273 (1932); Geller v. FCC, 610 F.2d 973, 979-80 (D.C.Cir.1979) (per curiam); Illinois Central Gulf R.R. v. ICC, 720 F.2d 958, 962-63 (7th Cir.1983); but cf. Bowman Transport., Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 295-96, 95 S.Ct. 438, 446-47, 42 L.Ed.2d 447 (1974). In an industry as mutable as telecommunications, rules that do not expire automatically at a fixed date are not thereby given eternal life. Four years from now the situation in the industry may be so different that the rule will be thoroughly obsolete. Or it may be that while by then very few customers will require dial-tone referral to protect them from being confused or disgruntled, by the same token so many customers will be conscious of the advantages of shopping around before deciding whose equipment to buy that the competitive disadvantages of which the Association complains will be minute.
27
The Commission is not required to wrap up at one time every regulatory loose end left flapping in the wake of a seismic regulatory event such as the divestiture of the Bell operating companies. It is not required to insist on an airtight separation between the operating companies and their equipment affiliates when the result might well be potential confusion for many customers, merely for the sake of what may be quite modest gains in making the equipment industry more competitive. The Commission is allowed to feel its way as it has done by giving the regional companies some breathing room to integrate their service and equipment offerings.
28
The other issues before us derive from the argument by two of the regional companies that the Commission has no power to regulate them because they are not common carriers. We should make clear exactly what is at stake here (less than meets the eye). The companies are not arguing that the separate-subsidiary order is invalid because addressed to entities over which the Commission has no jurisdiction. They concede that the Commission can tell the Bell operating companies--common carriers that remain under the Commission's regulatory aegis even though now owned by the regional companies rather than AT&T--not to provide customer premises equipment to their subscribers, or affiliate with any entity that does so unless it is physically separated. They concede that the Commission can demand of them whatever information it needs to make sure they are not using the holding-company form to evade the requirement that the equipment subsidiary really be separate. Cf. 47 U.S.C. Sec. 219(a). They are not challenging the disapproval of their plans of capitalization, either, as they have not submitted their plans yet, so there is nothing to approve or disapprove. They merely balk at being ordered to submit plans of capitalization that the Commission might disapprove. Their challenge is nevertheless ripe because they face sanctions if they disobey the order. See, e.g., Columbia Broadcasting System, Inc. v. United States, 316 U.S. 407, 417-19, 62 S.Ct. 1194, 1200-01, 86 L.Ed. 1563 (1942); A.O. Smith Corp. v. FTC, 530 F.2d 515, 522 (3d Cir.1976).
29
The Communications Act of 1934, the Commission's charter, does not authorize the Commission to regulate holding companies. Although AT&T in 1934 as until 1984 was a holding company owning telephone companies, it was also a direct provider of interstate telephone service through its Long Lines Division, and it was therefore a common carrier regulable by the FCC. As the Bell operating companies were also common carriers in interstate commerce, see California v. FCC, 567 F.2d 84 (D.C.Cir.1977) (per curiam); 47 U.S.C. Sec. 152, the interactions among them and with AT&T were snugly within the Commission's grasp even though the Commission had no explicit power to regulate holding companies.
30
Congress's omission to confer such power was not inadvertent; the matter was addressed in the debates. In this court the Commission makes the odd argument that the regional companies should not be allowed to argue legislative history to us, because they did not argue legislative history to it. It appeals to the rule that you cannot ask a court to strike down an agency's order on a ground you did not give the agency a chance to address. This is a basic rule of administrative law, see, e.g., SEC v. Chenery Corp., 318 U.S. 80, 94, 63 S.Ct. 454, 462, 87 L.Ed. 626 (1943); General Elec. Co. v. NRC, 750 F.2d 1394, 1404 (7th Cir.1984), and in the case of the FCC has a statutory basis, too, see 47 U.S.C. Sec. 405, discussed earlier. But no statute and no judge-made rule forbid a party to do additional research and present the results to the reviewing court. Although emphatic that courts should defer broadly to an agency's interpretation of the statutes it administers, see, e.g., Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., --- U.S. ----, 104 S.Ct. 2778, 2783, 81 L.Ed.2d 694 (1984), the Supreme Court has not stated or implied that every argument, or every fruit of library research, bearing on statutory interpretation must be offered to the agency first, or be forever withheld from judicial consideration. That would imply that we could not do any independent research on legislative history in administrative cases; we would be limited to the materials submitted to the agency. That would be a silly restriction. The Commission has the same access to legislative-history materials as we; we do not think it can prevent a party from inviting our attention to those materials just because the Commission didn't bother to do any independent research, any more than it can prevent us from relying on a case not cited to it.
31
But we do not draw the same inferences from the legislative history that the petitioners do. A bill, H.R. 8301, 73d Cong., 2d Sess., Feb. 27, 1934, contained a provision (section 215) which if enacted would have given the Commission comprehensive authority over transactions between common carriers and their affiliates. The provision was deleted because AT&T "was insistent that it would wreck the telephone company's business and make it impossible for the company to do business, and painted a very black picture." 78 Cong.Rec. 8824 (1934) (remarks of Senator Dill). No doubt AT&T was concerned that the FCC might interfere with the web of contracts that made the Long Lines Division, Western Electric, Bell Laboratories, and the Bell operating companies a single entity for providing telephone service and equipment nationwide. In place of the stricken provision the Commission was directed to investigate affiliate relationships and report back to Congress. See id.; 47 U.S.C. Sec. 215. But the provision of H.R. 8301 that required parent companies to file annual reports with the Commission in the form prescribed by the Commission (section 219) survived, only with a change from "parent or subsidiary of" to "persons directly or indirectly controlling or controlled by," which if not just a change of form rather than substance expands rather than contracts the Commission's authority. This is all the relevant legislative history that we have found.
32
Having been denied comprehensive authority over holding companies, the Commission could not (we may assume without having to decide) adopt a blanket rule requiring the regional companies to submit their capitalization plans to the Commission for approval. But this is not what the Commission did. It commanded the submission of such plans by companies that have both telephone and equipment subsidiaries, and it proposes to limit its scrutiny of the plans to the respects in which they may affect the Commission's now indubitably lawful separate-subsidiary order. The limited power that the Commission has asserted falls (or so at least the Commission was entitled to conclude from an interpretation of the Communications Act to which we are bound by Chevron and the decisions cited there to give substantial deference) within the scope of a separate grant of power to the Commission. This is the necessary and proper clause, section 4(i), 47 U.S.C. Sec. 154(i), which authorizes the Commission to "perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this chapter, as may be necessary in the execution of its functions." Section 4(i) empowers the Commission to deal with the unforeseen--even if it that means straying a little way beyond the apparent boundaries of the Act--to the extent necessary to regulate effectively those matters already within the boundaries.
33
Section 4(i) is not infinitely elastic. It could not properly be used to regulate an activity unrelated to the communications industry, as the court found the Commission had done in GTE Service Corp. v. FCC, 474 F.2d 724, 735-36 (2d Cir.1972) (data processing), or, as its language makes clear, to contravene another provision of the Act, see AT & T v. FCC, 487 F.2d 865, 876-78 (2d Cir.1973). So if the Communications Act said, "hands off holding companies," section 4(i) would not save the present order. But the Act does not say that; it just does not grant the Commission comprehensive power over holding companies, and that is not the power that the Commission is claiming here. The power asserted here is less far-reaching than the power the Commission has been allowed to exercise under its implied "ancillary jurisdiction" to regulate services such as cable television that impinge on the services over which it has explicit statutory jurisdiction. See, e.g., United States v. Southwestern Cable Co., 392 U.S. 157, 178, 88 S.Ct. 1994, 2005, 20 L.Ed.2d 1001 (1968).
34
The only real question is whether the Commission could reasonably conclude that requiring the regional companies to submit plans of capitalization for the Commission's approval was necessary and proper to the effectuation of the separate-subsidiary order. The regional companies combine telephone companies with unregulated operations such as the sale of customer premises equipment, but the equipment subsidiary must be financed separately from the telephone company. Suppose that a regional company uses its retained earnings to finance an expansion of its equipment subsidiary. If those earnings were generated disproportionately by the profits of the telephone subsidiary, it would mean that the telephone subsidiary was subsidizing the equipment subsidiary in violation of the separate-subsidiary order. The Commission wants to prevent this by inspecting the regional companies' capitalization plans to make sure that the equipment subsidiaries are not undercapitalized so that they do not become a drain on telephone-company revenues; and to disapprove any plan which creates a danger of this.
35
The petitioners point out that any retained earnings are their property. This is true, but weakens rather than strengthens their argument. Cf. Bangor Punta Operations, Inc. v. Bangor & Aroostook R.R., 417 U.S. 703, 714-15, 94 S.Ct. 2578, 2584-85, 41 L.Ed.2d 418 (1974). The Commission has a legitimate interest in discovering whether the regional companies are using revenues from regulated telephone operations to support their unregulated equipment businesses. This would be an abuse of the holding company form that the Commission would have the duty to correct, and no lack of statutory power to do so. Both the telephone line and the equipment attached to that line are within its regulatory reach, see, e.g., Computer & Communications Industry Ass'n v. FCC, 693 F.2d 198, 213 (D.C.Cir.1982), and the Commission cannot be prevented from regulating within its proper domain by the creation of paper entities; it can pierce the corporate veil in order to prevent frustration of its regulatory tasks. This case is the opposite of Powell v. Washington Metropolitan Area Transit Comm'n, 485 F.2d 1080, 1084-85 (D.C.Cir.1973), where the regulatory agency was allowed to include retained earnings in the regulated firm's rate base in order to encourage the expansion of the regulated service.
36
Granted, the problem of subsidizing a regional company's equipment subsidiary out of profits made by its telephone company subsidiary would not exist if those profits were limited to the amount necessary to attract the necessary capital for its business, as they would be if federal and state regulation of telephone rates were fully effective; but it cannot be assumed to be fully effective. Granted, too, the danger of cross-subsidization under the conditions now prevailing in the telephone industry may well be remote. But that is not argued by the regional companies and in any event would be more pertinent to a challenge to the Commission's action in disapproving a particular capitalization plan than to a challenge to its power to require the submission of such plans.
37
The Commission could try to police compliance with the separate-subsidiary order directly, without worrying about the capital structure of each regional company. But it wants to intervene at an earlier stage, lest capital structure, once set, be hard to change. We cannot say that this is an unreasonable desire or one beyond the Commission's broad powers under section 4(i), and will not say that it is an unwise desire, as that is not our business.
38
We need not speculate on the possible grounds on which the Commission might disapprove a regional company's plan of capitalization; the Commission has yet to disapprove one. We also do not pass on the issue whether the Commission has the power to impose the particular sanctions it has threatened on regional companies that do not comply with the capitalization order. Now that the order has been upheld, we can assume the companies will comply. The issue of sanctions is premature.
39
AFFIRMED.
| {
"pile_set_name": "FreeLaw"
} |
683 So.2d 310 (1996)
Michael BERRY and Elizabeth Berry, Individually, and on behalf of their minor child, Amber Nicole Berry, Plaintiffs-Appellants,
v.
INSURANCE COMPANY OF NORTH AMERICA, et al. and Hinton Well Servicing, Inc., d/b/a Hinton Well Services, Defendants-Appellees.
No. 28580-CA.
Court of Appeal of Louisiana, Second Circuit.
October 30, 1996.
Rehearing Denied December 5, 1996.
*311 Norman R. Gordon & Associates by W. Orie Hunter, III, Shreveport, for Plaintiffs-Appellants.
Brittain & Sylvester by Russell L. Sylvester, Natchitoches, Young, Richard & Meyers by George J. Richaud, New Orleans, for Defendants-Appellees.
Before MARVIN, NORRIS HIGHTOWER, GASKINS and CARAWAY, JJ.
CARAWAY, Judge.
In this case, we are asked by an injured employee to extend the ruling in Weber v. State, 93-0062 (La. 4/11/94), 635 So.2d 188, to allow this action in tort against the employer and the worker's compensation insurer for their intentional refusal to authorize a medical procedure which would have prevented a significant worsening of his employment-related injury. Since we find that the Worker's Compensation Act exclusively provides for the plaintiff's remedies, we refuse to extend the Weber ruling to this case and affirm the trial court's grant of the exception of no cause of action dismissing the suit.
Procedural background
According to the petition, the plaintiff, Michael Berry, sustained an injury while working for Hinton Well Servicing on June 10, 1992, which resulted in his suffering reflex sympathetic dystrophy ("RSD"). Hinton and its insurer, INA, began paying all weekly and medical worker's compensation benefits. On July 22, 1993, Berry's doctors requested the defendants' approval and payment for "a trial spinal cord stimulator and a trial spinal cord infusion pump to treat Michael's [RSD]." Berry alleged that these were
reasonable and necessary treatments, which would have prevented the spread of Michael Berry's [RSD], would have prevented the [RSD] from becoming intractable, would have prevented Michael Berry from suffering needless pain and suffering, and would have allowed Michael Berry to regain use of his right leg.
The defendants thereafter repeatedly refused to pay for this trial procedure. On April 22, 1994 the doctors requested approval and payment for a permanent spinal cord stimulator and infusion pump which, according to the petition, were needed immediately, would have prevented the spread of the RSD, would have prevented the RSD from becoming intractable, would have averted needless pain and suffering, and would have allowed Berry to regain the use of his right leg. This request was also denied. The petition further alleges that the defendants refused to authorize this necessary medical procedure despite knowledge that timely treatment is critical and that denial of such treatment would cause Berry's RSD to become intractable (unmanageable or hard to cure), to worsen, spread, cause excruciating pain and suffering, and deprive him of the use of his leg.
Berry filed this petition for his own damages (physical pain and suffering, loss of earning capacity, loss of enjoyment of life, medical expenses, lost wages, emotional distress, living expenses, interest and costs) and his daughter's loss of consortium; his wife *312 also sued for loss of consortium, wages and fringe benefits.
The defendants filed exceptions of no cause of action, urging that under the compensation Act, Berry's sole remedy for the failure to pay medical benefits is statutory penalties and attorney fees. La. R.S. 23:1201 and 1201.2; Bergeron v. North American Underwriters, Inc., 549 So.2d 315 (La.1989).
The Berrys opposed the exception citing the Weber decision and arguing that on the facts alleged, the defendants' intentional and arbitrary refusal to pay was not subject to the exclusive remedies of the Act. La. R.S. 23:1032 B. Following the district court's dismissal of their case as a no cause of action, the Berrys (hereinafter referred to collectively as plaintiff) have appealed.
Applicable law
The purpose of the exception of no cause of action is to determine the sufficiency in law of the petition. The exception is triable on the face of the papers, and, for the purposes of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. La. C.C.P. art. 927; Roberts v. Sewerage and Water Board of New Orleans, 92-2048 (La. 3/21/94), 634 So.2d 341. The general rule is that an exception of no cause of action must be overruled unless the allegations of the petition exclude every reasonable hypothesis other than the premise upon which the defense is based, i.e., unless the plaintiff has no cause of action under any evidence admissible under the pleadings. Id.; Haskins v. Clary, 346 So.2d 193 (La.1977). Every reasonable interpretation must be accorded the allegations in favor of maintaining the sufficiency of the petition and affording the litigant the opportunity to present his evidence. Jarrell v. Carter, 577 So.2d 120 (La.App. 1st Cir.1991), writ denied 582 So.2d 1311.
The compensation Act is remedial in nature and must be construed in favor of the injured employee. Pinkins v. Cardinal Wholesale Supply Inc., 619 So.2d 52 (La. 1993); Roberts v. Sewerage and Water Board of New Orleans, supra. The rights and remedies granted by the compensation Act are generally exclusive of tort remedies. La. R.S. 23:1032 A(1)(a). However, the exclusive nature of the compensation remedy is inapplicable to intentional acts. R.S. 23:1032 B; Gagnard v. Baldridge, 612 So.2d 732 (La. 1993).
At the time of the defendants' alleged actions withholding medical benefits, La. R.S. 1201E provided for penalties of twelve percent of the amount due or fifty dollars per day (up to a $2,000 maximum) for each day of delinquency, whichever was greater, for the untimely payment of medical benefits. Act No. 1003 of 1992, effective January 1, 1993. The penalty for untimely payment was inapplicable only if the necessity for the medical benefits was "reasonably controverted" by the employer or its insurer. In addition to this penalty for untimely payment, La. R.S. 23:1201.2 provides the employee with the remedy of reasonable attorney's fees when the employer's failure to pay benefits is found to be arbitrary, capricious or without probable cause.
Discussion
Plaintiff asserts a cause of action outside the exclusive framework of the worker's compensation system for the intentional failure to provide medical treatment. In Weber v. State, supra, the Supreme Court reviewed a similar denial of medical benefits and the application of the penalty and attorney's fees provisions of the Act in a situation where the employee had died shortly after his treating physician had advised the employer of the necessity for heart transplant surgery to possibly save the employee's life. The court made its ruling recognizing the plaintiff's tort claim based upon an analysis of the legislative intent for the scope of the penalty provisions of the Act and found that those penalties were never intended to "encompass the situation where the employer knew to a substantial certainty that a refusal [of medical treatment] would cause death." Id., p. 193. Though the duty to provide medical benefits was a duty imposed by the Act, the absence of an adequate worker's compensation penalty or remedy to redress the unusual circumstances which allegedly led to the employee's death caused the court *313 to recognize the existence of the general tort remedy as a permissible cause of action.
The court in Weber noted that the medical benefits claim upon which the penalties and attorney's fees could be imposed arguably had become moot following the employee's death. Likewise, since the death had occurred beyond two years following the onset of the employee's occupational disease, the death benefits under the Act which the Weber dependents could claim might have prescribed despite the fact that the defendants' alleged wrongful conduct had occurred immediately prior to the death. The court concluded that since the otherwise exclusive remedies of the Act did not fit with the circumstances of Weber's death, there was no statutory intent to exclude the plaintiff's claim in tort against the employer for wrongful death.[1]
In this case, we must likewise determine the legislative intent regarding the scope of the remedies of the Act for the defendants' refusal to provide the plaintiff with the requested medical procedure. The 1988 amendments to the Act which were not applicable in Weber provided additional power to the director of the Office of Worker's Compensation Administration (OWC) to require the use of appropriate administrative procedures "for determining the necessity, advisability, and cost of proposed ... hospital care or services, medical or surgical treatment ... and to resolve disputes over the necessity, advisability, and cost of same." La. R.S. 23:1291(B)(10). Upon application of the employee, the director shall order an examination of the employee by a doctor selected and appointed by the director whose report to the director shall be prima facie evidence in subsequent proceedings before the OWC. La. R.S. 23:1123.
Regarding the twelve percent or fifty dollars per day penalty of Section 1201, Act 1003 of 1992 amended that section to provide expressly that "medical benefits" are included within the protection afforded by the imposition of such penalty. Unlike Section 1201.2 which provides for the payment of the employee's attorney's fees for the employer's arbitrary or capricious failure to pay benefits, the untimely payment penalty of Section 1201 makes no distinction regarding the measure of the defendant's scienter, whether whimsical or deliberate, arbitrary or intentional, with the only defense against the penalty being a reasonably held belief by the defendant controverting the necessity or propriety of the proposed medical procedure.[2]
Subsequent to the time of the incident in Weber, constitutional and legislative changes instituted the system of administrative hearing officers for the OWC, divesting the district courts of jurisdiction over claims and disputes arising out of the Worker's Compensation Act. La. Const. art. V, §§ 10(A) and (B) and 16(A); La. R.S. 23:1310.1 and 1310.3(E); Long v. Insurance Company of North America, 595 So.2d 636 (La.1992). The power to adjudicate claims for medical benefits and to assess penalties lies in the OWC and the hearing officer whose procedure is governed, in the absence of special rules, by the Louisiana Code of Civil Procedure. Judgments rendered by hearing officers are appealable directly to the state *314 courts of appeal. La. R.S. 23:1310.5. Similarly, the appellate court's supervisory powers may be invoked in emergency as well as other circumstances. La. C.C.P. 2201.
Upon the initial breach of the defendants' alleged duty to provide the medical procedure requested in July, 1993, the procedural structure of the OWC adequately allowed for immediate judicial recourse which, to the extent that the plaintiff's injuries were becoming "intractable" as alleged in this suit, might have provided expedited relief to avoid irreparable injury.[3] From this quasi-judicial and administrative structure designed by the legislature, we see no intent to allow the adjudication of the breach of the employer's duty to administer medical benefits in two separate forums depending upon the narrow distinction that can exist between grossly negligent or capricious acts of non-payment and intentional acts of nonpayment.[4]
From these provisions contained within the Worker's Compensation Act and particularly Section 1201, we find sufficient evidence of a legislative intent to provide remedies under the Act for the administrative mishandling of a claim for medical benefits whether caused by the defendant's negligent or intentional disregard of the employee's rights. An arbitrary or negligent mistake by an employer in failing to pay medical benefits may cause mental anguish, unnecessary pain and a worsening of the employee's injury to the same extent that the defendants' alleged intentional conduct caused the plaintiff's damages in this case. Nevertheless, unlike the death of the employee in Weber which made the remedies of the Act meaningless, the legislature has balanced the exchange of rights between the employer and the employee in this instance and provided the remedy of the Section 1201 penalties and reasonable attorney's fees which sufficiently protect the employee regardless of the defendant's state of mind in breaching his duty. The jurisdiction of the OWC, with its procedural powers and administrative expertise for the review of proposed medical procedures, reflects the legislative intent for a single forum in which even injuries to an employee's health which are worsening due to the need for special and immediate medical procedures can and should be quickly remedied.
For the foregoing reasons, the judgment of the trial court dismissing the plaintiff's action is AFFIRMED without prejudice to plaintiff's right to proceed before the Office of Worker's Compensation Administration for the exclusive remedies discussed above.
AFFIRMED.
NORRIS, J., dissents with written reasons.
MARVIN, C.J., dissents for reasons assigned by NORRIS, J.
NORRIS, Judge, dissents.
I respectfully dissent. I do not dispute the majority's observation that the 1989 amendments to La. Const. Art. V, §§ 10(A), 10(B), and 16(A) conferred greater authority upon Worker's Compensation Hearing Officers than had been present when the facts of Weber v. State, 93-0062 (La. 4/11/94), 635 So.2d 188, arose. I also do not dispute the majority's hypothesis that upon a showing of irreparable harm, the court of appeal could exert supervisory power over the WCHO to expedite the proceedings or correct an "arguably incorrect" ruling.
I differ with the majority, however, because in my view the amendments do not alter the thrust of the Supreme Court's discussion in Weber, supra, and I feel the majority has overlooked certain critical aspects of that discussion.
In Weber, a worker sustained an occupational disease, and his doctors told him his only hope of survival was to have a heart transplant. The employer refused to authorize *315 the transplant, but the OWC recommended payment. Before the worker could seek judicial review, he died. The survivors filed a wrongful death (tort) suit; the employer filed an exception of no cause of action, which the District Court and the Court of Appeal sustained. The Supreme Court reversed, holding that the employer's "alleged conduct in intentionally and arbitrarily denying necessary medical expenses," if proved, "may result in liability for damages beyond the remedies provided in the Workers' Compensation Act [.]" The court held that such damages were appropriate when the conduct and the resulting injury did not occur in the course of employment and only marginally arose out of employment, "and when the employer knew to a substantial certainty the denial would cause death that would not otherwise have occurred."
Apparently because the case was one in which death had intervened, the court specifically reserved the decision on whether the exception would apply if the employer denied payment of necessary medical expenses despite knowledge "that a significant worsening of the employee's condition is substantially certain to follow." Id., at p. 10, 635 So.2d at 194 fn.9.
The issue reserved in that footnote is squarely presented in the instant case. Other circumstances noted by the Weber court are also valid here: potential delay in payment will likely result in the loss of use of Berry's legs, not in mere harassment or inconvenience; and the defendants' action is a separate and second incident, causing a separate injury to Berry.
Applying the rationale of Weber, I would hold that Berry stated a cause of action when alleged (1) he suffered what is not disputed to be a compensable injury; (2) intentional and arbitrary refusal to pay reasonable and necessary medical expenses results in a significant, immediate deterioration of his health, (3) this result would not have occurred otherwise and could not have been averted by recourse to the Act, and (4) the employer or insurer knew that such results were substantially certain to follow from the refusal to pay.
Further, the Supreme Court has held in Weber and in Roberts v. Sewerage & Water Bd., 92-2048 (La.3/21/94), 634 So.2d 341, that the immunity of a special act must be strictly construed against granting the immunity. Because the Supreme Court "opened the door" for damages beyond the remedies set forth in the Act, and the full extent of the exception is not clearly delineated, I cannot say that Berry has no cause of action under any evidence admissible under the pleadings. Holding the claim of employer immunity to strict construction, as mandated by Weber, I would absolve any doubt in favor of giving Berry his day in court, reverse the District Court's judgment and remand the case for further proceedings.
I therefore respectfully dissent.
APPLICATION FOR REHEARING
Before MARVIN, NORRIS, HIGHTOWER, GASKINS and CARAWAY, JJ.
Rehearing denied.
NOTES
[1] As noted by the concurrence of Justice Kimball in Weber, the majority refused to apply the "intentional act" exception of La. R.S. 23:1032B, discussed supra, since the defendant's alleged intentional act concerned the breach of a duty imposed by the Worker's Compensation Act for which Section 1201 arguably imposed exclusive penalties. Under Section 1201, a defendant who intentionally decides not to pay medical benefits which are ultimately determined to be due may nevertheless escape the penalty of that section if his intentional act is based upon medical opinions reasonably controverting the need for the medical procedure. The "intentional act" exception of La. R.S. 23:1032B would not then allow the successful plaintiff to sue the employer again for any additional pain and suffering sustained during the employer's intended delay in making payment.
[2] Section 1201 further indicates its intended scope when it uses the word "fault" in stating that either the insurer or employer must pay the penalty depending upon which party is at fault in causing the delay in payment. Recently in Veazey v. Elmwood Plantation Associates, Ltd., 93-2818 (La.11/30/94), 650 So.2d 712, the Supreme Court reviewed the broad civilian concept of fault stating:
"[F]ault under civilian theory clearly includes more than just negligence; it extends the gamut from strict liability to intentional torts."
Id., p. 718. (Emphasis supplied.)
[3] Without deciding the availability or propriety of mandatory injunctive relief or other procedure with the OWC, we recognize that the threatened loss of the use of plaintiff's legs would appear to be an irreparable injury which should allow for some form of expedited procedural relief at the OWC and on appeal.
[4] Although the defendants were granted relief on their peremptory exception of no cause of action, the declinatory exception of the lack of subject matter jurisdiction more correctly applies for the dismissal of plaintiff's suit, without prejudice to the plaintiff's rights for medical benefits and penalties before the OWC.
| {
"pile_set_name": "FreeLaw"
} |
271 U.S. 432 (1926)
UNITED STATES
v.
CANDELARIA ET AL.
No. 208.
Supreme Court of United States.
Argued November 18, 19, 1925.
Decided June 1, 1926.
ON CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT.
*434 Mr. H.L. Underwood, Special Assistant to the Attorney General, with whom Solicitor General Mitchell and Assistant Attorney General Parmenter were on the brief, for the United States.
Mr. Frank W. Clancy for defendants.
*437 MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
In 1922 the United States brought a suit in the federal district court for New Mexico against Jose Candelaria and others to quiet in the Indian Pueblo of Laguna the title to certain lands alleged to belong to the pueblo in virtue of a grant from Spain, its recognition by Mexico and a confirmation and patent by the United States. The suit was brought on the theory that these Indians are wards of the United States and that it therefore has authority and is under a duty to protect them in the ownership and enjoyment of their lands. The defendants were alleged to be asserting a false claim to the lands and to be occupying *438 and fencing the same to the exclusion of the Indians. In their answer the defendants denied the wardship of the United States and also set up in bar two decrees rendered in prior suits brought against them by the pueblo to quiet the title to the same lands. One suit was described as begun in 1910 in the territorial court and transferred when New Mexico became a State to the succeeding state court, where on final hearing a decree was given for the defendants on the merits. The other was described as brought in 1916 in the federal district court and resulting in a decree of dismissal on the grounds that the complaint disclosed that the matters presented "were res judicata and that there was no federal question in the case." In the replication the United States alleged that it was not a party to either of the prior suits; that it neither authorized the bringing of them nor was represented by the attorney who appeared for the pueblo; and therefore that it was not bound by the decrees.
On the case thus presented the court held that the decrees operated to bar the prosecution of the present suit by the United States, and on that ground the bill was dismissed. An appeal was taken to the Circuit Court of Appeals, which after outlining the case as just stated, has certified to this Court the following questions:
1. Are Pueblo Indians in New Mexico in such status of tutelage as to their lands in that State that the United States, as such guardian, is not barred either by a judgment in a suit involving title to such lands begun in the territorial court and passing to judgment after statehood or by a judgment in a similar action in the United States District Court for the District of New Mexico, where, in each of said actions, the United States was not a party nor was the attorney representing such Indians therein authorized so to do by the United States?
2. Did the state court of New Mexico have jurisdiction to enter a judgment which would be res judicata as to *439 the United States, in an action between Pueblo Indians and opposed claimants concerning title to land, where the result of that judgment would be to disregard a survey made by the United States of a Spanish or Mexican grant pursuant to an act of Congress confirming such grant to said Pueblo Indians?
The status of the Pueblo Indians and their lands, and the relation of the United States to both, were considered in United States v. Sandoval, 231 U.S. 28. We there said (pp. 45-47):
"Not only does the Constitution expressly authorize Congress to regulate commerce with the Indian tribes, but long continued legislative and executive usage and an unbroken current of judicial decisions have attributed to the United States as a superior and civilized nation the power and the duty of exercising a fostering care and protection over all dependent Indian communities within its borders, whether within its original territory or territory subsequently acquired, and whether within or without the limits of a State. . . . `It is for that body [Congress] and not for the courts, to determine when the true interests of the Indian require his release from such condition of tutelage.'
"Of course, it is not meant by this that Congress may bring a community or body of people within the range of this power by arbitrarily calling them an Indian tribe, but only that in respect of distinctly Indian communities the questions whether, to what extent, and for what time they shall be recognized and dealt with as dependent tribes requiring the guardianship and protection of the United States are to be determined by Congress and not by the courts.
"As before indicated, by an uniform course of action beginning as early as 1854 and continued up to the present time, the legislative and executive branches of the Government have regarded and treated the Pueblos of *440 New Mexico as dependent communities entitled to its aid and protection, like other Indian tribes, and, considering their Indian lineage, isolated and communal life, primitive customs and limited civilization, this assertion of guardianship over them cannot be said to be arbitrary but must be regarded as both authorized and controlling."
And also (p. 48): "We are not unmindful that in United States v. Joseph, 94 U.S. 614, there are some observations not in accord with what is here said of these Indians, but as that case did not turn upon the power of Congress over them or their property, but upon the interpretation and purpose of a statute not nearly so comprehensive as the legislation now before us, and as the observations there made respecting the Pueblos were evidently based upon statements in the opinion of the territorial court, then under review, which are at variance with other recognized sources of information, now available, and with the long continued action of the legislative and executive departments, that case cannot be regarded as holding that these Indians or their lands are beyond the range of Congressional power under the Constitution."
While we recognized in that case that the Indians of each pueblo, collectively as a community, have a fee simple title to the lands of the pueblo (other than such as are occupied under executive orders), we held that their lands, like the tribal lands of other Indians owned in fee under patents from the United States, are "subject to the legislation of Congress enacted in the exercise of the Government's guardianship" over Indian tribes and their property.
The purpose of Congress to subject the Pueblo Indians and their lands to that legislation, if not made certain before the decision in the Joseph Case, was made so in various ways thereafter. Two manifestations of it are significant. A decision of the territorial court in 1904 holding their lands taxable, 12 N.M. 139, was promptly *441 followed by a congressional enactment annulling the taxes already levied and forbidding further levies, c. 1479, 33 Stat. 1069; and a decision of that court in 1907 construing the statute which prohibits the sale of liquor to Indians and its introduction into the Indian country as not including these Indians or their lands, 14 N.M. 1, was shortly followed by an enactment declaring that the statute should be construed as including both, c. 310, 36 Stat. 560. It also is of significance that in 1898 Congress provided for the employment by the Secretary of the Interior of a special attorney to represent the Pueblo Indians and protect their interests, c. 545, 30 Stat. 594, and that from that time to this a special attorney has been so employed and has been paid out of appropriations made by Congress for the purpose, c. 42, 42 Stat. 1194.
Many provisions have been enacted by Congress some general and others special to prevent the Government's Indian wards from improvidently disposing of their lands and becoming homeless public charges. One of these provisions, now embodied in section 2116 of the Revised Statutes, declares: "No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution." This provision was originally adopted in 1834, c. 161, sec. 12, 4 Stat. 730, and, with others "regulating trade and intercourse with the Indian tribes," was extended over "the Indian tribes" of New Mexico in 1851, c. 14, sec. 7, 9 Stat. 587.
While there is no express reference in the provision to Pueblo Indians, we think it must be taken as including them. They are plainly within its spirit and, in our opinion, fairly within its words, "any tribe of Indians." Although sedentary, industrious and disposed to peace, they are Indians in race, customs and domestic government, *442 always have lived in isolated communities, and are a simple, uninformed people, ill-prepared to cope with the intelligence and greed of other races. It therefore is difficult to believe that Congress in 1851 was not intending to protect them, but only the nomadic and savage Indians then living in New Mexico. A more reasonable view is that the term "Indian tribe" was used in the acts of 1834 and 1851 in the sense of "a body of Indians of the same or a similar race, united in a community under one leadership or government, and inhabiting a particular though sometimes ill-defined territory." Montoya v. United States, 180 U.S. 261, 266. In that sense the term easily includes Pueblo Indians.
Under the Spanish law Pueblo Indians, although having full title to their lands, were regarded as in a state of tutelage and could alienate their lands only under governmental supervision. See Chouteau v. Molony, 16 How. 203, 237. Text writers have differed about the situation under the Mexican law; but in United States v. Pico, 5 Wall. 536, 540, this Court, speaking through Mr. Justice Field, who was specially informed on the subject, expressly recognized that under the laws of Mexico the government "extended a special guardianship" over Indian pueblos and that a conveyance of pueblo lands to be effective must be "under the supervision and with the approval" of designated authorities. And this was the ruling in Sunol v. Hepburn, 1 Cal. 254, 273, et seq. Thus it appears that Congress in imposing a restriction on the alienation of these lands, as we think it did, was but continuing a policy which prior governments had deemed essential to the protection of such Indians.
It was settled in Lane v. Pueblo of Santa Rosa, 249 U.S. 110, that under territorial laws enacted with congressional sanction each pueblo in New Mexico meaning the Indians comprising the community became a juristic person and enabled to sue and defend in respect of *443 its lands. But in that case there was no occasion and no attempt to determine whether or to what extent the United States would be bound by the outcome of such a litigation where it was not a party. That was a suit brought by the Pueblo of Santa Rosa to enjoin the Secretary of the Interior and the Commissioner of the General Land Office from carrying out what was alleged to be an unauthorized purpose and attempt to dispose of the Pueblo's lands as public lands of the United States. Arizona was formed from part of New Mexico and when in that way the pueblo came to be in the new territory it retained its juristic status. Beyond establishing that status and recognizing that the wardship of the Indians was not an obstacle to the suit the case is without bearing here. In the opinion it was said: "The Indians are not here seeking to establish any power or capacity in themselves to dispose of the lands, but only to prevent a threatened disposal by administrative officers in disregard of their full ownership. Of their capacity to maintain such a suit, we entertain no doubt. The existing wardship is not an obstacle, as is shown by repeated decisions of this Court, of which Lone Wolf v. Hitchcock, 187 U.S. 553 is an illustration."
With this explanation of the status of the Pueblo Indians and their lands, and of the relation of the United States to both, we come to answer the questions propounded in the certificate.
To the first question we answer that the United States is not barred. Our reasons will be stated. The Indians of the pueblo are wards of the United States and hold their lands subject to the restriction that the same cannot be alienated in any-wise without its consent. A judgment or decree which operates directly or indirectly to transfer the lands from the Indians, where the United States has not authorized or appeared in the suit, infringes that restriction. The United States has an interest *444 in maintaining and enforcing the restriction which cannot be affected by such a judgment or decree. This Court has said in dealing with a like situation: "It necessarily follows that, as a transfer of the allotted lands contrary to the inhibition of Congress would be a violation of the governmental rights of the United States arising from its obligation to a dependent people, no stipulations, contracts, or judgments rendered in suits to which the Government is a stranger, can affect its interest. The authority of the United States to enforce the restraint lawfully created cannot be impaired by any action without its consent." Bowling and Miami Improvement Co. v. United States, 233 U.S. 528, 534. And that ruling has been recognized and given effect in other cases. Privett v. United States, 256 U.S. 201, 204; Sunderland v. United States, 266 U.S. 226, 232.
But, as it appears that for many years the United States has employed and paid a special attorney to represent the Pueblo Indians and look after their interests, our answer is made with the qualification that, if the decree was rendered in a suit begun and prosecuted by the special attorney so employed and paid, we think the United States is as effectually concluded as if it were a party to the suit. Souffront v. Compagnie des Sucreries, 217 U.S. 475, 486; Lovejoy v. Murray, 3 Wall. 1, 18; Claflin v. Fletcher, 7 Fed. 851, 852; Maloy v. Duden, 86 Fed. 402, 404; James v. Germania Iron Co., 107 Fed. 597, 613.
Coming to the second question, we eliminate so much of it as refers to a possible disregard of a survey made by the United States, for that would have no bearing on the court's jurisdiction or the binding effect of the judgment or decree, but would present only a question of whether error was committed in the course of exercising jurisdiction. With that eliminated, our answer to the question is that the state court had jurisdiction to entertain the suit and proceed to judgment or decree. Whether the *445 outcome would be conclusive on the United States is sufficiently shown by our answer to the first question.
Questions answered as stated in this opinion.
| {
"pile_set_name": "FreeLaw"
} |
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4011
JULIANNE MALVEAUX,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-95-360)
Submitted: December 26, 1996
Decided: January 29, 1997
Before NIEMEYER and WILLIAMS, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Leonard E. Birdsong, Stephanie Cobb Williams, Despina Tahmin,
CHAVERS & BIRDSONG, CHARTERED, Washington, D.C., for
Appellant. Helen F. Fahey, United States Attorney, LeDora Knight,
Assistant United States Attorney, Alexandria, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Julianne Malveaux appeals from the judgment order of the district
court finding her guilty of assaulting an airline attendant during a
flight, in violation of 49 U.S.C. § 46506 (1994) and 18 U.S.C.
§ 113(a)(4) (1994). Initially, Malveaux contends that the district court
erred by denying her motion for acquittal because the evidence was
insufficient to support her conviction. Because Malveaux made this
motion at the close of the Government's case, but did not renew it at
the close of her case, we need only consider whether Malveaux's con-
viction resulted in a manifest miscarriage of justice. See United States
v. Vaquero, 997 F.2d 78, 82 (5th Cir. 1993).
The evidence in this case, however, firmly supported the district
court's finding of guilt. The pertinent statute proscribes assault by
striking, beating, or wounding. The statute has been construed by
courts to be akin to a common law simple battery, requiring physical
contact. See United States v. Guilbert, 692 F.2d 1340, 1344 (11th Cir.
1982); United States v. Iron Shell, 633 F.2d 77, 88 (8th Cir. 1980).
Several witnesses testified that Malveaux grabbed and shook the vic-
tim in this case. In fact, Malveaux conceded that she grabbed the vic-
tim, but claimed that her actions were defensive. Accordingly, we
conclude that there was ample evidence of sufficient physical contact
in this case to support Malveaux's conviction.
Malveaux also contends that the district court erred by denying her
motion to dismiss this case as a vindictive prosecution, and by deny-
ing her motion for discovery of Government files containing informa-
tion which might have supported a selective prosecution claim. We
disagree. While Malveaux's brief implies that the Government's deci-
sion to bring federal charges following the dismissal of a state battery
charge against her is suspicious in view of her work as a civil rights
advocate and past criticisms of law enforcement agencies, there is no
2
dispute that the state charges were dropped for lack of jurisdiction.
Thus, there is no basis for concluding that the Government preferred,
as Malveaux also implies, to prosecute her in federal court in order
to subject her to more stringent penalties. Moreover, we note that
Malveaux faced similar penalties whether convicted in state or federal
court.
We also conclude that the district court properly denied
Malveaux's motion for discovery because she failed to produce any
evidence tending to prove that her prosecution had a discriminatory
effect. See United States v. Olvis, 97 F.3d 739, 743 (4th Cir. 1996).
She pointed to no similarly situated persons of a different race whose
actions did not result in prosecution, but merely sought discovery
based on counsel's belief, from a review of other assault cases, that
a large number of the defendants in those cases were minorities. This
was plainly insufficient to meet the "rigorous" evidentiary threshold
for obtaining discovery to support a selective prosecution claim. Id.
Finally, we reject Malveaux's contention that the Government went
outside the scope of rebuttal in submitting evidence to rebut her char-
acter evidence intended to show that she was not a combative person.
The Government's evidence related to Malveaux's prior altercations
with two men. The rebuttal evidence tended to show that Malveaux
pushed an elderly man to the ground after he was involved in a minor
traffic accident with Malveaux, and that she verbally berated another
man who mistakenly came to the door of her home believing it to be
the home of a friend who lived two doors down from her in a complex
of townhouses apparently having a similar appearance. As this evi-
dence clearly tends to rebut the claim that Malveaux is a noncomba-
tive person, we find no error.
Accordingly, the judgment order of the district court is affirmed.
We 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
3
| {
"pile_set_name": "FreeLaw"
} |
262 S.W.3d 469 (2008)
In re MALLINCKRODT, INC. & Mallinckrodt Baker, Inc.
No. 09-08-227 CV.
Court of Appeals of Texas, Beaumont.
Submitted June 26, 2008.
Decided August 14, 2008.
*470 Boyd S. Hoekel, Manuel Lopez, Shook, Hardy & Bacon, L.L.P., Houston, for relators.
Darren L. Brown, J. Keith Hyde, Provost Umphrey Law Firm, LLP, Beaumont, for real party in interest.
Before McKEITHEN, C.J., KREGER and HORTON, JJ.
OPINION
PER CURIAM.
This discovery dispute arises from a lawsuit brought by Paul Strother's estate ("Strother") against Paul's employers and their suppliers of benzene-containing products. We conditionally grant the writ of mandamus sought by relators.
Background
According to Strother's Original Petition, filed in March 2007, Paul worked as a laboratory technician for four different employers between 1943 and 1983. Paul developed non-Hodgkin's lymphoma, which allegedly led to Paul's death on August 3, 2006.
On April 10, 2008, Strother served notices of depositions requesting that two of the defendants, Mallinckrodt, Inc. and Mallinckrodt Baker, Inc., produce corporate representatives for depositions on May 13 and 14, 2008. See generally TEX.R. CIV. P. 199.2(b)(1). With respect to the persons that Strother desired to depose, the notice of deposition served on Mallinckrodt Baker, Inc., for example, requested that it designate representatives who were most knowledgeable about (1) "the supplies of benzene to J.T. Baker Chemical during the period of 1945-1989[;]" (2) "J.T. Baker Chemical's sales and deliveries of benzene" to three of Strother's employers and to six other corporations "during the period of 1945-1985[;]" (3) "J.T. Baker's manufacturing and/or purifying operations and locations of same[;]" (4) "J.T. Baker's warnings, instructions, technical information and MSDS referring or relating to benzene used by or provided to J.T. Baker Chemical Company during the period of 1945-1985[;]" and, (5) "industrial hygiene and safety policies and practices relating to benzene made or used by J.T. Baker Chemical Company during the period of 1945-1985."
Strother's notices also included requests for production of documents and asked that Mallinckrodt, Inc. and Mallinckrodt Baker, Inc. produce eighteen categories of *471 documents. See generally TEX.R. CIV. P. 199.2(b)(5). The requests to produce included, in part, a request for:
....
4. All documents sales records relating to benzene reflecting sales by this Defendant to any of the companies named as Defendants in this lawsuit during the period of 1945-1985[;]
5. All warnings, labels and MSDS relating to benzene made or used by this Defendant, its employees, consultants, or suppliers during the period above[;]
6. All studies and documents relating to or referring to hazards of benzene conducted by or at the request of or funded by this Defendant[;]
7. All technical documents for benzene and benzene-containing products, including but not limited to, product bulletins, technical data sheets and product specifications used and/or written by defendant... during the period 1945-1985[;]
....
9. All documents written, in whole or part, by the deponent which refer or relate to benzene[;]
....
11. All purchase orders, invoices, sales receipts, bills of lading, contracts, computer disks and printouts, microfiche, electronic information, and other documents or records demonstrating purchases of benzene by this Defendant or it[s] predecessor from any and all suppliers during the period of 1945-1985[;]
12. All lists of all benzene products sold by this Defendant or its predecessor during the period of 1945-1985 demonstrating the trade name of all said products and the benzene concentrations of each said product[;]
....
14. All documents demonstrating any and/or all of the suppliers of benzene to this Defendant during the period of 1945-1985[;]
....
17. All publications, reports, memoranda, documents and ESI referring to or relating to ongoing or completed studies and research participated in or funded in whole or part by each Defendant, its agents, representatives, employees and its consultants or contractors, on behalf of said Defendant, within the last thirty (30) years which relate to or refer to the associat[ion] or lack of an association between benzene and [non-Hodgkin's lymphoma; and]
18. All publications, reports, memoranda, documents and ESI referring to or relating to ongoing or completed studies or research participated in, or funded in whole or part by Defendant, its agents, representatives, employees and its consultants or contractors[,] on behalf of said Defendant, within the last thirty (30) years which relate to exposure modeling or testing of benzene concentrations in air.
On April 15, 2008, Mallinckrodt, Inc. and Mallinckrodt Baker, Inc. (collectively "Mallinckrodt") filed a joint motion to quash the notices. Mallinckrodt's motion advanced the following four reasons to quash the depositions. First, Mallinckrodt asserted that Paul's affidavit did not identify J.T. Baker, Inc., J.T. Baker Chemical Company, or Mallinckrodt Baker, Inc. as suppliers of benzene at the labs where Paul had worked. Second, Mallinckrodt argued that the notices "with subpoenas duces tecum are impermissibly overbroad because Plaintiff has not identified any specific products of Mallinckrodt[,] Inc. which Paul Strother ('Strother') allegedly worked with." Third, according to Mallinckrodt, the notices "with subpoenas duces tecum are simply a fishing expedition of the type specifically forbidden by *472 the Texas Supreme Court." Finally, Mallinckrodt objected to the date and location that Strother's attorney had chosen for the depositions.
On April 29, 2008, the trial court considered the attorneys' arguments during a non-evidentiary hearing. Following the hearing, the trial court entered an order[1] that briefly delayed the proposed date of the scheduled depositions; otherwise, the trial court ordered the depositions to take place as noticed on or before May 23, 2008. The trial court's order also recites that "the Motion to Quash is otherwise unmeritorious[,]" and concluded: "The Court DENIES the Motion to Quash in all ways not specifically granted herein."
On May 2, 2008, Strother filed its first amended notices to depose Mallinckrodt's designated representatives on May 22 and 23. In all other respects, Strother's amended notices requested the same information and documents as had been requested in its initial notices. On May 9, 2008, Mallinckrodt sought relief through a writ of mandamus.
In its petition requesting mandamus relief, Mallinckrodt asserts the trial court abused its discretion in two ways. First, before allowing discovery, Mallinckrodt asserts that Strother should provide "adequate evidence identifying the source of the alleged toxic exposure." Second, Mallinckrodt asserts that the notices' document requests are overly broad. In response, Strother contends that its petition constitutes sufficient evidence of Paul's exposure to meet its threshold evidentiary burden of showing that the requested documents were relevant to its claims. Strother further contends that the requested documents were "tailored to the time period and circumstances of [Paul's] alleged exposure, and that is all that is required."
Mandamus and Discovery Standards
For discovery matters, mandamus relief is generally appropriate only if a trial court abuses its discretion and the party resisting the discovery has no adequate appellate remedy. CSR Ltd. v. Link, 925 S.W.2d 591, 596 (Tex.1996) (orig.proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992) (orig.proceeding). A trial court clearly abuses its discretion when an action is "so arbitrary and unreasonable as to amount to a clear and prejudicial error of law." Walker, 827 S.W.2d at 839.
Generally, the trial court has discretion to control the scope of discovery for the cases over which it presides. See Dillard Dep't Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex.1995)(per curiam). However, its discretion is not unlimited, as the trial court is obligated to make an effort to impose reasonable discovery limits. In re Am. Optical Corp., 988 S.W.2d 711, 713 (Tex.1998) (per curiam). For example, ordering discovery that exceeds "that permitted by the rules of procedure" constitutes an abuse of discretion. Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex.1995) (per curiam).
On multiple occasions the Texas Supreme Court has prohibited discovery that it has characterized as constituting a fishing expedition. K Mart Corp. v. Sanderson, 937 S.W.2d 429, 431 (Tex.1996) (per curiam); Dillard Dep't Stores, Inc., 909 *473 S.W.2d at 492; Texaco, 898 S.W.2d at 815. The Texas Supreme Court also requires that requests to produce be tailored to include only matters relevant to the case. In re Am. Optical Corp., 988 S.W.2d at 713. Moreover, the Texas Supreme Court has criticized discovery orders "requiring document production from an unreasonably long time period or from distant and unrelated locales" as impermissibly overbroad and held that such requests are subject to correction by mandamus. In re CSX Corp., 124 S.W.3d 149, 152-53 (Tex. 2003) (per curiam). Recently, the Texas Supreme Court reiterated: "[T]rial courts `must make an effort to impose reasonable discovery limits.'" In re Allstate County Mut. Ins. Co., 227 S.W.3d 667, 668 (Tex. 2007) (per curiam) (quoting In re CSX Corp., 124 S.W.3d at 152).
Before a court can order production based on discovery requests that cover multiple decades, the discovery proponent must make a threshold evidentiary showing to demonstrate the relevance of the requested documents. See In re Dana Corp., 138 S.W.3d 298, 301 (Tex.2004) (per curiam) ("[O]ur rules require that a threshold showing of applicability must be made before a party can be ordered to produce multiple decades of insurance policies[.]"). In Dana Corporation, the discovery proponents made their threshold showing with respect to some of the requested discovery by affidavit. Id. The affidavits were insufficient, however, with respect to some of their other discovery requests. Id. at 301-02.
This court has likewise required that the proponent of discovery covering large periods of time make a threshold evidentiary showing to demonstrate how the discovery will result in the production of relevant evidence. In re TIG Ins. Co., 172 S.W.3d 160, 167 (Tex.App.-Beaumont 2005, orig. proceeding). In that case, we stated: "It is the discovery proponent's burden to demonstrate that the requested documents fall within the scope-of-discovery of Rule 192.3." Id. We followed the reasoning of the Texas Supreme Court in determining whether information was discoverable, namely that courts must ascertain if the information is discoverable under Rule 192.3(a)'s general scope-of-discovery test. Id. (quoting In re Dana Corp., 138 S.W.3d at 301).
Analysis
In this case, Mallinckrodt's motion to quash required the trial court to address a preliminary scope-of-discovery issue and define the universe of Mallinckrodt products for which Strother's evidence demonstrated an exposure. By defining this threshold issue, the trial court could have imposed reasonable time limits on the discovery requests and established reasonable limits to restrict discovery to the Mallinckrodt products at issue. By defining the scope-of-discovery, the trial court could have fulfilled its duty to make an effort to limit discovery to matters "relevant to the subject matter of the pending action." TEX.R. CIV. P. 192.3(a).
Strother asserts that its petition is sufficient evidence to meet its threshold discovery burden. We disagree. Based on the record before the trial court, it appears that Paul's affidavit was the only item of evidence the trial court had before it to document the nature of Paul's exposure claim. His affidavit indicates that his benzene exposure occurred between 1943 and 1983 while using benzene as a cleaner, in laboratory tests, and as a solvent. With respect to the time-periods involved and the types of products for which information was requested, Strother's document requests are broader than the scope-of-discovery identified in Paul's affidavit. *474 For instance, Strother's requests were not limited to products marketed for the uses reflected in Paul's affidavit; rather, the requests encompass warnings and labels for any benzene-containing product over a forty-year period. Strother's notices requesting production also ask for documents related to 1984 and 1985, which are years in which Paul's affidavit does not assert that he had any benzene exposure. As a result, because the requests cover time-periods that do not appear relevant, and cover products that were used in ways not covered by the types Paul's affidavit identifies, many of Strother's requests look very similar to those the Texas Supreme Court declared improper over a decade ago. See Texaco, 898 S.W.2d at 815.
Additionally, in some respects, the time frames covered by the document requests extend past the date of Paul's death. According to Paul's affidavit, his benzene exposure occurred between 1943 and 1983, and according to the allegations in the Strother's petition, he died in August 2006. Strother's attorneys informed us that at some point after the trial court's ruling, they sent a letter to Mallinckrodt offering to conform the requests to the dates of Paul's alleged benzene exposure.[2] However, Strother's notices of depositions were never amended to delete the requests that covered dates beyond those of Paul's alleged exposure.
In considering whether the trial court abused its discretion in denying Mallinckrodt's motion to quash, our review is based on the ruling that the trial court made, not a ruling that it might have made based on another request that it did not have before it. See In re Bristol-Myers Squibb Co., 975 S.W.2d 601, 605 (Tex.1998) (orig.proceeding). Strother's evidence failed to show that Paul was exposed to all benzene-containing products manufactured by Mallinckrodt. Thus, because Strother's requests were not limited to the products in issue, and because the requests covered time periods when Strother's evidence did not demonstrate Paul's benzene exposure, we conclude that the requests are beyond the scope-of-discovery permissible under the evidence presented to the trial court. We further conclude that Strother's discovery requests were not narrowly tailored to Strother's claims.
When a party propounds overly broad requests, the trial court must either act to narrowly tailor the requests or sustain objections advancing the complaint that the requests are overly broad. The trial court could have more narrowly tailored Strother's requests in several ways, one of which would be by requiring that Strother sufficiently describe the product or products at issue. See TEX.R. CIV. P. 196.1(b) (requiring the request to describe "with reasonable particularity each item and category" requested). The court should have also considered limiting the time frames covered by the requests to make them consistent with the exposure evidence. These possibilities are not intended to be either exhaustive or exclusive, but in this case, the trial court refused to limit the breadth of the requested discovery at all.
We conclude the trial court abused its discretion by failing to limit discovery to relevant evidence and ordering discovery that was beyond that discoverable under the Rules of Civil Procedure. We decline to transfer the burden to properly draft narrowly tailored discovery to the courts and believe the better practice is to direct the trial court to enter the ruling that it *475 should have entered at the hearing. See TEX.R.APP. P. 52.8(c). We direct the trial court to vacate its order and enter an order quashing the notices issued within twenty days of the date of this opinion.[3] With respect to the relief granted herein, the writ will issue only if the trial court fails to act promptly in accord with this opinion.
WRIT CONDITIONALLY GRANTED.
NOTES
[1] The order is misdated, as Judge Wortham's order states that it was signed on August 29, 2008, a date that has not yet occurred. The record reflects that the hearing occurred on April 29, 2008, and the document contains a file stamp from the clerk's office of April 29, 2008. For purposes of this proceeding, we assume that Judge Wortham signed the order on April 29.
[2] The letter is not in the record, and according to the attorneys, has not been filed with the district clerk.
[3] Our granting conditional relief would not prohibit Strother from issuing additional notices more narrowly tailored to the facts of the case or prohibit Mallinckrodt from objecting to future notices which, in turn, might require the trial court to exercise its duty to restrict discovery to the evidence relevant to the issues in this case.
| {
"pile_set_name": "FreeLaw"
} |
319 U.S. 491 (1943)
McLEOD
v.
THRELKELD ET AL.
No. 787.
Supreme Court of United States.
Argued May 6, 7, 1943.
Decided June 7, 1943.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT.
Mr. Leon C. Levy, with whom Mr. Harry Dow was on the brief, for petitioner.
Mr. John P. Bullington for respondents.
Solicitor General Fahy and Messrs. Richard S. Salant and Irving J. Levy and Miss Bessie Margolin filed a brief *492 on behalf of the Administrator of the Wage and Hour Division, United States Department of Labor, as amicus curiae, urging reversal.
MR. JUSTICE REED delivered the opinion of the Court.
This certiorari brings here for examination a judgment of the Circuit Court of Appeals for the Fifth Circuit, 131 F.2d 880, which held that a cook, employed by respondents to prepare and serve meals to maintenance-of-way employees of the Texas & New Orleans Railroad Company, is not engaged in commerce under §§ 6 and 7 of the Fair Labor Standards Act and therefore not entitled to recover for an alleged violation of that act.[1]
The respondents are a partnership with a contract to furnish meals to maintenance-of-way employees of the railroad, an interstate carrier. The meals are served in a cook and dining car attached to a particular gang of workmen and running on the railroad's tracks. The car is set conveniently to the place of work of the boarders and in emergencies follows the gang to the scene of its activities. Employees pay the contractor for their meals by orders authorizing the railroad company to deduct the amount of their board from wages due and pay it over to the contractor. The petitioner worked as cook at various points in Texas along the line of the road during the period in question.
As the extent of the coverage by reason of the phrase "engaged in commerce" is important in the administration of the Fair Labor Standards Act, we granted certiorari.
*493 In drafting legislation under the power granted by the Constitution to regulate interstate commerce and to make all laws necessary and proper to carry those regulations into effect, Congress is faced continually with the difficulty of defining accurately the precise scope of the proposed bill. In the Fair Labor Standards Act, Congress did not intend that the regulation of hours and wages should extend to the furthest reaches of federal authority. The proposal to have the bill apply to employees "engaged in commerce in any industry affecting commerce" was rejected in favor of the language, now in the act, "each of his employees who is engaged in commerce or in the production of goods for commerce."[2] §§ 6 and 7. See the discussion and reference to legislative history in Kirschbaum Co. v. Walling, 316 U.S. 517, and Walling v. Jacksonville Paper Co., 317 U.S. 564. The selection of the smaller group was deliberate and purposeful.
McLeod was not engaged in the production of goods for commerce. His duties as cook and caretaker for maintenance-of-way men on a railroad lie completely outside that clause.[3] Our question is whether he was "engaged in commerce."[4] We have held that this clause covered *494 every employee in the "channels of interstate commerce," Walling v. Jacksonville Paper Co., 317 U.S. 564, as distinguished from those who merely affected that commerce. So handlers of goods for a wholesaler who moves them interstate on order or to meet the needs of specified customers are in commerce, while those employees who handle goods after acquisition by a merchant for general local disposition are not.[5] Employees engaged in operating and maintaining privately owned toll roads and bridges over navigable waterways are "engaged in commerce." Overstreet v. North Shore Corp., 318 U.S. 125. So are employees of contractors when the employees are engaged in repairing bridges of interstate railroads. Pedersen v. J.F. Fitzgerald Construction Co., 318 U.S. 740, 742.
In the present instance, it is urged that the conception of "in commerce" be extended beyond the employees engaged in actual work upon the transportation facilities.[6] It is said that this Court decided an employee, engaged in similar work was "in commerce," under the Federal Employers' Liability Act[7] and that it is immaterial whether the employee is hired by the one engaged in the interstate business since it is the activities of the employee and not of the employer which are decisive.[8]
*495 Judicial determination of the reach of the coverage of the Fair Labor Standards Act "in commerce" must deal with doubtful instances. There is no single concept of interstate commerce which can be applied to every federal statute regulating commerce. See Kirschbaum Co. v. Walling, supra, 520. However, the test of the Federal Employers' Liability Act that activities so closely related to interstate transportation as to be in practice and legal relation a part thereof are to be considered in that commerce, is applicable to employments "in commerce" under the Fair Labor Standards Act.[9]
The effect of the over-refinement of factual situations which hampered the application of the Federal Employers' Liability Act, prior to the recent amendment,[10] we hope, is not to be repeated in the administration and operation of the Fair Labor Standards Act. Where the accident occurs on or in direct connection with the instrumentalities of transportation, such as tracks and engines, interstate commerce has been used interchangeably with interstate transportation.[11] But where the distinction between what a common carrier by railroad does while engaging in commerce between the states, i.e., transportation, and interstate commerce in general is important, the Federal Employers' Liability Act was construed prior to the 1939 amendment as applying to transportation only.[12]
*496 The Smith[13] case construed the Employers' Liability Act to apply to a cook and caretaker employed by the railroad to care for a camp car used for feeding and housing a group of the railroad's bridge carpenters. At the time of the accident the cook was engaged in these duties. In holding the cook was "in commerce" this Court said:
"The circumstance that the risks of personal injury to which plaintiff was subjected were similar to those that attended the work of train employees generally and of the bridge workers themselves when off duty, while not without significance, is of little moment. The significant thing, in our opinion, is that he was employed by defendant to assist, and actually was assisting, the work of the bridge carpenters by keeping their bed and board close to their place of work, thus rendering it easier for defendant to maintain a proper organization of the bridge gang and forwarding their work by reducing the time lost in going to and from their meals and their lodging place. If, instead, he had brought their meals to them daily at the bridge upon which they happened to be working, it hardly would be questioned that his work in so doing was a part of theirs. What he was in fact doing was the same in kind, and did not differ materially in degree. Hence he was employed, as they were, in interstate commerce, within the meaning of the Employers' Liability Act." 250 U.S. 101, 104.
Such a ruling under the Federal Employers' Liability Act, after the Bolle, Industrial Commission and Bezue cases, supra, note 9, should not govern our conclusions under the Fair Labor Standards Act. These three later cases limited the coverage of the Federal Employers' Liability Act to the actual operation of transportation and acts so closely related to transportation as to be themselves really a part of it. They recognized the fact that railroads *497 carried commerce and were thus a part of it but that each employment that indirectly assisted the functioning of that transportation was not a part. The test under this present act, to determine whether an employee is engaged in commerce, is not whether the employee's activities affect or indirectly relate to interstate commerce but whether they are actually in or so closely related to the movement of the commerce as to be a part of it.[14] Employee activities outside of this movement, so far as they are covered by wage-hour regulation, are governed by the other phrase, "production of goods for commerce."[15]
It is not important whether the employer, in this case the contractor, is engaged in interstate commerce. It is the work of the employee which is decisive. Here the employee supplies the personal needs of the maintenance-of-way men. Food is consumed apart from their work. The furnishing of board seems to us as remote from commerce, in this instance, as in the cases where employees supply themselves. In one instance the food would be as necessary for the continuance of their labor as in the other.
*498 We agree with the conclusion of the District Court and the Circuit Court of Appeals that this employee is not engaged in commerce under the Fair Labor Standards Act.
Affirmed.
MR. JUSTICE MURPHY, dissenting:
I think that petitioner is covered by the Fair Labor Standards Act.
In using the phrase "engaged in commerce" Congress meant to extend the benefits of the Act to employees "throughout the farthest reaches of the channels of interstate commerce." Walling v. Jacksonville Paper Co., 317 U.S. 564, 567. We recently construed the phrase to include employees whose activities are so closely related to interstate commerce "as to be in practice and in legal contemplation a part of it." Overstreet v. North Shore Corp., 318 U.S. 125, 129, 130, 132. This practical test was derived from cases such as Pedersen v. Delaware, L. & W.R. Co., 229 U.S. 146, 151, and Philadelphia, B. & W.R. Co. v. Smith, 250 U.S. 101, construing similar language in the Federal Employers' Liability Act.[1] The activities of petitioner in cooking for a traveling maintenance crew of an interstate railroad are sufficient to satisfy this test. It was so held in the Smith case, 250 U.S. 101, the facts of which are virtually identical with the instant case except for the immaterial difference that petitioner here was employed by an independent contractor rather than by the railroad itself.[2] The reasoning of the Smith case is persuasive and should control this one.
*499 The opinion of the Court, however, rejects the concept of coverage used in the Smith case for the narrower test of whether an employee is engaged "in interstate transportation or in work so closely related to it as to be practically a part of it," used in another line of cases under the Federal Employers' Liability Act.[3] I think this is wrong for several reasons.
The Fair Labor Standards Act extends to employees "engaged in commerce," not merely to those engaged in transportation.[4] As the Bolle case itself points out: "Commerce covers the whole field of which transportation is only a part." 284 U.S. at 78. Hence, whatever basis there may have been for restricting the coverage of the Federal Employers' Liability Act to employees actually engaged in transportation because of the fact that the Act applied only to those working for employers engaged in interstate transportation by rail,[5] can have no possible application or bearing on the interpretation of the Fair Labor Standards Act. The coverage of this Act is much more extensive. It is not limited to employees of interstate carriers but extends generally to employees engaged in all kinds of commerce, including transportation. Nothing in the Act suggests that it has a narrower application to employees whose work "in commerce" is transportation or work connected therewith, than it has to employees who are engaged in commerce but whose work has nothing to do with transportation. Such a construction is untenable because it would discriminate without reason between different types of employees, all *500 of whom fall within the same general statutory classification of "engaged in commerce."
The necessary effect of rejecting the Smith case for the restrictive concept of "in commerce" which was used in the Shanks,[6]Bolle,[7]Commission,[8] and Bezue[9] cases is to introduce into the administration of the Fair Labor Standards Act that concededly undesirable confusion which characterized the application of the Federal Employers' Liability Act and prompted the 1939 amendment (53 Stat. 1404) which in effect repudiated the narrow test of the Shanks line of cases. The reality of this confusion is readily demonstrable. We have held that a rate clerk employed by an interstate motor carrier[10] and a seller of tickets on a toll bridge over which interstate traffic moves[11] are both "engaged in commerce" within the meaning of the Fair Labor Standards Act. Yet, in the view of the majority of the Court, when the employees' activities are in the field of transportation, the Act apparently will not cover[12] those who work in an interstate carrier's repair shop on facilities to supply power for machinery used in repairing instrumentalities of transportation,[13] or who heat cars and depots used by interstate passengers,[14] or who store fuel for the use of interstate vehicles,[15] or who work on such vehicles when withdrawn *501 for the moment from commerce for repairs.[16] The anomaly of this is clear there is no sound reason for extending the benefits of the Act to a rate clerk employed in the office of an interstate motor carrier and denying them to the janitor who keeps the office clean and warm, or the employee who works in the carrier's shop on machinery used to repair interstate vehicles, or on the vehicles themselves.
If the applicable provision were "engaged in the production of goods for commerce" instead of "engaged in commerce," our decisions make it clear that employees such as the janitor and the shop tender and probably petitioner would be within the Act. Cf. Kirschbaum Co. v. Walling, 316 U.S. 517; Warren-Bradshaw Co. v. Hall, 317 U.S. 88.[17] The phrase "engaged in commerce" should be as broadly construed. In the words of one of the Act's sponsors, the phrase extends to "employees who are a necessary part of carrying on" a business operating in interstate commerce.[18] Petitioner's work was evidently considered necessary to the operation of the railroad, else it would have made no provision for boarding its maintenance crews. We have cast the relevant tests for determining the scope of the two phrases of coverage in substantially similar language. In Kirschbaum Co. v. Walling, work which "had such a close and immediate tie with the process of production for commerce" as to be "an essential part *502 of it" was held to be "necessary to the production of goods for commerce." 316 U.S. at 525-26. Correspondingly, in Overstreet v. North Shore Corp., we held that the phrase "engaged in commerce" includes work which "is so intimately related to interstate commerce `as to be in practice and in legal contemplation a part of it.'" 318 U.S. at 130. The purpose of the "production of goods for commerce" phrase was obviously not to cut down the scope of "engaged in commerce," but to broaden the Act's application by reaching conditions in the production of goods for commerce which Congress considered injurious to interstate commerce. See United States v. Darby, 312 U.S. 100. The effect of the Court's decision today, however, is to recognize that federal power over commerce has been sweepingly exercised when an employee's work is in the production of goods for commerce, but to limit it, when the employee's activities are in transportation or connected therewith, to the narrow and legislatively repudiated view of the Shanks, Bolle, Commission and Bezue cases. Such an unbalanced application of the statute is contrary to its purpose of affording coverage broadly "throughout the farthest reaches of the channels of interstate commerce" to employees "engaged in commerce."
The judgment should be reversed.
MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS and MR. JUSTICE RUTLEDGE join in this dissent.
NOTES
[1] 52 Stat. 1062-63. "Sec. 6. (a) Every employer shall pay to each of his employees who is engaged in commerce or in the production of goods for commerce wages at the following rates
.....
"Sec. 7. (a) No employer shall, except as otherwise provided in this section, employ any of his employees who is engaged in commerce or in the production of goods for commerce . . ."
[2] The distinction in the coverage arising from this choice of language was well known to Congress. Cf. National Labor Relations Act, 49 Stat. 449, 450. Labor Board v. Jones & Laughlin, 301 U.S. 1, 31 et seq.; Bituminous Coal Act of 1937, § 4-A, 50 Stat. 72, 83; Agricultural Adjustment Act, 50 Stat. 246; Public Utility Holding Company Act of 1935, 49 Stat. 803, § 1 (c).
[3] 52 Stat. 1061. "(i) `Goods' means goods (including ships and marine equipment), wares, products, commodities, merchandise, or articles or subjects of commerce of any character, or any part or ingredient thereof, but does not include goods after their delivery into the actual physical possession of the ultimate consumer thereof other than a producer, manufacturer, or processor thereof."
[4] Cooks employed to feed workers engaged in the production of goods for commerce have been held to be similarly engaged. Hanson v. Lagerstrom, 133 F.2d 120; Consolidated Timber Co. v. Womack, 132 F.2d 101.
[5] Walling v. Jacksonville Paper Co., supra; Higgins v. Carr Bros. Co., 317 U.S. 572.
[6] The contention that the work of the employee is covered by the exemption of § 13 (a) (2) "any employee engaged in any retail or service establishment the greater part of whose selling or servicing is in intrastate commerce" seems without significance. If the work is in interstate commerce, the exemption does not apply. Compare Consolidated Timber Co. v. Womack, 132 F.2d 101, 106 et seq.; Hanson v. Lagerstrom, 133 F.2d 120.
[7] Philadelphia, B. & W.R. Co. v. Smith, 250 U.S. 101. This case construed the Federal Employers' Liability Act of April 22, 1908, 35 Stat. 65, § 1; "Every common carrier by railroad while engaging in commerce . . . shall be liable in damages . . ."
[8] Walling v. Jacksonville Paper Co., 317 U.S. 564; Kirschbaum Co. v. Walling, 316 U.S. 517, 524.
[9] Shanks v. Delaware, L. & W.R. Co., 239 U.S. 556, 558; Chicago & North Western Ry. Co. v. Bolle, 284 U.S. 74, 78; Chicago & Eastern Illinois R. Co. v. Commission, 284 U.S. 296; New York, N.H. & H.R. Co. v. Bezue, 284 U.S. 415, 419.
[10] Act of August 11, 1939, 53 Stat. 1404; Hearings, Senate Committee on the Judiciary, Amending the Federal Employers' Liability Act, March 28 and 29, 1939, pp. 3-9, 26-30; S. Rep. No. 661, 76th Cong., 1st Sess.
[11] Pedersen v. Delaware, L. & W.R. Co., 229 U.S. 146, 151; cf. Overstreet v. North Shore Corp., 318 U.S. 125.
[12] See the cases cited in note 9, supra.
[13] Philadelphia, B. & W.R. Co. v. Smith, 250 U.S. 101.
[14] Thus we said as to a rate clerk employed by a motor transportation company:
"It is plain that the respondent as a transportation worker was engaged in commerce within the meaning of the Act . . ." Overnight Motor Co. v. Missel, 316 U.S. 572, 575.
[15] 52 Stat. 1060-61.
Sec. 3. "(b) `Commerce' means trade, commerce, transportation, transmission, or communication among the several States or from any State to any place outside thereof.
.....
"(j) `Produced' means produced, manufactured, mined, handled, or in any other manner worked on in any State; and for the purposes of this Act an employee shall be deemed to have been engaged in the production of goods if such employee was employed in producing, manufacturing, mining, handling, transporting, or in any other manner working on such goods, or in any process or occupation necessary to the production thereof, in any State."
[1] Act of April 22, 1908, 35 Stat. 65, as it was before the amendment of 1939, 53 Stat. 1404. 45 U.S.C. § 51 et seq.
[2] The application of the Fair Labor Standards Act, of course, depends upon the character of the employees' activities, not the nature of the employer's business. Overstreet v. North Shore Corp., 318 U.S. 125, 132, and cases cited.
[3] Shanks v. Delaware, L. & W.R. Co., 239 U.S. 556, 558; Chicago & North Western Ry. Co. v. Bolle, 284 U.S. 74; Chicago & Eastern Illinois R. Co. v. Commission, 284 U.S. 296; New York, N.H. & H.R. Co. v. Bezue, 284 U.S. 415.
[4] The Act defines "commerce" as: "trade, commerce, transportation, transmission, or communication among the several States or from any State to any place outside thereof." 52 Stat. 1060, 29 U.S.C. § 203.
[5] See Chicago & North Western Ry. Co. v. Bolle, 284 U.S. 74, 78.
[6] 239 U.S. 556.
[7] 284 U.S. 74.
[8] 284 U.S. 296.
[9] 284 U.S. 415.
[10] Overnight Motor Co. v. Missel, 316 U.S. 572.
[11] Overstreet v. North Shore Corp., 318 U.S. 125.
[12] This is discussed wholly apart from the question of the applicability of § 7 because of the exemption contained in § 13 (b) (1) of the Act. See Southland Gasoline Co. v. Bayley, ante, p. 44.
[13] Cf. Shanks v. Delaware, L. & W.R. Co., 239 U.S. 556.
[14] Cf. Chicago & North Western Ry. Co. v. Bolle, 284 U.S. 74.
[15] Cf. Chicago & Eastern Illinois R. Co. v. Commission, 284 U.S. 296.
[16] Cf. New York, N.H. & H.R. Co. v. Bezue, 284 U.S. 415.
[17] Employees cooking for workers engaged in the production of goods for commerce have been held to be similarly engaged and covered by the Act. Consolidated Timber Co. v. Womack, 132 F.2d 101; Hanson v. Lagerstrom, 133 F.2d 120.
[18] Speaking for the Senate conferees on the Conference Report, Senator Borah said: ". . . if the business is such as to occupy the channels of interstate commerce, any of the employees who are a necessary part of carrying on that business are within the terms of this bill, and, in my opinion, are under the Constitution of the United States." 83 Cong. Rec. 9170.
| {
"pile_set_name": "FreeLaw"
} |
543 U.S. 979
UMS GENERALI MARINE S. P. A., FKA UNIONE MEDITERRANEA DI SICURTAv.ADAMS ET AL.
No. 04-316.
Supreme Court of United States.
November 8, 2004.
1
C. A. 5th Cir. Certiorari denied. Reported below: 364 F. 3d 646.
| {
"pile_set_name": "FreeLaw"
} |
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-2267
___________
ANDREW J. BULLOCK, IV, INDIVIDUALLY, AND DERIVATIVELY ON BEHALF
OF: MAIN STREET VILLAGE HOMEOWNERS' ASSOCIATION
v.
ARTHUR S. KLEIN, ESQUIRE, INDIVIDUALLY AND IN HIS CAPACITY AS
PURPORTED BOARD MEMBER OF MAIN STREET VILLAGE HOMEOWNERS'
ASSOCIATION; KENNETH O. SPANG, III, ESQUIRE; SCOTT F. WATERMAN,
ESQUIRE; MARIE RITA GLEASON, ESQUIRE, INDIVIDUALLY AND IN HER
CAPACITY AS TOWNSHIP MANAGER OF TREDYFFRIN TOWNSHIP; THOMAS
J. CRANDALL, INDIVIDUALLY AND IN HIS CAPACITY AS PURPORTED
BOARD MEMBER OF MAIN STREET VILLAGE HOMEOWNERS' ASSOCIATION;
GERARD J. BERGER, INDIVIDUALLY AND IN HIS CAPACITY AS PURPORTED
BOARD MEMBER OF MAIN STREET VILLAGE HOMEOWNERS' ASSOCIATION;
SHAYNA F. BEST, INDIVIDUALLY AND IN HER CAPACITY AS PURPORTED
BOARD MEMBER OF MAIN STREET VILLAGE HOMEOWNERS' ASSOCIATION;
WILLIAM M. SUNICK, JR., INDIVIDUALLY AND IN HIS CAPACITY AS
PURPORTED BOARD MEMBER OF MAIN STREET VILLAGE HOMEOWNERS'
ASSOCIATION; JUDITH B. WETZEL, INDIVIDUALLY AND IN HER CAPACITY
AS PURPORTED BOARD MEMBER OF MAIN STREET VILLAGE
HOMEOWNERS' ASSOCIATION; DONNA M. HOUGHTON, INDIVIDUALLY AND
IN HER CAPACITY AS PURPORTED BOARD MEMBER OF MAIN STREET
VILLAGE HOMEOWNERS' ASSOCIATION; PATRICIA A. EVANS,
INDIVIDUALLY AND IN HER CAPACITY AS PURPORTED BOARD MEMBER OF
MAIN STREET VILLAGE HOMEOWNERS' ASSOCIATION; KATHRYN
MARINICK, INDIVIDUALLY AND IN HER CAPACITY AS PURPORTED BOARD
MEMBER OF MAIN STREET VILLAGE HOMEOWNERS' ASSOCIATION; MAIN
STREET VILLAGE HOMEOWNERS' ASSOCIATION; PENCO MANAGEMENT,
INC.; ELIZABETH A. SHINGLE, INDIVIDUALLY AND IN HER CAPACITY AS
MANAGER AGENT FOR MAIN STREET VILLAGE HOMEOWNERS'
ASSOCIATION; RONALD WHITE, INDIVIDUALLY AND IN HIS CAPACITY AS
AGENT FOR THE PURPORTED BOARD OF MAIN STREET VILLAGE
1
HOMEOWNERS' ASSOCIATION; MONIKA GERMONO, INDIVIDUALLY AND IN
HER CAPACITY AS PURPORTED AGENT FOR PURPORTED MAIN STREET
VILLAGE HOMEOWNERS' ASSOCIATION; EDMUND S. PENDELTON,
INDIVIDUALLY AND IN HIS CAPACITY AS PRESIDENT OF PENCO
MANAGEMENT, INC.; DONALD FRANCESCHINI, INDIVIDUALLY AND IN HIS
CAPACITY AS PRESIDENT OF PENCO MANAGEMENT, INC.;
BRYN MAWR LANDSCAPING CO INC; THOMAS J. FOGA, JR., INDIVIDUALLY
AND IN HIS CAPACITY AS TREASURER OF BRYN MAWR LANDSCAPING;
ATLANTIC ROOFING CORP.; CHRISTOPHER CONN, INDIVIDUALLY AND IN
HIS CAPACITY AS IT RELATES TO ATLANTIC ROOFING; JIM MILLER
ROOFING AND SHEET METAL INC.; JAMES MILLER, INDIVIDUALLY AND IN
HIS CAPACITY AS PRESIDENT OF JIM MILLER ROOFING AND SHEET METAL
INC.; WISLER, PEARLSTEIN, TALONE, CRAIG, GARRITY & POTASH, LLP;
BLACK, STRANICK & WATERMAN, LLP.; DAVID J. SCAGGS, ESQUIRE;
BLAIR H. GRANGER, ESQUIRE; BLAIR H. GRANGER & ASSOCIATES, P.C.;
TREDYFFRIN TOWNSHIP; MS. EMELINE BALDASSARREE, INDIVIDUALLY
AND IN HER CAPACITY AS BUILDING INSPECTOR OF TREDYFFRIN
TOWNSHIP; TREDYFFRIN TOWNSHIP POLICE DEPARTMENT;
ANDREW CHAMBERS, SUPERINTENDENT, INDIVIDUALLY AND IN HIS
CAPACITY AS SUPERINTENDENT OF TREDYFFRIN TOWNSHIP POLICE
DEPARTMENT; BARRAR, SGT., INDIVIDUALLY AND IN HIS CAPACITY AS
POLICE OFFICER OF TREDYFFRIN TOWNSHIP; OFC. JOHN/JANE DOE,
INDIVIDUALLY AND IN HIS/HER CAPACITY AS POLICE OFFICER OF
TREDYFFRIN TOWNSHIP; HUGH A. O'HARE, INDIVIDUALLY AND IN HIS
CAPACITY AS CHIEF BUILDING CODE OFFICER OF TREDYFFRIN TOWNSHIP;
JUDY L. DIFILLIPO, INDIVIDUALLY AND IN HER CAPACITY AS A
MEMBER OF THE BOARD OF SUPERVISORS OF TREDYFFRIN TOWNSHIP;
MARK DEFELICIANTONIO, INDIVIDUALLY AND IN HIS CAPACITY AS A
MEMBER OF THE BOARD OF SUPERVISORS OF TREDYFFRIN TOWNSHIP;
BILL DEHAVEN, INDIVIDUALLY AND IN HIS CAPACITY AS A MEMBER
OF THE BOARD OF SUPERVISORS OF TREDYFFRIN TOWNSHIP;
PAUL J. DRUCKER, ESQUIRE, INDIVIDUALLY AND IN HIS CAPACITY AS A
MEMBER OF THE BOARD OF SUPERVISORS OF TREDYFFRIN TOWNSHIP;
WARREN E. KAMPF, ESQUIRE, INDIVIDUALLY AND IN HIS CAPACITY AS A
MEMBER OF THE BOARD OF SUPERVISORS OF TREDYFFRIN TOWNSHIP;
E. BROOKS KEFFER, JR., ESQUIRE, INDIVIDUALLY AND IN HIS CAPACITY
AS A MEMBER OF THE BOARD OF SUPERVISORS OF TREDYFFRIN
TOWNSHIP; ROBERT Q. W. LAMINA, INDIVIDUALLY AND IN HIS CAPACITY
AS A MEMBER OF THE BOARD OF SUPERVISORS OF TREDYFFRIN
TOWNSHIP; SOVEREIGN BANK
2
Andrew J. Bullock, IV, Appellant
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-11-cv-01123)
District Judge: Honorable Mitchell S. Goldberg
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 2, 2012
Before: RENDELL, FUENTES and WEIS, Circuit Judges
(Opinion filed: October 26, 2012)
___________
OPINION
___________
PER CURIAM.
Andrew J. Bullock IV, proceeding pro se, appeals from the District Court’s
dismissal of his complaint. For the reasons set forth below, we will affirm.
I.
We will assume the parties’ familiarity with the facts and recite only those
pertinent to this opinion. From 1997 to 2007, Bullock owned a home that was managed
by the Main Street Village Homeowners’ Association (the “Association”). Several
incidents occurred during that time period, ultimately ending with the foreclosure and
Sheriff’s sale of Bullock’s home. As a result, Bullock filed his first complaint against
fifty-six defendants, asserting federal and state law claims. The District Court dismissed
the federal claims for failure to state claim upon which relief could be granted, lack of
3
standing, and because three of them were criminal in nature. The state law claims were
then dismissed pursuant to 28 U.S.C. § 1367. We affirmed. Bullock v. Klein, 341 F.
App’x 812, 816 (3d Cir. 2009).
Bullock then filed, on February 15, 2001, another action against forty-five of the
same defendants from his previous case. His complaint alleged substantially the same
facts and claims as before, along with a derivative claim on behalf of the Association.
The defendants filed motions to dismiss, arguing that Bullock’s complaint should be
dismissed under the doctrine of res judicata. The District Court agreed. (Dkt. No. 45.)
Bullock timely appealed the dismissal of his complaint.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review
over a district court’s “application of res judicata to bar the appellant’s claims.” Huck ex
rel. Sea Air Shuttle Corp. v. Dawson, 106 F.3d 45, 48 (3d Cir. 1997).
Bullock argues that “res judicata does not apply” because “[f]raud upon the court
allows any court to treat any previous case as a nullity.” (Appellant’s Br. at 3.) All of the
appellees argue that the District Court properly applied the doctrine of res judicata. We
agree.
Three elements must be established to prevail on a motion seeking to invoke res
judicata: “(1) a final judgment on the merits in a prior suit involving (2) the same parties
or their privies and (3) a subsequent suit based on the same cause of action.” Duhaney v.
Att’y Gen., 621 F.3d 340, 347 (3d Cir. 2010). Res judicata “bars not only claims that
4
were brought in a previous action, but also claims that could have been brought.” In re
Mullarkey, 536 F.3d 215, 225 (3d Cir. 2008).
In the prior case, Bullock alleged that certain parties, who are attorneys,
committed a fraud upon the state court that prompted the Sheriff’s sale of his home. The
District Court, while not specifically mentioning “fraud upon the court,” nonetheless
dismissed the claim pursuant to Federal Rule of Civil Procedure 12(b)(6). We then
affirmed the District Court’s decision. In this case, Bullock alleged that the same parties
perpetrated the same fraud, based upon the same set of facts. The District Court, again
without specifically naming the claim, dismissed Bullock’s complaint.
The District Court properly held that Bullock’s claims are barred by the doctrine
of res judicata. The dismissal of Bullock’s first complaint for failure to state a claim
constituted a final judgment on the merits. See Federated Dep’t Stores, Inc. v. Moitie,
452 U.S. 394, 399 n.3 (1981). Next, the second case indisputably involved the same
parties as the first. Finally, the subsequent suit that generated this appeal was based on
the same cause of action, as the claims are virtually identical and arose out of the same
set of facts. 1
As his claims were already pursued in a prior suit, Bullock is precluded from
raising them again. See Allen v. McCurry, 449 U.S. 90, 94 (1980) (“Under res judicata, a
1
Though Bullock brought a derivative claim on behalf of the Association that was not
asserted in the first action, it does not undercut the application of res judicata, as it could
have been raised in the previous case. Mullarkey, 536 F.3d at 225.
5
final judgment on the merits of an action precludes the parties or their privies from
relitigating issues that were or could have been raised in that action.”). Given the
“identity of facts, claims and parties” found between the first and second cases, the
District Court properly dismissed Bullock’s complaint. Huck, 106 F.3d at 51.
Bullock argues that “the claim of Fraud Upon the Court” has never been
addressed. (Appellant’s Br. at 3.) We disagree. The claim was dismissed pursuant to
Rule 12(b)(6) in his first case, and was barred by the doctrine of res judicata in his
second. In any event, Bullock did not make any allegations that “meet the demanding
standard for fraud upon the court,” which is justified only by “the most egregious
misconduct directed at the court itself,” and must be “supported by clear, unequivocal
and convincing evidence.” Herring v. United States, 424 F.3d 384, 387 (3d Cir. 2005).
III.
Appellees Atlantic Roofing Corporation and Christopher Conn request that we
impose sanctions on Bullock, pursuant to Federal Rule of Appellate Procedure 38. That
rule permits an award of damages and single or double costs to an appellee if we
determine that the appeal is “frivolous.” Fed. R. App. P. 38. We employ “an objective
standard” in determining whether an appeal is frivolous, and only impose damages under
Rule 38 when an appeal is “wholly without merit.” Mellon Bank Corp. v. First Union
Real Estate Equity & Mortg. Invs., 951 F.2d 1399, 1414 (3d Cir. 1991). Because the
issue of fraud upon the court was not specifically mentioned by the District Court,
Bullock had “at least a colorable argument” in favor of his appeal, and we will not
6
impose Rule 38 damages. Id. Though we will deny the motion for sanctions, we will tax
costs against Bullock under Federal Rule of Appellate Procedure 39. See Fed. R. App. P.
39(a)(2).
IV.
For the foregoing reasons, we will affirm the decision of the District Court
dismissing Bullock’s complaint. The motion for sanctions is denied.
7
| {
"pile_set_name": "FreeLaw"
} |
Notice: This opinion is subject to formal revision before publication in the Atlantic and
Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors
so that corrections may be made before the bound volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 15-BG-565
IN RE: CHARLES A. PRICE,
Respondent.
Bar Registration No. 970848 BDN: 320-14
BEFORE: Fisher, Associate Judge, and Newman and Farrell, Senior Judges.
ORDER
(FILED - August 27, 2015)
On consideration of the certified order suspending respondent’s license to
practice law in the state of Virginia for a period of three years, this court’s June 17,
2015, order suspending respondent pending further action of the court and directing
him to show cause why he should not be suspended for three years, and the statement
of Bar Counsel regarding reciprocal discipline, and it appearing that respondent has
failed to file a response to this court’s order to show cause or the affidavit required
by D.C. Bar R. XI, §14 (g), it is
ORDERED that Charles A. Price is hereby suspended from the practice of law
in the District of Columbia for a period of three years with reinstatement subject to
compliance with the conditions imposed by the state of Virginia. See In re Sibley,
990 A.2d 483 (D.C. 2010), and In re Fuller, 930 A.2d 194, 198 (D.C. 2007)
(rebuttable presumption of identical reciprocal discipline applies to all cases in which
the respondent does not participate). It is
FURTHER ORDERED that for purposes of reinstatement the period that must
pass before one is eligible to file for reinstatement will not begin to run until such
time as he files a D.C. Bar. R. XI, § 14 (g) affidavit.
PER CURIAM
| {
"pile_set_name": "FreeLaw"
} |
F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 27 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 02-1288
v.
(D.C. No. 02-CR-15-D)
(D. Colorado)
MARIO JON GALE, also known as
Jose Manuel Rodriguez,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before EBEL, HENRY and HARTZ, Circuit Judges.
Mario Jon Gale pled guilty to one count of unlawful reentry into the United
States after having previously been deported, in violation of 8 U.S.C. § 1326(a)
and (b)(2). The district court sentenced him to 70 months’ imprisonment, the
minimum sentence within the applicable range under the United States Sentencing
*
After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
order and judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 36.3.
Guidelines. Mr. Gale now appeals the district court’s refusal to grant him a
downward departure for cultural assimilation. We exercise jurisdiction pursuant
to 28 U.S.C. § 1291 and AFFIRM.
On appeal, Mr. Gale’s counsel filed an Anders brief and moved to withdraw
as appellate counsel. See Anders v. California, 386 U.S. 738, 744 (1967). In the
Anders brief, counsel argues that Mr. Gale’s sentence was not imposed contrary
to the law, as a result of an incorrect application of the Sentencing Guidelines, or
in excess of the applicable Guideline range, and that Mr. Gale’s appeal is
therefore wholly without merit. We have fully examined the proceedings as
required by Anders and concluded that Mr. Gale’s appeal is indeed without merit.
Moreover, we lack jurisdiction to review a district court’s failure to depart
downward in sentencing absent a claim that the court misunderstood its authority
to depart. United States v. Coddington, 118 F.3d 1439, 1441 (10th Cir. 1997).
We find no such misunderstanding on the part of the district court in this case.
For the foregoing reasons, counsel’s motion to withdraw is GRANTED and
Gale’s conviction is AFFIRMED.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
-2-
| {
"pile_set_name": "FreeLaw"
} |
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v. Criminal No. 11-253-04 (CKK)
KIMBERLY YVETTE HALL,
Defendant.
MEMORANDUM OPINION
(March 18, 2020)
Pending before this Court is pro se Defendant Kimberly Yvette Hall’s [260] Motion for
Expungement (Def.’s Mot.”) requesting an expungement of her criminal records. The United
States filed its [263] Opposition to the Defendant’s Motion for Expungement (“Govt.’s Opp’n”);
and Defendant had until March 13, 2020 to file a reply, but she did not do so. Defendant Kimberly
Yvette Hall (“Defendant” or “Ms. Hall”) has requested the issuance of an “order to seal all publicly
available records for [her] arrest and related court proceedings [.]” Def.’s Mot., ECF No. 260, at
1. Upon review of relevant legal authorities and the pleadings made by the parties, the Court shall
DENY Ms. Hall’s [260] Motion for Expungement.
I. BACKGROUND
Ms. Hall was charged with one count of Conspiracy to Distribute and Possess With Intent
to Distribute Five Kilograms or More of Cocaine and 280 Grams or More of Cocaine Base in
violation of 21 U.S.C. § 846; one count of Using, Carrying,, and Possessing a Firearm During a
Crime of Violence or Drug Trafficking Offense in violation of 18 U.S.C. § 924(c)(1); and one
count of Use of a Communication Facility in violation of 21 U.S.C. § 843(b) and 18 U.S.C. § 2.
Ms. Hall entered into a [127] Deferred Prosecution Agreement (“DPA”) with the United
1
States, whereby she agreed that she and another person “knowingly opened, leased, rented, used
and maintained [a specified] residence for the purpose of manufacturing, distributing, or using
marijuana, a controlled substance, in violation of 21 U.S.C. § 856(a)(1).” DPA, ECF No. 127, at
1. Ms. Hall admitted to the criminal conduct described above and acknowledged responsibility
for that conduct. Id. at 2. When Defendant signed the DPA, she indicated that she had carefully
reviewed the DPA with her counsel and that she understood the DPA and was “voluntarily,
knowingly, and willfully” agreeing to it and the conditions of the deferred prosecution “without
force, threat[,] or coercion.” Id. at 5. On July 23, 2012, Ms. Hall was arraigned on the superseding
indictment and entered a plea of not guilty. On May 30, 2013, the United States filed a motion to
dismiss the case against Ms. Hall, ECF No. 208, which this Court granted on May 31, 2013. See
ECF No. 29.
On January 6, 2020, the Defendant’s Motion for Expungement, dated January 3, 2020,
was permitted to be filed. In her Motion, Defendant cites to D.C. Code Section 16-803(f) and
notes that: (1) her arrest records “hinder[ ] any meaningful employment opportunities;” (2) her
“[e]mployment placement or advancement” is limited by past charges against her; and (3) she
suffers “mental anguish [ ] due to incorrect charges against [her] well-being.” Def.’s Mot., ECF
No. 260, at 1.
II. ANALYSIS
“The power to order expungement is part of the general power of the federal courts to
fashion appropriate remedies to protect important legal rights.” United States v. Archer, Criminal
No. 07-0029, 2012 WL 5818244, at *1 (D.D.C. Nov. 13, 2012) (quoting Doe v. Webster, 606 F.2d
1226, 1231 n.8, (D.C. Cir. 1979)); see Chastain v. Kelley, 510 F.2d 1232, 1235 (D.C. Cir. 1975)
(federal courts have the power to order the expungement of government records, such as criminal
2
records, “where necessary to vindicate rights secured by the Constitution or by statute.”) “Before
expunging a criminal record, the Court must find, after examining the particular facts and
circumstances of the case, the ‘remedy is necessary and appropriate in order to preserve basic legal
rights.’” United States v. Davis, No. CR. 342-72, 2006 WL 1409761, at *2 (D.D.C. May 23, 2006)
(quoting Livingston v. U.S. Dep’t of Justice, 759 F.2d 74, 78 (D.C. Cir. 1985)).
A federal court’s jurisdiction to hear motions to expunge convictions or arrests is “limited”
in the absence of an enabling federal statute. Herrington v. Bezotte, 2015 WL 268412, at *5 (E.D.
Mich. 2015) (citing United States v. Field, 756 F.3d 911, 915 (6th Cir. 2014).1 ‘The court may
order expungement where it is required or authorized by statute, or in the exercise of its inherent
equitable powers.” Archer, supra. at *1 (internal quotation marks and citation omitted); see United
States v. Derouen, 279 F. Supp. 3d 298, 299 (D.D.C. 2018) (Kollar-Kotelly, J.) (same); see also
Livingston, supra. at 78 (observing that “courts have the inherent, equitable power to expunge
arrest records”) (citations omitted). In this case, Ms. Hall cites D.C. Code Section 16-803(f)
(providing for the sealing of public criminal records) as grounds for her request, but there is no
indication that this statute (which defines the “Court” as the “Superior Court”) applies in this
federal court.
There is “no ‘standalone right to expungement of government records’ [ ] recognized in
this Circuit.” United States v. Douglas, 282 F. Supp. 3d 275, 278 (D.D.C. 2017) (quoting
Abdelfattah v. U.S. Dep’t of Homeland Sec., 787 F.3d 524, 536 (D.C. Cir. 2015)). When the court
exercises its inherent equitable power to order expungement it requires “either a lack of probable
1
The Government notes that certain federal and state statutes permit expungement of criminal
records, Govt.’s Opp’n, ECF No. 263, at 3 n.1 (string citing statutory provisions), but none of
these provisions is applicable to Ms. Hall nor has she relied upon them.
3
cause coupled with specific circumstances, flagrant violations of the Constitution, or other unusual
and extraordinary circumstances.” Doe, 606 F.2d at 1230; see e.g., United States v. Blackwell, 45
F. Supp. 3d 123, 124 (D.D.C. 2014) (“Absent a statutory basis authorizing expungement, courts
have granted motions to expunge only in extreme circumstances, such as in cases involving
flagrant constitutional violations.”)
In the instant case, Defendant does not contend her arrest was improper, nor does she plead
unusual or extraordinary circumstances justifying expungement. Rather, Ms. Hall seeks
expungement of her arrest on grounds that the charges that were brought against her have limited
her employment opportunities and caused her emotional harm. Defendant’s inability to obtain
employment is on its own insufficient to justify expungement of his criminal record. See United
States v. Baccous, Criminal Action No. 99-0596, 2013 WL 1707961, at *2 (D.D.C. April 22, 2013)
(noting that while defendant’s concerns about employment and residential opportunities were
valid, they did not constitute “extreme circumstances” warranting expungement of his criminal
record). See. e.g., United States v. Douglas, 282 F. Supp. 3d 275, 278 (D.D.C. 2017) (“Merely
citing to the fact that a criminal record may foreclose or present difficulties in finding employment
opportunities does not meet the fundamental prerequisite of setting out a legally cognizable claim
to vindicate rights secured by the Constitution or by statute, for which claim expungement may be
appropriate relief.”); United States v. Robinson, 23 F. Supp. 3d 15, 16 (D.D.C. 2014) (“[E]ven
difficulties obtaining employment and securing housing are not regarded as extreme
circumstances” justifying expungement.); United States v. Woods, 313 F. Supp. 3d 197, 200
(D.D.C. 2018) (“Inability to obtain specific employment is neither an exceptional circumstance
nor an unusual result of a criminal conviction.”); United States v. Evans, 78 F. Supp. 3d 351, 353
(D.D.C. 2015) (“Evans seeks to expunge his criminal record so that it does not appear on
4
background checks run by potential employers. However, in this Circuit, this does not present an
extreme or unusual circumstance justifying expungement.”) Accordingly, the Court lacks the
power to expunge Ms. Hall’s criminal record under these circumstances.
The Government notes that “the stringency of this standard is evident in its equal
application to individuals who, like Ms. Hall, were only arrested but never actually convicted
(although Ms. Hall did admit to engaging in illegal conduct involving controlled substances in the
DPA.)” Govt.’s Opp’n, ECF No. 263, at 5. In Doe, the Circuit Court noted that:
If there was no crime, or if the government concedes that the defendant was not in any way
implicated in its commission, it would appear to have no need for the records at all. If,
however, the charges are dismissed for some other reason ([e].g., a plea bargain) or if the
defendant is tried and acquitted on a ‘technical’ ground, there may arguably be a need to
retain the record for investigatory purposes in the event that another, similar, offense is
committed.
Doe, 606 F.2d at 1231 n.15; see United States v. Benlizar, 459 F. Supp. 614, 624 (D.D.C.
1978) (“Of course, just because a defendant is not convicted is not sufficient reason to expunge
the arrest record because it remains a defect-less historical fact.”) (citation omitted).
In this Circuit, when assessing whether to invoke the Court’s inherent authority to grant a
motion for expungement of an arrest record, the Court considers whether “serious governmental
misbehavior leading to the arrest, or unusually substantial harm to the defendant not in any way
attributable to him, outweighs the government’s need for a record of the arrest.” United States v.
Davis, No. CR 342-72, 2006 WL 1409761, at *2 (May 23, 2006) (citations omitted). This Circuit
is clear that the Government has a “legitimate need in maintaining criminal records in order to
efficiently conduct future criminal investigations.” Doe, 606 F.2d at 1243. “Retaining and
preserving arrest records serve[s] the important function of promoting effective law enforcement”
and serves the “compelling public need for an effective and workable criminal identification
procedure.” United States v. Schnitzer, 567 F.2d 536, 539 (2d Cir. 1977) (quotation omitted); see
5
also United States v. Woods, 313 F. Supp. 3d 197, 200 (D.D.C. 2018) (“The government has both
the statutory authority to maintain criminal records and a demonstrated need to do so in order to
conduct future criminal investigations efficiently.”) Retaining criminal records “aids in effective
law enforcement” and maintaining records of convictions “helps preserve uniform sentencing
under the United States Sentencing Guidelines” because the sentencing ranges rely in part on a
defendant’s past criminal history. United States v. Salleh, 863 F. Supp. 283, 284 (E.D. Va. 1994).
As a result, expungements of criminal records are rare, without authorizing statute or extraordinary
circumstances. “[R]elief usually is granted only in extreme circumstances, the finding of which
requires a balancing of the equities between the right of privacy of the individual and the right of
law enforcement officers to perform their necessary duties.” Davis, 2006 WL 1409761, at *2
(internal quotation marks and quotation omitted).
III. CONCLUSION
Ms. Hall notes her arrest and the subsequent barriers to obtaining gainful employment that
stem from that arrest. The Court acknowledges the difficulties experienced by a defendant as a
direct and collateral result of having been arrested and charged with a felony. That said, Ms. Hall
does not present applicable statutory authority in support of her expungement request, nor does
she contend her arrest was improper, or demonstrate any extraordinary circumstances that would
warrant expungement when balanced against the government interest in preserving criminal
records. The circumstances expressed by Defendant are not unique to her, but instead, they are the
circumstances facing every defendant with a criminal record and as such, they fail to “rise to the
level of the exceptional circumstances necessary to justify this Court’s exercise of its equitable
power to expunge records of a valid arrest and conviction absent a showing of some violation of
rights.” United States v. Wilson, 98-mj-0558, 2008 WL 2446134, at *1 (D.D.C. June 17, 2008).
6
While the Court commends Ms. Hall in her efforts since her arrest, the Court finds that
Defendant’s inability to obtain employment on its own is insufficient to justify expungement of
her criminal record. This Circuit has consistently ruled that when weighed against governmental
interests in preserving a criminal record, the adverse effects of a defendant’s conviction on her
employment prospects are insufficient to warrant expungement, absent flagrant constitutional
violations. See, e.g., Derouen, 279 F. Supp. 3d at 300; United States v. Woods, 313 F. Supp. 3d
197, 200 (D.D.C. 2018) (“Inability to obtain specific employment is neither an exceptional
circumstance nor an unusual result of a criminal conviction.”); United States v. Spinner, 72 F.
Supp. 3d 266, 269 (D.D.C. 2014) (holding that the inability to obtain employment does not warrant
the remedy of expungement of a criminal record); In re Reid, 569 F. Supp. 2d 220, 222 (D.D.C.
2008) (“[W]hile this Circuit has long recognized the fact that a criminal record causes social
disabilities, the harm of being unable to obtain employment is insufficient on its own[.]”) (citations
omitted)). Accordingly, for the foregoing reasons, the Court finds that Ms. Hall’s [260] Motion for
Expungement must be denied.
An appropriate Order accompanies this Memorandum Opinion.
__________/s/___________________
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE
7
| {
"pile_set_name": "FreeLaw"
} |
227 S.W.3d 667 (2007)
In re ALLSTATE COUNTY MUTUAL INSURANCE COMPANY and David Gonzalez, Relators.
No. 06-0878.
Supreme Court of Texas.
June 15, 2007.
Jeffrey D. Roerig, Roerig Oliveira & Fisher, Brownsville, Rosemary Conrad-Sandoval, Roerig, Oliveira & Fisher, L.L.P., McAllen, TX, for Relator.
Esther Cortez, McAllen, TX, for Other.
Wilbert Hughes, Scott T. Clark, Roger W. Hughes, Adams & Graham, L.L.P., Harlingen, TX, for Real Party In Interest.
PER CURIAM.
Discovery is a tool to make the trial process more focused, not a weapon to make it more expensive. Thus trial courts "must make an effort to impose reasonable discovery limits." In re CSX Corp., 124 S.W.3d 149, 152 (Tex.2003) (per curiam) (quotations omitted). In this suit alleging an insurer reneged on a $13,500 settlement offer, the trial court refused to impose any limit on the plaintiffs' 213 discovery requests. As much of this discovery has no relation or relevance to the scope of the parties' dispute, we grant mandamus relief. See In re Graco Children's Prods., Inc., 210 S.W.3d 598, 600 (Tex.2006) (per curiam) ("[An] order that compels overly *669 broad discovery well outside the bounds of proper discovery is an abuse of discretion for which mandamus is the proper remedy.") (quotations omitted).
Following a car accident, two plaintiffs (Jorge Karim and Teresita Manllo) brought a single suit against the other driver (Sang Cho), her carrier (Allstate County Mutual Insurance Company), and the latter's adjuster (David Gonzalez). The plaintiffs sent the insurer and its adjuster a total of 89 requests for production, 59 interrogatories, and 65 requests for admission, including requests for:
transcripts of all testimony ever given by any Allstate agent on the topic of insurance;
every court order finding Allstate wrongfully adjusted the value of a damaged vehicle;
personnel files of every Allstate employee a Texas court has determined wrongfully assessed the value of a damaged vehicle; and
legal instruments documenting Allstate's status as a corporation and its net worth.
Allstate and Gonzalez objected to the discovery and moved for summary judgment on the ground that the plaintiffs had no direct action against a third party's insurer. See Allstate Ins. Co. v. Watson, 876 S.W.2d 145, 149 (Tex.1994) (prohibiting unfair settlement claims by third parties); State Farm County Mut. Ins. Co. v. Ollis, 768 S.W.2d 722, 723 (Tex.1989) (per curiam) (prohibiting direct actions against a third party's insurer "until it has been established, by judgment or agreement, that the insured has a legal obligation to pay damages to the injured party"). The trial court denied the summary judgment, rejected the objections, and ordered the defendants to respond to all the requests. The Thirteenth Court of Appeals denied mandamus relief without explanation. In re Allstate County Mut. Ins. Co., 2006 WL 2789048 (Tex.App.-Corpus Christi 2006).
The plaintiffs make no effort to justify their hundreds of requests. Nor can they, given what this Court has said repeatedly in similar cases. In In re CSX Corp., we held that "discovery orders requiring document production from an unreasonably long time period or from distant and unrelated locales are impermissibly overbroad." 124 S.W.3d at 149. In K Mart Corp. v. Sanderson, we held overbroad a request for every criminal act that occurred on the defendant's premises for the last seven years. 937 S.W.2d 429, 431 (Tex.1996) (per curiam). In Dillard Department Stores, Inc. v. Hall, we held overbroad a request for every false imprisonment case in the last five years throughout twenty states. 909 S.W.2d 491, 491-92 (Tex.1995) (per curiam). And in Texaco, Inc. v. Sanderson, we held overbroad a request for all documents ever written by the defendant's safety director about safety. 898 S.W.2d 813, 815 (Tex.1995) (per curiam). Like all those requests, the plaintiffs' requests here are overbroad as to time, location, and scope, and could easily have been more narrowly tailored to the dispute at hand. See CSX, 124 S.W.3d at 153 ("A central consideration in determining overbreadth is whether the request could have been more narrowly tailored to avoid including tenuous information. . . . ").
More important, the plaintiffs' requests and the trial court's order reflect a misunderstanding about relevance. American jurisprudence goes to some length to avoid the spurious inference that defendants are either guilty or liable if they have been found guilty or liable of anything before. See, e.g., TEX.R. EVID. 404 (barring proof of other crimes, wrongs, or acts "in order to show action in conformity therewith"). *670 While such evidence might be discoverable in some cases (e.g., to prove motive or intent, see id.), it is hard to see why reneging on some other settlement offer makes it more or less probable that the insurer reneged on this one. TEX.R. CIV. P. 192.3; TEX.R. EVID. 401.
The plaintiffs argue the defendants failed to preserve their objections by failing to provide details regarding why the discovery here was burdensome. But Allstate objected to the plaintiffs' requests as irrelevant (and thus by necessity overbroad). Overbroad requests for irrelevant information are improper whether they are burdensome or not, so the defendants were not required to detail what they might encompass. See In re CSX Corp., 124 S.W.3d at 153; In re Union Pac. Res. Co., 22 S.W.3d 338, 341 (Tex.1999).
The plaintiffs also argue the defendants waived their objections by obscuring them amidst numerous unfounded objections. See TEX.R. CIV. P. 193.2(e). Allstate objected to every one of the plaintiffs' requests on the ground that it owed no discovery to a party with no standing to bring a direct action against it. Even if this objection was unfounded (an issue we do not reach), it did not obscure Allstate's objections regarding relevance and over-breadth.
"Reasonable" discovery necessarily requires some sense of proportion. With today's technology, it is the work of a moment to reissue every discovery request one has ever sent to an insurer before. But by definition such a request is not "reasonably tailored." See In re Graco Children's Prods., 210 S.W.3d 598, 601 (Tex.2006) (per curiam); CSX, 124 S.W.3d at 152. Given the limited scope of the plaintiffs' claims and the amount at issue, the trial court erred by compelling discovery of everything the plaintiffs could imagine asking in any unfair insurance practice case.
Accordingly, without hearing oral argument, we conditionally grant the writ of mandamus and direct the trial court to vacate its discovery order and reconsider the scope of permissible discovery in light of this opinion. See TEX.R.APP. P. 52.8(c). The writ will issue only if the trial court fails to comply.
| {
"pile_set_name": "FreeLaw"
} |
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 02-20318
_____________________
COLISEUM FORD INC
Plaintiff-Counter Defendant–Appellee,
v.
FORD DEALER COMPUTER SERVICES INC, also known as Dealer Computer
Services Inc
Defendant-Counter Claimant– Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
No. H-01-CV-2293
_________________________________________________________________
January 8, 2003
Before KING, Chief Judge, and DEMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Ford Dealer Computer Services, Inc. (DCS) seeks to recover
damages from Coliseum Ford Inc. (Coliseum Ford) for breach of a
long-term computer contract (the Agreement). The Agreement
contains an arbitration clause which is set out below. DCS filed
an arbitration demand, following which Coliseum Ford filed an
application to stay arbitration in a Texas state 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.
The suit was removed to federal district court, and DCS then
filed a motion to compel arbitration. The district court agreed
with Coliseum Ford that the dispute was not arbitrable and denied
DCS’s motion to compel arbitration. DCS appeals. We reverse.
Respectfully, we disagree with the district court’s
interpretation of the arbitration clause in the Agreement, which
reads as follows:
Except as provided otherwise in this Agreement, all
disputes, claims, controversies and other matters in
question between the parties to this Agreement, arising
out of, or relating to this Agreement, or to the breach
thereof, including any claim in which either party is
demanding monetary damages of the nature including
negligence, strict liability or intentional acts and
omissions by either party, and which cannot be resolved
by the parties, shall be settled by arbitration in
accordance with the arbitration procedure described
below. Collection of any accrued amounts owed by
Dealer to FDCS (and not disputed in writing with
specificity within a reasonable period from the invoice
date) shall not be subject to this arbitration
procedure. This arbitration procedure shall in no way
limit FDCS’ remedies as provided in Section 12.
As we read the clause, the sentence excepting from arbitration
collection of accrued amounts owed by Coliseum Ford to DCS is
designed to deal with the collection of undisputed amounts
regularly invoiced under the Agreement. The fact that it speaks
in terms of “collection,” “not disputed” and “invoice” supports
that interpretation. The clause is not designed to deal with
what is essentially a breach of contract claim, as to which the
amount of damages owing is disputed and which is not the subject
of an invoice.
2
Accordingly, we reverse the order of the district court
entered February 14, 2002 denying DCS’s motion to compel
arbitration and remand for entry of an order compelling
arbitration. Costs shall be borne by Coliseum Ford.
REVERSED.
3
| {
"pile_set_name": "FreeLaw"
} |
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
LUIS A. VEGA,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D14-323
[January 6, 2016]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Lynn Rosenthal, Judge; L.T. Case No. 10022495CF10A.
Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public
Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Nicholas I. Igwe,
Assistant Attorney General, West Palm Beach, for appellee.
WARNER, J.
Appellant challenges his conviction for burglary and other charges on
the ground that the court erred in denying his challenge for cause to a
prospective juror. The juror expressed his view that he would give police
officers more credibility than a lay person, a view which was not completely
modified after court questioning. As there was reasonable doubt as to the
juror’s ability to be impartial, the court should have granted the challenge
for cause. Accordingly, we reverse.
During voir dire, defense counsel asked prospective jurors:
Does anybody here think a police officer when they get that
badge on cannot make any mistakes? And if I hear from a
police officer, I’m going to tend to believe them a little more
just from the beginning because of their profession because of
what they do, because of the oath they take as a police officer?
A prospective juror answered:
I do tend to think that a police officer because of what their job
is, that they tend to pay more attention to these kinds of things.
So they are probably more alert to looking for evidence and to
being alert as to what really is going on around them. I think
it just comes with the territory. So I would tend to see a police
officer [as] more [credible].
When the trial court asked the juror to clarify, he stated that he would
tend to be biased toward a police officer. He reiterated this several more
times. When defense counsel challenged the juror for cause, the court
questioned the juror further and asked if he could follow the court’s
instructions regarding weighing the credibility of witnesses, to which the
juror responded that he could. Nevertheless, after continued questioning,
the juror said:
Well, I think being instructed by the Court to give them
equal credibility, that that would be foremost in my mind.
And my, I guess as a lay person, my first judgment on the
street would be to say, oh, the cop is probably telling the
truth.
But in a court of law being instructed to give them equal
credibility, I think I can do that.
(Emphasis added). Based on this, the trial court denied the challenge for
cause. The defense used a peremptory challenge on the juror. A jury
subsequently was empaneled, with the defense properly preserving the
objection to the denial of the challenge for cause. The defendant was
convicted. He now appeals his conviction, challenging the trial court’s
denial of the challenge for cause to the juror.
A juror should be excused if there is reasonable doubt as to the juror’s
ability to render an impartial verdict. See Matarranz v. State, 133 So. 3d
473, 484 (Fla. 2013); Juede v. State, 837 So. 2d 1114, 1115 (Fla. 4th DCA
2003). While a juror’s assurances of impartiality may suggest that the
denial of a challenge for cause may be appropriate, “such assurances are
neither determinative nor definitive.” Matarranz, 133 So. 3d at 484. “A
trial court’s determination of whether a juror can render a verdict based
on the evidence presented involves an evaluation of ‘all of the questions
and answers posed to or received from the juror.’” Id. at 484 (quoting
Banks v. State, 46 So. 3d 989, 995 (Fla. 2010)). Furthermore, “[w]hile a
trial court is afforded great discretion in ruling on challenges of jurors for
cause, close cases involving challenges to the impartiality of potential
2
jurors should be resolved in favor of excusing the juror rather than leaving
doubt as to impartiality.” Reid v. State, 972 So. 2d 298, 300 (Fla. 4th DCA
2008).
Where a juror states that he or she would give a police officer’s
testimony more credence than that of a lay person, courts routinely have
held that such a juror should be excused for cause. See, e.g., Juede, 837
So. 2d at 1116; see also Rimes v. State, 993 So. 2d 1132, 1134 (Fla. 5th
DCA 2008); Reid v. State, 972 So. 2d 298, 300 (Fla. 4th DCA 2008); Slater
v. State, 910 So. 2d 347, 348 (Fla. 4th DCA 2005); Scott v. State, 825 So.
2d 1067, 1069 (Fla. 4th DCA 2002). In Juede, we noted that while a juror
may be rehabilitated, “‘[a] juror’s subsequent statements that he or she
could be fair should not necessarily control the decision to excuse a juror
for cause, when the juror has expressed genuine reservations about his or
her preconceived opinions or attitudes.’” 837 So. 2d at 1115-16 (quoting
Rodas v. State, 821 So. 2d 1150, 1153 (Fla. 4th DCA 2002)).
Here, the juror expressed his opinion that he would find a police officer
more credible than a lay witness at least four times under questioning.
Even after the court attempted to rehabilitate the juror, he still reiterated
that his initial judgment would be that “the cop is telling the truth,”
although if instructed to give the officer and lay witness equal credibility,
he said “I think I can do that.” (Emphasis added). Thus, his response did
not completely overcome his prior statements that he would be more likely
to believe a police officer than a lay person. See Juede, 837 So. 2d at 1116.
As this is a close case, the court should have struck the juror for cause.
Consistent with the foregoing authority, we reverse and remand for a
new trial.
TAYLOR, J., concurs.
FORST, J., concurs specially with opinion.
FORST, J., concurs specially.
The situation in this case is similar to that in Juede v. State, 837 So.
2d 1114 (Fla. 4th DCA 2003). In that case, the juror at issue responded
in the negative when questioned as to whether he would give more weight
to a police officer's testimony “just because of the uniform,” and then
“explained he believed the officers were trained in investigation, and thus,
would tend to give more weight to an officer’s observations than a lay
witness’ based upon this experience.” Id. at 1116 (Warner, J., dissenting).
In common with Judge Warner’s dissenting opinion in Juede, “I see
nothing biased about a belief that a witness’ training and experience may
3
make his or her testimony more believable and readily accepted by a juror
than a witness without those same experiences.” Id.
However, I am cognizant that Judge Warner was in the minority in
Juede, and that subsequent opinions of this court, see, e.g., Slater v. State,
910 So. 2d 347 (4th DCA 2005)1, and the Florida Supreme Court, see, e.g.,
Matarranz v. State, 133 So. 3d 473 (Fla. 2013)2, have moved the bar in the
direction of excusing the challenged juror, even after a seeming
rehabilitation, while concurrently limiting the amount of discretion
afforded trial judges in weighing challenges to prospective jurors. Thus, I
am constrained to join the majority in reversing the trial court.
* * *
Not final until disposition of timely filed motion for rehearing.
1 We held in Slater that the trial court erroneously denied a for-cause challenge
to a juror who stated “he believed ‘the testimony of a police officer carries a little
more weight’ because officers are ‘trained to be observant, and they are apt to see
things and to pick out more things that we miss.’” 910 So. 2d at 348.
2 The Court concluded that the trial court should have given less weight to a
prospective juror’s declaration on impartiality after lengthy questioning and
focused more on “the majority of her responses—and particularly her initial
reactions” in determining suitability for juror duty. Matarranz, 133 So. 3d at
490.
4
| {
"pile_set_name": "FreeLaw"
} |
978 So.2d 75 (2006)
RANDALL WESTON LEWIS
v.
STATE.
No. CR-04-2462.
Court of Criminal Appeals of Alabama.
May 26, 2006.
Decision of the Alabama Court of Criminal Appeal Without Opinion. Affirmed.
| {
"pile_set_name": "FreeLaw"
} |
United States Court of Appeals
For the Eighth Circuit
___________________________
No. 11-3841
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Mickey Johnson
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
____________
Submitted: June 15, 2012
Filed: August 17, 2012
____________
Before LOKEN, GRUENDER, and BENTON, Circuit Judges.
____________
GRUENDER, Circuit Judge.
Mickey Johnson pled guilty to two counts of wire fraud, in violation of 18
U.S.C. § 1343, in connection with a mortgage fraud scheme. At sentencing, the
district court1 calculated an advisory sentencing guidelines range of 33 to 41 months’
1
The Honorable Audrey G. Fleissig, United States District Judge for the
Eastern District of Missouri.
imprisonment based on a total offense level of 20 and a criminal history category of
I. The district court sentenced Johnson to a term of 33 months’ imprisonment, and
Johnson now appeals the sentence. We affirm.
In 2005, Mickey Johnson and Jeremy Beadle worked together at Premier
Mortgage Funding (“PMF”) in Lake Saint Louis, Missouri. That year, Johnson
approached Beadle and proposed that they purchase, renovate, and sell five properties
in the 3900 block of Labadie Avenue in Saint Louis, Missouri, because Johnson
believed the neighborhood was “coming back.” They agreed that Johnson would
oversee the renovations, Beadle would provide the financing, and they would each
have a fifty-percent share in the venture. Beadle subsequently served as the
purchaser-of-record for the properties and provided financing for the renovations,
which Johnson oversaw. After a series of thefts and incidents of vandalism, Johnson
and Beadle decided to sell the properties as quickly as possible to stop their
“hemorrhaging financial losses.”
Johnson recruited Robert Shaw, whom Johnson had met previously at a
seminar for real estate investors, to purchase two of the properties. Johnson served
as Shaw’s loan officer so that Shaw could obtain loans through PMF for both of the
properties. Although Johnson was fully aware of Shaw’s actual income and intent to
purchase the properties as investments, Johnson overstated Shaw’s income on the
loan applications and falsely indicated that Shaw would purchase each property as his
primary residence. When Shaw stated that he did not want to do anything illegal,
Johnson assured him that this was standard procedure in the mortgage business.
Johnson also arranged for Beadle to provide Shaw with funds for the down payments
for the properties and for renovations after purchase, but Johnson never mentioned
the renovation money on the loan applications and affirmatively indicated that Shaw
was providing the down payments. Johnson also inflated the sale price for the
properties so that some of the resulting inflated loan proceeds could be used to
reimburse Beadle for the down payment and renovation funds he had provided to
-2-
Shaw. After Shaw approved the applications for submission despite the
misrepresentations, Johnson filed the applications. Johnson similarly submitted
fraudulent loan applications so that Beadle could sell two of the remaining three
properties to Rebecca Domecillo, another colleague at PMF, and Michael Skarl,
Domecillo’s son. Each of the four properties ended up in foreclosure. Beadle was
unable to sell the fifth property, and it also ended up in foreclosure. Shaw eventually
declared bankruptcy after he was unable to satisfy the deficiency judgments from the
foreclosures of his two Labadie Avenue properties.
A grand jury subsequently indicted Johnson on four counts of wire fraud, one
count for each of the loans for the four Labadie Avenue properties that were sold.
After Beadle and Domecillo pled guilty to fraud charges and after Shaw and Beadle
testified against Johnson at his trial, Johnson pled guilty to the two counts relating to
the loans to Shaw. At sentencing, Johnson objected to the probation office’s
conclusion in the Presentence Investigation Report that he qualified for a two-
offense-level aggravating role enhancement. See U.S.S.G. § 3B1.1(c) (providing for
a two-level offense level increase for “an organizer, leader, manager, or supervisor
in any criminal activity”). Johnson argued that Beadle was more culpable than he
because Beadle was his employer and provided the capital for the scheme. The
district court concluded that Johnson qualified for the two-level increase because he
recruited Shaw to purchase the properties, prepared and filed Shaw’s, Domecillo’s,
and Skarl’s loan applications despite knowing that they contained numerous
materially false representations, and assured Shaw that the paperwork was properly
completed despite the known misrepresentations. Johnson now appeals his sentence.
When reviewing a sentence, we first evaluate whether the district court
committed significant procedural error. Gall v. United States, 552 U.S. 38, 51 (2007).
Johnson now contends that the district court erroneously applied the aggravating role
enhancement under U.S.S.G. § 3B1.1(c) because Shaw—due to his reliance on
Johnson’s assertions that the misrepresentations were acceptable—was not a
-3-
criminally responsible party, and therefore there was nobody for Johnson to “lead.”
See U.S.S.G. § 3B1.1 cmt. n.2 (“To qualify[,] . . . the defendant must have been the
organizer, leader, manager, or supervisor of one or more other participants.”); id. cmt.
n.1 (“A ‘participant’ is a person who is criminally responsible for the commission of
the offense, but need not have been convicted.”). We ordinarily review the district
court’s factual findings underlying the imposition of a sentencing enhancement for
clear error, United States v. McDonald, 521 F.3d 975, 978 (8th Cir. 2008), and its
application of the sentencing guidelines de novo, United States v. Richart, 662 F.3d
1037, 1045 (8th Cir. 2011) cert. denied, 566 U.S. ---, 132 S. Ct. 1942 (2012).
Although Johnson objected to the imposition of the aggravating role enhancement at
the time of sentencing, he did not raise the issue of whether Shaw qualified as a
“participant.” Thus, we review this issue only for plain error. See United States v.
Ali, 616 F.3d 745, 751-52 (8th Cir. 2010). For us to find plain error, Johnson would
have “to show that (1) there was an error that was not affirmatively waived, (2) the
error was ‘plain,’ meaning clear and obvious, (3) the error affects his substantial
rights, and (4) the error ‘seriously affects the fairness, integrity or public reputation
of judicial proceedings.’” Id. at 752 (quoting Puckett v. United States, 556 U.S. 129,
135 (2009)).
We reject Johnson’s argument that it was clear and obvious at the time of
sentencing that Shaw was not a “participant” within the meaning of U.S.S.G. § 3B1.1.
Shaw testified that—prompted by Johnson—he knowingly overstated his income on
the two loan applications, knowingly and falsely indicated that he would occupy each
purchased property as his primary residence, and knowingly under-reported the
sellers’ financial concessions in the sales. He also testified that he signed an
acknowledgment that the information in the applications was accurate and that he
understood that submitting false information violated the law. Shaw affirmed that,
although he had indicated to Johnson that he did not want to do anything illegal in the
loan applications, he nonetheless was responsible for the misrepresentations they
contained. Furthermore, at his sentencing hearing, Johnson himself declared that
-4-
Shaw “is not a victim” in this case because he “knew fully well” what he was doing.
In the face of such evidence, Johnson has not met his burden of establishing that it
was clear and obvious that Shaw was not a participant within the meaning of U.S.S.G.
§ 3B1.1. Because Johnson’s acts of recruiting Shaw into the criminal enterprise and
directing him on how to obtain the fraudulent loans were sufficient to justify the
enhancement, see United States v. Umanzor, 617 F.3d 1053, 1060 (8th Cir. 2010)
(“[A] defendant may qualify for the enhancement [under U.S.S.G. § 3B1.1] if he
directs the actions of only one other participant.”), we reject Johnson’s procedural
challenge to his sentence.2
Johnson also contends that the sentence is substantively unreasonable because
Beadle received a sentence of probation and Domecillo only received an 18-month
sentence of imprisonment even though both Beadle and Domecillo were “more
culpable” and responsible for “far more extensive fraudulent transactions and losses”
than he was. Johnson maintains that although some of the “gross disparity” between
their sentences and his sentence can be explained by their substantial assistance to the
Government, this difference does not fully justify “the vast degree of disparity in their
respective sentences.” He argues that the remaining disparity rebuts the presumption
of reasonableness we apply to within-guidelines sentences. See United States v.
Lazenby, 439 F.3d 928, 933-34 (8th Cir. 2006).
We review the substantive reasonableness of a sentence under a deferential
abuse-of-discretion standard. United States v. Mees, 640 F.3d 849, 856 (8th Cir.
2011). An abuse of discretion occurs “where the sentencing court ‘fails to consider
2
Johnson also argues that, if Shaw was not a participant within the meaning of
U.S.S.G. § 3B1.1, the enhancement could not be justified by Johnson’s processing of
Domecillo’s and Skarl’s loan applications because there was no evidence that
Johnson “directed” either of those participants in how to obtain the loans. In light of
our conclusion that Johnson’s direction of Shaw was sufficient to justify the
enhancement, we do not reach this question.
-5-
a relevant factor that should have received significant weight, gives significant weight
to an improper or irrelevant factor, or considers only the appropriate factors but
commits a clear error of judgment in weighing those factors.’” United States v.
Moore, 565 F.3d 435, 438 (8th Cir. 2009) (quoting United States v. Kowal, 527 F.3d
741, 749 (8th Cir. 2008)). “[I]t will be the unusual case when we reverse a district
court sentence—whether within, above, or below the applicable Guidelines range—as
substantively unreasonable.” United States v. Feemster, 572 F.3d 455, 464 (8th Cir.
2009) (en banc) (quoting United States v. Gardellini, 545 F.3d 1089, 1090 (D.C. Cir.
2008)).
“[I]t is not an abuse of discretion for a district court to impose a sentence that
results in a disparity between co-defendants when there are ‘legitimate distinctions’
between the co-defendants.” United States v. Davis-Bey, 605 F.3d 479, 483 (8th Cir.
2010) (quoting United States v. Watson, 480 F.3d 1175, 1178 (8th Cir. 2007)). In
addition to the distinction that Johnson, unlike Domecillo and Beadle, did not receive
a sentencing reduction for substantial assistance, see United States v. Gallegos, 480
F.3d 856, 859 (8th Cir. 2007) (per curiam), the district court also identified a
legitimate distinction when it noted that Johnson’s sentence was sufficient, but not
greater than necessary, to force Johnson to “come to terms with what [he] did here,
and come to terms with . . . the mere fact [that] what others may have encouraged or
permitted does not relieve [him] of [his] responsibility for [his] own actions.” The
district court already had considered and rejected Johnson’s argument that he was
minimally culpable. When Johnson claimed that he was “not a criminal” or a “felon”
and “followed every guideline of every lender,” the court responded:
[Y]ou seem to think that everybody is to blame here except you, and that
your only offense here was not reporting Mr. Beadle. . . . I don’t believe
the facts support that, and find that you were an active participant in this
fraud . . . and that you did so knowingly. And the fact that you continue
to disallow your role in these offenses further confirms my assessment
that a sentence in the Guideline range is appropriate in this matter.
-6-
The district court properly considered Johnson’s “minimal remorse” in balancing the
18 U.S.C. § 3553(a) factors and crafting Johnson’s sentence. See United States v.
Wilder, 597 F.3d 936, 947 (8th Cir. 2010). Moreover, the district court specifically
considered Johnson’s role in the criminal enterprise and determined that a 33-month
sentence was appropriate to “achieve parity with the [sentences] of similarly situated
individuals, who have committed similarly situated offenses.” Finally, the district
court also was aware that, in addition to Johnson’s continued refusal to appreciate the
seriousness of his crimes, Johnson differed from Beadle and Domecillo in that he
waited until after his trial had convened to plead guilty. Because of these legitimate
distinctions, the district court did not abuse its discretion in sentencing Johnson to 33
months’ imprisonment.
For the foregoing reasons, the judgment of the district court is affirmed.
______________________________
-7-
| {
"pile_set_name": "FreeLaw"
} |
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 09-3433
____________
UNITED STATES OF AMERICA
v.
MICHAEL SINKO,
Appellant
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-07-cr-00703-003)
District Judge: Honorable Legrome D. Davis
____________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 17, 2010
Before: SCIRICA, RENDELL and FISHER, Circuit Judges.
(Filed: September 17, 2010)
____________
OPINION OF THE COURT
FISHER, Circuit Judge.
On April 23, 2009, Michael Sinko was convicted by a jury of one count conspiracy
to commit money laundering, in violation of 18 U.S.C. § 1956(h), and one count of aiding
and abetting money laundering, in violation of 18 U.S.C. § 1956(a)(3)(B). The District
Court sentenced Sinko to 30 months in prison and three years of supervised release. On
appeal, Sinko challenges the reasonableness of his sentence. For the reasons set forth
below, we will affirm.
I.
We write exclusively for the parties, who are familiar with the factual context and
legal history of this case. Therefore, we will set forth only those facts necessary to our
analysis.
During the summer of 2005, Sinko, Craig Scher, James Bell, and John Palmer
discussed the possibility of Palmer purchasing a condominium from Sinko as a method to
launder funds that Palmer had fraudulently obtained from his employer.1 The
condominium project was owned by Sinko and financed by NOVA Bank, of which Scher
was the Regional President and Sinko was outside counsel. Palmer informed Sinko that a
portion of the payments made for the condo would be in stolen money and that he did not
want these payments reported on the sales agreement. Palmer and Sinko discussed the
possible ways in which the payments could be kept off the record including adding
addenda to the sales agreement to reflect the cash payments made to Sinko, as seller of
the condo. On September 29, 2005, Sinko accepted $15,000 cash from Palmer as the first
1
John Palmer was actually undercover FBI agent John Roberts.
2
payment of the $100,000 to be laundered and Sinko produced an addendum to the sales
agreement to reflect this first installment payment.
On October 3, 2005, Palmer telephoned Sinko and reiterated the need for
discretion in handling the cash payments for the condo. Palmer explained that his scheme
was to submit false invoices to his employer and the resulting checks were mailed from
his employer to a post office box in New Jersey. Palmer informed Sinko that he needed
to launder the resulting funds into a more usable form. Sinko made no objection to the
source of the funds and, on November 8, 2005, Sinko accepted a second payment of
$15,000 cash.
Following a jury trial, Sinko was convicted of one count of conspiracy to commit
money laundering, in violation of 18 U.S.C. § 1956(h), and one count of aiding and
abetting money laundering, in violation of 18 U.S.C. § 1956(a)(3)(B). The District Court
requested that a Presentence Investigation Report (PSR) be prepared for the sentencing
hearing. The PSR determined that U.S.S.G. Section 2S1.1(a)(1) was applicable to the
money laundering offenses. Under § 2S1.1(a)(1), the base offense level for money
laundering is based on the offense level of the underlying offense from which the
laundered funds were derived. The PSR found that the appropriate underlying offense
was mail fraud, which carries a base offense level of seven. Pursuant to § 2B1.1(b)(1)(E),
eight levels were added to the base offense level to reflect Sinko’s intent to launder
$100,000 from a mail fraud scheme. Two levels were also added because he was
3
convicted under the money laundering statute, pursuant to § 2S1.1(b)(2)(B). Finally, the
PSR added an additional two levels to reflect an abuse of trust pursuant to § 3B1.3,
because the money laundering scheme that Sinko committed involved a bank with which
Sinko had a fiduciary relationship. Sinko’s resulting total offense level was 19, with a
criminal history category of I, resulting in an advisory guideline range sentence of 30 to
37 months of imprisonment.
At Sinko’s August 6, 2009 sentencing hearing, the District Court accepted the
findings of the PSR and denied Sinko’s various objections. The District Court ultimately
sentenced Sinko to 30 months of imprisonment and a term of three years’ supervised
release. The Court also ordered Sinko to pay a $50,000 fine and a $200 special
assessment.
Sinko filed a timely notice of appeal.2
II.
We review a district court’s legal conclusions regarding the advisory sentencing
guidelines de novo, see United States v. Hawes, 523 F.3d 245, 249 (3d Cir. 2008), its
application of the guidelines to the facts for abuse of discretion, id. at 248-49, and its
factual findings for clear error, United States v. Grier, 475 F.3d 556, 570 (3d Cir. 2007)
(en banc).
2
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
4
III.
Sinko appeals the District Court’s sentence on several grounds. He asserts that the
District Court: (1) incorrectly calculated his base offense level; (2) failed to adequately
consider the factors set forth in 18 U.S.C. § 3553(a); (3) erred in determining sentencing
enhancements and reductions regarding his role in the money laundering conspiracy; and
(4) failed to consider discrepancies between his sentence and other similarly situated
defendants under § 3553(a)(6). Because these arguments are plainly contrary to the
record, we reject them.
District courts must engage in a three-step sentencing process which necessitates:
(1) calculating a defendant’s guidelines sentence precisely as the court would have before
Booker; (2) formally ruling on any departure motions; and (3) exercising their discretion
by considering the relevant 18 U.S.C. § 3553(a) factors. United States v. Tomko, 562
F.3d 558, 567 (3d Cir. 2009) (en banc).
Our appellate review proceeds in two stages. “We must first ensure that the
district court committed no significant procedural error in arriving at its [sentencing]
decision” and, if it has not, “we then review the substantive reasonableness of the
sentence.” United States v. Wise, 515 F.3d 207, 217-18 (3d Cir. 2008). “At both stages
of our review, the party challenging the sentence has the burden of demonstrating
unreasonableness.” Tomko, 562 F.3d at 567.
5
A.
Sinko argues that his base offense level of seven was incorrectly calculated
because the District Court erred in concluding that the underlying offense of his money
laundering offense was mail fraud. We reject this contention.
U.S.S.G § 2S1.1(a)(1) calls for an application of the base offense level of the
offense from which the laundered funds were derived. The District Court agreed with the
determination of the PSR that the laundered funds were derived from mail fraud, pursuant
to 18 U.S.C. § 1341, and applied the mail fraud base offense level of seven. (App. at
AA33.)
The elements necessary to establish the offense of mail fraud are (1) a scheme or
artifice to defraud for the purpose of obtaining money or property and (2) use of the mails
in furtherance of the scheme. United States v. Yusuf, 536 F.3d 178, 187 (3d Cir. 2008)
(summarizing the elements of 18 U.S.C. § 1341). A scheme to defraud need not
contemplate the use of the mails as an essential part of the scheme so long as the mailing
is “incident to an essential part of the scheme.” Schmuck v. United States, 489 U.S. 705,
710-11 (1989).
The District Court points out, and the record makes clear, that Sinko was aware
that the funds to be laundered were derived from a fraud perpetuated through the use of a
post office box. (App. at AA33.) Sinko’s argument that embezzlement was the proper
underlying offense is meritless as the stolen funds were not Government property, a
6
required element of 18 U.S.C. § 641. Nothing in the record indicates that the District
Court abused its discretion in finding that the facts of this case satisfied the necessary
elements of mail fraud for purposes of determining Sinko’s base offense under
§ 2S1.1(a)(1).
B.
Sinko contends that at no time during the sentencing hearing did the District Court
touch upon the § 3553(a) factors. (Sinko Br. at 20.) Based on the record, this argument
plainly fails.
“[T]he touchstone of ‘reasonableness’ is whether the record as a whole reflects
rational and meaningful consideration of the factors enumerated in 18 U.S.C. § 3553(a).”
Tomko, 562 F.3d at 568 (internal quotations and citations omitted). A court need not
“discuss and make findings as to each of the § 3553(a) factors if the record makes clear
that the court took the factors into account in sentencing.” United States v. Cooper, 437
F.3d 324, 329 (3d Cir. 2006).
The record indicates that the District Court discussed and gave meaningful
consideration to the numerous § 3553(a) factors in sentencing Sinko. (See App. at AA98
(referencing the “sentencing structure as reflected in [§] 3553[a]”).) The District Court in
fact stated, “I think you going to jail actually would satisfy a number of very important
sentencing principles” and then proceeded to discuss the § 3553(a) factors. (App. at
AA97-99). Taken as a whole, the record shows the court adequately considered the
7
§ 3553(a) factors and reasonably applied them to the circumstances presented in Sinko’s
particular case.
C.
Sinko argues that his sentencing offense level should have been lowered two levels
due to his minor role in the offense, pursuant to U.S.S.G. § 3B1.2, and that his offense
level should not have been increased two levels for an abuse of trust, pursuant to U.S.S.G.
§ 3B1.3. These arguments both fail.
First, § 3B1.2 calls for a decrease in the offense level by two “[i]f the defendant
was a minor participant in any criminal activity[.]” Having presided over the jury trial
and heard all of the facts presented, the District Court stated at the sentencing hearing that
“[Sinko’s] involvement far exceeds, as a factual matter, a minor role.” (App. at AA37.)
The record supports the District Court’s conclusion that Sinko did not have a minor role
under § 3B1.2. Sinko discussed with Palmer possible methods to launder the stolen
funds, accepted two payments from Palmer to be laundered, and prepared the necessary
paper work to hide the payments. We cannot conclude that the District Court abused its
discretion in declining to reduce Sinko’s offense level for having a minor role in the
money laundering scheme.
Second, Sinko does not dispute that in representing NOVA Bank as a banking
lawyer he was in a position of trust with NOVA; rather, he argues that he did not use this
position of trust to facilitate the commission of his offense. Section 3B1.3 provides for
8
an increase of two levels if “[1] the defendant abused a position of public or private trust,
or [2] used a special skill, in a manner that significantly facilitated the commission or
concealment of the offense.” In this case, NOVA was connected to the transaction at
issue in two ways: (1) NOVA financed Sinko’s condominium development project; and
(2) Palmer was to receive a loan from NOVA in exchange for bribes to Sinko’s co-
defendants. Sinko’s concealment from NOVA of his involvement in the condominium
complex and his preparation of the documents needed to conceal Palmer’s cash payments
support the District Court’s finding that Sinko’s position of trust with NOVA assisted in
facilitating the money laundering scheme and warranted a two level increase under
§ 3B1.2. The District Court did not abuse its discretion in concluding that § 3B1.2 was
applicable to Sinko.
D.
Finally, Sinko argues that the District Court abused its discretion by failing to
consider discrepancies between his sentence and other similarly situated defendants under
§ 3553(a)(6). See 18 U.S.C. § 3553(a)(6) (requiring a sentencing court to consider “the
need to avoid unwarranted sentence disparities among defendants with similar records
who had been found guilty of similar conduct”). This contention, too, lacks merit.
In support of this argument, Sinko relies on two cases he cited to the District Court
in which defendants were convicted of what he claims are more serious offenses and
9
received lesser sentences. According to Sinko, the District Court failed to explain why
his case warranted a longer sentence than the cases he cited.
Contrary to Sinko’s assertion, the District Court explained that an individualized
application of the § 3553(a) factors to Sinko’s case required a different result than the
cases he cited. (App. at AA87-88.) In addressing Sinko’s argument at the sentencing
hearing, the District Court stated that sentencing can vary from case to case “based upon
the sentencing considerations that were represented to the judge at that particular time.”
(Id.) Further, Sinko has failed to offer any evidence that the defendants in the cases he
cites were similarly situated to him. See United States v. Robinson, 603 F.3d 230, 234-35
(3d Cir. 2010). The sentence imposed was more than justified by the reasons given by the
District Court, and the Court adequately considered the need to avoid unwarranted
sentencing disparities.
IV.
For the foregoing reasons, we will affirm the sentence of the District Court.
10
| {
"pile_set_name": "FreeLaw"
} |
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-35970
Plaintiff-Appellee,
D.C. Nos.
v. 4:16-cv-00075-BMM
4:14-cr-00063-BMM-1
KYLE JOEANIEL GOBERT,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Montana
Brian M. Morris, District Judge, Presiding
Submitted October 22, 2019 *
Portland, Oregon
Filed November 26, 2019
Before: Jerome Farris, Carlos T. Bea, and
Morgan Christen, Circuit Judges.
Opinion by Judge Bea
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 UNITED STATES V. GOBERT
SUMMARY **
28 U.S.C. § 2255
Affirming the district court’s denial of a 28 U.S.C.
§ 2255 motion challenging the validity of a conviction for
discharging a firearm during a crime of violence in violation
of 18 U.S.C. § 924(c)(1)(A), the panel held that assault with
a dangerous weapon described in 18 U.S.C. § 113(a)(3) is a
crime of violence under 18 U.S.C. § 924(c)(3)(A).
COUNSEL
David F. Ness, Assistant Federal Public Defender; Anthony
R. Gallagher, Federal Defender; Federal Defenders of
Montana, Great Falls, Montana; for Defendant-Appellant.
Timothy A. Tatarka, Assistant United States Attorney; Kurt
G. Alme, United States Attorney; United States Attorney’s
Office, Billings, Montana; for Plaintiff-Appellee.
OPINION
BEA, Circuit Judge:
The sole question presented by this appeal is whether the
offense of assault with a dangerous weapon described in
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. GOBERT 3
18 U.S.C. § 113(a)(3) is a crime of violence under 18 U.S.C.
§ 924(c)(3)(A). We hold that it is.
The facts underlying this case are straightforward and
not in dispute. Kyle Joeaniel Gobert was driving around
Blackfeet Indian Reservation with two friends, drinking and
using methamphetamine. The trio passed a parked truck
occupied by a group of males. The parked truck’s lights
flashed, which prompted Gobert to turn around and return to
the truck. Gobert parked his car and got out to relieve
himself, at which point the group of males began yelling
threats at Gobert and one of his companions. Feeling
threatened, Gobert went to the back of his car, gave verbal
commands to the male group to back up, retrieved an AR-15
from his trunk, and fired several shots in the males’
direction. Several bullets hit the truck, one shattered the
back windshield, another struck a truck occupant in the foot.
Gobert later admitted to law enforcement that he fired the
AR-15.
The government charged Gobert with three counts:
(1) assault resulting in serious bodily injury, in violation of
18 U.S.C. §§ 1153(a) 1 and 113(a)(6); (2) assault with a
dangerous weapon, in violation of 18 U.S.C. §§ 1153(a) and
113(a)(3); and (3) discharge of a firearm during a crime of
violence, in violation of 18 U.S.C. § 924(c)(1)(A). Gobert
pleaded guilty to Count Three, in exchange for which the
government moved to dismiss Counts One and Two. In
1
Section 1153(a) provides that “[a]ny Indian who commits” certain
offenses within the Indian country is “subject to the same law and
penalties as all other persons committing any of the [enumerated]
offenses, within the exclusive jurisdiction of the United States.” Felony
assault under 18 U.S.C. § 113 is specifically enumerated, meaning that
§ 1153(a) provides a mechanism to prosecute Gobert for felony assault.
Section 1153(a) is irrelevant to this appeal.
4 UNITED STATES V. GOBERT
pleading guilty to Count Three, Gobert admitted to the
commission of both assault offenses identified in Counts
One and Two, which served as the predicate offenses for
Count Three. As requested, the district court dismissed
Counts One and Two. As to Count Three, the district court
sentenced Gobert to a term of 60 months in prison, to be
followed by a three-year term of supervised release.
Gobert did not directly appeal his sentence, but later filed
a motion challenging the validity of his § 924(c)(1)(A)
conviction under 28 U.S.C. § 2255. Gobert argued that his
conviction for discharge of a firearm during a crime of
violence is unlawful because the predicate offenses for that
charge—the assault offenses identified in Counts One and
Two—no longer qualify as crimes of violence. The district
court denied relief but granted a certificate of appealability.
On appeal, the government does not raise any procedural
barriers to our consideration of Gobert’s collateral attack, so
we proceed straight to the merits.
As relevant here, § 924(c) punishes any person who uses
or carries a firearm “during and in relation to any crime of
violence.” 18 U.S.C. § 924(c)(1)(A). The term “crime of
violence” is defined in § 924(c)(3) as an offense that is a
felony and—
(A) has as an element the use, attempted use,
or threatened use of physical force
against the person or property of another,
or
(B) that by its nature, involves a substantial
risk that physical force against the person
or property of another may be used in the
course of committing the offense.
UNITED STATES V. GOBERT 5
Subparagraph (A) is known as the “elements clause,”
while subparagraph (B) is known as the “residual clause.”
Although the Supreme Court recently declared the residual
clause unconstitutionally vague, see United States v. Davis,
139 S. Ct. 2319, 2336 (2019), that is of no consequence to
this appeal because assault with a dangerous weapon under
18 U.S.C. § 113(a)(3) is a crime of violence under the
elements clause. 2
The Supreme Court has held that to qualify as a “crime
of violence” under the elements clause, the offense must
have as an element the use, attempted use, or threatened use
of “violent [physical] force—that is, force capable of causing
physical pain or injury to another person.” Johnson v.
United States, 559 U.S. 133, 140 (2010); Davis, 139 S. Ct.
at 2325–26 (applying Johnson to § 924(c)). The question
thus is whether the offense defined in the assault with a
dangerous weapon statute meets that standard. Under the
categorical approach used to make that determination, see
Mathis v. United States, 136 S. Ct. 2243, 2248 (2016), the
more specific question is whether the least serious form of
the offense meets the Johnson standard, see Moncrieffe v.
Holder, 569 U.S. 184, 190–91 (2013). If it does, assault with
a dangerous weapon qualifies categorically as a crime of
violence.
The federal assault with a dangerous weapon statute
provides, in relevant part:
2
Both Counts One and Two served as predicate crimes of violence
for Gobert’s § 924(c) conviction. In turn, his § 924(c) conviction is
lawful so long as either the offense identified in Count One or the offense
identified in Count Two qualifies as a crime of violence. Here we
conclude that assault with a dangerous weapon as identified in Count
Two qualifies as a crime of violence.
6 UNITED STATES V. GOBERT
Whoever . . . is guilty of . . . [a]ssault with a
dangerous weapon, with intent to do bodily
harm [shall be punished according to law].
18 U.S.C. § 113(a)(3). Gobert argues that “[a]ssault with a
dangerous weapon” does not constitute a crime of violence.
Specifically, Gobert contends that the least violent form of
such an assault offense would be the mere intentional use of
a display of force that reasonably causes a victim to fear
immediate bodily injury.
Gobert contends that using a display of force with a
dangerous weapon that reasonably causes a victim to fear
immediate bodily injury does not necessarily require the use
or threatened use of violent force against another as required
under Johnson. But we have addressed this precise assertion
twice before and rejected it both times. First in United States
v. Juvenile Female, 566 F.3d 943, 948 (9th Cir. 2009), we
held that assault with a dangerous weapon under a statute
worded similarly to § 113(a)(3) 3 was a crime of violence
under the elements clause of 18 U.S.C. § 16(a), which is
identical to § 924(c)(3)(A)’s elements clause. We there held
that a defendant charged with “assault with a deadly or a
dangerous weapon, must have always threatened the use of
physical force.” Id. at 948 (emphasis added) (quotation
marks and brackets omitted).
Next, in United States v. Calvillo-Palacios, 860 F.3d
1285, 1289–93 (9th Cir. 2017), we held that a Texas statute
penalizing intentionally and knowingly threatening another
3
Compare 18 U.S.C. § 111(b) (providing a penalty enhancement for
an assault involving “a deadly or dangerous weapon” or resulting in
“bodily injury”), with 18 U.S.C. § 113(a)(3) (proscribing “[a]ssault with
a dangerous weapon, with intent to do bodily harm”).
UNITED STATES V. GOBERT 7
with imminent bodily injury with the use of a deadly weapon
during the commission of an assault was a crime of violence
under the elements clause of Federal Sentencing Guidelines
§ 2L1.2(b)(1)(A)(ii), which again is identical to
§ 924(c)(3)(A)’s elements clause. Calvillo-Palacios stated
in no uncertain terms that “threat and assault statutes
necessarily involve” the requisite threat or use of physical
force to constitute a crime of violence under an elements
clause identical to the one at issue in this case. Id. at 1290
(emphasis added).
There is simply no room to find assault with a dangerous
weapon under § 113(a)(3) anything but a crime of violence
under § 924(c)(3)(A)’s elements clause following Juvenile
Female and Calvillo-Palacios’s binding precedent. The
least violent form of each offense is the threat to use violent
physical force through the use of a dangerous weapon that
reasonably caused a victim to fear immediate bodily injury,
which under Juvenile Female and Calvillo-Palacios
necessarily entails at least the “threatened use of violent
physical force” to qualify the offenses as crimes of violence
under § 924(c)(3)(A)’s elements clause. See Calvillo-
Palacios, 860 F.3d at 1290; Juvenile Female, 566 F.3d
at 948.
AFFIRMED.
| {
"pile_set_name": "FreeLaw"
} |
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5246-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
PHILLIP A. DIXON,
Defendant-Appellant.
__________________________
Submitted May 13, 2019 – Decided May 22, 2019
Before Judges Sabatino and Sumners.
On appeal from Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 85-06-1145.
Phillip A. Dixon, appellant pro se.
Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Linda A. Shashoua, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
In this pro se appeal, defendant Phillip A. Dixon seeks reversal of two
decisions of Judge Kathleen Delaney dated April 24, 2018 and June 14, 2018
denying his requests for relief from his 1987 conviction and ensuing 1991
resentencing.
Defendant was charged with the murder of a thirteen-year-old girl,
aggravated criminal sexual contact, and other offenses by a Camden County
grand jury. Following a 1987 jury trial, defendant was found guilty of most of
the counts of the indictment but not guilty of robbery. At that time, the death
penalty in New Jersey was still in effect. The jury imposed the death penalty in
the capital phase of the trial.
Defendant appealed as of right directly to the Supreme Court of New
Jersey. In State v. Dixon, 125 N.J. 223 (1991), the Court vacated the death
sentence because of jury instruction flaws in the capital phase. The matter was
remanded for resentencing.
In November 1991, the judge who had presided over the trial resentenced
defendant to an aggregate sentence of life plus five years, with a thirty-two-and-
one-half-year parole disqualifier. Defendant sought post-conviction relief
("PCR"), which was denied by the trial court in July 1997. That PCR denial was
affirmed on appeal by this court in February 2000. State v. Dixon, No. A-7031-
96 (App. Div. Feb. 25, 2000). Certification was denied by the Supreme Court
of New Jersey in September 2000. State v. Dixon, 165 N.J. 528 (2000).
A-5246-17T1
2
According to the parties' briefs, defendant also pursued habeas corpus
relief in the federal district court, which was denied in September 2004. That
denial was upheld by the Third Circuit in February 2005, and certiorari was
denied by the U.S. Supreme Court in October 2005. Dixon v. Cathel, 546 U.S.
891 (2005).
The present appeal arises out of what appellant in his pro se submission
to the trial court described as motions for a new trial, to correct an illegal
sentence, and for the appointment of counsel. Because his original May 2017
filing could not be located, a duplicate was resubmitted, and the matter was
referred to Judge Delaney.
In her April 24, 2018 letter decision, Judge Delaney denied relief with
respect to defendant's motions for a new trial and resentencing, finding the
claims to be time-barred under Rule 3:20-2 and Rule 3:21-10.
Subsequently, in her June 14, 2018 letter, Judge Delaney denied
defendant's motion for reconsideration. This letter focused on the fact that when
the court resentenced defendant in November 1991, it was making use of a
presentence report that was generated in 1987. Judge Delaney found that the
1987 presentence report was still "relatively current" and thus could be used at
his 1991 resentencing on remand from the Supreme Court.
A-5246-17T1
3
Defendant now appeals these April 2018 and June 2018 rulings. He raises
these points in his briefs:
POINT I
THE COURT ERRED IN DENYING APPELLANT'S
MOTIONS WITHOUT ISSUING ADEQUATE
FACTUAL FINDINGS AND A STATEMENT OF
REASONS (PLAIN ERROR).
POINT II
THE COURT'S DECISION DENYING THE MOTION
TO CORRECT AN ILLEGAL SENTENCE IS
CONTRARY TO ESTABLISHED CASE LAW AND
COURT RULES (PLAIN ERROR).
REPLY POINT I
RESPONDENT'S BRIEF IS OFF-POINT, FAILS TO
ADDRESS THE ISSUES RAISED BY APPELLANT
AND SHOULD BE IGNORED BY THIS COURT.
We reject defendant's arguments for both procedural and substantive
reasons. We agree with Judge Delaney that defendant's arguments are
procedurally barred and should have been raised long ago. There is also no
substantive merit to his claims.
When the trial court resentenced defendant in 1991, it was not
automatically required to have an updated presentence report. Even under
A-5246-17T1
4
current case law, no such automatic requirement exists. State v. Randolph, 210
N.J. 330, 350 (2012).
Defendant also complains that Judge Delaney did not address his assertion
that the assistant prosecutor allegedly told the grand jurors that the State did not
have to prove penetration in order to support a charge of aggravated sexual
assault. In its responsive brief on appeal, the State correctly points out that even
if this argument was properly before this court, it has no merit. For one thing,
the indictment charged defendant with aggravated criminal sexual contact , not
sexual assault, so penetration was not required and would not have been required
at the trial. In addition, case law provides that any flaws in the grand jury
proceedings are generally rendered harmless if the jury finds defendant guilty at
trial. See State v. Simon, 421 N.J. Super. 547, 551 (App. Div. 2011); State v.
Cook, 330 N.J. Super. 395, 411 (App. Div. 2000).
Having carefully considered defendant's arguments, we find they have no
merit. No further discussion is warranted. R. 2:11-3(e)(2).
Affirmed.
A-5246-17T1
5
| {
"pile_set_name": "FreeLaw"
} |
FILED
NOT FOR PUBLICATION SEP 08 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TOMAS LOPEZ-MEZA, No. 14-73874
Petitioner, Agency No. A099-473-569
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Immigration Judge
Submitted August 25, 2015**
Before: McKEOWN, CLIFTON, and HURWITZ, Circuit Judges
Tomas Lopez-Meza, a native and citizen of Honduras, petitions for review
of the immigration judge’s reasonable fear determination.
*
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).
In the answering brief, respondent requests remand for further analysis and
explanation of the immigration judge’s decision. We agree the current
immigration judge decision lacks sufficient explanation to permit our review.
REMANDED directly to the immigration judge.
2 14-73874
| {
"pile_set_name": "FreeLaw"
} |
167 Cal.App.3d 216 (1985)
213 Cal. Rptr. 132
TERESA CANNON, a Minor, etc., et al., Plaintiffs and Appellants,
v.
CITY OF NOVATO, Defendant and Respondent.
Docket No. A015514.
Court of Appeals of California, First District, Division Three.
April 24, 1985.
*218 COUNSEL
Michael James Moriarty, Kay E. Tindel and Jane Elizabeth Lovell for Plaintiffs and Appellants.
*219 Jonathan P. Reynolds and Russ & Reynolds for Defendant and Respondent.
OPINION
BARRY-DEAL, J.
Appellants Teresa and Michael Cannon appeal from a dismissal of their personal injury action against respondent City of Novato and other defendants who are not parties to this appeal. Appellants contend that the trial court erred in granting respondent's motion to dismiss pursuant to Code of Civil Procedure section 583, subdivision (b),[1] which mandates dismissal of suits not brought to trial within five years after the filing of the complaint. We affirm the judgment of dismissal.
Facts
Appellants filed their complaint on April 14, 1976, and all defendants had answered by December 20, 1976. The parties engaged in discovery activities, which on appellants' part consisted of propounding five identical sets of interrogatories in September 1976 to the various public entity defendants. During the period between April 1976 and April 1979, defendants brought several motions challenging the sufficiency of the complaint and praying for summary judgment. From April 1979 to December 1980, a period of approximately 20 months, appellants were completely inactive. In December 1980 they filed their first at-issue memorandum and noticed a motion for December 29 to advance the case for trial on the ground that the five-year period would soon expire. The motion to advance the matter on the civil active list was granted, and a mandatory trial setting conference was set for February 4, 1981, with an order to set the trial no later than April 14, 1981, the last day of the five-year period. In January appellants noticed depositions and took two depositions in February 1981.
At the trial setting conference on February 4, 1981, the trial court ordered the parties to arbitrate pursuant to section 1141.11, which provides for judicial arbitration upon a finding that the amount in controversy does not exceed $15,000. The arbitrator's award, denying appellants' claim, was filed on June 15, 1981. On June 19, 1981, appellants rejected the arbitrator's award and moved to advance the trial date. Appellants stated in the motion to advance that the trial must be set prior to October 16, 1981, in order to meet the five-year limitation contained in section 583, subdivision (b).
*220 On June 29, 1981, the court clerk gave notice that the mandatory settlement conference would be held September 21, 1981, and trial was set for October 5, 1981. The failure of appellants to submit a settlement conference statement within 10 days prior to the scheduled settlement conference date resulted in the court ordering the matter off calendar. Appellants then filed another motion to advance the case for trial; respondent concurrently filed its motion to dismiss pursuant to section 583, subdivision (b). Respondent's motion to dismiss was heard on September 25, 1981, and on September 28, 1981, the court granted respondent's motion and took appellants' motion to advance off calendar.
Discussion
(1a) Appellants contend that it was impossible and impracticable for them to bring the action to trial prior to the expiration of the five-year period mandated by section 583, subdivision (b).
Section 583, subdivision (b), at the time of dismissal provided:[2] "(b) Any action heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced or to which it may be transferred on motion of the defendant, after due notice to plaintiff or by the court upon its own motion, unless such action is brought to trial within five years after the plaintiff has filed his [or her] action, except where the parties have filed a stipulation in writing that the time may be extended."
Appellants filed their complaint on April 14, 1976, so the original five-year limitation date would have been April 14, 1981. However, because the parties were ordered into arbitration by the trial court, the five-year period under section 583, subdivision (b), was tolled under section 1141.17, which provides: "Submission of an action to arbitration pursuant to this chapter shall not toll the running of the time periods contained in Section 583 as to *221 actions filed on or after the operative date of this chapter. Submission to arbitration pursuant to a court order within six months of the expiration of the statutory period shall toll the running of such period until the filing of an arbitration award."[3]
At the time the parties were ordered into arbitration, February 4, 1981, 69 days remained until the original 5-year period would expire. The section 583, subdivision (b), period was tolled until the date the arbitration award was filed, June 15, 1981. The new section 583, subdivision (b), dismissal date was thus extended to August 23, 1981, 69 days after the filing of the arbitration award.
Counsel for appellants miscalculated the extension under section 1141.17 and informed both the court and opposing counsel that the section 583, subdivision (b), limitation period would expire on October 16, 1981. The court clerk complied with appellants' request and assigned a court date prior to October 16.
(2a) Section 583, subdivision (b), will not be applied in cases where, due to circumstances beyond the party's control, it was impossible, impracticable, or futile to bring the case to trial during the five-year period. (Bennett v. Bennett Cement Contractors, Inc. (1981) 125 Cal. App.3d 673, 676 [178 Cal. Rptr. 633]; see also Moran v. Superior Court (1983) 35 Cal.3d 229, 238 [197 Cal. Rptr. 546, 673 P.2d 216].[4]) In determining whether section 583, subdivision (b), should be applied to dismiss a case, the courts look to (1) the circumstances beyond plaintiffs' control which prevented trial within five years, and (2) whether the plaintiffs pursued the suit diligently. (Crown Coach Corp. v. Superior Court (1972) 8 Cal.3d 540, 546 [105 Cal. Rptr. 339, 503 P.2d 1347]; Brown v. Engstrom (1979) 89 Cal. App.3d 513, 521 [152 Cal. Rptr. 628]; Bennett v. Bennett Cement Contractors, Inc., supra, 125 Cal. App.3d at pp. 676-677; Moran v. Superior Court, supra, 35 Cal.3d at p. 238; Karubian v. Security Pacific Nat. Bank (1984) 152 Cal. App.3d 134, 138 [199 Cal. Rptr. 295].) A determination by the trial court that the plaintiff has had a reasonable opportunity to bring the case to trial will not be disturbed if there is substantial evidence to support it. (Bennett, supra, at p. 677.)
*222 (1b) Appellants contend that their failure to bring the suit to trial prior to August 23, 1981, is due to the court's error in setting the trial date and that, once appellants moved to set the case for trial, they were entitled to assume that the court would perform its official duty by assigning a trial date within the five-year period mandated by section 583, subdivision (b).
The line of cases culminating in Moran does provide a remedy to those plaintiffs who, despite their diligence, were unable to bring their cases to trial because the courts or other officials impeded progress of the suits. (Karubian v. Security Pacific Nat. Bank, supra, 152 Cal. App.3d at p. 138.) In Bennett, the trial date was delayed by continuances made on the court's own motion due to lack of courtroom space or an available judge. (Bennett v. Bennett Cement Contractors, Inc., supra, 125 Cal. App.3d at p. 677.) The Brown suit was delayed by an arbitration administrator. (Brown v. Engstrom, supra, 89 Cal. App.3d at p. 524.) In Nail v. Osterholm (1970) 13 Cal. App.3d 682, 686 [91 Cal. Rptr. 908], trial was delayed when the court failed to reassign the case to a new judge. The Moran case was delayed after the court clerk mistakenly sent the file to storage. (Moran v. Superior Court, supra, 35 Cal.3d at p. 236.) (3) When official duty has not been performed and it is thereby impossible to bring the case to trial within the section 583, subdivision (b), deadline, the time between the date the arbitration award is filed with the court and the date set for the new trial is to be excluded from calculation of the five-year period. (Id., at p. 242.)
Appellants have failed to show that they relied on the performance of official duty to obtain a timely trial date. Counsel for appellants asked the court for a date prior to October 16 and were promptly provided with a trial date within that time. (4) A party's inadvertence in selecting a trial date does not constitute impossibility or impracticability under section 583, subdivision (b), because it is the party's duty to keep track of such crucial dates. (State of California v. Superior Court (1979) 98 Cal. App.3d 643, 649-650 [159 Cal. Rptr. 650].) "The burden is upon the plaintiff to call to the attention of the court the necessity for setting the trial for a time within the period fixed by [section 583]. [Citation.]" (Steinbauer v. Bondesen (1932) 125 Cal. App. 419, 426 [14 P.2d 106].) If the plaintiff could have acted to bring the case to trial on time and failed to do so, relief will not be given even if the plaintiff claims to have relied on the performance of an official duty. (Karubian v. Security Pacific Nat. Bank, supra, 152 Cal. App.3d at p. 140.) (1c) The court had no duty to check appellants' calculations for error before assigning the requested trial date. Therefore, because the delay in going to trial was caused by appellants' own miscalculation rather than circumstances beyond their control, the remedial provisions of the Moran line of cases are inapplicable here.
*223 Even if appellants' error in calculating the limitation date were grounds for excuse, the record does not support a finding that the suit was pursued diligently. Appellants seek to distinguish their activities over the past eight years from those of the parties in Fluor Drilling Service, Inc. v. Superior Court (1982) 135 Cal. App.3d 1009 [186 Cal. Rptr. 9] and Castorena v. Superior Court (1982) 135 Cal. App.3d 1014 [186 Cal. Rptr. 14]. It is true that appellants made their trial setting motions promptly after the filing of the arbitration award, and the plaintiffs in Fluor and Castorena suffered dismissal because they failed to pursue a trial date after arbitration. (Fluor, supra, at p. 1012; Castorena, supra, at p. 1017.) (2b) A determination of due diligence requires an examination of the circumstances existing throughout the five-year period. (Bennett v. Bennett Cement Contractors, Inc., supra, 125 Cal. App.3d at p. 676; Moran v. Superior Court, supra, 35 Cal.3d at pp. 239-240.) (1d) The record here shows that appellants did not diligently pursue their suit. In the course of the first two years of litigation, appellants' only discovery activities consisted of propounding five identical sets of interrogatories. Depositions were not taken until almost five years after the complaint was filed. During one period of approximately twenty months, appellants filed nothing with the court. Therefore, because it was not impossible for appellants to have brought this suit to trial within the five-year period mandated by section 583, subdivision (b), the trial court acted properly in dismissing the case.
The judgment is affirmed.
Anderson, J.,[*] concurred.
WHITE, P.J.
I respectfully dissent. Ward v. Levin (1984) 161 Cal. App.3d 1026, 1032 [208 Cal. Rptr. 312] is, in my view, persuasive authority that Moran v. Superior Court (1983) 35 Cal.3d 229 [197 Cal. Rptr. 546, 673 P.2d 216], cited in the majority opinion at page 221 and in footnote number 4 on page 221, should be applied retroactively to the case at bench.
Moran reaffirmed the "reasonable diligence in prosecuting [the] case" standard relative to Code of Civil Procedure section 583[1] five-year dismissals. (Id., at p. 240.) The Moran court, however, did not stop there. "Moran relied on Hartman [Hartman v. Santamarina (1982) 30 Cal.3d 762, 767-769 (180 Cal. Rptr. 337, 639 P.2d 979, 32 A.L.R.4th 833)] and Nail [Nail v. Osterholm (1970) 13 Cal. App.3d 682, 686-687 (91 Cal. Rptr. 908)] in holding that once a party has requested a trial de novo following arbitration, it is the duty of the court to set the case for trial in a timely fashion; the *224 five-year statute is tolled during the time it takes the court to perform such duty." (Ward v. Levin, supra, at p. 1032.)
Division Seven of the Second District of this court in Ward v. Levin, supra, at page 1033, astutely analyzed Moran's decisional rule and its basis as expressed by the Supreme Court. I only add that the Supreme Court in Moran pointedly designated its "rule" relative to five-year dismissals subsequent to court-ordered arbitration to be a "second," "independent" standard for tolling section 583 time. (See Moran, supra, at p. 240.)
When Moran's second rule is independently applied to the essential facts of this case, it appears clear that the trial court erred in not denying respondent's section 583, subdivision (b) motion to dismiss for the reason that the motion was premature. On February 4, 1981, 69 days remained of the statutory 5-year time period. On that date those 69 days were effectively tolled when the court ordered the cause to be arbitrated. (See majority opn., p. 221.) On June 15, 1981, when the arbitration award unfavorable to appellants' interests was filed, the 69 days commenced to run again. But time ran only until June 19, 1981, when appellant rejected the arbitrator's award by moving to advance the trial date, a period of four days. (See Moran, supra, at p. 235.) Thereafter, time remaining of the five-year statutory period, i.e., I would think sixty-five days, was tolled until October 5, 1981, the trial date set by the court clerk at appellants' direction.[2] Manifestly, respondent's section 583, subdivision (b) motion heard September 25, 1981, and granted on September 25, 1981, to dismiss was premature and should have been denied on that ground.
The reason, of course, the limitations period provided by section 583, subdivision (b) would not commence to run again until October 5, 1981, results from the retroactive application of Moran's "second" but independent rule. Clearly, appellants' motion for advancement of trial filed June 19, 1981, constituted a request for a "de novo trial" within the meaning of section 1141.20. Appellant's cause had been heard in arbitration with unfavorable results; they then timely of right requested that the cause be heard anew in a trial on the facts and the law. Appellants' request, in light of Moran, accomplished more; it activated the court's duty to both restore appellants' case to a preferred spot on the civil active list and to actually calendar the case for trial. (See Moran, supra, fn. 10, at p. 241.) I can reach no other result upon my reading of Moran's decisional rule which is: "[w]here a defendant [party] seeks a trial de novo after arbitration, the trial *225 court should give the matter priority and assign it the earliest possible trial date. The time between the date the arbitration award is filed with the court and the date set for the new trial is to be excluded from calculation of the five-year period of section 583(b)." (Moran, supra, at p. 242.)
I would reverse the judgment.
Appellants' petition for review by the Supreme Court was denied July 18, 1985.
NOTES
[1] Unless otherwise noted all statutory references are to the Code of Civil Procedure.
[2] Section 583 was repealed and replaced by new legislation effective as of January 1, 1985. (Stats. 1984, ch. 1705, §§ 4, 5.) The new dismissal statute continues the requirement that an action must be brought to trial within five years after its commencement against the defendant. (§ 583.310.) Section 583.340 provides: "In computing the time within which an action must be brought to trial pursuant to this article, there shall be excluded the time during which any of the following conditions existed: [¶] (a) The jurisdiction of the court to try the action was suspended. [¶] (b) Prosecution or trial of the action was stayed or enjoined. [¶] (c) Bringing the action to trial, for any other reason, was impossible, impracticable, or futile." If the five-year period is tolled or extended "... with the result that at the end of the period of tolling or extension less than six months remains within which the action must be brought to trial, ..." the parties are allowed six months after the tolling or extension to bring the action to trial. (§ 583.350.) The requirements of the article are mandatory and can only be excused or extended as provided by statute. (§ 583.360.) This new legislation does not apply to the instant action because the dismissal order here was entered before January 1, 1985. (§ 583.160.)
[3] Section 1141.17 has since been amended by Statutes 1983, chapter 123, section 3 and Statutes 1984, chapter 1705, section 6.
[4] Moran was issued after this appeal was filed, and the opinion does not include a provision for retroactive application. One court has found that retroactive application of Moran is not unfair, since the holding therein is a natural extension of existing case law. (Ward v. Levin (1984) 161 Cal. App.3d 1026 [208 Cal. Rptr. 312].) We cite Moran to supplement the line of cases in effect at the time this appeal was filed although, as discussed below, the remedial time computation method of Moran is not applicable to these facts.
[*] Assigned by the Chairperson of the Judicial Council.
[1] All statutory references are to the Code of Civil Procedure unless otherwise designated.
[2] Moran's decisional "rule II" clearly results in the tolling of 69 days, (see Moran, supra, at p. 242; accord, Ward v. Levin, supra, at p. 1033) but it is my experience that once time runs its course, it defies recapture.
| {
"pile_set_name": "FreeLaw"
} |
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-2509
H. LEIGHTON LASKEY,
Plaintiff - Appellant,
v.
CITY OF BALTIMORE; MAYOR & CITY COUNCIL FOR THE CITY OF
BALTIMORE; LAW DEPT. FOR THE CITY OF BALTIMORE; CHRISTOPHER
R. LUNDY, Defense Counsel City of Baltimore; PAUL GRAZIANO,
Commissioner Baltimore City Housing; THE STATE OF MARYLAND;
THE OFFICE OF THE CLERK OF THE COURT,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, Chief District
Judge. (1:15-cv-02995-CCB)
Submitted: February 23, 2016 Decided: February 25, 2016
Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
H. Leighton Laskey, Appellant Pro Se. William Rowe Phelan, Jr.,
BALTIMORE CITY LAW DEPARTMENT, Baltimore, Maryland, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
H. Leighton Laskey seeks to appeal the district court’s
order dismissing his civil action without prejudice. This court
may exercise jurisdiction only over final orders, 28 U.S.C.
§ 1291 (2012), and certain interlocutory and collateral orders,
28 U.S.C. § 1292 (2012); Fed. R. Civ. P. 54(b); Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541, 545-46 (1949).
Because Laskey may be able to remedy the pleading deficiencies
identified by the district court by filing an amended complaint,
we conclude the order Laskey seeks to appeal is neither a final
order nor an appealable interlocutory or collateral order.
Goode v. Cent. Va. Legal Aid Soc’y, Inc., 807 F.3d 619, 623-24
(4th Cir. 2015); Domino Sugar Corp. v. Sugar Workers Local Union
392, 10 F.3d 1064, 1066-67 (4th Cir. 1993). Accordingly, we
dismiss the appeal for lack of jurisdiction. 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.
DISMISSED
2
| {
"pile_set_name": "FreeLaw"
} |
16-1018
Tucker v. Decker
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held at
2 the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
3 on the 16th day of March, two thousand seventeen.
4
5 PRESENT:
6 PIERRE N. LEVAL,
7 GUIDO CALABRESI,
8 SUSAN L. CARNEY,
9 Circuit Judges.
10 _________________________________________
11
12 MARTHA TUCKER,
13
14 Plaintiff-Appellant,
15
16 v. No. 16-1018
17
18 LYLE DECKER,
19
20 Defendant-Appellee.
21 _________________________________________
22
23 FOR APPELLANT: PIETRO J. LYNN, Lynn, Lynn, Blackman &
24 Manitsky, P.C., Burlington, VT.
25
26 FOR APPELLEE: KATE T. GALLAGHER, Assistant Attorney
27 General, Montpelier, VT.
28
1 Appeal from judgment of the United States District Court for the District of
2 Vermont (Murtha, J.).
3 UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
4 ADJUDGED, AND DECREED that the March 23, 2016 judgment entered by the
5 District Court is AFFIRMED.
6 Plaintiff Martha Tucker, a former school superintendent of the Caledonia Central
7 Supervisory Union in Vermont, brought this action against defendant Lyle Decker, a
8 Vermont State Trooper, alleging that his actions in connection with her prosecution for
9 failure timely to report an allegation of child abuse violated her rights under the U.S.
10 Constitution and Vermont state law. The charges against Tucker were ultimately dismissed.
11 In her complaint, she alleged that she “suffered significant professional, reputational and
12 other harm as a consequence of Decker’s conduct.” Joint Appendix at 12. Tucker appeals
13 from the judgment entered pursuant to the District Court’s orders (1) granting in part
14 Decker’s motion to dismiss Tucker’s 42 U.S.C. § 1983 malicious prosecution and invasion of
15 privacy claims and (2) granting Decker’s motion for summary judgment as to the remaining
16 § 1983 defamation claim and state law claims. We assume the parties’ familiarity with the
17 underlying facts and the procedural history of the case, to which we refer only as necessary
18 to explain our decision to affirm.
19 I. Motion to Dismiss
20 We review a district court’s dismissal under Rule 12(b)(6) de novo, accepting as true all
21 factual allegations in the complaint and drawing all reasonable inferences in the plaintiff’s
22 favor. Segarra v. Fed. Reserve Bank of N.Y., 802 F.3d 409, 411 (2d Cir. 2015) (per curiam). “To
23 survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as
24 true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
25 (2009) (internal quotation marks omitted).
26 The District Court dismissed Tucker’s federal malicious prosecution claim,
27 concluding that Decker was entitled to qualified immunity with respect to the claim. A law
28 enforcement officer is entitled to qualified immunity in a suit for malicious prosecution if he
2
1 can establish that he had at least arguable probable cause to charge the plaintiff. “Arguable
2 probable cause exists if either (a) it was objectively reasonable for the officer to believe that
3 probable cause existed, or (b) officers of reasonable competence could disagree on whether
4 the probable cause test was met.” Garcia v. Does, 779 F.3d 84, 92 (2d Cir. 2015) (citation
5 omitted). An officer has probable cause “when he or she has knowledge or reasonably
6 trustworthy information of facts and circumstances that are sufficient to warrant a person of
7 reasonable caution in the belief that the person to be [charged] has committed or is
8 committing a crime.” Id. (citation omitted).
9 Tucker argues that, based on the knowledge attributed to Decker in the complaint’s
10 allegations, Decker did not have arguable probable cause to issue a citation to her for failure
11 to comply with Vermont’s mandatory reporter statute. During the period relevant to this
12 action, the statute required a person who is a mandatory reporter to notify the state’s
13 Department for Children and Families within 24 hours if he or she has “reasonable cause to
14 believe that any child has been abused or neglected.” Vt. Stat. Ann. tit. 33, § 4913(a) (2013).
15 Because the phrase “reasonable cause to believe” has not been authoritatively interpreted by
16 the Vermont courts, reasonable officers confronted with the knowledge attributed to Decker
17 in the complaint could disagree as to whether there was probable cause to issue a citation.
18 Tucker pointed to the phrase as supporting her own determination not to report
19 immediately the allegation at issue here, which had been presented to her as not credible; but
20 Decker’s interpretation was not unreasonable, either. Decker is therefore entitled to qualified
21 immunity on this claim, and the claim was properly dismissed by the District Court.
22 The District Court also dismissed Tucker’s federal invasion of privacy claim,
23 concluding that because Tucker could not show that she had a reasonable expectation of
24 privacy in her fingerprints and photograph, Decker was entitled to qualified immunity. We
25 believe the District Court may have erred in finding no reasonable expectation of privacy,
26 but agree that given the state of law on this issue, Decker was entitled to qualified immunity
27 on this claim too.
28
3
1 II. Motion for Summary Judgment
2 After the District Court ruled on Decker’s motion to dismiss, the parties conducted
3 discovery. Decker then sought and the District Court granted summary judgment on the
4 remaining claims. We review a district court’s grant of summary judgment de novo, construing
5 all evidence and drawing all reasonable inferences in favor of the nonmoving party. Mitchell v.
6 City of New York, 841 F.3d 72, 77 (2d Cir. 2016). We will affirm only if “there is no genuine
7 dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
8 Fed. R. Civ. P. 56(a).
9 The District Court awarded Decker summary judgment on Tucker’s state law
10 malicious prosecution claim, concluding that Decker was entitled to qualified immunity on
11 this claim. Under Vermont law, a defendant is entitled to qualified immunity if he was
12 “(1) acting during the course of [his] employment and acting, or reasonably believing [he
13 was] acting, within the scope of [his] authority; (2) acting in good faith; and (3) performing
14 discretionary, as opposed to ministerial, acts.” Murray v. White, 155 Vt. 621, 627 (1991). Good
15 faith under Vermont law may be found “where an official’s acts did not violate clearly
16 established rights of which the official reasonably should have known.” Id. at 630. The good
17 faith inquiry “does not ask whether plaintiff’s rights were violated,” but rather, whether “the
18 contours of the right [were] sufficiently clear that a reasonable official would understand that
19 what he is doing violates that right,” such that the unlawfulness of his action is “apparent”
20 when considered “[i]n the light of pre-existing law.” Id. (citation omitted). After review of
21 the undisputed facts here, and noting again the uncertain scope of the mandatory reporter
22 statute, we cannot say that a reasonable officer confronted with the facts known to Decker
23 when Tucker was charged would have known that Tucker’s actions did not subject her to
24 criminal liability. Decker is therefore entitled to qualified immunity on this claim as well.
25 The District Court also granted Decker’s motion for summary judgment on Tucker’s
26 federal “stigma-plus” claim based, in part, on its determination that Tucker failed to
27 demonstrate the necessary “plus” factor. To succeed on a stigma-plus claim, a plaintiff must
28 present evidence of stigma—“the utterance of a statement sufficiently derogatory to injure
29 [plaintiff’s] reputation, that is capable of bring proved false, and that he or she claims is
4
1 false”—and a “plus”—a “material state-imposed burden or state-imposed alteration of the
2 plaintiff’s status or rights.” Vega v. Lantz, 596 F.3d 77, 81 (2d Cir. 2010) (citation omitted).
3 We agree with the District Court that Tucker has failed to show a material dispute of fact
4 regarding the “plus” element. Tucker was not subjected to a “state-imposed burden”: she
5 admits that she voluntarily resigned from her position following her citation by Decker, and,
6 although she has presented evidence of numerous adverse news reports, she has made no
7 showing that she was constructively dismissed. Decker is therefore entitled to summary
8 judgment on this claim.
9 Finally, the District Court granted Decker’s motion for summary judgment on
10 Tucker’s state defamation and invasion of privacy claims. Regardless of whether we agree
11 with the District Court’s reasoning on these claims, we affirm because we conclude that,
12 under state law, these claims lie exclusively against the state of Vermont. The Vermont Tort
13 Claims Act provides that if a claim arises out of an “act or omission of an employee of the
14 state acting within the scope of employment,” then “the exclusive right of action shall lie
15 against the state of Vermont.” Vt. Stat. Ann. tit. 12, § 5602(a). Tort claims may be brought
16 against the individual employee instead of the state only for the employee’s “gross negligence
17 or willful misconduct.” Id. § 5602(b). Here, we think that no reasonable jury could conclude
18 from the undisputed facts that Decker’s actions amounted to willful misconduct or gross
19 negligence. Tucker’s defamation and invasion of privacy claims therefore lie exclusively
20 against the state of Vermont and were properly dismissed by the District Court.
21 * * *
22 We have considered plaintiff’s remaining arguments on appeal and find them to be
23 without merit. The judgment of the District Court is AFFIRMED.
24
25 FOR THE COURT:
26 Catherine O’Hagan Wolfe, Clerk of Court
5
| {
"pile_set_name": "FreeLaw"
} |
309 So.2d 614 (1975)
Glenn M. SURRATT, Appellant,
v.
Claude L. FLEMING and Priscilla Fleming, Appellees.
No. V-262.
District Court of Appeal of Florida, First District.
March 12, 1975.
Rehearing Denied April 8, 1975.
H. Diane Breithaupt, Gainesville, for appellant.
Allison Folds of Fagan, Crouch, Anderson & Folds, Gainesville, Jackson Bryan of Bryan & Middleton, Palatka, and P. Ause Brown, Jr., Gainesville, for appellees.
MILLS, Judge.
This appeal arises out of a mechanic's lien foreclosure suit. Appellees, defendants-property owners below, allowed a default to be taken against them. Appellant was the successful bidder at the sale which was held under Section 45.031, Florida Statutes. Appellees did not attend the sale nor file objections thereto.
Four days after the clerk issued the certificate of title to appellant, appellees filed a motion to vacate and set aside the sale. Appellees contended the successful bid was inadequate and resulted from circumstances which caused unfairness. Numerous facts were set forth in the motion to support the contention but the trial court resolved all of the facts against appellees. Having resolved all factual issues, the trial court requested briefs be filed by counsel for the parties on two questions of law. These questions were:
(1) Did the trial court have jurisdiction to consider the motion to vacate and set *615 aside sale where the time for appealing the final judgment had expired; and (2) did the court have discretion to set aside the sale because of inadequacy of price?
After reviewing the briefs, the trial court rendered an order vacating and setting aside the sale. The order merely stated that after hearing argument of counsel, reviewing the briefs, and considering the entire record, the court found that the sale and certificate of title should be vacated and set aside. Appellant appeals from this order.
The trial court had jurisdiction to consider the motion to vacate and set aside sale though the time had expired to appeal the judgment. Courts of equity have general jurisdiction over judicial sales made under their orders and may set aside or vacate sales even after confirmation. Marsh v. Marsh, 72 Fla. 142, 72 So. 638 (1916).
This court is unable to determine whether or not the trial court had discretion to set aside the sale, as the order doing this did not set forth the trial court's findings of fact nor reasoning upon which the order was based. In addition, though the order vacating and setting aside the sale stated the trial court considered the entire record, by its order of 21 July 1972 the trial court resolved all of the factual matters in the motion to vacate and set aside against appellees. The "entire record" does not contain any other facts.
Though a trial court is not required to state findings of fact or grounds of reasoning in its orders, fairness to litigants and appellate courts make this desirable. State v. Bruno, 104 So.2d 588 (Fla. 1958).
For the above reasons, this court temporarily relinquishes jurisdiction of this case to the trial court for the sole purpose of having the trial court enter an order nunc pro tunc setting forth the facts or grounds upon which it granted the motion to vacate and set aside sale.
Upon entry of the order, the clerk of the trial court is directed to forward a certified copy thereof to this court and to counsel of record for each of the parties hereto.
Thereafter the parties hereto may request leave to file additional briefs if such be desired.
BOYER, Acting C.J., and McCORD, J., concur.
| {
"pile_set_name": "FreeLaw"
} |
94 F.Supp. 245 (1939)
SHAW
v.
UNITED STATES et al.
No. 2828.
United States District Court W. D. Michigan, S. D.
March 16, 1939.
*246 Knappen, Uhl, Bryant & Snow, Grand Rapids, Mich., for plaintiff.
Francis T. McDonald, U. S. Atty., Shelby B. Schurtz, Asst. U. S. Atty., Grand Rapids, Mich., for the United States.
Norris, McPherson, Harrington & Waer, Grand Rapids, Mich., for defendants Cary P. Stiff and Helen C. Stiff.
RAYMOND, District Judge.
The findings of fact herewith filed disclose the basis for the only issue of law involved herein. The contention of the government is that the lien of the United States for the taxes assessed attached to the interest of Harry E. Shaw as one of the tenants holding the property in an estate by the entireties and that it is entitled to have that interest sold under an order of the court.
While the rule in a number of states is to the contrary, the Supreme Court of Michigan has consistently aligned itself with what appears to be the majority rule to the effect that no portion of an estate by the entireties may be subjected to a lien for the individual indebtedness of either spouse. Vinton v. Beamer, 55 Mich. 559, 22 N.W. 40; Dickey v. Converse, 117 Mich. 449, 76 N.W. 80; Schliess v. Thayer, 170 Mich. 395, 136 N.W. 365; Turner v. Davidson, 227 Mich. 459, 198 N.W. 886; Marten v. Lewis, 187 N.C. 473, 122 S.E. 180, 35 A.L.R. 147. This immunity is not an exemption but arises from the peculiar nature of the estate as interpreted by the Michigan Supreme Court. See In re Berry, D.C., 247 F. 700; McMullen v. Zabawski, D.C., 283 F. 552; Gorelick v. Shapero, 222 Mich. 381, 192 N.W. 540; Moore v. Van Goosen, 250 Mich. 67, 229 N.W. 451.
In the enforcement of the taxing laws of the United States, the federal courts, in determining the extent of a taxpayer's property interest in real estate, are bound by state rules of property. Poe v. Seaborn, 282 U.S. 101, 51 S.Ct. 58, 75 L.Ed. 239; Cannon v. Nicholas, 8 Cir., 80 F.2d 934; Lang v. Commissioner of Internal Revenue, 4 Cir., 61 F.2d 280.
It follows that plaintiff is entitled to the relief prayed. A decree in conformity herewith may be presented for signature.
| {
"pile_set_name": "FreeLaw"
} |
Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
2-25-2009
USA v. Labella
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3061
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation
"USA v. Labella" (2009). 2009 Decisions. Paper 1821.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1821
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact [email protected].
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_________
Nos. 07-2894 / 07-3061
_________
UNITED STATES OF AMERICA,
v.
ROBERT MONTANI, Appellant in 07-2894
TONINO LABELLA, Appellant in 07-3061
___________________
Appeal from the United States District Court
for the District of New Jersey
Nos. 05-cr-00087-1 / 05-cr-00087-2
(District Judge: The Honorable William J. Martini)
___________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 5, 2009
Before: McKEE, JORDAN, and LOURIE*, Circuit Judges.
(Filed: February 25, 2009)
*
Honorable Alan D. Lourie, United States Circuit Judge for the Federal Circuit, sitting
by designation.
OPINION OF THE COURT
McKee, Circuit Judge,
In this joint prosecution, Robert Montani and Tonino Labella both appeal the sentence
that was imposed after they pled guilty to conspiracy to commit securities and wire fraud and
related offenses. For the reasons that follow, we will affirm.
I.
As we write primarily for the parties who are familiar with this case, a detailed discussion
of the factual and procedural history is not necessary. Montani executed a plea agreement in
which he “voluntarily waive[d] . . . the right to file any appeal . . . which challenges the sentence
imposed by the sentencing court if that sentence falls within or below the Guidelines range that
results from the agreed total Guidelines offense level of 20.” Nevertheless, Montani now appeals
the restitution that was imposed, claiming that it was not properly calculated. Our review of the
validity and application of an appellate waiver is de novo. United States v. Khattak, 273 F.3d
557, 560 (3d Cir. 2001).
Significantly, Montani does not argue that his waiver was unknowing or involuntary as is
required for us to ignore an appellate waiver under Khattak. Id. at 563. Instead, he argues that
the appellate waiver does not extend to restitution because it is not part of his “sentence.” The
argument is not only meritless, it is frivolous. We have previously held that “restitution is a
component of a criminal sentence.” United States v. Perez 514 F.3d 296, 298 (3d Cir. 2007).
See also, United States v. Leahy 438 F.3d 328, 333-35 (3d Cir. 2006) (holding that restitution
2
ordered as part of a criminal sentence is a criminal penalty), cert. denied, 549 U.S. 1071 (2006).
In Perez, the defendant also argued that the appellate waiver in his plea agreement did not apply
to restitution. In rejecting that argument, we explained: “ [b]y waiving his right to appeal his
criminal sentence, Perez waived his right to appeal the restitution order.” 514 F.3d at 299.
II.
Labella’s appeal is even less meritorious. He argues that his appellate waiver is not valid
and its enforcement would work a miscarriage of justice because the sentencing judge overstated
the length of the sentence he could receive. He relies on the fact that the sentencing judge as well
as his own attorney informed him that the statutory maximum penalty for the crimes he was
pleading guilty to was 25 years, while in reality he faced a combined maximum of only ten years.
He does not, however, explain how that misstatement could possibly void his guilty plea. If the
maximum sentence had been understated, there may have been an argument that his plea was not
knowingly entered. That didn’t happen.
Adding to the frivolity of his claim is the fact that during his sentencing hearing, both
Labella and his attorney repeatedly indicated that all parties were in agreement that the maximum
combined sentence was ten years, and not 25 as previously stated.
A defendant may withdraw a guilty plea after it has been accepted and before a sentence
has been imposed “if the defendant can show a fair and just reason for requesting the
withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). See also, United States v. Wilson, 429 F.3d 455, 458
(3d Cir. 2005). Thus, even assuming that the erroneous information could somehow invalidate
his plea, Labella still had ample opportunity to withdraw his guilty plea before he was sentenced.
Since the waiver that Labella agreed to is enforceable, his remaining arguments regarding
3
sentencing error by the district court are waived, and need not be considered. We also decline to
consider Labella’s claim of ineffective assistance of counsel as such claims should ordinarily be
raised in a collateral proceeding under 28 U.S.C. § 2255. United States v. Olivia, 46 F.3d 320,
325 (3d Cir. 1995).
III.
For all of the above reasons, we will affirm the orders of the judgment of sentence in both
cases.
4
| {
"pile_set_name": "FreeLaw"
} |
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1707V
************************* *
CHARLES J. STREET, *
*
* Special Master Katherine E. Oler
Petitioner, *
*
v. *
* Filed: September 17, 2019
SECRETARY OF HEALTH AND *
* Involuntary Dismissal; Failure to
HUMAN SERVICES, * Prosecute; Rule 21(b); Insufficient Proof
*
Respondent. *
************************* *
DISMISSAL DECISION
On November 2, 2018, Charles J. Street (“Petitioner”) filed a petition for compensation in
the National Vaccine Injury Compensation Program (“the Program”)1 alleging that he developed
Guillain-Barré syndrome (“GBS”) following an influenza (“flu”) vaccination he received on
November 4, 2015. See Pet. at 1, ECF No. 1.
Petitioner filed nine exhibits, including medical records, a VAERS report, and an affidavit,
along with his petition. See ECF No. 1. I issued an Initial Order on November 7, 2018, directing
Petitioner to file any additional records and a Statement of Completion within sixty days. ECF
No. 5. On February 27, 2019, Petitioner filed his Statement of Completion. ECF No. 9.
On February 28, 2019, I directed Respondent to file a status report identifying any missing
records. See Non-PDF Order of 2/28/19. On April 29, 2019, Respondent filed a status report
requesting additional records, including Petitioner’s military medical records and prior vaccination
records. ECF No. 10. I issued an order directing Petitioner to file the requested records by May
28, 2019. See Non-PDF Order of 5/1/19.
On May 28, 2019, Petitioner’s counsel, Ms. Erin Juzapavicus, filed a status report
indicating that:
Counsel, after numerous attempts, has been unable to obtain consent to request the
petitioner’s military medical records, including [] the prior influenza vaccinations
in 2015 and 2016.
1
National Childhood Vaccine Injury Act of 1986 (“Vaccine Act”), Pub. L. No. 99-660, 100 Stat. 3755.
Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph
of 42 U.S.C. §300aa (2012).
ECF No. 12. I held a status conference via telephone with the parties on May 30, 2019.
During the conference, Ms. Juzapavicus stated that she had difficulty contacting Petitioner
and has been unable to obtain from him the necessary paperwork for release of his military medical
records. See 5/31/19 Order, ECF No. 13. I also expressed my concern with respect to timing of
symptom onset. Id. I explained that based on my experience in the Vaccine Program, onset of
symptoms within 24 hours of vaccination is not a medically appropriate temporal interval for
Guillain-Barré syndrome. Id. Ms. Juzapavicus requested an additional thirty days to speak with
Petitioner in order to determine how he wished to proceed. Id.
On June 28, 2019, Petitioner filed a status report in which Ms. Juzapavicus outlined nine
attempts to contact Petitioner between June 3, 2019 and June 28, 2019. ECF No. 15. Ms.
Juzapavicus indicated:
Counsel remains unsuccessful in receiving the necessary paperwork for release of
Petitioner’s military medical records despite Petitioner’s brief communication on
June 25, 2019 indicating its imminent return.
Finally, Counsel has not be [sic] able to have a phone conversation with the
[p]etitioner to ascertain his wishes on how to proceed.
Id. I gave Petitioner additional time, until August 2, 2019, to file “any outstanding medical records
and a status report indicating how he wishes to proceed.” See Non-PDF Order of 7/1/19.
On August 2, 2019, Petitioner filed a status report in which Ms. Juzapavicus outlined eight
attempts to contact Petitioner between July 1, 2019 and August 2, 2019. ECF No. 16. Petitioner’s
counsel again indicated that:
Counsel remains unsuccessful in receiving the necessary paperwork for release of
Petitioner’s military medical records despite Petitioner’s brief communication on
June 25, 2019 indicating its imminent return.
Id. In light of this, I scheduled a status conference.
On August 12, 2019, I held a status conference with the parties to discuss how to proceed.
Ms. Juzapavicus confirmed her continued lack of communication with Petitioner. As a result, I
issued an Order to Show Cause giving Petitioner an opportunity to explain why his petition should
not be dismissed for lack of sufficient evidence and failure to prosecute. Ms. Juzapavicus
requested thirty days to respond.
On September 11, 2019, Ms. Juzapavicus filed a status report outlining her numerous
attempts to contact Petitioner since the issuance of my Order to Show Cause. She states that:
Counsel has contacted the Petitioner on the following occasions since the release
of the Order:
2
1. Tuesday, August 13, 2019, via email, FedEx Overnight and U.S. Mail, all of
which included a copy of the Court’s Order to Show Cause;
a. FedEx was delivered on Wednesday, August 14, 2019 at 10:52am;
2. Tuesday, August 20, 2019, via email;
3. Tuesday, August 27, 2019, via email;
4. Thursday, September 5, 2019, via email;
5. Monday, September 9, 2019, via email;
6. Tuesday, September 10, 2019, via email and telephone call to his place of
business where he was unavailable; and
7. Wednesday, September 11, 2019, via email with a draft copy of this Status
Report.
All of the above written attempts included language noting failure to hear from
Petitioner would result in the dismissal of this action. Despite this, counsel remains
unsuccessful in hearing from the Petitioner.
Pet’r’s Status Rep. of 9/11/19, ECF No. 18.
Vaccine Rule 21(b)(1) provides that a “special master or the court may dismiss a petition
or any claim therein for failure of the petitioner to prosecute or comply with these rules or any
order of the special master or the court.” Since May 28, 2019, Petitioner has failed to comply with
my order to produce the necessary records. Without those records, I am unable to evaluate the
merit of his claim. Petitioner was given ample opportunity to communicate with counsel and
comply with my orders. It is clear that Petitioner has not been in communication with his attorney,
and I find that he is no longer interested in pursuing this petition.
As such, it is ORDERED that,
The petition is hereby DISMISSED for lack of sufficient proof and failure of the petitioner
to prosecute.
Any questions regarding this order may be directed to my law clerk, Ahmed Almudallal,
at (202) 357-6351 or [email protected].
IT IS SO ORDERED.
s/ Katherine E. Oler
Katherine E. Oler
Special Master
3
| {
"pile_set_name": "FreeLaw"
} |
322 P.2d 408 (1958)
J.M. STURDEVANT, a sole trader doing business as J.M. Sturdevant Company and Willie Sollee, Plaintiffs in Error,
v.
B.W. KENT, Defendant in Error.
No. 37854.
Supreme Court of Oklahoma.
February 25, 1958.
Harbison & Whiteside, Altus, for plaintiffs in error.
Cecil R. Chamberlin, Frederick, for defendant in error.
*409 DAVISON, Justice.
In this action, the plaintiff B.W. Kent, seeks recovery, from the defendants, J.M. Sturdevant and Willie Sollee, for damage to his pick-up truck, resulting from a collision with defendant's pick-up truck. The parties will be referred to in the same order in which they appeared in the trial court.
Sollee, an employee of Sturdevant, was engaged in repairing a roof on the school building in Frederick, Oklahoma. At about eight o'clock on the morning of October 5, 1955, he drove Sturdevant's pick-up truck, loaded with tools and roofing materials, south on 15th street in said city to a drive-in entrance into the school grounds. A fresh dirt fill had been softened by rain the previous night and, as Sollee attempted to drive into the school ground, the truck mired down and was stuck. He backed it out where the rear wheels were on the shoulder of the paving and the rear of the truck out in the street several feet. Sollee, then, took the material and equipment out of his truck and carried the same up onto the roof of the school where he continued working. A short time thereafter, plaintiff drove his pick-up south on 15th street and collided with the rear part of defendant's truck which was out in the street. Plaintiff brought this action to recover for the damage done to his truck, founding the same upon an alleged violation, by defendant, of a city ordinance requiring motor vehicles to be parked in a parallel position and not as an obstruction to travel. Trial to a jury resulted in verdict and judgment for plaintiff for $860 from which defendants have appealed.
Assuming that defendant, Sollee, had parked his pick-up in a manner which was in direct violation of the ordinance, "whether classified as evidence of negligence, as prima facie evidence of negligence, or as negligence per se, (it) can give rise to recovery for injuries allegedly due to such violation only where the violation is the proximate cause of the injury." 17 A.L.R.2d 586; Oklahoma Power and Water Company v. Howell, 201 Okl. 615, 207 P.2d 937. In the case of Phillips Pet. Co. v. Robertson, 207 Okl. 80, 247 P.2d 501, a number of the earlier cases are cited supporting the well established rule that,
"If the negligence complained of merely furnished a condition by which the injury was possible and a subsequent independent act caused the injury, the existence of such condition is not the proximate cause of the injury."
It was also therein pointed out,
"That although the question of proximate cause is ordinarily considered to be a question of fact for the jury, *410 if the facts are such that all reasonable men must draw the same conclusion, the question is one for the court."
In the case at bar, defendant's truck extended out onto the pavement not to exceed six feet. It occupied no greater part of the street than it would have occupied had it been parked in a parallel position. The pavement was eighteen feet wide. The remaining twelve feet were unobstructed and no other vehicle was in the vicinity. Plaintiff testified as to what he did as follows:
"Q. You say you saw the truck three hundred feet away and you just assumed it was pulling in the driveway? A. I assumed it was pulling in the driveway.
* * * * * *
"Q. You saw it when you were three hundred feet from it and you paid no further attention until it was too late to avoid hitting it? A. Not any particular attention until I was right on it.
"Q. You say you assumed the truck was pulling into the school ground and would get out of your way? A. I assumed it was pulling, in, like they go in and out. I assumed the man was pulling in and never paid any attention."
Plaintiff further testified that "I just taken it for granted it was a truck pulling in at the school yard; they usually are going out and in. I never paid no particular attention; I would say, well, I apparently looked off." Plaintiff also testified on cross examination that, "if I hadn't apparently hadn't looked off I could have missed the truck."
This testimony pin points the proximate cause of the collision. Plaintiff just didn't look where he was going. Driving an automobile in such a manner constitutes nothing more nor less than an invitation to disaster. The situation is clearly within range of application of the rule of law stated in Blashfield's Cyclopedia of Automobile Law and Practice, Perm.Ed., sec. 2641, that,
"A motorist colliding with an automobile parked on the highway is guilty of negligence proximately causing the collision if he could have seen the parked automobile in time to avoid the collision."
The trial court erred in refusing to direct a verdict in favor of the defendants. Under the circumstances, the other propositions need not be discussed.
The judgment is reversed with directions to enter judgment for defendant.
CORN, V.C.J., and JOHNSON, WILLIAMS, BLACKBIRD, JACKSON and CARLILE, JJ., concur.
| {
"pile_set_name": "FreeLaw"
} |
642 F.2d 448
Dennistrozuraraainv.Mitchell
79-6439
UNITED STATES COURT OF APPEALS Fourth Circuit
1/10/81
1
E.D.Va.
AFFIRMED
| {
"pile_set_name": "FreeLaw"
} |
144 F.3d 54
U.S.v.Davis*
NO. 97-2145
United States Court of Appeals,Eleventh Circuit.
May 5, 1998
1
Appeal From: M.D.Fla. ,No.
2
Affirmed.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
| {
"pile_set_name": "FreeLaw"
} |
71 N.Y.2d 910 (1988)
Francis K. Cove, Jr., et al., Appellants,
v.
Robert J. Sise, as Chief Administrative Judge of the Office of Court Administration of the State of New York, et al., Respondents. (Proceeding No. 1.)
New York State Court Officers Association, Appellant,
v.
State of New York Unified Court System Classification Review Board, Respondent. Joseph W. Bellacosa et al., Intervenors-Respondents. (Proceeding No. 2.)
Court of Appeals of the State of New York.
Argued March 17, 1988.
Decided April 21, 1988.
Esther Bernheim and Joseph A. Faraldo for Francis K. Cove, Jr., and others, appellants.
Rosemary Carroll for New York State Court Officers Association, appellant.
Patricia P. Satterfield, Michael Colodner and John Eisenman for Joseph W. Bellacosa, intervenor-respondent.
Raymond G. McGuire and Harlan J. Silverstein for New York State Supreme Court Officers Association, intervenor-respondent.
Judges SIMONS, KAYE, ALEXANDER, TITONE and HANCOCK, JR., concur; Chief Judge WACHTLER and Judge BELLACOSA taking no part.
*911MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
These article 78 proceedings challenge determinations of the Classification Review Board (the Board) upholding classification of the court officer title in New York City and Nassau County pursuant to a classification plan for nonjudicial court employees (see, Judiciary Law § 39 [8] [a]); petitioners seek consolidation of the court officer (JG16) title and salary grade with those of the senior court officer (JG18). The classification plan was established by the Chief Administrative Judge (see, former 22 NYCRR 25.45 [now 25.41]). Petitioners' appeals were denied by the Chief Administrative Judge, and thereafter by the Board. In an extensive decision supporting its conclusion that there was insufficient basis for the appeals, the Board noted that the essence of the two job titles was "so similar as to warrant serious de novo review for the purpose of possible consolidation in the future under a common title", *912 but the Board specifically rejected the need for a common classification as conflicting with its initial finding that "there is insufficient basis upon which to conclude that JG-16 is inappropriate for the lowest level security title in the Plan, i.e., Court Officer."
Special Term perceived the Board's reference to possible future consolidation as a factual finding that immediate revamping was required; held that the Board was obliged to "issue the mandate necessary to implement its finding"; and granted the petitions to the extent of remanding the matter to the Board to fashion the appropriate remedy. The Appellate Division reversed and dismissed the petitions, concluding that the Board's determinations dismissing the appeals were not irrational or arbitrary.
Administrative determinations concerning position classifications are of course subject to only limited judicial review, and will not be disturbed in the absence of a showing that they are wholly arbitrary or without any rational basis (see, Matter of Dillon v Nassau County Civ. Serv. Commn., 43 N.Y.2d 574, 580; Matter of Grossman v Rankin, 43 N.Y.2d 493, 503, rearg denied 44 N.Y.2d 733). Petitioners made no such showing with respect to the Board's conclusion, upon an enumeration of the pertinent factors supporting this entry-level title and promotional-level title, that petitioners had presented "insufficient basis upon which to conclude that the allocation of the [court officer] title in the Plan to JG-16 is improper, unfair or inequitable."
Given this disposition, we do not reach the question whether the Board even had authority to reclassify job titles and reallocate salary grades.
Order affirmed, with costs, in a memorandum.
| {
"pile_set_name": "FreeLaw"
} |
~--------~------------,---------------
FILED
UNITED STATES DISTRICT COURT NOV - 1 2011
FOR THE DISTRICT OF COLUMBIA Clerk, U.S. District & Bankruptcy
Courts for the DIStrk:t of ColumbIa
JEFFREY LEE WHITLOW, JR., )
)
Plaintiff, )
)
v. ) Civil Action No. 111~O'7
)
UNITED STATES OF AMERICA, )
)
Defendant. )
MEMORANDUM OPINION
This matter is before the Court on plaintiff s application to proceed in forma pauperis and
his pro se complaint. The Court will grant the application and dismiss the complaint.
Plaintiff describes himself as a Moorish American National, Compl. at 1, and claims that
the United States government is holding him hostage at the Rivers Correctional Institution in
Winton, North Carolina. He asserts that no court "except the U.S. Supreme Court, [a] Special
Committee and/or the United Nations International Court of Justice (The World Court, in The
Hague, Netherlands)," id. at 3, has the authority to effect his incarceration, and thus appears to
challenge the authority of the Superior Court ofthe District of Columbia to convict and to
sentence him, see id. at 4. Plaintiff demands his immediate release and reparations. Id. at 3.
Plaintiff s challenge to the Superior Court's jurisdiction is not properly brought in this
federal district court. Rather, "[u]nder D.C. Code § 23-110, a prisoner may seek to vacate, set
aside, or correct sentence on any of four grounds: (1) the sentence is unconstitutional or illegal;
(2) the Superior Court did not have jurisdiction to impose the sentence; (3) the sentence exceeded
the maximum authorized by law; or (4) the sentence is subject to collateral attack." Alston v.
N 3
United States, 590 A.2d 511, 513 (D.C. 1991). Such a motion must be filed in the Superior
Court, see D.C. Code § 23-110(a), and "shall not be entertained ... by any Federal ... court ifit
appears that the [prisoner] has failed to make a motion for relief under this section or that the
Superior Court has denied him relief, unless it also appears that the remedy by motion is
inadequate or ineffective to test the legality of his detention." D.C. Code § 23-11O(g). No
allegations in the complaint show that plaintiff previously has attacked his conviction or sentence
in the Superior Court by motion under D.C. Code § 23-110, or that this remedy is inadequate or
ineffective.
Furthermore, insofar as plaintiff brings this action under 42 U.S.C. § 1983 and demands
monetary relief for his alleged unlawful incarceration, the claim fails. Absent a showing that his
confinement has been invalidated by "revers[al] on direct appeal, expunge[ment] by executive
order, declar[ ation of invalidity] by a state tribunal authorized to make such determination, or ...
a federal court's issuance of a writ of habeas corpus," Heck v. Humphrey, 512 U.S. 477, 486-87
(1994), plaintiff is not entitled to damages.
The complaint fails to state a claim upon which relief can be granted, and it will be
dismissed under 28 U .S.C. §§ 1915(e)(2)(b) and 1915A(b). An Order accompanies this
Memorandum Opinion.
-
DATE: 10 I~ III
| {
"pile_set_name": "FreeLaw"
} |
Filed 3/25/14 Wilhite v. Drake CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
JACLYN CORNELIA WILHITE,
F066567
Plaintiff and Appellant,
(Super. Ct. No. CV-270988)
v.
JIMMY F. DRAKE, OPINION
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Kern County. Sidney P.
Chapin, Judge.
Jaclyn Cornelia Wilhite, in pro. per., for Plaintiff and Appellant.
Kaufman Borgeest and Ryan, Jeffrey S. Whittington and Vanessa K. Manolatou
for Defendant and Respondent.
-ooOoo-
Plaintiff appeals from the judgment entered after defendant’s motion for summary
judgment was granted. We conclude plaintiff’s appeal was untimely and she failed to
identify any reversible error. Consequently, we dismiss plaintiff’s appeal.1
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff, acting in propria persona, sued defendant for alleged dental malpractice.
Defendant moved for summary judgment, supported by the declaration of defendant
containing his expert opinion that his treatment of plaintiff met the applicable standard of
care. Plaintiff failed to file opposition or appear at the hearing of the motion. The trial
court granted the motion and entered judgment in favor of defendant. On October 3,
2012, defendant served notice of entry of judgment on plaintiff.
On November 6, 2012, plaintiff filed a motion to vacate the judgment, which the
trial court denied on December 10, 2012. On January 7, 2013, plaintiff filed her notice of
appeal from the judgment.
DISCUSSION
I. Timeliness of Appeal
Defendant contends plaintiff’s appeal must be dismissed because the notice of
appeal was not timely filed. “The time for appealing a judgment is jurisdictional; once
the deadline expires, the appellate court has no power to entertain the appeal. [Citation.]”
(Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc.
(1997) 15 Cal.4th 51, 56.) Ordinarily, when one of the parties serves a notice of entry of
judgment on the other party, a notice of appeal must be filed within 60 days after the date
1 We have effectively granted defendant’s July 22, 2013, Motion to Correct
Defective Case Caption. The court’s practice is to determine independently the
appropriate caption for each case, not to adopt the caption used on either party’s brief.
We have determined and used the appropriate caption based upon the pleadings and
papers filed in this court and in the trial court.
2.
of service of the notice of entry of judgment. (Cal. Rules of Court, rule 8.104.2) If,
however, within the period of time for filing a notice of appeal, a party files a valid
motion to vacate the judgment, the time to appeal from the judgment is extended until the
earliest of: 30 days after the court clerk or a party serves an order denying the motion or
a notice of entry of that order, 90 days after the motion was filed, or 180 days after entry
of judgment. (Rule 8.108(c).) Here, plaintiff filed a motion to vacate the judgment
within 60 days after service of the notice of entry of judgment. It was effective to extend
plaintiff’s time for appealing only if it was a “valid” motion to vacate. (Ibid.)
As used in rule 8.108, “valid” means the motion complies with all applicable
procedural requirements. (Advisory Com. com., Deerings Ann. Codes, Rules (2014 ed.)
foll. rule 8.108.) The procedural requirements of a motion to vacate under Code of Civil
Procedure section 473 include timely filing and service on the opposing party or parties.
(Rule 8.108(c); McDonald v. Severy (1936) 6 Cal.2d 629, 631; Ramirez v. Moran (1988)
201 Cal.App.3d 431, 437.) Additionally, the motion must be supported by a
memorandum of points and authorities (rule 3.1112(a)) and “accompanied by a copy of
the answer or other pleading proposed to be filed” by the moving party (Code Civ. Proc.,
§ 473, subd. (b)).
The motion filed by plaintiff consisted of a notice of motion and motion with
documents attached.3 It indicated plaintiff was moving to vacate the summary judgment
on the grounds it was entered due to plaintiff’s mistake and excusable neglect and the
trial court’s inadvertence. Although the motion did not cite Code of Civil Procedure
section 473, subdivision (b), the stated grounds for the motion indicate it was filed
2 All further references to rules refer to the California Rules of Court.
3 These include copies of a subpoena duces tecum, cashier’s checks, a notice to
compel an expert witness to attend court, and a letter from the attorney for that expert
stating that he had not agreed to act as plaintiff’s expert.
3.
pursuant to that section. Plaintiff’s motion was not accompanied by a memorandum of
points and authorities, a declaration attempting to establish mistake, inadvertence, or
excusable neglect, or a proposed pleading (a proposed opposition to the motion for
summary judgment). More importantly, the motion was not served on defendant. The
record contains no proof of service filed in compliance with rule 3.1300(c) and the
motion was denied in part because of “lack of statutory notice.”
Because the motion to vacate did not comply with the procedural requirements for
such a motion, it was not a valid motion to vacate. Because it was not a valid motion to
vacate, the time for filing a notice of appeal was not extended by rule 8.108. The 60-day
period for filing a notice of appeal commenced on October 3, 2012, when defendant
served notice of entry of judgment. The last day for filing the notice of appeal was
Monday, December 3, 2012. Plaintiff’s notice of appeal was not filed until January 7,
2013. The appeal was not timely filed pursuant to rule 8.104, and this court does not
have jurisdiction to consider it. “If a notice of appeal is not timely, the appellate court
must dismiss the appeal. [Citations.]” (Payne v. Rader (2008) 167 Cal.App.4th 1569,
1573.) Plaintiff’s appeal was not timely, and we must dismiss it.
II. Failure to Identify Any Reversible Error in the Judgment
Even if this court had jurisdiction to consider the appeal, plaintiff has not
identified any prejudicial error in the trial court proceedings. On appeal, the judgment is
presumed correct and the burden is on the appellant to affirmatively demonstrate error.
(Rayii v. Gatica (2013) 218 Cal.App.4th 1402, 1408.) The appellant must raise claims of
reversible error and present argument and authority on each point made. (In re Sade C.
(1996) 13 Cal.4th 952, 994.) “An appellant must provide an argument and legal authority
to support his contentions. This burden requires more than a mere assertion that the
judgment is wrong. ‘Issues do not have a life of their own: If they are not raised or
supported by argument or citation to authority, [they are] … waived.’ [Citation.] It is not
our place to construct theories or arguments to undermine the judgment and defeat the
4.
presumption of correctness. 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. [Citation.]” (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836,
852.) In that event, the court may, in its discretion, deem the appeal to be abandoned and
dismiss it. (In re Sade C., supra, at p. 994.)
Plaintiff appealed from the judgment entered after the trial court granted
defendant’s motion for summary judgment. In defendant’s motion, he presented
evidence and argument addressing each cause of action in plaintiff’s first amended
complaint. Plaintiff failed to oppose the motion. Because plaintiff presented no expert
evidence contradicting defendant’s evidence that his treatment of her met the applicable
standard of care, the court found there was no triable issue of material fact and granted
the motion.
The arguments plaintiff raises in her briefs do not address the propriety of the trial
court granting summary judgment. Her first argument concerns her efforts to subpoena
an expert to testify at trial. Her second argument seems to address the summary
judgment motion, but fails to identify any legal error that justifies reversal of the
judgment. She concedes she failed to file opposition to the motion. She concedes she
missed multiple hearings in her case, including the hearing on the motion for summary
judgment. Plaintiff seems to argue that, because she was working on other aspects of her
case—preparing to subpoena an expert for trial, preparing a second amended complaint,
responding to defendant’s motions in limine—she was unable to prepare a timely
opposition to the motion for summary judgment. She does not assert that she timely
asked for and was improperly denied a continuance to prepare her opposition or obtain
the evidence necessary to oppose the motion. (See Code Civ. Proc., § 437c, subd. (h).)
Rather, she argues she should have been given an extension of time to file opposition
when she made her motion to vacate the judgment after summary judgment had already
5.
been granted. Thus, she has identified no error in the trial court’s granting of the motion
for summary judgment or in the entry of judgment against her.
Plaintiff argues she promptly filed a motion to vacate the judgment, and the trial
court’s denial of that motion because it lacked statutory notice was incorrect. She asserts
the motion to vacate, as it appears in the record, is incomplete, and she filed and served it
in accordance with Code of Civil Procedure section 1005, subdivision (b). Plaintiff’s
notice of appeal, however, indicates she is appealing from the judgment only, not from
the postjudgment order denying her motion to vacate. Further, it was plaintiff’s burden to
provide an adequate record to demonstrate the claimed error, and plaintiff did not request
correction or augmentation of the record to include the entire motion to vacate. “[A]
party challenging a judgment has the burden of showing reversible error by an adequate
record.” (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) “[E]rrors not reflected in the trial
record will not, and indeed cannot, sustain a reversal on appeal.” (Yield Dynamics, Inc. v.
TEA Systems Corp. (2007) 154 Cal.App.4th 547, 557.)
Plaintiff has not identified any prejudicial error in the trial court’s grant of
summary judgment in favor of defendant. She has not supported any assertion of
prejudicial error with an adequate record and reasoned argument, supported by citations
to authorities and to the record, demonstrating that error. This ground also justifies
dismissal of plaintiff’s appeal. (In re Sade C., supra, 13 Cal.4th at p. 994.) Although
plaintiff is representing herself, “[a] party proceeding in propria persona ‘is to be treated
like any other party and is entitled to the same, but no greater consideration than other
litigants and attorneys.’” (First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th
956, 958, fn. 1.)
6.
DISPOSITION
The appeal is dismissed. Costs on appeal are awarded to defendant.
_____________________
Kane, Acting P.J.
WE CONCUR:
_____________________
Peña , J.
_____________________
LaPorte, J.⃰
⃰ Judge of the Kings Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
7.
| {
"pile_set_name": "FreeLaw"
} |
United States Court of Appeals
For the Eighth Circuit
___________________________
No. 14-1038
___________________________
In re: Bryan S. Behrens
lllllllllllllllllllllDebtor
------------------------------
Bryan S. Behrens
lllllllllllllllllllllAppellant
v.
U.S. Bank National Association, as Trustee for RAMP 2006NC2, by Ocwen Loan
Servicing, LLC
lllllllllllllllllllllAppellee
___________________________
No. 14-1041
___________________________
In re: Bryan S. Behrens
lllllllllllllllllllllDebtor
------------------------------
Bryan S. Behrens
lllllllllllllllllllllAppellant
v.
GMAC Mortgage, LLC
lllllllllllllllllllllAppellee
____________
The United States Bankruptcy
Appellate Panel for the Eighth Circuit
____________
Submitted: August 7, 2014
Filed: August 14, 2014
[Unpublished]
____________
Before WOLLMAN, GRUENDER, and SHEPHERD, Circuit Judges.
____________
PER CURIAM.
Bryan Behrens appeals orders of the Bankruptcy Appellate Panel (BAP) (1)
affirming the bankruptcy court’s1 order terminating an automatic stay under 11 U.S.C.
§ 362(d)(4) and allowing completion of foreclosure proceedings on certain property;
and (2) dismissing Behrens’s appeal from a bankruptcy court order because it was an
unappealable interlocutory order. For the reasons aptly stated by the bankruptcy court
and the BAP, both judgments are affirmed. See 8th Cir. R. 47B. We also deny as
moot all pending motions on appeal.
______________________________
1
The Honorable Thomas L. Saladino, Chief Judge, United States Bankruptcy
Court for the District of Nebraska.
-2-
| {
"pile_set_name": "FreeLaw"
} |
438 So.2d 888 (1983)
Robert W. SLOAN, Appellant,
v.
STATE of Florida, Appellee.
No. 82-1946.
District Court of Appeal of Florida, Second District.
September 16, 1983.
*889 Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and William E. Taylor, Asst. Atty. Gen., Tampa, for appellee.
GRIMES, Judge.
This appeal poses the question of whether the court was obligated to declare a mistrial when it was discovered that an alternate juror had sat in on a portion of the jury's final deliberations.
Appellant was charged with grand theft, the use of a firearm in the commission of a felony, and possession of a firearm by a convicted felon. Following receipt of the court's instructions, the jury retired to consider its verdict. At this point the judge excused the woman who had been serving as an alternate juror. Subsequently, while standing in the hallway, the judge noticed the woman leaving the jury room. Apparently, after being excused she had gone into the jury room to retrieve her purse. When the bailiff took the jury to the jury room, he did not know she was inside. She explained to the judge that she decided to sit in the back of the jury room and listen to the discussion because it had been such an interesting case. She denied taking part in any of the deliberations. None of the jurors were aware of the judge's conversation with the alternate.
The judge asked the attorneys for both parties to state their position with respect to allowing the trial to proceed. The state had no objection. After conferring with appellant, defense counsel announced that he would not move for a mistrial. He said that he was willing to waive his objections to the alternate's presence in the jury room upon his understanding that the alternate did not participate in any of the deliberations. To the extent that can be determined from this record, the alternate appears to have been in the jury room for approximately one hour of the jury's four hours of deliberation.
In Berry v. State, 298 So.2d 491 (Fla. 4th DCA 1974), the court permitted the alternate juror to accompany the jury to the jury room upon the admonition not to participate in the deliberations. The defendant's counsel did not object to this procedure. Upon appeal following the defendant's conviction, the court pointed out that Florida Rule of Criminal Procedure 3.280 specified that an alternate juror must be discharged at the time the jury retires to consider its verdict. The court held that failing to discharge the alternate and permitting him to accompany the jury to the jury room during deliberations constituted fundamental error. The court in Fischer v. State, 429 So.2d 1309 (Fla. 1st DCA 1983), reversed a conviction because an alternate was inadvertently permitted to sit through the entire jury deliberations.
*890 In both cases the courts rejected the suggestion that prejudice must be shown to have resulted from the presence of the alternate in the jury room. Similarly, in light of the importance of jury sanctity, the state's argument in this case that these decisions can be distinguished because the respective trial judges failed to timely discharge the alternate is not persuasive. However, the instant case is meaningfully different in one respect. When the presence of the alternate in the jury room was discovered, the court specifically asked appellant's counsel if he had any objection to the jury continuing its deliberations under those circumstances. After conferring with his client, counsel specifically waived objection and did not make a motion for mistrial. The jury then deliberated for three more hours before returning a verdict of guilty.
We find this situation analogous to the case in which there has been an improper comment on the defendant's right to remain silent. At this point the defendant is entitled to a mistrial. If he does not ask for a mistrial, he will be deemed to have waived the error. Clark v. State, 363 So.2d 331 (Fla. 1978). Thus, when the alternate's presence in the jury room was discovered, appellant had an absolute right to a mistrial. However, he affirmatively elected not to move for a mistrial. The appellant cannot have it both ways. The alternate's presence in the jury room was inadvertent and not attributable to the fault of either the court or the state. It would be manifestly unfair to permit appellant to choose that the jury continue its deliberations in hopes of a favorable verdict and yet be entitled to obtain a new trial before another jury if the verdict proved adverse.
Appellant's suggestion that the presence of the extra juror in the jury room was a defect of such constitutional dimension that it could not be waived pales in light of the fact that a defendant is only constitutionally guaranteed a trial by a jury of six persons. Art. I, § 22, Fla. Const.; Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978). Florida Rule of Criminal Procedure 3.250 even permits a defendant, upon stipulation, to waive a jury in its entirety. The appellant is bound by his waiver.
Appellant also argues that he was improperly convicted of the use of a firearm in the commission of a felony.[1] Appellant and his accomplice carried out the theft of a pawn shop by posing as agents of the Internal Revenue Service who were seizing property in the course of investigating tax evasion. As part of the scam, appellant carried a gun in a holster. The pawn shop clerk was apprehensive when she saw the weapon. Appellant never removed the gun from the holster, though at one point he put his hand on it as if to draw it when a policeman approached the shop. Under the circumstances there was sufficient evidence for the jury to conclude that appellant's display of the gun played a part in the accomplishment of the theft. Cf. Odum v. State, 289 So.2d 430 (Fla. 2d DCA 1974) (in which no intimidation was involved and where, at the time the defendant displayed his gun pretending to be a policeman, his crime of breaking and entering with intent to commit a misdemeanor had already been consummated).
AFFIRMED.
OTT, C.J., and CAMPBELL, J., concur.
NOTES
[1] Persons engaged in criminal offense, having weapons.
... .
(2) Whoever, while committing or attempting to commit any felony or while under indictment, displays, uses, threatens, or attempts to use any firearm or carries a concealed firearm is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, and s. 775.084.
| {
"pile_set_name": "FreeLaw"
} |
Filed 1/9/14; pub. & mod order 2/7/14 (see end of opn.)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
COLLATERAL LOAN AND SECONDHAND C070987
DEALERS ASSOCIATION,
(Super. Ct. No.
Plaintiff and Appellant, 34-2012-00118609-CU-JR-GDS)
v.
COUNTY OF SACRAMENTO et al.,
Defendants and Respondents.
Plaintiff Collateral Loan and Secondhand Dealers Association (CLSDA), a trade
association of licensed pawnbrokers and secondhand dealers, brought this action for
injunctive relief on behalf of members located in Sacramento County. CLSDA sought to
prevent defendant Scott Jones (sued in his official capacity as Sheriff of Sacramento
1
County) (the Sheriff) from enforcing various provisions of Sacramento County Ordinance
No. 1505 (the ordinance) that defendant County of Sacramento (defendant County or,
collectively, defendants) enacted in December 2011, replacing title 4, chapter 4.30 of the
Sacramento County Code. CLSDA argued the ordinance’s creation of a detailed
countywide reporting system for pawnbrokers and secondhand dealers conflicted with
state law on the subject (i.e., Bus. & Prof. Code, § 21625 et seq.1 and portions of the
Financial Code). The parties stipulated to a moratorium on enforcement of the ordinance
pending a hearing on CLSDA’s noticed motion for a preliminary injunction.
After the hearing, the trial court granted a preliminary injunction as to only two
minor provisions of the ordinance. It concluded that CLSDA had otherwise failed to
demonstrate that it was likely to prevail on the merits of its claims. CLSDA filed a
timely notice of appeal from the trial court’s order. (Courtesy Temporary Service, Inc. v.
Camacho (1990) 222 Cal.App.3d 1278, 1286 [order partially granting and partially
denying preliminary injunction appealable].)
CLSDA contends chapter 4.30 of the Sacramento County Code expressly conflicts
with state law in various respects.2 We agree. In light of this holding, we do not need to
reach CLSDA’s additional contention that the ordinance violates the right to privacy in
financial information. We will therefore modify the trial court’s order to include these
additional subjects within the scope of the preliminary injunction against enforcement.
1 Undesignated statutory references are to the Business and Professions Code.
2 Initially, CLSDA had also argued the remainder of the ordinance was invalid as
duplicative of state law, but CLSDA appears to concede in its reply brief that this general
principle does not apply in the present context.
2
FACTUAL AND PROCEDURAL BACKGROUND
This action is essentially a facial challenge to defendant County’s ordinance based
on the provisions of state law; the facts adduced at the hearing generally are not material
to our disposition. As a result, there is little factual or procedural background before our
discussion of the applicable law.
The verified complaint identifies 11 of the 19 substantive sections of the ordinance
as “duplicat[ing], contradict[ing] and add[ing] on to . . . an area of regulation fully
occupied by general laws of this state,” and alleges the Sheriff was notifying the affected
businesses that an electronic reporting (e-filing) system contained in the ordinance was
mandatory. The complaint also alleged that the Sheriff had already identified a particular
private vendor, Business Watch International (BWI); and acquisition of the hardware and
software necessary for reporting to BWI would result in significant costs (about $850
before a discount, according to four proposals attached as exhibits to the complaint).
CLSDA therefore requested injunctive relief, and a judicial declaration of the invalidity
of the ordinance.
In support of the request for a preliminary injunction, CLSDA included three
declarations. Its counsel stated that he had been working in support of legislation to fund
a statewide uniform e-filing system through an increase in state license fees, which the
Department of Justice (DOJ) would maintain (asking for judicial notice of the February
2011 version of Assem. Bill No. 391). Counsel was also familiar with BWI, and averred
that the information it would collect would be stored on servers outside the state that are
not under the control of the DOJ. He included a copy of the DOJ form (JUS-123) that
CLSDA members were presently filing with police chiefs or sheriffs, which gathered the
information specified in section 21628. A Sacramento County member of CLSDA stated
that the Sheriff had been insisting the member’s businesses adopt the e-filing system,
which would subject the member to conflicting reporting requirements under local and
3
state law, and result either in the additional costs of computer equipment or sanctions
under the ordinance for noncompliance (which include criminal punishment or grounds
for action against the license required under the ordinance (Sac. County Code,
§ 4.30.100)). The memorandum in support of the request for preliminary injunction
included exhibits that detailed the manner in which the ordinance duplicated state law, or
conflicted with or added to state requirements (specifying seven sections in the latter
exhibit).
In their opposition, defendants noted the provisional status of any pending laws.
They also included declarations that attested to the mistaken and limited nature of the
representations regarding the mandatory aspect of e-filing under the ordinance; the secure
nature of the out-of-state server housed in a police facility to which BWI would route the
e-filings; the minimal actual costs of e-filing with BWI (a process which does not require
the hardware and software that CLSDA had identified); the Sheriff’s use of the DOJ’s
JUS-123 forms rather than a different form; and the DOJ’s refusal since 1990 to be a
statewide depository of JUS-123 forms, which are instead stored with local agencies and
are subject only to whatever efforts each agency makes to collect and retrieve the data
from them (without statewide dissemination or access).
In its tentative ruling, the trial court agreed that CLSDA was likely to prevail on
its assertion that provisions in Sacramento County Code section 4.30.025, subdivision
(A) (those which mandate a daily 10:00 a.m. deadline for mailing or e-filing the reports
and the use of a sheriff’s form) are inconsistent with state law, and that there was a threat
of irreparable injury because violations were subject to criminal prosecution and a threat
to licensure status. However, with respect to the claimed conflict between the creation in
Sacramento County Code section 4.30.025, subdivision (C) of an e-filing system other
than the contemplated DOJ-created system under state law (former § 21628, subd. (j),
4
Stats. 2010, ch. 178, § 16),3 and the ordinance permitting use of defendant County’s
e-filing system rather than the hardcopy reports required under the state law, the trial
court concluded CLSDA was not likely to prevail. It held that defendant County’s
e-filing system was optional and thus not a “requirement” inconsistent with the
provisions of state law, and state law did not expressly preclude development of local
e-filing systems. The court did not address any of the other conflicts raised in CLSDA’s
briefing. It also rejected CLSDA’s invocation of the general principle that ordinances
duplicative of state law are preempted, because the Legislature has authorized duplicative
ordinances relating to pawnbrokers. (Malish v. City of San Diego (2000) 84 Cal.App.4th
725, 736 (Malish).) The ruling did not address the subject of the pending Assembly Bill
No. 391 (2011-2012 Reg. Sess.).
At the hearing on the preliminary injunction, CLSDA’s primary focus was the
ordinance’s e-filing system. It conceded that participation was indeed voluntary, but
argued that it was inconsistent with state law and impermissibly sought to give the
covered businesses an ability to opt out of the paper reports required under state law. The
CLSDA also raised several other conflicts identified in its briefing that the trial court had
not addressed in its tentative ruling: (1) the inclusion in Sacramento County Code section
4.30.030 of additional mandatory elements for the reports (subd. (H) of which requires a
description of a pledger’s “style of dress, height, age, sex, complexion, color of mustache
or beard, or both, where the same are worn, and if neither is worn, such fact shall be
noted”) that are not specified in state law; (2) the inclusion in Sacramento County Code
section 4.30.050, subdivision (C) of a “hold” on any transaction after the pledging of an
item for specified time periods that are inconsistent with state law; (3) the authorization
in Sacramento County Code section 4.30.090 to collect a transaction fee to defray the
3 The parties conceded that the DOJ had yet to act on this statutory authorization as of
the time of the hearing.
5
costs to the pawnbrokers and dealers of licensure under the ordinance and the e-filing
system, which is not among the charges that state law permits pawnbrokers to recover as
compensation; and (4) Sacramento County Code section 4.30.015, subdivision (D)’s
definition of “pawnbroker” adds to the definition under state law in an unclear manner.
Following the hearing, the trial court reiterated its tentative ruling in April 2012 without
substantive change.
In August 2012, the Legislature enacted Assembly Bill No. 391 (2011-2012 Reg.
Sess.) as an urgency measure. (Stats. 2012, ch. 172, §§ 2-6.) We will address its
pertinent provisions in the Discussion.
DISCUSSION
I. General Preemption Principles
“Ordinarily, a party challenging the superior court’s ruling on a motion for a
preliminary injunction must demonstrate an abuse of discretion in evaluating the
interrelated factors of the plaintiff’s likelihood of success and the magnitude of interim
harm to the plaintiff if the preliminary injunction is denied.” (Efstratis v. First Northern
Bank (1997) 59 Cal.App.4th 667, 671.) “However, where the superior court (as here)
limits its ruling to only one of these factors, it is that ground which must conclusively
support the order.” (Ibid.) “Where the ‘likelihood of prevailing on the merits’ factor
depends upon a question of law rather than upon evidence to be introduced at a . . . full
trial, the standard of review is not abuse of discretion but whether the superior court
correctly interpreted and applied statutory law, which we review de novo.” (Id. at
pp. 671-672.) We review a request for injunctive relief under the law in effect at the time
6
we render our decision. (6 Witkin, Cal. Procedure (5th ed. 2008) Provisional Remedies,
§ 402, p. 344.)4
If local ordinances and regulations conflict with state law, they are preempted. A
conflict exists if it touches upon a subject that state law expressly (or through necessary
implication) fully occupies, or where it duplicates (by being coextensive) or contradicts
state law on a subject. (O’Connell v. City of Stockton (2007) 41 Cal.4th 1061, 1067-
1068.)
On the subject of the regulation of pawnbrokers and secondhand dealers, the
Legislature has expressly declared that it was enacting these provisions “to curtail the
dissemination of stolen property and to facilitate the recovery of stolen property by
means of a uniform, statewide, state-administered program of regulation . . . . [¶] . . . [¶]
. . . [T]his article shall not be superseded or supplanted by the provisions of any
ordinance or charter . . . .” (§ 21625, 1st & 3d pars., italics added.) To this end, sections
21637 and 21638 prohibit any locality from adopting any “[i]dentification, holding, or
reporting requirements for the acquisition of tangible personal property . . . by
pawnbrokers and secondhand dealers, other than as set forth in Sections 21628 . . . and
21636” (§ 21637, subd. (b)) except where (in the classic double negative) “not
inconsistent” with state law (§ 21637). Because these statutes recognize the possibility of
“not inconsistent” local legislation, we are not concerned with express or implied
preemption of the subject of regulation. (Malish, supra, 84 Cal.App.4th at p. 729.) Thus,
a locality may require a local license in addition to the state license issued to
pawnbrokers and secondhand dealers, because even if “duplicative” and “arguably
unnecessary,” this “is not per se inconsistent with the requirement of a state license.”
4 We thus disregard defendants’ efforts to have us blindfold ourselves to Assembly Bill
No. 391.
7
(Id. at p. 730.) It is also permissible for a locality to provide rights of access and
inspection to its law enforcement agencies no greater than that allowed under state law.
(Id. at p. 732.) On the other hand, revocation of a local license on grounds broader than
authorized for revocation of a state license (e.g., for a single violation of state law rather
than a pattern of conduct) is actually inconsistent with state policy and therefore
preempted (id. at p. 734), and in the particular context of identification, holding, and
reporting requirements, a locality cannot require a form other than the JUS-123, or add
requirements other than those specified in section 21628 (Malish, supra, at pp. 735, 736;
accord, id. at pp. 736-737 [upholding another duplicative local provision, and striking
down provisions specifying holding requirements other than those appearing in state
law]).
II. Local E-filing System
At the time of the trial court’s ruling, former section 21628 (Stats. 2010, ch. 178,
§ 16) provided that pawnbrokers and other secondhand dealers “shall report daily, or on
the first working day after receipt or purchase of the property, on forms either approved
or provided at actual cost by the [DOJ], all tangible personal property . . . [acquired in the
course of business], to the chief of police or to the sheriff . . . .” In subdivisions (a) to (g),
the statute then prescribed the contents of the reports. In subdivision (j), the statute first
directed the DOJ to develop categories of tangible personal property to be incorporated
into the reports, and to develop a format for e-filing; it then provided, “Twelve months
after the [e-filing] format and the categories . . . have been developed, each secondhand
dealer . . . shall [e-file] using this format the information required by this section . . . .
Until that time, each secondhand dealer . . . may either continue to report this information
using existing forms and procedures or may begin [e-filing] . . . as soon as [the categories
and format have] been developed.” (§ 21628, subd. (j)(2), (1).)
8
Four months after the trial court’s ruling, the newly enacted Assembly Bill
No. 391 declared, “It is the intent of the Legislature to enact legislation that fully funds
the cost of developing and implementing a single, statewide, uniform [e-filing] reporting
system of the information required to be reported in accordance with Section 21628 . . .
through the imposition of a fee 120 days after enactment of this act and thereafter upon
the application for and renewal of a license to act as a secondhand dealer or pawnbroker.”
(Stats. 2012, ch. 172, § 1, eff. Aug. 17, 2012, italics added.) It further declared the goal
of relieving these businesses from the costs associated with the paper transactions. (Ibid.)
As amended, section 21628 now provides, “Every secondhand dealer . . . shall report
daily, or on the first working day after receipt or purchase of secondhand tangible
personal property, on forms or through an [e-filing] reporting system approved by the
[DOJ] . . . .”5 The information to be reported remained unchanged. Subdivision (j) now
provides for the development of categories and “upon the availability of sufficient funds
in the . . . Fund created pursuant to Section 21642.5 [enacting a $300 license fee for this
purpose], the [DOJ] shall promptly develop a single, statewide, uniform [e-filing]
reporting system to be used to transmit these secondhand dealer reports.” (§ 21628, subd.
(j)(1), italics added.) Until the e-filing system is operating, reports “may continue . . . in
paper format on forms approved of or provided by the [DOJ].” (Id., subd. (j)(2)(A).)
Upon the e-filing system becoming operative, all reports must be e-filed, except that
during the first 30 days of the e-filing system’s implementation there must also be a paper
report as well. (Id., subd. (j)(2)(B).)
The trial court’s ruling focused on the voluntary nature of defendant County’s
e-filing system and the absence of any statewide system at that time (and presumably at
the present time). This misses the mark, however.
5 The term “secondhand dealer” in the statutory scheme includes those who “tak[e] in
pawn” (e.g., pawnbrokers). (See § 21626, subd. (a).)
9
Sacramento County Code section 4.30.025, subdivision (C) states, “Upon the
implementation of an [e-filing] reporting system by the Sheriff, every pawnbroker[ and]
secondhand dealer . . . may elect to commence reporting as required by this section by
means of such [e-filing] reporting system in lieu of a paper form.” It may be that a
cumulative and voluntary e-filing system, organized in a way to best suit local needs,
would not necessarily be “per se inconsistent” with the state law interest in a single
uniform e-filing system. (Malish, supra, 84 Cal.App.4th at p. 730.) However, the
ordinance purports to allow Sacramento businesses to opt to use its e-filing system in lieu
of their obligation under state law to file paper reports until 30 days after the state e-filing
system is operative. Section 21628 does not expressly allow for this local alternative to
its express mandate. Contrary to the argument of defendants, subdivision (j)(2)(A)’s
choice of phrase—that reports “may continue . . . in paper format” (italics added)—
cannot be stretched into an endorsement of letting 58 voluntary e-filing systems bloom in
California in lieu of the express requirement for paper reports.
Consequently, CLSDA had demonstrated that it is likely to prevail on this issue,
and the trial court has already concluded that enforcement of the ordinance otherwise
poses a threat of irreparable injury. Therefore, the preliminary injunction must also
restrain defendants from giving effect to the provision allowing businesses to opt out of
filing paper forms.6
6 For the first time in its reply brief, CLSDA identifies two other statutes with which the
ordinance purportedly conflicts, either by granting an exemption not reflected in state law
(Sac. County Code, § 4.30.065, subd. (A)) or not including an exemption in section
21628.1. We will not entertain these arguments. (Sourcecorp, Inc. v. Shill (2012)
206 Cal.App.4th 1054, 1061, fn. 7.)
10
III. Other Conflicting Provisions of the Ordinance
Although CLSDA expressly called the attention of the trial court to other
provisions of the ordinance that it believed conflicted with state law, the trial court
unaccountably did not address them in its ruling. Defendants also ignore them on appeal,
focusing only on the e-filing provision. Whether or not this is a tacit concession of the
invalidity of these other provisions, we agree that the preliminary injunction must extend
to three of these as well.7
A. Transaction Fees
Sacramento County Code section 4.30.090 provides for the Sheriff to collect a
license fee from each of the pawnbrokers and secondhand dealers “to provide for the
direct and indirect costs of processing reported data and enforcing the provisions of
[chapter 4.30].” It authorizes the licensees, in turn, “to charge the amount of . . . ($1.00)
per transaction . . . to defray the cost of said fee.”
As CLSDA points out (without rejoinder from defendants), the Financial Code
extensively prescribes the maximum compensation a pawnbroker can receive in interest:
“no pawnbroker shall charge or receive compensation at a rate exceeding the sum of the
following [rates].” (Fin. Code, § 21200, subd. (a).) “Compensation” is defined as
“expenses, interest, disbursements, storage charges, and all other charges of any nature in
connection with a loan or forbearance.” (Id., § 21001.) Chapter 2 of the Financial Code
also specifies the amount of a loan setup fee (Fin. Code, § 21200.1), creates a schedule of
charges for loans (id., § 21200.5), and specifies the amount of charges for handling and
7 Ordinarily, the trial court’s failure to rule on the merits of these arguments would
warrant remand, because it is the role of this court to review a trial court’s exercise of
its discretion, not to exercise discretion in the first instance. (Right Site Coalition v.
Los Angeles Unified School Dist. (2008) 160 Cal.App.4th 336, 345 (Right Site).) We will
nevertheless undertake “ ‘the unusual, but practical, step of reaching and resolving the
merits’ ” (ibid.) on these narrow questions of law.
11
storage based on the size of the pawned article (id., § 21200.6), processing firearms (id.,
§ 21200.8), and lost pawn tickets (id., § 21201.1). Moreover, as noted above, the
Legislature has now created a new license fee to fund the DOJ’s e-filing system. Nothing
in any of these provisions contemplates a transaction fee to pass through the cost of a
local e-filing system to CLSDA customers. As CLSDA has established a likelihood of
prevailing on this issue and is at risk of irreparable injury from its enforcement, the
preliminary injunction must also restrain defendants from allowing the collection of a
transaction fee as contained in Sacramento County Code section 4.30.090.
B. Additional Reporting Requirements
In Sacramento County Code section 4.30.030, subdivisions (A) through (G), the
ordinance prescribes the collection of the information specified under various state laws,
including section 21628. However, as noted above, Sacramento County Code section
4.30.030, subdivision (H) adds additional reporting requirements.
As we have explained, to the extent the ordinance is duplicative of state law, it is
not preempted. But under the authority of Malish, supra, 84 Cal.App.4th at pp. 735, 736,
it cannot add to the reporting requirements of state law. Having demonstrated that it is
likely to prevail on this issue (without rejoinder from defendants) and is at risk of
irreparable injury from enforcement of the ordinance, CLSDA is entitled to have the
preliminary injunction include a restraint on enforcing Sacramento County Code section
4.30.030, subdivision (H) as well.
C. Holding Requirements
Sacramento County Code section 4.30.050, subdivisions (A) and (B) prescribe a
seven-day holding period after acquisition of any undefined “article or thing” after filing
a report on it except for “tangible personal property,” which is subject to the same 30-day
hold prescribed in section 21636 for tangible personal property. To the extent
Sacramento County Code section 4.30.050, subdivision (A) applies to items that are not
12
tangible personal property,8 it does not conflict with the purposes of section 21636.
Similarly, to the extent section 4.30.050, subdivision (B) duplicates section 21636, it does
not conflict. CLSDA has thus failed to demonstrate that it is likely to prevail on this
issue.
D. Pawnbroker Definition
Sacramento County Code section 4.30.015, subdivision (D) defines a
“pawnbroker” as “a person engaged in . . . the business of lending money . . . upon
personal property, pawns or pledges; or the business of purchasing articles from the
vendors or their assignees at prices agreed upon at or before the time of such purchase.”
(Italics added.) CLSDA purports a lack of understanding of the meaning of the
emphasized portion, but asserts (without rejoinder from defendants) that whatever
meaning is intended in this definition, it cannot depart from either Business and
Professions Code section 21626, subdivision (a) (which specifies that “secondhand
dealers” subject to the reporting requirement include business that involves “buying,
selling, trading, taking in pawn, accepting for sale on consignment, accepting for
auctioning, or auctioning secondhand tangible personal property,” but not coin or firearm
dealers (Bus. & Prof. Code, § 21626, subd. (b)) or Financial Code section 21000, which
defines a “pawnbroker” as “[e]very person engaged in the business of receiving goods . . .
in pledge as security for a loan” for purposes of compensation and other regulations in
division 8 of that code.
We agree that for purposes of identification, holding, and reporting requirements,
the reach of the ordinance must be coextensive with state law and cannot expand or
contract its scope, and therefore CLSDA is likely to prevail on the issue of the altered
8 “Tangible personal property” is defined in Sacramento County Code section 4.30.015,
subdivision (G). An example of items that are not considered tangible personal
property—provided by respondents’ counsel at oral argument—was shoes and purses.
13
definition of “pawnbroker” in Sacramento County Code section 4.30.015, subdivision
(D). Although CLSDA has failed to make any showing that any of its members in
Sacramento County would not otherwise be subject to the reporting requirements, this
lack of harm is not fatal to relief. (Right Site, supra, 160 Cal.App.4th at p. 342.) We will
therefore modify the preliminary injunction in this respect as well.
IV. The Issue of Severing the Ordinance Is Premature
In a one-paragraph argument, CLSDA contends “the remaining valid provisions of
the ordinance cannot be saved because they cannot be considered volitionally severable.”
It asserts it may raise this issue for the first time on appeal because it presents a pure
question of law and “there is no reason to burden the parties with unnecessary
proceedings below.”
Defendants are correct that this argument is premature. Absent a stipulation or
other satisfactory showing that the parties submitted the cause on the merits, the final
judgment on the merits has yet to be entered on the ordinance; all that the trial court
issued was a provisional remedy. (Camp v. Board of Supervisors (1981) 123 Cal.App.3d
334, 357-358; Gray v. Bybee (1943) 60 Cal.App.2d 564, 571.) Thus, further proceedings
in the trial court are not “unnecessary”; in fact, that court is still vested with jurisdiction
over the merits of the matter. (Gray, at p. 571; see Varian Medical Systems, Inc. v.
Delfino (2005) 35 Cal.4th 180, 191 [neither affirmance nor reversal of preliminary
injunction order eliminates need for additional proceedings on the merits].) The question
of severability (or indeed, whether defendants even wish to continue to enforce the
ordinance in light of Assembly Bill No. 391’s amendments) can be addressed in the trial
court in the process of obtaining a declaration of invalidity in the final judgment in this
matter.
14
DISPOSITION
The trial court’s order granting a preliminary injunction against enforcement of the
ordinance is modified to include the subjects discussed in this opinion: Defendants
cannot excuse e-filers from filing paper reports (Sac. County Code, § 4.30.025, subd.
(C)); defendants cannot authorize the collection of a transaction fee (Sac. County Code,
§ 4.30.090); defendants cannot mandate the collection of reporting information not
specified in section 21628 (Sac. County Code, § 4.30.030, subd. (H)); and defendants
cannot expand or contract the definition of pawnbrokers subject to the ordinance in
deviation from state law (Sac. County Code, § 4.30.015, subd. (D)). As thus modified,
the order is affirmed. CLSDA shall recover its costs of appeal. (Cal. Rules of Court, rule
8.278(a)(1), (2).)
BUTZ , J.
We concur:
NICHOLSON , Acting P. J.
HULL , J.
15
Filed 2/7/14
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
COLLATERAL LOAN AND SECONDHAND C070987
DEALERS ASSOCIATION,
(Super. Ct. No.
Plaintiff and Appellant, 34-2012-00118609-CU-JR-GDS)
v.
ORDER MODIFYING OPINION
COUNTY OF SACRAMENTO et al., AND CERTIFYING OPINION FOR
Defendants and Respondents. PUBLICATION
[NO CHANGE IN JUDGMENT]
APPEAL from a judgment of the Superior Court of Sacramento County, David I.
Brown, Judge. Affirmed as modified.
Law Offices of Jon P. Webster, Jon P. Webster, James A. Arcellana and Raymond
M. Yetka for Plaintiff and Appellant.
16
John F. Whisenhunt, County Counsel, and John Reed, Deputy County Counsel, for
Defendants and Respondents.
THE COURT:
It is ordered that the opinion filed herein on January 9, 2014, be modified as
follows:
1. On page 6, at the third line, delete the remainder of the sentence after the words
“and (4)” and insert the following so it now reads:
and (4) the addition in Sacramento County Code section 4.30.015,
subdivision (D)’s definition of “pawnbroker” to the definition under state
law in an unclear manner.
2. On page 6, in the fifth line of part I. of the Discussion, delete the following
quotation and citation following the Efstratis citation:
“However, where the superior court (as here) limits its ruling to only one of
these factors, it is that ground which must conclusively support the order.”
(Ibid.)
3. On page 8, in the first full paragraph of part II. delete the second half of the
paragraph beginning on the fifth line with the words “In subdivisions (a) to (g),” and
ending with “(§ 21628, subd. (j)(2), (1).)” and replace it with the following:
In former subdivisions (a) to (g), the statute then prescribed the contents of
the reports. In former subdivision (j)(1) and (2), the statute first directed
the DOJ to develop categories of tangible personal property to be
incorporated into the reports, and to develop a format for e-filing; it then
provided, “Twelve months after the [e-filing] format and the categories . . .
have been developed, each secondhand dealer . . . shall [e-file] using this
format the information required by this section . . . . Until that time, each
17
secondhand dealer . . . may either continue to report this information using
existing forms and procedures or may begin [e-filing] . . . as soon as [the
categories and format have] been developed.”
4. On page 9, in footnote 5, delete the words “(e.g., pawnbrokers).” and replace them
with “(i.e., pawnbrokers).”
5. On page 11, at the third line of the first full paragraph of part III., delete the word
“unaccountably” so that the phrase now reads: “the trial court did not address them in its
ruling.”
There is no change in judgment.
The opinion in the above-entitled matter filed on January 9, 2014, was not
certified for publication in the Official Reports. For good cause it now appears that the
opinion should be published in the Official Reports and it is so ordered. (CERTIFIED
FOR PUBLICATION)
BY THE COURT:
NICHOLSON , Acting P. J.
HULL , J.
BUTZ , J.
18
| {
"pile_set_name": "FreeLaw"
} |
92 F.3d 1191
78 A.F.T.R.2d 96-5874, 96-2 USTC P 50,451
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.Larry L. BOSLEY; Sandra N. Bosley; Petitioners-Appellants,v.COMMISSIONER INTERNAL REVENUE SERVICE, Respondent-Appellee.
No. 95-70021.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted June 5, 1996.Decided Aug. 1, 1996.
Before: FLETCHER, BEEZER, and KLEINFELD, Circuit Judges.
1
MEMORANDUM*
2
The underlying problem giving rise to the Bosleys' claim is that the Bosleys' representative thought the discovery requests to which they failed to respond related only to the Florida tax shelter deductions which they had decided not to defend. Their accountants failed to respond to the discovery relating to the Florida Tax Shelter. The Commissioner moved to dismiss their petition. The Tax Court ordered them to show cause why the petition should not be dismissed. Their representative did not file any showing of cause, so the petition was dismissed.
3
Tax Court Rule 162 limited the Bosleys' time to file a motion to vacate or revise a final order to thirty days, unless the court should otherwise permit. The Bosleys did not seek relief until eight months after the order of dismissal. That was too late.
4
The Tax Court could have set aside the dismissal "upon motion expeditiously made" under Tax Court Rule 123(c). The term "expeditiously" is not defined, but this period cannot be longer than the ninety day period for Tax Court decision finality under 26 U.S.C. §§ 7841(a)(1) & 7843. Billingsley v. Commissioner, 868 F.2d 1081, 1084 (9th Cir.1989). The decision became final within ninety days under 28 U.S.C. § 7841, so could no longer be set aside because of mistake.
5
The only grounds on which the Tax Court could have vacated its decision once it became final would have been if the Commissioner committed fraud on the court, or the Tax Court lacked jurisdiction to issue its initial order. Toscano v. Commissioner, 411 F.2d 930, 933 (9th Cir.1971) (fraud on the court); Billingsley, 868 F.2d at 1085 (jurisdiction). No jurisdictional challenge is made in this case. The ground urged is fraud on the court.
6
We have examined the representations that the Commissioner made to the Court, and can identify no fraud. The Bosleys' representative may have mistakenly thought that all he was ignoring was the Florida Tax Shelter portion of the case, which involved little money and which the Bosleys did not intend to contest. But we can see nothing in the record to support the theory that the IRS misled the Court. The Commissioner sought dismissal of the petition, not just the Florida part of it. Though the discovery violation related only to the Florida issue, the IRS motions plainly and expressly applied to the Bosleys' entire petition.
7
So far as the record before us shows, the Bosleys' petition was dismissed entirely because of neglect by their representatives, and not because of any wrongdoing of the Bosleys. But that does not amount to fraud on the court. See Abatti v. Commissioner, 859 F.2d 115, 119 (9th Cir.1988). "Appellants' situation is more analogous to a misunderstanding of Tax Court procedure or instructions than to 'fraud on the court,' and the former is insufficient to overcome the finality rules." Id. (citations omitted); Feistman v. Commissioner, 587 F.2d 941, 943 (9th Cir.1978) (no fraud on the court where taxpayers' counsel unreasonably interpreted a letter from the Clerk of Court); Anderson v. Commissioner, 693 F.2d 844, 846 (9th Cir.1979) (no fraud on the court where taxpayers were misled by their nonlawyer tax advisors into believing an appeal had been filed).
8
We need not decide whether Federal Rule of Civil Procedure 60(b) applies to the Tax Court. See Feistman, 587 F.2d at 943 (Tax Court's jurisdiction exists only to the extent enumerated by statute); Abatti, 859 F.2d at 118 ("the Tax Court's jurisdiction to grant equitable relief is strictly limited"); cf. Tax Court Rule 1 ("Where in any instance there is no applicable rule of procedure, the Court or Judge ... may prescribe the procedure, giving particular weight to the Federal Rules of Civil Procedure to the extent that they are suitably adaptable to govern the matter at hand."). No basis was shown in this case for Rule 60(b) relief, whether the Tax Court would have jurisdiction to grant it or not. The record before us shows that the firm representing the Bosleys in Tax Court failed to respond to discovery, failed to respond to an order to show cause, and failed to seek any relief within the time period allowed after the Tax Court dismissed the Bosleys' petition. The excuse offered was insubstantial. There was not excusable neglect. Engleson v. Burlington Northern R.R. Co., 972 F.2d 1038, 1043-44 (9th Cir.1992) (counsel's ignorance of the governing law does not constitute excusable neglect); see also Link v. Wabash R.R. Co., 370 U.S. 626, 633-34 (1962) (dismissal on account of counsel's unexcused conduct is not an unjust penalty because "[p]etitioner voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omission of this freely selected agent"). This case does not set up " 'an extraordinary situation which cannot fairly or logically be classified as mere 'neglect' on [the petitioners'] part,' " so as to fall under Rule 60(b)(6). United States v. RG & B Contractors, Inc., 21 F.3d 952, 956 (9th Cir.1994) (citations omitted). The case at bar is similar in principle to Feistman and Anderson.
9
AFFIRMED.
*
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
| {
"pile_set_name": "FreeLaw"
} |
503 F.Supp.2d 334 (2007)
NEXTEL SPECTRUM ACQUISITION CORPORATION, Plaintiff,
v.
HISPANIC INFORMATION AND TELECOMMUNICATIONS NETWORK, INC., Defendant.
Civil Action No. 07-543 (RMC).
United States District Court, District of Columbia.
August 29, 2007.
Rodney F. Page, Bryan Cave LLP, Washington, DC, for Plaintiff.
David R. Dempsey, Eunnice H. Eun, Kirkland & Ellis, LLP, Washington, DC, for Defendant.
*335 MEMORANDUM OPINION
COLLYER, District Judge.
Nextel Spectrum Acquisition Corp. ("NAC") had a contract with Hispanic Information and Telecommunications Network, Inc. ("HITN") to lease radio spectrum rights in and around Washington, D.C. NAC complains that the lease gave it a valid right of first refusal ("ROFR") on any bona fide offer(s) HITN received for these spectrum rights. See First Am. Compl. for Specific Performance, Injunctive and Other Relief ("Am. Compl.") ¶ 1. NAC further complains that HITN has agreed to lease the relevant spectrum rights to Clearwire Corporation ("Clearwire") without affording NAC an opportunity to exercise its ROFR, thereby violating the lease. HITN moves to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that NAC mis-reads the plain language and meaning of the lease agreement and that HITN has not violated any of NAC's rights. See Defendant HITN's Motion to Dismiss ("Def.'s Mot.") [Dkt. # 3].[1] The Court heard oral argument on August 16, 2007, and will now grant the motion to dismiss.
I. BACKGROUND FACTS
The lease in question was titled Airtime Royalty Agreement ("ARA") and was initially entered into on February 21, 1995, between The George Washington University ("GW") and Eastern Cable Networks Corp. ("ENET"). See Defendant HITN's Mem. in Supp. of Its Mot. to Dismiss ("Def.'s Mem."), Ex. B. At that time, GW had been issued a license by the Federal Communications Commission ("FCC") to construct and operate an instructional television fixed service station over the Educational Broadband Service ("EBS") for which the FCC had reserved certain spectrum on the 2.5 Ghz band.[2] The federal lease allowed GW to lease excess capacity to others, including commercial for-profit organizations. Id. at 1. Pursuant to the ARA, ENET leased excess capacity from GW for an initial term of 1995 to 1998, subject to automatic annual renewal for a ten-year period. See id. at 2 (Automatic Renewal Terms ¶ I.B.1): The ARA also contained the following terms:
*336 C. Right of First Refusal
1. ENET shall have the exclusive right to match the material terms and conditions of any bona fide offer to lease excess capacity from the University during any or all of the period from the expiration of the automatic renewal term under Section I.B through two years thereafter (the "Right of First Refusal").
2. If the University desires to enter into an agreement to lease excess capacity that would commence anytime within two years after the expiration of the automatic renewal term under Section I.B, the University must provide written notice to ENET at the commencement of any negotiations regarding such lease and must provide written notice to the party with whom it is negotiating of ENET's Right of First Refusal. Such notice must be given one year prior to expiration of the contract.
3. Within seven (7) days of receiving a bona fide offer to lease excess capacity acceptable to the University, the University shall serve ENET with a written notice containing the material terms and conditions of that offer, identifying the offeror and stating the University's intent to accept the offer in the event that ENET does not elect to match the offer on substantially the same material terms and conditions as those contained in the notice. The University shall not accept any offer to lease excess capacity that includes terms or conditions that have the purpose or the effect of preventing ENET from exercising its Right of First Refusal. Within thirty (30) days of ENET's receipt of the University's written notice, ENET shall notify the University in writing of its desire to exercise its Right of First Refusal . . .
Id. ¶¶ C.1-3.
Over time, NAC succeeded to the interests of ENET and HITN assumed the rights and obligations of GW under the ARA. See Def.'s Mem. at 3. Pursuant to the ARA, HITN leased certain EBS D channels ("DC Spectrum") in the Washington, D.C. area to NAC. Id. The term of the ARA, with all automatic renewals, expired on February 21, 2005. Def.'s Mem., Ex. B ¶ I.B.1. The two-year period thereafter, during which NAC held a ROFR, ended on February 21, 2007.
Allegedly beginning on or about November 2003, HITN developed a relationship with Clearwire concerning leasing excess EBS capacity that HITN held in various markets. See Am. Compl. ¶¶ 22-41. That relationship led to a Master Royalty and Use Agreement ("MRUA") between Clearwire and HITN dated October 4, 2006. See Am. Compl. ¶ 36; Def.'s Mem., Ex. A.
The MRUA provides Clearwire with an "exclusive" right to all of HITN's licensed spectrum. See Am. Compl. ¶ 38; Def.'s Mem. Ex. A, Recitals at 4 (the parties agree that "in securing a source of spectrum capacity for the future and facilitating the branding of the Clearwire mark through the services provided by Licensee in the non-profit community; . . . [HITN] desires to make available to Clearwire, and Clearwire desires to have access to, . . . any additional Commercial Spectrum Capacity of [HITN] that is accepted by Clearwire and made subject to an IUA [Individual Use Agreement] as provided in this Agreement (the `Future Spectrum Capacity'), all in accordance with the terms of this Agreement"). Most particularly, the MRUA states:
(b) Option for Future Spectrum Capacity. Licensee grants Clearwire an option (the "Option") to enter into IUAs with Licensee in respect of any and all spectrum (including, but not limited to, the Commercial Spectrum Capacity, EBS *337 and BRS) ("Spectrum") on FCC Licenses held by Licensee that is Available or that becomes Available during the. Term, at prices to be negotiated in good faith based on the fair market value ("FMV") of such Spectrum at the time the Option is to be exercised, provided, however, that the negotiated price shall not exceed . . . per MHZ POP. The Option shall be exercisable in Clearwire's sole discretion each time Spectrum of Licensee or its Affiliates becomes Available during the Term. . . .
See Am. Compl. ¶ 40; Def.'s Mem., Ex., A at 6-7. The term "Available" is defined in the MRUA as spectrum that "is not encumbered by any Lien, including, but not limited to, any purchase option, right of first refusal, or other contractual obligation of [HITN]." Def.'s Mem., Ex. A, Exhibit 1 subpart (b) "Definitions."
HITN explains that "Wince the Washington D Channels were subject to NAC's right of first refusal under the [ARA], those channels, by definition, did not qualify as Future Spectrum Capacity under the [MRUA] between HITN and Clearwire when that Agreement was consummated." Def.'s Mem. at 5. From Clearwire's filings with the federal government, it appears that it has paid HITN $22.1 million in cash and 2,829,717 shares of Class A Common Stock valued at $12.3 million prior to Clearwire's recent initial public offering ("IPO"). Am. Compl. ¶ 41. "With Clearwire's stock now trading at approximately $20 per share, HITN has a post-IPO windfall of in excess of $75,000,000.00." Id.
At the argument on NAC's motion, the parties informed the Court that NAC has never used any of the contested spectrum for actual broadcasting and it lies fallow even yet. NAC's interest in leasing the spectrum from GW/HITN, and in negotiating the ROFR, was to control the asset in an extremely competitive market.
NAC brings a single-count breach of contract claim against HITN. See Am. Compl. at 13-14.
II. LEGAL STANDARDS
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C.Cir.2002). "While a complaint attacked by a rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the `grounds' for `entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise the right of relief above a speculative level." Bell Atl. Corp. v. Twombly, ___ U.S. ___, ___-___, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007) (internal citations omitted). The Court must treat the complaint's factual allegations including mixed questions of law and fact as true, drawing all reasonable inferences in the plaintiffs favor. Macharia v. United States, 334 F.3d 61, 64, 67 (D.C.Cir.2003); Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C.Cir.2003). But the Court need not accept as true inferences unsupported by facts set out in the complaint or legal conclusions cast as factual allegations. Browning, 292 F.3d at 242. In deciding a 12(b)(6) motion, the Court "may only consider the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the court may take judicial notice." Gustave-Schmidt v. Chao, 226 F.Supp.2d 191, 196 (D.D.C.2002) (citation omitted).
III. ANALYSIS
NAC argues that it lad "valid right of first refusal (`ROFR') on any bona fide *338 offer(s) [HITN] receives for certain spectrum rights" at any time during the two-year period after its formal leasehold had ended. See Am. Compl. ¶ 1. HITN argues, more persuasively, that only if it entered into an agreement to lease excess capacity that would commence within the two-year ROFR period would the ROFR become viable. See Def. HITN's Reply in Supp. of its Mot. to Dismiss ("Def.'s Reply") at 4-5. Inasmuch as HITN's MRUA with Clearwater, of whatever eventual scope, would not commence as to the DC Spectrum within the two-year period, HITN argues that it violated none of NAC's rights and the complaint should be dismissed.
Although they read the agreement differently, both parties agree that the ARA is plain on its face and unambiguous. Whether a contract is ambiguous is a question of law for the court. See Holland v. Hannan, 456 A.2d 807, 815 (D.C.1983). A contract is not rendered ambiguous merely because the parties disagree over its proper interpretation. Id. Instead, a contract is ambiguous when, and only when, it is, or the provisions in controversy are, reasonably or fairly susceptible of different constructions or interpretations, or of two or more different meanings. See Burbridge v. Howard Univ., 305 A.2d 245, 247 (D.C.1973). If there is more than one interpretation that a reasonable person could ascribe to the contract, while viewing the contract in context of the circumstances surrounding its making, the contract is ambiguous. See Morgan v. American Univ., 534 A.2d 323, 330 (D.C.1987). The choice among reasonable interpretations of an ambiguous contract is for the fact-finder to make based on the evidence presented by the parties to support their respective interpretations. Howard Univ. v. Best, 484 A.2d 958, 966 (D.C.1984). Examining the clause in question in light of the ARA as whole, the Court agrees with the parties that the plain meaning of the contract is unambiguous.
NAC offers that the ROFR is a defined term in paragraph 1 of section I.C. of the ARA means only what section I.C. says: NAC "shall have the exclusive right to match the terms and conditions of any bona fide offer to lease excess capacity from [HITN] during any or all" of the two year period after the automatic renewal term, i.e., "any bona fide offer to lease excess capacity" received by HITN during that two-year period. In furtherance of this "plain meaning" interpretation, NAC contends that paragraph 2 of the ROFR provision describes a subset of paragraph 1, that is, a situation in which HITN desires to lease excess capacity that would commence during the two-year period. Similarly, it contends that paragraph 3 of the ROFR provision describes a different subset, in which HITN received an offer to lease excess capacity. Thus, it argues that NAC was entitled to receive notice of any offer to lease DC Spectrum during the two-year period, regardless of when the lease under consideration would take effect.
HITN argues that the "plain meaning" of the entirety of the ROFR provision is that NAC held a ROFR over any lease of DC Spectrum during the two-year period but not thereafter. It notes that its responsibility to notify NAC of its desire to lease any of the DC Spectrum was "one year prior to expiration of the contract" and covered only a lease "that would commence anytime within two years after the expiration of the automatic renewal term." See ARA, Def.'s Mem. Ex. B ¶ I.C.2. It also argues that NAC had no contract right to make, and insist that HITN consider, a matching offer for a spectrum lease after February 21, 2007, when its "grace" period expired.
*339 The contract is clear that not every offer would necessarily trigger the right of first refusal. Rather, only an offer that met a certain standard would activate HITN's duty to give NAC the opportunity to match the offer. Carried to its logical conclusion, NAC's argument would lead to absurd results. It would mean that NAC had a contract right to counter an offer to lease DC Spectrum from HITN to take effect years after NAC's leasehold and two-year ROFR period had ended, as long as that offer were actually received within the two-year period after the expiration of the automatic renewal period. In other words, NAC argues that if HITN had received an offer to lease the DC Spectrum on February 20, 2007, for a lease period to begin in 2010, HITN would have had an obligation to notify NAC and allow NAC to make a counter-offer under its ROFR. But the ARA clearly indicates otherwise. NAC leased the DC Spectrum through a period of automatic annual renewals that ended on February 21, 2005, and further negotiated a ROFR for the two-year period ending February 21, 2007; it did not negotiate the right to encumber the DC Spectrum into perpetuity.
Under District of Columbia law, contracts are construed in accordance with the intention of the parties insofar as it can be discerned from the text of the instrument. See Washington Metro. Area Transit Auth. v. Georgetown Univ., 347 F.3d 941, 945-46 (D.C.Cir.2003); Found. for the Pres. of Historic Georgetown, v. Arnold, 651 A.2d 794, 796 (D.C. 1994). Here the parties signed a clear agreement for the lease of excess capacity in the DC Spectrum for a period to commence February 21, 1995, with all obligations terminating on February 21, 2007. HITN did not negotiate with a third party to lease excess capacity for any period between February 21, 2005, and February 21, 2007. Therefore, NAC's right of first refusal was never triggered. As a result, the Court will grant HITN's motion to dismiss NAC's Amended Complaint. A memorializing order accompanies this Memorandum Opinion.
NOTES
[1] As an initial matter the Court thinks it appropriate to clear up some confusion regarding the Motion to Dismiss. After Nextel filed its initial Complaint in District of Columbia Superior Court, HITN filed a Notice of Removal to this Court. See [Dkt. # 1]'. Soon thereafter, HITN filed its Motion to Dismiss the Complaint. See Motion to Dismiss [Dkt. # 3] filed March 26, 2007. Nextel then filed a Motion for Leave to File its First Amended Complaint. See [Dkt. # 4]. The Court informed NAC that this was unnecessary under Federal Rule of Civil Procedure 15(a) because a plaintiff may amend, the Complaint as a matter of right anytime before the Defendant files a responsive pleading. The Amended Complaint was accepted for filing. See [Dkt. # 9]. HITN subsequently notified the Court of its intention to stand on the original Motion to Dismiss with respect to the First Amended Complaint. See Def. HITN's Reply In Supp. of its Mot. to Stay Certain Discovery Pending J. on its Mot. to Dismiss at 2-3. HITN also filed a Motion for Hearing regarding the pending Motion to Dismiss. See [Dkt. # 10] (specifically stating that the Defendant "stands on the papers in support of its now fully-briefed Motion to Dismiss with respect to the First Amended Complaint"). NAC did not oppose the HITN's motion so the Court treats it as conceded. As such, the motion is ripe.
[2] As used here, "spectrum" refers to radio frequencies used for the transmission of sound, data and video. Am. Compl. ¶ 5. The FCC allocated a portion of the 2.5 Ghz band for EBS; the remaining portion of the 2.5 Ghz band may be licensed to commercial enterprises and is referred to as Broadband Radio Service ("BRS"). Am. Compl. ¶ 10. "Licensed spectrum is finite within the 2.5 Ghz band and the FCC has already licensed nearly all available EBS and BRS spectrum in each market." Id. ¶ 11.
| {
"pile_set_name": "FreeLaw"
} |
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-3853
UNIVERSITY OF NOTRE DAME,
Plaintiff-Appellant,
v.
SYLVIA MATHEWS BURWELL, Secretary of U.S. Department of
Health & Human Services, et al.,
Defendants-Appellees,
and
JANE DOE 3,
Intervening Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:13-cv-01276-PPS-CAN — Philip P. Simon, Chief Judge.
____________________
ARGUED APRIL 22, 2015 — DECIDED MAY 19, 2015
____________________
Before POSNER, FLAUM, and HAMILTON, Circuit Judges.
POSNER, Circuit Judge. The Affordable Care Act requires
providers of health insurance (including both health insur-
ance companies and companies that administer self-insured
2 No. 13-3853
employer health plans on behalf of the employer—such
companies are called “third party administrators”) to cover
certain preventive services without cost to the insured, in-
cluding, “with respect to women, such additional preventive
care … as provided for in comprehensive guidelines sup-
ported by the Health Resources and Services Administra-
tion” of the Department of Health and Human Services. 42
U.S.C. § 300gg-13(a)(4); see also 45 C.F.R. § 147.130(a)(1)(iv);
76 Fed. Reg. 46621, 46623 (Aug. 3, 2011). Guidelines specify-
ing such care have been promulgated by the Department
and include, so far as bears on this case, “all Food and Drug
Administration approved contraceptive methods.” Health
Resources & Services Administration, “Women’s Preventive
Services Guidelines,” www.hrsa.gov/womensguidelines
(visited May 14, 2015, as were the other websites cited in this
opinion).
About half of all pregnancies in the United States are un-
intended, and 40 percent of them end in abortion and many
others in premature births or other birth problems. Institute
of Medicine, Clinical Preventive Services for Women: Closing the
Gaps 102–03 (2011), www.nap.edu/catalog.php?record_id=
13181; Lawrence B. Finer & Mia R. Zolna, “Shifts in Intended
and Unintended Pregnancies in the United States, 2001–
2008,” 104 Am. J. Pub. Health S43, S44 (2014). Many of the un-
intended pregnancies are teen pregnancies, and contracep-
tive use has been found to be positively correlated with de-
creased teen pregnancy. John S. Santelli & Andrea J. Melni-
kas, “Teen Fertility in Transition: Recent and Historical
Trends in the United States,” 31 Ann. Rev. Pub. Health 371,
375–76, 379 (2010). Because out-of-pocket expenditures on
female contraceptives can be substantial for many women,
see Su-Ying Liang et al., “Women’s Out-of-Pocket Expendi-
No. 13-3853 3
tures and Dispensing Patterns for Oral Contraceptive Pills
Between 1996 and 2006,” 83 Contraception 528, 531 (2011), the
provision of such contraceptives without cost to the user can
be expected to increase contraceptive use and so reduce the
number both of unintended pregnancies and of abortions.
See Jeffrey F. Peipert et al., “Preventing Unintended Preg-
nancies by Providing No-Cost Contraceptives,” 120 Obstet-
rics & Gynecology 1291, 1295–96 (2012). Furthermore, “wom-
en who can successfully delay a first birth and plan the sub-
sequent timing and spacing of their children are more likely
than others to enter or stay in school and to have more op-
portunities for employment and for full social or political
participation in their community.” Susan A. Cohen, “The
Broad Benefits of Investing in Sexual and Reproductive
Health,” 7 Guttmacher Report on Public Policy, March 2004,
pp. 5, 6; see also Martha J. Bailey et al., “The Opt-in Revolu-
tion? Contraception and the Gender Gap in Wages,” 4 Amer-
ican Economic Journal: Applied Economics, July 2012, pp. 251–
52. For a compact and convincing summary of the benefits to
society in general and women in particular of inexpensive
access to contraception, see Priests for Life v. U.S. Dept. of
Health & Human Services, 772 F.3d 229, 257–64 (D.C. Cir.
2014).
The University of Notre Dame provides health benefits to
both its employees and its students. It self-insures its em-
ployees’ medical expenses, but has hired Meritain Health,
Inc. to administer the employee health plan without provid-
ing any insurance coverage; Meritain is therefore the third-
party administrator of the university’s employee health plan.
To take care of its students’ medical needs, Notre Dame has
a contract with Aetna, Inc., the well-known health care and
health insurance company (and Meritain’s parent); the con-
4 No. 13-3853
tract gives the students the option of obtaining health insur-
ance from Aetna at rates negotiated by Notre Dame. Mer-
itain administers coverage for some 4600 employees of Notre
Dame (out of a total of 5200) and 6400 dependents of em-
ployees. Aetna insures 2600 students and 100 dependents;
Notre Dame has about 11,000 students, most of whom have
coverage under either their parents’ health insurance poli-
cies or under their own policies rather than under the Aetna
Notre Dame Health Plan.
Because Catholic doctrine forbids the use of contracep-
tives to prevent pregnancy (the “rhythm” method of avoid-
ing pregnancy, which is permitted, is a form of abstention,
not of contraception), Notre Dame has never paid for contra-
ceptives for its employees or permitted Aetna to insure stu-
dents under the Aetna Notre Dame Health Plan (or any oth-
er Aetna plan) for the expense of contraceptives. Cognizant
of the religious objections of Catholic and a number of other
religious institutions to contraception, and mindful of the
dictate of the Religious Freedom Restoration Act, 42 U.S.C.
§§ 2000bb-1(a), (b), that “Government shall not substantially
burden a person’s exercise of religion even if the burden re-
sults from a rule of general applicability,” unless “it demon-
strates that application of the burden to the person—(1) is in
furtherance of a compelling governmental interest; and (2) is
the least restrictive means of furthering that compelling gov-
ernmental interest,” some months after the enactment of the
Affordable Care Act the government offered a religious ex-
emption from the contraception guidelines. See “Group
Health Plans and Health Insurance Issuers Relating to Cov-
erage of Preventive Services,” 76 Fed. Reg. 46621, 46626
(Aug. 3, 2011) (codified at 45 C.F.R. § 147.130(a)(1)(iv)); see
also 77 Fed. Reg. 8725, 8727–29 (Feb. 15, 2012).
No. 13-3853 5
At first the exemption was limited to churches and so ex-
cluded religious institutions that are incorporated as non-
profit (rather than as religious) institutions, such as Notre
Dame. The exclusion precipitated the filing in 2012 of a fed-
eral suit by the university against the government, claiming
that the contraceptive regulations infringed rights conferred
on the university by both the First Amendment and the Reli-
gious Freedom Restoration Act. That suit was dismissed on
standing and ripeness grounds, the government having
promised that Notre Dame wouldn’t have to comply with
the regulations for one year, during which new regulations
would be issued. University of Notre Dame v. Sebelius, 2012
WL 6756332, at *3–4 (N.D. Ind. Dec. 31, 2012); see “Certain
Preventive Services Under the Affordable Care Act,” 77 Fed.
Reg. 16501, 16502–03 (Mar. 21, 2012). The new regulations
were issued as promised—and as expected they enlarged the
exemption. See “Coverage of Certain Preventive Services
Under the Affordable Care Act,” 78 Fed. Reg. 39870, 39875–
90 (July 2, 2013); 29 C.F.R. § 2590.715-2713A(a); 45 C.F.R.
§ 147.131(b). As a result, Notre Dame now came within its
scope.
But to exercise its right conferred by the new regulations
to opt out of having to pay for contraceptive coverage either
directly (with or without the administrative assistance of a
third-party administrator, such as Meritain) or through a
health insurer, such as Aetna, the university had to fill out
“EBSA Form 700—Certification.” See 45 C.F.R.
§ 147.131(b)(4). The form (www.dol.gov/ebsa/pdf/preventive
serviceseligibleorganizationcertificationform.pdf) is short, its
meat the following sentence: “I certify that, on account of re-
ligious objections, the organization opposes providing cov-
erage for some or all of any contraceptive services that
6 No. 13-3853
would otherwise be required to be covered; the organization
is organized and operates as a nonprofit entity; and the or-
ganization holds itself out as a religious organization.” The
form states that “the organization or its plan must provide a
copy of this certification to the plan’s health insurance issuer
(for insured health plans) or a third party administrator (for
self-insured health plans) in order for the plan to be accom-
modated with respect to the contraceptive coverage re-
quirement.” So Notre Dame, if it decided to sign the exemp-
tion form, would have to give copies to both Aetna and Mer-
itain.
As noted at the outset of this opinion, the Affordable
Care Act requires providers of health insurance (including
third-party administrators of self-insured health plans, even
though they are conduits rather than ultimate payors of plan
benefits) to provide contraceptive coverage for women. See
also 45 C.F.R. §§ 147.131(c)(2)(i)(B), (ii); 29 C.F.R. § 2590.715-
2713A(b)(3). The exemption form if signed by Notre Dame
and sent to Aetna and Meritain would therefore inform them
that since Notre Dame was not going to pay for contracep-
tive coverage of its students and staff, Aetna and Meritain
would have to pay. Aetna (including its Meritain subsidiary)
has neither religious nor financial objections to paying for
contraception. Regarding the cost to these companies, the
government will reimburse at least 110 percent of the third-
party administrator’s (Meritain’s) costs, 45 C.F.R.
§ 156.50(d)(3), while Aetna can expect to recoup its costs of
contraceptive coverage from savings on pregnancy medical
care (since there will be fewer pregnancies if contraception is
more broadly available, at no cost, to Notre Dame’s female
employees and students) as well as from other regulatory
No. 13-3853 7
offsets. See “Coverage of Certain Preventive Services Under
the Affordable Care Act,” supra, 78 Fed. Reg. at 39877–78.
The regulations required Aetna and Meritain, if Notre
Dame signed and sent the exemption form—but not Notre
Dame—to inform the university’s female employees and
students that those companies would be covering their con-
traceptive costs. See 26 C.F.R. § 54.9815-2713A(d); 29 C.F.R.
§ 2590.715-2713A(d). The companies could either “provide
payments for contraceptive services” themselves or, alterna-
tively, “arrange for an insurer or other entity to provide
payments for” those services, but they could not “impos[e]
any cost-sharing requirements (such as a copayment, coin-
surance, or a deductible), or impos[e] a premium, fee, or
other charge, or any portion thereof, directly or indirectly,
on the eligible organization, the group health plan, or plan
participants or beneficiaries.” 29 C.F.R. §§ 2590.715-
2713A(b)(2), (c)(2).
The regulations thus sought an accommodation between
the secular interests that had motivated the requirement to
provide contraceptive services to women free of charge and
the interests of religious objectors. Accommodation is con-
sistent with the balancing act required by the Religious
Freedom Restoration Act, which as we noted requires con-
sideration of “substantial burden” (on the institution unwill-
ing to provide contraceptive services), a “compelling gov-
ernmental interest” in that provision, and the “least restric-
tive means” that is feasible for realizing the government’s
interest.
When the accommodation was promulgated in July of
2013, Notre Dame did not at first bring a new suit (remem-
ber that its previous suit, brought when the university was
8 No. 13-3853
excluded from opting out of contraceptive coverage, had
been dismissed on jurisdictional grounds, and those grounds
were irrelevant to a suit challenging the new regulations).
Not until December 2013 did the university file the present
suit, challenging the accommodation. The delay in suing was
awkward, since the regulations were to take effect with re-
spect to the employee health plan—and did take effect—on
January 1, 2014. “Coverage of Certain Preventive Services
Under the Affordable Care Act,” supra, 78 Fed. Reg. at 39889.
(The student health plan, provided by Aetna, had until Au-
gust 2014 to comply. See id.; University of Notre Dame,
2013–2014 Student Injury and Sickness Insurance Plan 3, 5,
http://uhs.nd.edu/assets/108455/nd_brochure_1314.pdf.)
With the January deadline for compliance looming, the
university, less than a week after filing its second suit on De-
cember 3, 2014, asked the district court to issue a preliminary
injunction that would prevent the government from enforc-
ing the regulation against it pending a trial. The district
judge denied the motion on December 20, and Notre Dame
filed its appeal from that denial the same day. On December
30 we denied the university’s emergency motion for an in-
junction pending appeal. The next day—the last day before
it would be penalized for violating the regulations—the uni-
versity signed EBSA Form 700 and thereby opted out of
providing contraceptive coverage for its employees. On Jan-
uary 28 it filed with us a second appeal from the denial of
the preliminary injunction that it had sought. Later it signed
the same form regarding Aetna.
The lawsuit had been only a few weeks old when Notre
Dame appealed, and so the district judge suspended all pro-
ceedings in his court pending our resolution of the appeal
No. 13-3853 9
(which as just noted had become two appeals). The parties
had thus had only a slender window in which to present ev-
idence, and very little had been presented. Because of Notre
Dame’s focus on obtaining relief at the appellate level, there
has been no resumption of proceedings in the district court,
and as a result there is very little evidence in the record be-
fore us. That is one reason why, in a decision issued on Feb-
ruary 21, 2014, we declined (with one member of the panel
dissenting) to reverse the district judge’s denial of the pre-
liminary injunction sought by Notre Dame. University of
Notre Dame v. Sebelius, 743 F.3d 547 (7th Cir. 2014). A few
months later, in an almost identical case, the Sixth Circuit
also ruled in favor of the government, Michigan Catholic Con-
ference & Catholic Family Services v. Burwell, 755 F.3d 372 (6th
Cir. 2014), vacated and remanded, 2015 WL 1879768 (April
27, 2015), and afterward was joined by the D.C. Circuit in
Priests for Life v. U.S. Dept. of Health & Human Services, supra.
Notre Dame continued filing appellate petitions, the
most notable being a petition for certiorari, granted by the
Supreme Court on March 9 of this year in an order (Universi-
ty of Notre Dame v. Burwell, 135 S. Ct. 1528) that states in its
entirety: “On petition for writ of certiorari to the United
States Court of Appeals for the Seventh Circuit. Petition for
writ of certiorari granted. Judgment vacated, and case re-
manded to the United States Court of Appeals for the Sev-
enth Circuit for further consideration in light of Burwell v.
Hobby Lobby Stores, Inc., 573 U.S. ___, 134 S.Ct. 2751 (2014).”
With the case now back in this court, the parties filed posi-
tion statements, after which we heard oral argument for an
hour and fifty minutes. The discussion of issues that follows
in this opinion is based on the position statements and oral
10 No. 13-3853
argument, on portions of our original opinion, and on the
Hobby Lobby decision.
Our previous opinion had expressed puzzlement about
what exactly the university wanted us to enjoin. It had by
that time signed EBSA Form 700 and sent copies to Aetna
and Meritain, thus obtaining the statutory accommodation,
and the companies had notified Notre Dame’s employees
and students that they (the companies, not the university)
would be providing contraceptive coverage. We now have
(we think) a clearer idea of what the university wants. It
wants us to enjoin the government from forbidding Notre
Dame to bar Aetna and Meritain from providing contracep-
tive coverage to any of the university’s students or employ-
ees. Because of its contractual relations with the two compa-
nies, which continue to provide health insurance coverage
and administration for medical services apart from contra-
ception as a method of preventing pregnancy, Notre Dame
claims to be complicit in the sin of contraception. It wants to
dissolve that complicity by forbidding Aetna and Meritain—
with both of which, to repeat, it continues to have contractu-
al relations—to provide any contraceptive coverage to Notre
Dame students or staff. The result would be that the stu-
dents and staff currently lacking coverage other than from
Aetna or Meritain would have to fend for themselves, seek-
ing contraceptive coverage elsewhere in the health insurance
market.
Notre Dame does not forbid its students or staff to use
contraception or to obtain reimbursement from health insur-
ance companies for their purchase of contraceptives. Its ob-
jection that it asks us to ratify by issuing a preliminary in-
junction is to Aetna’s and Meritain’s being legally obligated
No. 13-3853 11
to make contraceptive coverage available to Notre Dame
students and staff. It regards its contractual relationship with
those companies as making the university a conduit between
the suppliers of the coverage and the university’s students
and employees. In the university’s words, the contraception
regulation imposes a substantial burden on it by forcing the
university to “identify[] and contract[] with a third party
willing to provide the very services Notre Dame deems ob-
jectionable.”
But the scanty record contains no evidence to support the
conduit theory. Although Notre Dame is the final arbiter of
its religious beliefs, it is for the courts to determine whether
the law actually forces Notre Dame to act in a way that
would violate those beliefs. As far as we can determine from
the very limited record, the only “conduit” is between the
companies and Notre Dame students and staff; the universi-
ty has stepped aside. Thus it tells its students (and we as-
sume its staff as well) that “the University of Notre Dame
honors the moral teachings of the Catholic Church. There-
fore, for example, University Health Services may prescribe
contraceptive medications to treat approved medical condi-
tions, but not to prevent pregnancy. To comply with federal
law, Aetna Student Health provides coverage for additional
women’s health products or procedures that the University
objects to based on its religious beliefs. This coverage is sepa-
rate from Notre Dame. Students enrolled in Aetna Student
Health may call Aetna customer service at 877-378-9492 for
more information. Students not covered by Aetna Student
Health should check with their own insurance plans regard-
ing federally-mandated women’s health coverage.” Univer-
sity of Notre Dame Health Services, “FAQ-Aetna Student
Health,” http://uhs.nd.edu/insurance-billing/faq-aetna-stude
12 No. 13-3853
nt-health-ans/ (emphasis added). There thus is no suggestion
that Notre Dame is involved at all in Aetna’s and Meritain’s
contraception coverage.
When the case was last before us, in 2014, the university’s
lawyer had similarly argued that Notre Dame’s health plans
were the “conduit” through which the employees and stu-
dents obtained contraceptive coverage, making Notre Dame
complicit in sin. But the lawyer also had said that his client
would have no problem if each of its female employees
signed and mailed to Meritain (and its students mailed to
Aetna) a form saying “I have insurance through Notre
Dame, but the university won’t cover contraceptive services,
so now you must cover them.” It’s difficult to see how that
would make the health plan any less of a “conduit” between
Notre Dame and Aetna/Meritain.
It’s not even clear that by forcing Aetna/Meritain to pro-
vide Notre Dame’s students and staff with contraception
coverage the government is forcing Notre Dame to do busi-
ness with an entity that is providing an objectionable service
to the Notre Dame community. For the government author-
izes a third-party administrator to “arrange for an issuer or
other entity” to pay for contraception coverage and bill the
expense to the government. 29 C.F.R. § 2590.715-
2713A(b)(2)(ii). Notre Dame thus could ask Meritain to out-
source contraception coverage for both students and staff to
an entity that does no business with Notre Dame. The uni-
versity would have no contractual relationship with that en-
tity and so would not be involved even indirectly in the pro-
vision of contraceptive coverage to its students and employ-
ees.
No. 13-3853 13
A further problem with Notre Dame’s quest for a prelim-
inary injunction is the absence from the record of its con-
tracts with Aetna and Meritain. We are not told what the du-
ration of the contracts is, whether or in what circumstances
they are terminable by Notre Dame before their expiration
date, or what the financial consequences to the companies
might be given that the federal government reimburses
health insurers’ contraception payouts generously. So far as
contraception is concerned, health insurers are merely in-
termediaries between the federal government and the con-
sumers. We are led in turn to wonder whether the govern-
ment—which rarely provides health services directly to pa-
tients but rather uses health care companies to provide those
services as the government’s agents—might without offend-
ing Notre Dame’s religious scruples hire Aetna and Meritain
to provide that coverage. That would be simpler and more
direct than the government’s shopping for other health in-
surance companies to be its agents in dealing with Notre
Dame’s students and staff.
It is irregular, moreover, for a court to be asked to enjoin
nonparties. For all we know, Aetna and its subsidiary value
the opportunity to provide contraception coverage with
generous reimbursement by the federal government. (The
record, consistent with its sparseness, contains almost noth-
ing about Aetna or Meritain.) Their business is providing
health care, health care administration, and health insurance,
and Notre Dame wants unilaterally to exclude them from a
possibly lucrative chunk of that business. When the universi-
ty, albeit under protest, signed and mailed the exemption
form, Aetna and Meritain reasonably believed that they had
an economic opportunity—that for the first time they would
be providing contraceptive coverage to the Notre Dame
14 No. 13-3853
community. (Remember that before the Affordable Care Act
was passed they provided no such coverage to the commu-
nity.) They have had no opportunity to intervene in the dis-
trict court, where proceedings have been suspended pend-
ing Notre Dame’s appellate submissions culminating in this
case.
Notre Dame takes particular umbrage at the regulation
under the Affordable Care Act which states that “if the eligi-
ble organization provides a copy of the self-certification
[EBSA Form 700] of its objection to administering or funding
any contraceptive benefits … to a third party administrator
[Meritain], the self-certification shall be an instrument under
which the plan is operated, [and] shall be treated as a desig-
nation of the third party administrator as the plan adminis-
trator under section 3(16) of ERISA for any contraceptive
services required to be covered under § 2590.715-
2713(a)(1)(iv) of this chapter to which the eligible organiza-
tion objects on religious grounds.” 29 C.F.R. § 2510.3-16(b).
(What a mouthful!) Notre Dame treats this regulation as
having made its mailing of the certification form to its third-
party administrator (Meritain) the cause of the provision of
contraceptive services to its employees in violation of its re-
ligious beliefs. That’s not correct. Since there is now a federal
right, unquestioned by Notre Dame, to contraceptive ser-
vices, the effect of the university’s exercise of its religious
exemption is to throw the entire burden of administration on
the entities (Aetna and Meritain) that now provide contra-
ceptive coverage to Notre Dame’s students and staff. The
university is permitted to opt out of providing federally
mandated contraceptive services, and the federal govern-
ment determines (enlists, drafts, conscripts) substitute pro-
viders, and it is not surprising that they are the providers
No. 13-3853 15
who already are providing health services to university stu-
dents and staff.
The university argues that by conditioning its right not to
provide contraceptive coverage for its students and staff on
its signing EBSA Form 700 and giving copies to Aetna and
Meritain, the government has, in violation of RFRA, “sub-
stantially burden[ed] a person’s exercise of religion” (the
university is a nonprofit corporate “person”; cf. 1 U.S.C. § 1;
Korte v. Sebelius, 735 F.3d 654, 674 (7th Cir. 2013)), and that
no “compelling governmental interest” justifies that burden-
ing. It notes that the Catholic concept of “scandal” forbids
the encouragement (equivalent to aiding and abetting) of
sinful acts; a 2013 affidavit by Notre Dame’s executive vice-
president defines “‘scandal’ … in the theological context …
as encouraging by words or example other persons to en-
gage in wrongdoing.” Of course in invoking the exemption
the university also throws the entire administrative and fi-
nancial burden of providing contraception on the health in-
surer and third-party administrator, which are secular or-
ganizations that unlike the university have no aversion to
providing contraceptive coverage. The result is to lift a bur-
den from the university’s shoulders.
Alternatively Notre Dame charges that the government
has “coerce[d] [it] into serving as the crucial link between
contraceptive providers and recipients.” That’s a recursion
to the “conduit” theory, and ignores that as a result of the
university’s signing the exemption form, students and staff
now deal directly with Aetna and Meritain, bypassing Notre
Dame. It is federal law, rather than the religious organiza-
tion’s signing and mailing the form, that requires health-care
insurers, along with third-party administrators of self-
16 No. 13-3853
insured health plans, to cover contraceptive services. By re-
fusing to fill out the form Notre Dame would subject itself to
penalties, but Aetna and Meritain would still be required to
provide the services to the university’s students and em-
ployees.
Notre Dame says no—that had it not filled out the form,
Meritain wouldn’t have been authorized to provide contra-
ceptive services because it would have been a “plan admin-
istrator” under section 3(16) of ERISA, 29 U.S.C. § 1002(16),
and thus not a plan fiduciary entitled to make expenditures
(as for contraception coverage) on behalf of the plan. The
university argues that it alone is authorized to designate a
plan fiduciary, 29 U.S.C. § 1102(a)(2), and that it made that
designation in the form that it mailed to the company and
thus is complicit in the provision of contraceptives to the
university’s staff. This version of Notre Dame’s “triggering”
argument does not apply to Aetna, which is the students’
health insurer and so already a plan fiduciary, 29 U.S.C.
§ 1002(21)(A), required therefore by the Affordable Care Act
to provide contraceptive coverage to plan members whether
or not Notre Dame signs the form. 45 C.F.R. §§ 147.
130(a)(1)(iv), 147.131(f). Even as to Meritain, although “many
agreements between third party administrators and plan
sponsors prohibit third party administrators from serving as
fiduciaries,” “Coverage of Certain Preventive Services Un-
der the Affordable Care Act,” supra, 78 Fed. Reg. at 39879,
“many” is not “all” or even “most.” Notre Dame has pre-
sented no evidence that its contract with Meritain forbids the
latter to be a plan fiduciary (remember that the contract is
not in the record).
No. 13-3853 17
Nor has the university been ordered to name Meritain as
a plan fiduciary. Rather, the signed form “shall be treated as a
designation of the third party administrator as the plan ad-
ministrator under section 3(16) of ERISA for any contracep-
tive services required to be covered.” 29 C.F.R. § 2510.3-16(b)
(emphasis added). Treated and designated by whom? By the
government. The delivery of a copy of the form to Meritain
reminds it of an obligation that the law, not the university,
imposes on it—the obligation to pick up the ball if Notre
Dame decides, as is its right, to drop it. Notre Dame’s sign-
ing the form no more “triggers” Meritain’s obligation to
provide contraceptive services than a tortfeasor’s declaring
bankruptcy “triggers” his co-tortfeasors’ joint and several
liability for damages. Meritain must provide the services no
matter what; signing the form simply shifts the financial
burden from the university to the government, as desired by
the university.
Suppose the United States, like the United Kingdom,
Canada, and many other foreign nations, had a “single pay-
er” health care system. In such a system, the government
pays the cost of specified medical services (if the United
States had such a system, it would be the equivalent of Med-
icare for everyone), rather than employers, health insurers,
and patients, though patients may be charged directly for
some of the expense of the medical care provided by the sys-
tem, as distinct from indirectly through taxes. If our hypo-
thetical single-payer system paid the full expense of female
contraceptives, Notre Dame couldn’t argue that the system
placed a “substantial burden” on the university’s compli-
ance with Catholic doctrine, for Notre Dame does not deny
the existence of the legitimate secular interests noted at the
outset of this opinion that justify a federal program of pay-
18 No. 13-3853
ing for contraceptive expenses. (For a summary of those in-
terests, see “Coverage of Certain Preventive Services Under
the Affordable Care Act,” supra, 78 Fed. Reg. at 39872–73.) It
even advised the district court that to “achieve its asserted
interests without forcing Notre Dame to violate its religious
beliefs” the government could “directly provide contracep-
tive[s]” to the university’s staff and students or, alternative-
ly, “directly offer insurance coverage for contraceptive ser-
vices.” The consequence in either case would be a single-
payer system for contraceptives. The main difference be-
tween such a system and the Affordable Care Act is that un-
der the Act the government, instead of providing medical
services directly, uses private insurance providers and
health plan administrators as its agents to provide medical
services subsidized by the government.
If the government is entitled to require that female con-
traceptives be provided to women free of charge, it is un-
clear how signing the form that declares Notre Dame’s au-
thorized refusal to pay for contraceptives for its students or
staff, and its mailing the authorization document to those
companies, which under federal law are obligated to pick up
the tab, could be thought to “trigger” the provision of con-
traceptive coverage.
But we must—we have been ordered by the Supreme
Court to—consider the bearing on our analysis of Burwell v.
Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014). The case (an-
ticipated by our decision in Korte v. Sebelius, supra) involved
three closely held for-profit corporations whose owners ob-
jected on religious grounds to having (by virtue of the con-
traception provisions of the Affordable Care Act and the
regulations issued under it) to provide insurance coverage
No. 13-3853 19
for their employees’ purchase of contraceptives that can de-
stroy a fertilized ovum, such as “morning after” pills and
intrauterine contraceptive devices (IUDs); the owners’ objec-
tions were thus objections not to contraceptives as such but
to what they considered to be abortifacients. The question
was whether RFRA should be interpreted to apply to nonre-
ligious institutions owned by persons having sincere reli-
gious objections to their institutions’ having to comply with
the ACA’s contraceptive regulations. The Court held that it
should be so interpreted, and therefore the institutions
would be entitled to the “accommodation,” that is, to fill out
form FSBA 700 and mail it to their health insurers: “HHS has
already established an accommodation for nonprofit organi-
zations with religious objections. Under that accommoda-
tion, the organization can self-certify that it opposes provid-
ing coverage for particular contraceptive services. If the or-
ganization makes such a certification, the organization’s in-
surance issuer or third-party administrator must ‘[e]xpressly
exclude contraceptive coverage from the group health insur-
ance coverage provided in connection with the group health
plan’ and ‘[p]rovide separate payments for any contracep-
tive services required to be covered’ without imposing ‘any
cost-sharing requirements … on the eligible organization,
the group health plan, or plan participants or beneficiaries.’”
134 S. Ct. at 2782 (citations and cross-reference omitted). This
of course is what Notre Dame did in our case; the companies
in the Hobby Lobby case did it without protesting—which
shows how different the two cases are. The companies in
Hobby Lobby requested the accommodation; Justice Kenne-
dy, concurring in Hobby Lobby, described the accommodation
as an “existing, recognized, workable, and already imple-
mented framework to provide coverage” for employees of
20 No. 13-3853
“an objecting employer.” 134 S. Ct. at 2786. Notre Dame, in
contrast, deems the accommodation a violation of its reli-
gious rights.
The Supreme Court did leave open in Hobby Lobby the
possibility that the accommodation sought and obtained
there would not prevent religious beliefs or practices from
being substantially burdened in some cases. But it gave no
examples; perhaps it remanded our case for further consid-
eration of that possibility. We’ve suggested in this opinion
that Notre Dame could as an alternative to the official ac-
commodation direct Meritain to delegate to companies that
have no contractual relationship with Notre Dame (as Aetna
and Meritain do) the provision of contraception coverage to
the university’s students and staff. Then Notre Dame would
be outside the loop.
Notre Dame does note possible alternatives, such as a
single-payer system in which Notre Dame women would
apply directly to the government for reimbursement of their
costs of buying contraceptives. But at this stage in the litiga-
tion, with no trial having been conducted, we have no basis
for concluding that any of the university’s proposed alterna-
tives would avoid imposing an unreasonable cost either on
the government or on Notre Dame’s students and employ-
ees. The government, as we said, typically provides medical
services, including reimbursement of costs incurred by med-
ical providers, indirectly, through health insurance compa-
nies such as Aetna. Does Notre Dame expect the government
to establish a federal contraception agency to which Notre
Dame women should send the bills for the contraceptives
they buy? Alternatively, must every woman who wants re-
imbursement of contraceptive costs pick a health insurance
No. 13-3853 21
company, maybe on the basis of a Google search, to contract
with? This seem to be what the university has in mind when
it says in its position statement that it has no “objection to a
system in which its employees or students coordinated with
an independent insurer to provide coverage that ‘would not
involve Notre Dame’” (emphasis in original). But because
it’s a bother for a person to shop for the “best” contraceptive
coverage, the proposed solution would reduce the number
of women with such coverage, compared to their being enti-
tled to such coverage automatically by virtue of being Notre
Dame students or employees. See Brigitte C. Madrian &
Dennis F. Shea, “The Power of Suggestion: Inertia in 401(k)
Participation and Savings Behavior,” 116 Quarterly Journal of
Economics 1149 (2001), comparing employee participation in
employer-sponsored savings plans under “opt-in” and “opt-
out” enrollment and finding that there is much greater par-
ticipation when one has to opt out in order to forgo it.
The Supreme Court pertinently observed in its Hobby
Lobby opinion that the official accommodation (the accom-
modation that Notre Dame wants to escape from) would not
impede “women’s receipt of benefits by requiring them to
take steps to learn about, and to sign up for, a new govern-
ment funded and administered health benefit.” 134 S. Ct. at
2783. So far as we can tell from an undeveloped record, the
alternatives suggested by Notre Dame would impede the
receipt of such benefits.
Notre Dame says in its position statement that the gov-
ernment has “many alternative ways of providing free con-
traceptive coverage without using the health plans of object-
ing religious non-profits as the conduit” (emphasis added).
Put to one side the question in what sense students and staff
22 No. 13-3853
dealing directly as they now do with Aetna and Meritain are
“using” Notre Dame’s health plans—plans that exclude con-
traception coverage. Our present concern is that Notre Dame
has thus far failed to explain the “many alternative ways”
(elsewhere it refers to “the myriad ways” or “any number of
ways” in which the government can provide free contracep-
tive coverage to Notre Dame’s students and staff)—and it
admits that it (that is, Notre Dame) “opposes many of these
alternatives on policy grounds.”
It lists the following “myriad ways”: The government
could
(i) directly provide contraceptive services to the few indi-
viduals who do not receive it under their health plans;
(ii) offer grants to entities that already provide contracep-
tive services at free or subsidized rates and/or work
with these entities to expand delivery of the services;
(iii) directly offer insurance coverage for contraceptive ser-
vices;
(iv) grant tax credits or deductions to women who pur-
chase contraceptive services; or
(v) allow Notre Dame and other Catholic non-profit or-
ganizations to comply with the Mandate [what we are
calling the accommodation or official accommodation]
by providing coverage for methods of family planning
consistent with Catholic beliefs (i.e., Natural Family
Planning training and materials).
Number v is not contraception at all; iv elides all consid-
eration of the costs and complications of the administrative
machinery for providing tax incentives to consumers; op-
tions i through iii similarly would involve cumbersome ad-
ministrative machinery and at the same time impose a bur-
No. 13-3853 23
den on Notre Dame’s female students and employees who
want to obtain contraceptives.
Nor does Notre Dame explain how a government pro-
gram that directly or indirectly provided contraception cov-
erage to Notre Dame employees—as Notre Dame suggests—
would avoid complicity in sin. Were Notre Dame to hire an
unemployed person who, by virtue of becoming employed
by Notre Dame, obtained contraception coverage for the first
time, would not the university be “triggering” the new em-
ployee’s access to contraception?
We point out, finally, that a religious institution does not
have to sign FSBA 700 in order to exempt itself from the re-
quirement of providing contraceptive coverage to employees
and (if the institution is a college or university) students. It
can in the alternative notify the Department of Health and
Human Services. That was the alternative chosen by another
institution of higher learning that was unwilling to provide
contraceptive coverage or even sign the FSBA 700. In
Wheaton College v. Burwell, 134 S. Ct. 2806 (2014) (per curi-
am), the Supreme Court said that “if the applicant informs
the Secretary of Health and Human Services in writing that
it is a nonprofit organization that holds itself out as religious
and has religious objections to providing coverage for con-
traceptive services, the respondents are enjoined from en-
forcing against the applicant the challenged provisions of the
Patient Protection and Affordable Care Act and related regu-
lations pending final disposition of appellate review. To
meet the condition for injunction pending appeal, the appli-
cant need not use the form prescribed by the Government,
EBSA Form 700, and need not send copies to health insur-
ance issuers or third-party administrators.” We assume that
24 No. 13-3853
Notre Dame could ask Aetna and Meritain to ignore its
submission to them of the signed FSBA 700, and instead
could itself inform the Secretary of Health and Human Ser-
vices of its desire to be exempt on religious grounds from
providing contraceptive coverage; undoubtedly the Secre-
tary would agree.
Notre Dame tells us that it likewise objects to that alter-
native. But based on the sparse record before us, there is a
strong argument that given the government’s legitimate in-
terest in the provision of contraceptive coverage to women
without cost to them, notice to the government would strike
the proper balance between legitimate governmental and
sincere religious interests. That was the accommodation
sought and received by Wheaton College.
We are put in mind of Bowen v. Roy, 476 U.S. 693 (1986).
Roy objected that any use of his daughter’s Social Security
number would substantially burden his religious beliefs be-
cause he believed that use of that unique identifier would
harm her spirit. He wanted an accommodation that would
relieve him of the burden of providing the number in his
applications for welfare and food stamps and prevent the
government from using the number in its internal admin-
istration. The Supreme Court refused. It said that “Roy may
no more prevail on his religious objection to the Govern-
ment’s use of a Social Security number for his daughter than
he could on a sincere religious objection to the size or color
of the Government’s filing cabinets.” Id. at 700. The very
word “accommodation” implies a balance of competing in-
terests; and when we compare the burden on the govern-
ment or third parties of having to establish some entirely
new method of providing contraceptive coverage with the
No. 13-3853 25
burden on Notre Dame of simply notifying the government
that the ball is now in the government’s court, we cannot
conclude that Notre Dame has yet established its right to the
injunctive relief that it is seeking before trial. The mandate to
cover contraceptive care as part of any broad health insur-
ance package provided by employers (or in the case of edu-
cational institutions, students as well) was intended to min-
imize financial, administrative, and logistical obstacles to
such coverage. See 78 Fed. Reg. 39888 (July 2, 2013), rejecting
alternative proposals and explaining the importance of min-
imizing costs and logistical and administrative obstacles to
contraceptive coverage; see also Priests for Life v. U.S. Dept. of
Health & Human Services, supra, 772 F.3d at 265. All of Notre
Dame’s suggested alternatives would impose significant fi-
nancial, administrative, and logistical obstacles by requiring
women to sign up for separate coverage either with a gov-
ernment agency or with another private insurer. Such obsta-
cles were considered by the Supreme Court in Hobby Lobby
in support of the same accommodation that Notre Dame re-
fuses to accept.
We emphasize in closing the tentative character of the
analysis in this opinion. The record is insufficiently devel-
oped to enable us to rule definitively on Notre Dame’s
claims. The burden of establishing an entitlement to a pre-
liminary injunction was of course on the university, not on
the government. The burden has not been carried. Chief
Judge Simon’s denial of preliminary relief is therefore once
again
AFFIRMED.
26 No. 13-3853
HAMILTON, Circuit Judge, concurring. I join Judge Posner’s
opinion in full. Notre Dame is not entitled to preliminary in-
junctive relief at this point. While the ultimate decision on
the merits of this case remains uncertain, equitable consider-
ations weigh against a grant of a preliminary injunction now.
An injunction would disrupt the status quo and temporarily
cut off contraceptive coverage for hundreds or thousands of
women.
What this case needs now is a trial on the merits where
the relevant factual issues can be explored in depth. The lim-
ited factual record before us was made in the district court
on an emergency basis in December 2013. That record was
also made without the participation of the intervenors, who
would be affected most directly by the injunction Notre
Dame seeks. Since that time, also, the legal and factual land-
scapes shaping the issues have shifted a good deal.
Where the law is evolving rapidly and the facts are com-
plex, the better course is usually full exploration of the evi-
dence and thorough findings of fact by the district court, ra-
ther than reliance on sweeping legal doctrines and hypothe-
sized or assumed facts. See Lalonde v. Textron, Inc., 369 F.3d 1,
6 (1st Cir. 2004) (vacating in part dismissal of ERISA case
challenging actions of employee stock ownership plan and
allowing for factual development where law was “neither
mature nor uniform”); Doe v. Walker, 193 F.3d 42, 46 (1st Cir.
1999) (Boudin, J.) (vacating dismissal on issue with “im-
portant social and moral implications” where further factual
development might make it unnecessary to decide hard case
and in any event would be “likely to contribute to a more
sensitive assessment of what the law ‘is’ (which, absent deci-
No. 13-3853 27
sive precedent, means what it ‘should be’)”); Nelson v.
IPALCO Enterprises, Inc., 2005 WL 1924332, at *3 (S.D. Ind.
Aug. 11, 2005) (denying cross-motions for summary judg-
ment to allow further factual development where applicable
law was “emerging, controversial, and highly fact-
sensitive”). The district court is best suited for those respon-
sibilities even where—and perhaps especially where—the
appellate courts are still debating the applicable law.
For now, however, the Supreme Court has ordered us to
reconsider our earlier interlocutory decision in light of Bur-
well v. Hobby Lobby Stores, Inc., 573 U.S. —, 134 S. Ct. 2751
(2014). The accommodation for religious not-for-profits like
Notre Dame played a pivotal role in Hobby Lobby, but not in
a way that helps Notre Dame in this case. Hobby Lobby
Stores is a for-profit corporation that was not eligible for this
accommodation. The very existence of the accommodation
for religious not-for-profits, however, persuaded the Su-
preme Court that the government could achieve its purpose
of making contraceptives available to employees and their
families without infringing on Hobby Lobby’s religious be-
liefs. 134 S. Ct. at 2782.
The Court’s conclusion focused on how the accommoda-
tion allowed the employer to avoid paying for contraceptives
contrary to the owners’ religious beliefs while still making
them available to employees and their families in a conven-
ient and seamless way. In praising the accommodation, the
Court explained that the effect of the accommodation on
employees “would be precisely zero. Under that accommo-
dation, these women would still be entitled to all FDA-
approved contraceptives without cost sharing.” 134 S. Ct. at
2760. Justice Kennedy’s concurring opinion embraced the
28 No. 13-3853
accommodation as a fully satisfactory alternative for accom-
plishing the government’s objectives without infringing on
Hobby Lobby’s religious beliefs. 134 S. Ct. at 2786–87 (Ken-
nedy, J., concurring). He also made clear that neither he nor
the other Justices in the majority expected the government to
create “a whole new program or burden on the Govern-
ment” to provide the accommodation needed by the for-
profit employer-plaintiffs. Id.
The accommodation for religious not-for-profits thus
made it fairly easy for the Hobby Lobby Court to find that a
less restrictive and equally effective alternative was available
to accomplish the government’s purposes, which the Court
assumed were compelling. The Court’s solution was to ex-
tend the accommodation to religious owners of closely held
businesses.
What does Hobby Lobby teach us about this case? In de-
ciding Hobby Lobby, the Supreme Court was well aware of
pending lawsuits like this one, in which religious not-for-
profits have challenged the accommodation itself as violat-
ing their rights under the Religious Freedom Restoration
Act. The majority opinion referred to this category of cases
in footnote 9 and wrote later “We do not decide today
whether an approach of this type [i.e., the accommodation]
complies with RFRA for purposes of all religious claims.”
134 S. Ct. at 2782 & n.40.
Despite this inconclusive comment, it is useful to consid-
er in turn the three principal issues under RFRA in light of
the Court’s remand order after Hobby Lobby. Those issues are:
(1) “substantial burden” on the exercise of religion; (2) com-
pelling governmental interests; and (3) less restrictive alter-
natives.
No. 13-3853 29
1. Substantial Burden: Notre Dame reads Hobby Lobby as
resolving conclusively in its favor the issue whether the ac-
commodation substantially burdens its exercise of its reli-
gion. In Hobby Lobby, the Court found that the Affordable
Care Act’s requirements for contraceptive coverage by for-
profit employers substantially burdened the plaintiffs’ exer-
cise of religion. The employers were required by law to con-
tract and pay for contraceptive coverage to which the em-
ployers’ owners objected on sincere religious grounds. The
alternatives to compliance would have imposed stiff finan-
cial consequences, which the Court deemed a substantial
burden. 134 S. Ct. at 2776–77. Notre Dame faces essentially
the same financial consequences if it refuses to certify its eli-
gibility for the religious accommodation.
Notre Dame finds most helpful to its position the Hobby
Lobby rejection of the government’s argument that the role of
the employer in contracting and paying for contraceptive
coverage was too remote from an employee’s use of contra-
ceptives to impose a substantial burden on the exercise of
religion. Federal courts had no business addressing whether
the plaintiffs’ religious beliefs about their moral complicity
were reasonable. Id. at 2778. The Court explained:
This belief implicates a difficult and important
question of religion and moral philosophy,
namely, the circumstances under which it is
wrong for a person to perform an act that is in-
nocent in itself but that has the effect of ena-
bling or facilitating the commission of an im-
moral act by another. Arrogating the authority
to provide a binding national answer to this re-
ligious and philosophical question, HHS and
30 No. 13-3853
the principal dissent in effect tell the plaintiffs
that their beliefs are flawed. For good reason,
we have repeatedly refused to take such a step.
134 S. Ct. at 2778 (footnote omitted).
The accommodation for religious not-for-profits accepts
an employer’s religious beliefs and provides a mechanism to
provide coverage to employees and their families, while
making sure that the employer need not contract, arrange,
pay, or refer for the health care it finds objectionable on reli-
gious grounds. Notre Dame asserts, however, that the mere
act of requesting the exemption substantially burdens its re-
ligious exercise because it still has an attenuated role in caus-
ing its employees and students to receive the objectionable
coverage. Citing Hobby Lobby, Notre Dame asserts that its
opinion or belief is beyond the reach of a federal court, apart
from questions of sincerity.
It is not obvious that the reasoning of Hobby Lobby on the
substantial burden issue extends to this case. There are im-
portant differences between the cases: Notre Dame challeng-
es not the general rule but the accommodation itself, and it
attempts to prevent the government from arranging for a
substitute for the employer to pay for contraceptive care.
Notre Dame also contends, in effect, that its religious belief
can substitute for legal analysis regarding the operation of
federal law.
Any student of United States history learns the central
roles that religious faith and tolerance have played in the set-
tlement of this land and in the founding of the British colo-
nies and the modern States and the federal Republic. We
have a long tradition of governing in ways that accommo-
No. 13-3853 31
date the free exercise of religion. Special treatment of reli-
gious faith and practice abounds. From conscientious objec-
tor status in the military draft to federal and state tax codes,
from compulsory school attendance laws to school lunch
menus, from zoning law to employment law and even fish
and wildlife rules, our governments at every level have long
made room for religious faith by allowing exceptions from
generally applicable laws. Through such exceptions and ac-
commodations, we respect diverse faiths, and we govern
with reasonable compromises that avoid unnecessary fric-
tion between law and faith.
As we pointed out in our first opinion in this case, the
most extraordinary feature of this lawsuit is Notre Dame’s
claim that the process of requesting the accommodation is
itself a substantial burden on its religious exercise. Notre
Dame v. Sebelius, 743 F.3d 547, 557–58 (7th Cir. 2014). True,
there are rare cases in which courts have considered the pos-
sibility that an accommodation process itself might be too
prolonged, intrusive, ineffective, and/or otherwise burden-
some. See, e.g., Saints Constantine & Helen Greek Orthodox
Church, Inc. v. City of New Berlin, 396 F.3d 895 (7th Cir. 2005),
and cases cited there dealing with land-use decisions, and
United States v. Friday, 525 F.3d 938 (10th Cir. 2008), and cases
cited there, dealing with processes for seeking permits to kill
protected wildlife for use in Native American religious prac-
tices.
The accommodation in this case, however, poses no such
burdens. To take advantage of the accommodation, so that
Notre Dame can avoid contracting, paying, arranging, or re-
ferring for the objectionable contraceptive care, a university
official must only fill out a simple form asserting that Notre
32 No. 13-3853
Dame is a not-for-profit employer that objects on religious
grounds to the law’s contraceptive coverage requirements.
The official must then send the form to either the Depart-
ment of Health and Human Services or the insurer or third-
party administrator. Notre Dame has already done so, and it
need do nothing more.
As Judge Posner’s opinion explains, Bowen v. Roy, 476
U.S. 693 (1986), weighs against Notre Dame’s claim of a sub-
stantial burden here. Roy had objected on religious grounds
to the government’s use of his daughter’s Social Security
number to administer federal benefits for the family. The
Supreme Court rejected the challenge, holding: “The Free
Exercise Clause simply cannot be understood to require the
Government to conduct its own internal affairs in ways that
comport with the religious beliefs of particular citizens.” Id.
at 699.
Notre Dame’s position is analogous. At this point, Notre
Dame has requested the accommodation and provided the
government with contact information for Aetna and Mer-
itain. The government requires no further action from Notre
Dame. The government has informed Aetna and Meritain of
their federal obligations to provide contraceptive coverage
that Notre Dame has been exempted from providing. The
government’s steps to have others substitute for Notre Dame
are parallel to the internal procedures at issue in Roy.
Notre Dame disagrees, arguing that only it can answer
what it says is the religious question of whether its religious
exercise is substantially burdened by the government’s ac-
tions. But the Court rejected precisely that argument when it
was advanced by Roy. “The Federal Government’s use of a
Social Security number for Little Bird of the Snow does not
No. 13-3853 33
itself in any degree impair Roy’s ‘freedom to believe, ex-
press, and exercise’ his religion.” 476 U.S. at 700–01.
While the Court acknowledged that “Roy's religious
views may not accept this distinction between individual
and governmental conduct,” id. at 701 n.6, the Court con-
cluded that this was ultimately a legal question, not a reli-
gious one: “It is clear, however, that the Free Exercise Clause,
and the Constitution generally, recognize such a distinction;
for the adjudication of a constitutional claim, the Constitu-
tion, rather than an individual’s religion, must supply the
frame of reference.” Id. Under Roy, whether the government
is causing a substantial burden on a person’s religious exer-
cise is a question of federal law. Accord, Geneva College v.
Secretary of the United States Dep’t of Health and Human Ser-
vices, 778 F.3d 422, 436–38 (3rd Cir. 2015) (courts must con-
sider substantial burden issue under RFRA); Priests for Life v.
Burwell, 772 F.3d 229, 247–49 (D.C. Cir. 2014); Michigan Catho-
lic Conference v. Burwell, 755 F.3d 372, 385–87 (6th Cir. 2014),
remanded, 2015 WL 1879768 (April 27, 2015).
Notre Dame argues, however, that the consequence of its
certification and exemption imposes the substantial burden.
The consequence is that federal law then requires other enti-
ties (Meritain and Aetna) to step in as substitutes to provide
contraceptive coverage directly to Notre Dame employees
and students, respectively, and to their families. Notre Dame
objects to this consequence on religious grounds and says it
could avoid this consequence only by incurring burdensome
financial penalties.
The problem with this argument is that regardless of
Notre Dame’s choice—to provide contraceptive coverage, to
invoke the accommodation for religious not-for-profits, or
34 No. 13-3853
even not to provide any health insurance coverage at all—
those employees and students would receive contraceptive
coverage through some form of health insurance. As we and
other circuits have pointed out, their coverage results from
federal law, not from Notre Dame’s actions.
This is an issue not of moral philosophy but of federal
law. Federal courts are not required to treat Notre Dame’s
erroneous legal interpretation as beyond their reach—even if
that interpretation is also a sincere and religious belief. Notre
Dame is not entitled to nullify the law’s benefits for others
based on this mistake of law, which is the foundation of its
claim of a substantial burden. 1
As in Roy, Notre Dame’s “religious views may not accept
this distinction.” 476 U.S. at 701 n.6. But the courts cannot
substitute even the most sincere religious beliefs for legal
analysis. To do so would “afford an individual a right to dic-
tate the conduct of the Government’s internal procedures,”
which the Court has expressly rejected. Id. at 700.
A comparison to the military draft helps to illustrate the
extraordinary nature of Notre Dame’s objection to the gov-
ernment’s accommodation and finding of substitutes for it.
Federal law allows for exemption from military training and
service for any person “who, by reason of religious training
and belief, is conscientiously opposed to participation in war
in any form.” 50 App. U.S.C. § 456(j). (The process for claim-
ing conscientious objector status is far more demanding than
1 Accord, Geneva College, 778 F.3d at 437 (3rd Cir. 2015); Priests for
Life, 772 F.3d at 252; Michigan Catholic Conference, 755 F.3d at 387; 78 Fed.
Reg. 39870, 39876 (July 2, 2013) (final rules explaining that obligations of
insurers and third-party administrators are imposed by federal law).
No. 13-3853 35
the accommodation to which Notre Dame objects, but that’s
not my focus here.) Suppose a person’s religious faith leads
him to believe that it is wrong for people to engage in war.
He applies for conscientious objector status. The local draft
board grants him the exemption.
But suppose a board member then points out that be-
cause the objector will not be drafted, someone else will be
drafted in his place. He objects again, asserting, much as
Notre Dame does here, that if his exemption means someone
else must substitute for him to engage in wrongdoing, he
will be morally responsible for it and his religious exercise
will be substantially burdened. Citing RFRA, he therefore
demands that he be exempted without a substitute.
As we said in our prior opinion, that seems a “fantastic
suggestion.” Notre Dame, 743 F.3d at 556. Yet Notre Dame
has embraced that reasoning. It argues that national catas-
trophe could be avoided by treating the substitute draftee as
the least restrictive means to achieve a compelling govern-
mental purpose. See Notre Dame Rule 54 Statement at 11
n.4. This seems wrong in two fundamental ways.
First, for reasons explained above, the arrangements the
government makes to find substitutes for those given the
benefit of a religious exemption are imposed as a matter of
federal law, not as a result of the exemption itself. The party
claiming the exemption is not entitled to raise a religious ob-
jection to the arrangements the government makes for a sub-
stitute. See Geneva College, 778 F.3d at 439 n.14 (making simi-
lar point with example of employee who asks for time off to
accommodate his religion, but who then objects to employ-
er’s substitution for him). And not coincidentally, the gov-
ernment’s ability to find substitutes fits well with the Su-
36 No. 13-3853
preme Court’s decision, just a few days after it decided Hob-
by Lobby, in a RFRA case much more similar to this one. In
Wheaton College v. Burwell, 134 S. Ct. 2806 (2014), the Court
issued an interim order allowing another religious college to
invoke the exemption by notifying the government rather
than its insurer. The Court pointed out: “Nothing in this or-
der precludes the Government from relying on this notice, to
the extent it considers it necessary, to facilitate the provision
of full contraceptive coverage under the Act.” Id. at 2807. In
other words, the Court’s order allowed the government to
pass the notice on to the insurer so that the insurer could
comply with its obligations under federal law. That order left
Wheaton College essentially where Notre Dame is now.
Second, if even such mistaken and attenuated objections
were sufficient to invoke RFRA’s stringent least-restrictive-
means test, fair governance where the law imposes burdens
on individuals would become nearly impossible. In the draft
context, the conscientious objector could argue, much as
Notre Dame does here, in favor of an all-volunteer military
as a less restrictive means. Should arguments for such radi-
cal restructuring of government programs be sufficient un-
der RFRA? And in contexts not involving national security
and defense, would government accommodations of religion
that require finding substitutes all have to satisfy compel-
ling-interest, least-restrictive-means scrutiny?
For these reasons, RFRA should not be understood to
recognize such mistaken views about substitutes as “sub-
stantial burdens” on religious belief. Accord, Geneva College,
778 F.3d at 438; Priests for Life, 772 F.3d at 251, 256; Michigan
Catholic Conference, 755 F.3d at 388; see generally Bowen v.
Roy, 476 U.S. at 699–700; Kaemmerling v. Lappin, 553 F.3d 669,
No. 13-3853 37
679–80 (D.C. Cir. 2008) (prisoner’s religious exercise not bur-
dened by government’s analysis of DNA taken from his tis-
sue sample).
2. Compelling Governmental Interest: Even if Notre Dame
can ultimately show a substantial burden on its religious be-
lief, the next major issue under RFRA is whether imposing
the burden on Notre Dame furthers a “compelling govern-
mental interest.” 42 U.S.C. § 2000bb–1. In the abbreviated
district court proceedings back in December 2013, the federal
government did not contest this issue because of our ruling
in Korte v. Sebelius, 735 F.3d 654 (7th Cir. 2013), though the
government preserved its right to dispute the issue in the
future.
Hobby Lobby now shows that the government has a strong
argument on the compelling-interest issue. The Hobby Lobby
majority assumed that the burden on those plaintiffs would
serve a compelling governmental interest. 134 S. Ct. at 2780.
Justice Kennedy’s concurring opinion made clear that he
viewed the governmental interests as compelling. Id. at 2786
(“It is important to confirm that a premise of the Court’s
opinion is its assumption that the HHS regulation here at
issue furthers a legitimate and compelling interest in the
health of female employees.”). And all four dissenting Jus-
tices viewed the government interests as compelling. Id. at
2799–2801 (Ginsburg, J., dissenting). The compelling inter-
ests include women’s health, the role that access to contra-
ception plays in enabling women to participate fully and
equally in society, and significant cost savings. See 78 Fed.
Reg. 39870, 39873 & nn. 22, 23, & 24 (July 2, 2013) (final
rules). The D.C. Circuit has explained in detail the factual
38 No. 13-3853
bases for the government’s compelling interests. See Priests
for Life, 772 F.3d at 257–64.
3. Least Restrictive Means: If the RFRA analysis proceeds
to whether the accommodation for religious not-for-profits
like Notre Dame is the least restrictive means of furthering
the government’s interest, the question demands much more
exploration than was possible in the emergency proceedings
in the district court back in December 2013.
The general mandate to cover contraceptive care as part
of any broad health insurance package provided by employ-
ers was intended to minimize financial, administrative, and
logistical obstacles to such coverage. 78 Fed. Reg. at 39888
(rejecting alternative proposals and explaining importance of
avoiding incremental costs and minimizing logistical and
administrative obstacles for contraceptive coverage); Priests
for Life, 772 F.3d at 265. The accommodation for religious not-
for-profits has also been designed to minimize those obsta-
cles.
Notre Dame’s suggested alternatives would all impose
significant financial, administrative, and logistical obstacles
by requiring women to sign up for separate coverage, either
with a government agency or another private insurer, and to
pay additional costs unless the government paid for the pro-
gram. Such obstacles were specifically considered in Hobby
Lobby. In debating whether the accommodation would suf-
fice for the for-profit employers, the majority and dissent
paid close attention to cost and to administrative and logisti-
cal obstacles. See 134 S. Ct. at 2782–83 (under the accommo-
dation, plaintiffs’ employees would continue to receive con-
traceptive coverage without cost sharing and with “minimal
logistical and administrative obstacles”); id. at 2802 (Gins-
No. 13-3853 39
burg, J., dissenting) (new government program as substitute
would impose obstacles to effective coverage). Those con-
cerns about effectiveness of alternatives seem to have sub-
stantial merit. They deserve exploration in the district court.
The least-restrictive-means issue also presents a question
of law for which the contours are not yet well-defined. The
legal question is in essence the scope of imagination permit-
ted in thinking of supposedly less restrictive means.
The heart of the Affordable Care Act was a decision to
approach universal health insurance by expanding the em-
ployer-based system of private health insurance that had
evolved in our country, rather than to substitute a new “sin-
gle payer” government program to pay for health care, like
the systems in place in the United Kingdom and Canada. I
do not see support for Notre Dame’s view that a least-
restrictive-means analysis would need to consider such radi-
cally different alternatives.
In fact, Justice Kennedy’s Hobby Lobby concurrence em-
phasized that the accommodation for religious not-for-
profits was an “existing, recognized, workable, and already-
implemented framework to provide coverage” for employ-
ees with an objecting employer. 134 S. Ct. at 2786 (Kennedy,
J., concurring). In finding that the accommodation was a less
restrictive alternative, Justice Kennedy noted that “the Gov-
ernment has not met its burden of showing that it cannot ac-
commodate the plaintiffs’ similar religious objections under
this established framework.” Id. (emphasis added). He also
commented that accommodation was possible “without im-
position of a whole new program or burden on the Govern-
ment.” Id.
40 No. 13-3853
Consistent with those observations, I doubt that a hypo-
thetical new single-payer program for contraceptives, which
would require separate registration or application, would be
for RFRA purposes a “less restrictive” means of achieving
the government’s interests. It also seems likely that such a
program would impose the sort of logistical and administra-
tive obstacles of such concern in Hobby Lobby.
Further fact-finding in the district court may cast the case
in a different light, of course. But for all of these reasons, as
well as those explained in Judge Posner’s opinion, I continue
to agree that Chief Judge Simon properly denied a prelimi-
nary injunction in this case.
No. 13-3853 41
FLAUM, Circuit Judge, dissenting.
By requiring health insurers to provide contraceptive
coverage, the Patient Protection and Affordable Care Act
(“ACA”) forces Notre Dame to act in ways it says violate
its religious beliefs. The resultant burden on Notre
Dame’s rights is substantial: because Notre Dame offers
health insurance to its students, and especially because it
acts as a self-insurer for its employees, the law turns
Notre Dame into a conduit for the provision of cost-free
contraception. It also compels Notre Dame to contract
with parties—Meritain and Aetna—in a manner in which
Notre Dame believes makes it complicit in moral wrong.
Notre Dame’s only alternative is to endure crippling
fines.
In light of the Supreme Court’s ruling in Burwell v.
Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014)—the deci-
sion the Court cited in asking us to reconsider this case—
Notre Dame has articulated a substantial burden for
purposes of the Religious Freedom Restoration Act
(“RFRA”), 42 U.S.C. § 2000bb et seq. As a result, strict
scrutiny governs our consideration of Notre Dame’s chal-
lenge here, and the government has the burden of
demonstrating that the challenged accommodation is the
least restrictive means of serving a compelling interest. In
my view, the government has not satisfied that charge.
Accordingly, I respectfully dissent, concluding that Notre
Dame is entitled to a preliminary injunction pending the
district court’s decision of this case on the merits.
* * *
42 No. 13-3853
The Catholic Church—like all religious employers—is
exempt from the ACA’s contraceptive mandate. See Hobby
Lobby, 134 S. Ct. at 2763. The U.S. Department of Health
& Human Services excluded churches and religious or-
ders from its edict, permitting them to offer employee
health insurance that does not include coverage for con-
traception. Notre Dame seeks that same treatment, be-
cause it has the same religious objections to rendering
available contraceptive health coverage for those it em-
ploys (and those that attend its school, in Notre Dame’s
case). At present, Notre Dame—as a nonprofit religious
organization that opposes providing contraceptive cov-
erage—may avail itself of what has become commonly
referred to as “the accommodation,” see e.g., 45 C.F.R.
§ 147.131(b), the effects of which Notre Dame says also
violate its religious beliefs.
Notre Dame has two distinct roles as far as health in-
surance is concerned. With respect to its employees,
Notre Dame acts as a self-insurer (hiring Meritain as the
third-party administrator of its insurance plan). For its
students, Notre Dame acts as an insurance broker (nego-
tiating on their behalf to offer them an insurance plan
through insurer Aetna). When Notre Dame invoked the
accommodation, its relationship with both Meritain and
Aetna changed because of the ACA. Meritain, its third-
party administrator, became both authorized and re-
quired to offer contraceptive coverage to Notre Dame’s
employees. See Wheaton Coll. v. Burwell, 134 S. Ct. 2806,
2814 n.6 (2014) (Sotomayor, J., dissenting) (noting that a
religious university’s “third-party administrator bears the
legal obligation to provide contraceptive coverage only
upon receipt of a valid self-certification” (emphasis add-
No. 13-3853 43
ed)). Aetna, as the insurer for the student plans, became
obligated to segregate premium payments from Notre
Dame’s students and to provide them with contraceptive
coverage at Aetna’s expense, separate and apart from the
insurance plan offered by the school. See Hobby Lobby, 134
S. Ct. at 2763 (“When a group-health-insurance issuer re-
ceives notice that one of its clients has invoked this provi-
sion, the issuer must then exclude contraceptive coverage
from the employer’s plan and provide separate payments
for contraceptive services for plan participants without
imposing any cost-sharing requirements on the eligible
organization, its insurance plan, or its employees benefi-
ciaries.”(citing 45 C.F.R. § 147.131(c)).
While Notre Dame is no longer obligated to pay for
contraceptive services for its employees, it’s apparent to
me that, at a minimum, the ACA thrusts Notre Dame into
a facilitator’s role that, Notre Dame says, violates its reli-
gious beliefs by forcing it to serve as a continuing link be-
tween Meritain and the contraceptive services it provides
to Notre Dame’s employees.
With regard to the student health plan, there seems to
be outstanding disagreement over whether Notre Dame’s
invocation of the accommodation “triggers” Aetna’s obli-
gation to cover student contraception. See Wheaton Coll.,
134 S. Ct. at 2807 (majority opinion) (“The Government
contends that the applicant’s health insurance issuer …
[is] required by federal law to provide full contraceptive
coverage regardless [of] whether the applicant” invokes
the accommodation, while Wheaton College “contends,
by contrast, that the obligations of its health insurance is-
suer ... are dependent on their receipt of notice that the
44 No. 13-3853
applicant objects to the contraceptive coverage require-
ment.”). But see 42 U.S.C. § 300gg–13(a) (“A group health
plan and a health insurance issuer offering group or in-
dividual health insurance coverage shall, at a minimum
provide coverage for and shall not impose any cost shar-
ing requirements for— … (4) with respect to women,
such additional preventive care and screenings … as
provided for in comprehensive guidelines supported by
the Health Resources and Services Administration … .”).
But that question really is of no moment here, because
Notre Dame also believes that being driven into an ongo-
ing contractual relationship with an insurer—especially
one that Notre Dame chose—that provides its students
with contraception compels it to act in contravention of
its beliefs.
In Notre Dame’s view, the ACA alters its relationships
with both Meritain and Aetna in a way that renders
Notre Dame morally complicit in the provision of contra-
ception. Put simply, Notre Dame is too engaged in a pro-
cess—the very premise of which offends its religion—
that the church itself is exempted from entirely.
The majority appears to minimize the significance of
Notre Dame’s position by focusing on its continued ob-
jection to the mandate in the face of a proffered accom-
modation. I believe that any inquiry into the rationality
of that position is precluded by the Supreme Court’s de-
cision in Hobby Lobby, which in my view underscores the
legitimacy of Notre Dame’s religious objection. There, as
here, HHS’s main argument was “basically that the con-
nection between what the objecting parties must do …
and the end that they find to be morally wrong … [was]
No. 13-3853 45
simply too attenuated.” 134 S. Ct. at 2777. However, the
Supreme Court made clear that this position, at least in
this narrow context, is untenable. That’s because it
“dodges the question that RFRA presents (whether the
HHS mandate imposes a substantial burden on the abil-
ity of the objecting parties to conduct business in accord-
ance with their religious beliefs) and instead addresses a
very different question that the federal courts have no
business addressing (whether the religious belief asserted
in a RFRA case is reasonable).” Id. at 2778 (emphasis in
original).
Like the plaintiffs’ challenge in Hobby Lobby, Notre
Dame’s deeply held religious beliefs about contraception
and the formation and prevention of human life “impli-
cate[] a difficult and important question of religion and
moral philosophy, namely, the circumstances under
which it is wrong for a person to perform an act that is
innocent in itself but that has the effect of enabling or fa-
cilitating the commission of an immoral act by another.”
Id. Notre Dame is no doubt differently situated than the
Hobby Lobby plaintiffs, who had to directly provide con-
traceptive insurance. Nevertheless, the ACA also places
Notre Dame in a position that contravenes its belief sys-
tem. Yet the majority here sides with HHS, and “in effect
tell[s] the plaintiff[] that [its] beliefs are flawed.” 1 Id. The
1 To the extent the majority views Notre Dame’s burden as less sub-
stantial than the burden imposed on the plaintiffs in Hobby Lobby
(and thus not actionable under RFRA) because Notre Dame is fur-
ther removed from the direct provision of contraception, I suggest
that analysis is flawed. Hobby Lobby instructs that, once we determine
a religious belief is burdened, substantiality is measured by the se-
46 No. 13-3853
Hobby Lobby Court, however, rejected that position. See id.
(“Repeatedly and in many different contexts, we have
warned that courts must not presume to determine … the
plausibility of a religious claim.” (quoting Emp’t Div.,
Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 887
(1990))). And so do I.
For that reason, the Hobby Lobby Court had “little
trouble concluding” that “the HHS contraceptive man-
date ‘substantially burden[ed]’ the exercise of religion” in
view of the plaintiffs’ asserted beliefs. 2 Id. at 2775. The
Court thus proceeded to the compelling interest compo-
nent of the RFRA test. See id. at 2779 (“Since the HHS con-
–––
verity of the penalties for non-compliance. 134 S. Ct. at 2759, 2775–
76. Because the contraceptive mandate forced the Hobby Lobby plain-
tiffs “to pay an enormous sum of money ... if they insist[ed] on
providing insurance coverage in accordance with their religious be-
liefs, the mandate clearly impose[d] a substantial burden on those
beliefs.” Id. at 2779. Here, Notre Dame faces the same penalties the
Hobby Lobby plaintiffs faced: $100 per day for each affected individu-
al. 42 U.S.C. § 300gg-22(b)(2)(C). “These sums are surely substan-
tial.” Hobby Lobby, 134 S. Ct. at 2776.
2 I would be remiss not to note that just one week after the Supreme
Court issued its opinion in Hobby Lobby, Wheaton College—which,
on the basis of our first (and now vacated) decision in this case was
denied a preliminary injunction in its own Seventh Circuit suit chal-
lenging the contraceptive mandate’s accommodation provision—
sought and was granted emergency relief by the Supreme Court.
Wheaton Coll., 134 S. Ct. at 2807. In granting the preliminary injunc-
tion, the Court necessarily found (at least for preliminary injunctive
purposes) that the accommodation substantially burdened Wheaton
College. Notre Dame challenges that same (though slightly revised)
accommodation.
No. 13-3853 47
traceptive mandate imposes a substantial burden on the
exercise of religion, we must move on and decide wheth-
er HHS has shown that the mandate both ‘(1) is in fur-
therance of a compelling governmental interest; and (2) is
the least restrictive means of furthering that compelling
governmental interest.’ 42 U.S.C. § 2000bb–1(b).”). In
Hobby Lobby, “HHS assert[ed] that the contraceptive
mandate serves a variety of important interests, but
many of these [were] couched in very broad terms, such
as promoting ‘public health’ and ‘gender equality.’” Id.
HHS asserted those same interests to the district court in
this case. See Defs.’ Resp. in Opp’n to Pl.’s Mot. for Pre-
lim. Inj. at 15–16, Notre Dame v. Sebelius, 988 F. Supp. 2d
912 (N.D. Ind. 2013) (No. 3:13-cv-01276) (“[E]ven if the
challenged regulations were deemed to impose a sub-
stantial burden on plaintiff’s religious exercise, the regu-
lations satisfy strict scrutiny because they are narrowly
tailored to serve compelling government interests in pub-
lic health and gender inequality.” (emphases added)). The
Supreme Court, however, rejected the simple assertion of
such broad interests.
“RFRA … contemplates a ‘more focused’ inquiry: It
‘requires the Government to demonstrate that the com-
pelling interest test is satisfied through application of the
challenged law ‘to the person’—the particular claimant
whose sincere exercise of religion is being substantially
burdened.’” Hobby Lobby, 134 S. Ct. at 2779 (quoting Gon-
zales v. O Centro Espírita Beneficente Uniao do Vegetal, 546
U.S. 418, 430–31 (2006)). “This requires us to ‘loo[k] be-
yond broadly formulated interests’ and to ‘scrutiniz[e]
the asserted harm of granting specific exemptions to par-
ticular religious claimants … .’” Id. (quoting O Centro, 546
48 No. 13-3853
U.S. at 431). Nevertheless, the Court found it unnecessary
to delve into the “features of [the] ACA that support [the]
view” that the government lacks a compelling interest
here (such as the fact that “many employees—those cov-
ered by grandfathered plans and those who work for
employers with fewer than 50 employees—may have no
contraceptive coverage without cost sharing at all”), be-
cause—even assuming that the government’s interest is a
compelling one—HHS failed to demonstrate “that the
contraceptive mandate is ‘the least restrictive means of
furthering’” it. Id. at 2780 (citing § 2000bb–1(b)(2)).
As the Court noted, “[t]he least-restrictive-means
standard is exceptionally demanding,” and it is the gov-
ernment’s burden to demonstrate that “it lacks other
means of achieving its desired goal without imposing a
substantial burden on the exercise of religion by the ob-
jecting part[y].” Id. Here again, the majority in our case
sets aside Hobby Lobby, instead assigning Notre Dame
this burden because it seeks a preliminary injunction. But
Hobby Lobby, too, sought a preliminary injunction. Hob-
by Lobby Stores Inc. v. Sebelius, 723 F.3d 1114, 1143 (10th
Cir. 2013) (“[E]ven at the preliminary injunction stage,
RFRA requires the government to demonstrate that man-
dating a plaintiff’s compliance with the contraceptive-
coverage requirement is ‘the least restrictive means of
advancing a compelling interest.’” (emphasis in original)
(citing O Centro, 546 U.S. at 423)), aff’d, 134 S. Ct. 2751.
And the law in our own circuit is clear on this point. See
Korte v. Sebelius, 735 F.3d 654, 673 (7th Cir. 2013) (noting,
in the preliminary injunction context, that “[o]nce a
RFRA claimant makes a prima facie case that the applica-
tion of a law or regulation substantially burdens his reli-
No. 13-3853 49
gious practice, the burden shifts to the government to jus-
tify the burden under strict scrutiny”). Indeed, the gov-
ernment—in this very case—conceded in its brief to the
district court that Korte dictates the issuance of a prelimi-
nary injunction if the court finds a substantial burden on
Notre Dame’s religious beliefs. See Defs.’ Resp. in Opp’n
to Pl.’s Mot. for Prelim. Inj., supra, at 15–16 (“Defendants
recognize that a majority of the Seventh Circuit rejected
these arguments [that the regulations satisfy strict scruti-
ny because they are narrowly tailored to serve compel-
ling governmental interests in public health and gender
equality] in Korte, and that this Court is bound by that
decision.”). In Korte, we granted the preliminary injunc-
tion because the government had made minimal efforts
“to explain how the contraception mandate is the least
restrictive means of furthering its stated goals of promot-
ing public health and gender equality.” 735 F.3d at 687.
Korte, of course, was our iteration of Hobby Lobby, and it
remains the law of this circuit—yet it appears not to in-
struct the majority.
The majority observes that Notre Dame has presented
“possible alternatives” to the accommodation that would
not infringe its religious exercise. Yet it concludes that
Notre Dame has failed to present an adequate proposal
for how the government can efficiently (and convenient-
ly) implement and administer an alternative program.
But to reiterate, Hobby Lobby expressly informs—
consistent with Korte—that it is the government’s, not
Notre Dame’s, burden to establish that the accommoda-
tion is the least restrictive means of advancing a compel-
ling government interest. Moreover, the suggestion by
the majority that any alternative method of advancing
50 No. 13-3853
the government’s interests would likely be too costly or
cumbersome to the government turns a blind eye to the
Supreme Court’s latest teachings. What matters under
RFRA is whether the means by which the government is
attempting to advance its compelling interest is the least
burdensome on Notre Dame’s religious beliefs. Accord-
ingly, RFRA may require the government to start over
and “creat[e] … entirely new programs,” and it “may in
some circumstances require the Government to expend
additional funds to accommodate citizens’ religious be-
liefs.” Hobby Lobby, 134 S. Ct. at 2781. For those reasons,
the Supreme Court made clear that, in this sphere, “[t]he
most straightforward way” of serving the Government’s
interests would be for it to assume the cost of providing
contraception “to any women who are unable to obtain
them under their health-insurance policies due to their
employers’ religious objections.” Id. at 2780. Here, as in
Hobby Lobby, “HHS has not shown … that this is not a vi-
able alternative.” Id. For that reason, I would reverse the
decision of the district court denying Notre Dame a pre-
liminary injunction.
| {
"pile_set_name": "FreeLaw"
} |
515 F.2d 507
U. S.v.McKendrick
74-2261
UNITED STATES COURT OF APPEALS Third Circuit
5/6/75
1
E.D.Pa.
AFFIRMED
| {
"pile_set_name": "FreeLaw"
} |
Nebraska Court of Appeals Memorandum Opinions
NOT Selected for Posting to Court Website
(released the week prior to May 8, 2018)
The following memorandum opinions were filed by the Nebraska Court of
Appeals and can be viewed using SSCALES:
A-17-308,
A-17-309 State v. Mohamed
A-17-691 State v. Mason
A-17-693 Moyer v. Moyer
A-17-823,
A-17-824 State v. Hauser
A-17-949 State v. Norris
A-17-1054 Tarman v. Tarman
The above-listed memorandum opinions can be viewed online through the
appellate court case search available by subscription through Nebraska.gov:
http://www.nebraska.gov/subscriber/.
Current subscribers to Nebraska.gov can search appellate court cases here:
https://www.nebraska.gov/courts/sccales/.
| {
"pile_set_name": "FreeLaw"
} |
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-1787V
Filed: June 24, 2019
UNPUBLISHED
JUSTIN RYDER,
Petitioner,
v. Special Processing Unit (SPU);
Damages Decision Based on Proffer;
SECRETARY OF HEALTH AND Influenza (Flu) Vaccine; Shoulder
HUMAN SERVICES, Injury Related to Vaccine
Administration (SIRVA)
Respondent.
Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
petitioner.
Christine Mary Becer, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
Dorsey, Chief Special Master:
On November 14, 2017, petitioner filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the
“Vaccine Act”). Petitioner alleges that he suffered a shoulder injury related to vaccine
administration (“SIRVA”) after receiving the influenza vaccine on October 3, 2016.
Petition at 1. The case was assigned to the Special Processing Unit of the Office of
Special Masters.
On September 26, 2018, a ruling on entitlement was issued, finding petitioner
entitled to compensation for SIRVA. On June 24, 2019, respondent filed a proffer on
1 The undersigned intends to post this decision on the United States Court of Federal Claims' website.
This means the decision will be available to anyone with access to the internet. In accordance with
Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or other information,
the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, the
undersigned agrees that the identified material fits within this definition, the undersigned will redact such
material from public access. Because this unpublished decision contains a reasoned explanation for the
action in this case, undersigned is required to post it on the United States Court of Federal Claims'
website in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal
Management and Promotion of Electronic Government Services).
2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
award of compensation (“Proffer”) indicating petitioner should be awarded $90,745.55
($90,000.00 for pain and suffering and $745.55 for unreimbursed expenses) . Proffer at
1. In the Proffer, respondent represented that petitioner agrees with the proffered
award. Id. Based on the record as a whole, the undersigned finds that petitioner is
entitled to an award as stated in the Proffer.
Pursuant to the terms stated in the attached Proffer, the undersigned awards
petitioner a lump sum payment of $90,745.55 (which is comprised of $90,000.00
for pain and suffering and $745.55 for unreimbursed expenses) in the form of a
check payable to petitioner, Justin Ryder. This amount represents compensation for
all damages that would be available under § 15(a).
The clerk of the court is directed to enter judgment in accordance with this
decision.3
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
____________________________________
)
JUSTIN RYDER, )
)
Petitioner, )
) No. 17-1787V
v. ) Chief Special Master Dorsey
) ECF
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
____________________________________)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On October 3, 2018, respondent filed a Vaccine Rule 4(c) report concluding that
petitioner suffered an injury that is compensable under the National Childhood Vaccine Injury
Act of 1986, as amended, 42 U.S.C. §§300aa-10 to -34. Accordingly, on October 4, 2018, the
Chief Special Master issued a Ruling on Entitlement, finding that petitioner was entitled to
vaccine compensation for his Shoulder Injury Related to Vaccine Administration (“SIRVA”).
I. Items of Compensation
Based upon the evidence of record, respondent proffers that petitioner should be awarded
$90,745.55 ($90,000.00 for pain and suffering and $745.55 for unreimbursed expenses) which
represents all elements of compensation to which petitioner would be entitled under 42 U.S.C.
§ 300aa-15(a). 1 Petitioner agrees.
1
Should petitioner die prior to entry of judgment, the parties reserve the right to move the Court
for appropriate relief. In particular, respondent would oppose any award for future medical
expenses, future lost earnings, and future pain and suffering.
II. Form of the Award
The parties recommend that the compensation provided to petitioner should be made
through a lump sum payment of $90,745.55 in the form of a check payable to petitioner.
Petitioner agrees.
Petitioner is a competent adult. Evidence of guardianship is not required in this case.
Respectfully submitted,
JOSEPH H. HUNT
Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
CATHARINE E. REEVES
Deputy Director
Torts Branch, Civil Division
HEATHER L.PEARLMAN
Assistant Director
Torts Branch, Civil Division
s/Christine Mary Becer
CHRISTINE MARY BECER
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
Tel: (202) 616-3665
Date: June 24, 2019
2
| {
"pile_set_name": "FreeLaw"
} |
455 N.W.2d 89 (1990)
Joseph John RUZIC, Petitioner, Appellant,
v.
COMMISSIONER OF PUBLIC SAFETY, Respondent.
No. C8-89-2087.
Court of Appeals of Minnesota.
May 8, 1990.
Review Denied June 26, 1990.
*90 Donald H. Nichols, Nichols, Kaster & Anderson, Minneapolis, for appellant.
Hubert H. Humphrey, III, Atty. Gen., Joel A. Watne, Sp. Asst. Atty. Gen., St. Paul, for respondent.
Considered and decided by WOZNIAK, C.J., and PARKER and SHORT, JJ.
OPINION
SHORT, Judge.
Joseph John Ruzic appeals from the trial court's order sustaining the revocation of his driver's license under the implied consent law, Minn.Stat. § 169.123, subd. 4 (1988). Appellant argues (1) the trial court erred in holding a bulldozer, which appellant was driving on private property, was a "motor vehicle" within the meaning of Minn.Stat. § 169.123, and (2) revocation of appellant's driver's license violated his constitutional rights. We disagree and affirm.
FACTS
On June 9, 1989, at approximately 9:30 p.m., an Eden Prairie police officer was dispatched to investigate a complaint about loud construction noise coming from a privately-owned vacant lot. The officer discovered appellant operating a Caterpillar bulldozer on the lot. The bulldozer traveled on steel tracks, and was equipped with a bucket or blade on the front. There is no evidence to suggest appellant drove the bulldozer off the lot.
While questioning appellant, the officer detected an odor of alcohol, and eventually arrested him for DWI. Appellant stipulated that the officer read him the implied consent advisory and that he failed the Intoxilyzer test. Appellant's driver's license was revoked under the implied consent law.
*91 ISSUES
I. Is a bulldozer a "motor vehicle" for purposes of Minn.Stat. § 169.123 (1988)?
II. Does application of Minn.Stat. § 169.123 (1988) to appellant violate his constitutional rights?
ANALYSIS
I.
Appellant argues his operation of a bulldozer on private property is specifically excluded from the implied consent law because (a) the bulldozer cannot be driven legally on a highway, (b) it runs on tracks, and (c) it was being operated on private property. The implied consent law applies to one who drives, operates, or is in physical control of a "motor vehicle." Minn. Stat. § 169.123, subd. 2(a) (1988). "Vehicle" is defined as:
[E]very device in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices used exclusively upon stationary rails or tracks.
Minn.Stat. § 169.01, subd. 2 (1988). "Motor vehicle" is defined as:
[E]very vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from overhead trolley wires. Motor vehicle does not include a vehicle moved solely by human power.
Minn.Stat. § 169.01, subd. 3 (1988).
We disagree with appellant's interpretation of these statutes. First, the implied consent law does not restrict its definition of vehicles to those that can only be legally driven upon a highway. Further, bulldozers may be legally driven upon a highway with special permits. See Minn. Stat. § 169.72, subd. 1 (1988). Second, while a bulldozer runs on movable tracks, Minn.Stat. § 169.01, subd. 2 excepts only devices used exclusively on stationary tracks from the definition of vehicle. See Melby v. Commissioner of Public Safety, 367 N.W.2d 527, 528 (Minn.1985) (snowmobiles, which run on movable tracks, are motor vehicles). Finally, it is well established that the implied consent law applies to activity on private as well as public property. Schafer v. Commissioner of Public Safety, 348 N.W.2d 365, 367-68 (Minn.Ct.App.1984).
It is arguable that the legislature did not intend the implied consent law to apply to vehicles for which no driver's license is required. However, the legislature has already excepted from the implied consent law persons operating an off-road snowmobile or all-terrain vehicle while under the influence. See Minn.Stat. §§ (84.911), 169.121, subd. 11 (1988). Exceptions expressed in law are construed to exclude all others. Minn.Stat. § 645.19 (1988). It is not the role of this court to carve out another exception to the implied consent law for persons operating bulldozers on private property. For these reasons, a bulldozer qualifies as a "motor vehicle" within the meaning of Minn.Stat. § 169.123, subd. 2(a).
II.
Statutes are presumed to be constitutionally valid. In re Haggerty, 448 N.W.2d 363, 364 (Minn.1989). A challenge to the constitutionality of a statute meets formidable statutory construction opposition. State ex rel. Forslund v. Bronson, 305 N.W.2d 748, 751 (Minn.1981). Appellant has the burden of demonstrating beyond a reasonable doubt that the implied consent law offends the principles of fundamental fairness and equal protection. See McGuire v. C & L Restaurant Inc., 346 N.W.2d 605, 611 (Minn.1984).
Appellant argues he was given inadequate warning that driving a bulldozer on private property while under the influence is prohibited conduct under the implied consent laws. The void-for-vagueness doctrine requires that a law be definite, i.e., that ordinary people can understand what conduct is prohibited and the statute does not encourage arbitrary and discriminatory enforcement. State v. Newstrom, 371 N.W.2d 525, 528 (Minn.1985). Appellant argues the statute is vague because it does not clearly apply to a bulldozer. However, *92 bulldozers are self-propelled vehicles capable of being legally operated on public highways with the proper permits. They are therefore within the scope of the statute.
Appellant argues the definition could be applied to a variety of machines that no reasonable person would anticipate were covered by the implied consent law. However, appellant must show the statute lacks specificity as to his own behavior rather than some hypothetical situation. State, Department of Public Safety v. Elk River Ready Mix Co., 430 N.W.2d 261, 264 (Minn.Ct.App.1988). An ordinary person would understand that driving a bulldozer while intoxicated is at least as dangerous as driving a car, and is likely to be covered by the implied consent law. The law, construed literally, applies to bulldozers. We therefore hold appellant was not denied his due process right.
Appellant has offered no evidence of arbitrary and discriminatory law enforcement and has otherwise failed to establish beyond a reasonable doubt that the statutory definition of "motor vehicle" is unconstitutionally vague or that its application to a bulldozer violates his right to due process of law.
Appellant also argues the revocation of his driver's license singles him out for arbitrary treatment and thus denies him equal protection of the laws. However, the record demonstrates appellant was treated in the same manner as any person who was the subject of a call to an officer reporting a disturbance involving a motor vehicle. See Price v. Amdal, 256 N.W.2d 461, 468 (Minn.1977).
DECISION
The implied consent law applies to an operator of a bulldozer on private property.
Affirmed.
WOZNIAK, C.J., dissents with opinion.
WOZNIAK, Chief Judge (dissenting).
I respectfully dissent and suggest that the majority has erroneously misread legislative intent.
The majority today holds that any person operating motorized equipment or a device which could be transported upon a highway may lose his or her license to drive an automobile, even though no such license is required for the equipment being operated, and even though the operation occurs solely on private property, not on a highway or road.
Our function is to determine whether application of the implied consent law to the facts of this case is consistent with the spirit and intent of the legislature. Di Re v. Central Livestock Order Buying Co., 246 Minn. 279, 286, 74 N.W.2d 518, 524 (1956). I believe the result reached by the majority is clearly inconsistent with legislative intent.
The underlying theory of "implied consent" is that by accepting a license to drive a motor vehicle, a person gives implied consent to test for the presence of chemicals. Minn.Stat. § 169.123, subd. 2(a) (1988). Where a license is not required to operate a vehicle, no consent can be implied. Consistent with this theory and intent, the legislature specifically rejected the loss of a driver's license as a penalty for a snowmobile or all-terrain vehicle operator's refusal to be tested for alcohol or for conviction of operating snowmobiles or all-terrain vehicles while under the influence of alcohol. Minn.Stat. § 169.121, subd. 11 (1988). No driver's license is required to operate the motorized equipment, and the legislature clearly indicated that loss of driving privileges should not result from nondriving activity occurring off the public highways merely because the activity involved the use of alcohol.
An individual who refuses chemical testing arising from the operation of a snowmobile, all-terrain vehicle, or motorboat while under the influence, or who is convicted of operating those devices while under the influence, loses the privilege of operating the same type of equipment for a period of time, but his or her driver's license is unaffected. See Minn.Stat. §§ 84.87, subd. 2b; 84.91, subd. 6; 84.911, subd. 2(a); 169.121, subd. 11; 361.12, subd. 6; *93 361.121, subd. 2(a) (1988). The legislative intent is continuing and clear. A bulldozer is not a "motor vehicle" under the law.
We must construe the implied consent statutes to avoid reaching an absurd or unreasonable result. See Minn.Stat. § 645.17(1) (1988). This result is both. While snowmobiles and all-terrain vehicles are more often operated on or near highways, and while motorboats are more likely to be surrounded by many other boats and operators, their operators are not subject to revocation of their driver's licenses. Nonetheless, the majority here holds that a bulldozer operator must lose his or her driver's license. In keeping with the intent of the legislature, I would hold that operation of a bulldozer on private land, for which no license or permit is required, does not jeopardize the individual's driver's license.
Excessive noise at nighttime is disturbing to a neighborhood; other ordinances cover such infractions.
Upholding this revocation would authorize police to rush into people's yards or farms to test the alcohol consumption of an owner operating devices such as a riding lawnmower or snowblower, tiller or tractor, or farm machinery; this is inconsistent with the plain dictates of common sense.
| {
"pile_set_name": "FreeLaw"
} |
139 F.3d 909
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-Appellant,v.Daniel C. MASTERS; Linda F. Masters; Bradley D. Zilke;Kimberly A. Zilke, Defendants-Appellees.
No. 96-50163.D.C. No. CR-93-00242-LCN.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Oct. 9, 1997.Decided Feb. 24, 1998.
Appeal from the United States District Court for the Southern District of California Leland C. Nielsen, District Judge, Presiding.
Before PREGERSON, D.W. NELSON, and HAWKINS, Circuit Judges.
1
MEMORANDUM*
2
Because the parties are familiar with the facts, we recite them here only to the extent necessary to discuss the issues.
3
The United States appeals the district court's dismissal of a criminal indictment charging Daniel Masters, Linda Masters, Bradley Zilke and Kimberly Zilke with a complex securities fraud conspiracy. The district court dismissed the indictment on the ground that the passage of time between the defendants' indictment and their arrests violated their Sixth Amendment right to a speedy trial. We affirm.
4
Appellees' Sixth Amendment right to a speedy trial were violated because the government's negligence in arresting them caused them actual prejudice. See Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1971). Under Barker, a speedy trial violation is based on: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) prejudice to the defendant. See id. at 530.
5
It is undisputed that the length of delay was thirty months and that Appellees asserted their rights. Although the government contests the reason for the delay, the record clearly establishes that the government was responsible for the delay. Thus, the only question remaining is whether appellees suffered prejudice as a result of the delay.
6
The district court's finding that the thirty-month delay caused Appellees actual prejudice by hampering their ability to put on a defense is adequately supported in the record.1 The pretrial delay of thirty months severely hampered Appellees' ability to find relevant documents as well as to produce witnesses. Although a thirty-month delay diminishes any party's ability to put on a case, this is particularly true in a case of this type (complex securities fraud), where witnesses and documents are likely to be voluminous. This notion is bolstered by the government's contention that much of the thirty-month delay was due to the difficulty the government had in securing thirty-two first-person affidavits.
7
Because the record supports the district court's finding of actual prejudice, the district court's order dismissing the indictments against Appellees is AFFIRMED.
*
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
The district court correctly found that the government was negligent in its arrest of appellees. Once this negligence has been established, "prejudice will be presumed and its weight in defendant's favor will depend on the length of the delay." United States v. Aguirre, 994 F.2d 1454, 1456 (9th Cir.1993). In other words, the length of the delay might serve to create a presumption of prejudice, but it does not necessarily do so. Having found actual prejudice, however, we need not determine whether the "presumptive prejudice" doctrine applies. See Doggett v. United States, 505 U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992)
| {
"pile_set_name": "FreeLaw"
} |
People v Villanueva (2016 NY Slip Op 01355)
People v Villanueva
2016 NY Slip Op 01355
Decided on February 24, 2016
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 February 24, 2016
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
RUTH C. BALKIN, J.P.
L. PRISCILLA HALL
SHERI S. ROMAN
JOSEPH J. MALTESE, JJ.
2012-05130
(Ind. No. 2118/11)
[*1]The People of the State of New York, respondent,
vGeorge Villanueva, appellant.
Stephen N. Preziosi, New York, NY, for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Firetog, J.), rendered May 23, 2012, convicting him of aggravated manslaughter in the first degree and aggravated criminal contempt, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is modified, on the facts, by reducing the defendant's conviction of aggravated manslaughter in the first degree to aggravated manslaughter in the second degree, and vacating the sentence imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for sentencing on the conviction of aggravated manslaughter in the second degree.
To the extent the defendant contends that the People did not present legally sufficient evidence that the defendant intended to cause serious physical injury to the victim, that argument is unpreserved for appellate review because the defendant failed to move for a trial order of dismissal on the basis of that specific claim (see People v Hawkins, 11 NY3d 484; People v Lewis, 96 AD3d 878). In any event, viewing the evidence in the light most favorable to the People, we find that the evidence was legally sufficient to establish, beyond a reasonable doubt, the defendant's guilt of aggravated manslaughter in the first degree (see People v Leak, 129 AD3d 745; People v Pickens, 60 AD3d 699).
However, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9 NY3d 342), we find that the defendant's conviction of aggravated manslaughter in the first degree was against the weight of the evidence (see People v Santiago, 97 AD3d 704, affd 22 NY3d 740; People v Haney, 85 AD3d 816; People v Pickens, 60 AD3d 699). The evidence, when properly weighed, did not prove, beyond a reasonable doubt, that the defendant intended to seriously injure the victim (see Penal Law § 125.22). Rather, the evidence supports a finding that the victim's fatal head wound was recklessly caused by the defendant in the midst of a struggle (see People v Haney, 85 AD3d 816; People v Pickens, 60 AD3d 699). Accordingly, we modify the judgment by reducing the conviction of aggravated manslaughter in the first degree to aggravated manslaughter in the second degree (see CPL 470.15[5]), and remit the matter to the Supreme Court, Kings County, for sentencing on the conviction of aggravated manslaughter in the second degree.
The defendant's contention regarding the introduction into evidence of prior statements used by the prosecution to impeach its own witness is largely unpreserved for appellate review (see People v Harris, 112 AD3d 738; People v Jones, 25 AD3d 724; People v Solomon, 16 AD3d 701). In any event, any error was harmless, as the evidence of the defendant's guilt of the lesser-included offense of aggravated manslaughter in the second degree and aggravated criminal contempt was overwhelming, and there is no significant probability that any error affected the outcome with respect to these two crimes (see People v Kirksey, 107 AD3d 825; People v Solomon, 16 AD3d 701). The defendant's contention regarding the admission of evidence of certain prior uncharged crimes is unpreserved for appellate review and, in any event, without merit (see People v McFarlane, 106 AD3d 836; People v Sanchez, 73 AD3d 1093; People v Laverpool, 52 AD3d 622).
BALKIN, J.P., HALL, ROMAN and MALTESE, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court
| {
"pile_set_name": "FreeLaw"
} |
Order Michigan Supreme Court
Lansing, Michigan
August 26, 2014 Robert P. Young, Jr.,
Chief Justice
Michael F. Cavanagh
Stephen J. Markman
147860(88) Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano,
Justices
THE SERVICE SOURCE, INC., and THE
SERVICE SOURCE FRANCHISE, LLC,
Plaintiffs-Appellees,
SC: 147860
v COA: 301013
Lenawee CC: 09-003258-CK
DHL EXPRESS (USA), INC.,
Defendant-Appellant.
__________________________________/
On order of the Chief Justice, the motion of plaintiffs-appellees to extend the time
for filing their appeal brief and appendix is GRANTED. The brief and appendix will be
accepted as timely filed if filed on or before September 5, 2014.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
August 26, 2014
Clerk
| {
"pile_set_name": "FreeLaw"
} |
455 F.Supp. 371 (1978)
SUCREST CORPORATION, Plaintiff,
v.
M/V JENNIFER, etc., and Matthew Shipping, Limited, Defendants.
Civ. No. 74-28-ND.
United States District Court, D. Maine, N. D.
August 11, 1978.
*372 *373 Martin R. Johnson, Portland, Me., John P. Conroy, New York City, for plaintiff.
Thomas R. McNaboe, Portland, Me., Byron King Callan and Joseph M. Brush, New York City, for defendants.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DIRECTION FOR ENTRY OF JUDGMENT
GIGNOUX, District Judge.
This action arises out of a nautical mishap which occurred in May 1974, when the dry cargo vessel M/V JENNIFER, while carrying a bulk cargo of salt water damaged raw sugar from Saint John, New Brunswick, Canada, to Brooklyn, New York, developed a severe port list off Bar *374 Harbor, Maine, because of a transverse shift of the cargo. The JENNIFER put into Bar Harbor where she eventually was purposefully stranded for the safety of both the vessel and the cargo. Sucrest Corporation ("Sucrest"), the owner of the cargo has brought an action in rem against the JENNIFER and in personam against the owner of the vessel, Matthew Shipping, Ltd. ("Matthew"), for damages to the cargo, salvage expenses, and the cargo's contribution in General Average. The ship and her owner deny liability for cargo damage and have, in turn, filed a counterclaim against Sucrest in which they seek hull damage, salvage expenses, damages for lost use of the vessel, and the vessel's contribution in General Average. Jurisdiction evidently is predicated upon 28 U.S.C. § 1333(1) (admiralty and maritime jurisdiction) and § 1332 (diversity jurisdiction).[1]
By agreement of the parties, the issues of liability have been severed from the damage issues, and tried to the Court without a jury. Having received and considered the evidence and the written and oral arguments of counsel, the Court now makes its Findings of Fact and Conclusions of Law on the issues of liability for the casualty, and directs entry of its judgment as follows:
FINDINGS OF FACT
The Court's Findings of Fact are:
Introduction
1. Sucrest. Sucrest, a New York corporation, is an international sugar refiner. It owns several subsidiary companies including the Revere Sugar Refinery ("Revere") in Charlestown, Massachusetts, and Sucrest Gmbh located in West Germany. Sucrest Gmbh wholly owns Interfood Gmbh ("Interfood"), also headquartered in West Germany. Sucrest Gmbh manufactures specialty food products, and Interfood is a commodity trading corporation.
During April and May 1974, Robert M. Rappaport was president of Sucrest and simultaneously served as a "geschaftsfurer," or, roughly, a managing director, of both Sucrest Gmbh and Interfood.
2. Matthew. Matthew was and is a Canadian corporation having a place of business in Montreal, Province of Quebec, Canada. Matthew acquired title to the JENNIFER, formerly the LORNA P, on April 30, 1974. Prior to acquiring title to the JENNIFER, Matthew had time-chartered the vessel on several occasions.
During April and May 1974, Henry C. Druce was general manager of Matthew. At that time, Captain James Rooney served as assistant general manager and acted as marine superintendent for the company.
3. The JENNIFER. The JENNIFER, a Canadian flag motor vessel built in 1964, had an overall length of 204 feet, a beam of 36 feet, and a summer draft of 15' 3". She was designed as a single hold, single hatch carrier of dry bulk cargo. Her hatch measured approximately 68 feet by 23 feet and opened into a hold 110 feet long and 35 feet wide. The bilge arrangement in the hold consisted of four bilge wells, two forward and two aft. Each well was located on the outboard corner of the hold. They were fitted with perforated covers known as strainer plates and were about two feet deep.
The JENNIFER was powered by a single screw, eight cylinder diesel engine of approximately 1200 horsepower which was capable of driving her at speeds up to 11 knots.
The JENNIFER was lost at sea in the latter part of 1974 in an incident unrelated to the instant action.
4. The Ship's Personnel. From April 30, 1974, when Matthew took title to the JENNIFER, until May 10, 1974, Rooney served as temporary master of the vessel. Rooney had held a British Master's Certificate since August 1963. Prior to 1974, he had last sailed as master in 1968. His previous sailing *375 experience had included the carriage of three shipments of bulk sugar from Cuba to China.
On May 10, Rooney turned the JENNIFER over to Captain George H. Anderson, whom Captain Robert Lyon, another Matthew employee, had hired in St. John to take the vessel with a bulk cargo of salt water damaged raw sugar from St. John to Brooklyn. After discharging the sugar, Anderson was to have proceeded with the JENNIFER to Philadelphia to pick up other cargo. Anderson held an unlimited Canadian Master's Certificate, issued in March 1946. Prior to the JENNIFER, Anderson's latest seagoing command had been in 1973. He had no previous experience in the carriage of raw bulk sugar.
Chief Officer of the JENNIFER in May 1974, during the voyage here in issue, was Ronald Cartwright. Shortly before Cartwright joined the vessel, he had been hired by Rooney in Montreal for a shore position with Matthew. His seagoing duty aboard the JENNIFER was to have been limited to the voyage scheduled to end at Brooklyn. Cartwright was issued a First Mate's Foreign Going License by the British Board of Trade in 1958. He assumed a shore position in 1961 and had not returned to sea as a First, or Chief, Officer until he joined the JENNIFER. As Chief Officer of the JENNIFER, Cartwright was in charge of cargo supervision and stowage. Although he previously had observed cargos of raw bulk sugar on several occasions, he never before had carried the cargo.
5. Raw Bulk Sugar. The carriage of raw sugar in bulk is a relatively recent phenomenon which commenced in the early 1950's. Raw bulk sugar normally is a passive, stable cargo. It is not included among the numerous cargos listed in the dangerous cargo acts of Canada, the United Kingdom, or the United States. E. g., 46 U.S.C. § 170, 46 C.F.R. Part 146 et seq. (1977). Raw bulk sugar usually has a moisture content of .05%, a polarization of 98%, and an angle of repose of at least 32°.[2]
The Purchase of the Sugar
6. The sugar cargo that is the subject matter of this action consisted of raw Australian sugar in bulk which had been damaged by salt water in early 1974 while aboard the M/V GORDION, bound for St. John. At St. John, the consignee of the sugar rejected a portion of the shipment due to the salt water contamination. Laurentide Trading Co., Ltd. ("Laurentide"), a salvage company, then purchased the rejected shipment with the intent of reselling the cargo to another refiner.
7. In early April 1974 representatives of Laurentide contacted representatives of Sucrest with regard to the possible sale of the sugar to Sucrest. On April 9, 1974, Delfin Bacani, assistant laboratory director for Revere, a Sucrest subsidiary, inspected the sugar at St. John in behalf of Sucrest. Part of the sugar was stored inside the Metro Warehouse in St. John. Bacani described the sugar in the warehouse as approximately " 1/3 soupy magma and 2/3 wet sugar."[3] The remainder of the sugar was kept outside in an open pit. Some of the sugar left outside was covered by canvas tarpaulins; the rest was exposed to the elements. Bacani and his supervisor, Warren *376 L. Reed, advised Sucrest that the sugar still was refinable and that if the purchase price was low enough, Sucrest could profit from the damaged cargo.
8. The negotiation between Laurentide and Sucrest culminated in a written Memorandum of Agreement signed at the Sucrest offices in New York City on April 24, 1974. Under the terms of the Memorandum, the buyer was to purchase the sugar at $.09 per pound and was to pay loading, unloading and transportation charges. Transportation of the cargo from St. John to Brooklyn was to be by ship.
Throughout the negotiations Sucrest was assumed to be the buyer. Sucrest officials represented the buyer, and draft memoranda listed Sucrest as the buyer. However, at the April 24 conference, Sucrest representatives asked Laurentide permission to substitute Interfood as buyer. Sucrest wished to make the change for inter-corporate business purposes. Laurentide agreed to the substitution provided that payment for the cargo would then be guaranteed by a letter of credit issued on a New York bank. Sucrest accepted this condition and Interfood was listed as the buyer. Rappaport, Sucrest's president, signed the Memorandum for Interfood in his capacity as geschaftsfurer. No other Interfood officials or employees participated in the transaction with Laurentide. Two days later, on April 26, 1974, Interfood sold the sugar to Sucrest for $.17 per pound.
9. Pursuant to the agreement with Laurentide, Sucrest arranged with its banker, the Chase Manhattan Bank ("Chase") in New York City to obtain a letter of credit to finance the transaction. The letter of credit nominally was issued on the account of Interfood and named Laurentide as the beneficiary. At the time the letter of credit was procured, Interfood had no account with Chase and, as a practical matter, Chase issued the letter of credit on the credit of Sucrest.[4]
The terms of the Memorandum of Agreement provided that Laurentide would receive partial payment on the letter of credit upon presentment of a bill of lading showing delivery of the sugar aboard the carrier at St. John. The balance was to be paid upon discharge of the sugar at its port of destination. Laurentide subsequently received payment from Chase on two occasions, pursuant to the Memorandum. On each occasion Chase charged Sucrest, not Interfood, for the sum it had paid to Laurentide. Chase also endorsed the bill of lading which it had received from Laurentide to Sucrest, not Interfood. The bill of lading was never negotiated between Interfood and Sucrest.[5]
The Charter of the JENNIFER
10. Sucrest, through its ship brokering agent, Maxwell Harris Co., Inc., and with the assistance of Laurentide, arranged with Druce and Rooney to charter the JENNIFER for the transportation of the damaged sugar in bulk from St. John to Brooklyn. The charter party, which was based on the Uniform General Charter (Gencon) form as approved by the Documentary Council of the Baltic and White Sea Conference and revised in 1922, contained an "FIO," or "free in, free out," clause, which meant that the shipper and receiver, respectively, were responsible for the risk and expense of loading and discharge of the cargo.[6] The charter party said nothing with respect to stowage and trimming of the sugar.
*377 As a Gencon charter, the charter party also carried the standard Gencon clause limiting the liability of the vessel's owner for loss of or damage to the cargo. That clause, clause 2 of the charter party, states in pertinent part:
Owners are to be responsible for loss of or damage to the goods or for delay in delivery of the goods only in case the loss, damage or delay has been caused by the improper or negligent stowage of the goods (unless stowage performed by shippers or their stevedores or servants) or by personal want of due diligence on the part of the Owners or their Manager to make the vessel in all respects seaworthy and to secure that she is properly manned, equipped and supplied or by the personal act or default of the Owners or their Manager.
Stricken from the Gencon charter form was the U. S. Clause Paramount, which is employed to incorporate the terms of the Carriage of Goods by Sea Act of the United States ("COGSA"), 46 U.S.C. § 1300 et seq., into a charter contract.
11. The charter party was signed at the Sucrest offices in New York City on April 24, 1974. Although Interfood formally was listed as charterer, no Interfood personnel were involved in negotiating the charter party. Rappaport signed the charter party in behalf of Interfood.
The Loading of the Cargo
12. The JENNIFER arrived at Long Wharf A in St. John at 0200 on Friday, May 10, 1974 to prepare for the loading of the sugar. She had sailed to St. John from Georgetown, Prince Edward Island, Canada, where she had undergone minor repairs, largely of a cosmetic nature, following the transfer of her title to Matthew on April 30. She left Georgetown for St. John on May 7 under the command of Captain Rooney.
During the crossing from Georgetown to St. John, Chief Officer Cartwright began to ready the JENNIFER's hold for the sugar cargo. The hold was swept clean and washed down, and the bilges pumped dry.
13. During the morning of May 10, Rooney, Cartwright, other ship's officers, and a representative of Empire Stevedoring Co., the stevedore retained by Sucrest, discussed the loading of the cargo. Rooney at that time ordered the stevedore to lay down sheets of heavy duty polyethylene horizontally across the floor of the hold and up the sides of the vessel. The sheeting covered the entire tank top, including the bilge wells. The purpose of the sheeting was to protect the cargo from moisture and impurities in the hold and to prevent sugar from clogging the bilge wells.
Neither Rooney nor any other officer of the JENNIFER ordered that the hold be fitted with transverse shifting boards.[7]
14. While the JENNIFER was en route to St. John, the sugar had been trucked from the Metro Warehouse to Long Wharf A, where it was stored in the open. The sugar was heaped in a series of irregularly shaped piles about four feet high and was partially covered by polyethylene sheets, which were held down by dunnage. A few pools of sugar syrup had formed between the peaks of the piles. The sugar appeared darker than most raw sugar cargos.
15. Loading commenced at approximately 1300 on May 10. At that time Rooney was still master of the JENNIFER. He did not turn the vessel over to Captain Anderson until 1800 that day. Cartwright as cargo officer supervised the loading operation.
The sugar was loaded by a shore-based crane equipped with a clam bucket. The sugar was dropped into the hold through the open hatch and was loaded from forward to aft. When dropped, the sugar peaked normally and did not flow. During loading, Cartwright had the stevedores use the clam bucket and the dragline to push the sugar into the wings of the hold and to trim the cargo. The cargo generally sloped aft following loading and trimming.
*378 Loading continued throughout the afternoon and into the evening and was completed at approximately 2330.
16. About 30 minutes before loading was completed, it began to rain with increasing intensity. Both because of the rain, and because the remaining cargo on the dock seemed wetter than that which first had been loaded, Cartwright ordered the hatch closed before all of the sugar was transferred from the dock to the hold.[8]
17. At approximately 1800 on May 10, during loading, Robert Tymann, a sugar chemist who was the assistant refinery manager at Revere, arrived at the JENNIFER. Sucrest had sent Tymann to St. John to take samples of the sugar and to pay the master of the JENNIFER for transporting the cargo. Tymann appeared in St. John as a sugar chemist and courier and not as an expert on the stowage or transportation of raw bulk sugar.
While at the dock, Tymann took representative samples from the sugar piles. The sugar did not appear to be close to the flow point. Although Tymann conducted no tests of the sugar at St. John, since he was without laboratory equipment, he estimated the moisture content of the sugar to be 3% to 4%. Subsequent laboratory tests conducted on the samples which Tymann gathered in St. John revealed the sugar to have had a moisture level of 5.68% and a polarization of 93%.[9]
18. The next morning, May 11, Tymann paid the agreed upon freight charge to Rooney by check and received in return a copy of the bill of lading. The original bill of lading negotiable in form was delivered to Laurentide. It was signed by Matthew's president, Druce, and listed Laurentide as the shipper, Chase Manhattan Bank as the consignee, with notification to Interfood. The bill of lading recited that it was "subject to all terms, conditions and exceptions of charter party dated at New York, N.Y. April 24th, 1974" and that "vessel not responsible for quantity, condition or quality." It described the cargo as approximately 1250 short tons of raw Australian sugar in bulk, salt water damaged.[10]
19. During the morning of May 11, Cartwright ordered the hatch opened in order to inspect the cargo. The cargo had not shifted or changed its appearance overnight. There were no signs of wetness, the cargo was trimmed to Cartwright's satisfaction, and the ship was level.
20. At 1500 on May 11, soundings of the JENNIFER's bilge wells were taken. The bilge wells, which were two feet deep, had approximately 12 inches of liquid in the forward wells and approximately nine inches in the aft wells.
The Voyage and the Stranding
21. The JENNIFER departed St. John at approximately 1610 without incident.[11] Sea conditions were calm.
22. At 0200 on Sunday, May 12, while located at 44° 08' north latitude and 67° 45' west longitude, in the Gulf of Maine off *379 Bar Harbor, the JENNIFER suddenly developed a 10° list to port. The Second Officer, who was on watch, immediately notified Anderson. A cursory examination of the hold revealed that the cargo had shifted. Anderson then ordered a May Day call to the United States Coast Guard. The Coast Guard ordered the JENNIFER to proceed to Bar Harbor and dispatched two vessels to escort her. During the passage to Bar Harbor, the list increased to 17°.
23. The JENNIFER arrived at Bar Harbor at approximately 0630 on May 12 and tied up at the Canadian National ferry dock. Her port list by then was 18°, and her port side deck line was under water. At this list, a small amount of water entered the hold through a gap between a cable entry pipe and the deck hole through which the pipe passed. No other water entered the hold from an exterior source during the voyage.[12]
24. Because the JENNIFER continued to list at the dock, Matthew, with the advice and assistance of the Coast Guard, decided to strand the vessel for the safety of both vessel and cargo. The list ultimately increased to 23°. The JENNIFER was towed about 300 feet from the berth and hauled onto the beach. The stranding occurred at approximately 1630 on May 12.
25. The JENNIFER lay stranded until May 16, when salvage operations began. The salvors pumped some 40 tons of liquid out of the vessel's hold, after which she was refloated and anchored. The next day, May 17, the JENNIFER was berthed at the Bar Harbor town dock where the rest of her cargo was discharged. Subsequently, the cargo was trucked to Searsport, Maine, and eventually to Brooklyn.
The Shifting of the Cargo
26. In Bar Harbor, the appearance and properties of the sugar had changed dramatically from when it had been loaded and inspected at St. John. The sugar had shifted transversely to port in the JENNIFER's hold. There were many large pools of syrup in the hold, particularly in the aft port section, whereas there had been no discernible pools in the hold at St. John. Much of the sugar looked like mud. It was mobile and free flowing. Other portions of the cargo were hard and crusty.
When the sugar was lifted out of the hold into the salvage scow, and, later, onto the town pier, it was dark brown in color and had the consistency of semi-liquid mud. It had no angle of repose and flowed freely. Laboratory tests of samples taken at Bar Harbor revealed the moisture content of the sugar to have risen to 9% and the polarization to have declined to 90.1%.
27. During the passage from St. John, the biological degradation of the sugar, which had commenced when the cargo first was contaminated, not only continued but accelerated, due to the fact that air temperatures in the hold were higher than temperatures on the open pier in St. John.[13] As a result of this ongoing bacteriological change, additional moisture and lubricants, in the form of water, alcohol, and carbon dioxide, were produced.
28. Under the perpetual vibration of the ship's engine and the roll of the ship, the moisture in the cargo, which was intensifying due to biological degradation, drained downward toward the bottom of the hold. The sugar particles became packed together more closely, and the effective moisture content of the lower portion of the cargo rose. The cargo at this point became a thixotropic.[14] In the hold of the JENNIFER, *380 the force of the sea rolling the ship caused the sugar, after its effective moisture content had increased through vibration and bacteriological change, to shift transversely. Since the ship's return roll was caused by gravity and not by waves, and since the force of gravity was less than the force of the waves, not all of the sugar flowed back to its original position on the return roll. Hence, the list developed which became more pronounced with repeated wave movement.
29. This maritime casualty marks the first instance in which the maritime or scientific community learned of the thixotropic properties of raw sugar.[15]
DISCUSSION
Sucrest essentially argues that Matthew is responsible for the damage to the sugar because Matthew failed to exercise due diligence to make the JENNIFER in all respects seaworthy, and improperly or negligently stowed the cargo. Matthew, conversely, denies unseaworthiness of the JENNIFER or negligence on its part and asserts that Sucrest was negligent in not informing it of the inherently dangerous condition of the cargo, a condition of which, Matthew claims, Sucrest was aware or should have been aware. On the entire record and the foregoing Findings of Fact,[16] the Court concludes:
*381 (1) That Matthew exercised due diligence in the discharge of its duty to make the JENNIFER seaworthy in all respects;
(2) That Matthew did not improperly or negligently stow the cargo;
(3) That Sucrest had no knowledge of and had no reason to know of the inherently dangerous nature of the cargo, and, therefore, was not negligent in failing to warn Matthew of the danger.
Consequently, the Court holds that neither Matthew nor Sucrest was guilty of any fault which was a proximate cause of the incident in question. Both plaintiff's complaint and defendants' counterclaim must therefore be dismissed.
Fault of Matthew
Clause 2 of the charter party imposes liability for cargo damage on Matthew if any one of three events caused the damage:
(1) improper or negligent stowage of the sugar, unless Sucrest, its stevedores or servants performed the stowage;
(2) personal want of due diligence on the part of Matthew or its Manager to make the JENNIFER in all respects seaworthy and to secure that she was properly manned, equipped and supplied; or
(3) the personal act or default of Matthew or its Manager.
Specifically, Sucrest contends that Matthew failed to use due diligence to make the JENNIFER in all respects seaworthy and to secure that she was properly manned, equipped and supplied (a) in accepting a cargo of salt water damaged raw bulk sugar for a single hold cargo vessel like the JENNIFER; (b) in accepting the cargo without first determining its moisture content and flow point; (c) in not installing shifting boards; (d) in not taking bilge soundings until 15 hours after loading was completed; and (e) in turning the JENNIFER over to a new master within 24 hours of sailing. Sucrest further contends that the sugar was improperly and negligently stowed by Matthew (a) in covering the bilge wells in the hold with polyethylene sheeting; (b) in loading the cargo during the rain; and (c) in not trimming the cargo.[17] Each of these alleged faults will be discussed seriatim.
1. Seaworthiness
Matthew did not fail to use due diligence by accepting the cargo of sugar aboard the JENNIFER. Central to the concept of seaworthiness is the duty of the owner to furnish a vessel properly equipped to handle the proposed cargo. The Southwark, 191 U.S. 1, 9, 24 S.Ct. 1, 48 L.Ed. 65 (1903); see Oxford Paper Co. v. The Nidarholm, *382 282 U.S. 681, 685, 51 S.Ct. 266, 75 L.Ed. 614 (1931). To this end, the owner must use all reasonable means to ascertain the nature and characteristics of the goods tendered for shipment, e. g., The Ensley City, 71 F.Supp. 444, 449 (D.Md.1947), aff'd, 170 F.2d 27 (4th Cir. 1948), and is charged with the knowledge it would have or should have acquired through the discharge of this duty. Anderson v. Lorentzen, 160 F.2d 173, 175 (2d Cir. 1947). However, the owner's duty to exercise due diligence to render the ship seaworthy "cannot be extended so far as to require the carrier to take measures to avoid a danger of which he did not know and could not reasonably be expected to know." Heath Steel Mines, Ltd. v. The Erwin Schroder, [1970] Can.Exch. 426, 440.[18]
Raw sugar is a commodity which has been transported successfully in bulk carriers such as the JENNIFER for nearly a quarter of a century. Indeed, as both Captain Glover, who testified in behalf of Matthew, and Thomas On Stowage, supra at 399, a treatise upon which Sucrest frequently relies, agree, bulk transportation of raw sugar is a safe and accepted means of water carriage. The JENNIFER was an appropriate vessel in which to carry raw sugar in bulk; Matthew was not negligent in tendering her for that purpose.
Sucrest further argues that, notwithstanding the customary use of bulk carriers to transport raw sugar, the vessel was not equipped to handle salt water damaged sugar and that Matthew, through Rooney, failed to exercise due diligence in not determining the moisture content and flow point of the sugar before accepting the cargo. Sucrest points to the fact that pools of water had gathered in the sugar as it lay on the wharf as evidence available to Matthew which indicated the dangerous state of the cargo. Nevertheless, the uncontradicted testimony of Captain Glover was that pools of syrup always form in raw sugar. The existence of the pools did not foreshadow the volatile nature of the sugar.
To be sure, no agent of Matthew analyzed samples of the sugar prior to loading, but the on-site inspection by Sucrest's own representative, Tymann, and the laboratory results of the samples which he took did not reveal the sugar to be flowing or dangerously moist. Tymann reported that the sugar remained peaked in piles after having been dumped at Long Wharf A, and the moisture content of the sugar at that time was 5.08%, considerably below the 9% flow point of raw sugar. Even if Matthew had taken laboratory tests of the sugar, the tests would not have alerted it to the hazards of carrying the cargo. Matthew cannot be faulted for accepting the cargo in the condition as it appeared prior to loading. Heath Steel Mines, Ltd. v. The Erwin Schroder, supra; see The Nitroglycerine Case, 82 U.S. (15 Wall.) 524, 536-37, 21 L.Ed. 206 (1872).
Similarly, Matthew cannot be charged with failing to exercise due diligence to make the JENNIFER seaworthy with respect to the decision not to install shifting boards. Sucrest cites a section of Thomas On Stowage, supra at 302, which reprints the International Marine Consultation Organization ("IMCO") Code of Practice for Bulk Cargos, for the proposition that the JENNIFER properly should have been fitted with shifting boards. That portion of the IMCO Code, though, deals specifically with the carriage of ore concentrates, a bulk commodity with characteristics different from those of raw bulk sugar.[19] Not only is the reference to the IMCO Code inapposite, but Thomas On Stowage itself, at 399, particularly states that in the transportation of raw bulk sugar, "No shifting *383 boards are required whether the compartment is wholly or partly filled." Because of the normally passive characteristic of raw sugar, the seaworthiness of the carrying vessel is not impaired by the absence of transverse shifting boards. Matthew did not fail to exercise due diligence to make the JENNIFER seaworthy by not installing shifting boards.
Sucrest likewise relies on the IMCO Code to establish that Matthew committed error in not taking bilge soundings immediately upon completion of loading the sugar cargo. As the Code makes clear, however, the reason for sounding the bilges soon after loading is to determine whether the bulk cargo, because of its weight and the velocity at which it customarily is loaded, has damaged the bilge system. Thomas On Stowage, supra at 306, IMCO Code §§ 2.9, 2.10. This purpose was fully served when the soundings were taken at 1500 on May 11. The bilges, which had been cleaned and prepared for loading on the voyage from Prince Edward Island, worked satisfactorily at that time. The timing of the bilge soundings in no way jeopardized the seaworthiness of the JENNIFER.
Sucrest also faults Matthew, through Rooney, for turning command of the JENNIFER over to Captain Anderson less than 24 hours before she departed St. John. Anderson had not previously carried a cargo of raw bulk sugar. Because of Anderson's lack of familiarity with the cargo, and due to the relatively short period in which Anderson had command of the vessel before she sailed, Sucrest argues, Matthew breached its obligation to assure that the JENNIFER was properly manned. However, Captain Glover testified without contradiction that it is routine for a master to receive a briefing and to take command of a ship with a cargo new to him in as little as four hours before sailing. Glover noted that, if the exigencies of a situation so require, command can be transferred in two hours. Significantly, Captain William Wheeler, a maritime expert who appeared in behalf of Sucrest, made no mention of Anderson's status as a new master during his discussion of the casualty. Rooney cannot be faulted for the manner in which he handed the JENNIFER over to Anderson; Matthew did not violate its duty to exercise due diligence in manning the vessel.
2. Stowage of the Cargo
Sucrest assigns error to Matthew's stowage of the cargo on three grounds. First, primarily on the basis of Captain Wheeler's testimony, Sucrest claims that Rooney's decision to lay polyethylene sheeting across the hold and over the bilge wells prevented the cargo from draining and thereby caused the liquification of the sugar and the list which imperiled the ship. Wheeler, in turn, referred frequently to Thomas On Stowage while testifying as to the alleged imprudence of covering the bilge wells. Wheeler's opinion, nonetheless, was predicated on general axioms of cargo stowage and not on his personal experience with the handling of raw bulk sugar. Wheeler himself had never carried a cargo of bulk sugar during his years at sea and had no direct knowledge of the commodity.
On the other hand, both Captain Glover and Dr. Suddaby, experts with considerable knowledge of the properties of raw sugar, testified emphatically that moist bulk sugar of the type loaded aboard the JENNIFER would not drain effectively through the ship's bilge wells. Because of the viscosity of the sugar, Glover and Suddaby explained, the sugar, if allowed to drain, simply would have plugged up the small apertures in the strainer plates which covered the bilge wells. Rather than facilitating the handling of the cargo, leaving the bilge wells and strainer plates uncovered would have clogged the bilge wells with the sugar and would have rendered the bilge system inoperable. As well as Glover and Suddaby, Jan Bijhouwer, a marine surveyor who testified in behalf of Sucrest, refused to attribute the cause of the casualty to the covering of the bilge wells. The record does not support Sucrest's claim that the use of the polyethylene sheeting was either negligent or improper.
*384 As a second error, Sucrest points to the fact that some of the cargo was loaded in the rain. Although raw bulk sugar ordinarily should not be loaded during rain or snow, due to the damage which the moisture can cause to the sugar, Thomas On Stowage, supra at 398, any damage which occurred as a result of the rain at St. John was minimal. During a ten and one-half hour loading operation, only 30 minutes of loading took place in the rain. Moreover, Chief Officer Cartwright halted the loading of the most seriously damaged sugar. Given the limited exposure of the cargo to the rain during loading and the prudent action of Cartwright in not accepting the last loads of sugar, the Court cannot find that the brief period of loading the cargo in the rain significantly contributed to the damage to the cargo or to the instability of the vessel.
Sucrest also claims that Matthew was negligent because it failed to trim the sugar after it had been placed in the hold. There exists no basis in fact to support this contention. Sucrest cites the testimony of Tymann, who stated that the sugar had peaked when it was dropped into the hold. But Tymann observed the loading operation for only a few minutes, and he admittedly had no experience in the area of cargo handling or stowage. To the contrary, Cartwright testified that during loading, the clam bucket and drag line were employed to flatten the cargo and push it into the wings. He further stated that when he inspected the sugar on the day following loading, the cargo appeared to be adequately trimmed. On the facts before it, the Court must conclude that the cargo was in fact appropriately stowed and trimmed.
Despite the numerous negligent or improper acts or omissions which Sucrest attempts to ascribe to Matthew, the record establishes that Matthew fully discharged its duty to exercise due diligence to make the JENNIFER seaworthy and to properly stow the cargo. The Court can find no fault on the part of Matthew which was a proximate cause of the incident here in issue.
Fault of Sucrest
In its counterclaim, Matthew asserts that Sucrest was negligent because of its failure to warn Matthew of the potentially hazardous nature of the sugar. Matthew argues that, because of Bacani's report of his April 9 inspection, in which he described part of the sugar located at the Metro Warehouse as "soupy magma," Sucrest had actual knowledge of the cargo's inherent danger. Matthew additionally contends that, since it was a sugar refiner, Sucrest ought to have known of the hazards which the cargo presented.
As Matthew correctly notes, under maritime common law in the United States a cargo owner is under the obligation of informing a carrier of inherent dangers in the cargo of which the cargo owner is aware or ought to be aware and of which the carrier is not aware and cannot reasonably be expected to be aware. The William J. Quillan, 180 F. 681, 682-84 (2d Cir.), cert. denied, 218 U.S. 682, 31 S.Ct. 229, 54 L.Ed. 1208 (1910); Aktieselskabet Fido v. Lloyd Brazileiro, 267 F. 733, 736-37 (S.D.N.Y. 1919), aff'd, 283 F. 62 (2d Cir.), cert. denied, 260 U.S. 737, 43 S.Ct. 97, 67 L.Ed. 489 (1922); 2A Knauth's Benedict on Admiralty (7th ed. 1977) § 99, at 9-15, 9-16.[20] In the case at bar, since Matthew neither knew of nor reasonably should have known of the hazards in carrying the sugar, Sucrest was *385 obligated to give Matthew notice of such hazards within its actual or constructive knowledge.
Sucrest, however, had neither actual nor constructive warning of the dangerous properties of the sugar. Bacani's report indicated that the sugar was of poorer quality than a normal cargo of raw sugar, but gave no portent of the sugar's potential instability. The later, more thorough inspection which Tymann conducted during loading undercuts the accuracy of Bacani's characterization of portions of the sugar as magma and further suggests that the sugar was a passive, safe cargo.[21] Sucrest realized that the sugar was salt water damaged, but in no sense had actual knowledge of the cargo's innately hazardous condition.
Neither is Sucrest chargeable with constructive knowledge of the cargo's hazards. The critical, overriding factor upon which an examination of Sucrest's and, indeed, Matthew's liability turns is that the inherently dangerous propensities of salt water damaged raw bulk sugar were unknown either to the sugar industry or in maritime circles at the time of the incident here in question. Neither Glover nor Suddaby had previously encountered a situation where, without the ingress of additional water into the hold during the voyage, a cargo of moist raw sugar assumed a thixotropic state and flowed as a result of engine vibration and biological degradation. Suddaby himself had doubted the thixotropic properties of raw sugar until his laboratory experiments in preparation for the trial proved otherwise.[22] Just as Matthew cannot be held liable for failing to equip the JENNIFER for a cargo the hazards of which it reasonably could have no knowledge, Heath Steel Mines, Ltd. v. The Erwin Schroder, supra; see The Nitro-glycerine Case, supra, Sucrest likewise cannot be held negligent for failing to inform Matthew of these unknown and, apparently hitherto undiscovered, dangers. The William J. Quillan, supra; Aktieselskabet Fido v. Lloyd Braziliero, supra; 2A Knauth's Benedict On Admiralty, supra. The Court can find no fault on the part of Sucrest which was a proximate cause of the cargo shift and the subsequent stranding of the JENNIFER.
CONCLUSIONS OF LAW
The Court's conclusions of law are:
1. This Court has jurisdiction of the actions and of the parties thereto. 28 U.S.C. §§ 1333(1) and 1332(a)(2).
*386 2. Matthew neither failed to exercise due diligence in making the JENNIFER seaworthy in all respects nor improperly or negligently stowed the sugar cargo. No fault of Matthew constituted a proximate cause of the damage to the cargo.
3. Sucrest neither knew of nor reasonably should have known of the inherently dangerous nature of the sugar cargo, and therefore was not negligent in failing to warn Matthew of the danger. No fault of Sucrest constituted a proximate cause of the cargo shift and the subsequent stranding of the JENNIFER.
DIRECTION FOR ENTRY OF JUDGMENT
In accordance with the foregoing Findings of Fact and Conclusions of Law, it is
ORDERED, ADJUDGED and DECREED
(1) That in this action final judgment be entered dismissing Sucrest's amended complaint against the JENNIFER and Matthew, with prejudice;
(2) That in this action final judgment be entered dismissing the amended counterclaim of the JENNIFER and Matthew against Sucrest, with prejudice.
NOTES
[1] Neither Sucrest nor JENNIFER and her owner have recited a jurisdictional basis in the pleadings.
[2] Polarization is a means by which the purity of sugar can be tested. The lower the polarization, the less pure the sugar. Pure sucrose has a polarization of 100%. Sugar cargos, however, have a polarization less than 100% due to moisture, invert sugars, and other impurities in the cargo. The less pure the sugar, the more difficult it is to refine.
The angle of repose is the angle between a horizontal plane and the cone slope obtained when a bulk cargo is emptied onto the plane. Thomas on Stowage (revised ed. 1971) at 326, a recognized authority on the stowage and transportation of cargo, lists the angle of repose for raw sugar at 32°. Captain Frank D. Glover, an expert with extensive experience in the carriage of raw bulk sugar who appeared on behalf of the JENNIFER, testified that he had personally measured the angle of repose and had found it to be 40°. For the purposes of ocean carriage, the lower the angle of repose of a bulk commodity, the more likely it is to shift in the hold of a vessel.
[3] Magma is a paste-like mix of raw sugar and sugar syrup. The moisture content of magma is approximately 7% to 8%.
[4] Allerton D. Marshall, the Sucrest official who arranged the financing, conceded that Chase relied on Sucrest, its established client, for reimbursement in the event that Interfood did not make repayment.
[5] Interfood later reimbursed Sucrest for the amounts which Sucrest had paid in its behalf on the letter of credit. Sucrest subsequently paid Interfood for the sugar which it purchased from Interfood on April 26 by direct payment in West German marks and through credits entered on intercompany accounts.
[6] The charter party document itself contains only a "free out" clause. Because the charter party was negotiated hurriedly, the "free in" clause was omitted through inadvertence. However, according to Donald Harris, the employee of Maxwell Harris Co., Inc. who brokered the charter, all parties recognized that loading was to be "free in."
[7] Shifting boards are installed fore and aft in a ship's hold to prevent bulk cargos which are fluid or which shift easily from moving transversely and thereby causing the ship to list.
[8] Anderson also apparently was concerned that the wet sugar remaining on the dock, which also contained an inordinately high degree of rubbish and similar debris, would contaminate the better quality sugar which had been loaded in the hold.
[9] The flow point of raw sugar, the point at which the sugar flows like a liquid rather than holds its shape like a dry commodity, is reached when the moisture content of the sugar is approximately 9%. See Discussion, infra. A polarization of 93% indicates the sugar to have been of poorer quality than the average cargo of raw sugar. See Finding No. 5, supra.
[10] Rooney estimated the weight of the cargo by examining the JENNIFER's draft.
[11] At one point during the trial, plaintiff suggested that the JENNIFER may have grounded out and holed herself while berthed at St. John. There is no credible evidence to support a finding that the ship grounded out and was holed in St. John. The various marine surveyors who inspected the JENNIFER in dry dock, including plaintiff's own expert surveyor, uniformly agreed that the hull damage and holing which the JENNIFER sustained was caused by her stranding at Bar Harbor and not by grounding out at a berth. None of the ship's officers reported a grounding and her records contain no reference to such an incident.
[12] See note 11 supra, and Discussion, infra.
[13] The warmer the temperature, the quicker the degradation. Not only was the hold covered and protected, unlike the open storage area at the pier, but the ship itself entered warmer waters as she left the Bay of Fundy and sailed in close proximity to the Gulf Stream. These waters warmed the hull and, consequently, the hold.
[14] A thixotropic is a commodity the fluidity of which increases when a substantial force is applied against it. The greater the force, the more fluid the thixotropic becomes. A common example of a thixotropic is dripless paint. The force of gravity alone is insufficient to change the paint's gel-like, nonfluid consistency. When brushed, however, the paint flows because of the added force of the brush stroke.
[15] In finding the cause of the change in and shift of the sugar cargo, the Court has relied on the testimony of defendants' experts, Captain Frank D. Glover, who has had 17 years of experience in the carriage of bulk sugar, and Dr. Arthur Suddaby, a scientific consultant on the carriage of goods by sea with a background in physics, chemistry and mathematics. Plaintiff offered no similarly qualified experts on the characteristics of sugar or the carriage of bulk sugar by sea. See Discussion, infra.
[16] The parties have argued at length the question of whether COGSA or the charter party is the instrument which controls their rights and liabilities. Both sides nevertheless admit that the primary effect of the resolution of the issue simply is to determine which side bears the burden of proof. Margarine Verkaufsunion Gmbh v. M.T. G.C. Brovig, 318 F.Supp. 977, 979 at n. 10 (S.D.N.Y.1970). If COGSA is the applicable standard, then Matthew has the ultimate burden of establishing its freedom from fault. 46 U.S.C. § 1304(2)(q); Nichimen Company, Inc. v. M/V Farland, 462 F.2d 319, 329 (2d Cir. 1972); M. W. Zack Metal Co. v. S. S. Birmingham City, 311 F.2d 334, 337 (2d Cir. 1962), cert. denied, 375 U.S. 816, 84 S.Ct. 50, 11 L.Ed.2d 51 (1963); see Schnell v. The Vallescura, 293 U.S. 296, 303-07, 55 S.Ct. 194, 79 L.Ed.2d 373 (1934). If, on the other hand, the charter party controls, then the burden rests on Sucrest to establish Matthew's fault. Margarine Verkaufsunion Gmbh v. M.T. G.C. Brovig, supra; see Commercial Molasses Corp. v. New York Tank Barge Corp., 314 U.S. 104, 108-10, 62 S.Ct. 156, 86 L.Ed. 89 (1941). In the instant proceeding, the determination of this question has no other practical effect, since, as the parties agree, the governing standards of COGSA and of the charter party are similar in all presently material respects. Compare clause 2 of the charter party, see Finding of Fact No. 10, supra, with 46 U.S.C. §§ 1303(1), (2), 1304(1), (2). Moreover, regardless of where the burden of persuasion lies, the Court's Findings of Fact in no case are predicated upon a determination that a party has not carried its burden of persuasion.
Although the practical impact of determining whether COGSA or the charter party is the controlling instrument is minimal, in order that there may be no ambiguity as to the basis of the Court's holdings, the Court has resolved the question and, for the reasons briefly stated herein, concludes that the charter party governs the rights and liabilities of the parties. COGSA, of course, would apply if the bill of lading served as the contract for the carriage of the sugar. 46 U.S.C. § 1300; Nichimen Company, Inc. v. M/V Farland, supra at 328. Since the evidence clearly shows that Interfood was no more than the mere instrumentality of Sucrest, under settled principles Sucrest must be regarded as the true charterer of the JENNIFER; clearly, Sucrest was not the innocent transferee of the bill of lading for whose protection COGSA was enacted. Chilean Nitrate Sales Corp. v. The Nortuna, 128 F.Supp. 938, 940 (S.D.N.Y.1955); Gilmore and Black, The Law of Admiralty (2d ed. 1975) § 4-10, at 218-19; see Sarantex Shipping Co. v. Wilbur-Ellis Co., 391 F.Supp. 834, 887-88 (D.Ore.1975); see also Fisser v. International Bank, 282 F.2d 231 (2d Cir. 1960). Where, as in the present case, the charterer holds the bill of lading, it is equally well settled that the bill of lading serves merely as a receipt for the cargo and does not function as the contract for the carriage of the goods. The Marine Sulphur Queen, 460 F.2d 89, 103 (2d Cir.), cert. denied, 409 U.S. 982, 93 S.Ct. 318, 34 L.Ed.2d 246 (1972). In such circumstances, the charter party, not the bill of lading, and, hence, not COGSA, governs the relationship between the parties, unless the charter specifically adopts the bill of lading as regulating the rights of the parties. Gilmore and Black, supra. The charter party here in issue unlike that in Nichimen Company, Inc. v. M/V Farland, supra, does not contain such a clause. Consequently, in the instant case, the charter party functions as the contract for the carriage of the sugar, COGSA is inapplicable, and the charter party establishes the rights and obligations of the parties.
[17] Matthew insists that, because of the FIO term in the charter party, it had no responsibility with respect to the stowage of the cargo. Although the duty to load, stow, trim and discharge cargo and the consequences for failing to do so properly normally fall upon the shipowner, e. g., Nichimen Company, Inc. v. M/V Farland, supra at 330; Munson S.S. Line v. Glasgow Nav. Co., 235 F. 64, 67 (2d Cir. 1916), cert. denied, 243 U.S. 643, 37 S.Ct. 405, 61 L.Ed. 944 (1917), these duties may be shifted contractually to the charterer. Nichimen Company, Inc. v. M/V Farland, supra at 330-31; The Kaupanger, 241 F. 702, 704 (S.D.N.Y.1917).
However, unlike the charter party in the Nichimen case which obligated the charterer to "load, stow, and trim the cargo," the charter party here is silent with regard to responsibility for stowage and trim. The obligation properly to stow and trim consequently remained with the carrier. See Nichimen Company, Inc. v. M/V Farland, supra. That the FIO clause did not transfer stowage and trimming duties but only fixed payment for loading and unloading was made apparent by the very behavior of the parties. Rooney, Cartwright and Anderson assumed responsibility for stowage and trim, not Empire Stevedoring Co., the stevedore hired by Sucrest. Furthermore, as Harris the charter broker testified, the FIO term generally is not understood to comprehend stowage and trim but only loading and unloading costs. If responsibility for stowage and trim are to be transferred to the charterer, the charter party contains what the industry calls an FIOST clause, similar to that written into the charter party at issue in the Nichimen case and not present in the agreement between Sucrest and Matthew.
[18] Although The Erwin Schroder involved an interpretation of the U.S. COGSA, the concepts of due diligence and seaworthiness as employed in COGSA bear the same meaning as when used in a charter party. Gilmore & Black, supra, § 4-5, at 208.
[19] All of the expert witnesses uniformly agreed that ore concentrates differ considerably from sugar in regard to cargo handling. For example, whereas sugar particles, to a certain degree, will absorb excess moisture, ore concentrates will not but instead will tend to flow more readily upon the introduction of added moisture.
[20] Matthew does not argue that the cargo owner warrants absolutely that the cargo contains no inherent dangers unknown to the shipowner. Apparently, under the common law of England, unless the shipowner has actual or constructive knowledge of a cargo's hazards, the cargo owner impliedly warrants that his goods are fit for ordinary carriage and are not hazardous. Scutton On Charter Parties (18th ed. 1974), at 100 n. 80; but see Carver On Carriage By Sea (12th ed. 1971), at 595-98. In the United States, the cargo owner is not held to such an absolute warranty but only to knowledge actually or constructively within its possession. The William J. Quillan, supra; Aktieselskabet Fido v. Lloyd Brazileiro, supra; 2A Knauth's Benedict On Admiralty, supra; cf. 46 U.S.C. § 1304(3); contra, Pierce v. Winsor, 19 F.Cas. 646, 651 (No. 11,150) (C.C.D.Mass. 1861).
[21] As previously noted, Tymann stated that, when he observed it, the sugar was not flowing, and the laboratory test of the sugar samples which he had collected revealed the moisture content of the sugar, 5.68%, to be less than the flow point of raw sugar, approximately 9%, and the moisture level of magma, typically 7% to 8%.
[22] In the course of examining the cause of the incident which occurred aboard the JENNIFER, Suddaby conducted a series of tests designed to indicate the effects of moisture and vibration on raw bulk sugar. Suddaby used raw Trinidadian sugar in the experiment which, he stated, has approximately the same particle size and other characteristics similar to raw Australian sugar. The test consisted of forming raw sugar into a mold, placing the molded sample on a vibrating table, removing the mold and observing whether the sugar flowed after considerable vibration. The test was repeated with increasing moisture levels in the sugar. The moisture level was calculated by weight. The mold used contained about one kilogram of sugar and was the same type of mold used in IMCO Code tests of bulk commodities. The vibrating table was operated at 200 cycles per minute at an amplitude of .25 millimeters. These settings replicated the vibrations produced by a ship's engine.
At moisture contents up to 7%, the sugar sample, when unmolded, yielded a firm product which did not flow when vibrated. At 9%, the moisture content of the sugar samples taken at Bar Harbor, the sugar gave a firm profile when removed from the mold. It was somewhat shinier than other samples because of the added moisture, but otherwise was comparable to them. Yet after 30 minutes of vibration, unlike the other samples, the 9% mixture showed considerable flow at the base of the sample, which visually resembled the sugar cargo as it appeared in Bar Harbor.
The Court is satisfied that Suddaby's experiment reproduced in substantial similarity the conditions which existed aboard the JENNIFER. The test results are therefore admissible in evidence and are entitled to considerable weight. Lever Brothers Co. v. Atlas Assurance Co., 131 F.2d 770, 777 (7th Cir. 1942); Weaver v. Ford Motor Co., 382 F.Supp. 1068, 1072-73 (E.D.Pa.1974), aff'd, 515 F.2d 506 (3d Cir. 1975).
| {
"pile_set_name": "FreeLaw"
} |
159 Mich. App. 62 (1987)
406 N.W.2d 235
CITY OF DETROIT
v.
LUFRAN COMPANY
Docket No. 81316.
Michigan Court of Appeals.
Decided April 7, 1987.
Donald Pailen, Corporation Counsel, Abigail Elias, Deputy Corporation Counsel, and Joseph N. Baltimore, Assistant Corporation Counsel, for the City of Detroit.
Mason, Steinhardt & Jacobs, P.C. (by Frederick D. Steinhardt and Walter B. Mason, Jr.), for Lufran Company.
Before: BEASLEY, P.J., and D.E. HOLBROOK, JR., and D.L. SULLIVAN,[*] JJ.
D.L. SULLIVAN, J.
Defendant appeals the trial court's award of expert witness fees pursuant to § 16 of the Uniform Condemnation Procedures Act, MCL 213.66; MSA 8.265(16).
Plaintiff, City of Detroit, condemned property belonging to defendant within the Central Industrial Park Project (Poletown). Defendant employed two expert witnesses, Gerald Anderson and William Walsh, to give testimony as to the value of its property. Subsequent to a jury award of $1,400,000, defendant moved for compensation for its experts for services rendered in the course of litigation. Specifically, defendant requested $42,875 for Anderson's services and $49,175 for Walsh's services.
*64 The trial court heard testimony that the flat fee for an appraisal was $25,000 each for Anderson and Walsh. This appraisal included an examination of "comparables" and ultimate identification of the "least costly desirable substitute." The remainder of the experts' fees were incurred at a rate of $100 per hour. Defendant submitted itemized billing summaries of Anderson and Walsh. These summaries included hourly figures for meetings, conferences with attorneys, "review" of the experts' files and appraisal reports, preparation for trial, and appearance at court. The testimony of Walsh and Anderson indicated that the time billed under each of these items included continual review of the appraisal reports, reviewing comparables learned of after submission of their appraisals, discussion of the "legal perimeters" of their testimony, educating the attorneys about the standards used in their appraisals, trial strategy sessions, critical assessment of the city's comparables, time present in court, and time spent testifying.
The trial court awarded the $25,000 flat fee to each expert for his appraisal and awarded $4,000 to each expert, $2,000 for review and preparation for trial, and $2,000 for court time. The court's denial of additional amounts can be summed up by the following from the court's written opinion: "This Court does not believe that the appraisers are entitled to be compensated as consultants, [and] the Court does not believe that all of the review time was necessary." Defendant appeals, attacking the trial court's award on two fronts: (1) defendant claims that MCL 213.66; MSA 8.265(16) permits appraisers to be compensated as consultants; and (2) defendant claims that, assuming arguendo appraisers are not properly compensated as consultants, the trial court's ultimate award *65 evidences an abuse of discretion. We address those claims in order.
1980 PA 87, § 16; MCL 213.66; MSA 8.265(16), provides in relevant part:
(1) A witness, either ordinary or expert, in a proceeding under this act shall receive from the agency the reasonable fees and compensation provided by law for similar services in ordinary civil actions in circuit court, including the reasonable expenses for preparation and trial.
* * *
(4) Expert witness fees provided for in subsection (1) shall be allowed with respect to an expert whose services were reasonably necessary to allow the owner to prepare for trial. The agency's liability for expert witness fees shall not be diminished or affected by the failure of the owner to call an expert as a witness if the failure is caused by settlement or other disposition of the case or issue with which the expert is concerned.
Defendant contends that subsection (4) permits compensation for all experts' "services ... reasonably necessary to allow the owner to prepare for trial." We disagree.
We do not read the words "services ... reasonably necessary to allow the owner to prepare for trial" in subsection (4) as defendant does, i.e., as modifying "expert witness fees." Rather, that language describes only those experts whose fees are recoverable, i.e., those "whose services were reasonably necessary to allow the owner to prepare for trial." We believe that our reading is buttressed by the second sentence of subsection (4) which provides that an agency's liability "shall not be diminished or affected by the failure ... to call an expert as a witness if the failure is caused by settlement or other disposition." The expert witness *66 fees recommended for an expert whose services were reasonably necessary to allow the owner to prepare for trial are those fees "provided for in subsection (1)."
Subsection (1) of § 16 provides that an expert witness "shall receive ... the reasonable fees and compensation provided by law for similar services in ordinary civil actions in circuit court, including the reasonable expenses for preparation and trial."
The "fees and compensation provided by law for similar services in ordinary civil actions in circuit court" refers to the statutory provision of MCL 600.2164; MSA 27A.2164. See Security Life Ins Co v Schwartz, 221 Mich 496; 191 NW 216 (1922); City of Holland v Green, 25 Mich App 565, 571, n 1; 181 NW2d 821 (1970). That statute, § 2164 of the Revised Judicature Act provides:
(1) No expert witness shall be paid, or receive as compensation in any given case for his services as such, a sum in excess of the ordinary witness fees provided by law, unless the court before whom such witness is to appear, or has appeared, awards a larger sum, which sum may be taxed as a part of the taxable costs in the case. Any such witness who shall directly or indirectly receive a larger amount than such award, and any person who shall pay such witness a larger sum than such award, shall be guilty of contempt of court, and on conviction thereof be punished accordingly.
As we read the statutes, the only difference between amounts properly paid experts under § 2164 of the RJA and § 6 of the Uniform Condemnation Procedures Act is that the award of expert witness fees for trial preparation time is discretionary under § 2164, see Gunderson v Village of Bingham Farms, 1 Mich App 647; 137 NW2d 763 (1965), while mandatory under § 16.
*67 We believe that, read in the conjunctive, experts are properly compensated under MCL 213.66; MSA 8.265(16) for court time and the time required to prepare for their testimony as experts, i.e., as individuals whose specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. MRE 702. See State Highway Comm'r v Rowe, 372 Mich 341, 343; 126 NW2d 702 (1964). Therefore, we do not regard conferences with counsel for purposes such as educating counsel about expert appraisals, strategy sessions, and critical assessment of the opposing party's position to be properly compensable as expert witness fees. In this regard, we agree with the following observation of the trial court:
This Court does not believe that when an appraiser renders services that go beyond and without the scope of the type of services that would normally be believed as those to be rendered by a persion [sic] in his position or profession, that such services should be taxable costs. There is nothing illegal in the owner [sic] hiring a personal advocate, but the statute made provision for the compensation to be paid to an attorney. It does not provide for fees to be paid a consultant nor does it provide that when such payment is made that [sic] the expenditure may be taxed as costs.
This Court believes that the appraiser must never leave the witness stand as an expert witness and become a litigant, an advocate or an attorney in fact. If the appraiser is allowed to do that than [sic] the entire value of the appraisal system is destroyed. The Court cannot believe that any of the bar committees or the members of the legislature ever envisioned the appraiser becoming a mercenary for either the condemnee or the condemnor.
We next address defendant's claim that, assuming *68 arguendo the trial court properly construed the statute, its award for trial preparation was grossly inadequate and represents an abuse of discretion. We find this claim to be without merit.
The trial court awarded defendant's experts the full fee for their appraisals and twenty extra hours, at $100 per hour, for further trial preparation. We agree with the trial court that the tremendous time and effort used to prepare the appraisal was significant preparation and permitted defendant's experts to well acquaint themselves with the subject matter of this suit. Other than the abridged billing summaries on the experts' time sheets, the record provides few specifics of how the additional hours tabulated were spent by the experts. The burden of proof rests upon the one who has the affirmative of an issue. 11 Michigan Law & Practice, Evidence, § 21, p 159. From the record before us, we cannot say that the trial court abused its discretion in finding that the weight of constant review thereafter was not necessary to trial testimony, but was either repetitious or done with an eye toward assisting the attorneys in their legal theories and presentation of defendant's case.
Finally, defendant contends that the trial court erred when it excluded evidence of fees paid by the City of Detroit to its experts for other Poletown parcels. Denial or admission of evidence on the ground that it would lead to confusion of issues is within the discretion of the trial court. MRE 403. Because all amounts so paid would not necessarily be compensable if the city were the property owner whose property was being condemned, we find no abuse of discretion.
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
| {
"pile_set_name": "FreeLaw"
} |
665 N.E.2d 599 (1996)
Enlow ROSS, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff.
No. 49A04-9506-CR-211.
Court of Appeals of Indiana.
May 13, 1996.
*600 June D. Oldham, Indianapolis, for Appellant.
Pamela Carter, Attorney General, Meredith J. Mann, Deputy Attorney General, Indianapolis, for Appellee.
OPINION
RILEY, Judge.
STATEMENT OF THE CASE
Defendant-Appellant Enlow Ross (Ross) appeals following his conviction for rape, a Class A felony[1]; and burglary, a Class B felony[2].
We affirm.
ISSUES
Ross raises three issues for our review which we restate as follows:
1. Whether the State's DNA witness was properly qualified as an expert.
2. Whether the trial court erred by admitting a videotape of general DNA procedure.
3. Whether the manner in which the State exercised its peremptory challenges offended Batson principles.
FACTS AND PROCEDURAL HISTORY
On March 9, 1990, the victim Toni Anderson was asleep in the bedroom of her apartment when she was awakened by a man with a hood covering his face. The man held a knife to Anderson's throat, covered her face with a pillow and raped her repeatedly. When Anderson thought the man had left the apartment, she called 911. Police arrived within minutes and transported her to Wishard Hospital where a rape kit was completed.
*601 Anderson was never able to positively identify Ross; however Ross was identified as the perpetrator at trial through DNA and fingerprint evidence.
On July 13, 1994, Ross was charged by information with rape and burglary.[3] Following a trial by jury, he was convicted of both counts.
DISCUSSION AND DECISION
I. DNA Expert Witness
Ross contends that the State's DNA witness was not properly qualified as an expert. Dr. Mohammed Tahir, of the Marion County Forensic Services Agency, sponsored the State's critical DNA evidence. After conducting DNA testing on the vaginal swab samples taken from Anderson and Ross's blood samples, Dr. Tahir opined that Ross was the source of the seminal fluid. Ross did not object at trial to Dr. Tahir's qualifications, nor did he object when Dr. Tahir offered his opinion that the seminal fluid originated from Ross. Accordingly, Ross failed to preserve this issue for appeal and any error has been waived. Harris v. State, 644 N.E.2d 552, 554 (Ind.1994) (failure to raise error at trial results in preclusion of appellate review).
However, we note for the sake of finality that Dr. Tahir was eminently qualified to testify as an expert in the field of DNA testing. Ind.Evidence Rule 702 provides that
[i]f 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.
Absent an abuse of discretion, we will not disturb a trial court's determination that a witness is qualified to testify as an expert and render an expert opinion. Matter of Adoption of L.C., 650 N.E.2d 726, 733 (Ind. Ct.App.1995), reh'g denied, trans. denied, cert. denied, ___ U.S. ___, 116 S.Ct. 1423, 134 L.Ed.2d 547. An abuse of discretion occurs if the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom. Id.
Dr. Tahir is a forensic scientist specializing in the area of forensic serology and DNA analysis. He has supervised the Crime Lab's DNA and serology section since 1990. Dr. Tahir holds several degrees including two master degrees and a doctorate degree. In addition, he has attended extensive FBI training seminars in the area of DNA analysis, published several academic articles on DNA analysis, and has taught courses on DNA analysis. Dr. Tahir has testified as an expert witness over 300 times. Based on these qualifications, we have no hesitation in concluding that the trial court did not abuse its discretion in allowing Dr. Tahir to testify as an expert and render his expert opinion.
II. Admissibility of Evidence
Next, Ross contends that the trial court erred in admitting a videotape outlining the general procedures utilized in DNA analysis during Dr. Tahir's testimony. Specifically, Ross argues that the procedures outlined on the videotape "had nothing to do" with the procedures employed by Dr. Tahir in this case. Appellant's Brief at 13. We disagree.
Although the testing techniques outlined in the videotape were not identical to the steps taken by Dr. Tahir, the tape was offered and admitted for demonstrative purposes only. Demonstrative evidence is tendered for the purpose of rendering other evidence comprehensible to the trier of fact. See J. Strong, McCormick on Evidence Sec. 212 (4th Ed.1992). To be admissible, demonstrative evidence need only be sufficiently explanatory or illustrative of relevant testimony in the case to be of potential help to the trier of fact. Meisberger v. State, 640 N.E.2d 716, 721 (Ind.Ct.App.1994), trans. denied.
*602 The tape was made by Life Codes Corporation, a private New York laboratory that performs DNA analysis. The tape depicted general testing procedures utilized in DNA analysis and Dr. Tahir opined that the tape would be educational and helpful to the jury in their understanding of DNA and the general manner in which DNA analysis was performed in a laboratory. After viewing the approximately 12 minute tape, the trial court admitted it over Ross's objection. We viewed the tape as well and find that the videotape was properly admitted as relevant demonstrative evidence.
III. Batson Challenge
As his final argument, Ross contends that he was deprived of his equal protection rights when the State used its peremptory challenges to purposefully exclude African-Americans from the jury pool.
Ross is an African-American man. He was convicted for the rape of the victim Toni Anderson, a Caucasian. Following voir dire and prior to trial, Ross challenged the State's use of its peremptory challenges. Ross does not include a transcript of the jury selection process in the record of proceedings, and therefore we cannot determine with certainty the manner in which these strikes occurred.[4] However, it appears that the State exercised three of its peremptory challenges to strike African-American potential jurors. It also appears from the limited record we have before us that all African-American veniremen were not struck. In fact, one African-American juror served on the final jury.
Purposeful racial discrimination in the selection of a jury violates a defendant's right to equal protection. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). To establish a prima facie case of racial discrimination, a defendant must demonstrate that: (1) he is a member of a cognizable racial group; (2) the prosecutor has peremptorily challenged a member of the defendant's race; and (3) these facts and other relevant circumstances raise an inference that the challenges were made because of race. Taylor v. State, 615 N.E.2d 907, 911 (Ind.Ct.App.1993). Once a defendant establishes a prima facie case of purposeful discrimination, the burden then shifts to the prosecution to come forward with race-neutral reasons for the peremptory challenges. Id.
It has been reiterated in several recent cases that the prosecutor's explanation need not be particularly persuasive so long as it constitutes a facially valid reason for the exclusion. See Purkett v. Elem, ___ U.S. ___, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995), reh'g denied, ___ U.S. ___, 115 S.Ct. 2635, 132 L.Ed.2d 874; Pfister v. State, 650 N.E.2d 1198 (Ind.Ct.App.1995); Palmer v. State, 654 N.E.2d 844 (Ind.Ct.App.1995).
Following Ross's objection, the trial court held a hearing pursuant to Batson wherein the prosecutor articulated the reasons why she exercised her peremptory challenges to strike the particular jurors. The prosecutor offered the following explanations for striking each of the three African-American veniremen: Mr. Lee was struck due to his medical problems and his need to urinate frequently; Mr. Gilbert was struck because he was up the entire night before; Mrs. Bacon was struck because she was a union representative and the prosecutor feared a potential bias against the State, and also because the prosecutor denoted negative body language from Mrs. Bacon including failure to make eye contact, difficulty listening and a general lack of rapport between the two. The prosecutor felt that these non-verbal communications were indicative of a closed mind. The trial court concluded that each of the African-American jurors had been struck for race-neutral reasons.
Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral. Purkett, ___ U.S. at ___ _ ___, 115 S.Ct. at *603 1770-71. As Justice O'Connor stated in J.E.B. v. Alabama, 511 U.S. 127, ___, 114 S.Ct. 1419, 1431, 128 L.Ed.2d 89 (1994):
[t]he essential nature of the peremptory challenge is that it is one exercised without a reason stated . . . Indeed, often a reason for it cannot be stated, for a trial lawyer's judgments about a juror's sympathies are sometimes based on experienced hunches and educated guesses, derived from a juror's responses at voir dire or a juror's bare looks and gestures . . . Our belief that experienced lawyers will often correctly intuit which jurors are likely to be the least sympathetic, and our understanding that the lawyer will often be unable to explain his intuition, are the very reason we cherish the peremptory challenge.
The trial court concluded that the African-American jurors had been struck for race-neutral reasons. Based on precedent and the fact that the trial court's findings are supported by the record, we find no error.
CONCLUSION
In sum, Dr. Tahir was qualified to testify as an expert in the field of DNA analysis and to render his expert opinion. The videotape depiction of general DNA analysis was properly admitted as demonstrative evidence. Further, the State met its burden of providing facially valid reasons for its peremptory strikes of the three African-American veniremen and the trial court determined that these reasons were race neutral.
Accordingly, the trial court is affirmed in all respects.
DARDEN and FRIEDLANDER, JJ., concur.
NOTES
[1] IND.CODE 35-42-4-1 (1993).
[2] I.C. XX-XX-X-X (1993).
[3] Ross was originally charged with these crimes in June of 1993; however, the charges were dismissed. The State completed DNA testing in December of 1993, and refiled the instant charges in 1994.
[4] It is the duty of the party alleging error to present this court with a record sustaining his argument. See Chambers v. State, 551 N.E.2d 1154, 1158 (Ind.Ct.App.1990). Generally, we would be unable to review this allegation of error in the absence of a record to support the error; however, because a transcript of the Batson hearing is included in the record before us, we are able to render a decision on this issue.
| {
"pile_set_name": "FreeLaw"
} |
630 F.3d 757 (2011)
Pamela BAYE; Sylvan Baye, Plaintiffs-Appellants,
v.
DIOCESE OF RAPID CITY, a South Dakota not for profit corporation, Defendant-Appellee.
No. 10-1690.
United States Court of Appeals, Eighth Circuit.
Submitted: December 14, 2010.
Filed: January 25, 2011.
*758 James E. Shipman, argued, Cedar Rapids, IA, Stephanie E. Pochop, on the brief, Gregory, SD, for appellant.
Jeffrey G. Hurd, argued, Rapid City, SD, for appellee.
Before WOLLMAN, MURPHY, and COLLOTON, Circuit Judges.
MURPHY, Circuit Judge.
Pamela Baye alleges she was raped in 1987 by her parish priest, that her memory of the assault was repressed, and that she did not recover it until 2006. She and her husband Sylvan Baye then brought this action in 2007 against the Catholic Diocese of Rapid City. The district court[1] granted summary judgment in favor of the diocese, holding the Bayes' claims barred by the statute of limitations. The Bayes timely appealed. We affirm.
*759 I.
The facts are viewed in the light most favorable to the Bayes since they opposed summary judgment. See Pecoraro v. Diocese of Rapid City, 435 F.3d 870, 873 (8th Cir.2006). Because Sylvan Baye's claim is derivative of his wife's, see Selchert v. Lien, 371 N.W.2d 791, 794 (S.D.1985), we refer in the following discussion only to Pamela Baye.
Starting when Pamela Baye was three and continuing throughout her childhood, Baye's father sexually abused her. Other men and Baye's mother participated in the abuse. Baye was diagnosed as an adult to have dissociative identity disorder (DID) (developed in early childhood), as well as post traumatic stress disorder, depression, insomnia, panic disorder, anxiety disorder, and suicidal ideation. According to Baye, she has had as many as forty different personalities. She has sometimes suffered loss of time and memory when one of the alternate personalities would appear during a traumatic event. Baye remains in therapy and cannot work.
In 1987 at age twenty three, Baye consulted with Father Christopher Scadron, a sixty seven year old parish priest at Sacred Heart Church in the Diocese of Rapid City, South Dakota. Baye sought his help in coping with her abusive upbringing. During one of their meetings, Scadron raped Baye while they were kneeling at the church altar. During and immediately after the assault, Scadron told Baye that if she told anyone about it her children would die and go to hell. Baye immediately repressed her memory of the assault and rediscovered it only in 2006 when one of Baye's alternate personalities revealed it to a friend. The friend then told Baye's therapist who informed Baye.
Father Scadron had joined the diocese in 1983. Years earlier when Scadron was a Franciscan novice, his supervisors found him disobedient, immature, and lacking in judgment. The Franciscans ultimately released him from their order. As Sacred Heart's pastor from 1984 to 1990, Scadron received criticism for his preaching, for misstating canon law, and for distancing himself from his colleagues. His employee records contain no allegations of abuse, although they contain a parishioner letter withdrawing unidentified charges against Scadron.
Father Scadron died in 2002, four years before Baye recovered her memory of his assault. In 2007 the Bayes brought this action against the diocese. Pamela Baye alleged assault and battery, sexual abuse, and intentional infliction of emotional distress under a vicarious liability theory. She also sued the diocese directly for breach of fiduciary duty, fiduciary fraud, and negligent hiring, supervision, and retention. Sylvan Baye sued for loss of consortium.
The district court granted the diocese's motion for summary judgment, holding the Bayes' claims barred by the statutes of limitations. They now appeal.
II.
Baye did not bring this action until nineteen years after she was assaulted, but she argues on several grounds that it is not time barred. We review the district court's grant of summary judgment de novo, affirming if the record shows that there is no genuine issue of material fact and the prevailing party is entitled to judgment as a matter of law. Pecoraro, 435 F.3d at 872-73. South Dakota law applies in this diversity action. Id. at 873.
The South Dakota legislature has established a limitations period of two years for Baye's assault and battery claim and three years for her other claims. S.D.C.L. §§ 15-2-15(1), 15-2-14(3). The legislature *760 has provided an extension of the limitations periods, however, for plaintiffs who were mentally ill when their causes of action accrued. Such plaintiffs have five additional years beyond the regularly applicable statutory period to bring their lawsuits. Id. § 15-2-22(2); Jensen v. Kasik, 758 N.W.2d 87, 89 (S.D.2008).
A.
Baye first argues that her claims against the diocese did not accrue until she became aware of Scadron's assault upon recovering her memory in 2006. In essence her position is that the statute of limitations does not begin to run until a claimant receives actual or constructive notice of her right to sue. Although she resists the label, her position is equivalent to the so called "discovery rule," under which a statute of limitations runs from the time a plaintiff discovers facts sufficient to form a cause of action. Shippen v. Parrott, 506 N.W.2d 82, 85 (S.D.1993), overruled on other grounds by Jensen, 758 N.W.2d at 89.
South Dakota law is clear that no discovery rule applies to delay the running of a statute of limitations unless there has been explicit statutory authorization to that effect. Id. (reversing trial court's application of discovery rule to sexual abuse victim); Alberts v. Giebink, 299 N.W.2d 454, 455 (S.D.1980). The statutes under which Baye sued do not provide such explicit language. Instead, the legislature has provided that causes of action under those statutes accrue on occurrence of the tortious conduct. S.D.C.L. §§ 15-2-15(1), 15-2-14(3) (containing no explicit discovery rule); see also Jacobson v. Leisinger, 746 N.W.2d 739, 746 (S.D.2008).
Several South Dakota statutes do contain a discovery rule. See, e.g., S.D.C.L. §§ 15-2-3, 26-10-25. These statutes have specific language tying the right to sue to the time when the wrong was discovered. Without such statutory provisions, South Dakota causes of action accrue upon occurrence. Alberts, 299 N.W.2d at 455. Baye's unusual mental illness does not empower a court to apply the discovery rule without legislative authorization. This was illustrated in Shippen, where the Supreme Court declined to apply a discovery rule for a sexual abuse victim whose "repression or post-traumatic stress disorder" prevented discovery of his cause of action, for the "Legislature has yet to permit" courts to do so. 506 N.W.2d at 86.
Baye attempts to escape the accrual rule by rephrasing it in a narrower way. According to Baye, the South Dakota cases rejecting a discovery rule have disapproved only a "discovery of harm" rule, not a "discovery of tort rule." She urges that the limitations period should commence to run in her case only at the point at which she discovered she had been raped. Baye misreads Alberts and Shippen, for they make clear that her cause of action accrued when Scadron raped her because "[t]he legislature has specifically set up an `occurrence' rule" applicable in cases of sexual abuse. Id. at 85; Alberts, 299 N.W.2d at 455.
In the cases in which the South Dakota Supreme Court has applied a discovery rule, it has done so in the types of actions for which the legislature has specifically provided one. See, e.g., Strassburg v. Citizens State Bank, 581 N.W.2d 510, 514-15 (S.D.1998) (fraud action under S.D.C.L. § 15-2-3). Although the South Dakota legislature has approved a discovery rule for childhood sex abuse cases, see S.D.C.L. § 26-10-25, it has not chosen to do so for older victims, such as Baye who was twenty three years old when Scadron assaulted her. The district court did not err in holding that Baye's cause of action accrued in 1987.
*761 B.
Baye also argues that the statute of limitations was tolled for two reasons until she recovered her memory. First, Baye argues that the diocese fraudulently concealed her rape. In South Dakota fraudulent concealment "tolls the statute of limitations until the cause of action is discovered or might have been discovered by the exercise of diligence." One Star v. Sisters of St. Francis, 752 N.W.2d 668, 681 (S.D.2008). If a trust relationship exists between the parties, "an affirmative duty to disclose is imposed," and "mere silence" can amount to fraudulent concealment if the silent party knew or should have known about the cause of action. Id. The district court assumed without deciding Baye and the diocese shared a trust relationship.
Baye has not identified any evidence showing that the diocese knew or should have known about Father Scadron's assault. She attacks Scadron's personal history and his professional weaknesses in an attempt to show that the diocese "should have known" about his "proclivities" and that it failed in its duty to disclose them to Baye. Nothing in this record indicates he had any "proclivity" toward sexual assault, however. Even if there were such signs, Scadron's work history would go to the diocese's liability for negligent hiring and supervision, not to fraudulent concealment. Baye does not argue that the diocese knew or should have known about Scadron's assault or about her mental illness. The district court did not err in holding that no fraudulent concealment occurred.
Next Baye argues that equity tolled the statutes of limitations until she recovered her memory in 2006. Under the doctrine of equitable tolling, a "plaintiff may sue after the statutory time period has expired if he has been prevented from doing so due to inequitable circumstances." Dakota Truck Underwriters v. South Dakota Subsequent Injury Fund, 689 N.W.2d 196, 202 (S.D.2004). Any inequitable circumstances preventing a party from initiating a lawsuit suit must be "truly beyond the control of the plaintiff." Id. (internal citation omitted). For the equitable tolling doctrine to apply, "three things must be shown: `(a) a timely notice, (b) lack of prejudice to the defendant, and (c) reasonable and good-faith conduct on the part of the plaintiff.'" Id. (emphasis added).
Baye cannot show that her delay in bringing this action has not prejudiced the diocese. The diocese's most important witness, Father Scadron, died five years before Baye sued. If Baye had sued within the limitations period, even as extended by five years by her mental illness, Scadron could have testified in his own defense and that of the diocese. Baye argues that the inequity of a time bar for her claims outweighs any prejudice to the diocese, but we have found no South Dakota authority suggesting any such inequity can overcome prejudice to a defendant. Dakota Truck requires a lack of prejudice for equitable tolling to apply, id., and the diocese has shown prejudice. Consequently we need not reach the other elements of the doctrine. The district court did not err in holding that prejudice to the diocese bars equitable tolling.
C.
Finally, Baye argues that under the doctrine of estoppel by duress the diocese may not raise the statute of limitations defense. Under the estoppel doctrine, a defendant who has continuously "threat[ened] or abuse[d]" the plaintiff during the limitations period is estopped from raising the defense. Zephier v. Catholic Diocese of Sioux Falls, 752 N.W.2d *762 658, 666 (S.D.2008). To attempt to demonstrate threats, Baye points to Scadron's statement immediately after his assault that her children would die and go to hell if she told anyone of the rape. Scadron never threatened Baye again after the assault.
South Dakota has neither adopted nor rejected the doctrine of estoppel by duress, id., but it would not apply in this case even if the state recognized the doctrine. Estoppel "requires a showing that the duress be continuous." Id. Baye argues that Scadron's threats were so outrageous that they should be deemed continuous, but cites no authority in support. She further argues that her trauma induced personality dissociation continued until at least 2006 when she recovered her memory. Estoppel by duress requires, however, that the threats themselves continue up to the point that the plaintiff brings her action. See id. The district court did not err in declining to apply estoppel by duress.
III.
The South Dakota statutes of limitations bar Pamela Baye's own claims as well as her husband's derivative claim. Recognizing that mental illness delays some plaintiffs in bringing their actions, the South Dakota legislature has added five years to the limitations period in every case where the plaintiff was mentally ill when the cause of action accrued. S.D.C.L. § 15-2-22. The extended eight year limitations period ran a decade before the Bayes brought their claims.
Even in cases of serious sexual abuse, the South Dakota Supreme Court has repeatedly declined to apply a longer limitations period than the state legislature has authorized. For example, the court declined to apply a discovery rule in Shippen since there was no legislative authorization for it. 506 N.W.2d at 85. And after the legislature enacted a discovery rule for childhood sex abuse claims, see S.D.C.L. § 26-10-25, the Supreme Court refused to delay claim accrual further by broadening "discovery" beyond its statutory meaning. One Star, 752 N.W.2d at 679-80. With this authority in mind, we hold that the Bayes' claims are time barred.
For these reasons we affirm the judgment of the district court.
NOTES
[1] The Honorable Karen E. Schreier, Chief Judge, United States District Court for the District of South Dakota.
| {
"pile_set_name": "FreeLaw"
} |
798 F.Supp. 338 (1992)
Amanda C. RICHARDS, et al., Plaintiffs,
v.
FAIRFAX COUNTY SCHOOL BOARD, et al., Defendants.
Civ. A. No. 92-874-A.
United States District Court, E.D. Virginia, Alexandria Division.
September 2, 1992.
*339 Thomas L. Patten, Latham & Watkins, Washington, D.C., for plaintiffs Amanda C. Richards, John H. Richards and Patti C. Richards.
Thomas J. Cawley, Hunton & Williams, Fairfax, Va., for defendants Fairfax County, Fairfax County Bd. of Educ., Jean Howery, Coordinator of Sp. Educ. for Area II, Sue Couper, Specialist, Contract Services, June Q. Price, Beatrice H. Cameron, Asst. Superintendents, Robert R. Spillane, and S. John Davis, Div. Superintendents, Fairfax County Public Schools.
Virginia Rose Manhard, Office of Atty. Gen., Richmond, Va., for defendants Bd. of Educ. of Com. of Va. and Joseph A. Spagnolo, Jr., Superintendent of Public Instruction, Va. Dept. of Educ.
MEMORANDUM OPINION
RICHARD L. WILLIAMS, District Judge.
This case is before the Court on the defendants' motion to dismiss the complaint, pursuant to Fed.R.Civ.Proc. 12(b)(6). The defendants allege that the relief sought by the plaintiffs is barred by the applicable statutes of limitation. For the reasons set forth below, the Court agrees and grants the motion to dismiss.
Factual Background
A. Allegations of Underlying Complaint
Plaintiff Amanda Richards is a resident of Fairfax County, Virginia, who suffers from severe learning disabilities. Because of her disability and as a resident of Fairfax County, Amanda is entitled under the Education for All Handicapped Children Act of 1975, as amended (renamed the Individuals with Disabilities Education Act but hereinafter referred to as the "EHA"), 20 U.S.C. §§ 1400-85, and under Virginia law, Va.Code Ann. §§ 22.1-213 to 22.1-221, to receive a "free appropriate public education" within the meaning of the EHA from Defendant Fairfax School Board ("FCSB"). Specifically, the plaintiffs (Amanda's parents are also plaintiffs in this action) allege that when the defendants awarded Amanda her high school diploma on June 15, 1989 and informed Amanda and her parents that their obligation to provide her with special education services had terminated, that they violated their duty under law to provide Amanda with a free appropriate public education. Essentially, they claim that Amanda was not ready to graduate and that the defendants only promoted her to discharge their obligation to continue her education.
Amanda and her parents further contend that the defendants failed to satisfy their duties, pursuant to 20 U.S.C. § 1415 and the Virginia Regulations Governing Special Education (the "Virginia Regulations"), to provide them with adequate notification and procedural mechanisms to challenge the change in Amanda's placement and the concurrent cessation of her special educational benefits.
*340 The plaintiffs' complaint makes six claims for relief. The first two seek redress under Va.Code Ann. § 22.1-214 A and Section II.B.1 of the Virginia Regulations on the ground that Amanda was allegedly eligible for up to two more years of a free appropriate public education at the time she was "wrongfully" graduated at age 20. The third and fourth claims for relief assert a violation of the EHA on the basis of the defendants' alleged failure to comply with statutorily mandated procedural requirements before graduating Amanda. Counts One and Three have been brought against the FCSB and its employees, while the second and fourth, seeking essentially the same relief, are against the Virginia Board of Education and Joseph A. Spagnolo, Jr., Superintendent of Public Instruction for the Virginia Department of Education. The plaintiffs allege, in their fifth claim for relief, that the FCSB and its employees violated the Rehabilitation Act, 29 U.S.C. § 794 (the "RHA"), by graduating Amanda and terminating her special education in purported violation of applicable state and federal law. Finally, the sixth claim for relief charges the FCSB's employees with violating 42 U.S.C. § 1983 by graduating Amanda in violation of EHA procedure with callous disregard for Amanda's rights.
B. Summary of Events Relating to Statute of Limitations Dispute
The plaintiffs admit that they knew as early as August 1988 that Amanda was going to graduate in June of the following year. (Am.Compl. at para. 54). They allege, however, that they did not know at that time, or even upon being informed by the FCSB at the time of Amanda's graduation that her benefits were being terminated, that high school graduation constituted a "change in educational placement" that triggered certain procedural safeguards under federal and state law.
The plaintiffs contend that they did not discover that their procedural rights had been violated until November 23, 1990, when they received a letter from the Assistant Secretary of the United States Department of Education which explicitly stated that high school graduation is considered a "change in placement" subject to certain EHA procedural safeguard provisions. (Id. at para. 76).
On February 23, 1991, Amanda's mother filed an administrative complaint with the Virginia Department of Education ("VA DOE"), pursuant to the Education Division General Administrative Education Regulations ("EDGAR"), 34 C.F.R. § 76.780 (and Section II.B.3 of the Virginia Regulations), against the Fairfax County Public Schools ("FCPS"). Plaintiff Patti Richards requested that the VA DOE "[i]mmediately take whatever action is necessary to ensure that FCPS complies with all process and procedural safeguards required by state and Federal law and regulations in the matter of [Amanda's] graduation." (Id. at para. 79). The VA DOE, on June 20, 1991, issued a Letter of Findings stating that the FCPS had, in fact, complied with both state and federal law when it terminated special education benefits to Amanda in June 1989.
The plaintiffs brought this action on June 19, 1992.
Legal Analysis
A. The EHA and Parallel State Law Claims are Time Barred by the Applicable Statutes of Limitations
1. The EHA Claims are Time Barred
The appropriate period of limitations for actions brought under the EHA is one year. Schimmel v. Spillane, 819 F.2d 477, 482-83 (4th Cir.1987). None of the parties in this action debate the applicability of this one-year limitations period; their dispute revolves around when the cause of action accrued and, thus, when the limitations period began to run.
Federal law determines accrual of a federal action, even if the statute of limitations is borrowed from state law. Cox v. Stanton, 529 F.2d 47, 50 (4th Cir. 1975).[1] The general rule under federal law *341 is that EHA claims "accrue when the parents know of the injury or the event that is the basis for their claim." Hall v. Knott County Bd. of Educ., 941 F.2d 402, 408 (6th Cir.1991), quoting, J. Wegner, "Educational Rights of Handicapped Children," 17 J. Law & Educ. 625, 654 (1988), cert. denied, ___ U.S. ___, 112 S.Ct. 982, 117 L.Ed.2d 144 (1992). The cause of action accrues when the plaintiffs learn of the injury, "whether or not they [know] the injury [is] actionable." Id. at 409. Ordinarily, the limitations period would run from the date of an administrative due process hearing decision. 20 U.S.C. § 1415(e)(2). The plaintiffs, however, have never requested a due process hearing, and admit in their amended complaint that they did not exhaust the administrative remedies provided for in 20 U.S.C. § 1415 because "such exhaustion would have been futile." (Am. Compl. at para. 102).[2] Since the plaintiffs chose not to avail themselves of the administrative remedies provided for in the EHA, the statute of limitations began to run on their claim at the time it accrued.
The injury alleged in this case is premature denial of special education benefits and the failure to provide certain procedural safeguards prior to that denial. The plaintiffs knew of the facts that gave rise to this injury, whether or not they knew they were actionable, on June 15, 1989, when the FCPS informed Amanda's parents that she would no longer receive special education services. On November 23, 1990, when they received a letter from the Assistant Secretary of Education informing them that the FCPS had not complied with federal law, the plaintiffs may have for the first time definitively learned that their injury was redressable at law, but they had long since known of the injury itself. This lawsuit was not filed until June 19, 1992, over three years from the date that the plaintiffs first learned "of the injury or the event that is the basis for their claim"the denial of further benefits to Amanda. Thus, Claims for Relief 3 and 4 in the Amended Complaint are barred by the one-year statute of limitations set forth by Schimmel, supra, for evaluating the timeliness of EHA claims.
2. The Parallel State Law Claims are Time Barred
The plaintiffs also allege that the defendants failed to comply with the Virginia Regulations when they issued a diploma and ceased offering special education services to Amanda on June 15, 1989. The Regulations contain a one-year statute of limitations for filing a lawsuit in either federal or state court, after available administrative remedies have been exhausted. (Virginia Regulations at § 3.5A.11b). Since, as noted above, the plaintiffs chose not to exhaust their administrative remedies, this one-year period is properly measured from the time the cause of action accrued. Certainly, a party which fails to exhaust its administrative remedies should not be permitted to fare better under the statute of limitations than one who utilizes the administrative mechanisms put at her disposal to the fullest extent possible.
Under Virginia law, a cause of action accrues on the date that the party has a right to bring the asserted action. Boykins Narrow Fabrics Corp. v. Weldon Roofing & Sheet Metal, Inc., 221 Va. 81, 266 S.E.2d 887, 889 (1980). Ignorance of the legal right to sue does not generally prevent the limitations period from running. Page v. Shenandoah Life Ins. Co., 185 Va. 919, 40 S.E.2d 922, 926-27 (1947). Thus, because the plaintiffs' cause of action accrued on June 15, 1989 and because this lawsuit was not filed until more than a year after that date, the statute of limitations *342 bars relief under Claims for Relief 1 and 2 of the Amended Complaint.
3. Plaintiffs' Attempts to Characterize This Action as an Administrative Appeal are Without Merit
Despite the plaintiffs' admission in their Amended Complaint that they failed to exhaust their administrative remedies, they now assert that by writing a letter of complaint to the Virginia Department of Education requesting an investigation, pursuant to the Education Division General Administrative Education Regulations ("EDGAR"), 34 C.F.R. § 76.780, they have in fact adequately pursued administrative relief, such that the limitations period should have begun to run on June 20, 1991, when that complaint was resolved. This contention is without legal merit.
The EHA and Virginia Regulations create an extensive system for the administrative hearing of claims alleging the denial of a free appropriate public education. 20 U.S.C. § 1415; Va.Code Ann. § 22.1-214. These statutes provide for a formal, adjudicatory hearing before an impartial hearing officer, and the right of parties aggrieved by the outcome of the hearing process to appeal to federal or state court. Id. The plaintiffs elected not to avail themselves of these administrative procedures. Rather, over 21 months after Amanda's graduation, they initiated an unrelated administrative complaint process pursuant to EDGAR. Not only is this procedure nowhere set forth in the EHA, but it is different in purpose, scope and procedure from the administrative relief provided for under the statute, and provides no statutory entitlement to sue a local school system, or its officials, in federal court.
The United States Supreme Court has held that the EHA is a comprehensive statute in which "Congress intended handicapped children with constitutional claims to a free appropriate education to pursue those claims through the carefully tailored administrative and judicial mechanism set out in the statute." Smith v. Robinson, 468 U.S. 992, 1009, 104 S.Ct. 3457, 3467, 82 L.Ed.2d 746 (1984) (emphasis added) (discussing the relation between Section 1983 claims and claims made under the EHA). The plaintiffs' attempt to "exhaust" its administrative remedies by way of a fundamentally different procedure not provided for in the statute cannot be reconciled with this language. The EDGAR complaint mechanism does not provide the "carefully tailored administrative and judicial mechanism," specifically noted by the Smith Court, that the due process procedure provided for in the EHA does. If the plaintiffs are deemed to have exhausted their remedies under the statute simply by resorting to EDGAR procedures, the appeals process set forth in the EHA will be entirely frustrated. Plaintiffs will be able to bypass the carefully constructed requirements of the statute and receive judicial review of stale claims simply by drafting a letter of complaint to the State Department of Education. The administrative procedure called for before receiving judicial review specifically contemplates a full administrative hearing before a hearing officer which serves to create an evidentiary record for the federal court to review. Doyle v. Arlington County Sch. Bd., 953 F.2d 100, 105 (4th Cir.1991); see also David D. v. Dartmouth Sch. Comm., 775 F.2d 411, 424 (1st Cir.1985), cert. denied, 475 U.S. 1140, 106 S.Ct. 1790, 90 L.Ed.2d 336 (1986) ("[F]or issues to be preserved for review they must first be presented to the administrative hearing officer."). Claims brought via the EDGAR procedure are not brought before a hearing officer and, thus, a record upon which to base judicial review is not created.
Neither of the plaintiffs' theories, the one it pleaded and the one it advances now, rescue their claims from the applicable statutes of limitations. If, as their amended complaint claims, the plaintiffs did not exhaust their administrative remedies, the cause of action is time barred because it accrued on June 19, 1989, almost three years before the complaint in this action was filed. Resort to the procedures for initiating a complaint under the EDGAR procedures, which the plaintiffs now claim is sufficient to exhaust their remedies under the EHA, is not a suitable substitute *343 for adhering to the detailed and carefully crafted administrative scheme set forth in the statute itself.
B. The Claim under the Rehabilitation Act is Time Barred
The plaintiffs contend that the two-year limitations period for personal injury actions in Virginia should govern their claim under the Rehabilitation Act, 29 U.S.C. § 794 (the "RHA"). (Mem.Opp. Def's Mot. to Dismiss at 28-30). The defendants argue that the Court should instead use the one-year limitations period contained in the Virginia Rights of Persons with Disabilities Act, Va.Code Ann. §§ 51.5-40 et seq., in accordance with the Western District of Virginia's opinion in Eastman v. Virginia Polytechnic Inst., 732 F.Supp. 665, 666 (W.D.Va.1990), aff'd, 939 F.2d 204 (4th Cir. 1991).
The Court need not resolve this dispute. Even using the limitations period proposed by the plaintiffs, the claim is time barred. A cause of action accrues under federal law when the plaintiff knows or has reason to know of the injury which is the basis of the action. Cox v. Stanton, 529 F.2d at 50. In particular, "[f]ederal courts generally construe the discovery rule" to mean when "the plaintiff discovers, or in the exercise of reasonable diligence should discover, the facts giving rise to a claim." Hamilton v. 1st Source Bank, 895 F.2d 159, 163 (4th Cir.) (citations omitted) (emphasis added), aff'd in part, rev'd in part on other grounds, 928 F.2d 86 (4th Cir. 1990). Thus, according to the law, the plaintiffs did not have to know that high school graduation is considered a "change in educational placement" for the limitations period to begin running. They only had to know that Amanda was going to graduate and no longer receive special education benefits as a result. The Court holds that the plaintiffs discovered the facts giving rise to their claim in June of 1989 when Amanda received her diploma and was informed that she would no longer receive special education services. Thus the claim under the RHA is barred by either of the parties' proposed statutes of limitation.
C. The Claim under Section 1983 is Time Barred
The parties agree that the applicable statute of limitations under Section 1983 is two years. They also agree that a claim under Section 1983 accrues when the plaintiff knows or should have known of the alleged injury, not when she becomes aware that such injury might be redressable under Section 1983. Thus, because the Court holds that their cause of action accrued on June 15, 1989, when Amanda's parents were informed that their daughter would no longer receive special education at public expense, the plaintiffs' Section 1983 claim is time barred, as well.
Conclusion
The Court is not without compassion for the plaintiffs in this case, but cannot allow them to circumvent the unyielding requirements of the applicable statutes of limitation by characterizing their cause of action as an "appeal" from a state administrative decision wholly unrelated to the administrative requirements of the EHA. Such a theory is contradicted by the plaintiffs' contention in their complaint that they purposefully failed to pursue their administrative remedies under the EHA and, in any event, is without a sound basis in law. Thus, the defendants' motion to dismiss is granted.
It is so ORDERED.
NOTES
[1] The Schimmel Court borrowed the one-year statute of limitations from Va.Code Ann. § 8.01-248, which provides the limitations period for all personal actions when a specific time frame is not provided by the statute creating the cause of action.
[2] Several courts have held that district courts have the authority to grant relief in lieu of exhaustion if pursuit of administrative remedies would be "futile or inadequate." See Smith v. Robinson, 468 U.S. 992, 1014 n. 17, 104 S.Ct. 3457, 3469 n. 17, 82 L.Ed.2d 746 (1984). Since, for purposes of resolving this motion, the allegations of the complaint must be taken as true, Adams v. Bain, 697 F.2d 1213, 1216 (4th Cir. 1982), the Court assumes without deciding that exhaustion would have been futile.
| {
"pile_set_name": "FreeLaw"
} |
994 P.2d 365 (1999)
Howard J. MEYER, Jr., Appellant,
v.
STATE of Alaska, DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT DIVISION, ex rel. N.G.T., Appellee.
No. S-8187.
Supreme Court of Alaska.
December 30, 1999.
*366 Barry J. Kell, Anchorage, for Appellant.
Terisia K. Chleborad, Assistant Attorney General, Anchorage, Bruce M. Botelho, Attorney General, Juneau, for Appellee.
Before MATTHEWS, Chief Justice, COMPTON, EASTAUGH, FABE, and BRYNER, Justices.
OPINION
MATTHEWS, Chief Justice.
I. INTRODUCTION
In this paternity case, the Child Support Enforcement Division (CSED) seeks to establish Howard Meyer's parentage of N.G.T. The superior court granted summary judgment to CSED, ruling that Meyer is N.G.T.'s biological father. Meyer appeals, arguing that his denial of intercourse with N.G.T.'s mother during the possible period of conception created a genuine issue of material fact. Because we agree that Meyer's denial of intercourse creates a question of fact sufficient to withstand summary judgment, we reverse the superior court's decision and remand Meyer's case for trial.
II. FACTS AND PROCEEDINGS
M.T. lives in Savoonga. Howard Meyer lives in Anchorage. Meyer met M.T. in Nome in 1987 and subsequently developed a sexual relationship with her.
From April 8 through April 12, 1992, M.T. attended a conference in Anchorage. A receipt from M.T.'s hotel lists four telephone calls placed to Meyer's home and office on April 8 and 9. M.T. alleges that she and Meyer had intercourse on April 9, 1992. She gave birth to N.G.T. on December 26, 1992. M.T. claims that Meyer is N.G.T.'s biological father.
Although Meyer expressed uncertainty regarding the precise dates and locations of his sexual contacts with M.T., he admitted to having a sexual relationship with her. However, Meyer stated under oath that his last sexual encounter with M.T. occurred in 1991, and he denied having intercourse with her between March 15, 1992, and April 15, 1992, the possible period of N.G.T.'s conception.
Gene Proof Technologies in Nashville, Tennessee, analyzed blood samples from N.G.T., M.T., and Meyer. The test placed the probability of Meyer's parentage at 99.98%, raising a presumption of paternity under AS 25.20.050(d).[1] The genetic odds favoring Meyer's paternity are said to be 6243 to 1.
After discovery, CSED moved for summary judgment on the paternity issue. CSED authenticated the genetic test results with a six-page affidavit from the director of Gene Proof Technologies. The affidavit emphasized the accreditation of Gene Proof Technologies and provided a detailed explanation of the methodology and results of the testing procedures. Meyer opposed CSED's motion, arguing that his denial of sexual intercourse with M.T. during the period of N.G.T.'s conception sufficiently rebutted the presumption of his paternity for purposes of summary judgment.
The superior court granted CSED's motion for summary judgment. The court found that CSED had satisfied its initial burden by establishing a 99.98% probability of Meyer's paternity, and by sufficiently authenticating the genetic test results with the director's six-page affidavit.
Meyer moved for reconsideration. He offered the affidavit of a paternity testing expert, and submitted his sworn interrogatory answers in which he denied having intercourse with M.T. during the period of possible conception. The superior court considered the motion, but ultimately denied Meyer's request to set aside the paternity judgment. The court found that Meyer's interrogatory answers denying intercourse with M.T. during the relevant period did not reasonably rebut CSED's evidence of paternity. Meyer appeals.
III. DISCUSSION
The trial court granted summary judgment in favor of CSED, establishing Meyer's paternity as a matter of law. Meyer argues *367 that his sworn denial of sexual intercourse with M.T. during the period of N.G.T.'s conception was sufficient to raise a material fact issue precluding summary judgment. We agree.
We review grants of summary judgment de novo.[2] We must "determine whether any genuine issue of material fact exists and whether the moving party is entitled to judgment on the law applicable to the established facts."[3] All factual inferences are drawn in favor of the non-moving party, and the existence of a dispute regarding any material fact precludes summary judgment.[4]
The party opposing summary judgment need not produce all of its evidence but instead must only show the existence of a genuine factual dispute.[5] In rendering its summary judgment determination, the court should examine the pleadings, affidavits, and discovery answers to ascertain whether any genuine issues of material fact exist.[6] We have noted that "any evidence sufficient to raise a genuine issue of material fact" precludes a summary finding of paternity.[7]
The court does not weigh the evidence or witness credibility on summary judgment.[8] Therefore, while it is true that the genetic test results establish a rebuttable presumption of paternity in this case and shift the burden to the putative father to prove non-paternity by clear and convincing evidence, the clear and convincing standard is irrelevant on summary judgment. Recently we held:
The standard of proof for setting aside a release is clear and convincing evidence. But that standard only comes into play when a fact finder is called upon to consider the parties' reasonable expectations.... It has no direct application at the summary judgment stage.[[9]]
The clear and convincing standard is only significant in the context of weighing the evidence.
Meyer contends that his interrogatory answers establish a material factual dispute regarding his purported intercourse with M.T. during the period of N.G.T.'s conception. Meyer claims that he and M.T. had intercourse on only two occasions, and that the last time was in 1991.[10] This would have been well before the period during which conception of N.G.T. took place.
*368 Meyer's sworn denial of sexual intercourse with M.T. during the period of N.G.T.'s conception creates a factual issue sufficient to preclude summary judgment in the present case. Although we have recognized that a "scintilla of contrary evidence" is insufficient to create a genuine issue of fact,[11] a putative father's sworn denial of sexual intercourse during the possible period of conception is more than a scintilla of evidence.[12] Furthermore, this denial is not merely conclusory since Meyer's basis of knowledge for the alleged factthat he did not have sexual intercourse with the mother during the period of conceptionis clear.
We do not hold that a denial of paternity contained in an unsworn answer to a complaint would suffice to oppose summary judgment.[13] Rather, the defendant must be able to point to "specific facts" controverting a showing of paternity, and the evidence relied upon must be sworn to or must be otherwise admissible. Meyer's sworn denial of intercourse during the possible conception period meets this test.
In reaching our conclusion, we remain cognizant of the significant statistical odds suggesting Meyer's paternity. CSED supported its summary judgment motion with scientific test results claiming a 99.98% probability of Meyer's paternity.[14] This statistical showing may prove decisive at trial. For purposes of summary judgment, however, the court must interpret factual disputes in favor of the nonmovant.[15] Viewed in this light, Meyer's denial is sufficient to create a genuine factual issue despite the scientific evidence.
IV. CONCLUSION
We REVERSE the superior court's grant of summary judgment and REMAND this case for further proceedings.
*369 EASTAUGH, Justice, concurring.
I join the court's opinion. Under Alaska's prevailing summary judgment standard,[1] Meyer's conclusory denial of paternity was sufficient to create a genuine issue of material fact.[2] CSED has not argued that we should adopt a different summary judgment standard, such as that employed in the federal courts.[3] FABE, Justice, with whom BRYNER, Justice, joins, dissenting.
FABE, Justice, with whom BRYNER, Justice, joins, dissenting.
I. Introduction
In the face of CSED's strong body of scientific, testimonial, and documentary evidence supporting a finding of paternity, Howard Meyer contested summary judgment with only his general denial of paternity. Pleading an inability to recall specific dates or details as to when he last had sexual contact with M.T., Meyer offered only his "belief" that it was prior to the probable dates of conception. Because the Alaska legislature has expressed a policy goal of parental responsibility in creating a presumption of parentage when genetic tests establish a 95% probability of paternity, and because Meyer's probability of paternity is 99.98%, his equivocal denial of paternity does not raise a genuine issue of fact. Where the putative father has the burden to rebut the presumption of paternity, a mere denial of paternity should not prevent the granting of summary judgment. Therefore, I respectfully dissent.
II. The Evidence Offered by Meyer to Oppose Summary Judgment
Meyer argues that the following responses to plaintiffs' interrogatories and requests for admission raise a genuine issue of fact in this case. First, in response to an interrogatory requesting the specific facts upon which Meyer intended to base his denial of paternity, Meyer replied that M.T. had "assured" him that she was taking birth control pills during the periods that they engaged in sexual relations. Second, Meyer stated that he "believed" that he had last had sexual intercourse with M.T. in 1991, more than nine months before N.G.T.'s December 26, 1992 birth.
Even this broad denial was not unequivocal. Indeed, Meyer prefaced his interrogatory responses by stating that "[d]ue to the passage of time, I am unable to recall each specific occasion when I have had contact with [M.T.]. For the same reasons, I am unable to recall the precise dates, times of day, locations and circumstances surrounding each such contact that I have had with her." It was only under "these limitations" that Meyer stated his inconclusive denial. This is the full extent of Meyer's proffered evidence opposing summary judgment.
Yet Meyer has not challenged CSED's strong evidence supporting a paternity finding. He has not disputed M.T.'s hotel and telephone receipts that indicate that he had contact with M.T. at the time of conception. Nor has he challenged the specific date of conception that M.T. offered. Meyer has offered no evidence that M.T. had other sexual partners to controvert M.T.'s statement that Meyer was her sole sexual partner during the time of conception. The evidence offered by Meyer is thus insufficient to raise a genuine issue of fact.
III. Alaska Civil Rule 56(e)
Alaska Civil Rule 56 highlights the concerns raised by such insubstantial responses to a summary judgment motion. Rule 56(e) states in part:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse *370 party's pleading, but the adverse party's response, by affidavits or otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.
This rule clearly disapproves of Meyer's reliance on equivocal denials of CSED's factual allegations and his failure to offer any evidence affirmatively setting forth specific facts. While Meyer does present evidence outside of his pleadings, these responses amount to little more than a reiteration of his blanket denial of paternity in his answer.[1]
This court has affirmed summary judgment in other contexts where the nonmovant has provided only his own meager statements unsupported by other evidence. In Yurioff v. American Honda Motor Co.,[2] the issue on summary judgment was the date of an accident. The victim presented only his own deposition testimony as evidence that the accident occurred on a certain date, but the defendant presented authenticated hospital records indicating a different date. We held that the victim's evidence did not "reasonably tend[ ] to dispute or contradict" the authenticated hospital records, and we therefore affirmed summary judgment.[3] Similarly, in Martech Construction Co. v. Ogden Environmental Services, Inc.,[4] we indicated that an affidavit from Martech's president stating that Ogden agreed to purchase certain equipment, where no other evidence supported this "naked assertion," would not suffice to raise a genuine issue of fact.[5]
In a case factually similar to the present one, the Colorado Supreme Court held that a general denial in the putative father's opposition brief was not sufficient under Colorado's analogous Rule 56(e) to defeat summary judgment.[6] In People ex rel. J.M.A., the plaintiff moved for summary judgment where genetic tests indicated a 99.79% probability of paternity.[7] In response, the putative father filed an opposition brief containing a general denial of paternity without affidavits or other supporting evidence.[8] The court determined that this submission was equivalent to resting upon the mere denial in the answer and therefore failed under Rule 56(e) to "demonstrate by relevant and specific facts that a real controversy existed with regard to his paternity."[9]
IV. The Public Policy Underpinning the Presumption of Paternity
Even if indefinite denials made outside of the pleadings may in some contexts suffice to withstand a summary judgment motion, such denials should not be adequate in the present context given the surrounding policy and statutory framework. Through AS 25.20.050(d), the legislature created a presumption of parentage that arises when certain scientific test results establish a probability of parentage of at least 95 percent.[10] This presumption may be rebutted, but only by clear and convincing evidence.[11] The legislature added this provision in 1984 with the explicit goal of "enhanc[ing] the efforts of those persons who seek to enforce the payment of child support obligations by noncustodial parents having the duty to support."[12]*371 The legislature found that the failure to pay child support not only creates severe hardships for the children and familiesoften "lower-income, single-parent families [ ] headed by women"but also has deleterious effects upon society at large, contributing to increased levels of public assistance payments, child abuse, and delinquency.[13] By shifting and heightening the burden of proof, the legislature sent a clarion call that parents must be responsible for their obligations to their children.
In line with this policy, other jurisdictions have required the putative father to present more than mere denials of paternity to defeat a summary judgment motion. The Colorado Supreme Court in People ex rel. J.M.A. affirmed summary judgment where the putative father submitted an opposition brief which contained a general denial of paternity and failed to demonstrate by "relevant and specific facts" that paternity was genuinely at issue.[14] And Illinois courts have enforced this public policy by consistently holding that a general denial of paternity without evidentiary support is not sufficient to defeat a summary judgment motion where scientific testing has established the presumption of paternity.[15]
In the context of paternity cases, in which a blood test result raises the presumption of paternity, we too should properly effectuate the public policy of parental responsibility for children by requiring the putative father to present more than an equivocal general denial of paternity in order to defeat summary judgment.
V. Conclusion
In light of the disfavored use of general denials in opposing summary judgment as expressed in Rule 56(e) and the paramount importance of establishing paternity, thereby ensuring the financial support of children, I would hold that Meyer's indefinite denial of paternity was inadequate to withstand CSED's summary judgment motion.
Here, Meyer admitted having a sexual relationship with the mother and could not remember the precise details of this relationship. He presented nothing more than an equivocal denial of paternity, basing his belief that he did not have sexual intercourse with M.T. during the presumed period of conception on mere supposition rather than on actual recollection of any specific facts. In light of M.T.'s uncontroverted statement that Meyer was her sole sexual partner during the presumed period of conception, her documentary evidence of contact with Meyer in Anchorage during this period, and blood tests indicating a 99.98% probability of paternity, Meyer has failed to present any evidence that sets forth specific facts or challenges M.T.'s assertions. Meyer's denial of paternity is simply not enough to raise a genuine issue of fact for purposes of Rule 56(e), and I would therefore affirm the trial court's grant of summary judgment.
NOTES
[1] AS 25.20.050(d) creates a presumption of parentage for certain genetic test results which establish a probability of parentage at 95% or higher.
[2] See Beilgard v. State, 896 P.2d 230, 233 (Alaska 1995).
[3] Id. (quoting R.E. v. State, 878 P.2d 1341, 1345 (Alaska 1994)).
[4] See Schumacher v. City and Borough of Yakutat, 946 P.2d 1255, 1256 (Alaska 1997).
[5] See Totem Marine Tug & Barge, Inc. v. Alyeska Pipeline Serv. Co., 584 P.2d 15, 25 (Alaska 1978).
[6] See Alaska R. Civ. P. 56(c); French v. Jadon, Inc., 911 P.2d 20, 24 (Alaska 1996); Totem Marine Tug & Barge, 584 P.2d at 19.
[7] In the Matter of J.B., 922 P.2d 878, 881 n. 4 (Alaska 1996) (emphasis added).
[8] See Gudenau & Co. v. Sweeney Ins., Inc., 736 P.2d 763, 765 (Alaska 1987) ("The court does not attempt to weigh the evidence nor evaluate the credibility of witnesses on a motion for summary judgment.").
[9] Philbin v. Matanuska-Susitna Borough, 991 P.2d 1263, 1268 (Alaska 1999); see also Gablick v. Wolfe, 469 P.2d 391 (Alaska 1970) (rejecting the contention that a court must consider the clear and convincing standard on summary judgment where the standard would apply at trial because Rule 56(c) only requires a showing that a genuine issue of material fact exists to be litigated and not a showing that a party will ultimately prevail at trial). In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-56, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), the United States Supreme Court announced the federal standard for summary judgment, finding that "the determination of whether a given factual dispute requires submission to a jury must be guided by the substantive evidentiary standards that apply to the case." This court, however, rejected the federal standard for summary judgment and instead reaffirmed the holding in Gablick. See Moffatt v. Brown, 751 P.2d 939, 943-44 (Alaska 1988).
[10] In his sworn answers to interrogatories, after stating that he had sexual intercourse only twice with the mother, Meyer stated: "My recollection is that the first was in the winter of 1988 or 1989, and the other in 1991." Drawing reasonable inferences from this statement in favor of Meyer, as we must at this stage in the proceedings, this is a statement by him that the last time he had sex with the mother was in 1991 and thus that he did not have sex with the mother during the period of possible gestation.
[11] Yurioff v. American Honda Motor Co., 803 P.2d 386, 389 (Alaska 1990).
[12] We note that the Minnesota Court of Appeals has reached a similar result in two analogous cases. See Williams v. Curtis, 501 N.W.2d 653, 656 (Minn.App.1993) (holding putative father's denial of intercourse with mother during period of conception sufficient to preclude summary judgment despite 99.21% statistical probability of paternity); Nash v. Allen, 392 N.W.2d 244, 247 (Minn.App.1986) (holding putative father's denial of intercourse with mother during period of conception sufficient to preclude summary judgment despite 98.864% statistical probability of paternity); see also People ex rel. M.C., 844 P.2d 1313 (Colo.App.1992) (reversing the trial court's grant of judgment notwithstanding the verdict where the jury believed the putative father's denial of sexual intercourse during the period of conception and found that he successfully rebutted, by clear and convincing evidence, the presumption of paternity attached by (a) the child's birth within 300 days after the marriage was terminated and (b) an unchallenged blood test establishing a 99.9% probability of paternity).
In Smith v. Smith, 845 P.2d 1090, 1092 (Alaska 1993), the superior court, after a trial, concluded that a husband was not the father of his wife's child based on the husband's testimony that he did not have sexual intercourse with her during the possible period of conception. This finding was made despite scientific evidence purporting to show a 99.59% probability of paternity. See id. We vacated the judgment and remanded the case for further proceedings because the trial court failed to indicate whether the husband had overcome the statutory and common law presumptions of paternity by clear and convincing evidence. See id. at 1092-93. But we did not reject the possibility that findings of non-paternity by clear and convincing evidence would be sustainable despite the scientific evidence to the contrary. See id.
[13] See Alaska R. Civ. P. 56(e) ("When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial."); see also Rule 56(c) (listing answers to interrogatories among the documents that can demonstrate a triable issue of fact). Compare People ex rel. J.M.A., 803 P.2d 187, 192-93 (Colo.1990) (holding that a general denial of paternity by a putative father, without any sworn statement in support, does not raise a genuine issue of material fact so as to preclude summary judgment) with People ex rel. M.C., supra note 12.
[14] Meyer also challenges this scientific evidence. He contends that it was not adequately authenticated, and he filed the affidavit of a genetic scientist who expressed substantial doubt as to the accuracy of the probability of paternity. Because Meyer's denial of sexual intercourse during the period of conception creates a genuine issue of material fact, it is unnecessary to resolve whether these challenges also created genuine issues of material fact.
[15] See Merdes v. Underwood, 742 P.2d 245, 248 (Alaska 1987).
[1] See Totem Marine Tug & Barge, Inc. v. Alyeska Pipeline Serv. Co., 584 P.2d 15, 25 (Alaska 1978).
[2] See In re J.B., 922 P.2d 878, 881 n. 4 (Alaska 1996).
[3] See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). See also Moffatt v. Brown, 751 P.2d 939, 943 (Alaska 1988) ("Instead of adopting the summary judgment standard articulated in Anderson, we choose to continue our longstanding interpretation of our summary judgment standard as contained in Civil Rule 56(c).").
[1] Cf. Western Pioneer v. Harbor Enters., 818 P.2d 654, 657 (Alaska 1991) (discounting nonmovant's testimony in support of opposition to a summary judgment motion where it "reflect[ed] only a restatement of his position in [the] litigation").
[2] 803 P.2d 386 (Alaska 1990).
[3] Id. (quoting State, Dep't of Highways v. Green, 586 P.2d 595, 606 n. 32 (Alaska 1978)).
[4] 852 P.2d 1146 (Alaska 1993).
[5] Id. at 1149-50 n. 7. The dissent agreed that "sometimes testimony may be so internally inconsistent and in conflict with the apparently reliable evidence offered by the proponent of a summary judgment motion that it may not serve to create a genuine issue of material fact and thus defeat summary judgment." Id. at 1156 n. 1 (Matthews, J., dissenting).
[6] See People ex rel. J.M.A., 803 P.2d 187, 193 (Colo.1990).
[7] Id. at 192 (applying 6A Colo.Rev.Stat. § 13-25-126(1)(e)(IV) (West 1987)).
[8] See id. at 193.
[9] Id.
[10] AS 25.20.050(d).
[11] See id.
[12] See ch. 144, §§ 1(b), 4, SLA 1984.
[13] Ch. 144, § 1, SLA 1984.
[14] 803 P.2d at 193.
[15] In Illinois, 750 Ill. Comp. Stat. § 45/11 (West 1993) permits genetic testing results to create a rebuttable presumption of paternity. See People ex rel. Hughes v. Walker, 278 Ill.App.3d 116, 214 Ill.Dec. 823, 662 N.E.2d 177 (1996) (affirming summary judgment where putative father did not deny having sexual intercourse during probable time of conception, but stated, without corroborating evidence, that the mother had sexual relations with unidentified man); People ex rel. Black v. Neby, 265 Ill.App.3d 203, 202 Ill.Dec. 630, 638 N.E.2d 276 (1994) (affirming summary judgment where putative father opposed motion by stating that he was not in Illinois during month of conception despite plaintiff's production of traffic ticket issued to him in Illinois city of mother's residence); Breese v. Dewey, 223 Ill.App.3d 356, 165 Ill.Dec. 490, 584 N.E.2d 924 (1991) (affirming summary judgment where putative father flatly denied paternity, but pled insufficient memory or knowledge with respect to all other relevant questions); Cf. In re Paternity of Smith, 179 Ill.App.3d 473, 128 Ill.Dec. 487, 534 N.E.2d 669 (1989) (reversing summary judgment grant where putative father not only denied paternity but also produced supporting documentary and testimonial evidence).
| {
"pile_set_name": "FreeLaw"
} |
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50640
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAVIER REGALADO-FLORES, also known as
Pedro Sanchez, also known as Pablo Sanchez,
also known as Javier Regalo-Flores,
Defendant-Appellant;
____________________
Consolidated with
No. 00-50674
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS EULALIO RODRIGUEZ-CASTILLO,
Defendant- Appellant;
____________________
Consolidated with
No. 00-50705
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS SALAZAR-GOMEZ,
Defendant-Appellant;
No. 00-50640
c/w Nos. 00-50674 & 00-50705 &
00-50797
- 2 -
____________________
Consolidated with
No. 00-50797
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE VILLA-ENRIQUEZ, also known
as David Perez-Enriquez,
Defendant-Appellant.
- - - - - - - - - -
Appeals from the United States District Court
for the Western District of Texas
- - - - - - - - - -
February 15, 2001
Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Javier Regalado-Flores, Carlos Eulalio Rodriguez-Castillo,
Jesus Salazar-Gomez, and Jorge Villa-Enriquez (collectively the
Defendants) appeal their sentences following their guilty plea
convictions for illegal re-entry after deportation in violation
of 8 U.S.C. § 1326. The Defendants argue that their sentences
should not have exceeded the two-year maximum sentence under 8
U.S.C. § 1326(a). The Defendants acknowledge that their argument
is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
(1998), but they seek to preserve the issue for Supreme Court
review in light of Apprendi v. New Jersey, 530 U.S. 466 (2000).
*
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. 00-50640
c/w Nos. 00-50674 & 00-50705 &
00-50797
- 3 -
The Defendants’ argument is foreclosed by Almendarez-Torres,
523 U.S. at 235.
The Government has moved for a summary affirmance in lieu of
filing an appellee’s brief. In its motion, the Government asks
that the judgments of the district court be affirmed and that an
appellee’s brief not be required. The motion is granted.
AFFIRMED; MOTION GRANTED.
| {
"pile_set_name": "FreeLaw"
} |
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-01-00508-CV
Boris Goldstein, Appellant
v.
Janet Mortenson, Permanent Receiver for Austin Forex, L.L.C. and Austin Forex
International, Inc.; Randy Butler; Melissa A. Butler; Mel Daniels; Darrell
Dillon; Jeff Comp; Kay Comp; Mary Ann Eisinger; John Sheffield;
Mark Miller; and Pierce Sullivan, acting on behalf of themselves
and all others similarly situated, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
NO. 99-12003-F, HONORABLE PAUL DAVIS, JUDGE PRESIDING
O P I N I O N
Appellees Janet Mortenson, Permanent Receiver for Austin Forex, L.L.C., and Austin
Forex International, Inc., along with a class of investors (collectively "Mortenson"), brought suit
against appellant Boris Goldstein for damages they suffered as a result of a securities-fraud scheme.
The district court awarded Mortenson actual and exemplary damages for fraud, usury, and violations
of the Texas Securities Act. Tex. Rev. Civ. Stat. Ann. arts. 581-1-581-43 (West 1964 & Supp
2003). Goldstein, challenging the sufficiency of the evidence, appeals by seven issues. We reform
and, as reformed, affirm.
BACKGROUND
This dispute arises from Goldstein's business dealings with Russell Erxleben and
Erxleben's investment companies, Austin Forex, L.L.C. and Austin Forex International, Inc.
(collectively "AFI"). Erxleben established AFI in September 1996 for the purpose of trading in the
foreign-currency market. What he actually engaged in was a type of "Ponzi scheme." (1) Individuals
investing funds with Erxleben signed contracts authorizing AFI to make all decisions concerning
trading in their accounts with AFI. (2) Erxleben himself made all of the decisions concerning the
trading of client funds. He only traded investor accounts as a block or "pool," rather than
individually. The pool sustained serious actual and floating losses, (3) but the statements AFI sent to
individual investors never disclosed this fact and reflected only gains. Relying on this information
and believing that AFI was a successful venture, clients continued to invest with AFI and encouraged
others to do so.
Initially, Erxleben's trades were placed by phone through Frankwell Investment
Services, a Houston company. The time expended in placing phone calls allowed market positions
in foreign currency to change, often resulting in serious losses for AFI and, thus, the investors'
accounts. The negative effect resulting from such delay is known in the industry as "slippage." In
an effort to solve the slippage problem, AFI began looking for a brokerage firm with real-time
technology. Goldstein was the majority shareholder and an officer and director of E-Forex, Inc., a
California-based company that offered such a service. In March 1997, AFI contracted with E-Forex
for brokerage services and for a software package enabling real-time trading. Within a short time,
AFI was using E-Forex to conduct its foreign-currency trades. Most of the communication between
AFI and E-Forex occurred between AFI's chief operating officer, Michael Shapiro, and E-Forex's
president, Craig Harper. Shapiro and Harper met several times to discuss remedying the slippage
issue. However, even with E-Forex's services, slippage continued to cause losses for AFI and its
investors.
In December 1997 or January 1998, the Texas State Securities Board began
investigating to determine if AFI was selling unregistered securities. Early in 1998, Erxleben and
Shapiro realized that the difference between the amount of money reflected on investor statements
and the amount of money actually in AFI's account at E-Forex had grown to a deficit of $8.6 million.
AFI determined to seek a loan to cover the deficit. Shapiro contacted Harper, who referred him to
Goldstein. There is no evidence that AFI sought to borrow money from any other source before
Shapiro contacted Goldstein. In March, Shapiro met with Goldstein in New York, seeking assistance
in securing a loan to fill the gap. At the meeting, Goldstein indicated that he had a contact that could
help with the loan. Within a few days of the meeting, AFI--without making a loan application,
submitting financial statements, or providing security--received a facsimile from Sovereign Allied
Bank, Inc., (4) containing documents to consummate an $8,611,392 loan. On March 16, 1998, AFI
officers, including Erxleben, signed the loan documents. Sovereign Allied Bank required neither
security from AFI nor personal guarantees from its officers.
On June 16, 1998, the Securities Board sent a subpoena to Harper, requesting that he
turn over records concerning AFI. Harper notified Shapiro, Goldstein, and his attorney, that he had
received the subpoena. E-Forex did not immediately respond to the subpoena. In correspondence
dated August 31, 1998, Goldstein asked Shapiro how to handle "the request from Texas." E-Forex
turned over AFI's records after a two-month delay. AFI ceased operations on September 14.
On September 18, 1998, the Securities Board filed suit against various entities and
persons, including Erxleben and AFI. That same day, the district court appointed Mortenson
temporary receiver of AFI. (5) On October 13, 1999, Mortenson brought this action against a number
of defendants involved with AFI, including attorneys, law firms, Goldstein, E-Forex, and several E-Forex officers and directors. After a series of severences and settlements with the other defendants,
the case moved forward against Goldstein and E-Forex. Goldstein and E-Forex declared bankruptcy
in California, and the state-court proceedings in Texas were stayed. See 11 U.S.C.A. § 362(a)(1)
(West 1993 & Supp. 2003) (filing petition in bankruptcy stays pending legal actions against debtor).
The California bankruptcy court dismissed Goldstein's bankruptcy petition. In re Goldstein, No. 01-3-0410-TC (Bankr. N.D. Cal. 2001). The Texas district court then granted a motion by Mortenson
to sever her claims and proceed with her suit against Goldstein. After a bench trial, the district court
rendered judgment that Mortenson recover from Goldstein actual damages in the sum of
$36,600,826.57
for his sale of unregistered securities by means of untrue statements of material fact
or omissions in violation of the Texas Securities Act, for aiding and abetting in the
sale of unregistered securities, through the use of fraudulent omissions and
representations, in violation of the Texas Securities Act; for fraud committed upon
AFI; and for conspiracy to defraud the plaintiff investors.
The court also awarded $11,827,143 in prejudgment interest "on the fraud claims through July 1,
2001," $15,634,134 for usury violations, and $200 million in exemplary damages based on
"[Goldstein's] willful and malicious conduct towards AFI and plaintiff investors, by which conduct
[he] specifically intended to cause substantial injury to AFI and plaintiff investors." The total
judgment against Goldstein was $264,062,103.57. The court filed findings of fact and conclusions
of law in support of the judgment.
Goldstein appeals by seven issues. In issues one through five he argues that the
district court erred because there was no evidence or the evidence was insufficient to show that: (a)
he violated sections 33A of the Texas Securities Act, Tex. Rev. Civ. Stat. Ann. art. 581-33A (West
Supp. 2003); (b) he violated sections 33F(1) and (2) of the Texas Securities Act, id. art. 581-33 F(1),
(2) (West Supp. 2003); (c) he should be jointly and severally liable for all AFI trading losses; (d) E-Forex, Inc. was the alter ego of Goldstein and as such its liability for usury, fraud, conspiracy, and
violations of the Texas Securities Act should be imputed to him; or (e) he directly committed any
fraud on AFI or AFI investors. In issues six and seven, Goldstein challenges the district court's
award of exemplary damages by arguing that there is no clear-and-convincing evidence that
Goldstein acted with malice or reckless indifference or that damages resulted from the specific
circumstances of the usury statute for which Goldstein was directly or vicariously liable or as a
consequence of his culpable mental state, or in the alternative, that the exemplary damages are
excessive.
STANDARD OF REVIEW
Goldstein's issues do not state specifically whether he is challenging the factual or
legal sufficiency of the evidence. His argument summary reflects that he is challenging the legal
sufficiency, but the cases cited in the body of the argument contain the standard for a factual-sufficiency review. We will, in the interest of justice, review the evidence under both standards. See
Tex. R. App. P. 38.9; Gregory v. Sunbelt Sav., F.S.B., 835 S.W.2d 155, 157 n. 2 (Tex. App.--Dallas,
1992, writ denied). A trial court's findings of fact are reviewable for factual and legal sufficiency
of the evidence by the same standards as are applied in reviewing the factual and legal sufficiency
of the evidence supporting a jury's finding. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994);
Starcrest Trust v. Berry, 926 S.W.2d 343, 352 (Tex. App.--Austin 1996, no writ).
In reviewing a legal-sufficiency challenge, we consider the evidence in the light most
favorable to the prevailing party, indulging every reasonable inference in that party's favor. Merrell
Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997); Associated Indem. Corp. v. CAT
Contracting, 964 S.W.2d 276, 285-86 (Tex. 1998). We will uphold the finding if more than a
scintilla of evidence supports it. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.
1995); Catalina, 881 S.W.2d at 297. The evidence supporting a finding amounts to more than a
scintilla if reasonable minds could arrive at the finding given the facts proved in the particular case.
Burroughs Wellcome, 907 S.W.2d at 499.
In conducting a factual-sufficiency review, we consider and weigh all of the evidence
and set aside the judgment only if it is factually so weak or so contrary to the overwhelming weight
of the evidence as to be clearly wrong and unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.
1986 ); In re King's Estate, 244 S.W.2d 660, 661 (Tex. 1951); see generally William Powers, Jr. &
Jack Ratliff, Another Look at "No Evidence" and "Insufficient Evidence," 69 Tex. L. Rev. 515, 534
(1991).
DISCUSSION (6)
Securities-Act Violations
The district court concluded that Goldstein "materially aided and abetted AFI,
Erxleben and others" in the fraudulent sale of securities. By his first and second issues, Goldstein
contends that there was no evidence or insufficient evidence to show that he violated article 581-33A, F(1), and (F)(2) of the Texas Securities Act. Tex. Rev. Civ. Stat. Ann. arts. 581-33A, F(1), (2).
By his third issue, he asserts that there was no evidence or insufficient evidence that he should be
"liable, jointly and severally, for all of AFI['s] trading losses." Section 33A sets forth the liability
of sellers and, as is relevant here, allows a buyer of a security to sue the seller of the security for
rescission or damages. Id. art. 581-33A. Section 33F extends liability to those who control or aid
a seller and provides, in pertinent part, that:
A person who directly or indirectly with intent to deceive or defraud or with reckless
disregard for the truth or the law materially aids a seller . . . of a security is liable
under Section 33A . . . jointly and severally with the seller . . . and to the same extent
as if he were the seller.
Id. art. 581-33F(2). In order to establish such liability, a plaintiff must demonstrate:
(1) that a primary violation of the securities laws occurred; (2) that the alleged aider
had "general awareness" of its role in this violation; (3) that the actor rendered
"substantial assistance" in this violation; and (4) that the alleged aider either a)
intended to deceive plaintiff or b) acted with reckless disregard for the truth of the
representations made by the primary violator.
Frank v. Bear, Stearns & Co., 11 S.W.3d 380, 384 (Tex. App.--Houston [14th Dist.] 2000, pet.
denied) (citing Keith A. Rowley, The Sky is Still Blue in Texas: State Law Alternatives to Federal
Securities Remedies, 50 Baylor L. Rev. 99, 182 (1998)).
Goldstein concedes in his brief that a primary violation of the law occurred: "It is
undisputed between the parties that Erxleben engaged in the sale of securities in violation of the
Texas Securities Act." (7) Mortenson contends that Goldstein aided Erxleben and AFI in delaying and
hindering the investigation by the Securities Board by arranging the $8.6 million loan for AFI, which
if consummated would have cloaked the trading losses incurred by AFI. (8) Shapiro testified that he
met with Goldstein in New York in March 1998. He told Goldstein that AFI needed a loan to cover
an $8.6 million difference between what AFI actually had and what it was representing to its
investors that it had.
Q: Well you told Mr. Goldstein in New York that the 8.6 million was the difference
between what you were telling people you had and what you really had, correct?
A: That's correct.
Q: And in response to that he told you that he had a contact that might help you be
able to get a loan, right?
A: Yes.
Goldstein was more than generally aware of the reason for the loan; he was explicitly told by Shapiro
why AFI needed the loan. The loan was funded by Sovereign Allied Bank, a bank with which
Goldstein was affiliated. (9) By arranging the loan for AFI, Goldstein provided substantial assistance
enabling AFI it to continue to operate, as well as to delay the Securities Board's discovery of
wrongdoing. Goldstein was given enough information by Shapiro to alert him to the possibility of
AFI's illegal activity. At the very least, his failure to conduct a minimal investigation and inquiry
before assisting AFI with the loan shows "a reckless disregard for the truth or the law." Tex. Rev.
Civ. Stat. Ann. art. 581-33F(2).
Goldstein denies that he was "involved in the deposit . . . of $8.6 million in an
account at E-Forex Europe on behalf of" AFI. This however is not the same as being involved in
procuring the loan. Goldstein's brief states that he "facilitated a contact" for obtaining the loan.
Goldstein's testimony does not materially conflict with Shapiro's. We hold that the evidence is both
legally and factually sufficient to support the district court's judgment that Goldstein is liable for
materially aiding a seller of illegal securities. We overrule Goldstein's second issue. (10)
By his third issue, Goldstein argues that there is no evidence or insufficient evidence
that he should be jointly and severally liable for all AFI trading losses. (11) We have upheld the district
court with respect to Goldstein's aider liability under section 33F(2) of the Act. Section 33F(2)
expressly mandates that a person who aids in the sale of unregistered securities is "jointly and
severally liable with the seller . . . and to the same extent as if he were the seller." Tex. Rev. Civ.
Stat. Ann. art. 581-33F(2); see Insurance Co. of N. Am. v. Morris, 981 S.W.2d 667, 675 (Tex. 1998);
Frank, 11 S.W.3d at 384. This Court need not consider joint and several liability, because one who
materially aids a seller of illegal securities is liable to the same extent as the seller. Goldstein is thus
liable to the same extent as AFI. His third issue is without merit and is overruled.
Fraud
By his fifth issue, Goldstein argues that there is no evidence or insufficient evidence
to show that he directly committed fraud on AFI or its investors. The district court's judgment
orders Mortenson to recover actual damages from Goldstein for, inter alia, "fraud committed upon
AFI; and for conspiracy to defraud the plaintiff investors."
Mortenson's fifth amended petition alleged that Goldstein committed securities fraud
by misrepresenting material facts about the investment potential of AFI. The securities act defines
"fraud" and "fraudulent practice" as including:
any misrepresentations, in any manner, of a relevant fact; any promise or
representation or prediction as to the future not made honestly and in good faith, or
an intentional failure to disclose a material fact; the gaining directly or indirectly,
through the sale of any security, of an underwriting or promotion fee or profit, selling
or managing commission or profit, so gross or exorbitant as to be unconscionable;
any scheme, device or other artifice to obtain such profit, fee or commission;
provided, that nothing herein shall limit or diminish the full meaning of the terms
"fraud," "fraudulent," and "fraudulent practice" as applied or accepted in courts of
law or equity.
Tex. Rev. Civ. Stat. Ann. art. 581-4F (West 1964). Upon reviewing the district court's findings of
fact and the record as a whole, we have not discovered any misrepresentations or intentional failure
to disclose a material fact made directly by Goldstein to AFI. In fact, Erxleben testified that he relied
upon the representations of Harper and others at E-Forex regarding the system for placing trades with
E-Forex and the various banks. The fraudulent representations that Mortenson and the district court
point to are attributable to Harper and the corporate entity of E-Forex. After reviewing only the
evidence and reasonable inferences that tend to support the finding, we hold that the evidence
amounts to no more than a scintilla and is, therefore, legally insufficient to show that Goldstein
directly defrauded AFI.
We now turn to whether Goldstein directly defrauded AFI's investors by means of
a conspiracy. A civil conspiracy is a combination by two or more persons to accomplish an unlawful
purpose or to accomplish a lawful purpose by unlawful means. Massey v. Armco Steel Co., 652
S.W.2d 932, 934 (Tex. 1983). The elements of a conspiracy are: (1) two or more persons; (2) an
object to be accomplished; (3) a meeting of the minds on the object or course of action; (4) one or
more unlawful, overt acts; and (5) damages as the proximate result. Id. A conspiracy requires a
meeting of the minds on the object or course of action, and some mutual mental action coupled with
an intent to commit the act which results in injury; there must be a preconceived plan and unity of
design and purpose. Ward v. Sinclair, 804 S.W.2d 929, 931 (Tex. App.--Dallas 1990, writ denied)
(citing Zervas v. Faulkner, 861 F.2d 823, 836 (5th Cir. 1988) (citing Schlumberger Well Surveying
Corp. v. Nortex Oil & Gas Corp., 435 S.W.2d 854, 857 (Tex. 1968))).
A conspiracy to defraud on the part of two or more persons means a common
purpose, supported by a concerted action to defraud, that each has the intent to do it,
and that it is common to each of them, and that each has the understanding that the
other has that purpose.
Schlumberger, 435 S.W.2d at 856 (quoting Great Nat'l Life Ins. Co. v. Chapa, 377 S.W.2d 632, 635
(Tex. 1964)). Thus, for a defendant to be liable for civil conspiracy to defraud, it must be shown not
only that there was such a conspiracy, but that the particular defendant agreed with one or more of
the other conspirators on the claimed illegal object of the conspiracy and intended to have it brought
about. Zervas, 861 F.2d at 836. An alleged conspirator is not liable for an act not done in pursuance
of the common purpose of the conspiracy. Carroll v. Timmers Chevrolet, Inc., 592 S.W.2d 922, 928
(Tex. 1979). Moreover, proof that an individual had some collateral involvement in a transaction,
and had good reason to believe that there existed a conspiracy among other parties to it, is
insufficient of itself to establish that the defendant was a conspirator. Id. (citing Schlumberger, 435
S.W.2d at 857). However, "once a conspiracy is proven, each coconspirator 'is responsible for all
acts done by any of the conspirators in furtherance of the unlawful combination.'" Carroll, 592
S.W.2d at 926 (quoting State v. Standard Oil Co., 107 S.W.2d 550, 559 (Tex. 1937)).
In Schlumberger, the supreme court held that there was no evidence that
Schlumberger had actual knowledge or intent to participate in wrongdoing. 435 S.W.2d at 857. The
court determined that Schlumberger knew that four oil wells were slant drilled and that the
corporation took steps to hide this information to protect its customers. Id. at 856. The supreme
court, however, determined that the evidence did not indicate that Schlumberger had knowledge of
the lease boundary lines, thus "knowledge of the object of the conspiracy and intention to injure
adjoining owners" was only "suspicion and speculation." Id. The court stated that "[o]ne without
knowledge of the object and purpose of a conspiracy cannot be a co-conspirator; he cannot agree,
either expressly or tacitly, to the commission of a wrong which he knows not of." Id. at 857.
By contrast, here the evidence is sufficient to show that Goldstein conspired to
commit fraud. Erxleben testified that it was AFI's goal to keep its losses secret in order to attempt
to turn things around while avoiding panic by the investors. Goldstein assisted in the cover-up. That
he was aware of AFI's losses is demonstrated by Shapiro's testimony about their conversation in
New York:
Q: [to Shapiro] And you explained to Mr. Goldstein that there was this gap between
what you were telling people you had and what you really had, right?
A: I briefly explained to [Goldstein] at dinner in New York exactly what you just
stated.
After returning to Austin from the New York meeting, Shapiro received a facsimile, which he
described: "The first thing he [Alex Green of Sovereign Allied Bank] sent was, if I recall correctly,
was a fax [which stated] 'Mr. Goldstein has asked me to contact you. You are looking for an 8.6
million dollar loan.'" Additionally, Goldstein knew as early as June 1998 that E-Forex had been
served with the Securities Board subpoena requesting AFI's records. Over two months later, he
wrote to Shapiro, asking, "[w]hat do you want us to do with the request from Texas?" This
correspondence demonstrates that the critical element of conspiracy--a meeting of the minds--was
present in this case. Goldstein knew that AFI was not disclosing losses to its investors. He not only
kept silent about the fact for purposes of the investigation, but he also actively participated in
procuring a loan for the purpose of presenting a false image to the Securities Board and AFI
investors. We hold that Goldstein participated in a conspiracy to defraud AFI's investors and thus
is liable for the fraud as a coconspirator. See Kirby v. Cruce, 688 S.W.2d 161, 164 (Tex.
App.--Dallas 1985, writ ref'd n.r.e.) (if actual damages proven, showing of civil conspiracy imposes
joint and several liability on all coconspirators for actual damages resulting from conspiratorial acts).
We overrule Goldstein's fifth issue.
Alter Ego
By issue four, Goldstein argues that there is no evidence or the evidence is
insufficient to show that he is the alter ego of E-Forex, and therefore the liability of E-Forex for
fraud, usury, conspiracy, and violations of the Texas Securities Act may not be imputed to him. The
district court concluded that Goldstein was the alter ego of E-Forex and found, not only that E-Forex
had violated the Texas Securities Act, but also that E-Forex had conspired with Erxleben and AFI
to defraud investors and had charged AFI usurious interest at the rate of 118.2% as "storage
charges." (12) We have held that the evidence is sufficient to show that Goldstein is directly liable for
violating the Texas Securities Act and conspiring to defraud AFI's investors. Therefore, we need
only address whether the corporate veil will shield Goldstein from the damages for usury.
In order to hold Goldstein responsible for the actions of E-Forex, there must be a
sufficient reason to disregard the corporate fiction, or pierce the corporate veil. We disregard the
corporate fiction, even though corporate formalities have been observed and corporate and individual
property have been kept separately, when the corporate form has been used as part of a basically
unfair device to achieve an inequitable result. Castleberry v. Branscum, 721 S.W.2d 270, 271 (Tex.
1986) (citing Bell Oil & Gas Co. v. Allied Chem. Corp., 431 S.W.2d 336, 340 (Tex. 1968)).
Castleberry lists six bases for disregarding the corporate fiction:
(1) when the fiction is used as a means of perpetrating a fraud;
(2) where a corporation is organized and operated as a mere tool or business conduit
of another corporation;
(3) where the corporate fiction is resorted to as a means of evading an existing legal
obligation;
(4) where the corporate fiction is employed to achieve or perpetrate monopoly;
(5) where the corporate fiction is used to circumvent a statute; and
(6) where the corporate fiction is relied upon as a protection of crime or to justify
wrong.
Id. at 272.
Mortenson argues that Goldstein falls within categories one, two, and five. However,
Mortenson pleaded, and the district court found, that Goldstein is the alter ego of E-Forex, which
brings him under category two. See id. at 272 (discussing that although alter ego is only one basis
for disregarding corporate fiction, distinction is often blurred and alter ego is treated as synonymous
with entire doctrine). The finding of alter ego is what Goldstein appeals.
Alter ego applies when there is such unity between corporation and individual that
the separateness of the corporation has ceased and holding only the corporation liable would result
in injustice. Id. Stated another way, "where a corporate entity is owned or controlled by an
individual who operates the company in a manner indistinguishable from his personal affairs and in
a manner calculated to mislead those dealing with him to their detriment, the corporate fiction may
be disregarded." Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 229 (Tex. 1990). An alter-ego
relationship may be shown from the total dealings of the corporation and the individual.
Castleberry, 721 S.W.2d at 272. This showing may include evidence of "the degree to which
corporate formalities have been followed and corporate and individual property have been kept
separately, the amount of financial interest, ownership and control the individual maintains over the
corporation, and whether the corporation has been used for personal purposes." Id.
Mortenson presented evidence to show that Goldstein is an officer, director, and
majority shareholder of E-Forex. Standing alone, this is not a basis for finding that Goldstein is the
alter ego of E-Forex. In Rosenthal v. Leaseway of Texas, Inc., Rosenthal was held to be the
corporation's alter ego because he was the sole owner, and the only corporate formality observed was
the obtaining of a charter. 544 S.W.2d 180, 182 (Tex. Civ. App.--Tyler 1976, no writ). In Francis
v. Beaudry, the court held that the evidence supported the alter ego theory against the two sole
stockholders and directors of the corporation. 733 S.W.2d 331, 333 (Tex. App.--Dallas 1987, writ
ref'd n.r.e.). There were no regular shareholder and director meetings, no obtaining of director
approval before the corporation acted, failure to maintain corporate records, and distribution of
corporate assets for personal use to the directors. Id. at 334-35.
Here, no evidence was presented touching on the extent to which corporate
formalities were observed or not observed, whether there were regular shareholder and director
meetings, whether there was a failure to maintain corporate records, or whether company profits
were diverted to Goldstein for his personal use. Although no evidence was presented to show that
corporate formalities were followed, it is Mortenson who bears the burden of proof on the issue of
alter ego. See Torregrossa v. Szelc, 603 S.W.2d 803, 804 (Tex. 1980). It may be true that AFI's
investors were harmed by E-Forex's charging usurious interest, but a court may not pierce the
corporate veil on a mere showing that an individual served as a director and officer of a corporation
and that he held an ownership interest in the corporation. We hold that the evidence in support of
holding that Goldstein is the alter ego of E-Forex is "so weak as to do no more than create mere
surmise or suspicion," and the legal effect is that there is no evidence. See Kindred v. Con/Chem,
Inc., 650 S.W.2d 61, 63 (Tex. 1983). Absent proof of alter ego, the damages for usury cannot be
imputed to Goldstein. We sustain Goldstein's fourth issue.
Exemplary Damages
Issues six and seven challenge the award of exemplary damages on alternative
grounds. By issue six, Goldstein contends that the district court erred in awarding exemplary
damages "because there is no clear and convincing evidence that Goldstein acted with malice or
reckless indifference, or that the damages claimed by Plaintiffs resulted from the specific
circumstances of the usury statute for which Goldstein was directly or vicariously liable or as a
consequence of Goldstein's culpable mental state." The civil practice and remedies code provides
a clear guideline for awarding exemplary damages and for reviewing such awards. Section 41.010(b)
provides that "the determination of whether to award exemplary damages . . . is within the discretion
of the trier of fact." Tex. Civ. Prac. & Rem. Code Ann. § 41.010(b) (West 1997). The code allows
for recovery of exemplary damages for "(1) fraud; (2) malice; or (3) wilful act or omission or gross
neglect in wrongful death actions . . . ." Id. § 41.003(a) (West 1997) (emphasis added). Goldstein
challenges the evidence supporting the district court's finding of malice and reckless indifference,
as well as any culpability under the usury statute. However, he has neglected to acknowledge that
the civil practice and remedies code allows for the recovery of exemplary damages upon a showing
of fraud alone. Id.; Myers v. Walker, 61 S.W.3d 722, 731 (Tex. App.--Eastland 2001, pet. denied)
(under statute exemplary damages may be awarded for harm resulting from "fraud or malice"). We
have determined that Goldstein conspired to defraud AFI investors and have addressed the evidence
supporting such determination. Therefore, we overrule Goldstein's sixth issue.
By his seventh issue, Goldstein challenges the exemplary-damages award as
excessive. An award of exemplary damages rests largely in the discretion of the fact finder and will
not be set aside as excessive unless the amount is so large as to indicate that it is the result of
passion, prejudice, or corruption, or that the evidence has been disregarded. Ethicon, Inc. v.
Martinez, 835 S.W.2d 826, 835 (Tex. App.--Austin 1992, writ denied) (citing
Crutcher-Rolfs-Cummings, Inc. v. Ballard, 540 S.W.2d 380, 389 (Tex. Civ. App.--Corpus Christi
1976, writ ref'd n.r.e.)); see Tex. Civ. Prac. & Rem. Code Ann. § 41.010(b). In reviewing an award
of exemplary damages, we consider:
(1) the nature of the wrong;
(2) the character of the conduct involved;
(3) the degree of culpability of the wrongdoer;
(4) the situation and sensibilities of the parties concerned;
(5) the extent to which such conduct offends a public sense of justice and propriety;
(6) the net worth of the defendant.
Tex. Civ. Prac. & Rem. Code Ann. § 41.011 (West 1997). (13) Because the code establishes a limit on
exemplary damages, which the district court exceeded, we do not consider the reasonableness of the
award. The code allows for exemplary damages only to the extent of "the greater of: (1) two times
the amount of economic damages; plus an amount equal to any noneconomic damages found by the
jury, not to exceed $750,000; or (2) $200,000." Id. § 41.008(b) (West Supp. 2002). Here, the
district court awarded exemplary damages in the ratio of 5.5 to 1. We conclude that the district court
erred in awarding more than two times actual damages. Because we have sustained Goldstein's issue
regarding the district court's usury award and because prejudgment interest may not be included in
the exemplary-damages calculation, see id. § 41.007 (West 1997), exemplary damages must be
calculated using only the $36,600,826.75 in actual damages awarded by the district court. We
sustain Goldstein's seventh issue.
CONCLUSION
We hold that the evidence is both legally and factually sufficient to support the district
court's judgment that Goldstein materially aided in the sale of securities in violation of the Texas
Securities Act and that he conspired to commit securities fraud, and is thus liable for actual damages
in the amount of $36,600,826.57. We hold that the evidence is not legally sufficient to support the
judgment's award of damages against Goldstein for usury and that the exemplary-damages awarded
against Goldstein exceed the statutory cap established by the legislature. We reform the judgment
to reflect that Mortenson take nothing by her action against Goldstein for usury. We further reform
the judgment to reflect an award of $73,201,653.50 (two times the actual damages) in exemplary
damages, resulting in a total judgment against Goldstein of $121,629,623.07. As reformed we affirm
the district court's judgment.
Lee Yeakel, Justice
Before Justices B. A. Smith, Yeakel and Aboussie*
Reformed and, as Reformed, Affirmed.
Filed: July 30, 2003
* Before Marilyn Aboussie, Chief Justice (retired), Third Court of Appeals, sitting by assignment.
See Tex. Gov't Code Ann. § 74.003(b) (West 1998).
1. A "Ponzi scheme" is an investment fraud wherein investors are enticed with the promise
of extremely high returns or dividends over a very short period of time. Gutierrez v. Cayman Is.
Firm of Deloitte & Touche, 100 S.W.3d 261, 266 n.1 (Tex. App.--San Antonio 2002, no pet.).
Investors are paid "from monies obtained from later investors rather than from profits of the
underlying business venture." Caldwell v. State, 95 S.W.3d 563, 566 n.1 (Tex. App.--Houston [1st
Dist.] 2002, no pet.). "The scheme takes its name from Charles Ponzi, who in the late 1920s was
convicted and punished for fraudulent schemes he conducted in Boston." Bryan A. Garner,
Dictionary of Modern Legal Usage 671 (2d ed. 1995).
2. For example, the contract signed by investor Jeff Comp provided in pertinent part that
[w]ithout any notice to Client, AFI may transfer any funds among different
Accounts, including and without limitation, trading profits/losses, Commission,
and Transaction Fees due by Client to AFI, and funds in Client's Account to be
utilized as Margins. AFI may trade the funds in Client's Account either with or
without an Order from Client.
3. As defined by the parties, a "floating loss" or "unrealized loss" is a loss sustained during
a trade in the foreign-currency-trading market. The loss "floats" because the trade has not been
closed out, and it is subject to ongoing changes in the market. Once the trade is closed out, the loss
becomes a "realized loss."
4. The parties refer to the Sovereign Allied Bank of Nauru. The bank was apparently
organized under the laws of the Pacific Republic of Nauru. The letterhead appearing at the top of
the loan documents sent to AFI reads "Sovereign Allied Bank, Inc." We will refer to the Sovereign
Allied Bank.
5. Later, in June 1999, the district court appointed Mortenson permanent receiver.
6. Goldstein argues that his invocation of his Fifth Amendment privilege against self-incrimination, during his deposition, should not result in any adverse inferences. See U.S. Const.
amend. V; Baxter v. Palmigiano, 425 U.S. 308, 318 (1976) (Fifth Amendment "does not forbid
adverse inferences against parties to civil actions when they refuse to testify in response to probative
evidence offered against them"). Specifically, he argues that his invocation is not "in and of itself"
enough to support a finding of malice. Although our holding is not predicated upon a finding of
malice, our review of the legal and factual sufficiency of the evidence excludes any such inferences.
7. For purposes of this opinion, we accept Goldstein's concession and assume without
deciding that the trading contracts were securities and that Erxleben and AFI engaged in the sale of
securities in violation of the Act.
8. Shapiro testified that the loan documents stated that the $8.6 million would be made
available to AFI at an E-Forex Europe account. Shapiro testified that, to his knowledge, E-Forex
Europe was owned by E-Forex America. Mortenson testified that she found no evidence that the
$8.6 million was ever deposited into AFI's accounts from the E-Forex Europe account at Sovereign
Allied Bank.
9. Mortenson argues that Sovereign Allied Bank was another alter-ego corporation of
Goldstein's. AFI investor, Lewis Talbert, testified that Goldstein led him to believe that Sovereign
Allied Bank was "his" bank by offering "his share" of the bank in exchange for a share in a foreign-currency-exchange venture of Talbert's. Goldstein testified that he did not own an interest in the
bank and that he did not tell Talbert that he did. He testified that he had been responsible for
Sovereign Allied Bank's account at Commercial Bank of San Francisco, where he served as a
director and board member. However, Goldstein concedes in his brief that the evidence supports a
finding that he had an ownership interest in Sovereign Allied Bank. Whether Sovereign Allied Bank
was Goldstein's alter ego has no bearing on our resolution of this appeal.
10. Because section 33F extends to those who aid sellers the same section 33A liability as
sellers, we need not and do not determine whether Goldstein himself was a seller, and overrule
Goldstein's first issue. Tex. Rev. Civ. Stat. Ann. art. 581-33F(2) (West Supp. 2003) (person who
aids securities-act violator is liable to same extent as violator).
11. It is unclear with whom Goldstein alleges he has been held jointly and severally liable.
The district-court judgment addresses only Goldstein. The court's findings of fact state not only that
"Goldstein, on his own and acting in conspiracy with Erxleben and AFI," engaged in fraudulent
conduct, but also that "Goldstein conspired with E-Forex, Erxleben and AFI to defraud the plaintiff
investors." In his conclusions of law, the district court concluded that "Goldstein conspired with
AFI, Erxleben and others to defraud plaintiff-investors." In his brief, Goldstein argues "that there
is no legally competent evidence to support Goldstein's participation in the conspiracy with Harper,
Shapiro, AFI, Erxleben or any other person or entity through which Goldstein may be held jointly
and severally liable for all of the AFI trading losses."
12. AFI often would leave positions "open" at the end of the trading day. Erxleben testified
that some positions were left open for months. When this occurred AFI was charged storage fees.
Sergei Koulinitch, an E-Forex employee, testified that the storage fee represented interest on the
money AFI borrowed to make the trade on leverage. Goldstein does not appeal the district court's
conclusions that the storage fees represented interest charges and were usurious.
13. These factors also appear in Alamo National Bank v. Kraus, 616 S.W.2d 908, 910 (Tex.
1981). Kraus predates the addition of section 41.011 to the civil-practice-and-remedies code. See
Act of April 11, 1995, 74th Leg., R.S., ch. 19, § 1, 1995 Tex. Gen. Laws 108, 112. The sixth factor
listed in the statute did not appear in the Kraus list.
| {
"pile_set_name": "FreeLaw"
} |
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-1354
In re: KEVIN HOLLAND,
Petitioner.
On Petition for Writ of Mandamus. (1:16-cv-06000)
Submitted: April 25, 2017 Decided: April 28, 2017
Before MOTZ, DUNCAN, and AGEE, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Kevin Holland, Petitioner Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kevin Holland petitions for a writ of mandamus, alleging that the district court has
unduly delayed in ruling on his 28 U.S.C. § 2241 (2012) petition. He seeks an order from
this court directing the district court to act. We find the present record does not reveal
undue delay in the district court. Accordingly, we grant leave to proceed in forma
pauperis and deny the mandamus petition. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials before this court and
argument would not aid the decisional process.
PETITION DENIED
2
| {
"pile_set_name": "FreeLaw"
} |
556 P.2d 714 (1976)
27 Or.App. 505
In the matter of the Compensation of JoAnn ROHRS, Claimant, Appellant,
v.
STATE ACCIDENT INSURANCE FUND, Respondent.
Court of Appeals of Oregon.
Argued and Submitted September 22, 1976.
Decided November 29, 1976.
*715 Richard O. Nesting, Portland, argued the cause for appellant. On the brief were Ralph C. Barker and Buss, Leichner, Barker & Nesting, Portland.
Kevin L. Mannix, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen. and W. Michael Gillette, Sol. Gen., Salem.
Before SCHWAB, C.J., and THORNTON and TANZER, JJ.
THORNTON, Judge.
Claimant appeals a circuit court ruling which affirmed an order of the Workmen's Compensation Board denying compensation to claimant. The sole issue is whether claimant's injury arose out of and in the course of her employment as required by the Workmen's Compensation Law.
The evidence in this case was admitted on the stipulation of counsel. Claimant, a restaurant waitress, suffered a severe concussion with cervical strain and myositis when she slipped and fell while approaching her automobile following the end of her shift. The employer's restaurant was situated in the Georgia-Pacific Building (Building) in downtown Portland. The automobile was located on the third or fourth floor of the Georgia-Pacific Garage (Garage), which is located across the street from the Building. The Building and the Garage are linked by an underground tunnel which lies under Southwest Fourth Avenue. City Center Parking, Inc., *716 operates the parking concession in the Garage.
The stipulated evidence indicates that claimant's employer did not designate parking areas for employes and did not reimburse parking expenses, but that employes generally made a practice of parking in the Garage for convenience and safety reasons and the employer's manager recommended parking in the Garage.
The relationship between the Garage and the employer's landlord is not explained in the stipulation, except to the extent that the parties agree the Garage is operated by City Center Parking, Inc., as a concession.
The general rule is that in the absence of special circumstances an employe injured while going to or coming from work is excluded from the benefits of the Workmen's Compensation Act. Davis v. SAIF, 15 Or. App. 405, 515 P.2d 1333 (1973). Claimant advances two exceptions to the going and coming rule which she contends are applicable here.
First, claimant advances what may be termed the "parking lot" rule. The parking lot rule is expressed by Larson as follows:
"As to parking lots owned by the employer, or maintained by the employer for his employees, the great majority of jurisdictions consider them part of the `premises,' whether within the main company premises or separated from it. This rule is by no means confined to parking lots owned, controlled, or maintained by the employer. The doctrine has been applied when the lot, although not owned by the employer, was exclusively used, or used with the owner's special permission, or just used, by the employees of this employer. Thus, if the owner of the building in which the employee works provides a parking lot for the convenience of all his tenants, or if a shopping center parking lot is used by employees of businesses located in the center, the rule is applicable. * * *" 1 Larson, Workmen's Compensation Law 4-38, 4-41 to 4-46, § 15.41 (1972).
Claimant relies on the cases cited by Larson to support compensability in this case. With one possible exception the cited cases involve either an employer providing a parking area as an incident of employment,[1] or, where the employer leases his business premises from a lessor, the lessor has provided a parking area for the convenience of employes and customers of the leased premises.[2] In all of the cases the employer has established, by ownership and control, or by custom, some form of right to use the parking facilities and that right is passed to the employe at no cost as an employment benefit. The possible exception is Elwood v. Herkimer Central School, 20 N.Y.2d 869, 285 N.Y.S.2d 614, 232 N.E. 2d 646 (1967), rev'g, 25 A.D.2d 457, 266 N.Y.S.2d 57 (1966). In Elwood school officials were given permission by a fraternal *717 organization to allow teachers to park in their lot adjacent to the school.
In this case no evidence was introduced on the issue of whether and to what extent the employer or the lessor had a right, either customary or legal, to use the Garage. The use of the Garage by employes was not treated as an incident of employment by the employer or by the employes. It was stipulated that employes were required to pay a separate corporation for the use of the facilities.
Where, as here, there is no evidence introduced to show that the employer has a right, either customary or legal, to use a parking facility, the parking facility is not provided as an incident of employment and the employe must pay a separate corporation for the use of the facility, the parking lot cannot be considered a part of the employer's premises for the purpose of workmen's compensation coverage.
The second exception to the going and coming rule within which claimant seeks to draw this case, is stated by Larson as follows:
"When the place of employment is a building, it is not necessary that the employer own or lease the place where the injury occurred. It is sufficient if he has some kind of right of passage, as in the case of common stairs, elevators, lobbies, vestibules, hallways, walkways, driveways, or passage ways through which the employer has something equivalent to an easement." 1 Larson, Workmen's Compensation Law, supra at 4-49 to 4-51, § 15.41 (1972).
There is nothing in the record to indicate that the employer in this case had a "right of passage" akin to an easement in the Garage greater than that accorded the general public. The rule cited by Larson is intended to cover common areas and cannot be stretched to cover the area involved in this case.
Affirmed.
NOTES
[1] De Hoyos v. Industrial Comm., 26 Ill.2d 110, 185 N.E.2d 885 (1962); Freiborg v. Chrysler Corporation, 350 Mich. 104, 85 N.W.2d 145 (1957); Chadwick v. Clark, 19 A.D.2d 679, 241 N.Y.S.2d 756 (1963) (although the lot was owned by the city, "* * * the employer's regular, uncontested and unquestioned use, maintenance and designation of this area as a parking lot for the benefit of its employees were such as to bring the space within the precincts of the employment. * * *" 241 N.Y.S.2d at 758); Pickett v. Industrial Commission, 98 Ohio App. 372, 129 N.E.2d 639 (1954) (subcontractor of a contractor working for a company which provided a parking area as an incident of employment). See also the following: Willis v. State Acc. Ins. Fund, 3 Or. App. 565, 475 P.2d 986 (1970), and cases reviewed therein; 82 Am.Jur.2d 54, Workmen's Compensation § 268 (1976); Annotation, 159 A.L.R. 1395 et seq. (1945).
[2] Berry v. B. Gertz, Inc., 21 A.D.2d 708, 249 N.Y.S.2d 285 (1964); Frishkorn v. Adm'r., 26 Ohio App.2d 165, 270 N.E.2d 366 (1971), and Max E. Landry, Inc. v. Treadway, 421 P.2d 829 (Okl. 1966).
| {
"pile_set_name": "FreeLaw"
} |
NOT RECOMMENDED FOR PUBLICATION
File Name: 11a0611n.06
No. 09-1484
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
JOHNELL ALLEN, )
)
Aug 24, 2011
Petitioner-Appellant, ) LEONARD GREEN, Clerk
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
CAROL HOWES, ) MICHIGAN
)
Respondent-Appellee. )
Before: SILER, COLE and KETHLEDGE, Circuit Judges.
SILER, Circuit Judge. Johnell Allen appeals the district court’s denial of his 28 U.S.C. §
2254 habeas petition. For the following reasons, we AFFIRM.
BACKGROUND
Sharon Hunter and her boyfriend John McMullen began arguing at Hunter’s apartment in the
presence of Hunter’s friend, Wendy Shepherd, and the two infant children Hunter shared with Allen,
her ex-boyfriend. After watching McMullen push Hunter down, Shepherd fled the apartment. She
encountered Allen and Douglas Hodo and told both what happened. Allen obtained a shotgun and
went to Hunter’s apartment where he shot and killed McMullen after finding him in an upstairs
bedroom closet.
At Allen’s trial, the Michigan state court excluded two references to Allen’s knowledge of
McMullen’s violent behavior before the day of the shooting. Hunter and Allen both testified that
No. 09-1484
Allen v. Howes
she told him McMullen physically abused her many times in the past. The prosecution objected to
both references as hearsay, and the trial court excluded the testimony despite Allen’s argument that
his knowledge of McMullen’s past violence demonstrated his state of mind at the time he shot
McMullen. In response, Allen proffered that Hunter told him McMullen had previously threatened
to kill her and the children. With this in mind, Allen testified that he brought the shotgun to Hunter’s
apartment for protection and shot McMullen accidentally. The dissent suggests that Allen’s
testimony shows that he was concerned for his children’s safety. However, as the district court
observed, Allen testified that he took the gun into the house because he was “scared that something
had happened bad.” He did shout at others that McMullen “was messing with the kids,” but he never
testified that was the reason why he took the shotgun into the residence.
Even defense counsel did not emphasize in his closing argument that Allen brought the
shotgun to the apartment because of some danger to the children even though Shepherd had told
Allen that McMullen “was messing with the kids.” Instead, defense counsel said that when Allen
tried to call the residence, “It was then that he got the feeling that something bad had happened. . .
. knowing that his children were in that apartment, having heard that Wendy Shepherd indicated she
was afraid that the decedent was going to beat up Sharon?” Counsel went on to argue that Allen
“took the gun with him in the event he concluded probably something terrible has happened is
justified. Either to protect himself from the man he had been told was a violent person or just to
frighten that person out of that residence.” Thus, there was no argument that Allen brought his
weapon to the house to protect the children. There was only one remark that the children were there,
but counsel did not emphasize that was the reason why Allen had the shotgun. His theory in the case
-2-
No. 09-1484
Allen v. Howes
was that he brought the weapon to protect himself from McMullen or to frighten McMullen out of
the house.
Allen was convicted of second degree murder and possession of a firearm in the commission
of a felony. The Michigan Court of Appeals affirmed his conviction, see People v. Allen, No.
136139 (Mich. Ct. App. June 2, 1993), and he failed to timely appeal to the Michigan Supreme
Court. Allen successfully obtained Michigan post-conviction relief, but the Michigan Court of
Appeals eventually reversed the trial court’s grant of relief, holding Allen procedurally defaulted his
claims under Michigan Court Rule 6.508(D)(3), see People v. Allen, No. 249788, 2005 WL 1106498
(Mich. Ct. App. May 10, 2005), and the Michigan Supreme Court affirmed in People v. Allen, 706
N.W.2d 15 (Mich. 2005). Allen unsuccessfully petitioned a federal district court for habeas relief
under 28 U.S.C. § 2254, see Allen v. Howes, 599 F. Supp. 2d 857 (E.D. Mich. 2009), and now
appeals.
DISCUSSION
We review the district court’s legal conclusions de novo and its factual findings under a
clearly erroneous standard. Cvijetinovic v. Eberlin, 617 F.3d 833, 836 (6th Cir. 2010) (citation and
quotation marks omitted). The government argues Allen procedurally defaulted his habeas claims
by failing to raise them on direct appeal. We assume, without deciding, that his claims are not
defaulted and address their merits. Because the Michigan courts denied Allen post-conviction relief
-3-
No. 09-1484
Allen v. Howes
on procedural grounds, we review the merits of Allen’s claims de novo. Nields v. Bradshaw, 482
F.3d 442, 449–50 (6th Cir. 2007).1
In his first claim for habeas relief, Allen argues he was denied the right to present a defense
by the trial court’s erroneous exclusion of evidence of McMullen’s past violence. Due process
guarantees a criminal defendant the meaningful opportunity to present a complete defense,
“including the right to present relevant evidence.” Varner v. Stovall, 500 F.3d 491, 499 (6th Cir.
2007) (internal citation and quotation marks omitted). A trial court’s mere exclusion of relevant
evidence only violates this guarantee “where it has infringed upon a weighty interest of the accused,”
United States v. Scheffer, 523 U.S. 303, 308 (1998), like the interest in “offering the accused’s own
testimony” and in “using the only available means of addressing a relevant issue,” Ferensic v.
Birkett, 501 F.3d 469, 478–79 (6th Cir. 2007) (internal citation omitted). These interests are only
infringed where the exclusion of evidence “significantly undermine[s] fundamental elements of the
defendant’s defense.” Scheffer, 523 U.S. at 315.
Allen argues that the weighty interest infringed by the trial court’s exclusion of evidence was
his ability to prove his state of mind at the time of the murder—specifically, his interest in showing
that he carried a shotgun to Hunter’s apartment, not because he intended to murder McMullen, but
1
The dissent suggests that perhaps the Michigan Court of Appeals adjudicated his
ineffectiveness claim on the merits. If so, then that court has already held that the evidence was
cumulative and the failure to admit the evidence by the trial court did not result in prejudice to Allen.
Admittedly, the dissent states that the Michigan court used the wrong criteria, following People v.
Reed, 535 N.W. 2d 496 (Mich. 1995), rather than the authority from Smith v. Robbins, 528 U.S. 259,
285 (2000). However, if the evidence was cumulative, it is difficult to see how there could be a
reasonable probability that Allen could have prevailed on his appeal. Id.
-4-
No. 09-1484
Allen v. Howes
because he feared for his safety. Even assuming such exclusion was erroneous, because Allen
established his knowledge of both McMullen’s past and present violence—evidence only minimally
probative to his defense—the trial court’s rulings did not deprive him of the “right to present a
defense.”
Allen demonstrated at trial that he knew McMullen had been violent on the day of the
shooting. Shepherd saw McMullen assault Hunter and she, Hodo and Allen all testified that she told
Allen what she saw. Despite the trial court’s rulings, Allen also demonstrated that he knew
McMullen was violent. Hodo testified he told Allen that McMullen had beaten Hunter several times
in the past. Hunter also said “yes” when the prosecution asked her whether she “testified on cross
examination that [she] had told Johnell Allen in the past that [she] had been physically assaulted by
John McMullen.” While Allen argues that the jury never heard the most impactful
evidence—McMullen’s death threats toward Hunter and his children—where a trial court’s
exclusion of evidence does not bar a defendant “from introducing other evidence to support [his
particular] defense,” the right to present a defense is not violated. Wynne v. Renico, 606 F.3d 867,
871 (6th Cir. 2010) (internal citation omitted).
Nonetheless, McMullen’s death threats were not especially probative of Allen’s defense.
Allen did not assert self-defense or the defense of others as an explanation for shooting McMullen.
Instead, he argues he shot McMullen accidentally. That Allen knew McMullen had threatened to
kill his ex-girlfriend does little to show his shooting McMullen was accidental. Such evidence could
just as easily support the theory, evidently adopted by the jury, that Allen brought a loaded shotgun
to Hunter’s apartment out of anger over McMullen’s treatment of his ex-girlfriend and children. As
-5-
No. 09-1484
Allen v. Howes
a result, because the trial court’s exclusion of some evidence showing Allen knew of McMullen’s
past violence did not significantly undermine his defense of accident, Allen’s right to present a
defense was not violated.
In his second claim for habeas relief, Allen argues he received ineffective assistance of
appellate counsel because his counsel failed to raise his “right to present a defense” claim on direct
appeal of his conviction. Appellate counsel cannot be ineffective “for a failure to raise an issue that
lacks merit.” Willis v. Smith, 351 F.3d 741, 745 (6th Cir. 2003) (quoting Greer v. Mitchell, 264 F.3d
663, 674 (6th Cir. 2001)). Because Allen’s “right to present a defense” claim is indeed without
merit, so too is his ineffective assistance of appellate counsel claim.
To the extent Allen rests this claim on his counsel’s failure to argue on direct appeal that the
trial court’s exclusion of this “state of mind” evidence violated Michigan evidentiary law, it is
similarly unavailing. Even assuming it was objectively unreasonable not to raise the trial court’s
supposed violation of state law as an issue, Allen cannot show a reasonable probability that, but for
his counsel’s error, he would have prevailed on his appeal. Smith v. Robbins, 528 U.S. at 285–86.
Under Michigan law at the time of his direct appeal, an evidentiary error does not provide grounds
to disturb a jury’s verdict when it is clear that the error did not prejudice the defendant. Michigan
v. Lee, 450 N.W.2d 883, 895 (Mich. 1988) (citing Michigan Court Rule 2.613(A)). We find, as did
the district court and Michigan Court of Appeals, that the excluded evidence was cumulative and that
the trial court’s exclusion of it clearly did not prejudice Allen at trial. See Dunn v. Nundkumar, 463
N.W.2d 435, 437 (Mich. Ct. App. 1990) (under Lee, erroneous exclusion of evidence was harmless
where evidence was cumulative). Thus, because this excluded evidence would have given the
-6-
No. 09-1484
Allen v. Howes
Michigan Court of Appeals no reason to reverse his conviction, Allen does not demonstrate the
prejudice needed to establish he received ineffective assistance of appellate counsel.
AFFIRMED.
-7-
No. 09-1484
Allen v. Howes
COLE, Circuit Judge, concurring in part and dissenting in part. I agree with the
majority’s disposition of Allen’s right to present a defense claim. I write separately because I
disagree with the majority’s rejection of Allen’s ineffective assistance of appellate counsel claim
based on counsel’s failure to appeal the erroneous exclusion of evidence. Allen’s testimony clarifies
that he was concerned about his seventeen-month-old twins’ safety, and the jury could have believed
that this concern, not an intent to kill McMullen, motivated Allen’s actions on the day McMullen
was killed. The trial court, however, improperly excluded the only evidence Allen offered to show
he believed McMullen posed a serious danger to the twins: McMullen’s history of violence towards
the children. Allen’s appellate counsel failed to argue that the trial court’s evidentiary errors affected
the outcome of the case. Unlike the majority, I think that Allen’s counsel’s failure constituted
ineffective assistance, because there is a reasonable probability that the Michigan Court of Appeals
would have granted Allen a new trial had Allen’s counsel appealed the exclusion. I would therefore
REVERSE the district court’s judgment in part and GRANT Allen’s petition.
As an initial matter, the majority holds that the Michigan Court of Appeals denied Allen’s
claims on procedural grounds, and then “assume[s], without deciding, that his claims are not
defaulted.” Slip Op. at 3. However, we need not assume that Allen’s ineffectiveness claim is not
defaulted, since Allen advanced this claim below and thus did not default it. (See Allen Br. to the
Michigan Court of Appeals (“Allen Collateral Appeal Br.”), Dist. Ct. Docket No. 25, at 9-21.) And,
though it is unclear whether the Michigan Court of Appeals adjudicated his ineffectiveness claim
on the merits, see People v. Allen, No. 249788, 2005 WL 1106498 (Mich. Ct. App. May 10, 2005),
at *2, to the extent it did so, its adjudication was contrary to clearly established Supreme Court
-8-
No. 09-1484
Allen v. Howes
precedent. This is so because the Michigan Court of Appeals never stated the rule it applied to
Allen’s ineffectiveness claim, and the only authority it cited, People v. Reed, 535 N.W.2d 496 (Mich.
1995), added an additional element to the two-pronged test from Strickland v. Washington, 466 U.S.
668 (1984): whether the outcome was “fundamentally unfair or unreliable.” Reed, 535 N.W.2d at
509 n.21 (plurality opinion). The Supreme Court has held that an identical misunderstanding of its
ineffectiveness jurisprudence was contrary to clearly established federal law. Williams v. Taylor, 529
U.S. 362, 393 (2000). Thus, the Michigan Court of Appeals’ decision was contrary to clearly
established Supreme Court precedent, and our review of Allen’s ineffectiveness claim is de novo.
Dyer v. Bowlen, 465 F.3d 280, 284 (6th Cir. 2006).
Allen claims that his counsel was ineffective because he failed to argue on direct appeal that
the trial court’s evidentiary exclusions affected the trial’s outcome. To show that his appellate
counsel was ineffective, Allen must establish that: (1) his counsel acted unreasonably by failing to
make the evidentiary argument—an inquiry that depends largely on whether an omitted argument
was “significant and obvious” and “clearly stronger than those presented,” see, e.g., Matthews v.
Parker, --- F.3d ----, 2011 WL 2518895, at *31-32 (6th Cir. 2011) (citing Mapes v. Coyle, 171 F.3d
408, 427-28 (6th Cir. 1999)); and (2) there is “a reasonable probability that, but for his counsel’s
unreasonable failure [to make the evidentiary argument], he would have prevailed on his appeal,”
Smith v. Robbins, 528 U.S. 259, 285 (2000).
Before addressing Allen’s claims, I feel it necessary to clarify the relevant portions of the
record. The majority correctly states that Allen testified he brought the shotgun to Hunter’s
apartment for protection. Slip Op. at 2. But the majority misunderstands whom Allen purportedly
-9-
No. 09-1484
Allen v. Howes
brought the shotgun to protect. While the majority suggests Allen claimed at trial that he brought
the shotgun “because he feared for his safety,” id. at 5, Allen’s testimony makes clear that he was
actually concerned for his children’s safety. Allen went to confront McMullen because Shepherd
told him that McMullen “was messing with the kids.” (TT Vol. IV, Dist. Ct. Docket No. 15, at 37;
see also TT Vol. III, Dist. Ct. Docket No. 13, at 14 (Allen’s cousin Hodo’s testimony on the same
point).) Allen testified that when he arrived at Hunter’s apartment, he loudly announced his arrival
by shouting at Hunter, “why is he messing with my kids.” (TT Vol. IV, Dist. Ct. Docket No. 15, at
42.) Then, after finding McMullen, Allen berated McMullen for several minutes solely about
McMullen’s abuse of the twins. (Id. at 45-47.)
However, the jury never heard the most significant evidence suggesting that Allen should be
concerned about his children’s safety: Allen’s testimony that Hunter told him McMullen had
threatened to kill the twins, and that McMullen had actually abused the twins in the
past—specifically, that McMullen had “pinned . . . [Allen’s] babies up.” (TT Vol. IV, Dist. Ct.
Docket No. 15, at 27.) Without this foundation, trial counsel could not focus his closing argument
on this explanation for Allen’s intent, so counsel had to direct his argument elsewhere.
Given these facts, I would hold that the evidentiary argument was significant and obvious,
as well as clearly stronger than those Allen’s appellate counsel presented, and that there is a
reasonable probability Allen would have won on appeal had the argument been made. First, the
argument was obvious. Allen’s proffered testimony was excluded as hearsay. Hearsay, in Michigan,
is defined as an out-of-court statement “offered in evidence to prove the truth of the matter asserted.”
Mich. R. Evid. 801(c). Allen was not offering Hunter’s out-of-court statements to prove the truth
- 10 -
No. 09-1484
Allen v. Howes
of what those statements contained, but to prove that, true or not, they caused him to fear for his
children. Allen’s counsel explained this and forcefully objected to the trial court’s rulings at the trial.
(TT Vol. IV, Dist. Ct. Docket No. 15, at 24-33.) No competent attorney could read the transcript and
miss the trial court’s elementary error.
The error was also significant. Allen’s explanation for bringing a shotgun to his ex-
girlfriend’s apartment was that he feared for his children’s safety. But due to the trial court’s
erroneous exclusions, the jury heard no evidence suggesting that Allen had any basis for such a fear.
Instead, the jury was left to believe that, after hearing merely that McMullen was “messing with”
Allen’s children, Allen decided to confront McMullen with a shotgun. Any competent appellate
counsel would perceive that the trial court’s rulings significantly colored the jury’s view of the
evidence.
Furthermore, the evidentiary argument was “clearly stronger” than those Allen’s appellate
counsel presented. Allen made six arguments on direct appeal, and all were meritless. First, Allen
advanced a Batson claim on the ground that the prosecutor struck two black jurors. (Allen Br. to the
Michigan Court of Appeals (“Allen Direct Appeal Br.”), Dist. Ct. Docket No. 21, at 10.) However,
the prosecutor struck several white jurors, accepted one black juror, and articulated satisfactory
reasons for its peremptory objections. See Batson v. Kentucky, 476 U.S. 79, 93-94 (1986) (requiring
a greater showing to establish prejudice); TT Vol. I, Dist. Ct. Docket No. 12, at 162-63; TT Vol. IV,
Dist. Ct. Docket No. 15, at 193-96. Second, Allen argued that the trial court should have granted
his motion for a directed verdict as to first-degree murder because no evidence in the record
supported a finding of premeditation, (Allen Direct Appeal Br., Dist. Ct. Docket No. 21, at 15), but
- 11 -
No. 09-1484
Allen v. Howes
the jury could have inferred premeditation from Allen’s trip home to get his gun and the twenty to
forty-five minutes that elapsed between Allen’s conversation with Shepherd and McMullen’s
shooting, (TT Vol. III, Dist. Ct. Docket No. 14, at 63-64). See People v. Gonzales, 444 N.W.2d 228,
231 (Mich. Ct. App. 1989). Third, Allen argued that his counsel was ineffective for failing to
request an instruction on careless use of a firearm with death resulting. (Allen Direct Appeal Br.,
Dist. Ct. Docket No. 21, at 19.) Yet the jury was instructed on voluntary or involuntary
manslaughter, and chose instead to find Allen guilty of second degree murder. (See TT Vol. IV,
Dist. Ct. Docket No. 15, at 168-69.) Given that the jury declined to find Allen guilty of
manslaughter rather than murder, the failure to provide the even lesser instruction regarding careless
use of a firearm with death resulting did not affect the outcome. See People v. Chamblis, 236
N.W.2d 473, 477-78 & n.5 (Mich. 1975), overruled on other grounds by People v. Cornell, 646
N.W.2d 127 (Mich. 2002).
Fourth, Allen argued that the prosecution made prejudicial remarks during summation.
(Allen Direct Appeal Br., Dist. Ct. Docket No. 21, at 25.) Allen’s counsel, however, never objected
to any of these remarks, (People v. Allen, No. 136139, at *1 (Mich. Ct. App. June 2, 1993), available
at Dist. Ct. Docket No. 21, at 1-2), and, in any case, none of them was prejudicial in light of the
curative instructions to the jury, see People v. Malone, 482 N..2d 470, 472 (Mich. Ct. App. 1992).
Fifth, Allen claimed he was coerced into pleading guilty to a habitual-offender charge because the
trial court refused to take the time needed to track down a plea transcript from a prior conviction.
(Allen Direct Appeal Br., Dist. Ct. Docket No. 21, at 28.) Nonetheless, he maintained the ability to
subsequently challenge the plea based on the plea transcript but never did so; thus, he cannot
- 12 -
No. 09-1484
Allen v. Howes
establish that, but for the coerced plea, he might have been found innocent of the habitual offender
charge. Cf. People v. Lawton, 492 N.W.2d 810, 814 (Mich. Ct. App. 1992). Sixth, Allen contended
that his indeterminate sentence of thirty to sixty years of imprisonment deviated substantially from
the Michigan sentencing guideline range of ten to twenty-five years. (Allen Direct Appeal Br., Dist.
Ct. Docket No. 21, at 31.) However, at the time, the guidelines did not apply to habitual offenders
like Allen, see People v. Edgett, 560 N.W. 2d 360, 363 (Mich. Ct. App. 1996); People v. Strickland,
448 N.W.2d 848, 848 (Mich. Ct. App. 1989), and they only set a sentence’s minimum, not both the
minimum and maximum, see People v. Frank, 400 N.W.2d 718, 719 (Mich. Ct. App. 1986). In
short, all of the six arguments Allen’s counsel made on direct appeal were much weaker than the
significant and obvious evidentiary argument Allen’s appellate counsel failed to make. Allen’s
appellate counsel’s performance was thus, as the district court correctly held, deficient.
Finally, counsel’s failure to make the evidentiary argument prejudiced Allen’s appeal. To
show prejudice, Allen must show that there is a reasonable probability that he would have prevailed
on appeal if not for his counsel’s deficient performance. Smith, 528 U.S. at 285. To have prevailed
on appeal at the time, Allen would have to show that it was not “clear that the error[s] did not
prejudice the defendant.” People v. Lee, 450 N.W.2d 883, 895 (Mich. 1988). The majority contends
that the excluded evidence was cumulative, and that its exclusion, therefore, did not prejudice Allen.
Slip Op. at 6. But, as noted above, the majority reaches this conclusion by misunderstanding the
purpose for which Allen offered the evidence. Allen did not seek to introduce this evidence to show
that McMullen was a violent man generally—and thus a person from whom Allen needed a shotgun
to protect himself; Allen sought to introduce the evidence to show that, in his mind, on the day of
- 13 -
No. 09-1484
Allen v. Howes
the shooting, McMullen posed a threat to the children. The evidence would have been cumulative
for the first point, but it was not cumulative for the second.
Because the evidence was not cumulative, it is unclear that its exclusion did not affect the
outcome of the trial. Allen’s testimony indicates that he was concerned for his children on the day
McMullen died, and the jury could have believed this concern drove him to take a gun to Hunter’s
apartment. Therefore, it would have been more likely to believe that Allen never formed an intent
to kill McMullen and that McMullen’s death was an accident. The majority observes that the jury
“could just as easily” have concluded, had the evidence been let in, that Allen shot McMullen out
of anger over McMullen’s treatment of the children. Id. at 5. This is true, but it does not defeat
Allen’s ineffectiveness argument because it is not clear that the jury would have so reasoned. See
Lee, 450 N.W.2d at 895. Had the jury heard that Hunter told Allen that McMullen abused and
threatened to kill the children, it could have thought that when Allen subsequently heard that
McMullen was “messing with” the children, he reasonably became alarmed and brought the shotgun
to protect his children. And, had the jury believed that Allen did not bring the shotgun to kill
McMullen, it would have been less likely to believe that Allen later formed the requisite intent, and
more likely to believe that McMullen’s death was an accident. There is, therefore, a reasonable
probability that the Michigan Court of Appeals would have thought it unclear whether the exclusion
affected the trial’s outcome. Therefore, because I believe that counsel’s failure to make the
evidentiary argument was unreasonable and prejudiced Allen’s appeal, I would REVERSE the
district court’s judgment, GRANT the writ, and REINSTATE Allen’s direct appeal of right. See
Mapes v. Tate, 388 F.3d 187, 194 (6th Cir. 2004). I respectfully dissent.
- 14 -
| {
"pile_set_name": "FreeLaw"
} |
712 So.2d 572 (1998)
STATE of Louisiana
v.
Kenneth REED.
No. 97 KA 0812.
Court of Appeal of Louisiana, First Circuit.
April 8, 1998.
*574 Doug Moreau, District Attorney by R. Christopher Nevils, Sue Bernie Assistant District Attorneys, Baton Rouge, for Appellee State of Louisiana.
Gail H. Ray, Baton Rouge, for Defendant-Appellant Kenneth Reed.
Before CARTER and FITZSIMMONS, JJ., and CHIASSON, J. Pro Tem.[1]
FITZSIMMONS, Judge.
Defendant, Kenneth Reed, Jr., was charged by grand jury indictment with the following offenses: Count I, aggravated rape, a violation of La. R.S. 14:42; Count II, aggravated burglary, a violation of La. R.S. 14:60; and Count III, attempted second degree murder, a violation of La. R.S. 14:27 and 30.1. Defendant pled not guilty to the charges. Following trial by jury, defendant was found guilty as charged on Count I, guilty of the responsive offense of unauthorized entry of an inhabited dwelling on Count II, and guilty of the responsive offense of aggravated battery on Count III. The court sentenced defendant to imprisonment at hard labor for life, without benefit of parole, probation or suspension of sentence on Count I, six years on Count II, and twelve years on Count III. The court ordered that the sentences on Counts II and III run consecutively to each other and concurrently with the sentence on Count I.[2] Defendant appealed, *575 briefing nine assignments of error.[3] Thereafter, he filed a motion with this Court to remand the case to the trial court for a hearing on his motion for new trial based on newly discovered evidence. We granted the motion to remand, directing the district court to rule on the motion and relodge the record with this Court. On remand, the trial court denied the motion for new trial as untimely filed. Defendant's appeal has been relodged with this Court. Defendant now urges the nine assignments of error briefed in his original appeal and one additional assignment of error relating to the denial of the motion for new trial based on newly discovered evidence.[4]
The record reflects that the instant offenses occurred sometime after midnight on December 27, 1991, in Baton Rouge, Louisiana, inside the home of Annette Thompson, a friend of the teenage female victim.[5] While the victim was alone in the residence asleep, two men entered the residence and brutally attacked, beat, and raped her. They also robbed the victim, tied her hands and legs, and secured a bed sheet around her neck to the point that she apparently could barely breathe. The victim "played dead," and the perpetrators left the residence. After they left, the victim managed to untie herself and run to some neighboring homes to report the offenses, as there was no telephone in Thompson's residence. The victim recognized the perpetrators as defendant and co-defendant Reese, individuals she previously had seen. During the ensuing police investigation, the victim was shown a photo lineup including defendant's picture and a separate photo lineup including co-defendant Reese's photo. From the lineups, she positively identified both men as the perpetrators. The arrests of defendant and Reese followed. At trial, the victim made positive in-court identifications of defendant and Reese.
ASSIGNMENT OF ERROR NO. ONE
In this assignment, defendant contends that the trial court erred by refusing to provide the defense with the entire initial police report of the instant offenses. Specifically, defendant claims that the defense was entitled to receive Sgt. Ericka D'Amico's report as part of the initial offense report.[6]
At a hearing conducted on May 5, 1992, the trial court ruled that Sgt. Ericka D'Amico's report was a follow-up report and that the state had complied with discovery when the state turned over the initial report by Officer Nacoste.
Additionally, the record includes a July 6, 1992 written response by the trial court to an order from this court. In the written response, the trial court stated that it conducted a hearing on June 29, 1992, at which the parties and the court reached agreement on certain matters, including the following. The state had provided the defense with a four-page report, including three pages dated December 27, 1991, relating Sgt. D'Amico's conversation with the victim and a one-page arrest report by Detective Ronnie Smith dated January 10, 1992, concerning the arrests of defendant and Reese. The court stated that it had determined the initial offense report was a two-page December 27, 1991, report by Officer Nacoste, which was given to the defendants. In conclusion, the trial court stated there were no unresolved issues related to the initial offense report.
After a review of the record, we find no merit in assignment of error one.
ASSIGNMENT OF ERROR NO. TWO
In this assignment, defendant contends that the trial court erred by denying the defense motion to suppress the victim's identification of him. Specifically, defendant appears *576 to assert that the pretrial photo lineup compiled by and displayed by Sgt. D'Amico to the victim was suggestive, and that it resulted in a likelihood of misidentification. Defendant argues that the pictures used in the lineup had been cut out in a manner to depict essentially only the faces of the persons. This deprived the victim of being able to compare the heights and weights of the persons depicted.
A defendant attempting to suppress an identification must prove the identification was suggestive, and that there was a likelihood of misidentification as a result of the identification procedure. Even should the identification be considered suggestive, that alone does not indicate a violation of the defendant's right to due process. It is the likelihood of misidentification which violates due process, not merely the suggestive identification procedure. A trial court's determination of the admissibility of identification evidence is entitled to great weight and will not be disturbed on appeal in the absence of an abuse of discretion. State v. Thomas, 589 So.2d 555, 563 (La.App. 1st Cir.1991). In determining if the court's ruling on the motion to suppress identification was correct, we are not limited to the evidence adduced at the hearing on the motion. We may consider all pertinent evidence presented at the trial of the case. State v. Smith, 95-1826, p. 4 (La.App. 1st Cir. 9/27/96); 681 So.2d 980, 985, writ denied, 96-2568 (La.3/27/97); 692 So.2d 390. Furthermore, even if it is established that a pretrial identification of an accused is the product of impermissible suggestion, an in-court identification is admissible if it has an independent basis. State v. Leagea, 95-1210, p. 6 (La.App. 1st Cir. 5/10/96); 673 So.2d 646, 650, writ denied, 96-1507 (La.11/22/96); 683 So.2d 287.
We have carefully examined the six-picture photo lineup at issue. Defendant correctly observes that each of the pictures has been cut out to display only the faces of the individuals depicted. The pictures are in black and white and are relatively the same size. They depict black men of apparently comparable ages with similar hairstyles, complexions, and facial features. After viewing the lineup itself and carefully considering the testimony of D'Amico and the victim concerning the lineup, and particularly the manner in which it was conducted, we are unable to discern any suggestiveness in the pictures, the manner in which the photographs are affixed to the folder comprising the lineup, or in any of the procedures used in conducting the lineup.
Even assuming, arguendo, that the out-of-court identification was somehow suggestive, defendant has failed to prove a likelihood of misidentification. The following factors are considered in determining if a physical lineup is reliable: (1) the witness' opportunity to view the defendant at the time the crime was committed; (2) the degree of attention paid by the witness during the commission of the crime; (3) the accuracy of any prior description; (4) the level of the witness' certainty displayed at the time of the identification; and (5) the length of time elapsed between the crime and the identification. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977); State v. Smith, 95-1826 at p. 6; 681 So.2d at 986.
The photo lineup was exhibited to the victim on December 31, 1991, only four days after the crimes. The trial was held on November 2-5, 1992, slightly more than ten months following the offenses. The victim testified that she observed the faces of both perpetrators during the commission of the offenses. She stated that the lighting in Thompson's house at the time of the incident came from the kitchen light and Christmas tree lights that were illuminated, providing her with lighting she described as about as bright as that in the courtroom. The victim knew both perpetrators from having seen them "around the neighborhood" on several occasions during a period of approximately one and one-half years preceding the perpetration of the instant offenses. She knew defendant by his nickname "Chill," and pointed out to D'Amico where he lived. The record reflects that the victim's identifications of defendant at the pretrial lineup, pretrial suppression hearing, and trial were immediate, positive, and unequivocal. In view of these facts, the out-of-court identification *577 was clearly reliable, rendering the photo lineup admissible in evidence; and the in-court identification was also admissible, without doubt having had an independent basis.
This assignment lacks merit.
ASSIGNMENT OF ERROR NO. THREE
In this assignment, defendant contends that the trial court erred by ordering him to submit to the taking of blood and saliva samples. Defendant submits that the hearing at which the trial court issued the order was not conducted in compliance with due process. Citing State v. Davis, 443 So.2d 14 (La.App. 2nd Cir.1983), defendant argues that the jurisprudence establishes the need for the state to prove that evidence exists which can be or has been tested to produce typing or identification information to justify the issuance of a court order requiring a defendant to submit to the taking of bodily fluid samples.
The record reflects that on August 31, 1992, the trial court issued an ex parte order granting the state's motion to have defendant furnish blood and saliva samples to the Coroner of East Baton Rouge Parish. Thereafter, on October 2, 1992, apparently at the request of the defense, the court held a hearing on the motion and reaffirmed its previous ruling on the motion. During the hearing, the prosecutor stated that the state's intent was to request the crime lab to undertake blood type and secretor tests. The prosecutor indicated that she would submit to the court a copy of the crime lab report, which stated that sperm was found on panties and a pillowcase from the crime scene, and on a vaginal smear in the victim's rape kit. Based on the foregoing, the prosecutor asserted that there was probable cause justifying the taking of blood and saliva samples from defendant. Based upon the arguments of counsel and the crime lab report, the court ruled there was sufficient justification for granting the motion for purposes of testing and comparison with the referenced evidentiary items.
The victim was positive of defendant's identity as one of the perpetrators of these offenses. George Schiro, who qualified and was accepted by the trial court as an expert in the field of forensic serology, tested defendant's blood and saliva samples, items of physical evidence recovered at the crime scene, and items in the victim's rape kit, including the victim's blood sample. The only item in the rape kit on which he detected any seminal fluid was the vaginal smear, and he was unable to perform any secretor test on this item. According to Schiro's testimony, the seminal fluid could have come from any male in the world; and the sperm Schiro found on the vaginal smear could not be connected with this case at all. On a bedsheet, Schiro detected human blood with B antigenic activity. Although Schiro determined defendant could not have been the contributor of this stain, neither the victim nor Reese could be excluded as the contributor. Schiro indicated that this stain could have been from anyone within the sixteen percent of the black population having type B blood.
There is nothing in the record indicating that the intrusion required to obtain the samples from defendant was anything other than minimal. Even assuming, arguendo, that the trial court erred by granting the motion, we are convinced that the error was harmless beyond a reasonable doubt and did not contribute to the instant verdicts.
Hence, this assignment lacks merit.
ASSIGNMENT OF ERROR NO. FIVE
In this assignment, defendant contends that the trial court erred by allowing Sgt. Ericka D'Amico to give testimony relating statements the victim made to her concerning the alleged attack of the victim by defendant and his co-perpetrator. Defendant asserts that the complaint to D'Amico was not the initial complaint of the victim, who made at least two and possibly four complaints of the alleged attack.
Defendant argues that this testimony was inadmissible hearsay, and not nonhearsay under La.Code Evid. art. 801(D)(1)(d). Article 801(D)(1)(d) defines a statement as nonhearsay, if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, the statement is consistent with the declarant's testimony, *578 and is a statement of initial complaint of sexually assaultive behavior.
Defendant argues that the alleged improperly admitted testimony of D'Amico denied him a fair trial, and prejudiced him by hindering his ability to cross-examine the victim and by unfairly bolstering the state's case. More specifically, he asserts that, because D'Amico testified before the victim testified, he was unable to impeach the victim's credibility; and the effect thereof was to strengthen the victim's credibility.
Upon untying herself, the victim ran across the street from Thompson's home, banged on the door of another house, and told the occupants she had been raped and needed someone to call the police. The people inside the house told her they would call for help, but did not let her come into the house. The victim then ran to another home and knocked on the door. A man came out. The victim grabbed the man and "was telling him what happened."
In the meantime, Officer Otis Nacoste, who was on patrol in his police unit, was flagged down by the victim. The victim began relating to Nacoste what had happened to her. Sgt. Ben Odom responded to the report of these offenses by going to the scene. Odom was present and spoke with the victim along with Nacoste. The testimony of Odom and Nacoste reflects that their conversation with the victim was very brief because she passed out shortly after they began questioning her. Although Nacoste indicated that the victim went into details during the conversation, the only details he recounted from the conversation were essentially that the victim stated that she was lying on a sofa, two people entered the house, and one of them put something over her head. The victim was then transported by emergency medical personnel to the hospital where the victim spoke to Sgt. D'Amico.
When the prosecutor questioned D'Amico on direct examination concerning what the victim related to her at the hospital, counsel for defendant objected on hearsay grounds. Out of the presence of the jury, the prosecutor argued that the testimony was admissible under La.Code Evid. art. 801(D)(1)(d), as the victim's initial complaint. The defense pointed out that the victim had not yet testified and argued that, unless the victim testified prior to D'Amico and the testimony of D'Amico was consistent with that of the victim, D'Amico's testimony would be inadmissible under the article. The court agreed that the testimony would have to be consistent to be admissible as an initial complaint, but indicated that art. 801 did not dictate the order in which the witnesses had to testify. Noting that the victim had spoken to Nacoste and Odom before passing out, the court indicated that the victim had begun to relate what might be considered an initial complaint to those two officers. However, the court ruled that the victim had not actually made an initial complaint to Nacoste and Odom because she "never really had a chance to express anything" to those officers as a result of her losing consciousness. Consequently, the court ruled that the victim's statement to D'Amico was the initial complaint admissible under art. 801(D)(1)(d).
We find no abuse of discretion by the trial court in its determinations and agree with the court's ruling that the statement to D'Amico constituted the initial complaint. However, in our view, the victim's initial complaint began with the brief statements she made to Nacoste and Odom and resumed with the statement the victim gave to D'Amico at the hospital when she was able to complete her complaint in the presence of D'Amico. Cf. State v. Free, 26,267 (La.App. 2nd Cir. 9/21/94); 643 So.2d 767, writ denied, 94-2846 (La.3/10/95); 650 So.2d 1175.
Notwithstanding defendant's assertions that there were inconsistencies between the victim's testimony and the initial complaint sufficient to render D'Amico's testimony inadmissible as an initial complaint, our review discloses that several of these alleged inconsistencies represent more a matter of semantics rather than actual inconsistencies. The actual inconsistencies represent only minor divergences in testimony, which do not affect our holding in this case. Even assuming, arguendo, that the testimony given by D'Amico was erroneously admitted as an initial complaint, we are convinced that this testimony was merely cumulative of the properly admitted testimony of the victim, *579 and that it did not contribute to the verdicts. Thus, it was harmless beyond a reasonable doubt. Cf. State v. Fanguy, 94-143, p. 9-10 (La.App. 3rd Cir. 10/5/94); 643 So.2d 860, 867-68, writ denied, 94-2726 (La.4/21/95); 653 So.2d 563.
This assignment lacks merit.
ASSIGNMENT OF ERROR NO. SIX
In this assignment, defendant contends that the trial court erred by denying the defense request for an additional jury instruction.
The record reflects that during jury deliberations the jury was returned to the courtroom and requested further instructions in the following exchange:
THE COURT: MR. FOREMAN, WHAT CAN I DO FOR YOU?
THE FOREMAN: WE WOULD LIKE FURTHER INSTRUCTIONS, YOUR HONOR. WE WOULD LIKE FOR YOU TO READ US BACK THE PART ABOUT THE TESTIMONY AND THE PHYSICAL EVIDENCE. OUR INSTRUCTIONS OF HOW TO VIEW IT.
THE COURT: OKAY. HOW TO VIEW THE TESTIMONY?
A JUROR: CAN WE ASK YOU A DIRECT QUESTION?
THE COURT: GO RIGHT AHEAD. I MAY NOT BE ABLE TO ANSWER IT, BUT GO RIGHT AHEAD.
A JUROR: CAN WE CONVICT ON TESTIMONY ALONE? CAN YOU READ U.S. THE INSTRUCTIONS ABOUT THAT AND THE ANSWER TO THAT QUESTION?
In response to these inquiries, the trial court instructed the jury as to the difference between testimonial and physical evidence, and explained the jury's role in determining the facts, the credibility of witnesses, the weight to be given evidence, and whether to reject or accept testimony of any witness. Thereafter, the jury was removed from the courtroom and continued its deliberations. Counsel for defendant objected and requested that the trial court additionally instruct the jury that the jury should consider all the evidence introduced and the lack of evidence or the absence of evidence on any particular point. In overruling the objection and denying the request, the trial court noted the jurors had not requested additional instructions concerning the lack of evidence, or particularly in the context of reasonable doubt.
Based on the jurors' requests and the additional instructions given by the court, we find no error. Furthermore, in its original instruction to the jury, the trial court clearly informed the jury that, in determining guilt beyond a reasonable doubt as to each of the counts charged, the jury was to give defendant and Reese the benefit of every reasonable doubt arising out of the evidence or lack of evidence. See La.Code Crim. P. art. 804(A)(2).
This assignment lacks merit.
ASSIGNMENT OF ERROR NO. SEVEN
In this assignment, defendant contends that the evidence is insufficient to support the instant verdicts. Concerning the aggravated rape, defendant argues that the evidence supports "at the most" only a conviction for forcible rape. Regarding the unauthorized entry of an inhabited dwelling conviction, defendant points out that the victim was only a visitor at Thompson's home and that Thompson did not testify at trial. He argues that the circumstantial evidence did not negate the possibility that he had permission from Thompson to enter her home. Finally, in regard to the aggravated battery conviction, defendant asserts that, because the state failed to prove the commission of a battery with a dangerous weapon, he should have been acquitted of the attempted second degree murder charge.
In reviewing claims challenging the sufficiency of the evidence, this Court must consider "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original). See also La.Code Crim. P. art. 821(B); *580 State v. Mussall, 523 So.2d 1305, 1308-09 (La.1988).
The victim gave the following testimony. At about 6:00 p.m. on December 26, 1991, she went to Thompson's home. No one was in the house when the victim entered the house. The victim waited for Thompson and fell asleep on the couch in the living room at about 10:30 or 11:00 p.m.
At about midnight or 12:30 a.m., the victim was awakened by knocking at the front door. She leaned across the couch, peeked through a window and saw defendant ("Chill") and co-defendant Reese ("Fats") standing on the porch. She also saw the car parked outside that "Kenneth rides around in all the time." The victim did not answer the door because she was alone and did not want to let anyone in, choosing instead to lie back down on the couch. She fell asleep.
Shortly thereafter, the victim heard knocking "around the windows" to the back of the house; but she did not get up to see what was going on. The victim next opened her eyes when she heard the noise of defendant and Reese running toward her inside the house from its rear. The perpetrators grabbed the victim. Reese "put [her] head in the sofa," and tried to "smother [her] to death." The perpetrators kept hitting her with their fists about her head, face and legs but never said anything to her. The victim repeatedly asked them why they were "doing this to [her]." She stated she was not Thompson, and identified herself by name. The victim continued to fight her attackers, and at some point Reese ceased pushing her head into the sofa cushion. During the struggle, false fingernails she was wearing were pulled from her fingers. All of the buttons on the victim's one piece short set were ripped off and the crotch of the garment was ripped out.
Co-defendant Reese raped the victim vaginally and anally, followed by defendant subjecting her to the same acts. The victim maintained that she continued to fight the men during the rapes.
When the perpetrators finished raping the victim, they tied her hands and feet. They "put a broom [handle] in [her] butt." Apparently not through with the victim, the perpetrators tried to put a bed sheet around the victim's head. The victim continued to fight the perpetrators as they succeeded in getting the sheet around her neck "tight enough to the point where [she] couldn't breathe." The victim then employed a strategy of lying still and "play[ing] dead." However, the victim watched defendant and Reese as they ran out of the house.
During the attack, the perpetrators took jewelry from the victim. The items included a herringbone necklace worth several hundred dollars and some rings.
The victim stated that she never gave the perpetrators permission to come into the house or to have vaginal or anal intercourse with her. She consistently maintained she was positive of their identities.
According to the victim, the front and side doors to the house were locked. She stated that she was positive the perpetrators entered from the back of the house. To the best of the victim's knowledge, there was only one way they could have entered, i.e., through a broken window in the children's room.
A few days after the offenses, Sgt. D'Amico assembled the photo lineups and displayed them to the victim. Upon viewing each lineup, the victim quickly selected the picture of defendant and that of Reese from the respective lineup and indicated her certainty in making the selections.
Casandra Chapman, who lived on the same street where the instant offenses occurred, testified that she knew defendant and Reese. During her trial testimony, she identified both men in court. She testified that on the night of December 27, 1991, she initially saw defendant and Reese sitting in a parked car. She identified State Exhibit S-8, a photograph, as depicting defendant's car, the car she observed on the night in question. Chapman stated that she saw defendant knock on the door of Thompson's residence, while Reese remained seated in the car. At the time, Chapman was going "around the corner" on her way to see a friend, Diane Milton. Later, Chapman saw defendant and Reese coming away from the side of Thompson's *581 house. The two men were moving "quickly somewhat" headed back to the car. They then drove off. According to Chapman, she "made it around the corner at least four times" and was "running back and forth" during her observations of defendant and Reese. Chapman spoke to defendant and Reese the first time she saw them, telling them that Thompson was not home. Defendant told Chapman that Thompson owed him some money and that if she saw Thompson to tell her he wanted his money. Chapman further stated that she had known defendant and Reese for about ten or more years and was certain it was them she observed.
Sgt. Ben Odom described the victim as visibly upset, shaking, injured, and crying when he came into contact with her on the morning of December 27. After the victim passed out while speaking to Odom, he began investigating the crime scene. He found an open window on the southeast corner of Thompson's residence, which he indicated was the suspected point of entry to the home. The window screen apparently had been removed and placed on the ground below the window.
The state introduced into evidence photographs (State Exhibits S-4F, S-4G) depicting the suspected point of entry. The state also introduced into evidence various items of physical evidence recovered at the crime scene, including State Exhibit S-6, a broom, which had a dark substance (fecal matter) on the handle at its tip.
At trial, defendant took the stand in his own defense. Defendant gave testimony consistent with that given by Reese, who also testified at the trial. At about 11:00 p.m. on December 26, 1991, defendant picked up Reese; and they went to Thompson's house. Defendant had loaned Thompson thirty dollars and wanted to collect the money. When they pulled up in front of the house, there was a man there. Defendant and Reese waited in the car. When the man exited the porch at the residence and left, defendant exited his car, walked up to the house, and knocked on the door. Defendant received no answer. As defendant walked down the stairs, Reese asked him if anyone was home. Defendant replied that he was not sure. Defendant, accompanied by Reese, went around the house and knocked on the window but still received no answer. Defendant and Reese got into defendant's car and left. From the residence, they went to a club where they remained until approximately 2:00 a.m. Defendant took Reese home. Defendant denied that he broke into Thompson's home, attacked or raped the victim, or returned to Thompson's home after leaving the club.
The trier of fact may accept or reject, in whole or in part, the testimony of any witness. State v. Patterson, 540 So.2d 515, 518 (La.App. 1st Cir.1989). The credibility of the testimony of a witness is a matter of the weight of the evidence. State v. Payne, 540 So.2d 520, 524 (La.App. 1st Cir.), writ denied, 546 So.2d 169 (La.1989). A determination of the weight to be given evidence is a question of fact for the trier of fact, not subject to appellate review. State v. Payne, 540 So.2d at 524; State v. Patterson, 540 So.2d at 518. In returning the instant verdicts, the jury must have rejected the testimony of defendant and Reese and chosen instead to believe the testimony of the victim and other state witnesses.
Notwithstanding defendant's assertions to the contrary, we find there clearly was overwhelmingly sufficient evidence to establish the commission of aggravated rape and not merely the responsive offense of forcible rape. See La. R.S. 14:42 prior to amendment by 1993 La. Acts, No. 630, § 1 (the law applicable to defendant's crime). Similarly, we find the evidence sufficiently established an aggravated battery, i.e., a battery with a dangerous weapon. We are convinced that the victim's testimony describing the manner in which her face was pushed into the sofa cushions and the manner in which the bed sheet was used around her neck rendered the use of the cushions and/or bed sheet dangerous weapons, i.e., instrumentalities calculated or likely to produce death or great bodily harm. See La. R.S. 14:2(3). We are also convinced that there was sufficient evidence of unauthorized *582 entry of Thompson's home,[7] notwithstanding the absence of testimony of Thompson that the entry was not authorized, based on the victim's testimony and the totality of circumstantial evidence introduced at trial.[8] Furthermore, viewing all the evidence in the light most favorable to the prosecution, we find that any rational trier of fact could have concluded beyond a reasonable doubt that the state proved all the elements of aggravated rape, unauthorized entry of an inhabited dwelling, and aggravated battery.
This assignment lacks merit.
ASSIGNMENTS OF ERROR NOS. EIGHT, NINE AND ELEVEN
In assignments eight and nine, in which defendant contends that the trial court erred by denying his motion in arrest of judgment and motion for a new trial, defendant appears to reassert the same arguments he made by means of his assignments of error numbers one through three and five through seven. Because we previously addressed and found these assignments meritless, defendant's reassertion of those same arguments in these assignments is likewise, without merit. The only remaining argument defendant makes in assignment eleven concerns the denial of his second motion for new trial alleging newly discovered evidence, a ground not urged in his initial motion for new trial.
The instant trial began on November 2, 1992, and ended three days later when the jury returned the instant verdicts. On January 12, 1993, defendant filed motions in arrest of judgment and for new trial. Both motions were denied by the trial court at a March 5, 1993, hearing. Sentences were imposed three days later on March 8. Defendant filed a motion for appeal on March 12. On August 25, 1994, we granted defendant's motion to remand the case to the trial court for a determination of whether a second motion for new trial filed by defendant based on alleged newly discovered evidence had been timely filed. The trial court then held a hearing on September 27, 1994. At the hearing, counsel for Reese (in argument concurred in by defendant's counsel) conceded that the motion for new trial alleging newly discovered evidence had been filed more than one year after rendition of the instant guilty verdicts, i.e., beyond the one-year time limitation provided in La.Code Crim. P. art. 853 for filing a motion for new trial on the ground of newly discovered evidence. However, counsel argued that the time limitation should not apply. The court deferred issuing a ruling until September 29, 1994, when it ruled that the second motion for new trial was untimely filed. Thereafter, defendant's appeal, which had previously been pending under our docket number 94 KA 0107, was relodged, and docketed under our number 97 KA 0812.
Because the record reflects that defendant's motion for new trial based on newly discovered evidence was not filed within one year of the instant verdicts, the motion was untimely filed. See La.Code Crim. P. arts. 851(3) & 853; State v. Bolton, 408 So.2d 250, 253-254 (La.1981). However, defendant argues that the one-year time limitation of article 853 unconstitutionally deprives him of his constitutional rights to judicial review and access to the courts guaranteed by La. Const. Art. I, §§ 19 & 22 and his federal and state constitutional rights to due process. We disagree, as it is the legislative prerogative to set reasonable procedural formalities and requirements such as the time limitations provided in article 853, which we do not find violative of the cited constitutional rights. See State v. Marcell, 320 So.2d 195, 198 (La.1975); State v. Denomes, 95-1201, p. 8 (La.App. 1st Cir. 5/10/96); 674 So.2d 465, 470, writ denied, 96-1455 (La.11/8/96); 683 So.2d 266. See also State v. LeBlanc, 367 *583 So.2d 335, 340 (La.1979); State v. Spain, 329 So.2d 178 (La.1976); State v. Morris, 292 So.2d 215 (La.1974). Furthermore, the article 853 time limitation must not be considered in isolation, but rather in the context of the entire post conviction process. A defendant whose right to seek review of his allegation of newly discovered evidence foreclosed under article 853 may nonetheless seek judicial redress pursuant to an application for post conviction relief filed in accordance with La.Code Crim. P. art. 924, et seq. Consequently, we reject defendant's arguments that the time limitations of article 853 unconstitutionally deprive him of his constitutional rights to judicial review, access to the courts, and due process. Cf. State ex rel. Glover v. State, 93-2330, 94-2101, 94-2197 (La.9/5/95); 660 So.2d 1189. Hence, we find no abuse of discretion by the trial court in ruling the motion was untimely filed.
These assignments lack merit.
ASSIGNMENT OF ERROR NO. TEN
In this assignment, defendant appears to concede that his failure to make or file a motion to reconsider his sentences, as required by La.Code Crim. P. art. 881.1, precludes him from challenging his sentences as excessive. Consequently, defendant advances only one argument in support of this assignment, i.e., that his sentence to imprisonment at hard labor for twelve years for the aggravated battery is patently illegal, because it exceeds the statutory maximum of ten years, and should be vacated. We agree.
La. R.S. 14:34 provides that aggravated battery is punishable by a maximum term of imprisonment of ten years, with or without hard labor. Herein, the trial court's imposition of a sentence of twelve years at hard labor for the aggravated battery is illegally excessive, since it exceeds the statutorily authorized maximum term of imprisonment. Although an appellate court is authorized to correct an illegal sentence when the exercise of sentencing discretion is not involved, correction of the illegal sentence for the aggravated battery involves the exercise of discretion and necessitates that we vacate the sentence and remand for resentencing in accordance with La. R.S. 14:34. See State v. Fraser, 484 So.2d 122, 124 n. 5 (La.1986).
CONVICTIONS AFFIRMED, SENTENCES FOR AGGRAVATED RAPE AND UNAUTHORIZED ENTRY OF AN INHABITED DWELLING AFFIRMED, SENTENCE FOR AGGRAVATED BATTERY VACATED, AND CASE REMANDED FOR RESENTENCING FOR THE AGGRAVATED BATTERY.
NOTES
[1] Judge Remy Chiasson, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.
[2] Co-defendant William Reese was jointly charged and tried with defendant on the instant charges, and the jury returned verdicts as to Reese identical to those returned as to defendant. Reese received sentences identical to those given defendant. On appeal, in an unpublished opinion, we affirmed Reese's convictions, affirmed his sentences for aggravated rape and unauthorized entry of an inhabited dwelling, vacated his sentence for aggravated battery, and remanded the case for resentencing on the aggravated battery. See State v. Reese, 94-2246 (La.App. 1st Cir. 2/23/96), 670 So.2d 804, writ denied, 96-0783 (La.6/28/96); 675 So.2d 1118.
[3] Assignment of error number four was not briefed on appeal and, therefore, is considered abandoned. See Uniform RulesCourts of Appeal, Rule 2-12.4.
[4] Although defendant numbered the additional assignment of error as number one, for purposes of clarity and simplicity, we have renumbered it as assignment eleven and will review it as such.
[5] At trial held November 2-5, 1992, the victim testified that at the time of trial she was seventeen years old and attending school.
[6] Two different spellings of the sergeant's name are used in the record, "Erica Damico" and "Ericka D'Amico." We have chosen to use the latter spelling.
[7] This court, in an unpublished opinion in State v. Reese, 94-2246 (La.App. 1st Cir. 2/23/96), 670 So.2d 804, writ denied, 96-0783 (La.6/28/96); 675 So.2d 1118, found the evidence sufficient on identical facts. I dissented from that opinion. However, the supreme court denied writs. I am constrained to follow Reese.
[8] While it is generally accepted practice to elicit the testimony of the owner or lessee of an inhabited dwelling or other structure subjected to an unauthorized entry to establish that such an entrance occurred, other evidence and even circumstantial evidence alone can establish the requisite element of unauthorized entry. See State v. Torres, 470 So.2d 319, 322 (La.App. 5th Cir. 1985).
| {
"pile_set_name": "FreeLaw"
} |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.