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https://www.courtlistener.com/api/rest/v3/opinions/7217684/ | MEMORANDUM**
California state prisoner Jeffrey Rico appeals the district court’s order denying his 28 U.S.C. § 2254 habeas corpus petition challenging his sentence under California’s three-strikes law for petty theft with a prior in violation of California Penal Code § 666. Rico’s contention that his 25-years-to-life sentence is grossly disproportionate in violation of the Eighth Amendment is foreclosed by Lockyer v. Andrade, — U.S. -, 123 S.Ct. 1166, 1172-75, 155 L.Ed.2d 144 (2003) (holding that state court’s affirmance of two consecutive 25-years-to-life sentences for petty theft was not contrary to or an unreasonable application of federal law), and Ewing v. California, — U.S. -, 123 S.Ct. 1179, 1185-90, 155 L.Ed.2d 108 (2003) (holding that 25-years-to-life sentence under the California three-strikes law did not ■violate the Eighth Amendment’s prohibition on cruel and unusual punishment). The district court therefore properly denied Rico’s petition. Andrade, 123 S.Ct. at 1175.
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. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217685/ | REINHARDT, Circuit Judge,
specially concurring.
I concur only under compulsion of the Supreme Court decision in Andrade. I believe the sentence is both unconscionable and unconstitutional. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217686/ | PREGERSON, Circuit Judge,
writing separately, dissenting in part.
In good conscience, I can’t vote to go along with the sentence imposed in this case. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217687/ | MEMORANDUM**
Damond Nelson appeals his twelvemonth and one-day sentence imposed following his guilty-plea conviction for escape from custody, in violation of 18 U.S.C. § 751(a). Nelson’s counsel filed a motion to withdraw as counsel of record and a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Nelson did not file a pro se supplemental brief, and the government has not filed an answering brief.
Based upon our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we conclude that Nelson was sentenced within the terms of his plea agreement and has knowingly and voluntarily waived his right to appeal. See United States v. Nguyen, 235 F.3d 1179, 1182-83 (9th Cir.2000); United States v. Martinez, 143 F.3d 1266, 1270-72 (9th Cir.1998). We therefore lack jurisdiction over this appeal. See United States v. Vences, 169 F.3d 611, 613 (9th Cir.1999).
Accordingly, counsel’s motion to withdraw as counsel of record is GRANTED, and this appeal is DISMISSED.
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. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217688/ | MEMORANDUM**
Juan Miguel Guizar appeals his guilty-plea conviction and 78-month sentence for importing cocaine in violation of 21 U.S.C. §§ 952 and 960. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Guizar’s counsel has filed a brief stating that she finds no meritorious issues for review, along with a motion to withdraw as counsel of record. No pro se supplemental brief or answering brief has been filed.
Our examination of the brief and our independent review of the record pursuant *397to Penson v. Ohio, 488 U.S. 75, 88-84, 109 S.Ct. 346, 102 L.Ed.2d 800 (1988), disclose no arguable issues for review on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED and the district court’s judgment 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. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217718/ | DECISION
PER CURIAM.
Petitioner Walter Powers petitions for review of the final decision of the Merit Systems Protection Board, Docket No. NY-0752-01-0083-1-1, 92 M.S.P.R. 228, 2002 WL 1466601, sustaining the decision of the Internal Revenue Service (“IRS”) to remove Mr. Powers from his position as an assignment clerk for repeatedly accessing confidential taxpayer information in violation of IRS policy. Because substantial evidence in the record supports the Board’s finding that Mr. Powers committed the charged violations and because we find no abuse of discretion in the penalty imposed, we affirm.
BACKGROUND
The evidence shows that on six occasions between April 27, 1998, and February 9, 1999, Mr. Powers accessed taxpayer information regarding certain celebrities and other taxpayers. Mr. Powers’ third line supervisor and his immediate supervisor testified that Mr. Powers had not been given authorization to access the accounts in question. The group manager for celebrity accounts testified that none of the celebrities in question had open *481accounts at the time Mr. Powers accessed their files, and that all requests for such access must be approved by the celebrity group manager. In light of those facts, an agency investigator determined that Mr. Powers had accessed confidential taxpayer information without authorization in violation of federal law. See 26 U.S.C. § 7213(a).
Mr. Powers testified that he was innocent of the charge, but the administrative judge found his testimony not credible because it was unclear, inconsistent, and contrary to other evidence of record. Initially, Mr. Powers maintained that he did not access the information. Subsequently, he claimed that he was authorized to access the information by someone who provided him names and social security numbers. Mr. Powers later stated that the alleged authorization list did not include social security numbers. Finally, Mr. Powers claimed that he was “framed” by being induced to access the records as part of a conspiracy among his coworkers to have him removed because they considered him a racist.
DISCUSSION
The administrative judge concluded that Mr. Powers’ testimony was not credible. Based on the inconsistencies in his testimony and the administrative judge’s opportunity to observe his demeanor, we find no abuse of discretion in the administrative judge’s decision not to credit that testimony. See Griessenauer v. Dep’t of Energy, 754 F.2d 361, 364 (Fed.Cir.1985).
The record supports the Board’s determination that Mr. Powers’ prohibited access of taxpayer information contravened the agency’s mission and demonstrated that he was untrustworthy. One of Mr. Powers’ supervisors testified that Mr. Powers attended two meetings, one in 1998 and one in 1999, at which IRS employees were informed of the agency’s “zero tolerance” policy for unauthorized access. Employees were required to sign a certification that they had attended and understood the training. The lack of trustworthiness demonstrated by Mr. Powers’ violation of the policy is an appropriate basis on which to conclude that an adverse action would promote the efficiency of the service. 5 U.S.C. § 7513(a); see Pararas-Carayannis v. Dep’t of Commerce, 9 F.3d 955, 958 (Fed.Cir.1993).
The Board properly considered all relevant circumstances before affirming the penalty of removal, including the agency’s “zero tolerance” policy, Mr. Powers’ multiple violations of the policy, the importance of trustworthiness in IRS personnel, and Mr. Powers’ length of service. We cannot conclude that the penalty of removal in this case “is so outrageously disproportionate to the charged offense in light of all relevant factors as to constitute an abuse of discretion.” Bryant v. Nat’l Sci. Found., 105 F.3d 1414, 1416 (Fed.Cir.1997). We therefore uphold the decision of the Board. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224394/ | OPINION & ORDER
SIDNEY H. STEIN, District Judge.
Pursuant to 28 U.S.C. § 2255, petitioner Billyhens Nunez-Polanco moves to vacate his convictions for (1) conspiracy to distribute and possess with intent to distribute heroin and (2) possession with intent to distribute heroin, on the grounds that his trial counsel was ineffective. Nunez-Po-lanco’s petition for relief is denied because he has not demonstrated that his attorney’s performance fell below an objective standard of reasonableness and that he suffered prejudice as a result.
I. Background
The history of the case is as follows. Nunez-Polanco was arrested after a police officer observed, through a peephole in the exterior door, Nunez-Polanco and three other men packaging heroin inside a Yonkers apartment. (Trial Tr. 34, 36, 42-45, 57.) The Court appointed Ronald Garnett, Esq. 'to represent Nunez-Polanco. At his 2012 trial, Nunez-Polanco took the stand and testified under oath that although he had accompanied a friend to the apartment, he had not participated in the packaging and in fact had not even seen any drugs in the apartment. (Id. 595-600.) The jury, apparently not crediting Nunez-Polanco’s testimony, returned a verdict of guilty.
Subsequent to being convicted and remanded to incarceration pending sentence, Nunez-Polanco participated in a so-called “safety valve” proffer session with the government pursuant to 18 U.S.C. § 3553(f). (Am. Pet. Under 28 U.S.C. § 2255 at 7.) During that meeting, he told the government that he had in fact gone to the apartment with the intention of packaging drugs, but that no work remained for him by the time he arrived. (Hr’g Tr. 35.) At sentencing, Garnett informed the Court that the defense and the prosecution agreed that Nunez-Polanco was not eligible for safety valve relief. (Sentencing Tr. 2, Oct. 16, 2012.) This Court then sentenced him principally to the mandatory minimum sentence of 60 months incarceration. (Id. at 20.) Nunez-Polanco did not appeal from that sentence.
In his first pro se section 2255 petition, filed May 13, 2013, Nunez-Polanco alleged that Garnett was ineffective in three respects, as follows: (1) Garnett had neglected to file a notice of appeal after Nunez-Polanco had directed him to do so; (2) Garnett should have made a pretrial request that the jury visit the Yonkers apartment and inspect the peephole to determine for themselves what could be seen through it; and (3) Garnett had failed to effectively cross-examine the government’s three cooperating witnesses at trial. (See Mot. Under 28 U.S.C. § 2255 at 5-6.) Nunez-Polanco subsequently obtained representation and filed an amended petition, which alleged two additional grounds for relief: .(1) Garnett had failed to convey two plea offers to Nunez-Polanco and to counsel him adequately regarding those offers; and (2) Garnett had failed to counsel and represent Nunez-Polanco adequately during the sentencing phase of the representation. (See Am. Pet. 1.)
The Court held a two-day factual hearing on February 14 and 19, 2014, during which both Nunez-Polanco and Garnett testified and each was subject to vigorous cross-examination. At the hearing, again under oath, Nunez-Polanco admitted that he had indeed told Garnett that he had not *477packaged heroin in the apartment and that he had not seen drugs there; that he had testified falsely at his trial; and that he had provided false information to the government at the safety valve proffer. (Hr’g Tr. 5, 7,12-14, 35, 53-55.)
II. Discussion
A. Legal Standard
28 U.S.C. § 2255 directs the Court to vacate, set aside, or correct a sentence if it finds that there has been “such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack.” Pursuant to Strickland v. Washington’s two-prong test for ineffective assistance of counsel, a habeas petitioner must prove that (1) “counsel’s representation fell below an objective standard of reasonableness” and (2) “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “Judicial scrutiny of counsel’s performance must be highly deferential.” Id. at 689, 104 S.Ct. 2052. The Court must indulge a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Cox v. Donnelly, 387 F.3d 193, 198 (2d Cir.2004) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). Based on the evidence adduced at the hearing, the Court concludes that there is no merit to any of the five bases for relief that Nunez-Polan-co has identified.
B. Counsel Did Not Act Unreasonably by Not Filing a Notice of Appeal
Petitioner alleges first that Garnett failed to file a notice of appeal after he instructed him to do so. At the hearing, Nunez-Polanco testified that “I told him I wanted to appeal, and he asked me whether I was sure, and I said that I was.” (Hr’g Tr. 38.) If this were true, the Court would be required to find Garnett’s representation constitutionally ineffective. See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Campusano v. United States, 442 F.3d 770, 771-72 (2d Cir.2006).
The Court, however, credits Garnett’s testimony that Nunez-Polanco told him that “he did not wish to appeal.” (Hr’g Tr. 133.) As corroborated Toy his billing records and handwritten meeting notes, Garnett testified that he visited Nunez-Po-lanco after his sentencing to discuss his appeal rights and possible grounds for appeal, and that his client had decided not to appeal. (Hr’g Tr. 133-34; Gov’t Ex. 20.) He testified that at no time did Nunez-Polanco “communicate to [me] a desire to file a notice of appeal.” (Hr’g Tr. 140.) Garnett also stated that Nunez-Polanco’s family members never informed him that they wanted him to file an appeal. (Id. at 140-41.) The only evidence Nunez-Polan-co can point to is his own testimony. In light of petitioner’s history' of admittedly making false statements in judicial proceedings and his demeanor on the stand, the Court credits Garnett’s testimony, as supported by his notes and billing records, that Nunez-Polanco never directed him to file an appeal.
C.Counsel’s Decision Not to Request a Site Visit Prior to Trial Was Neither Objectively Unreasonable Nor Prejudicial
Second, Nunez-Polanco contends that Garnett’s representation was ineffective because he did not make a pretrial request that the jury visit the Yonkers apartment and inspect the peephole to determine what could be seen of the apartment by looking through it. (Mot. Under 28 U.S.C. § 2255 at 5.) At a side bar conference on the fourth day of the trial, near the conclusion of the presentation of *478the evidence, Garnett inquired into the possibility of a site visit. (Trial Tr. 531.) The Court denied the request, noting that it might have considered it had Garnett presented the issue earlier. (Id.) Garnett later wrote in his sentencing submission that he “failed” his client by not requesting a site visit prior to trial. (Sentencing Mem. 3, Oct. 3, 2012.) Nunez-Polanco argues that had the jury inspected the peephole, they would have discredited the officer’s testimony that he looked through the peephole and saw Nunez-Polanco packaging drugs. (Pet’r’s Pro Se Mem. of Law 2.)
In spite of Garnett’s post-trial regret, Nunez-Polanco has not established that Garnett’s failure to make a pretrial request for a site visit was objectively unreasonable. Site visits are often fraught with risk. Here, for example, the government had introduced into evidence a photograph taken through the peephole; it depicted a person standing inside the Yonkers apartment in the same location that the officer claimed to observe Nunez-Polanco and others packaging heroin. (Trial Tr. 45.) The officer testified that his view through the peephole with his naked eye was actually clearer than the view in the photograph. (Trial Tr. 46.) Although the jury’s visual inspection of the peephole might have led them to discredit the officer’s testimony and the photographic evidence, the opposite result seems equally possible. Indeed, it is not known if the peephole in place at the time of trial had been altered in any way after the officer looked through it on the day of petitioner’s arrest. In light of this risk, Garnett did not act in an objectively unreasonable manner by not initially requesting a site visit. Rather, his decision was a strategic choice well within the ambit of counsel’s discretion. See Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.1994) (noting that a court may not judge an attorney’s choice of strategy with the benefit of hindsight).
Moreover, Nunez-Polanco has not demonstrated that Garnett’s delay in requesting a site visit prejudiced him. Gar-nett cross-examined the officer on his view of the apartment through the peephole and the photographs that were taken (Trial Tr. 151-54), and Nunez-Polanco has not alleged that this cross-examination was less effective than a site visit would have been. More importantly, the testimony of the cooperating witnesses convincingly placed Nunez-Polanco solidly in the narcotics conspiracy. Given the weight of that evidence, petitioner has not shown that the outcome of the trial would have been different had the jury visited the apartment and looked through the peephole.
D. Counsel Adequately Cross-Examined Cooperating Witnesses
Third, Nunez-Polanco argues that Garnett provided ineffective assistance due to his allegedly inadequate cross-examination of the three cooperating witnesses who testified at trial. (Mot. Under 28 U.S.C. § 2255 at 5; Am. Pet. 1.) Petitioner’s claim is without merit. The cross-examinations by both Garnett and the counsel for Nunez-Polanco’s codefendant comprise approximately 170 of the 785 pages of the trial transcript. (Trial Tr. 215-69; 275-77; 282-89; 324-72; 378-386; 430-448; 462-84; 490-94.) The attorneys questioned the witnesses about their cooperation agreements, their incentives to lie, their criminal histories, and their deep involvement in the narcotics trade. Their questions were searching and aggressive. Nunez-Polanco has not proven that the cross-examination was deficient, let alone that he suffered any prejudice as a result.
E. Counsel Adequately Communicated Plea Offers
Fourth, petitioner contends that Garnett did not adequately communicate the two *479plea offers the government extended before trial. The government first offered to accept a plea by Nunez-Polanco to violating 21 U.S.C. § 841(b)(1)(C) (the “first offer” or “(b)(1)(C) offer”) at an offense level of 23, which involved no minimum prison sentence. (Am. Pet. 4.) It subsequently offered a plea to 21 U.S.C. § 841(b)(1)(B) (the “second offer” or “(b)(1)(B) offer”) at a base offense level of 23, but which carried a five-year mandatory minimum. (Id.) Nunez-Polanco testified that Garnett never informed him of the first offer (that is, the (b)(1)(C) offer). (Trial Tr. 22, 41-42.)1 He admitted that Garnett told him about the second offer (the (b)(1)(B) offer), but argues that Garnett did not specify the terms of the offer and failed to effectively counsel him on the benefits of accepting it. (Hr’g Tr. 27-28; Am. Pet. 5-6.) According to Nunez-Polanco, Garnett told him only that the second plea offer involved “a lot of time.” (Hr’g Tr. 27-28, 43.)
1. Legal Standard Governing Ineffective Assistance of Counsel in the Context of Plea Offers
Case law from the United States Supreme Court and the U.S. Court of Appeals for the Second Circuit sheds light on Strickland’s application to plea offers. With respect to objective reasonableness, attorneys must, at the very least, communicate the terms of a plea offer to their clients. United States v. Brown, 623 F.3d 104, 112 (2d Cir.2010) (“[Counsel’s failure to convey a plea offer falls below an objective standard of reasonableness and thus satisfies Strickland’s first prong.”); Cullen v. United States, 194 F.3d 401, 404 (2d Cir.1999). Defendants are also entitled to “effective assistance of counsel in considering whether to accept” plea offers. Lafler v. Cooper, — U.S. -, 132 S.Ct. 1376, 1387, 182 L.Ed.2d 398 (2012). An attorney “should usually inform the defendant of the strengths and weaknesses of the case against him, as well as the alternative sentences to which he will most likely be exposed.” Purdy v. United States, 208 F.3d 41, 45 (2d Cir.2000). However, when a client has made “steadfast protestations of innocence,” an attorney need not give explicit advice on whether to accept a plea offer, as to do so might risk improper coercion. Id. at 46.
In addition, to show prejudice, petitioner must demonstrate that “the outcome of the plea process would have been different with competent advice.” Lafler, 132 S.Ct. at 1384. In other words, petitioner bears the burden of showing that
there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed.
Id. at 1385.
2. Petitioner Has Not Shown that His Attorney Failed to Communicate the Government’s Plea Offers or that He Suffered Prejudice
a. Petitioner Has Not Shown that Counsel Failed to Convey the Plea Offers
The Court first addresses Nunez-Polanco’s argument that Garnett failed to *480convey the terms of the plea offers. Regarding the (b)(1)(C) offer, the Court finds that Nunez-Polanco has failed to prove that Garnett did not inform him that it had been extended. Although Garnett conceded that he no longer had a specific recollection of discussing the offer with Nunez-Polanco, he stressed that his “general practice” was to promptly inform his clients of plea offers and review with them the indictment, discovery, and applicable statutes and sentencing guidelines. (Hr’g Tr. 68,102.) Indeed, Garnett testified “my practice is to inform my client of any offer that is made and every offer that is ever made. I don’t know of any occasion where I have not told my elie'nt the offer that was made.” (Hr’g Tr. 147.) Moreover, Gar-nett’s records contain sufficient circumstantial evidence that he did in fact present the plea offer to Nunez-Polanco. In his note reflecting a conversation with AUSA Tim Howard on December 80, 2011, Garnett referenced a “Govt Offer” and that he “will tell client of this discussion.” (Gov’t Ex. 1.) Three weeks later, on January 20, 2012, Garnett memorialized a telephone conversation with Howard and AUSA Tim Sini involving a “B-l-C offer— until 1/30”; he also noted that there were “add’l witnesses vs Nunez.” (Gov’t Ex. 2.) Finally, an email Garnett sent on February 1, 2012 to Howard relates that Garnett spoke with Nunez-Polanco about the offer three days prior, but that his client “continues to assert his innocence.” (Gov’t Ex. 4.)
In an effort to counteract the evidence that Garnett had discussed the government’s (b)(1)(C) offer with him, Nunez-Polanco’s counsel at the hearing on this petition pointed to the lack of any calendar entry, billing entry, or handwritten note memorializing any conversation that Gar-nett initiated with Nunez-Polanco about the (b)(1)(C) offer prior to its expiration on January 30. (Hr’g Tr. 149-51, 156.) Indeed, Garnett had difficulty explaining this absence of documentary evidence at the hearing, stating that he “presum[ed]” he must have seen Nunez-Polanco at the Metropolitan Detention Center on January 30 and discussed the plea offer with him at that time. (Hr’g Tr. 156-57.) However, as his counsel at the hearing pointed odt, Nunez-Polanco was on bail at that time. (Hr’g Tr. 158.) Although the Court finds that Garnett was mistaken in his presumption as to where and when' he spoke to his client, it finds that Nunez-Polanco has not proven that Garnett never informed him of the (b)(1)(C) offer. In light of Nunez-Polanco’s pattern of changing his story, his testimony simply cannot overcome the contrary evidence — the December 30 conversation, the January 20 phone call, and the February 1 email — that exists in the record.
Regarding the sécond offer — the (b)(1)(B) offer — Nunez-Polanco alleges that Garnett told him of its existence but did not apprise him of its terms. (Hr’g Tr. 27-28; see also Am. Pet. 6.) According to Nunez-Polanco, Garnett told- him only that the plea offer involved “a lot of time.” (Hr’g Tr. 27-28, 43.) Although Garnett did not have a specific recollection of his conversation with Nunez-Polanco regarding the (b)(1)(B) offer at the time of the hearing (see Trial Tr. 148-49), the Court finds that Garnett’s notes sufficiently reflect that he conveyed the offer’s terms to Nunez-Polanco. Garnett’s February 16, 2012 note of a telephone call with Tim Howard recites that he had “conveyed offer to client” and “client could not plead guilty.” (Gov’t Ex. 6; see also Gov’t Ex. 20 (billing record)). In light of- this evidence, the Court finds Nunez-Polanco’s testimony to the contrary not credible.
b. Counsel’s Counseling of Petitioner Regarding the Plea Offers Was Not Objectively Unreasonable
Nunez-Polanco also alleges that Garnett provided inadequate counseling on *481whether he should accept the plea offers. (Am. Pet. 9-11.) Specifically, he co'ntends that Garnett did not explain the weight of the government’s evidence against him and the advantages of accepting the plea offers. (Id. 5-6.) The Court finds that Nunez-Polanco has failed to show that Gar-nett’s conduct fell below an objectively reasonable standard. Garnett testified that he provides all of his clients “with all of the information I get from the government concerning my client’s involvement in the case.” (Hr’g Tr. 184.) Garnett had also made a note, prior to the expiration of the (b)(1)(C) plea offer, that the government had “add’l witnesses vs Nunez”. (Gov’t Ex. 2.) On Wednesday, February 1, 2012, Garnett emailed AUSA Howard:
I did talk to Mr. Nunez Sunday and discussed your last call to me concerning a possible disposition. Most clients want the lawyer to tell them what to do. I do not do that, but discuss options. He continues to assert his innocence, giving credence to being innocently in the wrong place at the wrong time.
(Gov’t Ex. 4.) This documentary evidence supports a conclusion that Garnett satisfied his duty to inform his client of the evidence against him and the benefits and drawbacks of accepting the plea offers.
c. Petitioner Has Not Demonstrated Prejudice
Finally, Nunez-Polanco has not demonstrated that he suffered prejudice as a result of Garnett’s allegedly deficient communication regarding the two plea offers. As to the (b)(1)(C) offer, the Court declines to credit petitioner’s assertion that he would have accepted a plea offer that did not involve a mandatory minimum sentence. (Hr’g Tr. 25-26; Am. Pet. 5.) Garnett testified that Nunez-Polanco steadfastly insisted on his innocence throughout the course of their relationship (see Hr’g Tr. 127), and Nunez-Polanco testified — falsely—at trial as to his innocence. Even assuming the offer was not transmitted to Nunez-Polanco, the Court finds it unlikely that he would have accepted the plea offer without the benefit of the pellucid hindsight that he enjoys now.
Regarding the (b)(1)(B) offer, petitioner has failed to demonstrate prejudice for two reasons. First, even if Nunez-Polanco could show that Garnett’s counseling was inadequate, the Court finds that petitioner was nonetheless aware of the evidence against him and the consequences of a guilty verdict at trial. Petitioner attended a reverse proffer session with the government before it extended the (b)(1)(B) offer, during which it detailed the evidence it would present against Nunez-Polanco at trial. (Am. Pet. 5; see also Hr’g Tr. 90; Gov’t Ex. 5a; Gov’t Ex. 5b.) Petitioner admits that the government told him at that session that he was facing “more than 13 years” if he lost at trial. (Hr’g Tr. 43.) Petitioner’s independent knowledge of the risks of trial therefore cuts against a finding of prejudice.
Second, Nunez-Polanco would not be in a better position even if he had accepted' the (b)(1)(B) offer. 21 U.S.C. § 841(b)(1)(B) carries a mandatory minimum sentence of 60 months (absent safety valve relief), the same sentence that Nunez-Polanco ultimately received. The Court therefore finds that even if Nunez-Polanco’s allegations that Garnett did not adequately counsel him regarding the (b)(1)(B) offer are true, he has not demonstrated that he suffered prejudice as a result.
F. Counsel’s Representation During the Sentencing Phase Was Neither Unreasonable Nor Prejudicial
Fifth, and finally, Nunez-Polanco argues that Garnett did not adequately counsel *482him on how to qualify for the “safety valve” set out in 18 U.S.C. § 3553(f), which would have freed him from a mandatory minimum sentence of five years. (Am. Pet. 11-13.) To receive safety valve relief, a defendant must “truthfully provide[ ] to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan.... ” 18 U.S.C. § 3553(f)(5).
Nunez-Polanco alleges that Gar-nett never told him about the safety valve prior to the October 12, 2012 court conference prior to sentencing, and that he then failed to advise him on how to qualify for relief under the safety valve. (Hr’g Tr. 34, 49.) The Court declines to credit the first assertion. On October 3, 2012, Garnett submitted a letter to the Court stating that the government had offered, “through counsel,” the safety valve opportunity, but that Nunez-Polanco had rejected it because he “would have to ... implicate himself in the drug conspiracy in this case which he denied joining.” (Gov’t Ex. 10.) In addition, at the October 12 conference, Garnett informed the Court — in the presence of his client — that he had discussed the safety valve with Nunez-Polanco “several months ago.” (Oct. 12, 2012 Conf. Tr. 4; Hr’g Tr. 49-50.) Nunez-Polanco’s only evidence that Garnett did not inform him of the government’s safety valve offer pri- or to October 12, 2012 is his hearing testimony, which the Court declines to credit.
The Court also finds no merit in Nunez-Polaneo’s claim that Garnett failed to advise him adequately on qualifying for safety valve relief. At the close of the October 12 conference, Garnett stated that he needed to “discuss with [Nunez-Polanco] more fully what happened today ... [H]e’s my client and I should give him every opportunity to make his own decision about what to do.” (Oct. 12, 2012 Conf. Tr. 9.) Garnett testified that this was the first time petitioner had expressed his desire to participate in the safety valve. (Hr’g Tr. 136.) Garnett’s calendar reflects that he visited Nunez-Polanco four days later. (Gov’t Ex. 11.) He testified that at this meeting, Nunez-Polanco told him that he wanted to attempt to qualify for the safety valve. (Hr’g Tr. 136-37.) Garnett counseled Nunez-Polanco not to lie at the proffer. (Hr’g Tr. 124-25.) Nonetheless, Nunez-Polanco did not at that time inform Garnett of the true extent of his participation in the narcotics conspiracy. (Hr’g Tr. 126-28.) In light of this evidence, the Court finds that Garnett’s counseling of petitioner regarding safety valve relief fell well within the bounds of objective reasonableness.
Moreover, although Nunez-Polanco argues that Garnett should have requested an opportunity for him to correct the false statements he made at the safety valve proffer and attempt to re-qualify (Am. Pet. 13), the Court finds that Garnett did not act unreasonably by not doing so. It is unclear to the Court whether Garnett was aware that Nunez-Polanco could have attempted safety valve relief a second time (see Hr’g Tr. 197), but the testimony is clear that the government expressed no interest in holding another proffer session (Hr’g Tr. 129). Further, Garnett likely had no reason to believe that Nunez-Po-lanco could provide any more information than he had already given at the first proffer, as his client still had not informed him that he had actually packaged drugs inside the apartment. (Hr’g Tr. 129.) In effect, Nunez-Polanco’s lack of honesty with his own attorney prevented Garnett from counseling him to disclose information that Garnett was totally unaware of at the time; consequently, Garnett did not *483act unreasonably by not requesting another proffer session.
Finally, Nunez-Polanco has not demonstrated that he suffered prejudice as a result of Garnett’s allegedly deficient counseling regarding the safety valve. At a minimum, the Court explained the safety valve process at the October 12 conference that Nunez-Polanco attended. (Oct. 12, 2012 Conf. Tr. 6-7.) Indeed, Nunez-Po-lanco admitted that he heard the Court state that in order .to qualify for safety valve relief, the defendant must “truthfully provided all information he has concerning the offenses that were part of the same course of conduct or common scheme or plan.... ” (Hr’g Tr. 51.) Petitioner also conceded that, after attending the October 12 conference, he understood that if he maintained his innocence of the charges during the. safety valve proffer, the government would not find him truthful. (Hr’g Tr. 52.) Moreover, the AUSAs warned Nunez-Polanco to tell the truth at the safety valve proffer session. (Hr’g Tr. 127; Gov’t Ex. 14.) Yet despite the fact that he understood the consequences of lying, Nunez-Polanco chose at best to provide half-truths to the government at the proffer session. Because petitioner was likely aware of the truthfulness prerequisite to safety valve relief even absent counseling by his attorney, he cannot show that he suffered prejudice.
III. Conclusion
Nunez-Polanco has not shown that Gar-nett’s representation was objectively unreasonable with respect to any of the five bases for relief that he has alleged. Moreover, even if he could show that Garnett’s performance met Strickland’s objective unreasonableness requirement, petitioner has not demonstrated that he suffered prejudice as a result. Consequently, Nunez-Polanco’s motion is denied. Because he has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253(c)(2); Lucidore v. N.Y. State Div. of Parole, 209 F.3d 107, 111-13 (2d Cir.2000). Pursuant to 28 U.S.C. § 1915(a)(3), the Court certifies that any appeal from this Order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 445-46, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).
SO ORDERED.
. In his amended petition, Nunez-Polanco appears to concede that Garnett told him the government had made the (b)(1)(C) offer, but argues that Garnett did not adequately counsel him regarding the benefits of accepting it. (Am. Pet. 4-5, 9-10.) Because Nunez-Polan-co testified under oath at the hearing that Garnett never told him about the (b)(1)(C) offer, the Court will analyze that argument for purposes of this opinion. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217694/ | ORDER
This disposition is not appropriate for publication and may not be cited to or by courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
The Oregon Supreme Court on May 1, 2003, answered the question we certified to it. Abrams v. Gen. Star Indem. Co., 335 Or. 392, 67 P.3d 931, 2003 WL 1995723 (2003). For the reasons given by the Oregon Supreme Court, the judgment of the district court is REVERSED, and the case REMANDED for further proceedings.
The Petition for Rehearing, filed on June 13, 2002, is DENIED as moot. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224395/ | OPINION
SIMANDLE, Chief Judge:
I. INTRODUCTION.489
II.BACKGROUND.490
A. Factual Background.490
1. Plaintiff Buzz Bee .490
2. Plaintiffs WATER WARRIORS Product Line.490
3. Swimways’ FLOOD FORCE Product Line.493
4. Defendants’ Alleged Infringement.493
5. Third Parties’ Water Shooter Toys.494
6. Impact of the Alleged Infringement on Plaintiff.494
B. Parties’ Arguments.494
III.STANDARD OF REVIEW .496
IV. DISCUSSION. 05
A. Likelihood of Success on the Merits.
1. Functionality of the Trade Dress .
2. Secondary Meaning.
3. Likelihood of Confusion .
B. Irreparable Harm.
1. Irreparable Harm Must Be Independently Established
2. Likelihood of Irreparable Harm.
C. Public Interest.
Y. CONCLUSION. .514
I. INTRODUCTION
This matter comes before the Court on the motion [Docket Item 12] of Plaintiff Buzz Bee Toys, Inc., (“Buzz Bee”) for a preliminary injunction against Defendants Swimways Corporation (“Swimways”) and Target Corporation (“Target”). Buzz Bee claims that Defendant Swimways copied four models of Plaintiffs WATER WARRIORS waterguns by using confusingly similar and infringing trade dresses and that Defendant Target now offers Swim-ways’ infringing products instead of Plaintiffs products, which Target used to offer. (Am. Compl. ¶ 99.) Plaintiffs principal claim for purposes of this preliminary injunction motion is that the Defendants have infringed Plaintiffs unregistered trade dress in violation of § 43(a) of the Lanham act, 15 U.S.C. § 1125(a).1 The Court held a preliminary injunction hearing on May 14, 2014.
*490Plaintiff seeks a preliminary injunction precluding Defendants from selling Swim-ways’ allegedly infringing products and ordering them to recall the infringing products. Defendants’ products are remarkably similar to Plaintiffs products, but Plaintiffs motion will be denied. A preliminary injunction is an extraordinary remedy that should only be used in limited circumstances. Plaintiff has not shown that these circumstances warrant injunc-tive relief: Plaintiff has not shown a likelihood of success on the merits because it has not shown that its trade dresses have acquired secondary meaning. In addition, Plaintiff has not shown that irreparable harm is likely, if the injunction does not issue.
The following constitute the Court’s findings of fact and conclusions of law in this preliminary injunction motion pursuant to Rule 65(a), Fed.R.Civ.P.
II. BACKGROUND
A. Factual Background
1. Plaintiff Buzz Bee
Buzz Bee designs, markets, and distributes various toys, including water squirting toys. Buzz Bee was formed in 2002 and has less than 50 employees. (Zimmerman 2nd Decl. [Docket Item 37J ¶ 47.) Jeffrey C. Zimmerman has been Buzz Bee’s president since 2002. (Zimmerman 1st Decl. [Docket Item 13] ¶ 1.) Since Zimmerman has worked for Buzz Bee, he has launched over 100 waterguns. (Zimmerman 2nd Decl. ¶ 40.) Only 10-15% of those toys have been successful enough to last more than one or two seasons. (Id.)
Buzz Bee’s design process begins with meetings to decide what product is needed, and then the company designs, prepares drawings, determines a target price, engineers, and manufactures a hand sample. (Id. ¶ 19.) This initial process lasts five to six months. (Id.) The manufacturer then requires three to four months to produce commercial products. (Id.)
Buzz Bee packages its toy water shooters in open front packaging because customers wish to see the actual product before purchasing, because open packaging spotlights the product design, and because water shooters with open packaging sell better than those with closed packaging. (Id. ¶ 60.)
Buzz Bee sells primarily through retail stores and does not advertise its toys; however, at least ten times per year, its water shooters are advertised in retailers’ print advertising inserts. (Id. ¶ 62.) No such advertising, however, is in evidence. The annual value of the retailers’ advertisements of Buzz Bee’s products is estimated by Plaintiff as approximately $500,000.00. (Id.) Retailer customers, such as Target and Wal-Mart, have also advertised Buzz Bee’s toys on their websites. (Id. ¶ 64.)
2. Plaintiffs WATER WARRIORS Product Line
Buzz Bee has a product line entitled WATER WARRIORS, which includes the AVENGER, KWIK GRIP XL, ARGON, and XENON water squirting toys, which are the four models whose trade dress Buzz Bee seeks to protect. WATER WARRIORS products are some of Buzz Bee’s most popular models, and they rep*491resent approximately 25% of Buzz Bee’s annual revenue. (Id. ¶¶ 50-51.) The target customers for these toys are children aged 4-12. (Zimmerman 1st Decl. ¶ 75.) Buzz Bee’s president Zimmerman estimates that, until the current infringement, Buzz Bee’s WATER WARRIORS had 35% of the relevant market share. (Zimmerman 2nd Decl. ¶ 49.) The WATER WARRIOR toys appear regularly on independent fan and industry news sites like buffdaddynerf.com, isoaker.com, sscen-tral.org, and waterwar.net. (Id. ¶ 64.)
Zimmerman asserts that the WATER WARRIORS trade dresses are non-functional because the water, squirting elements are internal mechanisms.
Plaintiff articulates the AVENGER’S trade dress as:
(i) a raised portion along the top of the rear body portion, having a downwardly sloping body element crossing forwardly along the rear body portion, a forward wavy top projection and a forward wavy lower projection with a wave-like arcuate design pointing rearward formed between the top projection and the lower projection; (ii) an irregularly shaped inlay having a forward point located in the rear body portion; (iii) a front and bottom body portion having a complementary wave-like shape to meet the rear body portion, a grip portion having a raised back, a downwardly extending trigger guard portion having an arcuate design inlay pointing forward, a forward raised conical portion; " (iv) a forward stock portion having three sloped ridges; and (v) a cylindrical orange muzzle portion.
(Am. Compl. ¶ 17 (letters referencing arrows on diagram omitted).) The AVENGER trade dress has been used since 2007. (Zimmerman 1st Decl. ¶ 11.)
AVENGER toys are sold through the internet, catalogs, and retail chains, such as Target and K-mart. (Id. ¶ 14.) Buzz Bee has not sold the AVENGER at Target for the last few years, but the product has been available at other retailers, including Kmart and Variety Distributors, continuously since its launch. (Zimmerman 2nd Decl. ¶ 35.) Since 2007, 102,684 AVENGER units have been sold and sales totaled $206,352.00. (Zimmerman 1st Decl. ¶¶ 12-13.) The AVENGER sells for between $4.99 and $5.99. (Id. ¶ 17.) Zimmerman claims that both consumers and the trade associate the AVENGER trade dress with Buzz Bee as the source. (Id. ¶ 18.)
Plaintiff articulates the KWIK GRIP XL2 trade dress as:
(i) a semi-transparent dome fill tank; (ii) an oval body element overlaying the tank; (iii) a grip having two rear ridges; (iv) a trigger guard having a ridged inset at the front end of the trigger guard; (v) side and top arcuate body pieces; (vi) futuristic coil design element having three forwardly-slanted “bubble” protrusions and a forwardly pointing “bubble” arrow portion with a larger dot and a smaller dot; and (vii) a muzzle portion having horizontal ridges.
(Am. Compl. ¶ 36 (letters referencing arrows on diagram omitted).) The KWIK GRIP XL trade dress has been in use since 2003. (Zimmerman 1st Decl. ¶24.)
KWIK GRIP XL toys are sold through the internet, catalogs, and retail chains such as Target and Walgreens. (Id. ¶ 27.) KWIK GRIP XL toys are usually sold in three- or four-packs, and 2,033,223 KWIK GRIP XL units have been sold with total *492sales of $4,197,858.00. (Id. ¶¶ 25-26.) The suggested retail prices are $2.49 for one, $4.99 for the two-pack, $5.99 for the three-pack, and $9.99 for the four-pack. (Id. ¶ 30.)
Plaintiff articulates the ARGON trade dress as:
(i) an upper tank portion defining the upper rear body; (ii) an overlaying side portion including an oval body element overlaying the tank, four futuristic bubble portions extending downward adjacent the oval body element, and two forwardly extending sweeping projections; (iii) a grip having a ridged handle portion; (iv) a lower central circular element in front of the trigger guard, having radial projections and ridges for a “sun-like” appearance; (v) a forward side element including two bubble-like forwardly sloping upward projections and a forward oval element; (vi) a forwardly pointing L-shaped projection along the upper front spine of the body, defining a triangular opening; (vii) a conical muzzle portion having raised trapezoidal ridges; and (viii) a ridged fores-tock grip.
(Am. Compl. ¶ 58 (letters referencing arrows on diagram omitted).) Over 368,000 ARGON units have been sold, and sales total $1,584,000.00. (Zimmerman 1st Decl. ¶¶ 88-39.) The ARGON is sold through the internet, catalogs, and retail chains such as Target and K-Mart. (Id. ¶ 40.) Its suggested retail price is $9.99. (Id. ¶ 43.)
Plaintiff articulates the XENON trade dress as:
(i) an upper tank portion defining the upper rear body; (ii) a rearwardly pointing fang-shaped portion defining a sticker-receiving area; (iii) a grip having a ridged handle portion; (iv) a lower central circular element in front of the trigger guard, having radial projections and ridges for a “sun-like” appearance; (v) futuristic bubble projections on the sides of the body between elements (ii) and (iv); (vi) a forward side arrow-head shaped element having a notch in the rear portion; (vii) a forwardly pointing L-shaped projection along the upper front spine of the body, defining a triangular inset portion; (vii) a conical muzzle portion having raised fins; (viii) a ridges forestock grip; and (ix) an oval rear side element.
(Am. Compl. ¶ 80 (letters referencing arrows on diagram omitted).) At least 238,-000 XENON units have been sold, and sales total $1,561,000.00. (Zimmerman 1st Decl. ¶ 52.) The XENON is sold through the internet, catalogs, and retail chains such as Target and Walgreens. (Id. ¶ 53.) Its suggested retail price is $14.99. (Id. ¶ 56.)
The XENON and ARGON trade dresses were used from 2004 to 2009, when Buzz Bee ceased selling the XENON and ARGON products due to a consent judgment with Hasbro Inc. resolving patent litigation relating to the internal mechanisms. (Id. ¶ 50; Zimmerman 2nd Decl. ¶ 36.) Buzz Bee plans to re-launch both products in 2015. (Zimmerman 2nd Decl. ¶ 36.) Since XENON and ARGON products are not on the market, and have not been sold for five years, there is no prospect that Defendants are causing harm at this time through sale of similar products, namely, the AVALANCHE and TSUNAMI, respectively.
Zimmerman asserts that “[t]he fact that Buzz Bee’s AVENGER, KWIK GRIP XL, XENON, and ARGON water shooting toys have remained popular for so long is a testament to the value of those products’ designs and their popularity with consumers.” (Id. ¶ 40.) Again, this contention is unlikely to be proved with regard to the *493XENON and ARGON models that have not been sold for five years.
In August 2013, one of Target’s buying agents informed Buzz Bee that Target would not stock the WATER WARRIORS line in 2014. (Zimmerman 1st Decl. ¶ 62.)
Buzz Bee has not obtained design patents for any of these models, nor does Buzz Bee allege trademark infringement.
3. Swimways’ FLOOD FORCE Product Line
Swimways manufactures leisure and recreational water products. (Balam Decl. ¶ 3.)3 In March 2013, Swimways met with Target to discuss expanding its offerings in Target stores. (Id. ¶ 5.) Swimways suggested a watergun product line. {Id. ¶ 7.) Swimways approached manufacturers and reviewed catalogs to determine which toys would sell at appropriate price points to fulfill Target’s needs. {Id. ¶ 8.) Swimways picked ten models from a manufacturer’s catalog and requested prototypes. {Id. ¶ 9.) Swimways allegedly believed that each design was a generic water squirting toy design. {Id. ¶ 9.) Swimways presented its prototypes to Target in May 2013 and, after discussions with the Target buyer, modified the toys. {Id. ¶ 10.)
Swimways presented the modified toys to Target at a line review in July 2013. {Id. ¶ 11.) Swimways agreed to offer its FLOOD FORCE line exclusively through Target. {Id. ¶ 12.) Shortly after the review, Target informed Swimways that it would sell Swimways’ toys for the upcoming season. {Id. ¶ 13.)
No evidence, at present, contradicts Swimways’ assertions that its choice of these designs was based on a generic catalog rather than on its intentional copying of the Plaintiffs WATER WARRIORS designs.
Swimways’ FLOOD FORCE line includes the AVALANCE, TSUNAMI, STORM, and STRYKER. (Id. ¶ 14.) Its target consumers are children aged 4-12. {Id. ¶ 29.)
4. Defendants’ Alleged Infringement
Plaintiff purchased Swimways’ STORM, STRYKER, TSUNAMI, and AVALANCHE toys from the Exton, PA Target store on February 7, 2014. (Zimmerman 1st Decl. ¶¶ 64, 66, 68, & 117.) Swimways’ STORM cost $7.99.- {Id. ¶ 64.) Plaintiff claims that Swimways’ STORM exactly copies Buzz Bee’s AVENGER. (Id. ¶ 65.) A three-pack of Swimways’ STRYKER cost $5.99. (Id. ¶ 66.) Plaintiff claims that Swimways STRYKER exactly copies Buzz Bee’s KWIK GRIP XL. (Id. ¶ 67.) Swim-ways’ TSUNAMI cost $9.99. (Id. ¶68.) Plaintiff claims that Swimways’ TSUNAMI exactly copies Buzz Bee’s ARGON. (Id. ¶ 69.) Swimways’ AVALANCHE cost $14. 99. (Id. ¶ 70.) Plaintiff claims that Swim-ways’ AVALANCHE exactly copies Buzz Bee’s XENON. (Id. ¶ 71.) As noted above, however, Plaintiffs ARGON and XENON models have not been sold since 2009.
As evidence of the similarity between Buzz Bee’s and Swimways’ products, Plaintiff provided a February 12, 2014 post from the “BUFFDADDY NERF” blog, in which the blogger “ma[de] a large post covering air and water blasters.... ” (Id. Ex. Z at 1.) The blogger provided pictures of Swimways products he had recently seen at Target and said that Swimways’ AVALANCE was “[a] close copy of the Water Warriors Xenon,” Swimways’ TSUNAMI was “[a] copy of the Water Warri*494ors Argon,” Swimways’ STRYKER units were “[r]eshells of one of the original Water Warriors Kwik Grips XL,” and “there was also a piston blaster virtually identical to the Water Warriors Avenger.” (Id. at 3-4.) The blogger noted that Swimways’ toys “appear to use old blaster molds. However, they appear to have either pinch triggers, or some sort of alternative valve mechanism.... ” (Id. at 8.)
Defendants note that various manufacturers, including Buzz Bee, were present at Target’s July 2013 line review. (Balam Decl. ¶ 11.) Buzz Bee’s president Zimmerman stated that participants in Target’s July 2013 line review process were unaware which other entities were participating because each manufacturer was in a separate room displaying its products. (Zimmerman 2nd Decl. ¶ 22.) The Target buyer went into each room to view the displays and negotiate with the manufacturer. (Id.) Zimmerman emphasized that “[a]t no time do any of the manufacturers see their competitors’ product line. However, ... it should have been readily apparent to the Target buyer, if they didn’t already know, that the Swimways’ product line was a copy of Buzz Bee’s product line.” (Id.)
Swimways claims that many of its products’ features are functional. For- example, transparent or semi-transparent reservoirs allows users to determine the water level and ridged handles and pumps improve grip. (Balam Decl. ¶¶ 24-26.) Swimways also asserts that various other design features, such as orange muzzles, are mandated by federal law.
Plaintiff attached to its reply brief pictures taken on April 26, 2014 in the Voo-rhees, NJ Target store. (PI. reply Snyder Decl. Ex. 5 [Docket Item 38-5].) The pictures show, inter alia, SUPER SOAK-ER waterguns that are available for sale next to Swimways’ products and that look nothing like Swimways’ or Buzz Bee’s products, despite having orange muzzles and ridges.
5. Third Parties’ Water Shooter Toys
Swimways’ vice president of sales, Ba-lam, identified third parties selling water squirting toys similar to the WATER WARRIORS products. (Balam Decl. ¶ 20.) For example, Swimways alleges that FunX Toys sells the Stealth Drencher F4, which “make[s] use of nearly every aspect of Buzz Bee’s alleged KWIK GRIP XL Trade Dress.” (Id. ¶ 21.) Balam identified other products that are also similar to the WATER WARRIORS products, including the “Poolmaster Action Water Pumper,” “Space Squirt Guns,” “Vintage Space Squirt Gun,” “Xtreme Water Blaster 2 pack,” and “Water Sports CSG X5 Water Gun.” (Id. ¶ 23.)
In his second declaration, Buzz Bee’s president, Zimmerman, stated that he was unaware of these infringing products and that he would investigate them and, in the case of FunX toys, instruct his attorneys to file a lawsuit on May 12, 2014, after they finished their reply brief for the present motion. (Zimmerman 2nd Decl. ¶¶ 24-29.)4 Zimmerman noted that one of the products Balam referenced was being sold by a private buyer on eBay and other products that Balam referenced were available on Chinese websites that are notorious for selling counterfeit goods. (Id. ¶¶ 25-28.)
6. Impact of the Alleged Infringement on Plaintiff
Defendant Target represented 15-20% of Buzz Bee’s market for the WATER *495WARRIORS line and Zimmerman speculates that “[i]t is unlikely that Buzz Bee’s relationship with Target will ever recover....” (id ¶ 53.)
Buzz Bee president Zimmerman asserts that now is the prime season for consumer purchases of waterguns. (Id. ¶ 57.) After July 4th, the majority of water shooting toys will have been sold and by mid-July, retailers will sell water shooters at a discount to clear out inventory. (Id. ¶ 57.) Zimmerman also states that retail buyers will select water shooting toys for the 2015 season between now and July. (Id.) For example, Wal-Mart will choose its water-guns by May 16th. (Id.)
Zimmerman also asserts that, if Swim-ways continues to sell infringing products, competitors, Chinese manufacturers, and U.S. retail buyers will consider Buzz Bee’s trade dress to be “open market,” meaning that Buzz Bee’s products . will be copied with impunity, Buzz Bee will be unable to prevent future and ongoing -infringement, Buzz Bee will be unable to regain the goodwill in its products’ appearance, and all of Buzz Bee’s work will be lost. (Id. ¶ 58.) Zimmerman claims that open copying will diminish Buzz Bee’s reputation and goodwill for producing unique, high-quality toys and will cause retailers to choose cheaper knock-offs or products from more established competitors. (Id. ¶ 59.)
B. Parties’ Arguments
Plaintiff argues that it is likely to succeed on the merits because the packaging, display, and design of its WATER WARRIORS products are unique, distinctive, and have acquired secondary meaning; the precision with which Swimways’ products mimic Buzz Bee’s products shows that Swimways intentionally copying; the WATER WARRIORS trade dresses are nonfunctional because the water squirting mechanisms are internal; there is a likelihood of confusion between Buzz Bee’s products and Swimways’ products because the products’ appearances are so similar; the “BUFFDADDY NERF” blog posting evidenced actual confusion between the two product lines; and the products at issue are inexpensive and targeted at children, thus indicating that consumers will not take care to differentiate between the products. Plaintiff also asserts that it will suffer irreparable injury due to losses in trade, reputation, and goodwill and that any injury to Defendants from issuance of the injunction will be inexpensive and the result of forcing Defendants to conduct their business within the law.
In opposition [Docket Item 29], Defendants argue that it did not copy Buzz Bee’s WATER WARRIORS products and, instead, picked generic designs from a manufacturer’s catalog; many aspects of Buzz Bee’s alleged trade dress are functional; confusion is unlikely because the WATER WARRIORS and FLOOD FORCE product lines have different labeling, packaging, marketing materials, and brand names; Buzz Bee has not provided any evidence that its product designs acquired secondary meaning among consumers; other products manufactured by entities that are not parties to this case share many of the WATER WARRIORS products’ features; the “BUFFDADDY NERF” blogger was not confused about the two product- lines and noted unique features of the Swimways products; Plaintiff has not shown irreparable harm because it did not provide evidence about lost sales, lost market share, or reputational consequences and has not taken action to enforce its trade dress rights against other designers of similar products; and Defendants will suffer irreparable harm because they will struggle to sell their toys later due to yearly variations in trends.
*496In reply [Docket Item 36], Plaintiffs argue that the overall appearance of the WATER WARRIORS products is not functional; there is a strong likelihood of post-sale confusion, particularly when children remove Swimways’ products from the packaging; the presence of Swimways’ name on the FLOOD FORCE products does not obviate the risk of confusion; the speed with which Swimways produced the FLOOD FORCE line, according to the Balam declaration, shows that intentional copying occurred; Plaintiff never abandoned the ARGON and XENON trade dresses and only stopped using them pursuant to a consent judgment; and Plaintiff will suffer irreparable harm due to the poor quality of Swimways’ products and the timing of the buying season.
III. STANDARD OF REVIEW
To prevail on a motion for preliminary injunctive relief, the moving party must demonstrate that each of the following factors favors the requested relief: “(1) the likelihood that the moving party will succeed on the merits; (2) the extent to which the moving party will suffer irreparable harm without injunctive relief; (3) the extent to which the nonmoving party will suffer irreparable harm if the injunction is issued; and (4) the public interest.” McNeil Nutritionals, LLC v. Heartland Sweeteners, LLC, 511 F.3d 350, 356-57 (3d Cir.2007) (citation omitted). A preliminary injunction “is an extraordinary remedy ... which should be granted only in limited circumstances.” Am. Tel. & Tel. Co. v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1427 (3d Cir.1994) (citation omitted).
IV. DISCUSSION
For the following reasons, although the issues are indeed close, Plaintiff has not shown that it is likely to succeed on the merits and has not shown that it is likely to suffer irreparable harm. Its motion will be denied without prejudice.
A. Likelihood of Success on the Merits
The Lanham Act, 15 U.S.C. § 1125(a), establishes a cause of action for trade dress infringement. TrafFix Devices, Inc. v. Mktg. Displays, Inc., 532 U.S. 23, 28-29, 121 S.Ct. 1255, 149 L.Ed.2d 164 (2001). “ ‘Trade dress’ refers to the design or packaging of a product which serves to identify the product’s source.” Shire U.S. Inc. v. Barr Labs., Inc., 329 F.3d 348, 353 (3d Cir.2003). It is “the total image or overall appearance of a product, and includes, but is not limited to, such features as size, shape, color or color combinations, texture, graphics....” Rose Art Indus., Inc. v. Swanson, 235 F.3d 165, 171 (3d Cir.2000). The purpose of trade dress protection is to “secure the owner of the trade dress the goodwill of his business and to protect the ability of consumers to distinguish among competing producers.” Shire, 329 F.3d at 353 (internal brackets and citation omitted).
To establish trade dress infringement under the Lanham Act, a plaintiff must prove that “(1) the allegedly infringing design is non-functiónal; (2) the design is inherently distinctive or has acquired secondary meaning; and (3) consumers are likely to confuse the source of the plaintiff’s product with that of the defendant’s product.” McNeil, 511 F.3d at 357.5
*497As now discussed, upon the present limited record, Plaintiff has shown non-functionality and likelihood of confusion, but has not shown secondary meaning and, thus, has not established that it is likely to succeed on the merits of this trade dress infringement case.
1. Functionality of the Trade Dress
The-WATER WARRIORS trade dresses are not functional; Plaintiff has shown a likelihood of success with this element.
The Lanham Act mandates that “[i]n a civil action for trade dress infringement ... for trade dress not registered ..., the person who asserts trade dress protection has the burden of proving that the matter sought to be protected is not functional.” 15 U.S.C. § 1125(a)(3). “[A] product feature is functional ... if it is essential to the use or purpose of the article or if it affects the cost or quality of the article, that is, if exclusive use of the feature would put competitors at a significant non-reputation-related disadvantage.” Qualitex Co. v. Jacobson Products Co., Inc., 514 U.S. 159, 165, 115 S.Ct. 1300, 131 L.Ed.2d 248 (1995) (citation omitted).
Defendants argue that the orange muzzle, transparent reservoir design, and bright external coloration are functional as a matter of law because they are mandated by federal law. Federal Regulations mandate that “[n]o person shall manufacture ... any toy, look-alike, or imitation firearm ... unless such device contains ... one of the markings set forth in § 272.3....” 15 C.F.R. § 272.2. The approved markings are:
(a) A blaze orange ... solid plug permanently affixed to the muzzle end of the barrel....
(b) A blaze orange .... marking permanently affixed to the exterior surface of the barrel....
(c) Construction ... entirely of transparent or translucent materials....
(d) Coloration of the entire exterior surface ... in white, bright red, bright orange, bright yellow, bright green, bright blue, bright pink, or bright purple, either singly or as the predominant color in combination with other colors in any pattern.
15 C.F.R. § 272.3. These regulations primarily address the coloration or transparency of toy guns; they do not address shape or design.
Defendants also assert that the round nozzle head shape enables the user to rotate between spray settings; the semitransparent cover of the KWIK GRIP XL reservoir allows the user to see the water level; the ridged pumps and handles improve grip; and the trigger guards prevent accidental firing.
Buzz Bee’s president, Zimmerman, asserts that the AVENGER trade dress is non-functional because the water squirting elements are internal mechanisms. He stated that “there is no design or functional need for the nozzle, water reservoir, grips and trigger guards to look like Buzz Bee’s WATER WARRIORS Trade Dress in order to function as a water shooter.” (Zimmerman 2nd Decl. ¶32.) Plaintiff provided pictures showing, inter alia, wat-erguns that are available for sale next to Swimways’ products and that look nothing like Swimways’ or Buzz Bee’s products, despite having orange muzzles and ridges. [Docket Item 38-5.]
Plaintiff has shown a likelihood of success on this element. Defendants’ arguments about coloration, ridges, and trigger guards do not encompass the overall appearance of the WATER WARRIORS products, which is what Plaintiff seeks to protect. Plaintiffs trade dresses involve, inter alia, wave-like arcuate design, futu*498ristic coil designs, and futuristic bubble projections. These design elements are not functional or federally-mandated. Furthermore, “one may have a protectible interest in a combination of features or elements that includes one or more functional features.... Indeed, virtually every product is a combination of functional and non-functional features and a rule denying protection to any combination of features including a functional one would emasculate the law of trade dress infringement.” Am. Greetings Corp. v. Dan-Dee Imports, Inc., 807 F.2d 1136, 1143 (3d Cir.1986) (citations omitted).
A watergun can incorporate federally-mandated and functional elements without aping Plaintiffs trade dresses. Plaintiff is likely to succeed on the non-functionality prong.
2. Secondary Meaning
Upon the present record, Plaintiff has not demonstrated a likelihood of showing that its trade dresses have acquired secondary meaning.
Trade dress can be distinctive in one of two ways: “First, [it] is inherently distinctive if [its] intrinsic nature serves to identify a particular source.... Second, a mark has acquired distinctiveness, even if it is not inherently distinctive, if it has developed secondary meaning....” Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 210-11, 120 S.Ct. 1339, 146 L.Ed.2d 182 (2000) (citations omitted). Secondary meaning “occurs when, in the minds of the public, the primary significance of a [trade dress] is to identify the source of the product rather than the product itself.” Id. at 211, 120 S.Ct. 1339; see also Ideal Toy Corp. v. Plawner Toy Mfg. Corp., 685 F.2d 78, 82 (3d Cir.1982) (“When the primary significance of the trade dress to a consumer is in designating not the product but its producer, the trade dress has acquired secondary meaning”).
In the present case, the Court will focus on the secondary meaning element because “[i]n an action for infringement of unregistered trade dress ..., a product’s design is distinctive, and therefore protec-tible, only upon a showing of secondary meaning.” Wal-Mart, 529 U.S. at 216, 120 S.Ct. 1339. The Wal-Mart court held that product design “is not inherently distinctive” and that “the producer can ordinarily obtain protection for a design that is inherently source identifying (if any such exists), but that does not yet have secondary meaning, by securing a design patent or a copyright....” Id. at 212, 214, 120 S.Ct. 1339 (emphasis in original). Furthermore, the Walr-Mart court instructed that, when there are arguments about both product-design and product-packaging trade dress, “[t]o the extent there are close cases, ... courts should err on the side of caution and classify ambiguous trade dress as product design, thereby requiring secondary meaning.” Id. at 215, 120 S.Ct. 1339.
Plaintiff argues that “[t]he packaging and display of Buzz Bee’s WATER WARRIORS Line is unique in the relevant field, and therefore inherently distinctive.” (PI. mot. at 21.) However, the WATER WARRIORS trade dresses that Plaintiff described, transcribed supra, all involve design features of the waterguns themselves, not the packaging in which they appear. .Furthermore Plaintiffs president Zimmerman stated that “the packaging for these products is not significant to customers .... the packaging is there to display the products. When sold online, these types of water shooting toy products are almost invariably shown without the packaging.” (Zimmerman 2nd Decl. ¶¶ 44-46.) Finally, Plaintiff emphasized the likelihood of post-sale confusion once children play with the products, which also indicates that *499the trade dresses of the products themselves, not the packaging, are primarily at issue here. Essentially, Plaintiff is alleging that Defendants copied its product designs, which are visible through the packaging in stores. Furthermore, even if this case were “close,” Wal-Mart holds that “close cases” should be treated as product design cases. The Court will therefore focus on secondary meaning.
With regard to the packaging itself, and focusing upon the Plaintiffs’ two toys that remain at issue — the KWIK DRIP XL and the AVENGER — the evidence at the hearing included the packaging of these items, Exs. 9 and 11, respectively. When the packaging of the KWIK GRIP XL is compared with the STRYKER packaging (Ex. Í0), there are indeed similarities in the arrangement of the products, the words “Blasts up to 25 ft.,” and the photos of young boys using the toys. Like the STRYKER’s near congruence to the design of the KWIK GRIP XL, the packaging is not dissimilar; but the models are prominently named and differentiated in the largest printing on these packages, and the producers — Buzz Bee toys and Swim-ways — are likewise displayed and differentiated. But there is nothing unique about the Plaintiffs packaging of the KWIK GRIP XL, as most watergun toys of various brands display the same sort of information on their package, including an illustration of a child playing with the toy and .specifications about how far the toy can stream water. These are not protectable elements of Plaintiffs packaging. The comparison between the AVENGER packaging (Ex. 11) and the STORM counterpart is even less similar, with the STORM being displayed horizontally and semi-enclosed in cardboard while the AVENGER is displayed vertically and unenclosed. In short, the trade dress of the packaging for the KWIK GRIP XL and the AVENGER do not create the impression of a unified product line nor are they distinctive. Again, the case will be examined as a product trade dress case rather than a packaging case.
The Third Circuit has listed “nonexclusive” factors which may be considered in evaluating secondary meaning:
(1) the extent of sales and advertising leading to buyer association; (2) length of use; (3) exclusivity of use; (4) the fact of copying; (5) customer surveys; (6) customer testimony; (7) the use of the mark in trade journals; (8) the size of the company; (9) the number of sales; (10) the number of customers; and, (11) actual confusion.
Commerce Nat. Ins. Servs., Inc. v. Commerce Ins. Agency, Inc., 214 F.3d 432, 438 (3d Cir.2000). An analysis of these factors shows that Plaintiff has not shown a likelihood of success in establishing secondary meaning.
i. Extent of Sales and Advertising Leading to Buyer Association
This factor doeá not weigh in Plaintiffs favor. Plaintiff notes that retailers who sell its products feature Buzz Bee’s products in their print advertising, which is worth $500,000.00 per year, and that retailer customers, such as Target and Wal-Mart, also advertise Buzz Bee’s toys on their websites. Plaintiff also notes its successful sales figures.6
*500This factor does,not simply examine whether a product has been advertised or sold successfully; it examines whether the advertising and sales have led to buyer association with the source and Plaintiff has not shown buyer association with a source or brand. “To be probative of secondary meaning, the advertising must direct the consumer to those features claimed as trade dress.” Yankee Candle Co., Inc. v. Bridgewater Candle Co., LLC, 259 F.3d 25, 44 (1st Cir.2001). Essentially, there is no secondary meaning because there is a “lack of evidence as to advertising of the specific trade dress claimed, as well as the lack of evidence demonstrating a conscious connection by the public between the claimed trade dress and the product’s source ... Proof of secondary meaning requires at least some evidence that consumers associate the trade dress with the source.” Id. (emphasis in original).
Buzz Bee’s president Zimmerman claims that both consumers and the trade associate the AVENGER trade dress with Buzz Bee as the source. This statement is not probative of buyer association. Declarations from a plaintiffs employees have “little probative value regarding the assessment of consumer perception” because “[trademark law is skeptical of the ability of an associate of a trademark holder to transcend personal biases to give an impartial account of the value of the holder’s mark” and because “[attestations from person in close association and intimate contact with the trademark claimant’s business do not reflect the views of the purchasing public.” Self-Realization Fellowship Church v. Ananda Church of Self-Realization, 59 F.3d 902, 910 (9th Cir.1995) (citation, parentheses, and quotation marks omitted).
Plaintiff also notes that buyers need not associate the products with a named source and can associate the products with an anonymous source. Plaintiff is correct that consumers need not identify Buzz Bee as the corporate producer, but there must be some association with the source of a particular product or brand. “Secondary meaning does not require proof that consumers know the name of the company that owns the trademark. It requires only that customers associate the word or symbol with a single, albeit anonymous, commercial source.” 2 McCarthy on Trademarks and Unfair Competition § 15:1 (4th ed.). The standard “does not mean that the buyer knows the identity of that ‘single source’ in the sense that he knows the corporate name of the producer or seller. In fact, few buyers know, or care about, the corporate identity of the seller of a trademarked product.” Id. § 15:8 (emphasis in original). McCarthy uses the example of a particular type of whiskey:
Of course there may not be one in a hundred buyers who knows that it is made by Buchanan or wholesaled by Fleischmann. Probably all that such buyers know is that BLACK & WHITE Scotch whiskey has satisfied them in the past or that they have heard of it and the average purchaser would no doubt select for the use of his guests something with which he was familiar and thus purchase BLACK & WHITE Whiskey.
Id. (citing Fleischmann Distilling Corp. v. Maier Brewing Co., 314 F.2d 149, 155 (9th Cir.1963)). In other words, a consumer need not identify Buzz Bee as the manufacturer, but there must be some identification with a particular brand, such as WATER WARRIORS or KWIK GRIP XL or BLACK & WHITE Whiskey. See also A.J. Canfield Co. v. Honickman, 808 F.2d 291, 301 (3d Cir.1986) (“the primary significance test is generally satisfied if a term signifies a product that emanates from a *501single source, ie., a product brand .. Even if consumers do not know the WATER WARRIORS brand or the individual product names, Plaintiff also has' not shown that consumers recognize Plaintiffs trade dresses or associate them with a single source.
Plaintiff has not shown that its sales and advertising have led consumers to associate their preferred waterguns with WATER WARRIORS, KWIK GRIP XL, AVENGER, ARGON, or XENON,
ii. Length of Use and Exclusivity of Use
The AVENGER trade dress has been used since 2007; the KWIK GRIP XL trade dress has been used since 2003; and the XENON and ARGON trade dresses were used from 2004 to 2009, until production ceased due to a consent judgment in patent litigation, and will be re-launched in 2015. Plaintiff argues that its use has been exclusive and that, since all of the trade dresses were used for at least five years, the length of use shows secondary meaning.
Defendant argues that Plaintiffs non-use of the XENON and ARGON trade dresses constitutes abandonment; that five years is insufficient; and that Plaintiffs use has not been exclusive.
Under the Lanham Act, “[a] mark shall be deemed to be ‘abandoned’ ... [w]hen its use has been discontinued with intent not to resume such use.... Nonuse for 3 consecutive years shall be prima facie evidence of abandonment.” 15 U.S.C. § 1127. To show abandonment, “it is necessary to show not only acts indicating a practical abandonment, but an actual intent to abandon....” Marshak v. Treadwell, 240 F.3d 184, 198 (3d Cir.2001) (citation omitted). Given that Plaintiff stopped using the ARGON and XENON marks because of a consent judgment and that Plaintiff intends to re-launch those products, there was no abandonment. On the other hand, as explained above, the lack of any sales of ARGON and XENON products for five years militates against any current consumer identification with these models.
Plaintiff notes that, in the trademark context, when considering registration of a trademark, “[t]he Director may accept as prima facie evidence that the mark has become distinctive, ... proof of substantially exclusive and continuous use thereof as a mark by the applicant in commerce for the five years before the date on which the claim of distinctiveness is made.” 15 U.S.C. § 1052(f). The Court does not find this fact persuasive because the Third Circuit has noted that “the law of trade dress in product configurations will differ in key respects from the law of trademarks or of trade dress in product packaging-” Versa Products Co., Inc. v. Bifold Co. (Mfg.) Ltd., 50 F.3d 189, 202 (3d Cir.1995). In a trade dress case regarding the appearance of plastic planters, the Third Circuit noted “five years, not so long a time as to raise a strong inference of consumer association with a single source.” Duraco Products, Inc. v. Joy Plastic Enterprises, Ltd., 40 F.3d 1431, 1454 (3d Cir.1994). The Court therefore holds that Plaintiffs years of use, standing alone, do not establish a strong inference of consumer association with a single source. The years-of-use factor may be somewhat more probative in relation to the KWIK GRIP XL, which has been used since 2003.
Defendant found examples of non-exclusivity of use. Some of those examples arose from counterfeit websites in China or a private individual seller on the eBay website. Plaintiff attested that it was unaware that FunX Toys was producing the Stealth Drencher F4, which appears to copy the KWIK GRIP XL, and Plaintiff *502now plans to sue FunX Toys. While Plaintiff shows intent to legally enforce its exclusivity, it appears, at this time, that its trade dresses are being copied elsewhere.
In sum, there has not been abandonment; the length of use does not create a strong inference of consumer association; and, at this stage, Plaintiff has not shown exclusivity. This factor is equivocal for the KWIK GRIP XL, weak for the AVENGER, and absent for the XENON and ARGON lines.
iii. Fact of Copying
This factor weighs in Plaintiffs favor. From the Court’s perspective, Swimways’ STORM (Ex. 4) looks essentially identical to Buzz Bee’s AVENGER (Ex. 3); Swim-ways’ STRYKER three-pack (Ex. 10) looks quite similar to Buzz Bee’s KWIK GRIP XL three-pack (Ex. 9); Swimways’ TSUNAMI (Ex. 8) looks very similar to Buzz Bee’s ARGON (Ex. 7); and Swimways’ AVALANCHE (Ex. 6) looks very similar to Buzz Bee’s XENON (Ex. 5). The Court examined the products in evidence at the hearing. The strongest showing of a nearly congruent copy exists between Plaintiffs KWIK GRIP XL (Ex. 1) and Swim-ways’ STRYKER (Ex. 2). Other than the colors and the appearance of the trigger, the many fanciful embellishments of the KWIK GRIP XL are repeated in the STRYKER. The “BUFFYDADDY NERF” blogger said that Swimways’ AVALANCE was “[a] close copy of the Water Warriors Xenon,” Swimways’ TSUNAMI was “[a] copy of the Water Warriors Argon,” Swimways’ STRYKER units were “[r]eshells of one of the original Water Warriors Kwik Grips XL,” and “there was also a piston blaster virtually identical to the Water Warriors Avenger.” (Zimmerman 1st Decl. Ex. Z at 8-4.) There are small differences between the products, but the overall similarity of the product lines is unmistakeable.
“Evidence of intentional copying ... strongly supports an inference of secondary meaning, but courts have emphasized that it is one of many considerations, and does not alone establish secondary meaning.” Am. Beverage Corp. v. Diageo N. Am., Inc., 936 F.Supp.2d 555, 602 (W.D.Pa.2013) (citations omitted). Particularly in product design cases, “attempts to copy a product configuration will quite often not be probative: the copier may very well be exploiting a particularly desirable feature, rather than seeking to confuse consumers as to the source of the product.” Duraco Products, 40 F.3d at 1453 (upholding denial of preliminary injunction, despite evidence of intentional copying, because, inter alia, there was no secondary meaning).
The WATER WARRIORS and FLOOD FORCE product lines are undeniably similar but intentional copying does not alone establish secondary meaning because “the relevant intent is not just the intent to copy, but to ‘pass off one’s goods as those of another.” Yankee Candle Co., 259 F.3d at 45. Plaintiff has not shown that Swim-ways’ products are “passing off’ as Buzz Bee’s products.
The fact-of-copying factor weighs in Plaintiffs favor, but it is not dispositive, particularly because this is a product configuration case.
iv. Customer Surveys and Testimony
Plaintiff has not presented any evidence of customer surveys or testimony. According to Zimmerman’s declaration, Plaintiff did not learn of Defendants’ alleged infringement until February 7, 2014 and Plaintiffs counsel represented to the Court during the telephonic scheduling conference that, before fifing the lawsuit, Plaintiff attempted to negotiate with Defendants. Given the condensed time frame, it is not surprising that Plaintiff has *503not had time to conduct surveys or collect testimony. The Third Circuit has “never” held “that a party seeking to establish secondary meaning must submit a survey on that point.” E.T. Browne Drug Co. v. Cococare Products, Inc., 538 F.3d 185, 201 (3d Cir.2008). The absence of this evidence is, however, problematic given the paucity of other evidence indicating that consumers recognize Buzz Bee’s products, the WATER WARRIORS brand, or the individual products within the product line. Perhaps as pretrial discovery progresses, Plaintiff will amass customer testimony or survey evidence that sheds light upon customer recognition of Buzz Bee’s products or confusion as to the source of Swimways’ products. Presently, this lack of customer evidence cuts against Plaintiff.
v.Use of the Trade Dress in Trade Journals
There has been no trade journal evidence, although Plaintiff notes that the WATER WARRIOR toys appear regularly on independent fan and industry news sites likebuffdaddynerf.com, isoaker.com, sscentral.org, and waterwar.net. In the context of this motion, the Court accepts those sites as relevant under this factor. Plaintiff has not provided any evidence of the context in which these toys appeared on the sites, whether the trade dresses were featured, and whether the coverage would lead to an association with the brand or the source. Based on the evidence that is presently before the Court, this factor is neutral; it neither favors nor disfavors Plaintiff.
vi. Company Size
Buzz Bee has less than 50 employees. The parties did not discuss this factor’s import, and it will not be considered.
vii. Sales Numbers
Plaintiff has described successful sales figures, recounted supra, and a 35% share of the relevant market, but “[s]ales success by itself will typically not be as probative of secondary meaning in a product configuration case as in a trademark case, since the product’s market success may well be attributable to the desirability of the product configuration rather than the source-designating capacity of the supposedly distinguishing feature or combination of features.” Duraco, 40 F.3d at 1452. The Duraco court explained that product configuration “differs dramatically from trademark and from product packaging, since the success of a particular product — especially if similar competing products exist — does not readily lead to the inference of source identification and consumer interest in the source; it may well be that the product, inclusive of the product configuration, is itself inherently desirable _” Id. at 1453.
The Duraco case is similar to this case because it involved an inexpensive product, ie., a plastic planter that cost less than $5.00; the product was available at a large retail chain, ie., K-Mart; the advertising was conducted cooperatively with retailers, primarily through, inter alia, circulars, newspaper fliers, and newspaper advertisements; the plaintiff asserted that the planters’ success was attributable to “a careful combination of ornamental features”; and, as in this case, the defendant’s products were “strikingly similar in appearance” to the plaintiffs products. Id. at 1434-35. The Duraco court noted that the plaintiff “ha[d] not shown any consumer association between the Grecian Classics planters and a particular source; instead its plastic planters are purchased because consumers (whether retail or wholesale) find them innately desirable .... ” Id. at 1453. Essentially, the Duraco plaintiffs sales success, without other evidence of consumer association, did *504not establish secondary meaning.7
Because this is a product design case and because Plaintiff has not shown that its sales success is attributable to brand or source identification, this factor weakly supports Plaintiff.
viii.Number of Customers
None of the parties discussed the import of this factor, and the Court will not consider it.
ix.Actual Confusion
Plaintiff has not produced any evidence of actual confusion. Plaintiff cites the “BUFFDADDY NERF” blogger, who noted that Swimways’ products were copies of Buzz Bee’s products. But the blogger was not actually confused about whose products were manufactured by whom and he did not mistakenly assert that Swimways’ products were manufactured or designed by Plaintiff. This factor does not favor Plaintiff. Perhaps pretrial discovery will reveal whether retailers or consumers have been confused about the source of Swimways’ products. There is little or no prospect of any actual confusion regarding the TSUNAMI and AVALANCHE toys, since Plaintiffs counterpart models (ARGON and XENON) have not been sold for. five years while Swimways’ products are new to the market.
x.Summary of Secondary Meaning Factors
Some of the factors, including the fact of copying, sales success, and the length of use of the KWIK GRIP XL trade dress, weigh in Plaintiffs favor. These factors do not support a secondary meaning finding because this is a product configuration case in which the fact of copying and sales success are not dispositive. Plaintiff has not shown that consumers identify the WATER WARRIORS brand or that, in consumers’ minds, the primary significance of the trade dresses is to identify the products’ source or brand.
In Ideal Toy Corp. v. Plawner Toy Mfg. Corp., 685 F.2d 78 (3d Cir.1982), the Third Circuit evaluated whether the district court properly granted a preliminary injunction against defendant Plawner, which produced a “Wonderful Puzzler” identical to the “Rubik’s Cube” puzzle that plaintiff Ideal produced pursuant to an exclusive arrangement with inventor Erno Rubik. The Third Circuit held that the plaintiff had established secondary meaning because there was copying, plaintiff Ideal had invested $2,000,000.00 in advertising and sold over 5,000,000 units in one year, consumer survey data showed that 40 percent of respondents mistakenly identified the defendant’s imitation as a Rubik’s cube, and unauthorized Rubik’s Cube imitations were mistakenly returned to plaintiff Ideal for repair. Furthermore, defendant Plawner’s attorney conceded at the hearing that consumer confusion was likely:
THE COURT: If someone went into a store and said to the store owner, “give me Rubik’s Cube,” and they handed them the defendant’s product, is there any question in your mind that the cus*505tomer would think that he was getting what he asked for?
COUNSEL FOR PLAWNER: No question in my mind.
Id. at 82. The Ideal Toy ease highlights Plaintiffs ultimate burden, namely to show whether the trade dresses identify the source of the product, rather than the product itself. See also Duraco, 40 F.3d at 1441 (preliminary injunction not proper in trade dress infringement case involving plastic planters because “we think it quite improbable that a consumer upon seeing [defendant’s plastic planter in a store would reasonably associate its specific configuration with a particular source, even if the consumer had repeatedly before seen [plaintiffs] plastic planter”) (emphasis in original).
In other words, Plaintiff has not adduced any evidence indicating that a customer would go to Target, ask for Buzz Bee or WATER WARRIORS products, and leave with a Swimways FLOOD FORCE product mistakenly believing that the watergun was a Buzz Bee or WATER WARRIORS product. Instead, it appears that a customer would go to Target, ask for a watergun, and leave with Defendant Swimways’ products simply because Swim-ways’ products were available.
Plaintiff has not shown secondary meaning and, thus, has not shown a likelihood of success on the merits.
3. Likelihood of Confusion
AS to this third prong of the prod-' uct trade dress infringement cause of action, Plaintiff has shown that consumers are likely to confuse Swimways’ trade dress with Buzz Bee’s trade dress.
“A likelihood of confusion exists when consumers viewing the defendant’s trade dress probably would assume that the product it represents is associated with the source of a different product identified by the plaintiffs similar trade dress.” McNeil, 511 F.3d at 357. In other words, “a plaintiff may prevail in a trade dress infringement action only if it shows that an appreciable number of ordinarily prudent consumers of the type of product in question are likely to be confused as to the source of the goods.” Versa, 50 F.3d at 200. “Competitors have broad rights to copy successful product designs when those designs are not protected by (utility or design) patents. It is not unfair competition for someone to trade off the good will of a product; it is only unfair to deceive consumers as to the origin of one’s goods and thereby trade off the good will of a prior producer.” Id. at 207 (citation omitted) (emphasis in original). However, “proof of actual confusion is not required for a successful trade dress infringement action under the Lanham Act.” Id. at 205.
To determine whether there is a likelihood of confusion, the Court must employ the factors announced in Interpace Corp. v. Lapp, Inc., 721 F.2d 460 (3d Cir.1983), which are:
(1) the degree of similarity between the plaintiffs trade dress and the allegedly infringing trade dress;
(2) the strength of the plaintiffs trade dress;
(3) the price of the goods and other factors indicative of the care and attention expected of consumers when making a purchase;
(4) the length of time the defendant has used its trade dress without evidence of actual confusion arising;
(5) the intent of the defendant in adopting its trade dress;
(6) the evidence of actual confusion;
(7) whether the goods, though not competing, are marketed through the same channels of trade and advertised through the same media;
*506(8) the extent to which the targets of the parties’ sales efforts are the same;
(9) the relationship of the goods in the minds of consumers because of the similarity of function;
(10) other facts suggesting that the consuming public might expect the plaintiff to manufacture a product in the defendant’s market, or that the plaintiff is likely to expand into that market.
McNeil, 511 F.3d at 358. “[T]he Lapp test is a qualitative inquiry. Not all factors will be relevant in all cases; further, the different factors may properly be accorded different weights depending on the particular factual setting.” A & H Sportswear, Inc. v. Victoria’s Secret Stores, Inc., 237 F.3d 198, 215 (3d Cir.2000).
Defendant cites Versa, 50 F.3d at 203, for the proposition that “in trade dress infringement suits where the dress inheres in a product configuration, the primary factors to be considered in assessing likelihood of confusion are the product’s labeling, packaging, and advertisements.” The Versa court explained that “except where consumers ordinarily exercise virtually no care in selecting a particular type of product (as may be the case with inexpensive disposable or consumable items ...), clarity of labeling in packaging and advertising will suffice to preclude almost all possibility of consumer confusion as to source stemming from the product’s configuration.” Id. Versa was an industrial design case involving a “directional control valve ... used in control panels of offshore oil-drilling rigs to facilitate emergency shutdowns.” Id. at 193. As discussed further infra, the present case involves inexpensive toys for children, and the Versa court specifically noted that directional control valves “are not bought by children or casual consumers....” Id. at 214. Therefore, while the Court is mindful of the Versa court’s emphasis on clarity of labeling in packaging and advertising, the Court will assess all the Lapp factors because this is not an industrial design case, the appearance of the waterguns is likely much more important to consumers than the appearance of the Versa valves, and the target audience is casual consumers.
The WATER WARRIORS and FLOOD FORCE product lines are remarkably similar and casual consumers are unlikely to distinguish between them.
i. Degree of Similarity (Lapp Factor 1)
“[T]he single most important factor in determining likelihood of confusion is trade dress similarity. The proper test is not side-by-side comparison but whether the trade dresses create the same overall impression when viewed separately.” McNeil, 511 F.3d at 359 (brackets and citations removed).
As discussed supra, the products look very similar and, particularly when considering the similarity between each offering in the WATER WARRIORS and FLOOD FORCE product lines, this factor strongly weighs in Plaintiffs favor. Defendant notes that the “BUFFDADDY NERF” blogger noted that Swimways’ toys “appear to have either pinch triggers, or some sort of alternative valve mechanism.... ” (Id. at 3.) The different triggers and valve mechanisms do not diminish the high degree of similarity between Buzz Bee’s WATER WARRIORS and Swimways’ FLOOD FORCE product lines, particularly because the “BUFFDADDY NERF” blogger is likely more sophisticated than the average consumer.
Defendant argues that “[t]he presence of [the source’s] name on the product goes far to eliminate confusion of origin” because “there is hardly likelihood of confusion or palming off when the name of the manufacturer is clearly displayed.” Bose *507Corp. v. Linear Design Labs, Inc., 467 F.2d 304, 309-310 (2d Cir.1972). Swim-ways’ FLOOD FORCE products have the STRYKER, STORM, AVALANCHE, and TSUNAMI names and bear the Swimways name and logo on each product. On Buzz Bee’s KWIK GRIP XL (Ex. 1), however, the Buzz Bee name is almost invisible; only by close examination and holding the product in a certain way toward the light can one even detect that it is a Buzz Bee product, and it contains no logo. In contrast, the STRYKER (Ex. 2) contains the. imprinted Swimways name and logo in a highly legible relief. But consumers of these inexpensive children’s toys are unlikely to pay close attention to labels, unlike the consumers of the high fidelity speakers in the Bose case or the directional control valves in Versa.
Because the products appear so similar, this factor weighs in Plaintiffs favor, at least for the Plaintiffs KWIK GRIP XL and AVENGER models currently on sale,
ii. Strength of Plaintiffs Trade Dress (Lapp Factor 2)
“ ‘[Strength’ of product configuration as relevant to determining likelihood of confusion on the part of ordinarily careful consumers should be found only if consumers rely on the product’s configuration to identify the producer of the good. This may perhaps be the case with products purchased largely because of their appearance, such as ‘Carebears’.... ” Versa, 50 F.3d at 203-04 (citing Am. Greetings Corp. v. Dan-Dee Imports, 807 F.2d at 1138, which addressed trade dress infringement of Carebears stuffed animals) (emphasis in original). There is no evidence in the record as to whether consumers purchase Buzz Bee’s or Swimways’ waterguns because their appearance identifies the source or whether the purchase is motivated by other factors, such as pleasing design, price, or convenient availability at a frequently-visited store. Plaintiff emphasized that the consumers are small children who may not know about producers or brands, but Plaintiff has not adduced any evidence to show that young children lack brand knowledge. This factor is neutral.
iii. Price of Goods And Other Factors Indicating Consumers’ Care And Attention (Lapp Factor 3)
The third Lapp factor considers the price of the goods and other factors indicative of the care and attention expected of ordinary consumers when making a purchase. “The greater the care and attention, the less the likelihood of confusion.” Fisons Horticulture, Inc. v. Vigoro Indus., Inc., 30 F.3d 466, 476 n. 12 (3d Cir.1994). “[T]his factor takes on enhanced importance when a claim is made for infringement of trade dress in a product configuration....” Versa, 50 F.3d at 204.
These products range in price from a low of $2.49 to a high of $14.99. They are inexpensive products and, thus, unlikely to demand the care and attention that consumers devote to more expensive products. “Inexpensive goods require consumers to exercise less care in their selection than expensive ones.” Id.
The declarants, i.e., Swimways’ vice-president Balam and Buzz Bee’s president Zimmerman, dispute whether children purchase the products, whether parents purchase the products, or whether parents purchase the products under the strong influence of their children. The Court need not resolve this factual dispute now. The fundamental point is that the consumers (whether parents or children) are unlikely to be sophisticated. Furthermore, the fact that some purchasers are retail stores’ professional buyers does not change the analysis: “Where the buyer *508class consists of both professional buyers and consumers then the issue will center on the consumers, for confusion within the lowest stratum of ‘reasonably prudent buyers’ may give rise to liability even if professional buyers in the market are not confused.” Ford Motor Co. v. Summit Motor Products, Inc., 930 F.2d 277, 293 (3d Cir.1991). Essentially, “when a buyer class is mixed, the standard of care to be exercised by the reasonably prudent purchaser will be equal to that of the least sophisticated consumer in the class.” Id. Because the buying class in this case involves both professional retail buyers, parents, and children, the Court will apply a low standard of care. This factor therefore weighs in Plaintiffs favor because, given the inexpensive price and the young target audience, consumers are not likely to exercise substantial care and attention in making their product decisions.
Plaintiff emphasizes the possibility of post-sale confusion. Courts “may consider ... post-sale confusion when evaluating Lapp factor (3).” Acxiom Corp. v. Axiom, Inc., 27 F.Supp.2d 478, 497 (D.Del.1998).8 While it seems possible that consumers may be‘confused post-sale about the product’s source, Plaintiff has not given any indication that such confusion is occurring. For example, Plaintiff has not indicated that it has received any customer complaints about or returns of Swimways’ products or that consumers are aware of its brand. Lapp factor three already weighs in' Plaintiffs favor, and the Court need not consider the impact of post-sale confusion at this time.
iv. Length of Time the Defendant Has Used Its Trade Dress Without Evidence Of Actual Confusion Arising (Lapp Factor 4)
This factor cannot be assessed because there has been no evidence of actual confusion and because Swimways’ FLOOD FORCE line only began production after July 2013.
v. Defendant’s Intent in Adopting Its Trade Dress (Lapp Factor 5)
In the trademark context, Defendant’s intent is significant because “evidence of intentional, willful and admitted adoption of a mark closely similar to the existing marks weighs strongly in favor of finding the likelihood of confusion.” Checkpoint Sys., Inc. v. Check Point Software Technologies, Inc., 269 F.3d 270, 286 (3d Cir.2001) (quotation omitted). “The adequacy and care with which a defendant investigates and evaluates its proposed mark, and its knowledge of similar marks or allegations of potential confusion, are highly relevant.” Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 721 (3d Cir.2004).
Defendants argue that Swimways’ intent is irrelevant and cite Versa, for the proposition that “in the product configuration context, a defendant’s intent weighs in favor of a finding of likelihood of confusion only if intent to confuse or deceive is demonstrated by clear and convincing evidence, and only where the product’s labeling and marketing are also affirmatively misleading.”9 Versa, 50 F.3d at 208.
*509This case is neither a trademark case, nor an industrial design case like Versa. Plaintiff has not shown that the FLOOD FORCE products are misleadingly labeled and marketed. In fact, there has been no evidence at all about marketing of the FLOOD FORCE line. However, even if Swimways’ intent is irrelevant, the Court must also consider Target’s intent. The intent factor weighs in Plaintiffs favor because of the obvious similarity between the two product lines and because of the facts that Buzz Bee produced these products first, Buzz Bee sold them at Target before Swimways, both product lines were present at the line review in 2013, and the Target buyer was surely aware of the similarity between the lines.
vi.Evidence of Actual Confusion (Lapp Factor 6)
Plaintiff has not produced any evidence of actual confusion. Plaintiff cites the “BUFFDADDY NERF” blogger, who noted that Swimways’ products were copies of Buzz Bee’s products. But the blogger was not actually confused about whose products were manufactured by whom and he did not mistakenly assert that Swim-ways’ products were manufactured or designed by Plaintiff.10 This factor does not weigh in Plaintiffs favor.
vii.Whether the Goods Are Marketed Through The Same Channels Of Trade And Media (Lapp Factor 7)
“[T]he greater the similarity in advertising and marketing campaigns, the greater the likelihood of confusion. Applying this factor, courts must examine the trade exhibitions, publications and other media the parties use in marketing their products as well as the manner in which the parties use their sales forces to sell their products to consumers.” Checkpoint, 269 F.3d at 288-89 (citation omitted). Plaintiff apparently does no advertising of its WATER WARRIORS line to the public. There has been little evidence about the marketing campaigns of either the WATER WARRIORS or FLOOD FORCE product lines.
viii.Extent to Which Targets of the Parties’ Sales Efforts Are the Same (Lapp Factor 8)
This factor weighs in Plaintiffs favor. The target audiences are the same because both Plaintiffs WATER WARRIORS product line and Swimways’ FLOOD FORCE product line target children aged 4-12.
ix.Relationship of the Goods in the Minds Of Consumers Because of the Similarity of Function (Lapp Factor 9) and Other Facts Suggesting That the Consuming Public Might Expect the Plaintiff to Manufacture A Product In The Defendant’s Market, Or That The Plaintiff Is Likely To Expand Into That Market (Lapp Factor 10)
In addressing the ninth and tenth factors, i.e., similarity of function and other facts suggesting consumers’ expectations regarding market overlap, the Third Circuit held that “[b]earing in mind that these factors also were developed for noncompeting products, we believe that they are largely superfluous in product configuration cases. The requisite similarity of trade dress in the product designs themselves would in most cases presuppose a similarity of function between the products *510at issue.” Versa, 50 F.3d at 208 (emphasis in original).
x. Summary of Lapp factor analysis
Four of the Lapp factors clearly weigh in Plaintiffs favor: the degree of similarity {Lapp factor 1), the products’ inexpensive prices {Lapp factor 3), Defendant’s intent {Lapp factor 5), and the target audience {Lapp factor 8). Except for evidence of actual confusion {Lapp factor 6), which does not favor Plaintiff, the remaining factors are either irrelevant or cannot be assessed at this time. The Court therefore concludes that Plaintiff has shown a likelihood of success on the element of likelihood of confusion. These products are remarkably similar and create the same overall impression.11
In sum, while Plaintiff has shown the likelihood of proving that its trade dresses are non-functional and that there is a likelihood of confusion between Buzz Bee’s and Swimways’ product trade dresses, Plaintiff has not shown a likely ability to prove secondary meaning and, therefore, has not shown a likelihood of success on the merits.
B. Irreparable Harm
Aside from Plaintiffs failure to show the likelihood of success on the merits, Plaintiffs motion for injunctive relief will also be denied because Plaintiff has not shown that it is likely to suffer irreparable harm.
The Third Circuit has “repeatedly insisted that the preliminary injunction device should not be exercised unless the moving party shows that it specifically and personally risks irreparable harm.” Liberty Lincoln-Mercury, Inc. v. Ford Motor Co., 562 F.3d 553, 557 (3d Cir.2009) (citation omitted). In addition, the Third Circuit has “long held that an injury measured in solely monetary terms cannot constitute irreparable harm.” Id. “Grounds for irreparable injury include loss of control of reputation, loss of trade, and loss of good will.” Kos Pharm., 369 F.3d at 726 (quotation omitted).
Furthermore, the Court “must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Amoco Prod. Co. v. Vill. of Gambell, AK, 480 U.S. 531, 542, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987); see also Warner Lambert Co. v. McCrory’s Corp., 718 F.Supp. 389, 399 (D.N.J.1989) (“In considering any motion for preliminary injunc-tive relief, a court should consider whether granting the requested relief will result in greater harm to the party on whom it is imposed than its denial will have on the party who seeks it.”)
1. Irreparable Harm Must Be Independently Established
Plaintiff argues that “trademark infringement amounts to irreparable injury as a matter of law.” (PI. mot at 35.) In support of this proposition, Plaintiff cites Opticians Ass’n of Am. v. Indep. Opticians of Am., 920 F.2d 187, 196 (3d Cir.1990), in which the Third Circuit held that *511“[t]here is no doubt that the [defendant’s infringement has inhibited the [plaintiffs ability to control its own ... marks, which in turn creates the potential for damage to its reputation. Potential damage to reputation constitutes irreparable injury for the purpose of granting a preliminary injunction in a trademark case.” The Opticians court concluded that “where the plaintiff makes a strong showing of likely confusion, irreparable injury follows as a matter of course.” Id.
Supreme Court jurisprudence subsequent to Opticians, however, has emphasized that that a plaintiff must establish all four elements of the preliminary injunction test, including the irreparable harm element, and that irreparable harm must be likely, not merely possible. In eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006), the Supreme Court held that the traditional four-factor injunction test under equity law applies to cases arising under the Patent Act and rejected the appeals court’s holding that injunctions should automatically issue once infringement and validity have been adjudged. The Supreme Court referenced its Copyright Act jurisprudence and emphasized that it “has consistently rejected invitations to replace traditional equitable considerations with a rule that an injunction automatically follows a determination that a copyright has been infringed.” Id. at 392-93, 126 S.Ct. 1837. The eBay court held “that the decision whether to grant or deny injunctive relief rests within the equitable discretion of the district courts, and that such discretion must be exercised consistent with traditional principles of equity, in patent disputes no less than in other cases governed by such standards.” Id. at 394, 126 S.Ct. 1837.
The Lanham Act, under which Plaintiffs trade dress infringement claims arise, provides that courts “shall have power to grant injunctions, according to the principles of equity-” 15 U.S.C. § 1116(a). The Court must follow the eBay court’s admonishment that all four equity factors must be established when granting equitable relief.
Although the Third Circuit has not yet examined this issue, other circuit courts and district courts in this circuit have held that, after eBay, irreparable harm must be established as a separate element, regardless of whether a plaintiff has shown infringement. See, e.g., Herb Reed Enterprises, LLC v. Florida Entm’t Mgmt., Inc., 736 F.3d 1239, 1249 (9th Cir.2013) (“We now join other circuits in holding that the eBay principle — that a plaintiff must establish irreparable harm — applies to a preliminary injunction in a trademark infringement case”); Salinger v. Colting, 607 F.3d 68, 77-78 (2d Cir.2010) (“nothing in the text or the logic of eBay suggests that its rule is limited to patent cases. On the contrary, eBay strongly indicates that the traditional principles of equity it employed are the presumptive standard for injunctions in any context”); N. Am. Med. Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211, 1228 (11th Cir.2008) (in trademark infringement and false advertising case, “[bjecause the language of the Lanham Act — granting federal courts the power to grant injunctions ‘according to the principles of equity and upon such terms as the court may deem reasonable’ — is so similar to the language of the Patent Act, we conclude that the Supreme Court’s eBay case is applicable”); King Pharm., Inc. v. Sandoz, Inc., Civ. 08-5974(GEB), 2010 WL 1957640, at *5 (D.N.J. May 17, 2010) (“[irreparable harm must be established as a separate element, independent of any showing of likelihood of success; irreparable harm can no longer be presumed”) (citing eBay)) Ferring Pharm. Inc. v. Watson Pharm., Civ. 12-5824(DMC), 2013 WL 1405226, at *4 (D.N.J. Apr. 4, 2013) (in *512Lanham Act false advertising case, holding that “[i]rreparable harm cannot be presumed, and must be established as a separate element, independent of any showing of likelihood of success.,,.. Failure to establish irreparable injury automatically results in denial of a preliminary injunction”) (citations omitted); Am. Beverage Corp. v. Diageo N. Am., Inc., 936 F.Supp.2d 555, 613 (W.D.Pa.2013) (“Following eBay, therefore, courts sitting in equity are no longer to presume simply that a likelihood of success on the merits demonstrates irreparable harm. Instead, plaintiffs must demonstrate that the potential harm in absence of an injunction cannot be compensated by monetary damages alone”).
Plaintiff argues that eBay is inapplicable because it involved a patent, not a trademark, case and a permanent, not preliminary, injunction and because the presumption in trademark cases only extends to one of the four factors and is rebuttable. The Court is unpersuaded by these arguments. The basis of the eBay decision was not that patent cases and permanent injunctions are somehow unique; it was that “the decision whether to grant or deny injunctive relief rests within the equitable discretion of the district courts, and that such discretion must be exercised consistent with traditional principles of equity, in patent disputes no less than in other cases governed by such standards.” eBay, 547 U.S. at 394, 126 S.Ct. 1837. The eBay court held that “a major departure from the long tradition of equity practice should not be lightly implied and that [n]othing in the Patent Act indicates that Congress intended such a departure.” Id. at 391-92, 126 S.Ct. 1837 (citations omitted). Likewise, the Lanham Act does not indicate that Congress intended a departure from the principles of equity; in fact, quite the opposite since the Lanham Act gives courts the “power to grant injunctions, according to the principles of equity....” 15 U.S.C. § 1116(a). Finally, Plaintiffs argument that trademark cases are unique because the irreparable harm presumption can be rebutted is equally unpersuasive. “eBay’s central lesson is that, unless Congress intended a ‘major departure from the long tradition of equity practice,’ a court deciding whether to issue an injunction must not adopt ‘categorical’ or ‘general’ rules or presume that a party has met an element of the injunction standard.” Salinger, 607 F.3d at 78 n. 7 (quoting eBay, 547 U.S. at 391-94, 126 S.Ct. 1837). The Court will not presume that Plaintiff has established irreparable harm.12
In addition, the Supreme Court “requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction,” not merely possible. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (emphasis in original). The Winter court explained that “[i]ssuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with our *513characterization of-injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Id. Plaintiff argues that Winter is distinguishable because “that case did not involve trademark or trade dress or intellectual property.” (PL reply at 17.) This argument is unpersuasive. The Winter court did not indicate that the injunction standard should vary depending on the subject matter; in'fact, the Supreme Court cited its “frequently reiterated standard” that irreparable injury must be likely. Winter, 555 U.S. at 22, 129 S.Ct. 365. And, as discussed supra, the lesson from eBay is that courts must apply the principles of equity unless there is congressional direction otherwise.
The Court will now analyze whether Plaintiff has satisfied the irreparable harm standard.
2. Likelihood of Irreparable Harm
Plaintiff has not shown that it is likely to suffer irreparable harm, i.e., harm that cannot be remedied with monetary damages, if an injunction does not issue.
Plaintiff argues that “Buzz Bee cannot control the quality of Swimways goods sold under the infringing trade dress, which could readily be confused with Buzz Bee’s” and that “[i]t is not likely that Buzz Bee could recover the goodwill lost due to Swimways’ infringement.” (PL mot. at 34-35.) But Plaintiff has not shown that any consumers blame Buzz Bee for or associate Buzz Bee with Swimways’ product failures, if any.
Buzz Bee president Zimmerman also asserts that now is the prime season for consumer purchase of water shooting toys and that retail buyers will select water shooting toys for the 2015 season between now and July. (Id. ¶ 57.) It is unclear how this factor shows irreparable harm. Zimmerman acknowledged that “[i]t is unlikely that Buzz Bee’s relationship with Target will ever recover....” (Id. ¶ 53.) It does not appear, therefore, that an injunction would impact whether Buzz Bee could sell its products through Target in 2015, and Plaintiff has not shown how Swimways’ alleged infringement would impact Plaintiffs relationship with other retailers. In fact, Swimways’ vice-president Balam stated that Swimways agreed to offer its FLOOD FORCE line exclusively through Target, which indicates that Swimways will not be sending its allegedly infringing products to other retailers. In addition, Plaintiff has not provided evidence that any retailer has indicated that its willingness to sell Buzz Bee’s products depends on the exclusivity of Buzz Bee’s designs or on Plaintiffs ability to cease Swimways’ production of the FLOOD FORCE line.
Zimmerman also asserts that, if Swim-ways continues to sell infringing products, competitors, Chinese manufacturers, and U.S. retail buyers will consider Buzz Bee’s trade dress to be “open market,” meaning that Buzz Bee’s products will be copied with impunity for the 2015 season, Buzz Bee will be unable to prevent future and ongoing infringement, Buzz Bee will be unable to regain the goodwill in its products’ appearance, and all of Buzz Bee’s work will be lost. (Zimmerman 2nd Deck ¶ 58.) Plaintiff has not shown that these events are likely to occur without an injunction.
Plaintiff must show that irreparable harm is likely, not merely possible, and it has not done so.
In terms of irreparable harm to Defendants, Swimways’ vice president Balam stated that sales for waterguns are concentrated in the summer, styles vary yearly, and styles from previous years may be difficult to sell. (Balam ¶30.) In other words, if a preliminary injunction issues, *514Balam claims Defendants may be unable to sell their products in the future. Buzz Bee’s president Zimmerman disputes Ba-lam’s assertion: “Balam’s statement ... that it may be difficult to sell models of water shooting toys from prior seasons is surprising, given the fact that Swimways is offering products copied from Buzz Bee that have been on sale for many seasons.” (Zimmerman 2nd Decl. ¶ 42.)
In sum, while Defendants’ assertions about probable irreparable harm are not compelling, Plaintiff has not shown that it is likely to suffer irreparable harm and, therefore, this element does not favor Plaintiff.
C. Public Interest
“[T]he most basic public interest at stake in all Lanham Act cases [is] the interest in prevention of confusion, particularly as it affects the public interest in truth and accuracy.” Kos Pharm., 369 F.3d at 730. This factor does not favor granting the injunction because, while Plaintiff has shown that consumers may not distinguish between the two product lines, Plaintiff has not shown that consumers are likely to be confused as to the source or brand of the particular product they purchase.
V. CONCLUSION
This case presents a challenging analysis for the Court, particularly because Defendants’ products are so similar to Plaintiffs products. But a preliminary injunction is an extraordinary remedy that should only be used in limited circumstances. Plaintiff has not shown that these circumstances warrant an injunction. In particular, Plaintiff has not shown a likelihood of success on the merits and has not shown that, absent an injunction, irreparable harm is likely. Plaintiffs motion will be denied. If Plaintiff believes that it can remedy these deficiencies after discovery is undertaken, Plaintiff is, of course, free to renew its motion.
An accompanying Order will be entered.
MEMORANDUM OPINION
Before the Court is Plaintiffs motion for reconsideration [Docket Item 50] of the Court’s May 15, 2014 Opinion and Order [Docket Items 47 & 48], Plaintiffs motion will be denied because Plaintiff has not shown that the Court made any clear errors of fact or law, that there is new evidence, or that there has been an intervening change in the controlling law. The Court finds the following:
1. Plaintiff Buzz Bee Toys (“Buzz Bee”) brought this trade dress infringement action against Defendants Swimways Corporation (“Swimways”) and Target Corporation (“Target”). Buzz Bee claims that Swimways copied four models of Plaintiffs WATER WARRIORS water-guns by using confusingly similar and infringing trade dresses and that Target now offers Swimways’ infringing products instead of Plaintiffs products, which Target used to offer.1 Plaintiff sought a preliminary injunction precluding Defendants from selling Swimways’ allegedly infringing products and ordering them to recall the infringing products. After a hearing, the Court denied Plaintiffs motion because Plaintiff had not shown that irreparable harm was likely and had not shown that its trade dresses have acquired secondary meaning. Buzz Bee Toys, Inc. v. Swimways Corp., 20 F.Supp.3d 483, Civ. 14-*5151948 (JBS/KMW), 2014 WL 2006799 (D.N.J. May 15, 2014) (“Buzz Bee I”).
2. In its motion for reconsideration, Plaintiff argues that the Court incorrectly applied the secondary meaning test by ignoring the anonymous source rule and presuming that consumers must be able to identify the Buzz Bee company or WATER WARRIORS brand name. Plaintiff also argues that it did show a likelihood of irreparable harm and that the public interest favored an injunction. Plaintiff also requests reconsideration of “the test for secondary meaning as to product packaging where the product is part of open packaging.” (PI. Br. at 2.)
3. Defendants oppose [Docket Item 53] Plaintiffs motion. They argue that Plaintiff is re-litigating the same issues and asking the Court to re-weigh the evidence it previously considered, all of which are not permitted on a motion for reconsideration.2
4. The Court will now turn to its analysis, explaining why Plaintiffs motion must be denied.
5. “The purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence.” Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.1985). Reconsideration is warranted “if the party seeking reconsideration shows at least one of the following grounds: (1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court [denied] the motion for [preliminary injunction]; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice.” Max’s Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir.1999). “A motion for reconsideration is not a vehicle to reargue the motion.... ” Tischio v. Bontex, Inc., 16 F.Supp.2d 511, 532 (D.N.J.1998). “Because reconsideration ... is an extraordinary remedy, requests pursuant to these rules are to be granted sparingly.” NL Indus., Inc. v. Commercial Union Ins. Co., 935 F.Supp. 513, 516 (D.N.J.1996) (quotation omitted).
6. Plaintiff requests reconsideration of “the test for secondary meaning as to product packaging where the product is part of open packaging.” Plaintiffs request is denied because the Court applied the correct secondary meaning test in Buzz Bee I. In- Buzz Bee I, the Court classified the trade dresses at issue as product configuration, not product packaging, trade dresses. The Court observed that “the WATER WARRIORS trade dresses that Plaintiff described ... all involve design features of the waterguns themselves, not the packaging in which they appear.” Buzz Bee I, 20 F.Supp.3d at 498, 2014 WL 2006799, at *10. The Court also quoted Plaintiffs president, who stated that “ ‘the packaging for these products is not significant to customers.... the packaging is there to display the products. When sold online, these ... products are almost invariably shown without the packaging.’ ” Id. Furthermore, the Court noted that “Plaintiff emphasized the likelihood of post-sale confusion once children play with the products,'which also indicates that the trade dresses of the products themselves, not the packaging, are primarily at issue here.” Id. Those facts clearly indicated that product configuration was the issue.
7. In addition, the Court relied on the Supreme Court’s instruction that, in. close cases, courts must classify trade dress as *516product design, not product packaging: “when there are arguments about both product-design and product-packaging trade dress, ‘[t]o the extent there are close cases, ... courts should err on the side of caution and classify ambiguous trade dress as product design, thereby requiring secondary meaning.’ ” Id. (quoting Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 215, 120 S.Ct. 1339, 146 L.Ed.2d 182 (2000)). The Court will therefore deny Plaintiffs request for reconsideration of the secondary meaning test as to product packaging when the product is in open packaging. Plaintiff provided no reason to merit reconsideration and the Court’s reasoning in Buzz Bee I was soundly based on Plaintiffs president’s affidavit, Supreme Court jurisprudence, and the trade dresses themselves. There was no error of law or fact.
8. Plaintiff additionally argues that the Court applied the test for secondary meaning incorrectly because the Court ignored the anonymous source rule and presumed that, to establish secondary meaning, consumers must be able to identify the Buzz Bee company or WATER WARRIORS brand names. This argument is meritless.
The Court did not require evidence that consumers can identify Buzz Bee, the WATER WARRIORS brand, or the specific product names. The Court held that Plaintiff had not established secondary meaning “because there [wa]s a lack of evidence as to advertising of the specific trade dress claimed, as well as the lack of evidence demonstrating a conscious connection by the public between the claimed trade dress and the product’s source ... Proof of secondary meaning requires at least some evidence that consumers associate the trade dress with the source.” Id. at 500, at *11 (quotation omitted). The Court specifically stated that “[e]ven if consumers do not know the WATER WARRIORS brand or the individual product names, Plaintiff also has not shown that consumers recognize Plaintiffs trade dresses or associate them with a single source.” Id. at 501, at *12.
10. The Court cited Ideal Toy Corp. v. Plawner Toy Mfg. Corp., 685 F.2d 78 (3d Cir.1982), in which the Third Circuit held that secondary meaning existed because “there was copying, plaintiff Ideal had invested $2,000,000.00 in advertising and sold over 5,000,000 units in one year, consumer survey data showed that 40 percent of respondents mistakenly identified the defendant’s imitation as [plaintiffs product], and unauthorized ... imitations were mistakenly returned to plaintiff Ideal for repair.” Buzz Bee I, 20 F.Supp.3d at 504, 2014 WL 2006799, at *15. The Court did not require Plaintiff to produce all of the evidence that was present in Ideal, but Plaintiff lacked evidence showing secondary meaning. There was no survey data, no evidence of consumers mistaking Swim-ways’ products for Plaintiffs products, and no evidence of advertising that led to buyer association with the source or the trade dresses.
11. The Court concluded that Plaintiff had not shown secondary meaning because it had not shown that consumers associated its trade dresses with its company, its brand, its products, or a single anonymous source. Plaintiff has not shown that the Court made any errors, much less clear errors, of fact or law in Buzz Bee I. Plaintiffs motion for reconsideration regarding secondary meaning will be denied because “[t]his is the exact issue upon which this court opined in its previous [opinion]. The [Plaintiffs] motion simply raises a disagreement with this court’s initial decision. Raising a mere disagreement with a court’s prior decision, is insufficient....” United States v. Jones, 158 F.R.D. 309, *517314 (D.N.J.1994) (denying motion for reconsideration).
12. Plaintiff also asserts that the Court erroneously found that Plaintiff had not shown a likelihood of irreparable harm. Plaintiff argues that the “loss of control of one’s trade dress ... has been recognized to be irreparable harm” and that the “potential for lost goodwill ... is controlling.” (PI. Br. at 7 (emphasis in original).) Again, Plaintiffs argument lacks merit and reconsideration will be denied.
13. In Buzz Bee I, the Court noted that “the Supreme Court ‘requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction,’ not merely possible.” 20 F.Supp.3d at 512, 2014 WL 2006799, at *23 (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008)). The Court held that “Plaintiff has not shown that it is likely to suffer irreparable harm, i.e., harm that cannot be remedied with monetary damages, if an injunction does not issue.” Id. at 513, at *24. For example, Plaintiff had not shown that “consumers blame[d] Buzz Bee for or associate[d] Buzz Bee with Swimways’ product failures, if any” and had not shown that denying the injunction was likely to encourage manufacturers, competitors, and retail buyers to copy Buzz Bee’s designs. Id.
14. Furthermore, the Court emphasized that Plaintiff had not shown any connection between issuance of an injunction and preventing irreparable harm. For example, Plaintiff “acknowledged that ‘[i]t is unlikely that Buzz Bee’s relationship with Target will ever recover....’ It does not appear, therefore, that an injunction would impact whether Buzz Bee could sell its products through Target in 2015.... ” Id. The Court also noted that “Swimways agreed to offer its FLOOD FORCE line exclusively through Target, which indicates that Swimways will not be sending its allegedly infringing products to other retailers. In addition, Plaintiff has not provided evidence that any retailer has indicated that its willingness to sell Buzz Bee’s products depends on the exclusivity of Buzz Bee’s designs or on Plaintiffs ability to cease Swimways’ production of the FLOOD FORCE line.” Id. Plaintiff simply did not present evidence that irreparable harm was likely absent an injunction.
15. Plaintiff cites several cases that are neither controlling nor apposite to support its argument that “the evidence presented by Buzz Bee supports a finding that irreparable harm is likely.... ” (PI. Br. at 7.) Plaintiff cites Microban Products Co. v. API Indus., Inc., Civ. 14-41, 2014 WL 1856471 (S.D.N.Y. May 8, 2014), in which the plaintiff had various federally registered trademarks. Even though the defendant’s license to use the plaintiffs marks had expired, the defendant continued to use the marks and advertise that its products contained plaintiffs technology. The defendant had “engaged in a campaign of extortion” because it refused to pay the plaintiff for $750,876 worth of plaintiffs products until the plaintiff “agree[d] to extend the Trademark License, at no additional cost, for as long as it takes for [defendant] to sell its inventory-” Id. at *3-*4. The defendant claimed it had an “absolute right to use the [plaintiffs] Marks indefinitely....” Id. at *5. After concluding that the plaintiff had succeeded on the merits, the Microban court held that the plaintiffs “inability to control its Marks for a period of years, coupled with the threatened diminution of reputation and goodwill, as well as [defendant’s avowed intention to continue infringing, demonstrates that it has no adequate remedy at law.” Id.
16. Microban is wholly inapposite from the present case. In Microban, the defen*518dant was using the plaintiffs federally registered marks without the plaintiffs consent, planning to continue doing so for years, and extorting the plaintiff. If anything, Microban supports the Court’s decision in Buzz Bee I because, in Microban, the plaintiffs original motion for a temporary restraining order was denied because the plaintiff “failed to demonstrate that it would suffer irreparable harm during the pendency of its contemplated motion for a preliminary injunction.” Id. at *4. The Mi-croban plaintiff then obtained a permanent injunction after prevailing at the summary judgment stage. In Buzz Bee I, the Court denied Plaintiffs motion and noted that “[i]f Plaintiff believes that it can remedy these deficiencies after discovery is undertaken, Plaintiff is, of course, free to renew its motion.” Buzz Bee I, 20 F.Supp.3d at 514, 2014 WL 2006799, at *25. Microban thus exemplifies a case in which a plaintiffs initial application for equitable relief was denied and, at a later date upon a showing of irreparable harm, the plaintiff obtained injunctive relief. Microban does not support reconsideration of Buzz Bee I.
17. Plaintiff also cites Audemars Piguet Holding S.A. v. Swiss Watch Int’l, Inc., Civ. 12-5423, — F.Supp.3d -, 2014 WL 47465 (S.D.N.Y. Jan. 6, 2014), in which the plaintiff obtained a permanent injunction to protect its registered trade dresses after prevailing at trial. The Audemars plaintiff had presented evidence of, inter alia, advertising campaigns to build its brand, bad faith on the defendant’s part, and actual consumer confusion as to the source of defendant’s infringing products. Such evidence was absent in the instant case.
18. Plaintiff emphasizes Trebro Mfg., Inc. v. Firefly Equip., LLC, 748 F.3d 1159, 1164 (Fed.Cir.2014), in which the Federal Circuit held that the district court abused its discretion in denying a preliminary injunction in a patent infringement case involving sod harvesters. The Federal Circuit held that there was a likelihood of infringement, that the patent was likely valid, and that the plaintiff had presented evidence to show irreparable harm. The irreparable harm evidence included showing that the plaintiff only sold eight harvesters per year, each lost sale represented $50,000 in lost profit, each lost sale could cause one layoff in a company of only 18 employees, the parties were direct competitors in a market that only had three players, each lost sale equated to a lost customer because harvesters are not replaced for many years, the defendant had already sold one of its infringing products to one of the plaintiffs former customers, and the defendant had presold six more harvesters. In the present case, Plaintiff did not present such evidence of the likelihood of irreparable harm.
19. Essentially, Plaintiff cites cases that are not controlling and do not show that the Court made a clear error of fact or law. Plaintiff is re-litigating its previous arguments and citing cases that illustrate the paucity of evidence that Plaintiff originally presented. A motion for reconsideration “should not provide the parties with an opportunity for a second bite at the apple.” Tischio, 16 F.Supp.2d at 532 (quotation omitted). Plaintiffs motion for reconsideration of Buzz Bee I’s irreparable harm holding is denied.
20. Plaintiff also argues that the Court erred in holding that the public interest did not favor an injunction. The Court held that Plaintiff had not shown that consumers were likely to be confused about the sources of Defendants’ and Plaintiffs respective products because, while the products were similar in appearance, Plaintiff had not shown that its trade dresses had any secondary meaning. Plaintiffs reconsideration motion does not *519show that this holding was erroneous in fact or law.
21. Finally, to prevail on a motion for preliminary injunctive relief, “the moving party must demonstrate that each of the following factors favors the requested relief: (1) the likelihood that the moving party will succeed on the merits; (2) the extent to which the moving party will suffer irreparable harm without injunctive relief; (3) the extent to which the nonmoving party will suffer irreparable harm if the injunction is issued; and (4) the public interest.” McNeil Nutritionals, LLC v. Heartland Sweeteners, LLC, 511 F.3d 350, 356-57 (3d Cir.2007) (quotation omitted). In Buzz Bee I, the Court held that Plaintiff had not shown secondary meaning, a likelihood of irreparable harm, or that the public interest favored injunctive relief. Even if one of these holdings was clearly erroneous, which is not the case, Plaintiff certainly has not shown that all of them were and, thus, Buzz Bee I still stands.
22. In Buzz Bee I, the Court noted that Plaintiff could refile its motion if it could remedy the evidentiary deficiencies after discovery. Instead, Plaintiff re-litigated its previous arguments without showing that the Court made any clear errors in fact or law, that there is new evidence, or that there has been an intervening change in controlling law. Plaintiffs motion is denied.
23. An accompanying Order will be entered.
. Plaintiff brought claims against Defendants for federal unfair competition and false desig*490nation of origin; New Jersey statutory unfair competition; New Jersey trademark counterfeiting; common law unfair competition; unjust enrichment; tortious interference with prospective economic advantage; and tor-tious interference with economic advantage. This Court has jurisdiction over Plaintiff's claims pursuant to 28 U.S.C. §§ 1331, 1338, and 1367(a). The claims arising at state law have not been briefed or argued in this motion.
. The KWIK GRIP XL had two variations, one of which is the focus of this lawsuit. (PI. mot. at 6 n. 6.) The other variation was offered in 2008, had minimal sales, and was pulled from the marketplace. (Zimmerman 2nd Decl. ¶ 30.)
. Jim Balam, Swimways' vice president of sales, submitted a declaration supporting Swimways’ opposition to Plaintiffs motion. Balam has been Swimways’ vice president of sales since November 2008. (Balam Decl. ¶ 1.)
. At oral argument, Plaintiff's counsel represented that the lawsuit against FunX was filed on May 12, 2014.
. "New Jersey statutory and common law of unfair competition require essentially the same elements.” Versa Products Co., Inc. v. Bifold Co. (Mfg.) Ltd., 50 F.3d 189, 199 n. 10 (3d Cir.1995).
. Since 2007, 102,684 AVENGER units have been sold and sales totaled $206,352.00. KWIK GRIP XL toys are usually sold in three- or four-packs, and 2,033,223 KWIK GRIP XL units have been sold with total sales of $4,197,858.00. Over 368,000 ARGON units have been sold, and sales total $1,584,000.00. At least 238,000 XENON units have been sold, and sales total $1,561,000.00.
. At oral argument, Plaintiff asserted that the Duraco case was inapposite because the planter at issue was a generic product. A plaintiff asserting trade dress infringement must show either inherent distinctiveness or acquired secondary meaning. The Duraco court created a test for inherent distinctiveness and found that the planter at issue did not satisfy the test. It then examined whether, in lieu of inherent distinctiveness, the plaintiff had shown secondary meaning and held that it had not. The inherent distinctiveness test that the Third Circuit applied is not relevant here because this is a product design case and, after Wal-Mart v. Samara, discussed supra, the plaintiff in a product design test must show secondary meaning.
. Post-sale confusion occurs when, for example, " 'a consumer observes someone wearing a pair of Payless accused shoes and believes that the shoes are Reebok’s. As a consequence, the consumer may attribute any perceived inferior quality of Payless shoes to Reebok, thus damaging Reebok’s reputation and image.’ ” Gucci Am., Inc. v. Daffy’s Inc., 354 F.3d 228, 234 (3d Cir.2003) (quoting Payless Shoesource, Inc. v. Reebok Int’l Ltd., 998 F.2d 985, 989 (Fed.Cir.1993)).
. The Versa court evaluated a permanent injunction issued after a bench trial. Because discovery and trial have not occurred yet here, the Court will not require clear and convincing evidence.
. Furthermore, even if the blogger had been confused, "statements on message boards on the internet do not alone create a substantial likelihood of success on the merits of a likelihood of confusion.” Katiroll Co., Inc. v. Kati Roll & Platters Inc., Civ. 10-3620(GEB), 2011 WL 346502, at *6 (D.N.J. Feb. 1, 2011).
. The Court is mindful that "[t]he dispositive issue is the possibility of consumer confusion as to source....” Freixenet, S.A. v. Admiral Wine & Liquor Co., 731 F.2d 148, 151 (3d Cir.1984). While the Plaintiff has shown that consumers might perceive the Swimways and Buzz Bee products as being the same, Plaintiff has not shown that consumers are likely to be confused as to the source of the products because there is no evidence that consumers consider, care about, or a seek a particular manufacturer or brand of the waterguns at issue in this case. In this case, however, the question of source awareness is best addressed in the secondary meaning analysis.
. Plaintiff cites three post-eBay cases in which this Court cited Opticians and held that "once the likelihood of confusion caused by trademark infringement has been established, the inescapable conclusion is that there was also irreparable injury.... because a likelihood of confusion has been shown, the requirement of irreparable harm has been met.” Coach, Inc. v. Fashion Paradise, LLC, Civ. 10-4888(JBS), 2012 WL 194092, at *9 (D.N.J. Jan. 20, 2012); Coach, Inc. v. Bags & Accessories, Civ. 10-2555(JBS), 2011 WL 1882403, at *9 (D.N.J. May 17, 2011); Coach, Inc. v. Ocean Point Gifts, Civ. 09-4215(JBS), 2010 WL 2521444, at *9 (D.N.J. June 14, 2010) (identical quotation in each case) (citations omitted). Each of those cases involved default judgment and did not discuss eBay’s impact on Opticians. Furthermore, based on the particular facts of those cases, plaintiff Coach Inc. undoubtedly showed a likelihood of irreparable harm.
. The Court will not provide a lengthy recitation of facts in this Opinion and, instead, incorporates by reference Buzz Bee Toys, Inc. v. Swimways Corp., 20 F.Supp.3d 483, Civ. 14-1948 (JBS/KMW), 2014 WL 2006799 (D.N.J. May 15, 2014) (“Buzz Bee I").
. Defendants' opposition also includes many Buzz Bee I quotations, which' the Court will discuss further infra. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217697/ | MEMORANDUM**
Rodney F. Wright appeals pro se the district court’s judgment dismissing for failure to state a claim his action alleging defendants conspired to violate his constitutional rights during his arrest, incarceration, and post-prison supervision which included requiring him to register as a sex offender. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Resnick v. Hayes, 213 F.3d 443, 448 (9th Cir.2000), and we affirm.
The district court properly dismissed Wright’s complaint for failure to state a claim because he failed to allege any facts to support a claim of conspiracy. See Karim-Panahi v. Los Angeles Police Dep't. 839 F.2d 621, 625 (9th Cir.1988).
The district court did not abuse its discretion by dismissing the action without leave to amend because further amendment would have been futile. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.2000) (en banc).
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 9th Cir. R. 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217698/ | MEMORANDUM**
In these consolidated appeals, Henry Matthies, Edward and Shirley Blome, and Jerry and Dianne Burright appeal pro se the district court’s judgment on the pleadings dismissing their consolidated actions challenging the recording of notices of federal tax hens against their property by Tony Nave, the Yellowstone County Recorder. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Brennan v. Southwest Airlines Co., 134 F.3d 1405, 1409, 1412 (9th Cir.1998), and we affirm.
The district court properly denied appellants’ motion to remand to state court because the United States is a party to this action and it involves a federal question. See 28 U.S.C. § 1346(a)(2); TKB Int’l v. United States, 995 F.2d 1460, 1464 (9th Cir.1993) (holding that the requirements for fifing a federal tax lien are a matter of federal law).
The district court properly granted judgment on the pleadings because there was no genuine issue of material fact as to whether the lien notices were valid and properly filed under federal law, notwithstanding the Montana statute upon which appellants rely. See 26 U.S.C. § 6323(f)(3); 26 C.F.R. § 301.6323(f)-1(d); United States v. Polk, 822 F.2d 871, 873 (9th Cir.1987) (citing United States v. Brosnan, 363 U.S. 237, 240, 80 S.Ct. 1108, 4 L.Ed.2d 1192 (1960)).
Appellants’ remaining contentions are unpersuasive.
Appellants’ motion to file a second reply brief is granted. The clerk shall file the reply brief received on April 14, 2003.
AFFIRMED.
The 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. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217699/ | MEMORANDUM**
Raul Pineda-Diaz appeals his guilty-plea conviction and 46-month sentence imposed for illegally reentering the United States following deportation, in violation of 8 U.S.C. § 1326. Pineda-Diaz’s attorney has filed a brief and a motion to withdraw as counsel of record pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Pineda-Diaz has not filed a pro se supplemental brief.
Our review of the Anders brief and our independent review of the record under Penson v. Ohio, 488 U.S. 75, 83, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), disclose no issues requiring further review. Accordingly, counsel’s motion to withdraw is GRANTED and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217700/ | MEMORANDUM**
Alexander Ifeanyi Ijemba, a federal prisoner convicted as part of a conspiracy to import heroin for distribution, appeals the district court’s denial of his motion for new trial. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Ijemba contends the district court improperly denied his motion for new trial, which sought relief based on United States v. Cabrera, 222 F.3d 590, 594 (9th Cir.2000) (recognizing that appeals to racial, ethnic, or religious prejudice during trial *406violate defendant’s Fifth Amendment right to a fair trial). The district court concluded that Ijemba was not entitled to relief under either Federal Rule of Criminal Procedure 33 or Federal Rule of Civil Procedure 60(b), and it lacked jurisdiction to consider the motion as one made under 28 U.S.C. § 2255 because Ijemba had not complied with the requirements of 28 U.S.C. §§ 2244(b)(3)(A) and 2255 for filing a second or successive § 2255 motion. We find no reversible error.
AFFIRMED.1
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.
. All pending motions are denied. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217721/ | JUDGMENT
PER CURIAM.
This CAUSE having been heard and considered, it is ORDERED and ADJUDGED: AFFIRMED. See Fed. Cir. R. 36 | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217722/ | JUDGMENT
PER CURIAM.
This CAUSE having been heard and considered, it is ORDERED and ADJUDGED: AFFIRMED. See Fed. Cir. R. 36 | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217702/ | MEMORANDUM**
Antonio Mendoza-Renteria appeals his guilty-plea conviction and 33-month sentence imposed for illegally reentering the United States following deportation, in violation of 8 U.S.C. § 1326. Mendoza-Renteria’s attorney has filed a brief and a motion to withdraw as counsel of record pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The court has also received two pro se letters from Mendoza-Renteria addressed to the court.
Our review of the Anders brief and the pro se letters, and our independent review of the record under Penson v. Ohio, 488 U.S. 75, 83, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), disclose no issues requiring further review. Accordingly, counsel’s motion to withdraw is GRANTED and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217703/ | MEMORANDUM**
Cesar Rene Rentería-Barragan appeals his guilty-plea conviction and 70-month *408sentence for being an illegal alien found in the United States following deportation, in violation of 8 U.S.C § 1326. Renteria-Barragan’s counsel filed a motion to withdraw as counsel of record and a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Rentería-Barragan has not filed a pro se supplemental brief, and appellee did not file an answering brief. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.
Our review of the Anders brief and our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), does not reveal any arguable issues for appeal. Accordingly, counsel’s motion to withdraw as counsel of record is GRANTED, and the district court’s judgment 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. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217704/ | MEMORANDUM**
Keith Michael Sanderson appeals the sentence of 12-months and one day that the district court imposed following his guilty plea conviction for two counts of importing 46.44 kilograms of marijuana with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 952, and 960. We have jurisdiction under 28 U.S.C. § 1291. We review de novo whether the sentence “was imposed as a result of an incorrect application of the sentencing guidelines.” United States v. Turner, 898 F.2d 705, 708 (9th Cir.1990) (quoting 18 U.S.C. § 3742(e)). The district court’s findings of fact are reviewed for clear error. Id.
Sanderson contends primarily that the district court erred when it denied his request for a downward departure based on a unique combination of circumstances due to his socioeconomic status. See Koon v. United States, 518 U.S. 81, 93, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). We read the record differently. The court was permissibly responding to Sanderson’s arguments, which relied in part on his stable family life and past success.
Sanderson’s remaining contentions are unpersuasive.
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. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217705/ | MEMORANDUM**
Terrill McGee appeals pro se the district court’s summary judgment in favor of McDonald’s Restaurants of California and Ralph’s Grocery Company, in his action alleging, among other things, that defendants violated 18 U.S.C. § 1962 (“RICO”) by participating in a scheme to physically disable McGee by serving him tainted fast food that would induce internal bleeding, and thereby interfere with the development and marketing of McGee’s patented eyewash helmet. McGee separately appealed 1 the district court’s denial of reconsideration, and rejection of McGee’s motion for sanctions against defense counsel. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review summary judgment de novo, Pedrina v. Chun, 97 F.3d 1296, 1300 (9th Cir.1996), denial of reconsideration for abuse of discretion, McCarthy v. Mayo, 827 F.2d 1310, 1314 (9th Cir.1987), and the existence of subject matter jurisdiction de novo, Acura of Bellevue v. Reich, 90 F.3d 1403, 1405-06 (9th Cir.1996). We affirm.
Because the evidence viewed in the light most favorable to McGee shows there are no genuine issues of material fact, the district court did not err in granting summary judgment. See Pedrina, 97 F.3d at 1300-01.
Because McGee failed to demonstrate any basis for relief from judgment, the district court did not abuse its discretion by denying his motion to reconsider. See School Dist. No. 1J, (Multnomah County) v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th Cir.1993).
The district court properly determined it lacked jurisdiction over McGee’s motion for sanctions because the motion related to issues pending before this court in McGee’s appeal from summary judgment. See United States v. Kersting, 891 F.2d 1407, 1413 (9th Cir.1989).
McGee’s requests to supplement the record with additional evidence, for judicial notice, and for appointment of experts, are denied.
McGee’s motion to submit an oversized brief is granted, and the clerk is ordered to file McGee’s supplemental reply brief received on April 25, 2003.
*410We reject McGee’s remaining contentions.
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.
. The three separate appeals were consolidated in this court’s September 13, 2002 order. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217706/ | MEMORANDUM**
California state prisoner Kelvin X. Singleton appeals pro se the district court’s judgment in favor of defendants in his 42 U.S.C. § 1983 action alleging deliberate indifference to his serious medical needs. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, McGuckin v. Smith 974 F.2d 1050, 1059 (9th Cir.1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir.1997), and we affirm.
The district court properly granted summary judgment because Singleton failed to raise a genuine issue of material fact as to whether any of the defendants purposefully ignored or failed to respond to his medical needs. See id. at 1060.
We also conclude that the district court did not abuse its discretion by denying Singleton’s motion for appointment of an expert witness because a medical expert witness would not have helped determine whether defendants acted with a culpable state of mind. See Students of Cal. Sch. for the Blind v. Honig, 736 F.2d 538, 549 (9th Cir.1984), vacated on other grounds, 471 U.S. 148, 105 S.Ct. 1820, 85 L.Ed.2d 114 (1985) (reviewing district court’s decision to appoint an expert witness for abuse of discretion). Furthermore, the district court did not abuse its discretion by denying appointment of counsel because Brown failed to demonstrate exceptional circumstances. See Rand v. Rowland, 113 F.3d 1520,1525 (9th Cir.1997).
Singleton’s motion to file an oversized brief is GRANTED; the Clerk shall file the reply brief received on April 22, 2003.
Singleton’s motion to file supplemental excerpts is DENIED.
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. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217723/ | JUDGMENT
PER CURIAM.
This CAUSE having been heard and considered, it is ORDERED and AD*486JUDGED: AFFIRMED. See Fed. Cir. R. 36 | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217707/ | MEMORANDUM **
Sheri Young McGlothen appeals pro se the district court’s order denying her motion under Fed.R.Civ.P. 60(b) to set aside the judgment in her libel action. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review for abuse of discretion, SEC v. Coldicutt, 258 F.3d 939, 941 (9th Cir.2001), and we affirm because none of the applicable grounds for relief exists, see School Dist. No. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.1993).
We deny appellee’s request for costs and fees without prejudice to the filing of such a motion in accordance with Fed. R.App. P. 38 and Ninth Circuit Rule 39-1.6.
We decline appellee’s request to impose a prefiling review order against McGlothen at the appellate level.
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. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217708/ | *412MEMORANDUM ***
Jose Aceituno Sagastume, a native and citizen of Guatemala, petitions for review of the decision of the Board of Immigration Appeals denying his motion to reopen deportation proceedings to apply for relief under the Convention Against Torture (“CAT”). Because the transitional rules apply, see Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997), we have jurisdiction under 8 U.S.C. § 1105a(a). We grant the petition for review.
The BIA denied Sagastume’s motion for failure to demonstrate prima facie eligibility for relief under the CAT due to the adverse credibility finding made as to his asylum and withholding claims. However, “the BIA cannot deny a motion to reopen without recognizing the proper standard for establishing a prima facie case and giving weight to the relevant country conditions.” Kamalthas v. INS, 251 F.3d 1279 (9th Cir.2001). We vacate and remand for further BIA review.
The decision in Barahona-Gomez v. Ashcroft, 243 F.Supp.2d 1029 (N.D.Cal.2002), does not apply to Sagastume because he never applied for suspension of deportation. Sagastume’s contention that NACARA violates his equal protection rights is without merit. See Jimenez-Angeles v. Ashcroft, 291 F.3d 594, 602-03 (9th Cir.2002), Ram v. INS, 243 F.3d 510, 517 (9th Cir.2001). We decline to entertain Sagastume’s remaining suspension of deportation claims because they were not raised before the BIA. See Khourassany v. INS, 208 F.3d 1096, 1099 (9th Cir.2000).
PETITION FOR REVIEW GRANTED; VACATED AND REMANDED.
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. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217709/ | MEMORANDUM **
Barbara Lehmann appeals pro se the tax court’s order dismissing for failure to prosecute her action seeking to challenge the Commissioner of Internal Revenue’s (“Commissioner”) determination of income tax deficiencies for the tax years 1993 *413through 1997. We have jurisdiction pursuant to 26 U.S.C. § 7482. We review for abuse of discretion, Noli v. Commissioner, 860 F.2d 1521, 1527 (9th Cir.1988), and we affirm.
Lehmann contends the tax court erred in dismissing Lehmann’s petition for failure to prosecute. Lehmann did not respond to the Commissioner’s attempts to engage in discovery. See Larsen v. Commissioner, 765 F.2d 939, 941 (9th Cir.1985) (per curiam) (affirming the tax court’s dismissal of petition under Rule 128 because taxpayer refused to stipulate to facts as required by Rule 91). At trial, Lehmann provided no evidence to sustain her burden of showing the Commissioner’s deficiency determination was incorrect. See Palmer v. United States Internal Revenue Serv., 116 F.3d 1309, 1312 (9th Cir.1997) Accordingly, the tax court did not abuse its discretion in dismissing Lehmann’s petition for failure to prosecute. See Noli 860 F.2d at 1527.
The tax court properly denied Leh-mann’s motion to recuse the tax court judge. See Nobles v. Commissioner, 105 F.3d 436, 438 (9th Cir.1997).
The remainder of Lehmann’s arguments are unpersuasive. The Commissioner can, for federal tax purposes, disregard a trust to determine deficiencies based upon the economic realities of a taxpayer’s situation. See Zmuda v. Commissioner, 731 F.2d 1417, 1420-21 (9th Cir.1984)(“although the taxpayer may structure a transaction so that it satisfies the formal requirements of the Internal Revenue Code, the Commissioner may deny legal effect to a transaction if its sole purpose is to evade taxation.”); see also Neely v. United States, 775 F.2d 1092, 1094-95 (9th Cir.1985). Lehmann’s contention that the trusts were indispensible parties is incorrect because the only issue before the tax court was the amount of Lehmann’s tax liability. See Zmuda, 731 F.2d at 1420-21. Lehmann’s general invocation of the Fifth Amendment cannot shield her from discovery. See Edelson v. Commissioner, 829 F.2d 828, 832 (9th Cir.1987).
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. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217710/ | *414MEMORANDUM ***
Voskan Galstian, a native of Iran and citizen of Armenia, petitions for. review of the order of the Board of Immigration Appeals (“BIA”) denying as untimely his motion to reopen. Because the transitional rules apply, we have jurisdiction under 8 U.S.C. § 1105a(a). See Socop-Gonzalez v. INS, 272 F.3d 1176, 1183 (9th Cir.2001) (en banc). We review the denial of a motion to reopen for an abuse of discretion, and legal issues de novo. Rodriguez-Lariz v. INS, 282 F.3d 1218, 1222 (9th Cir.2002). We grant the petition.
Galstian contends that the BIA should have equitably tolled the deadline for filing a motion to reopen due to the misconduct of his prior attorneys and legal representative. We remand for further evidence and findings on the issue of whether Galstian’s former attorneys engaged in fraudulent or deceptive conduct that would trigger equitable tolling. See Iturribarria v. INS, 321 F.3d 889, 897-98 (9th Cir.2003) (noting that equitable tolling is available in cases of deception, fraud or error); see also Cardenas-Uriarte v. INS, 227 F.3d 1132, 1138 (9th Cir.2000) (noting that the bar on taking additional evidence does not apply where additional information is necessary to determine jurisdiction). Because it is not clear from the record when Galstian retained new counsel and became aware of the harm caused by his prior legal representatives, the BIA shall also determine whether Galstian filed his motion to reopen within 90 days of becoming aware of the harm. See Fajardo v. INS, 300 F.3d 1018, 1022 (9th Cir.2002) (holding that the limitation period on motions to reopen was tolled until petitioner retained new counsel and became aware of the harm resulting from the deceptive actions of her immigration consultants).
If, taking tolling into account, Galstian shows that his motion to reopen was timely, the BIA must determine, in light of the above precedent, whether reopening is warranted based on the ineffective assistance of prior counsel. See Iturribarria, 321 F.3d at 899-902.
PETITION GRANTED, REVERSED and REMANDED.
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. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217711/ | *415MEMORANDUM **
Donnie F. Sehroeder appeals pro se a decision of the tax court sustaining the Commissioner of Internal Revenue’s (“Commissioner”) determination of federal income tax and penalties due for 1995 and 1996. We have jurisdiction pursuant to 26 U.S.C. § 7482(a). We review de novo the tax court’s conclusions of law, and review for clear error its findings of fact. Baizer v. Comm’r, 204 F.3d 1231, 1233-34 (9th Cir.2000). We affirm.
The tax court did not err by finding the Commissioner’s notice of deficiency for tax year 1995 timely. See 26 U.S.C. § 6501(e)(1)(A) (permitting assessment within 6 years where taxpayer omits more than 25 percent of gross income from the return).
The tax court did not err by finding Schroeder’s wages to be taxable income. See Maisano v. United States, 908 F.2d 408, 409 (9th Cir.1990) (per curiam).
The record supports the tax court’s assessment of penalties pursuant to 26 U.S.C. § 6662(a). See Custom Chrome, Inc. v. Comm’r, 217 F.3d 1117, 1127-28 (9th Cir.2000).
Schroeder’s remaining contentions are unpersuasive.
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. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217732/ | ORDER
BRYSON, Circuit Judge.
Conexant Systems, Inc. moves to lift the stay of proceedings in these cases and to voluntarily dismiss its appeal, 00-1520. In 00-1513, counsel of record moves for leave to withdraw as counsel for Klause E. Holtz.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) Conexant’s motions are granted. Each side shall bear its own costs in 00-1520.
(2) The motion for leave to withdraw as counsel is granted. If Holtz intends to obtain new counsel for his appeal, new counsel must enter an appearance within 30 days of the date of filing of this order. If new counsel does not enter an appearance, Holtz may proceed pro se. In either event, Holtz’s brief is due June 30, 2003. If Holtz proceeds pro se, each party may *492file a separate appendix. Fed. Cir. R. 30(e). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217733/ | ORDER
BRYSON, Circuit Judge.
Jacqueline L. Washington-Thomas moves for reconsideration of the court’s order dismissing her petition for review for failure to pay the filing fee and to file a Fed. Cir. R. 15(c) statement concerning discrimination. The Department of Veterans Affairs has not responded.
Washington-Thomas has now paid the filing fee and filed a Fed. Cir. R. 15(c) statement concerning discrimination. Based on these circumstances, the court grants Washington-Thomas’s motion to reinstate her petition for review.
Accordingly,
IT IS ORDERED THAT:
(1) Washington-Thomas’s motion for reconsideration is granted.
(2) The December 16, 2002 dismissal order is vacated, the mandate is recalled, and the petition for review is reinstated.
(8) Washington-Thomas’s brief is due within 30 days of the date of filing of this order. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217734/ | ORDER
The parties having so agreed, it is
*493ORDERED that the proceeding is DISMISSED under Fed. R.App. P. 42(b). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217735/ | ORDER
BRYSON, Circuit Judge.
The court considers whether Nikken USA, Inc.’s appeal and K Mart Corporation’s cross-appeal should be dismissed without prejudice to reinstatement upon completion of K Mart’s bankruptcy proceedings or the lifting of the stay in bankruptcy court.
Upon consideration thereof,
IT IS ORDERED THAT:
The appeals are dismissed with Nikken and K Mart reserving the right to reinstate their appeals on notice to the clerk within 30 days of the completion of K Mart’s bankruptcy proceedings or the lifting of the stay in bankruptcy court, whichever occurs first. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217736/ | ORDER
The appellant having failed to file the brief required by Federal Circuit Rule *49431(a) within the time permitted by the rules, it is
ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217737/ | PER CURIAM.
Appellant Julius Warner Maracalin appeals from a decision of the United States Court of Federal Claims, No. 01-375C, dismissing his complaint on res judicata grounds and for lack of subject matter jurisdiction. We affirm,.
BACKGROUND
On January 18, 1995, a grand jury sitting in the Middle District of Louisiana indicted Mr. Maracalin and charged him with five counts of violating certain federal drug laws. The following day, a federal magistrate judge issued a warrant authorizing a search of Mr. Maracalin’s property. During the night of January 20, 1995, federal and local law enforcement officials arrested Mr. Maracalin and conducted a search of his residence. Mr. Maracalin subsequently moved to suppress the fruits of the search and of his arrest, but the district court denied that motion on May 8, 1995.
On May 12,1995, Mr. Maracalin entered into a plea agreement in which he pleaded guilty to four of the counts with which he was charged and agreed to forfeit certain assets and property that had been seized in connection with his arrest. See 21 U.S.C. §§ 853(a)(l)-(2). Mr. Maracalin was subsequently sentenced to a term in prison of 235 months and a $100,000 fine. In connection with Mr. Maracalin’s conviction, the district court ordered forfeiture of the seized property.
On November 27, 2000, Mr. Maracalin filed a complaint in the Court of Federal Claims, No. 00-715C, alleging various constitutional and statutory violations based on the 1995 search of his residence and the resulting criminal forfeiture. Specifically, he sought readjudication of his original criminal indictment and reversal of his conviction on the ground that the district court had failed to comply with Federal Rule of Criminal Procedure 11(c)(1) when accepting his guilty plea. Mr. Maracalin also requested $2,500,000 in damages due to alleged violations of his Fourth, Fifth, and Fourteenth Amendment rights, including: (1) an illegal search and seizure based on an allegedly faulty warrant; (2) a taking without just compensation; and (3) the alteration of official records pertinent to the case, in violation of 18 U.S.C. § 1506. In addition, Mr. Maracalin asserted various tort theories of recovery, including false imprisonment. After reviewing the complaint, the Court of Federal Claims dismissed the action for lack of subject matter jurisdiction. Mr. Maracalin appealed the dismissal to this court, but we dismissed the appeal on February 15, 2001, for failure to prosecute.
On June 22, 2001, Mr. Maracalin filed the complaint at issue in this case in the Court of Federal Claims. He again requested review of his conviction and alleged that the district court had exercised jurisdiction over his plea agreement, in violation of the Tucker Act, 28 U.S.C. § 1491. In addition, Mr. Maracalin alleged that the search and seizure violated his Fourth and Fifth Amendment rights and that the forfeiture of his property constituted a taking without just compen*496sation under the Fifth Amendment. Mr. Maracalin further alleged that government officials had violated 18 U.S.C. § 1506, and he asserted that they perpetrated various intentional torts upon him. He sought the return of his forfeited property, $100,000,000 in damages, and compensation to his children and his mother of $1,000 per day for each day of his imprisonment.
The United States filed a motion to dismiss, contending that the Court of Federal Claims was without subject matter jurisdiction and that the complaint failed to state a claim upon which relief could be granted. On June 17, 2002, the Court of Federal Claims granted that motion, holding that it did not have subject matter jurisdiction over the claims relating to Mr. Maracalin’s criminal prosecution or his tort claims. The Court of Federal Claims also determined, sua sponte, that Mr. Maraca-lin’s claims were barred under the doctrine of res judicata.
DECISION
Res judicata, or claim preclusion, requires the following: (1) an identity of parties or their privies; (2) an earlier final judgment on the merits of a claim; (3) a second claim that is based on the same set of transactional facts as were raised or could have been raised in the prior action. Int’l Nutrition Co. v. Horphag Research, Ltd., 220 F.3d 1325, 1328 (Fed.Cir.2000). Although neither Mr. Maracalin nor the United States raised the issue of claim preclusion below, the Court of Federal Claims properly considered the issue sua sponte to avoid a possible waste of judicial resources, especially given the strong similarity between the claims presented in each of Mr. Maracalin’s complaints. See Stearn v. Dep’t of the Navy, 280 F.3d 1376, 1380-81 (Fed.Cir.2002) (permitting the dismissal of an action sua sponte for claim preclusion under “special circumstances”); see also Arizona v. California, 530 U.S. 392, 413, 120 S.Ct. 2304, 147 L.Ed.2d 374 (2000).
We agree with the Court of Federal Claims’ determination that Mr. Maracalin’s claims are barred by claim preclusion. There is no question that there is identity of parties in both cases, namely Mr. Maracalin and the United States. In addition, the dismissal by the Court of Federal Claims for lack of jurisdiction was a final judgment. See, e.g., Ponder v. United States, 117 F.3d 549, 553-54 (Fed.Cir. 1997). Further, both cases brought by Mr. Maracalin are based on the facts related to the search and seizure of his property and the subsequent criminal proceedings that resulted in his imprisonment and the forfeiture of his property. Both cases also involve virtually identical claims for federal constitutional and statutory violations and allegations of torts committed upon Mr. Maracalin. Thus, requisite special circumstances for a sua sponte finding of res judicata are present. We therefore uphold the Court of Federal Claims’ decision that Mr. Maracalin’s claims are precluded as a matter of res judicata.
Mr. Maracalin contends that the Court of Federal Claims should have cured any jurisdictional defect in his complaint by transferring any claims over which it did not have subject matter jurisdiction to the appropriate court pursuant to 28 U.S.C. § 1631. However, Mr. Maracalin could have sought relief in the form of a Section 1631 transfer for his nearly identical claims in the previous action or appeal, but he did not. His request for a transfer pursuant to 28 U.S.C. § 1631 is thus precluded. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217738/ | ORDER
The appellant having failed to file the brief required by Federal Circuit Rule 31(a) within the time permitted by the rules, it is
ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217739/ | RADER, Circuit Judge.
Mr. Rigsbee seeks review of the October 1, 2002, decision of the United States Court of Federal Claims in Rigsbee v. United States, No. 98-623 C (Fed.Cl. Oct.1, 2002) (Rigsbee III). The Court of Federal Claims granted a motion for judgment by the United States on the administrative record of a decision of the Army Board for Correction of Military Records (Board). Mr. Rigsbee appeals the Court of Federal Claims decision to this court. Because the Court of Federal Claims properly granted the motion for judgment, this court affirms.
I.
On October 31, 1995, Mr. Rigsbee retired as an Army officer under circumstances that this court summarizes only briefly here. More detailed facts appear in earlier opinions of this court and the Court of Federal Claims, as cited herein. In 1993, the Army filed in Mr. Rigsbee’s Official Military Personnel File an Officer Evaluation Report (OER) that was generally favorable, but placed Mr. Rigsbee “below center mass” in comparison to fellow officers. In May 1993, Mr. Rigsbee was ordered to leave his company command *498position at Fort Bragg to assume duties as Operations Officer at the Pentagon. Mr. Rigsbee applied for promotion to lieutenant colonel in 1994 and 1995, and was twice denied. As a result, Mr. Rigsbee had to choose between retirement or discharge. See 10 U.S.C. § 632(a) (1994). Mr. Rigs-bee retired.
In November 1994, Mr. Rigsbee filed a claim with the Board alleging that the Army removed him as company commander without due process, filed a noncompetitive OER, and improperly denied him promotion to lieutenant colonel. The Board rejected all of Mr. Rigsbee’s claims.
On August 13, 1998, Mr. Rigsbee pursued his case at the Court of Federal Claims. On October 13, 1998, the United States filed a motion to dismiss the ease for failure to state a claim upon which relief can be granted. The Court of Federal Claims ruled that Mr. Rigsbee waived all his claims because he retired voluntarily, and granted the United States’ motion to dismiss the case. Rigsbee v. United States, 46 Fed.Cl. 120, 124-25 (2000) (Rigsbee I). Mr. Rigsbee appealed that decision to this court. This court vacated, holding that the Court of Federal Claims erred as a matter of law in concluding that Mr. Rigsbee retired voluntarily. Because Mr. Rigsbee had retired under 10 U.S.C. § 632(a), his retirement was involuntary under section 632(b), which clearly states “retirement or discharge of an officer pursuant to this section shall be considered to be an involuntary retirement or discharge for purposes of any other provision of law.” Rigsbee v. United States, 226 F.3d 1376, 1380-81 (Fed.Cir.2000) (Rigsbee II). In Rigsbee II, this court remanded the case to the Court of Federal Claims for a decision on the merits based on the administrative record. The Court of Federal Claims granted the United States’ motion for judgment on the administrative record and entered judgment for the United States. Rigsbee III.
Mr. Rigsbee timely appealed to this court, which has jurisdiction pursuant to 28 U.S.C. § 1295(a)(3) (2000).
II.
This court will only reverse a Board decision if arbitrary, capricious, unsupported by substantial evidence, or contrary to law. Porter v. United States, 163 F.3d 1304, 1312 (Fed.Cir.1998). The United States military has unlimited discretion in making personnel decisions, and federal courts cannot review those decisions on the merits; however, federal courts can review “whether the military followed procedures because by their nature the procedures limit the military’s discretion.” Murphy v. United States, 993 F.2d 871, 873 (Fed.Cir. 1993) (“[Jjudicial review is only appropriate where the Secretary’s discretion is limited.”).
In Rigsbee III now on appeal before this court, the Court of Federal Claims found that the Board decision contained no procedural errors, was supported by substantial evidence, and was not arbitrary, capricious, or otherwise unlawful.
This court agrees. Mr. Rigsbee alleged that the Army failed to follow procedure in Army Regulation 600-20, H 2-15, when the Army transferred Mr. Rigsbee out of his company commander position. The Board correctly determined that the Army committed no procedural error, because Army Regulation 600-20, It 2-15, only relates to removal for cause, and Mr. Rigsbee was not removed for cause.
Mr. Rigsbee alleged that the Army failed to follow procedure in Army Regulation 623-105, K 4-27h, when the OER was filed without first notifying Mr. Rigsbee of its contents. The Board correctly determined that the Army committed no proce*499dural error, because Army Regulation 623-105, H4-27h, only applies to reports that are highly derogatory, and the OER was not derogatory.
Mr. Rigsbee alleged that the OER was prepared improperly and was unjust. The Board correctly determined that the Army prepared the OER “in compliance with applicable regulation and policy.” The Board correctly rejected Mr. Rigs-bee’s argument that a later change in the Army’s OER evaluation system is proof that the Army did not comply with regulations in preparing the OER. The Board also correctly rejected Mr. Rigsbee’s argument that his OER was “flagrantly mismanaged” because too many of his competitor officers were ranked in the top block of a two-block ranking system (Mr. Rigs-bee was ranked in the low block). To support this argument, Mr. Rigsbee cites on appeal Richey v. United States, 44 Fed. Cl. 577 (1999), rev’d, 322 F.3d 1317, 2003 WL 1025037 (Fed.Cir. Mar.11, 2003). This court agrees with the United States that Richey is distinguishable because Richey involved an OER with undisputed error while the present case does not.
Finally, the Board correctly denied Mr. Rigsbee’s several motions filed after Rigs-bee II as seeking relief that falls outside the jurisdiction of the Court of Federal Claims or because otherwise inappropriate.
CONCLUSION
The Court of Federal Claims properly granted judgment on the administrative record for the United States. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217740/ | PER CURIAM.
Olen Maffett Pound (“Pound”) appeals from a judgment of the United States Court of Federal Claims dismissing, on res judicata grounds, Pound’s claim that the termination of his lease by the United States Army Corps of Engineers (“Corps”) was a breach of that lease, and dismissing for lack of jurisdiction Pound’s claim that the Corps breached an oral contract concerning the potential transfer of the lease to a third party. Pound v. United States, No. 94-496C (Fed.Cl. Aug.30, 1996) (“Pound I”). Pound also appeals from the subsequent decision by the Court of Federal Claims awarding the government a net recovery of $130,756.86 on its counterclaim for damages resulting from its cleanup and restoration of the property Pound leased. Pound v. United States, 51 Fed. Cl. 712 (2002) (“Pound II’). We affirm, the judgment of the Court of Federal Claims in all respects.
BACKGROUND
Pound assumed a leasehold interest in a marina site on Sardis Lake, Mississippi, in 1970. The lease provided that Pound could not assign it or sublet the premises without the approval of the District Engineer. In November 1989, Pound was convicted of drug trafficking charges and was sentenced to 240 months’ imprisonment.
In 1990, the Contracting Officer revoked Pound’s lease, citing Pound’s conviction and absence from the premises. Pound appealed the officer’s final decision to the Corps of Engineers Board of Contract Appeals (“Board”); however, in December 1990, Pound asked the Board to suspend his appeal during settlement negotiations. *501The Board dismissed the appeal without prejudice on December 20, 1990. In its order, however, the Board stated that “[i]f no action by either party is taken to reinstate the appeal within three (3) years from the date of this Order, the dismissal shall be deemed WITH PREJUDICE.” In re Cole’s Point Marina, ENG BCA No. 5778, slip op. at 1 (Corps Eng’rs Bd. Contract App. Dec. 20, 1990). Pound never reinstated this appeal.
Between December 1990 and February 1992, Pound and the Corps discussed the possibility of transferring Pound’s lease to a third party. In October 1991, Pound provided the Corps with a copy of a written agreement to transfer his lease to two individuals. However, the District Engineer did not approve this proposal.
In May 1992, Pound filed a certified claim for breach of contract against the United States; this claim was denied in its entirety in July 1993. Pound then filed a complaint in the Court of Federal Claims in August 1994. The complaint alleged that the revocation of the lease constituted a breach of contract (“Count I”), that the government had also breached an oral contract to approve the transfer of the lease to an acceptable transferee (“Count II”), and that the Corps had breached the lease by failing to give Pound adequate time to remove his personal property from the premises (“Count III”).
The court dismissed Count I on res judi-cata grounds, because Pound had previously challenged the termination before the Board, and that suit had been dismissed with prejudice. Pound I, slip op. at 10-12. The court also dismissed Count II, holding that Pound argued that the government had an “equitable obligation” to consider proposed transfers, but that “[s]uch an obligation is enforceable, if at all, only as a contract implied in law, and hence this court is not given jurisdiction to consider it.” Id., slip op. at 14. After a subsequent trial on Count III, the court found that the value of the personalty and fixtures that Pound could have removed on adequate notice was $2,050, but that the government was entitled to an offset in the amount of $132,806.86 on its counterclaim for repair and restoration costs. Pound II, 51 Fed. Cl. at 713.
DISCUSSION
Pound makes three arguments on appeal. First, he argues that Count I should not have been dismissed on res judicata grounds, because the dismissal with prejudice was not a judgment on the merits of his claim, and he only failed to reinstate his appeal before the Board on “the ill advice of his attorney.” Pound also argues that the Corps had no valid reasons to reject the proposed transfer of the lease, and the Court of Federal Claims should have found a breach of contract on Count II. Qn Count III, Pound appears not to challenge the factual findings of the Court of Federal Claims, but argues for a new trial because he “was denied the opportunity to be present at [his] trial.”
We review the decision of the Court of Federal Claims for errors of law and for clearly erroneous findings of fact. Banks v. United States, 314 F.3d 1304, 1307 (Fed. Cir.2003).
I
Pound’s contention that a dismissal with prejudice does not function as a decision on the merits for res judicata purposes is incorrect. Such a dismissal does in fact serve to preclude a later suit on the same cause of action. Lawlor v. Nat’l Screen Serv. Corp., 349 U.S. 322, 327, 75 S.Ct. 865, 99 L.Ed. 1122 (1955) (holding that a “judgment dismissing the previous suit ‘with prejudice’ bars a later suit on the *502same cause of action”). Nor is the fact that the first decision on the merits was rendered by an administrative tribunal a bar to the application of res judicata. “We have long favored application of the common-law doctrine[ ] of ... res judicata ... to those determinations of administrative bodies that have attained finality.” Astoria Fed. Savs. and Loan Ass’n v. Solimi-no, 501 U.S. 104, 107, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991); see United States v. Utah Constr. and Mining Co., 384 U.S. 394, 422, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966) (“When an administrative agency is acting in a judicial capacity and resolved disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose.”). Furthermore, Pound’s argument that his attorney was responsible for failing to reinstate his Board appeal is unavailing. It was clear from the Board’s order that the dismissal would be with prejudice if the suit were not reinstated within three years, and Pound is accountable for the acts and omissions of his attorney. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 396, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993) (noting that allowing a party to “avoid the consequences of the acts or omissions of [his] freely selected agent” would be “wholly inconsistent with our system of representative litigation” (quoting Link v. Wabash R.R. Co., 370 U.S. 626, 633-34, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962))).
Pound sought to challenge the Corps’ early termination of his lease in both his dismissed Board action and in Count I of his suit in the Court of Federal Claims. Furthermore, both actions involved the same parties. Accordingly, the Court of Federal Claims did not err in concluding that Pound’s Count I was barred under the doctrine of res judicata.
II
Pound’s suit was based on the Tucker Act, which gives the Court of Federal Claims jurisdiction over, inter alia, any “claim against the United States founded ... upon any express or implied contract with the United States.” 28 U.S.C. § 1491(a)(1) (2000). Pound acknowledges that the contract required the written approval of the District Engineer for any assignment of the lease, and that such approval was never granted; Count II was thus not based on an alleged breach of an express contract. The Supreme Court has held that “[Tucker Act] jurisdiction extends only to contracts either express or implied in fact, and not to claims on contracts implied in law.” Hercules, Inc. v. United States, 516 U.S. 417, 423, 116 S.Ct. 981, 134 L.Ed.2d 47 (1996). A contract implied in law is “a ‘fiction of law1 where ‘a promise is imputed to perform a legal duty.’” Id. at 424, 116 S.Ct. 981 (quoting Baltimore & Ohio R.R. Co. v. United States, 261 U.S. 592, 597, 58 Ct.Cl. 709, 43 S.Ct. 425, 67 L.Ed. 816 (1923)). Pound’s breach of contract argument was, as the Court of Federal Claims held, based on a contract implied in law, because in order to find a breach we would first have to impute to the Corps a legal duty to approve Pound’s proposed transferees. Accordingly, the Court of Federal Claims was without jurisdiction under the Tucker Act to consider this claim, and the court did not err in dismissing it.
III
Finally Pound argues that he was denied an “opportunity to be present at [his] trial.” The Court of Federal Claims found that “during trial, [Pound] made the decision, without objection from the government, to rely, in lieu of his own live testimony, on his June 28, 2001 deposition, *503which was made an exhibit to the trial record.” Pound II, 51 Fed.Cl. at 713 n. 1. It appears from the record that that finding was not clearly erroneous: Pound’s attorney stated at trial that “we agreed ... to allow [Pound’s] deposition that could lead to settlement.” Trial Tr. at 390. The court then stated its understanding that the deposition would be used despite the failure to reach a settlement: “[M]y understanding was that we were going to use the rest of that time to see if the parties could reach settlement. Not having reached settlement, we lost the opportunity to do it, so we are going to use [Pound’s] deposition.” Trial Tr. at 391. Pound is, as noted above, accountable for the acts of his attorneys, Pioneer Investment Services Co., 507 U.S. at 396, and provides no reason why he should be relieved from that accountability.
The judgment of the Court of Federal Claims is affirmed in all respects. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217741/ | PER CURIAM.
Peter Morris (“Appellant”) appeals from the decision of the United States Court of *504Appeals for Veterans Claims affirming the May 23, 2001 decision of the Board of Veterans’ Appeals (“BVA”) that Mr. Morris did not have a valid claim for accrued benefits. Morris v. Principi, No. 01-1668, 2002 WL 1733873 (Vet.App. July 18, 2002). Because we lack jurisdiction' over this appeal, we dismiss.
BACKGROUND
Appellant’s father, Stuyvesant Fish Morris III, was a veteran who served on active duty from August 11, 1941 to December 9, 1946, and died on March 21, 1948. In re Morris, No. 00-18360, slip op. at 3 (BVA May 23, 2001). He was survived by his wife, Mrs. Madeleine W. Morris, and by three sons, two of whom, including Appellant, were minors at the time of his death.1
In April 1948, William S. Pettit, an attorney representing the veteran’s estate, sent a letter to the Treasurer of the United States, requesting information regarding a life insurance policy held by the veteran. Pettit identified the policy by number, and requested that the Treasurer advise him “to whom the policy is payable and the amount thereof’ and send him “forms for proof of death and any other blanks necessary to be filled out by the widow or his children.” The letter was forwarded to the Veterans Administration (“VA”), which then replied directly to Mrs. Morris, notifying her that she and the three sons were the designated beneficiaries of the veteran’s National Service Life Insurance (“NSLI”).2 The letter instructed Mrs. Morris to send information regarding the place and date of the veteran’s death and the names and addresses of the minor children. Id. In a hand-written letter dated May 21, 1948, Mrs. Morris provided the requested information, specifically, her husband’s name; the time, place, and cause of his death; and the names, ages, and addresses of their three sons. Id. at 4.
The VA thereafter sent two letters to Mrs. Morris, both dated June 1, 1948. In one of those letters, the VA provided further instructions for settling the NSLI claim. The letter was accompanied by two forms, which Mrs. Morris apparently completed and returned to the VA. The second letter stated that “[t]he Veterans Administration has learned with regret of the death of the above-named veteran and is taking this opportunity to offer assistance in applying for benefits to which you may be entitled.”3 The letter further explained that:
Under the law now in effect death compensation or pension may be payable to the widow and children of a veteran *505whose death was due to a disease or injury incurred in or aggravated by his active military or naval service. Death pension may also be payable under certain conditions, regardless of the cause of death, to the widow and children of a veteran who rendered service during either the Indian Wars, the Civil War, the War with Spain (including the Philippine Insurrection and the Boxer Rebellion), World War I, or World War II. Pension is not payable in the case of a veteran of World War I or World War II whose death was not due to service if the annual income of a widow or a child exceeds $1,000, or the annual income of a widow with a child or children exceeds $2,500. The filing of a claim does not necessarily mean that the benefits applied for will be allowed, but if you desire to submit an application the enclosed form should be completed in accordance with the instructions printed thereon and returned to this office. You may write to this office or contact any Veterans Administration office for assistance in the preparation of your claim.
As noted, an application form was enclosed with the letter. Despite Mrs. Morris’s being “the widow ... of a veteran who rendered service during ... World War II” and whose death was due to service, the record shows no indication that she responded to the letter or sought any further information or assistance for the next approximately eleven years.
In 1959, Appellant, then 27 years old and working in the insurance industry, apparently realized that he, his brother, and his mother might have been eligible for death compensation or a pension as a result of his father’s death. With Appellant acting as her representative, Mrs. Morris then submitted an application for dependency and indemnity compensation (“DIC”). The application was received by the VA on May 5, 1959, but was initially denied because the VA found no evidence that the veteran’s death was service-related. Mrs. Morris successfully appealed that initial decision, and she was notified in a letter dated January 22, 1960 that her DIC award was approved and made effective retroactive to the May 5, 1959 filing date of the application. Id. at 5. A copy of the January 22, 1960 letter was also furnished to Appellant as his mother’s representative. The letter stated, among other things, that there was a one-year time limit for appealing the award, but neither Appellant nor his mother appealed the effective date or any other aspect of the award. Mrs. Morris received DIC payments until her death in November 1977. Id. at 5-6.
In December 1998, Appellant wrote to U.S. Senator Ben Nighthorse Campbell, questioning the VA’s 1960 decision to make his mother’s DIC award retroactive only to the date she filed for the benefit, rather than to the date of his father’s death. He concluded the letter by asking if anything could be done to recover the difference between the payments his mother had actually received and those that she would have received if the award had been made effective from the date of her husband’s death.
Sen. Campbell made an inquiry at the VA on Appellant’s behalf in February 1999. The VA responded shortly thereafter, explaining that benefits are paid based upon the date of the application. The VA also noted that Appellant was not entitled to retroactive benefits based on his status as a child of the veteran, because he no longer met the criteria for establishing that he is a “dependent child of the veteran” as that term is used in the relevant regulation, 38 C.F.R. § 3.57, and that the regulations in any event also require that the VA receive any claim within one year *506from the date of death, 38 C.F.R. § 3.109. The VA concluded that there were no accrued benefits payable.
Appellant corresponded several more times with the VA over the following year, asserting, among other things, that: (1) widow’s survivorship benefits should have been paid to his mother from the date of his father’s death; and (2) children’s sur-vivorship benefits should have been paid to him and his brother from the time of their father’s death until their eighteenth birthdays. The VA consistently denied Appellant’s claims of entitlement to those benefits, explaining that Mrs. Morris had not submitted an application for benefits until 1959, and that no survivorship benefits had accrued until the VA received that application.4 Moreover, since Appellant and his brother were both over the age of eighteen by the time the application was filed, they were never personally entitled to any benefits.
In July 2000, at Appellant’s request, the VA held a hearing regarding Appellant’s claim to “accrued benefits” for the March 1948 to May 1959 period, and it again concluded that the evidence showed that no benefits had accrued. The VA found, in particular, that the effective date of the DIC award was not appealed within one year of the award notice, and that it was not, in any event, in error. The VA also noted that, even if accrued amounts did exist, the claimant would not have been eligible to receive them because his claim was not filed within one year of his mother’s death in 1977 and he was in any case already over the age of eighteen.
Appellant then appealed to the BVA. In his appeal, Appellant argued that his mother had actually attempted to file a claim for benefits in 1948, but was never given the necessary assistance to complete her claim before 1959. According to Appellant, both Pettit’s April 5, 1948 letter requesting information about the veteran’s NSLI policy, and Mrs. Morris’s May 21, 1948 handwritten letter stating the place and date of the veteran’s death and the names, ages, and addresses of their children, in response to the VA’s requests in connection with the NSLI claim, should have been regarded as a request for DIC benefits, and the dates of those letters should therefore be regarded as the “effective filing date” for the purpose of 38 C.F.R. § 3.400(c)(2). Since those dates were both within a year of the veteran’s death, Appellant argued, the effective date for the award should have been March 1, 1948, i.e., the first day of the month the death occurred. Appellant further argued that he was unaware of the existence of either of those letters prior to February 14, 2000, the date on which he alleges that he received a complete copy of the veteran’s file from the VA, and thus could not have filed an appeal any earlier than he did.
The BVA considered those arguments, but found that, based upon the evidence, *507the VA had not erred in its assignment of May 5, 1959 as the effective date; Mrs. Morris’s failure to appeal the VA’s decision within a year of the January 22, 1960 award letter rendered the decision final; Mrs. Morris’s right to contest the VA decisions concerning her entitlements died with her in 1977; and even if Mrs. Morris had been entitled to accrued benefits at the time of her death for which a child might have had a claim, applications for such benefits must have been filed within one year after the date of death, 38 U.S.C. § 5121(c). In re Morris, slip op. at 9. The BVA accordingly held that Appellant’s claim, filed more than 21 years after his mother’s death and concerning matters that transpired more than 23 years prior to that death, lacks legal merit. Id.
On June 23, 2001, Appellant filed a motion for reconsideration by the BVA. The motion was denied on August 14, 2001, and Appellant timely appealed the BVA’s decision to the Court of Appeals for Veterans Claims. The court issued an order affirming the BVA’s decision on July 18, 2002, holding that Appellant had no valid claim at law for VA accrued benefits. Morris v. Principi, slip op. at 3. The court found that appellant’s claim was untimely because it was not filed within one year of his mother’s death. Id. at 2. The court further observed that even if Appellant had filed within that year and had also been “able to show that his mother was entitled to benefits ‘due and unpaid,’ he would still be ineligible” for benefits because he was not a dependent child at the time of his mother’s death. Id. Appellant subsequently filed a motion for reconsideration. The court denied the motion on August 30, 2002, and Appellant timely appealed to this court.
DISCUSSION
In Forshey v. Principi, 284 F.3d 1335 (Fed.Cir.2002), this court, sitting en banc, held that, pursuant to 38 U.S.C. § 7292(a):
[W]e have jurisdiction to review a decision of the Court of Appeals for Veterans Claims if that review invokes: (1) issues concerning the validity of statutes or regulations on which the Court of Appeals for Veterans Claims depended; (2) issues of interpretation if the Court of Appeals for Veterans Claims elaborated the meaning of a statute or regulation and the decision depended on that interpretation; and (3) issues of validity or interpretation raised before the Court of Appeals for Veterans Claims but not decided, if the decision would have been altered by adopting the position that was urged.
Id. at 1351.5 Our jurisdiction is not plenary, however. Congress has expressly limited the scope of our jurisdiction, providing that:
Except to the extent that an appeal under this chapter presents a constitution*508al issue, the Court of Appeals [for the Federal Circuit] may not review (A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case.
88 U.S.C. § 7292(d)(2) (2000).
In his appeal brief, Appellant explicitly acknowledges that the court’s decision did not “involve the validity or interpretation of a statute or regulation.” He also acknowledges that the court did not “decide constitutional issues.” We agree with both of those statements, and we find as well that the decision did not involve the validity of a decision on a rule of law. Those conclusions decide this appeal, as we do not have jurisdiction to review factual determinations or applications of law to fact.
Appellant makes several arguments in his appeal brief. First, he argues that the court “did not address the very simple issue I have questioned. Namely, our mother’s informal claim for benefits filed within one month of our father’s death.” It is unclear from the way that argument is phrased whether Appellant means that the court did not address whether Mrs. Morris’s handwritten letter constituted an informal claim or if he means that the court did not acknowledge that that letter was filed within one month of his father’s death. Either way, the argument is a purely factual one, and one that was fully resolved below. In particular, the DVA, at page 7 of its opinion, explained that:
The provisions of 38 C.F.R. § 3.155 indicate that an informal claim is any communication or action, indicating an intent to apply for one or more benefits, from a claimant or his or her proxy. The informal claim must identify the benefit sought. Thereafter, if a formal claim has not already been filed, VA must forward one to the claimant for execution. If it is received back by VA within one year from the date it was forwarded by VA, it will be considered filed as of the date of receipt of the informal claim.
In re Morris, slip op. at 7.
The record indicates that the DVA had the handwritten May 21,1948 letter before it during this appeal, and that it made the factual determination that no informal claim was received by the VA prior to May 5, 1959. Id. at 8. We have no authority to review that determination, but observe that, even if the May 21, 1948 letter had been considered to have been an informal claim, it appears that the VA fully discharged its duty by forwarding the formal claim form attached to its June 1, 1948 death compensation/pension letter. As the DVA noted, Mrs. Morris did not return the form within a year of that forwarding, id,., and therefore there could have been no entitlement to the date of the purported informal claim.
Appellant also argues that “the N.Y. V.A. claims officer Powers did not perform his duties as a claims officer to provide our mother the assistance she needed at the time of our father’s death.” Whether or not the claims officer performed his duties is also a purely factual question that is outside of the scope of our review.
Appellant also requests that the court review the arguments that he previously submitted. Among those arguments are: (1) that his mother may have been confused by receiving two letters with the same (ie., June 1, 1948) date; (2) that, insofar as the June 1, 1948 death compensation/pension letter included information relating to wars other than World War II and information regarding income-based eligibility limits for widows and children of veterans whose deaths were not service-connected, his mother might have been dissuaded from filing a claim for the benefits to which she was entitled; and (3) that he did not receive a complete copy of his *509father’s file until 2000, and therefore had no basis upon which to file a claim any earlier. Appellant further notes that “the VA manual states that ‘reasonable doubts should be resolved in favor of the veteran (or his family).’ ” Like Appellant’s other arguments, however, all of those listed above involve factual contentions that are beyond our review.
Lastly, Appellant argues, “it took the VA over two full years to deny my claim, because I am not a minor under the age of 18! Please know that at the time of my father’s death, I was a minor .... and I was entitled to benefits!” That argument is moot now because, as Appellant admits, he is not a minor and, more importantly, he was not a minor at the time when he first sought the benefits to which he now claims entitlement.
We have considered Appellant’s other arguments and find them either unpersuasive or beyond our jurisdiction.
CONCLUSION
Because Appellant has not raised any constitutional issues or challenged the validity of a decision on a rule of law or the validity or interpretation of a statute or regulation, we do not have jurisdiction to review the order. The appeal is therefore dismissed.
. Appellant was born in January 1932, and was therefore sixteen years old at the time of his father’s death. In re Morris, slip op. at 3. His brother Livingston Van Burén Morris was seventeen years old, and his brother Stuyvesant Fish Morris IV was twenty-two.
. A courtesy copy of that letter was also sent to Mr. Pettit. In addition, the VA sent a separate letter to Pettit, with a copy to Mrs. Morris, stating that the law would not permit recognition of an attorney unless the attorney had been admitted to practice before the VA, had filed a power of attorney in the case, and had submitted a signed statement that no fee would be charged or paid for the services rendered. In re Morris, slip op. at 3. Although the letter gave some guidance as to how Pettit could apply for admission, the record does not reflect that Pettit had any subsequent involvement in the present case.
.The last three letters of the word "Administration” and the phrase "has learned ... veteran” in that sentence, as well as an apparently incorrect reference number and date at the top of the letter, were overstruck with a series of "X”s on the record copy of the letter, but the original words are still legible beneath. Appellant regards the overstriking as "important[ ]” in his appeal brief.
. In support of that conclusion, the VA cited 38 C.F.R. § 3.400(c)(2), which provides that the effective date of an award of DIC benefits for a service-connected death after separation from service is the "[f]irst day of the month in which the veteran's death occurred if claim is received within 1 year after the date of death; otherwise, date of receipt of claim.” See also 38 U.S.C. § 5110 (2000) ("(a) Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of ... dependency and indemnity compensation ... shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor .... (d) The effective date of an award of death compensation or dependency and indemnity compensation for which application is received within one year from the date of death shall be the first day of the month in which the death occurred.”).
. On December 6, 2002, after we decided Porshey, the Veterans Benefits Act of 2002, Pub.L. No. 107-330, 116 Stat. 2832, was enacted, which, among other things, amended 38 U.S.C. § 7292(a), effectively expanding this court’s jurisdiction to include decisions "on a rule of law” in addition to decisions concerning the validity or interpretation of a statute or regulation. The amended statute reads:
After a decision of the United States Court of Appeals for Veterans Claims is entered in a case, any party to the case may obtain a review of the decision with respect to the validity of any decision of the Court on a rule or law or of any statute or regulation ... or any interpretation thereof (other than a determination as to a factual matter) that was relied on by the Court in making the decision.
38 U.S.C.A. § 7292(a) (West 2003). Since Appellant does not question the validity of any decision on a rule of law, that amendment does not affect our analysis in this case. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217742/ | PER CURIAM.
Karen P. Auerbach appeals from the final order of the Merit Systems Protection Board, Docket PH-831E-02-0025-I-1, in which the Board affirmed the decision of the Office of Personnel Management (“OPM”) denying her application for disability retirement benefits under the Civil Service Retirement System (“CSRS”). We affirm.
BACKGROUND
Ms. Auerbach, an employee with the United States Postal Service, applied for CSRS disability retirement benefits in 2001, alleging that back problems prevented her from performing her duties. In her application, she stated that she became disabled on October 23, 1990, and that a doctor ordered her to work light duty as of that date. On May 24, 2001, OPM denied Ms. Auerbach’s disability application, concluding that the submitted medical evidence did not demonstrate that her condition was so disabling as to preclude the performance of the essential duties of her position. OPM reviewed medical reports from Dr. Milton A. Wohl, who had evaluated Ms. Auerbach in 1989, and Dr. Ernest E. Cope, III, who had examined her in January 2001. Dr. Wohl had reported that Ms. Auerbach had a “cumulative level of disability, the basis of which is scoliosis, then part of which was the initial [1985] injury (post office), second injury of fall and general activity.” He had stated that “[t]his patient is not totally disabled. This patient is not [sic] partially disabled for any employment not just her current occupation.” He had further reported that “[t]his patient does have a partial disability and should be restricted from any heavy lifting, repetitive bending or twisting in view of her physical status now and in the past.” In his 2001 report, Dr. Cope had diagnosed Ms. Auerbach with chronic low back pain and recommended a physical therapy strengthening program and weight loss.
Ms. Auerbach requested reconsideration of OPM’s initial decision denying her application, but when she did not submit additional medical documentation, OPM upheld its initial decision. OPM reported that Dr. Wohl had found that Ms. Auerbach was not totally disabled and noted that while Ms. Auerbach continued to work until October 1992, she did not provide any medical records from 1992. In its reconsideration decision, OPM stated, “The medical *511documentation provided does not establish that your condition was disabling and precluded you from performing the essential duties of your position.”
Ms. Auerbach appealed OPM’s decision to the Merit Systems Protection Board, which upheld OPM’s decision. The administrative judge assigned to the case affirmed OPM’s decision in an initial decision issued on February 21, 2002, concluding that Ms. Auerbach had failed to establish that she had a disabling condition. The administrative judge reviewed the medical reports and found that neither doctor indicated that Ms. Auerbach was permanently disabled and that there was no evidence after 1989 establishing that she was unable to perform any of her duties. Additionally, the administrative judge considered a 1991 Department of Labor determination, which affirmed the termination of temporary disability benefits related to back problems from a 1985 injury because “her injury related disability had ceased.” This determination relied, in part, on Dr. Wohl’s report. The administrative judge found that the submitted medical records did not show that Ms. Auerbach’s back problems are currently disabling and that she is unable to render useful and efficient service. In light of those findings, the administrative judge concluded that the evidence faded to establish Ms. Auerbach’s entitlement to disability retirement. The full Board denied review on September 20, 2002, and Ms. Auerbach now petitions this court for review.
DISCUSSION
On appeal, Ms. Auerbach argues that the Board erred in failing to overturn OPM’s decision denying her application for disability retirement. Specifically, she points to Dr. Wohl’s report and an October 14, 1999, letter from the Postal Service. She argues that she “was already determined disabled enough that [she] could never return to [her] regular duties by Dr. Wohl. No new evidence should have been required.” Ms. Auerbach contends that the Postal Service letter, which notes that her statement and medical reports indicate that she would not recuperate and that she has been unable to perform her regular duties since December 12, 1992, established that she was disabled. She argues that “[o]nce a person is deemed permanently disabled they are not required to take periodic medical examinations to see if their permanent disability has some how [sic] miraculously disappeared.” She contends OPM acted inappropriately by requiring her to produce other medical opinions.
In cases involving disability retirement claims, the Supreme Court has held that this court’s power of review is limited. Lindahl v. Office of Pers. Mgmt., 470 U.S. 768, 105 S.Ct. 1620, 84 L.Ed.2d 674 (1985). “While the factual underpinnings of § 8847 disability determinations may not be judicially reviewed, such review is available to determine whether there has been a substantial departure from important procedural rights, a misconstruction of the governing legislation, or some like error going to the heart of the administrative determination.” Id. at 791 (internal quotations omitted). See 5 U.S.C. § 8347(c) (OPM “shall determine questions of disability and dependency arising under this subchapter. Except to the extent provided under subsection (d) of this section [providing for Board review], the decisions of the Office concerning these matters are final and conclusive and are not subject to review.”). Accordingly, insofar as Ms. Auerbach challenges the Board’s factual findings, we cannot review the Board’s determination that Ms. Auerbach failed to establish that she had a disabling medical condition.
To the extent that Ms. Auerbach’s argument constitutes an allegation of a substantial departure from important procedural rights or other error going to *512the heart of the administrative determination, we may consider that challenge. However, we reject Ms. Auerbach’s contention that the October 14, 1999, letter establishes that the Postal Service had made a binding determination that she was permanently disabled. The letter, which notes that she had several options for going forward, such as applying for disability retirement or returning to her regular assignment with appropriate medical certifications, is not a conclusive disability determination binding on OPM, nor is it medical evidence establishing a disability. We also reject any argument that it was procedural error for OPM to require current medical reports to support the allegation that she is currently disabled. Accordingly, we conclude that there has been no substantial departure from important procedural rights or like error going to the heart of the administrative determination. Ms. Auerbach has not alleged, nor does the record reflect, that there had been a misconstruction of governing legislation. We therefore affirm the Board’s decision. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217743/ | RADER, Circuit Judge.
Petitioner Freeman A. Doucet, Jr. appeals the final decision of the Merit Systems Protection Board (Board), Freeman A. Doucet, Jr. v. Department of the Navy, Docket No. DC-0752-02-0477-I-1, 93 M.S.P.R. 301 (September 27, 2002), which dismissed Mr. Doucet’s petition for review of the July 16, 2002 initial decision of the administrative judge. The initial decision dismissed Mr. Doucet’s appeal because of the settlement agreement reached between the parties. Because Mr. Doucet knowingly and voluntarily entered into the settlement agreement and does not contest its validity, this court affirms.
*513BACKGROUND
Mr. Doucet was employed as a Military Pay Technician, GS-05, at Camp LeJune, North Carolina under the Personnel Support Activity, Jacksonville, Florida, Department of the Navy (Agency). Based on alleged sexual misconduct, Mr. Doucet was placed on administrative leave on November 8, 2001. After an investigation, LT P.B. Caoile issued a “Proposed Notice of Removal” on February 1, 2002. On March 27, 2002, LT P.B. Caoile issued a “Notice of Removal” after weighing Mr. Doucet’s thirteen years of federal service and three years of successful performance ratings against the seriousness of Mr. Doucet’s offense, which was the third offense involving sexual misconduct within a one-year period. LT P.B. Caoile determined that Mr. Doucet’s return to work at Camp Le-Jeune would be detrimental to team work, morale, and ultimately to unit mission readiness. Mr. Doucet was effectively terminated from Government service on April 6, 2002.
Mr. Doucet appealed his termination to the Board. Following the filing of the appeal, the Agency and Mr. Doucet entered into a settlement agreement dated July 15, 2002. Under the terms of the settlement agreement, the administrative judge issued the initial decision dismissing Mr. Doucet’s appeal. The settlement agreement states that “[t]he Agency and [Mr. Doucet] ... voluntarily enter into this settlement agreement ... in full and final settlement of [Mr. Doucet’s] MSPB appeal.” The settlement agreement also states that the parties “agree to fully comply with its terms and conditions.”
The terms and conditions of the settlement agreement provide that “[t]he Agency will cancel the notice of removal dated 06 April 2002,” and that Mr. Doucet “will, instead, voluntarily resign effective 06 April 2002,” which Mr. Doucet did. The terms and conditions also require Mr. Doucet to “withdraw this MSPB appeal Docket # DC-0752-02-0477-1-1 (with prejudice)” and “not pursue employment with the Personnel Support Activity, Jacksonville, Florida.” Mr. Doucet expressly agreed, within the terms of the settlement agreement, “not to file any other complaints, grievances or appeals against the Agency as to any matter occurring before the date of this settlement.” Finally, Mr. Doucet “expressly waive[d] any and all claims for backpay” and other damages. Just above Mr. Doucet’s signature, affixed on July 12, 2002, the settlement agreement states:
I, Freeman A. Doucet, Jr., have reviewed and understand the terms of the SETTLEMENT AGREEMENT set forth above. I have had the opportunity to discuss this agreement with my attorney. ... I make this decision freely and voluntarily without coercion from anyone .... Pursuant to the terms set forth above, I hereby request that the Board accept my withdrawal of this appeal and make this herein SETTLEMENT AGREEMENT a part of the Board’s record for purposes of enforce-menVcompliance.
In an Order dated August 8, 2002 from the United States District Court for the Eastern District of North Carolina, Southern Division, Mr. Doucet was acquitted of sexual harassment charges. Notwithstanding his agreement to the contrary, Mr. Doucet appealed the initial decision of the administrative judge to the Board. The Board reviewed the record and the administrative judge’s finding that the settlement agreement “is lawful on its face, and appears to have been freely and voluntarily entered into by the parties.” The Board concluded that there was no new, previously unavailable evidence and that the administrative judge made no error in law that affects the outcome, citing 5 *514C.F.R. § 1201.115(d) (2003). Consequently, the Board denied Mr. Doucet’s appeal, making the initial decision of the administrative judge final pursuant to 5 C.F.R. § 1201.113. This appeal followed.
DISCUSSION
This court must affirm any agency action, findings, or conclusions not found to be: (1) arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with the law; (2) obtained without procedure required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence. 5 U.S.C. § 7703(c) (2003); Hayes v. Dep’t of Navy, 727 F.2d 1535, 1537 (Fed.Cir.1984).
Mr. Doucet argues that substantial evidence does not support the Board’s decision because it failed to consider the district court order acquitting him of sexual harassment charges. However, Mr. Dou-cet makes no claim that the settlement agreement, which the Board’s decision was based on, was illegal or otherwise invalid. Rather, Mr. Doucet argues that his acquittal of sexual harassment charges based on the same misconduct alleged in this removal action somehow require his reinstatement.
This court disagrees with Mr. Doucet’s perception of this case. Mr. Doucet’s removal was based on inappropriate sexual misconduct with a coworker. It had nothing to do with the fact that criminal charges were brought against him for that same conduct. This action and Mr. Dou-cet’s criminal case are completely separate matters. Mr. Doucet signed an agreement to dismiss this appeal and promised to not seek employment with the Agency in the future. Amazingly, Mr. Doucet now continues to prosecute his appeal in direct opposition to his agreement without even an allegation that the settlement agreement he knowingly and voluntarily signed is invalid.
This court finds that Mr. Doucet’s acquittal is completely irrelevant to the disposition of this appeal. The evidence of record, particularly the undisputed terms of the settlement agreement, clearly show that the initial decision of the administrative judge was made pursuant to the desires of both parties. The Board correctly found that there was no new, previously unavailable, evidence because only evidence that the settlement agreement was invalid could have any effect on the initial decision. Mr. Doucet clearly has no evidence to that effect.
Therefore, the Board’s decision affirming the initial decision without regard to Mr. Doucet’s acquittal was not arbitrary or capricious, an abuse of discretion, otherwise not in accordance with the law, or obtained without the procedure required by law, rule, or regulation. Accordingly, this court finds that the Board’s final decision is supported by substantial evidence. The final decision of the Board is affirmed. Mr. Doucet’s appeal is dismissed. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217745/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the briefs filed by the parties. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the judgment of the district court be affirmed. Because appellant failed to raise a genuine issue of material fact as to the truthfulness of appellee’s stated, nondiscriminatory reasons for not promoting her to a foreman position, the district court properly granted summary judgment on appellant’s claims of gender and age discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Fischbach v. District of Columbia Department of Corrections, 86 F.3d 1180, 1181-82 (D.C.Cir.1996). Because appellant failed to show any causal relationship between her engagement in a protected activity and an adverse personnel action on the part of appellee, or that appellee failed to take appropriate corrective action in response to her harassment claims, the district court’s grant of summary judgment as to appellant’s claims of retaliation was also proper. See Brown v. Brody, 199 F.3d 446, 452 (D.C.Cir.1999); Curry v. District of Columbia, 195 F.3d 654, 660 (D.C.Cir.1999).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224397/ | MEMORANDUM
EDUARDO C. ROBRENO, District Judge.
Plaintiff Amos Brown, III, brings this pro se medical malpractice action against Defendant Hahnemann University Hospital (“Hahnemann”), alleging that Hahne-mann negligently inserted an intravenous catheter (“IV”) in his arm, causing significant injuries. The parties have filed cross-motions for summary judgment, and, for the reasons that follow, the Court will deny Brown’s motion and grant Hahne-mann’s motion.
I. FACTUAL BACKGROUND
Plaintiff Amos Brown is a state inmate currently being housed at the Liberty Management Services halfway house in Philadelphia, Pennsylvania. On approximately July 23, 2012, Brown reported to Hahnemann’s emergency room with complaints of chest pain. Brown alleges that, during his hospital admission, Hahnemann staff negligently inserted an IV into his arm. He says that the IV caused him pain and discomfort for several hours. Brown reported those symptoms to his nurses, but no changes were made. He was later transported to a lab to receive a CAT scan, at which point a hospital staff member used the IV to administer a contrast solution. Brown’s pain immediately escalated, and the staff member examined the IV and discovered that it was inserted into Brown’s arm'tissue instead of his vein. Brown says that the improper insertion of the IV caused substantial pain, swelling, discoloration of his hand and fingers, and tingling sensations. He further alleges that the hospital staff made no effort to treat his complaints and did not administer any medication prior to his discharge from the hospital that same day. Brown’s hospital discharge summary states that there was “no redness/swelling” at the IV site, but Brown asserts that statement is incorrect. See PL Mot. Summ. J., Ex. 4, Hah-nemann Discharge Summary, ECF No. 33.
The day after his discharge from Hahne-mann, Brown reported to Temple University Hospital (“Temple”) with complaints of pain and swelling at the site of the IV. The doctor’s note from that visit indicates that Brown’s arm did not “look severely swollen or infected,” but the treating physician prescribed Brown an antibiotic and pain medication. See PI. Mot. Summ. J., *541Ex. 1, Temple Univ. Hosp. Discharge Instructions, ECF No. 33. Brown asserts that, since that time, he has continued to experience swelling, pain, and discoloration in his arm and hand.
II. PROCEDURAL HISTORY
Brown initiated this action on August 22, 2012, by filing a request to proceed in forma pauperis. ECF No. 1. That request was granted, and Brown subsequently filed his Complaint, bringing claims of inadequate medical care under the Eighth Amendment and medical malpractice under Pennsylvania state law. ECF No. 5. The Court dismissed Brown’s Eighth Amendment claim with prejudice on January 18, 2013, but it allowed him to proceed on his medical malpractice claim by filing a Certificate of Merit in accordance with Rule 1042.3 of the Pennsylvania Rules of Civil Procedure. ECF No. 13. Rule 1042.3 requires a medical malpractice plaintiff to either provide an expert witness’s statement explaining how the applicable standard of care was breached or certify that such expert testimony is unnecessary under the circumstances. Pa,. R. Civ. P. 1042.3(a).
Brown subsequently filed a Certificate of Merit asserting that expert testimony from a medical professional was unnecessary in his case. ECF No. 14. In his Certificate, Brown also attempted to re-litigate the Eighth Amendment issue. Hahnemann responded to the Certificate, contending that the Court should reject it because the evidence in this case requires expert analysis. ECF No. 18. The Court denied Hahnemann’s request, noting that it lacked the authority to reject a Certificate of Merit on that basis. Order, Mar. 28, 2013, ECF No. 20. Nonetheless, the Court rejected Brown’s Certificate to the extent it sought reconsideration of the earlier order dismissing the Eighth Amendment claim. Id. The case then proceeded to discovery.
On June 26, 2013, Hahnemann filed a motion for summary judgment. ECF No. 26. Soon thereafter, the Court received notification that Brown was being transferred to a different correctional institution, and so it placed the case in suspense pending Brown’s arrival at his ultimate destination. Order, July 31, 2013, ECF No. 28. Brown notified the Court that he was ready to proceed on January 31, 2014 (ECF No. 30), and an appropriate scheduling order was issued (ECF No. 32). Brown then filed a response and counter-motion for summary judgment (ECF No. 33), and each party filed a reply (ECF Nos. 35, 36). Both motions for summary judgment are now ripe for resolution. Brown has also filed motions for the appointment of counsel1 (ECF No. 39) and for the appointment of a private investigator (ECF No. 37).
III. LEGAL STANDARD
Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P.- 56(a). “A motion for summary judgment will not be defeated by ‘the mere existence’ of some disputed facts, but will be' denied when there is a genuine issue of material fact.” Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir.2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A fact is “material” if proof of its existence or nonexistence might affect the outcome of the *542litigation, and a dispute is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505.
The Court will view the facts in the light most favorable to the nonmoving party. “After making all reasonable inferences in the nonmoving party’s favor, there is a genuine issue of material fact if a reasonable jury could find for the nonmoving party.” Pignataro v. Port Auth., 593 F.3d 265, 268 (3d Cir.2010). While the moving party bears the initial burden of showing the absence of a genuine issue of material fact, meeting this obligation shifts the burden to the nonmoving party who must “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 250, 106 S.Ct. 2505.
The guidelines governing summary judgment are identical when addressing cross-motions for summary judgment. See Lawrence v. City of Phila., 527 F.3d 299, 310 (3d Cir.2008). When confronted with cross-motions for summary judgment “[t]he court must rule on each party’s motion on an individual and separate basis, determining, for each side, whether a judgment may be entered in accordance with the Rule 56 standard.” Schlegel v. Life Ins. Co. of N. Am., 269 F.Supp.2d 612, 615 n. 1 (E.D.Pa.2003) (quoting 10A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2720 (1998)).
IV. DISCUSSION
A. Defendant’s Motion for Summary Judgment
Hahnemann argues that it is entitled to summary judgment because Brown cannot establish a prima facie case of medical negligence. Specifically, Hahnemann asserts that expert testimony is needed in order for Brown to show that Hahnemann breached its duty to Brown and that the breach proximately caused his injuries. Because Brown has failed to produce any such expert testimony, Hahnemann contends that his claim cannot succeed as a matter of law.
Under Pennsylvania law, medical malpractice is “broadly defined as the unwarranted departure from generally accepted standards of medical practice resulting in injury to a patient, including all liability-producing conduct arising from the rendition of professional medical services.” Toogood v. Rogal, 573 Pa. 245, 824 A.2d 1140, 1145 (2003). Courts have broken that definition down into the following elements, which parallel the elements of an ordinary negligence action: (1) the physician owed a duty to the patient; (2) the physician breached the duty; (3) the breach was the proximate cause of the harm suffered; and (4) the damages suffered were a direct result of the harm. Hightower-Warren v. Silk, 548 Pa. 459, 698 A.2d 52, 54 (1997). “Because the negligence of a physician encompasses matters not within the ordinary knowledge and experience of laypersons[,] a medical malpractice plaintiff must present expert testimony to establish the applicable standard of care, the deviation from that standard, causation, and the extent of the injury.” Toogood, 824 A.2d at 1145. In other words, the general rule under Pennsylvania law is that expert testimony is required in order for a plaintiff to establish the elements of a prima facie case of medical malpractice.
There is a “very narrow exception” to the expert testimony requirement, however, which applies when “the matter is so simple or the lack of skill or care so obvious as to be within the range of experience and comprehension of even nonprofessional persons.” Id. (quoting Hightow*543er-Warren, 698 A.2d at 54 n. 1). As the Pennsylvania Supreme Court explained in Toogood, that exception must be “carefully limited,” because “to say whether a particular error on the part of a physician reflects negligence demands a complete understanding of the procedure the doctor is performing and the responsibilities upon him at the moment of injury.” Id. at 1149. In other words, it is not enough to establish that a medical provider made a mistake, or that an injury occurred. Medicine is not a perfect science, and unfortunately negative outcomes occur in medical procedures even when the greatest care is taken. Id. at 1147. There is also no requirement that physicians be infallible, “and making a mistake is not negligence as a matter of law.” Id. at 1150. Thus, “to hold a physician liable, the burden is upon the plaintiff to show that the physician failed to employ the requisite degree of care and skill.” Id. A plaintiff can do that without expert testimony only when the physician’s failure is clear even to a nonprofessional. When, as here, both the standard of care and causation are at issue, the defendant’s lack of skill or care and the causal relationship must be obvious. Grossman v. Barke, 868 A.2d 561, 567 (Pa.Super.Ct.2005).
Brown asserts that he has met that standard. He points to the treatment he received at Temple as clear evidence that Hahnemann’s failure to provide any such treatment “fell far below the acceptable professional standard of care required by law.” PL Mot. Summ. J. 6. Put another way, Brown says that, because he was given antibiotics and pain medication the day after the IV was improperly inserted, it is obvious to a layperson that he should have been given those medications during his stay at Hahnemann, and that Hahne-mann’s failure to respond to his concerns constitutes a breach of the standard of care. He also implicitly suggests that the negative outcome itself — that is, Hahne-mann’s failure to properly place the IV — • was clearly the result of medical negligence and clearly caused the injuries he now complains of.
But, contrary to Brown’s assertions, this matter is not so simple as to fall within the very narrow category of cases in which the medical provider’s lack of care or skill is obvious even to a layperson. Here, the evidence shows only that Hahnemann incorrectly inserted an IV and did not prescribe Brown any medication to treat the complained-of pain and swelling. Absent expert testimony, it is unclear whether Hahnemann’s failure to correctly insert the IV was the result of negligence, or whether it was simply an “accidental occurrence” that could have occurred even with proper care. See Toogood, 824 A.2d at 1151 (“[Ejxpert testimony is necessary to prevent a finding of liability for a simple mistake of judgment, failure of treatment, or an accidental occurrence.”). It is also not obvious whether Hahnemann’s reaction to Brown’s complaints of pain was reasonable. Although Brown considered his pain and other symptoms to be severe, it may be that those experiences are typical and would not necessarily have prompted a reasonable physician to administer any medication. Brown’s treatment at Temple the following day does not shed any additional light on that issue. His condition may have changed, prompting a need for treatment that was not apparent the day before. Moreover, the fact that two physicians recommend different courses of action does not — -standing alone — suggest that one of those physicians was negligent.
At base, this case is a classic medical malpractice action, in which a plaintiff claims that an injury he experienced after medical treatment was caused by the negligence of his physician. It is not enough in such cases to show an adverse outcome *544that a later physician deemed serious enough to treat. Rather, a plaintiff must show that the original treating physician “failed to employ the requisite degree of care and skill.” Id. at 1150. Generally speaking, laypeople do not know the skill or care expected of medical professionals in a given situation, nor do they know if an injury or adverse outcome reveals that the requisite level of care was not followed. That is the situation here. Although it may be possible for a nonprofessional to conclude that Brown experienced pain, swelling, and other adverse outcomes because of the IV placed by Hahnemann, it does not necessarily follow that the care he received was substandard in any way. Accordingly, Brown’s situation does not fall within the narrow exception to the general rule that a plaintiff cannot establish a pri-ma facie case without expert testimony. Brown’s medical malpractice claim therefore fails as a matter of law, as he has not offered any expert testimony in support of his claim.
B. Plaintiff’s Motion for Summary Judgment
Because Brown’s claim fails as a matter of law, he has not presented evidence upon which a reasonable factfinder could find in his favor. The Court will therefore deny Brown’s motion for summary judgment.
V. CONCLUSION
For the foregoing reasons, the Court will grant Defendant’s motion for summary judgment, deny Plaintiffs motion for summary judgment, and enter judgment in favor of Defendant and against Plaintiff. An appropriate order follows.
ORDER
AND NOW, this 21st day of May, 2014, for the reasons set forth in the accompanying memorandum, it is hereby ORDERED as follows:
1. Defendant’s Motion for Summary Judgment (ECF No. 26) is GRANTED;
2. Plaintiffs Motion for Summary Judgment (ECF No. 33) is DENIED;
3. Plaintiffs Motion for the Appointment of Counsel (ECF No. 39) is DENIED;2 and
*5454. Plaintiffs Motion for the Appointment of a Private Investigator (ECF No. 87) is DENIED as moot.
The clerk shall mark the case CLOSED. AND IT IS SO ORDERED.
JUDGMENT
AND NOW, this 21st day of May, 2014, it is hereby ORDERED that JUDGMENT is entered in favor of Defendant and against Plaintiff on all counts of the Complaint (ECF No. 5).
AND IT IS SO ORDERED.
. Brown previously filed a motion for appointment of counsel on April 30, 2013, which the Court denied without prejudice because it was unable consider the relevant factors at that early stage in the litigation. See Order, May 1, 2013, ECF No. 25.
. Although "[i]ndigent civil litigants possess neither a constitutional nor a statutory right ■to appointed counsel,” Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir.2002), district courts have the authority to "request” appointed counsel for such litigants. See 28 U.S.C. § 1915(e)(1) (providing that “[t]he court may request an attorney to represent any person unable to afford counsel”). In determining whether to request appointed counsel, district courts are instructed to first assess “the merits of a plaintiffs claim as a threshold matter,” and then consider the following additional factors: (1) plaintiff’s ability to present his case; (2) the difficulty of the legal issues; (3) the degree to which factual investigation will be necessary and plaintiff's ability to pursue investigation; (4) plaintiff’s capacity to retain counsel on his own behalf; (5) the extent to which the case will turn on credibility determinations; and (6) whether the case will require testimony from an expert witness. Powell v. Symons, 680 F.3d 301, 308 n. 5 (3d Cir.2012) (citing Tabron v. Grace, 6 F.3d 147, 153 (3d Cir.1993)). In Tabron, the Third Circuit emphasized the importance of the threshold consideration of the merits of a plaintiff’s claim, noting that “[t]he appointment of counsel should be given serious consideration” only if the claim is not frivolous or malicious and "the pleadings state a prima facie case.” 6 F.3d at 155 (quoting Rayes v. Johnson, 969 F.2d 700, 703 (8th Cir.1992)).
As explained in the accompanying memorandum, Plaintiff here has not stated a prima facie case of medical malpractice. Because he has elected to proceed without seeking expert testimony, Plaintiff cannot — as a matter of law — succeed on his claim. Moreover, even if Plaintiff had attempted to obtain expert testimony, his claim is still highly unlike*545fy to succeed; all of the medical evidence submitted to the Court demonstrates that Plaintiff did not experience redness, swelling, or infection as a result of the misplaced IV. Plaintiff is therefore unlikely to be able to establish a causal relationship between any negligence on the part of Defendant and an injury-in-fact that he incurred. Accordingly, as Plaintiff’s underlying claim does not appear to have any merit, the Court will deny Plaintiff's request for appointed counsel. See Tabron, 6 F.3d at 155 (“[Bjefore the court is justified in exercising its discretion in favor of appointment, it must first appear that the claim has some merit in fact and law.” (alteration in original)). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224398/ | ORDER
GERALD BRUCE LEE, District Judge.,
THIS MATTER is before the Court on Defendants F & B Solutions LLC and Dave Crance’s Motion to Dismiss Plaintiff Blanca Delmi Rodriguez’s Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 7.) This case concerns Plaintiffs allegations that the Defendants violated the Fair Labor Standards Act (“FLSA”) of 1938, as amended, 29 U.S.C. § 201 et seq. by failing to pay her minimum wage and failing to pay her overtime wages.
Plaintiff was employed by Miguel’s Restaurant in Falls Church, Virginia from January 2006 until November 15, 2013. (Doc. 1, at 2-3.) Miguel’s Restaurant is owned by Defendant F & B Solutions, LLC which in turn is owned by Defendant Dave Crance who was actively involved in supervising Plaintiff. (Id. at 2.) Plaintiffs work involved “ordering food and supplies, preparing food, cleaning the restaurant, serving customers, booking sales of group banquet packages, cashiering, and general day-to-day operation and function of the restaurant.” (Id. at 3-4.) Plaintiff alleges that “at all or nearly all times during her employment” she worked more than 40 hours per week. (Id.) Plaintiff alleges that Defendants failed to properly compensate her for her overtime work (one-and-one half times the regular rate) as evidenced by the fact that she was paid a bi-weekly fixed amount regardless of the number of hours actually worked. (Id.) Additionally, she alleges that “for many or all of Plaintiffs employment the fixed payment that she received divided by the number of hours she worked yielded an hourly rate of pay of less than the minimum wage.” (Id.) Plaintiff avers at all times during her employment, Defendants knew how many hours they required and/or “suffered or permitted” Plaintiff to work and that Defendants’ actions were willful and intentional and in bad faith. (Id. at 4-6.)
On March 24, 2014, Defendants filed a Motion to Dismiss arguing that Plaintiff has failed to state a claim for which relief can be granted because “Plaintiffs Complaint consists of ‘threadbare recitals of the elements’ of a FLSA cause of action with ‘conclusory statements’ with little to no factual support.” (Doc. 8, at 2.) On April 7, 2014, Plaintiff filed an opposition to Defendants’ Motion urging that she had provided “specific facts to support her claim and easily makes the plausibility showing[.]” (Doc. 13.) Defendants did not file a reply to Plaintiffs Opposition. The Court heard oral argument on April 25,2014. (Doc.16.)
I. Standard of Review
A motion to dismiss under 12(b)(6) should be granted unless an adequately stated claim is “supported by showing any set of facts consistent with the allegations in the complaint.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563, 127 S.Ct. *5471955, 167 L.Ed.2d 929 (2007) (internal citations omitted); see Fed.R.Civ.P. 12(b)(6). “A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotations and citations omitted). A complaint is also insufficient if it relies upon “naked assertions devoid of further enhancement.” Id.
In order to survive a Rule 12(b)(6) motion to dismiss, a complaint must set forth “a claim for relief that is plausible on its face.” Id. A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. In considering a Rule 12(b)(6) motion, the court must construe the complaint in the light most favorable to the plaintiff, read the complaint as a whole, and take the facts asserted therein as true. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993).
“Conelusory allegations regarding the legal effect of the facts alleged” need not be accepted. Labram v. Havel, 43 F.3d 918, 921 (4th Cir.1995). Because the central purpose of the complaint is to provide the defendant “fair notice of what the plaintiffs claim is and the grounds upon which it rests,” the plaintiffs legal allegations must be supported by some factual basis sufficient to allow the defendant to prepare a fair response. Twombly, 550 U.S. at 556 n. 3, 127 S.Ct. 1955.
Federal courts across the country have diverged regarding the level of specificity required to be pled in a FLSA claim in order to survive a Rule 12(b)(6) motion to dismiss. See Butler v. DirectSat USA, LLC, 800 F.Supp.2d 662 (D.Md.2011) (finding sufficient a FLSA complaint which stated generally that plaintiff worked in excess of 40 hours, was not compensated for those hours, and employer had knowledge of the lack of overtime compensation for the overtime work); but see Dejesus v. HF Management Services, LLC, 726 F.3d 85 (2d Cir.2013) (holding that complaint stating that plaintiff worked more than 40 hours per week for some or all weeks without being paid 1.5 times her rate of compensation failed to sufficiently develop factual allegations beyond repeating the language of the FLSA statute). In adopting a more lenient approach, the Butler court reasoned that:
There would be little benefit to dismissing this claim, and requiring Plaintiffs to amend to provide an estimate of the number of the overtime hours worked. The existing complaint details the types of work activities that occupied Plaintiffs’ alleged overtime hours and provides Defendants with sufficient notice of the basis of the allegations to form a response. Thus, Plaintiffs have stated a plausible claim for their entitlement to overtime wages.
800 F.Supp.2d at 668.
This Court adopts the more lenient Maryland approach that all a plaintiff is required to plead in order to state a claim for a FLSA violation is “(1) that he worked overtime hours without compensation; and (2) that the employer knew or should have known that he worked overtime but failed to compensate him for it.” Hawkins v. Proctor Auto Serv. Ctr., No. RWT-09-1908, 2010 WL 1346416 *1 (D.Md. Mar. 30, 2010) (citing Davis v. Food Lion, 792 F.2d 1274, 1276 (4th Cir.1986)). The Court notes that a record of the precise number of hours worked is normally in the possession of the employer and as such, can often be obtained through discovery.
II. Ms. Rodriguez’s FLSA Claim
The Court finds that Plaintiff has adequately set forth a plausible claim for *548relief under the FLSA. Specifically, Plaintiff has alleged that for almost the entire period of her employment (January 2006 through November 2013) she has worked in excess of 40 hours per week. In her Complaint, she details the type of work that she performed for Defendants. Additionally, she states that she was not provided overtime compensation at a rate of 1.5 times her normal pay, nor did she receive minimum wage. As such, Plaintiff has provided Defendants “fair notice of what the plaintiffs claim is and the grounds upon which it rests,” such that Defendants are sufficiently prepared to make a fair response. See Twombly, 550 U.S. at 556 n. 3, 127 S.Ct. 1955. As Defendants are the party that would be in possession of Plaintiffs timesheets, it would serve little purpose to require Plaintiff to amend her Complaint to include an estimate of the number of overtime hours she worked when that information will be provided by Defendants during discovery.
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss (Doc. 7) is DENIED.
IT IS SO ORDERED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217746/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the *519brief and supplement thereto filed by appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s judgment dated October 10, 2002, denying appellant’s petition for a writ of mandamus, be affirmed. Mandamus is an “extraordinary remedy to be reserved for extraordinary situations.” Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289, 108 S.Ct. 1138, 99 L.Ed.2d 296 (1988). Appellant did not demonstrate that he had both a “clear and indisputable” right to relief and that “no other adequate means to attain the relief’ exist. In re Sealed Case No. 98-3077, 151 F.3d 1059, 1062-63 & n.4 (D.C.Cir.1998) (citations omitted).
Pursuant to D.C.Cir. Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217747/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the briefs filed by the parties. Appellant Ro-sell appeals from the district court’s dismissal of his claim alleging his employer violated the overtime pay provisions of the Fair Labor Standards Act, 29 U.S.C. § 207(a) (1998). The district court dismissed the claim for lack of subject matter jurisdiction on the ground that appellant failed to exhaust his administrative remedies under the exclusive labor management agreement in place between his employer, the Federal Energy Regulatory Commission, and his union, American Federation of Government Employees, Local No. 421. For the reasons articulated by the district court we agree that Rosell did not comply with the grievance procedures provided by the agreement, as he was required to do under the Civil Service Reform Act, 5 U.S.C. § 7121(a) (1996). Accordingly, it is
Ordered and Adjudged that the judgment of the district court be affirmed.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217748/ | JUDGMENT
PER CURIAM.
Consolidated with No. 02-1222
This cause was considered on a petition for review and cross-application for enforcement of an order of the National Labor Relations Board (“NLRB” or “Board”), and was briefed by counsel. It is
Ordered and Adjudged that the petition for review is hereby denied, and the Board’s cross-application for enforcement is granted. Substantial evidence in the record before the court clearly supports the Board’s findings. Consolidated Delivery & Logistics, Inc. (“Consolidated” or “petitioner”) violated §§ 8(a)(3) and (1) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(3) and (1), by effectively discharging all of the Company’s striking employees and then denying 13 striking employees reinstatement. The Board made specific, well-founded findings that the employees were unlawfully fired (not permanently replaced) for engaging in a protected strike for recognition. Petitioner offers nothing on appeal to seriously challenge the Board’s finding. The NLRB also found that Consolidated denied reinstatement even though it had not permanently replaced the employees. Again, this finding is supported by substantial evidence. Petitioner’s rebanee on Noel Foods v. NLRB, 82 F.3d 1113 (D.C.Cir.1996), is misplaced, for in that case the court found that the employer had arranged for permanent replacements before the employees were discharged.
We owe deference to the Board’s judgment if it is supported by substantial evidence, Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-88, 71 S.Ct. 456, 95 L.Ed. 456 (1951), reflects reasoned decision making, Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 374-75, 118 S.Ct. 818, 139 L.Ed.2d 797 (1998), and it is not otherwise inconsistent with the law, NLRB v. United Food & Commercial Workers Union, 484 U.S. 112, 123, 108 S.Ct. 413, 98 L.Ed.2d 429 (1987). Applying these standards to the record in this case, we find that the Board’s judgment clearly survives review. The remedial orders imposed by the Board are therefore fully justified.
Pursuant to D.C. Circuit Rule 36, this disposition will not be pubbshed. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217750/ | JUDGMENT
PER CURIAM.
This cause was considered on the record from the Securities and Exchange Commission and on the briefs of counsel. It is
ORDERED that the petition for review be denied. Although the petitioners had a constitutional right to withhold the financial disclosure statements required by 17 C.F.R. § 201.410(c) on the basis of an asserted privilege against self-incrimination, the claim of privilege did not relieve the petitioners of their burden of production under the regulation.1 See United States v. Rylander, 460 U.S. 752, 758-61, 103 S.Ct. 1548, 75 L.Ed.2d 521 (1983). Accordingly, the Commission acted neither arbitrarily nor capriciously in drawing an adverse inference-that the petitioners have the funds to pay disgorgement-from their withholding of such financial information. 5 U.S.C. § 706(2)(A); see Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976). Given that federal agencies need not defer civil proceedings pending the outcome of criminal proceedings, United States v. Kordel, 397 U.S. 1, 11, 90 S.Ct. 763, 25 L.Ed.2d 1 (1970); SEC v. Dresser Industries, Inc., 628 F.2d 1368, 1375 (D.C.Cir.1980), the Commission likewise acted neither arbitrarily nor capriciously in denying the petitioners’ request to postpone production of the required financial disclosures, 5 U.S.C. § 706(2)(A).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for re*524hearing or rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
. 17 C.F.R. § 201.410(c) provides as follows: "Financial disclosure statement requirement. Any person who files a petition for review of an initial decision that asserts that person’s inability to pay either disgorgement, interest or a penalty shall file with the opening brief a sworn financial disclosure statement containing the information specified in § 201.630(b)." | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217751/ | JUDGMENT
PER CURIAM.
This petition for review and cross-application for enforcement of a decision and order of the National Labor Relations Board were considered on the briefs and appendix filed by the parties. See Fed. R.App. P. 34(a)(2); D.C.Cir. R. 34(j). For the reasons set forth in the memorandum accompanying this judgment, it is
ORDERED and ADJUDGED that the petition for review be denied and the cross-application for enforcement be granted.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
MEMORANDUM
Petitioner Phoenix Transit System (PTS) seeks review of a National Labor Relations Board (NLRB) decision that PTS committed unfair labor practices by ordering employees not to discuss a sexual harassment case and later discharging an employee, Charles Weigand, for violating *525that directive. Two issues are presented: whether the Board abused its discretion by not deferring to an arbitrator’s decision upholding Weigand’s discharge, and whether the Board’s unfair labor practice findings were supported by substantial evidence.
The Board has “considerable discretion in deciding whether to defer to an arbitration decision,” but must follow the standards of deference found in its own case law, American Freight Sys., Inc. v. NLRB, 722 F.2d 828, 882 (D.C.Cir.1983). In this case, the Board’s refusal to defer was consistent with its established standards because the “unfair labor practice issue before the Board” was not “both presented to and considered by the arbitrator.” Id. at 831. The arbitrator assumed the lawfulness of the confidentiality directive and decided only that Weigand’s breach constituted a “major offense” under the contract; he did not consider whether PTS’s confidentiality directive constituted an unfair labor practice.
On the merits, the Board correctly determined that employee discussions of sexual harassment by supervisors, including the discussion in Weigand’s newsletter articles, constitute protected activity under Section 7 of the National Labor Relations Act, 29 U.S.C. § 157. Employees’ right to discuss the terms and conditions of their employment may legitimately be restricted only if their interests are outweighed by an employer’s valid confidentiality interest. See Desert Palace, Inc., 336 NLRB No. 19, *2-*3, 2001 WL 1187951 (2001); Westside Cmty. Mental Health Ctr., Inc., 327 NLRB 661, 666, 1999 WL 94097 (1999). Here, the Board reasonably found that PTS’s directive to the employees — never to talk about the matter, at any time, to anyone, even about their own observations and complaints — was unduly broad, and that PTS’s asserted confidentiality interest was weak. See Westside, 327 NLRB at 666; Mobil Oil Exploration & Producing, 325 NLRB 176, 178, 1997 WL 713342 (1997); All American Gourmet, 292 NLRB 1111, 1130, 1989 WL 223864 (1989); cf. Desert Palace, 336 NLRB No. 19 at *3 (holding that a confidentiality rule was justified to protect witnesses and to preserve evidence in an ongoing investigation that involved threats of violence). PTS’s assertion that the success of its sexual harassment policy depends on confidentiality lacks evidentiary support, and is particularly unconvincing in light of the fact that the confidentiality directive’s effect was to silence sexual harassment witnesses and victims. For this reason, there is no merit to PTS’s contention that the Board’s decision conflicts with the goals of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
Finally, because the language Weigand used in his newsletters was far milder than that which the Supreme Court has held to be protected in other union publications cases, see, e.g., Old Dominion Branch No. 496, National Ass’n of Letter Carriers v. Austin, 418 U.S. 264, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974); Linn v. United Plant Guard Workers of America, Local 114, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966), and because PTS does not challenge the accuracy of Weigand’s statements, much less demonstrate that they constitute “deliberate or reckless untruth,” Linn, 383 U.S. at 63, we reject PTS’s claim that the “offensive” nature of the publications strips them of their protection under the NLRA. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217791/ | Affirmed by unpublished PER CURIAM opinion.
PER CURIAM.
Maury Lee King appeals from the district court’s order dismissing without prejudice his employment discrimination action after King faded to comply with the court’s order that he file a copy of his right-to-sue letter. Because King failed to comply with the court’s unambiguous order, which expressly warned King of the consequences of failing to comply, we find that the district court did not abuse its discretion by dismissing the action. See Ballard v. Carlson, 882 F.2d 93, 95-96 (4th Cir.1989). Accordingly, we affirm the district court’s order. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224399/ | FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
DAVID L. HORAN, United States Magistrate Judge.
This action has been referred to the United States magistrate judge for pretrial management pursuant to 28 U.S.C. § 636(b) and an order of reference. Pending before the Court are Defendants’ Motion to Dismiss, or in the alternative, for Summary Judgment [Dkt. No. 42], Plaintiffs Motion for Summary Judgment on Count Seven: the Final Order is not Supported by Substantial Evidence [Dkt. No. 58], and Defendants’ Motion for Voluntary Remand [Dkt. No. 71]. For the reasons stated herein, Defendants’ Motion for Voluntary Remand should be granted, the Final Order should be remanded for reconsideration in accordance with these findings, conclusions, and recommendation, and the pending Motions to Dismiss and for Summary Judgment should be denied without prejudice as moot.
Background
Plaintiff Frito-Lay, Inc. (“Plaintiff’’ or “Frito-Lay”) is a federal contractor. See Dkt. No. 32 at 4 (¶ 12). As such, it is subject to Executive Order (“E.O.”) 11246 and cannot “discriminate against any employee or applicant for employment” and must “take affirmative action to ensure that applicants are employed” without regard to any discriminatory characteristics. E.O. 11246, § 202(1). In furtherance of this effort, the Department of Labor (“DOL”), which is responsible for implementing E.O. 11246, see id. § 201, promul*551gated regulations under which its Office of Federal Contract Compliance (“OFCCP”) enforces compliance, see 41 C.F.R. ch. 60. Under the regulations and E.O. 11246, Frito-Lay, as a government contractor, is required to provide OFCCP with access to its books, records, and accounts “for purposes of investigation to ascertain compliance with such rules, regulations, and orders.” 41 C.F.R. § 60-1.4(a)(5); see also E.O. 11246, § 202(5).
On July 13, 2007, OFCCP initiated a compliance review of Frito-Lay’s Dallas Baked facility via a “Scheduling Letter.” See Administrative Record [Dkt. No. 17] (“AR”) at 94-98. In the letter, OFCCP asked Frito-Lay to provide data relating to its hiring practices for January 1, 2006 through June 30, 2007, and Frito-Lay complied. See id. at 97-98; Dkt. No. 32 at 9 (¶ 31). After this initial request, OFCCP requested additional data, going back to July 13, 2005, and for the period of July 13, 2007 through December 31, 2007, and Frito-Lay complied with the request. See AR at 20, 167, 260-61; Dkt. No. 32 at 9 (¶ 32).
Upon analyzing the data it received, OFCCP claimed to find a disparity in the hiring rates of females as compared to males, and, on that basis, on November 10, 2009, OFCCP requested additional post-Scheduling Letter data (“2008 and 2009 data”). See AR at 6. Frito-Lay did not comply with this second request. Id. at 22-23. OFCCP claimed that Frito-Lay’s refusal to provide the 2008 and 2009 data violated E.O. 11246 and the regulations promulgated pursuant to that order as well as Frito-Lay’s contractual obligations to the federal government. See id. at 7.
OFCCP brought an Administrative Complaint against Frito-Lay, seeking an order that Frito-Lay be required to provide the requested information. See id. at 5-10. In its Administrative Complaint, OFCCP described the disparity that prompted the data request as follows:
Relying on the information [Frito-Lay] provided, OFCCP conducted its initial desk audit. The initial analysis of hiring at the Dallas Baked facility for full-time entry level Warehouse/Material Handler positions (“Warehouse”) for the period of June 13, 2006 through December 31, 2007 showed a disparity in the hiring rates of females as compared to males that was statistically significant at 3.26 standard deviations with a shortfall of 9 females.
Id. at 7.
An Administrative Law Judge recommended that a decision be entered in Frito-Lay’s favor and that the Administrative Complaint be dismissed. See id. at 174. On appeal, the Administrative Review Board (“ARB”) disagreed and ruled that Frito-Lay should produce the 2008 and 2009 data. Relying, at least in part, on the representation found in the Administrative Complaint related to the disparity and, by extension, the initial analysis, the ARB concluded that:
We conclude that OFCCP has regulatory authority to request the 2008 and 2009 AAP data in furtherance of its 2007 Desk Audit. First, OFCCP was pursuing a concern about a statistically significant disparity in hiring women, specifically finding a ‘disparity in hiring rates of females as compared to males that was statistically significant at 3.26 standard deviations ... ’ [citing Administrative Complaint, ¶ 12], A statistical showing of two standard deviations has long been accepted as significant in adverse impact analysis.
AR at 353.
Frito-Lay seeks review of this decision in federal court. Defendants filed a motion to dismiss or, in the alternative, for *552summary judgment based on the Administrative Record. See Dkt. No. 42; Dkt. No. 45-1. Plaintiff then filed a motion for leave to obtain discovery, which this Court granted in part. See Dkt. No. 52; Dkt. No. 57. Once this Court ruled on the discovery motion, the parties resumed briefing on Defendants’ motion to dismiss, and Plaintiff filed its own motion for summary judgment. See Dkt. No. 58. Shortly after Plaintiff filed its motion for summary judgment, Defendants informed Plaintiff, and the Court, of their intention to seek limited remand. See Dkt. No. 61.
It appears that Defendants have reviewed the analysis cited in the Administrative Complaint and discovered potential errors in their analysis. More particularly, Defendants admit that, “[tjhough the Administrative Complaint indicated that the analysis showed a disparity in the hiring rates of females as compared to males at 3.26 standard deviations for ‘full-time’ positions, that figure actually applied to a disparity at that level of standard deviation for both full-time and part-time positions.” Dkt. No. 72 at 10; Dkt. No. 72-1 at 4. Plaintiff identified this error in its motion for summary judgment. See Dkt. No. 59 at 26. Plaintiff also identified other alleged errors in the initial analysis, including the scope of the analysis — it represented two warehouses, not one as claimed— and the job titles — both material handlers and packers were covered. See id. at 12. Plaintiff also asserts that Defendants miscounted the total number of applicants, the number of male and female applicants, and the number of new hires for the full-time material handler position at the Dallas Baked Snack facility. See id. at 13. Both parties, then, agree that an error exists, see Dkt. No. 72 at 11, but Plaintiff contends that the scope of the error is larger than Defendants, see Dkt. No. 59 at 12-15.
Defendants argue that the Court should not make a ruling on the pending disposi-tive motions but rather should remand the case to the ARB and allow the ARB to make a re-determination based on a corrected complaint and record. See Dkt. No. 72 at 11. Defendants contend that such a result is both consistent with-well-established principles of administrative law and in the interest of judicial economy. See id. Plaintiff responds that the case should not be remanded because Defendants have not stated legally-supportable grounds for remand, that the Final Order should be vacated, that court-ordered remand would be either arbitrary and capricious or futile, and that remand at this stage would be premature. See Dkt. No. 74.
The undersigned will first address whether remand is appropriate and, if necessary, then address the arguments raised in the dispositive motions.
Legal Standards
Courts have long recognized the propriety of voluntarily remanding a challenged agency action without judicial consideration of the merits* with or without admission of agency error. See Carpenters Indus. Council v. Salazar, 734 F.Supp.2d 126, 132 (D.D.C.2010). In fact, the United States Court of Appeals for the Fifth Circuit has acknowledged, without explicitly adopting, the generally accepted belief that, “in the absence of a specific statutory limitation, an administrative agency has the inherent authority to reconsider its decisions.” Macktal v. Chao, 286 F.3d 822, 825-26 (5th Cir.2002) (citations omitted); see also ConocoPhillips Co. v. United States EPA, 612 F.3d 822, 832 (5th Cir.2010) (“Embedded in an agency’s power to make a decision is its power to reconsider that decision.”).
When an agency action is under review by a federal court, the agency may take one of five positions. See SKF USA, *553Inc. v. United States, 254 F.3d 1022, 1027-28 (Fed.Cir.2001). First, the agency may choose to defend its decision on the grounds previously articulated by the agency. See id. at 1028. Second, it may seek to defend the agency’s decision on grounds not previously articulated by the agency. See id. Third, the agency may seek a remand to reconsider its decision because of intervening events outside of the agency’s control. See id. Fourth, even in the absence of intervening events, the agency may request a remand, without confessing error, to reconsider its previous position. See id. Finally, the agency may request a remand because it believes that its original decision was incorrect on the merits and it wishes to change the result. See id.
Analysis
The true issue with respect to remand is whether voluntary remand is appropriate under the circumstances. While neither party agrees that the instant situation falls squarely within one of the five categories mentioned above, they do agree that Defendants’ position is closest to the fifth category. “Defendants have identified an error in the administrative complaint that is discrete ... [a]nd ... seek to make a correction that may or may not cause the ARB to arrive at a different conclusion.” Dkt. No. 78 at 6.
The undersigned finds the dispute over which of the “categories” Defendants’ position aligns with to be of minimal consequence because no case law seems to indicate, and Plaintiff points to none, that a motion for voluntary remand must be denied if a defendant’s position does not fit neatly into one of the categories. See SKF, 254 F.3d at 1027-28 (“It appears that when an agency action is reviewed by the courts, in general the agency may take one of five positions, though it is possible that there may be remand situations that do not fall neatly into this taxonomy.”); Salazar, 734 F.Supp.2d at 132 (“[Cjourts retain the discretion to remand an agency decision when an agency has raised ‘substantial and legitimate’ concerns in support of remand.” (citations omitted)). Moreover, the undersigned finds that, even if it is not an exact fit, Defendants’ position is very close to the fifth category.
Defendants highlight several principles that they contend support their request for remand. Specifically, Defendants state that courts should remand federal agency matters when (1) it involves a matter that has been placed by statute primarily in agency hands; (2) it is consistent with the principle that “‘embedded in an agency’s power to make a decision is its power to reconsider that decision’ ”; and (3) it promotes judicial economy, such as here, because it permits the relevant agency to reconsider and rectify an erroneous decision without further expending judicial resources. See Dkt. No. 72 at 13-14 (citations omitted). Relying primarily on Ethyl Corp. v. Browner, 989 F.2d 522 (D.C.Cir.1993), Defendants argue that, when the above principles are applied to the instant case, they support remand.
Plaintiff disagrees. It contends that none of the cases on which Defendants rely, including Ethyl Corp., support their position. See Dkt. No. 76 at 13-14. Plaintiff further argues that the three general principles cited by Defendants do not support remand. See id. at 16-20. Plaintiff also argues that the Final Order should be vacated due to the undisputed deficiencies contained therein, that a court-ordered remand would be either arbitrary and capricious or futile, and that remand would be premature at this juncture. See id. at 21-29.
“The reasonableness of an agency’s reconsideration implicates two opposing *554policies: ‘the desireability of finality on one hand and the public’s interest in reaching what, ultimately, appears to be the right result on the other.’ ” Macktal, 286 F.3d at 826 (citations omitted). As a result, an agency’s inherent authority to reconsider its own decision is not unlimited; rather, an agency may not do so if it would be arbitrary, capricious, or an abuse of discretion. See id. (citing 5 U.S.C. § 706(2)(A)). “Reconsideration must also occur within a reasonable time after the first decision, and notice of the agency’s intent must be given to the parties.” Id.
Despite these general guidelines highlighted by the parties in their briefing, there are no hard and fast rules as to when voluntary remand is appropriate. See Toni M. Fine, Agency Requests for “Voluntary ” Remand: A Proposal for the Development of Judicial Standards, 28 ARiz. St. L.J. 1079 (1997). Thus, while it is somewhat clear that granting a voluntary remand is only appropriate when such an action would not be arbitrary and capricious and occurs within a reasonable time, when trying to determine what circumstances warrant such a finding, the lack of guidelines becomes evident.
1. Voluntary Remand Would not he Arbitrary and Capricious.
With respect to whether a voluntary remand would be “arbitrary, capricious, or an abuse of discretion,” courts appear to focus on whether the agency’s request for remand has been made in bad faith. See SKF, 254 F.3d at 1029. An example of bad faith would include an agency’s request for remand that is not based on a confessed error but, rather, on a prospective policy statement that would not bind the agency. See Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344, 349 (D.C.Cir.1998). If an agency’s concern is substantial and legitimate, however, remand is usually appropriate. SKF, 254 F.3d at 1029.
In trying to determine what might constitute a substantial and legitimate concern, a review of relevant case law is instructive. Courts have found reconsideration appropriate where the record demonstrated that the reason for reconsideration was a legitimate concern that the determination “had serious procedural and substantive deficiencies,” see Belville Mining Co. v. United States, 999 F.2d 989, 998 (6th Cir.1993); where new evidence or later-acquired information demonstrated a potential to change the agency’s initial decision, see Ethyl Corp., 989 F.2d at 523-24; Salazar, 734 F.Supp.2d at 134 (finding that, where later-acquired information raised “substantial and' legitimate concerns” about the agency’s findings, “[v]oluntary remand [would] preserve [the] Court’s scarce judicial resources by providing the federal defendants’ the opportunity to ‘cure their own mistakes.’ ”); Sierra Club v. Van Antwerp, 560 F.Supp.2d 21, 24-25 (D.D.C.2008) (finding remand appropriate in light of new evidence because doing so would “serve the interest of allowing [the defendant] to cure its own potential mistake rather than needlessly wasting the Court’s and the parties’ resources”); and where the agency recognizes the merits of the plaintiffs challenges and is forthcoming about the challenges, see Cal. Cmtys. Against Toxics v. United States EPA, 688 F.3d 989, 992 (9th Cir.2012); Citizens Against the Pellissippi Parkway Extension, Inc. v. Mineta, 375 F.3d 412, 416 (6th Cir.2004) (“[W]hen an agency seeks a remand to take further action consistent with correct legal standards, courts should permit such a remand in the absence of apparent or clearly articulated countervailing reasons.”). In reaching these conclusions, courts often rely on the principle of judicial economy, de*555ciding to preserve the court’s scarce judicial resources by providing the federal defendants the opportunity to cure their own mistakes. See Ethyl Corp., 989 F.2d at 523-24; Salazar, 734 F.Supp.2d at 134; Sierra Club, 560 F.Supp.2d at 24-25; Citizens, 375 F.3d at 416.
The situation in the instant case is analogous to the circumstances stated above. Here, the ARB relied on admittedly incorrect evidentiary allegations. Defendants seek to cure their mistake, however, and not waste judicial resources to review a decision with admitted deficiencies and errors. Defendants have been forthcoming about the merits of Plaintiffs challenges and admitted the alleged errors once they were discovered.
To be sure, not all of the cases relied on are directly on point. Some involve the propriety of reconsideration before an appeal was made to the federal court, see Belville Mining, 999 F.2d at 998-99; some involve evidence that was not available at the time of the initial decision, see Ethyl Corp., 989 F.2d at 523; some involve legal defects, see Citizens, 375 F.3d at 416; and some involve procedural errors, see California Cmtys., 688 F.3d at 992. But the themes running throughout are analogous to the instant case.
In the instant case, the evidence, while not new, does not appear to have been considered by the ARB initially for a variety of rea'sons. Defendants did not stall in recognizing the merits of Plaintiffs challenges. To the contrary, Defendants recognized and admitted a deficiency in the findings. To date, there has been no evidence of a pattern of legal tactics to avoid judicial review on Defendants’ part. At bottom, nothing suggests Defendants’ remand request has been made in bad faith.
Plaintiff also suggests that judicial economy will not be served because, after any sort of reconsideration, the parties will find themselves in this same spot. See Dkt. No. 76 at 19-20. But, as Defendants point out, even if Plaintiff prevails on summary judgment, it is likely the case would be remanded. See O’Reilly v. U.S. Army Corps of Eng’rs, 477 F.3d 225, 238-39 (5th Cir.2007) (“As a general rule, when ‘an agency decision is not sustainable on the basis of the administrative record, then ‘the matter should be remanded to [the agency] for further consideration.’ ’ Only in ‘rare circumstances’ is remand for agency reconsideration not the appropriate solution.” (citations omitted)). This is true even taking into consideration Plaintiffs constitutional and other claims. As discussed- more fully below, certain doctrines, such as ripeness, dictate that a proper agency reconsideration should be complete before taking up any constitutional analysis.
In light of all of the above circumstances, the undersigned can see no reason not to remand the case so long as an unreasonable time has not passed.
2. Remand Was Sought Within a Reasonable Time Frame.
Once again, there is no hard and fast rule regarding what constitutes “reasonable time” with respect to voluntary remand. Some courts merely state the rule — that the review must occur in a reasonable time frame — while others state that the time period must be measured in “weeks, not years.” See Macktal, 286 F.3d at 826 (“Reconsideration must ... occur within a reasonable time after the first decision....”); Belville Mining, 999 F.2d at 1000 (“ ‘[a]bsent unusual circumstances, the time period would be measured in weeks, not years.’ ”).
When examining the practical implications, however, it becomes clear that apparently no true rules exist. Of course, in *556those instances in which many years have passed, the courts will find that a reconsideration is not timely, see Gabbs Exploration Co. v. Udall, 315 F.2d 37, 41 (D.C.Cir.1963) (27 years unreasonable); Umpleby v. Udall, 285 F.Supp. 25, 28 (D.Colo.1968) (20 years unreasonable); Aubre v. United States, 40 Fed.Cl. 371, 376-77 (1998) (6 and 14 years unreasonable), and, when only a few days, up to one month, have passed, reconsideration is timely, see Klein v. Peterson, Civ. A. No. 87-2661, 1988 WL 36331, at *1 (D.D.C. Mar. 31, 1988) (three days reasonable); Macktal, 286 F.3d at 826 (approximately thirty-day period reasonable).
The time periods in between, however, are much less clear. Courts have tried to create factors to examine when determining whether an agency reconsideration request was timely, including the following: (1) the complexity of the decision; (2) whether the decision was factually or legally based; (3) whether the agency acted according to its general procedures for review; (4) whether the express time limit for appeals set forth in the regulations had run; (5) whether legally cognizable property interests had arisen through the initial decision; (6) whether the plaintiff had acted in reliance on the initial decision; (7) whether the agency had attempted to use a pretext to justify reconsideration; and (8) the probable impact of an erroneous agency decision absent reconsideration. See Belville Mining, 999 F.2d at 1001. But, a review of cases addressing the issue reveals that, even considering these factors, a reasonable time has no real limits. Federal courts have rejected periods of five months, Rosebud Sioux Tribe v. Gover, 104 F.Supp.2d 1194, 1202 (D.S.D.2000), rev’d on other grounds sub nom. Rosebud Sioux Tribe v. McDivitt, 286 F.3d 1031 (8th Cir.2002), and nine months, see Prieto v. United States, 655 F.Supp. 1187, 1192 (D.D.C.1987), as unreasonable, yet upheld eight months, see Belville Mining, 999 F.2d at 1001-02, as reasonable. Oddly, two years has been held to be both reasonable, see Crager v. United States, 25 Cl.Ct.400, 403-04, 411 (1992), and unreasonable, see Gratehouse v. United States, 512 F.2d 1104, 1110 (Ct.Cl.1975). And, while one year, see C.J. Langenfelder & Son, Inc. v. United States, 341 F.2d 600, 604 (Ct.Cl.1965) and three years, see Cabo Distrib. Co. v. Brady, 821 F.Supp. 601, 613 (N.D.Cal.1992), have been held unreasonable, four-and-a-half years, see Elkem Metals Co. v. United States, 193 F.Supp.2d 1314, 1322-23 (Ct.Int’l Trade 2002), has been deemed acceptable.
The only guideline to be gleaned from the cases is that courts analyze the facts of each case in an effort to reach an equitable outcome.
Here, the Court finds the amount of time that has passed — 20 months (not quite two years) — to be reasonable, in light of the circumstances of the instant case and the factors referenced in Belville Mining. Once Defendants became aware of the error, they moved to remand the case. See Macktal, 286 F.3d at 826 (taking into account the fact that the agency acted promptly once it became of aware of its decision to reconsider and gave notice to the parties). Thus, while the period of time that elapsed between the ARB’s findings and now is substantial, it is not unreasonable. See Elkem Metals Co., 193 F.Supp.2d at 1322-23. Moreover, there has been no indication that Defendants failed, or delayed, to inform Plaintiff of the potential error, or their intention to seek remand, once it became known to them. See Dkt. No. 61.
Plaintiff argues that, because the “ARB has ‘adopted principles employed by federal courts under Rule 40 of the Federal Rules of Appellate Procedure and Rules 59 *557and 60 of the Federal Rules of Civil,’ ” the time for voluntary remand and reconsideration has passed. See Dkt. No. 76 at 17-18. But, as demonstrated by the case law above, and by the fact that these rules have different deadlines, these are guiding principles and not hard and fast rules. Rather, the rule is what is reasonable, which depends on the circumstances of each case.
3. Vacatur is Not Appropriate Under the Circumstances.
Plaintiff requests that the Final Order be set aside. The undersigned concludes that Defendant’s Motion for Voluntary Remand should be granted, without addressing the merits of the Final Order. Without a finding that the Final Order is arbitrary and capricious, or otherwise unlawful, a ruling vacating or setting aside the Final Order is premature. Indeed, “this Court is not persuaded that it has the authority to order vacatur of the [Final Order] without an independent determination that [Defendants’] action was not in accordance with the law.” Salazar, 734 F.Supp.2d at 135 (citing 5 U.S.C. § 706(2) (directing a reviewing court to hold unlawful and set aside agency action, findings, and conclusions that it finds to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law)). And the undersigned is persuaded that, because Defendants concede that the foundation of the Final Order must be reexamined, the Court should not consider how it would rule if the record that was before the ARB were different from what it actually was.
Vacatur is rarely mentioned in cases granting a motion for voluntary remand. See, e.g., SKF, 254 F.3d at 1030; Ethyl Corp., 989 F.2d at 524. The courts in those cases may, however, remand with instructions and restrictions on what the reviewing body is to reconsider. See, e.g., SKF, 254 F.3d at 1030; Ethyl Corp., 989 F.2d at 524.
The undersigned finds those cases on voluntary remand, without vacatur, instructive. The undersigned recommends that the Court remand the case for the limited purpose of examining the alleged error related to the allegation that the “disparity in the hiring rates of females as compared to males that was statistically significant at 3.26 standard deviations.” See Dkt. No. 17-5 at 101. The ARB relied on that allegation in deciding to order Plaintiff to produce the contested information, and the parties agree that the allegation, as stated, is incorrect. The Court should order that, on remand, the reviewing board is only to reconsider this allegation and surrounding facts.
Plaintiff also argues that any finding on remand would be arbitrary and capricious as a matter of law because a raw data analysis can never support a finding of discrimination. See Dkt. No. 76 at 23. Such a finding would be premature. The Final Order related only to whether additional discovery was permissible. It is based on this evidence that the agency will make an ultimate finding regarding discrimination. At that point, the finding of discrimination — if one is made — would be open for attack if it is not supported by substantial evidence, including the raw data analysis.
As for Plaintiffs arguments that any attempts to reopen the record are inappropriate, there is nothing to indicate that 41 C.F.R. § 60-30.29 operates to close the record when a remand for reconsideration of part of the record has been ordered. And the undersigned cannot fathom that such an outcome was intended.
For all of the above reasons, the undersigned concludes that the Final Order should not be set aside or vacated at this *558juncture. But, as the parties agreed during the December 18, 2013 telephone status conference, the Court will lose jurisdiction over this matter when the remand is ordered, and the case should then be closed.
4. Remand is not Premature.
Plaintiff also argues that remand would be premature because Plaintiff raised a “constitutional challenge to the authority of the DOL to create an administrative trial system that adjudicates claims against government contractors and awards injunctive and other relief.” Dkt. No. 76 at 25. Plaintiff contends that, because these claims are pending before the Court, any remand that invokes the “challenged scheme” would be premature and inappropriate. See id. at 26. The undersigned does not agree.
As an initial matter, to the extent that the constitutional claims alleged by Plaintiff relate to the ARB’s reliance on the error, see Dkt. No. 32 at 29, which is the subject of remand, any such claims will be mooted by the remand.
In support of its argument, Plaintiff points only to Defendants’ Reply Brief filed in support of their Motion to Dismiss, contending that Defendants failed to explain how the procedure was not unconstitutional. See Dkt. No. 76 at 26-29. Unacknowledged by Plaintiff, however, is the issue of ripeness and its effect on Plaintiffs claims.
In light of the remand that the undersigned recommends, any claims that the procedure undertaken by OFCCP and the DOL was unconstitutional will not yet be ripe. “The ripeness doctrine is drawn both from Article III limitations on judicial power and from discretionary policies against deciding hypothetical cases.” Ash Creek Mining Co. v. Lujan, 934 F.2d 240, 243 (10th Cir.1991). A basic purpose of the doctrine “ ‘is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.’” See id. (quoting Pacific Gas & Elec. Co. v. Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 200, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983) (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967))). Thus, before a court may review an agency decision, it must evaluate “the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” See id. (citations omitted). An issue is fit for judicial review if the agency rule is final and not dependent on future uncertainties. See Traficanti v. United States, 227 F.3d 170, 176 n. 2 (4th Cir.2000).
Here, the agency ruling is not yet final insofar as it is remanded for reconsideration of a limited portion of the Final Order. Moreover, future uncertainties exist because there is no guarantee what OFCCP and the DOL’s decisions will ultimately be. Defendants could decide not to pursue their investigation on remand. When the administrative agency has not completed its review, it is prudent to wait until the review is complete to avoid piecemeal appeals. See Tex. Office of Pub. Util. Counsel v. FCC, 183 F.3d 393, 430 (5th Cir.1999).
Considering this case law, the undersigned concludes that Plaintiffs constitutional challenge is unripe for judicial review because, in light of the recommended remand, Plaintiff cannot prove that the ruling is final and not dependent on future *559uncertainties. In light of the above, the Court should dismiss Plaintiffs remaining claims without prejudice to them being refiled, if appropriate, at a later date.
Recommendation
For the reasons stated herein, the Defendants’ Motion for Voluntary Remand [Dkt. No. 71] should be granted, and the Final Order should be remanded for reconsideration in accordance with these findings, conclusions, and recommendation. Defendants’ Motion to Dismiss, or in the alternative, for Summary Judgment [Dkt. No. 42] and Plaintiffs Motion for Summary Judgment on Count Seven: the Final Order is not Supported by Substantial Evidence [Dkt. No. 58] should be denied without prejudice in light of the administrative remand, Plaintiffs claims should be dismissed without prejudice, and the case should be closed.
A copy of these findings, conclusions, and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of these findings, conclusions, and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Crv. P. 72(b). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge’s findings, conclusions, and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir.1996). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224400/ | MEMORANDUM OPINION AND ORDER ON MOTION FOR SUMMARY JUDGMENT
PHILIP R. MARTINEZ, District Judge.
On this day, the Court considered Defendants Telemundo El Paso; KTDO Television; ZGS El Paso Television, L.P.; and ZGS Communications, Inc.’s “Motion for Summary Judgment” (ECF No. 36) [hereinafter “Motion”], filed on June 3, 2013; Plaintiff Jose Arango’s “Original Response to Defendants’ Motion for Summary Judgment” (ECF No. 42), filed on July 3, 2013; and Defendants’ “Reply to Plaintiffs Response to Defendants’ Motion for Summary Judgment” (ECF No. 43), filed on July 10, 2013, in the above-captioned cause. The Court granted the Motion on July 30, 2013, and now writes to explain its reasoning.
I. FACTUAL AND PROCEDURAL BACKGROUND
On July 9, 2012, Plaintiff filed suit in the 448th Judicial District Court of El Paso County, Texas. Not. Removal 1, Aug. 17, 2012, ECF No. 1. After Defendants removed the case to the Court, Plaintiff filed his “First Amended Complaint” on October 12, 2012 (ECF No. 10), and his “Second Amended Complaint” on November 21, 2012 (ECF No. 25). Therein, he claims that Defendants violated Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act (“ADEA”) when they terminated his employment. Plaintiff first complained to Defendants about sexual harassment at the workplace in December 2010. Resp. Ex. A, at 7-8.
Plaintiff was employed by Defendants from 1999 through 2011. D.’s Answer & Affirm. Defenses P’s First Am. Compl. 2, Nov. 2, 2011, ECF No. 14. Plaintiff worked as a Master Control Operator for Defendants during this time period. Resp. 2. Prior to 2006, Defendants only issued verbal warnings to employees 'for performance errors. Mot. Summ. J. 5, Ex. 27, at 2. After 2006, Defendants began to document performance errors of their employees. Mot. Summ. J. Ex. 27, at 2. Defendants assert that Plaintiff was “very careless and did not concentrate on his job.” Id. Plaintiff received approximately *562two performance write-ups in 2006 (representing five violations), one performance write-up in 2007 (representing two violations), one performance write-up in 2009 (representing four violations), and two performance write-ups in 2010 (representing five violations). Id. Exs. 1-7, 27.
Plaintiff further asserts that he was subjected to sexual harassment and discrimination in the workplace “due to his age, 54, and his national origin, Mexican.” Pl.’s Second Am. Compl. 4. Plaintiff claims that he was sexually harassed by coworker Santiago Sanchez (“S. Sanchez”) and that this harassment included “verbal harassment, unwanted physical contact, and demands for and consummation of physical acts between Plaintiff and S[.] Sanchez” at the workplace. Id. Plaintiff alleges that the sexual harassment began in early 2006 and ended in December 2010. Resp. Ex. A, at 3. Defendants assert that the sexual relationship between Plaintiff and S. Sanchez was consensual; Plaintiff denies that allegation. Mot. Summ. J. Ex. 27, at 5; Resp. Ex. A, at 3.
In light of the foregoing, Plaintiff complained to Human Resources Director Monic Diaz1 and General Manager Lorena Castaneda in December 2010 after he alleged that S. Sanchez sexually assaulted him. Resp. Ex. A, at 7. Defendants conducted a three-day investigation into Plaintiffs complaint, which included interviews with both Plaintiff and S. Sanchez. Mot. Summ. J. Ex. 28, at 3. Defendants assert that Plaintiff told them that his relationship with S. Sanchez had been consensual at one point, but that it was no longer consensual. Id. Further, Defendants also report that Plaintiff stated during the interview that he did not want S. Sanchez to be fired, but rather that he no longer wished to work contemporaneously with S. Sanchez. Mot. Summ. J. Ex. 27, at 6.
Following the investigation, both Plaintiff and S. Sanchez retained their positions. Mot. Summ. J. Ex. 27, at 6. Defendants claim to have adjusted Plaintiffs shifts after his complaint of harassment so that he and S. Sanchez would not be on duty contemporaneously; however, Plaintiff disputes Defendants’ assertion. Id. After his complaint of sexual harassment, Plaintiff claims that Defendants “began to retaliate against Plaintiff for his having complained about the ongoing sexual harassment by scrutinizing his work performance” and increasing the severity of their discrimination against Plaintiff “due [to his] age, gender, and national origin.” Pl.’s Second Am. Compl. 5. Plaintiff asserts that Defendants began “writing him up for false and contrived performance issues” in retaliation for his complaint of sexual harassment. Id. Following his complaint of sexual harassment, Defendants issued two work-performance notices, representing ten violations, to Plaintiff. Mot. Summ. J. Exs. 17-18. On March 4, 2011, Defendants terminated Plaintiff’s employment based on his history of performance violations. Id. Ex. 27, at 7. Plaintiff thereupon filed this lawsuit.
II. LEGAL STANDARD
A. Summary Judgment
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, a court should grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine dispute of material fact exists only if there are “any genuine factual issues that properly can be *563resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
In a motion for summary judgment, “[t]he moving party bears the initial burden of showing that there is no genuine issue for trial; it may do so by ‘point[ing] out the absence of evidence supporting the nonmoving party’s case.’ ” Nat’l Ass’n of Gov’t Emps. v. City Pub. Serv. Bd., 40 F.3d 698, 712 (5th Cir.1994) (quoting Latimer v. Smithkline & French Labs., 919 F.2d 301, 303 (5th Cir.1990)). If the moving party has satisfied its initial burden, the nonmovant must then come forward with “specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). When a party requests that a court grant its motion for summary judgment, a court “will review the facts drawing all inferences most favorable to the party opposing the motion.” Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir.1986). This burden is not satisfied with “some metaphysical doubt as to the material facts,” Matsushita, 475 U.S. 574, 586, 106 S.Ct. 1348 (1986), by “conclusory allegations,” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 871-73, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990), by “unsubstantiated assertions,” Hopper v. Frank, 16 F.3d 92 (5th Cir.1994), or by only a “scintilla” of evidence, Davis v. Chevron U.S.A., Inc., 14 F.3d 1082 (5th Cir.1994). We resolve factual controversies in favor of the nonmoving party, but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994). A court should not, “in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts.” Id. (citing Lujan, 497 U.S. at 888, 110 S.Ct. 3177).
III. ANALYSIS
A. Title YII
1. Hostile Work Environment
Title VII prohibits discrimination on the basis of race, color, religion, sex, or national origin in federal and private employment. 42 U.S.C. § 2000e et seq. (2006). The creation of a hostile work environment through harassment is a form of discrimination prohibited by Title VII. Vance v. Ball State Univ., — U.S. -, 133 S.Ct. 2434, 2441, 186 L.Ed.2d 565 (2013). To prevail on a hostile-work-environment claim, a plaintiff must prove, among other things, that the harassment was based on his membership in a protected class. See Septimus v. Univ. of Houston, 399 F.3d 601, 611 (5th Cir.2005) (citing Green v. Admin. of the Tulane Educ. Fund, 284 F.3d 642, 655 (5th Cir.2002); Woods v. Delta Beverage Grp., 274 F.3d 295, 298-99 (5th Cir.2001)).
Plaintiff alleges that harassment based on his age, gender, and national origin created a hostile work environment in violation of Title VII. PL’s Second Am. Compl. 4. However, Plaintiffs support for this claim consists only of conclusory statements that he was the victim of national-origin discrimination and that S. Sanchez “committed ... gender discrimination ... and discrimination over [his] national origin, culture and age.” Resp. Ex. A, at 15. Plaintiff also states the following:
[S. Sanchez] created a hostile work environment for me and his behavior towards me constituted discrimination based on my age and national origin because of these cultural factors and my age. I knew that at my age, should I lose my job, it would be very difficult to *564get same or similar employment. I was constantly, deliberately, and systematically harassed, assaulted, and discriminated at work due to my gender, national origin and ethnicity, and age.
Id. While Plaintiff repeatedly employs terminology that arguably has legal significance, he fails to “designate ‘specific facts showing that there is a genuine issue for trial.’ ” Provident Life & Accident Ins. Co. v. Goel, 274 F.3d 984, 991 (5th Cir.2001) (emphasis added) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). In fact, the record is totally devoid of any evidence that suggests that age, gender, or national origin affected Plaintiffs work environment.2 Thus, as there is no evidence that any harassment directed toward Plaintiff was based on his membership in a protected class, the Court finds that Plaintiffs hostile-work-environment claim cannot survive summary judgment.
2. Supervisor Liability
An employer can also be held vicariously liable under Title VII for workplace harassment by its employees. The standard for such liability rests on the status of the harasser. Vance, 133 S.Ct. at 2439. If the harassing employee is a coworker of the victim, the employer is only liable if it was “negligent in controlling working conditions.” Id. If, however, the harassing employee is the supervisor of the victim and the harassment results in
a tangible employment action, the employer can be held strictly liable. Id. An employee qualifies as a supervisor only when the employer has “empowered that employee to take tangible employment actions against the victim, ie., to effect a ‘significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.’ ” Id. at 2443 (quoting Burlington Indus, v. El-lerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)). By narrowing the inquiry to whether the employee is empowered to take tangible employment actions, the Court in Vance stated that the issue “can very often be resolved as a matter of law before trial.” Id. at 2450.
Plaintiff argues that Defendants are liable for the harassment by S. Sanchez because S. Sanchez sometimes served as Plaintiffs supervisor.3 Resp. 2-3. In his affidavit, Plaintiff asserts that when supervisor Yessika Sanchez (‘Y. Sanchez”) was not present, S. Sanchez “would serve in a supervisory position.” Resp. Ex. A, at 3. He alleges that S. Sanchez would perform Y. Sanchez’s duties, including (1) assigning work schedules, (2) telling employees what to do and what not to do, (3) counseling employees on correcting errors, and (4) posting discrepancy entries on a tote board. Id. Plaintiff therefore suggests that S. Sanchez was a supervisor *565because he acted as a supervisor in Y. Sanchez’s absence. Id.
Defendants argue that Plaintiffs allegations, even if taken as true, do not establish that S. Sanchez was Plaintiffs supervisor for Title VII purposes pursuant to Vance. Reply 6. Defendants argue that “none of the ... actions which Plaintiff attributes to S. Sanchez constitute tangible employment actions.” Id. 7. Further, Defendants point to Plaintiffs statement that all of S. Sanchez’s supervisory duties, except for the “purported firing,” were done with “the knowledge and tacit approval of Defendants.” Id.; Resp. Ex. A, at 3. Thus, Defendants argue that Plaintiff admits that the purported firing was not approved by Defendants, and as such Defendants had not empowered S. Sanchez to fire Plaintiff. Resp. Ex. A, at 3; Reply 7. The Court agrees with this assessment.
Plaintiffs characterization of S. Sanchez’s employment duties do not indicate that S. Sanchez had the ability to effect a significant change in Plaintiffs employment status as required by Vance. Plaintiff alleges that S. Sanchez would assign work schedules, provide other employees with directions and counseling on errors, and post discrepancies on a board. Resp. Ex. A, at 3. However, none of these alleged supervisory duties create a genuine issue of material fact as to whether Defendants empowered S. Sanchez to take tangible employment action against Plaintiff. Rather, S. Sanchez’s duties as listed by Plaintiff merely gave S. Sanchez the ability to direct a coworker’s work activity — the exact responsibilities that the Supreme Court rejected as forming the basis for supervisory status in Vance. 133 S.Ct. at 2443; see also McCafferty v. Preiss Enters., Inc., 534 Fed.Appx. 726, 731 (10th Cir.2013) (holding that directing crew members’ day-to-day assignments is “precisely the type of ‘direction over another’s daily work’ or ‘ability to direct a co-worker’s labor’ that the Court rejected as forming the basis of supervisory status in Vance ” (citing Vance, 133 S.Ct. at 2443)).
Notably, Plaintiff does allege that S. Sanchez “even purported to fire [him] once.” Resp. Ex. A, at 3. However, Plaintiff admits that this “purported firing” was not done with the knowledge or approval of Defendants. Id. As such, Plaintiff fails to create a genuine issue of material fact regarding whether Defendants had “empowered [S. Sanchez] to take tangible employment actions against [him].” Thus, pursuant to Vance, no genuine issue of material fact exists as to whether Defendants are vicariously liable for S. Sanchez’s alleged harassment.
3. Coworker Liability
In determining whether an employer is liable for harassment perpetuated by coworkers, courts apply a negligence standard. Vance, 133 S.Ct. at 2441. When a coworker harasses a plaintiff, “an employer is directly liable for an employee’s unlawful harassment if it was negligent with respect to the offensive behavior.” Id. (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 799, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)). “In order to satisfy that standard, the complainant must show that the employer knew or should have known of the offensive conduct but failed to take appropriate action.” Id. at 2456 (internal citations omitted).
Plaintiff asserts that Defendants were “negligent in failing to provide adequate supervision of managers and employees, in that they permitted Y[.] Sanchez to supervise Plaintiff even as Plaintiff complained of ongoing sexual harassment and discrimination by S[.] Sanchez.” Pl.’s Second Am. Compl. 4. Plaintiff also states in his affidavit that “Plaintiffs rejections of the sexual advances [from S. Sanchez] *566were always known to Defendants.”4 Resp. 3. Defendants argue that “there is no evidence in the record to support Plaintiffs theory that Y. Sanchez was aware of’ the alleged sexual harassment of Plaintiff by her husband. Reply 8.
Despite these assertions, Plaintiff provides no evidence to corroborate his allegation that Defendants were negligent in providing supervision and, more importantly, that Defendants “knew or should have known of the offensive conduct but failed to take appropriate action.” See Vance, 133 S.Ct. at 2456. The Fifth Circuit has held that “conclusory allegations, speculation, and unsubstantiated assertions are inadequate to satisfy the nonmov-ant’s burden” at the summary-judgment stage of an employment-discrimination case. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir.1996), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1) (2006). Here, Plaintiff provides only unsubstantiated assertions to support his argument that Defendants knew or should have known of the sexual harassment prior to December 2010.
Moreover, Plaintiff does not offer any evidence showing that Defendants failed to take appropriate action after they were made aware of the harassment. Nowhere does Plaintiff allege or provide facts that indicate to the Court that the sexual harassment continued after Plaintiff complained to Defendants in December 2010; indeed, Plaintiff admitted to Defendants that the sexual harassment by S. Sanchez stopped after Plaintiffs complaint. Mot. Summ. J. Ex. 23, at 3.
Defendants provide evidence in the form of a declaration from General Manager Lorena Castaneda that following Plaintiffs complaint of harassment, Defendants adjusted Plaintiffs shifts so that he and S. Sanchez would not be on duty contemporaneously. Mot. Summ. J. Ex. 27, at 6 (“I gave [Plaintiff] what he stated that he wanted to result from the investigation: not to share shifts with [S. Sanchez] anymore.”). Plaintiff, on the other hand, alleges that he worked contemporaneously with S. Sanchez following his complaint of harassment. Resp. Ex. A, at 10-11. However, Plaintiff fails to provide evidence to support this allegation. Even taking Plaintiffs allegation as true, the fact that he and S. Sanchez worked contemporaneously does not prove that this schedule was implemented or required by Defendants. Again, Plaintiffs evidence is deficient in addressing the circumstances that might afford a fact finder the opportunity to resolve a genuine dispute of material fact.
Plaintiff also fails to create a fact issue as to whether Defendants knew of S. Sanchez’s alleged harassment of plaintiff prior to his complaint of sexual harassment. Moreover, Plaintiff does not succeed in creating a genuine issue of material fact as to whether Defendants failed to take appropriate action once Defendants were aware of the alleged sexual harassment following Plaintiffs complaint of sexual harassment. Accordingly, the Court finds that summary judgment as to Plaintiffs Title VII claim is appropriate.
B. Title VII Retaliation Claim
Title VIPs antiretaliation provision prohibits discrimination by employers against employees because the employee “opposed any practice made an unlawful employment practice by this subchapter.” 42 U.S.C. § 2000e-3(a) (2006). To establish a retaliation claim, a plaintiff must show that *567(1) he engaged in a protected activity as defined by Title VII, (2) he suffered a materially adverse employment action, and (3) there was a causal connection between the protected activity and the adverse employment action. See McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th Cir.2007). If the plaintiff succeeds in putting forth a prima facie ease, the burden then shifts to the defendant to show a legitimate, nondiscriminatory, or nonretaliatory reason for the challenged employment action. Id. “Once a defendant articulates such a reason, the inference of retaliation raised by the prima facie showing drops from the case.” Brimmer v. Shinseki, No. 3:11-CV-1956-L, 2013 WL 4763947, at *8 (N.D.Tex. Sept. 5, 2013) (citing Montemayor v. City of San Antonio, 276 F.3d 687, 692 (5th Cir.2001)).
“At this juncture, the plaintiff bears the burden of establishing that the employer’s stated reason is a pretext for the real retaliatory purpose.” Id. “Title VII retaliation claims must be proved according to traditional principles of but-for causation, [which] requires proof that the unlawful retaliation would not have, occurred in the absence of the alleged wrongful action or actions of the employer.” University of Tex. Sw. Med. Ctr. v. Nassar, — U.S. -, 133 S.Ct. 2517, 2533, 186 L.Ed.2d 503 (2013). Thus, in order to avoid summary judgment, the plaintiff must show “a conflict in substantial evidence” on the question of whether the defendant would not have taken the action but for the protected activity. Feist v. Louisiana, Dep’t of Justice, Office of the Atty. Gen., 730 F.3d 450, 454 (5th Cir.2013) (citing Long v. Eastfield Coll., 88 F.3d 300, 308 (5th Cir.1996)).
1. Prima Facie Case
a.Protected Activity
“Protected activity is defined as opposition to any practice rendered unlawful by Title VII, including making a charge, testifying, assisting, or participating in any investigation, proceeding, or hearing under Title VII.” Ackel v. Nat’l Commc’ns, Inc., 339 F.3d 376, 385 (5th Cir.2003) (citing Green v. Adm’rs of the Tulane Educ. Fund, 284 F.3d 642, 657 (5th Cir.2002)), abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). An employee’s complaint to the head of personnel constitutes a protected activity. See Green, 284 F.3d at 657.
Here, Plaintiff complained to Human Resources Director Monic Diaz and General Manager Lorena Castaneda about the sexual harassment and discrimination in his workplace. Mot. Summ. J. Ex. 27, at 4. This qualifies as a protected activity.
b.Adverse Employment Action
Plaintiff alleges that Defendants took multiple adverse employment actions against him, including (1) issuing performance write-ups about his work performance and (2) terminating him on March 4, 2011. Resp. Ex. A. The Fifth Circuit has traditionally found that “adverse employment actions include ... employment decisions such as hiring, granting leave, discharging, promoting, or compensating.” McCoy, 492 F.3d at 559. Additionally, the Supreme Court has expanded the definition of adverse employment action to include any action that “might well have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Id. (quoting Burlington N. & Santa Fe Ry. Co., 548 U.S. at 54, 126 S.Ct. 2405).
Here, Plaintiffs termination in March 2011 clearly qualifies as an adverse employment action.
c.Causal Connection
Lastly, Plaintiff must prove a causal connection between his complaint to De*568fendants about sexual harassment and his termination. Here, Plaintiff alleges that Defendants “began to retaliate against Plaintiff for his having complained about the ongoing sexual harassment by scrutinizing his work performance issues ... [and] writing him up for false and contrived performance issues,” culminating in his termination. Pl.’s Second Am. Compl. 5-6.
“Close timing between an employee’s protected activity and an adverse action against him may provide the ‘causal connection’ required to make out a prima facie case of retaliation.” McCoy, 492 F.3d at 562. Here, Plaintiffs employment was terminated in March 2011 (approximately four months after the protected activity), and he received several negative performance reviews in the interim period. Reply 10-13.
The Court will assume, without deciding, that Plaintiff has established a prima facie case of retaliation. See Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 320 (5th Cir.2004) (“[assuming, without deciding” that a prima facie case of Title VII retaliation had been made where the pretext issue was ultimately dispositive).
2. Legitimate, Nonretaliatory, or Nondiscriminatory Reason
Once a plaintiff has established a causal connection between the complaint of sexual harassment and his termination, the burden shifts to the defendant to show a legitimate, nondiscriminatory, or nonretali-atory reason for the challenged employment action. In the instant action, Defendants assert that Plaintiff had a poor work record prior to his complaint of harassment and that he continued to perform poorly after making his complaint. Mot. Summ. J. 16-17, Exs. 1-7, 17-19, 27, 28. In support thereof, Defendants offer written notices of performance violations prior to Plaintiffs December 2010 complaint of harassment. Id. Exs. 1-7. The record indicates that Plaintiff had approximately two performance write-ups in 2006 (representing five violations), one performance write-up in 2007 (representing two violations), one performance write-up in 2009 (representing four violations), and two performance write-ups in 2010 (representing five violations) prior to his complaint of harassment. Id. Exs. 1-7,17-19, 27.5
Additionally, Defendants provide a declaration from General Manager Lorena Castaneda with details of Plaintiffs work-performance violations. Id. Ex. 27. According to Castaneda, Defendants gave Plaintiff a written notice on November 18, 2010, that indicated that Defendants would cut his hours to part time or terminate his employment if his communication did not improve.6 Defendants provided a final written warning to Plaintiff on December 6, 2010, again admonishing Plaintiff of the consequences outlined in the November 2010 notice. Id. Exs. 7, 27.7
*569Following Plaintiffs complaint of harassment in December 2010, Plaintiff received two performance write-ups (representing ten violations). Id. Exs. 17-18. In her declaration, Castaneda stated that Plaintiff “continued making the same mistakes about simple, everyday operations — as simple as writing something down on paper.” Id. Ex. 27, at 6. Moreover, Defendants cite lack of honesty as another reason for discharging Plaintiff.8
Based on Plaintiffs record of written performance violations, including at least two final written warnings cautioning Plaintiff about possible termination, and the additional documented performance violations following these warnings, Defendants have satisfied their burden of showing a legitimate, nonretaliatory reason for Plaintiffs termination.
3. Pretext
“At this juncture, the plaintiff bears the burden of establishing that the employer’s stated reason is a pretext for the real retaliatory purpose.” McCoy, 492 F.3d at 557 (internal citation omitted). The Court must determine whether Defendants’ proffered nondiscriminatory reason for terminating Plaintiff — poor work performance— was actually the “real reason for [Plaintiffs] termination.” See Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 899 (5th Cir.2002).
Plaintiff argues that the work-per-formanee notices given to him after his complaint of sexual harassment demonstrate that Defendants’ concerns are merely a pretext for retaliating against him. Further, Plaintiff asserts that his termination, which Defendants claim was a result of the culmination of these work-performance violations, was retaliatory.
The Court will assess each of Defendants’ allegedly retaliatory actions in turn,
a. Performance Correction Notice of February 8, 2011
Plaintiff received a Performance Correction Notice on February 8, 2011 (“February 8 Notice”), listing several “[p]erformance [t]ransgression[s].” Mot. Summ. J. Ex. 17, at 1. Plaintiff alleges that this Performance Correction Notice was retaliatory. Resp. Ex. A, at 10-12.
i. Recording Wrong Commercial
The first “[i]ncident” listed on the February 8 Notice states that Plaintiff record-' ed an incorrect commercial on January 3, 2011. Mot. Summ. J. Ex. 17, at 1. Defendants also provide the “Discrepancy Re*570port” for January 3, 2011, which contains a handwritten note that “[Plaintiff] recorded wrong spot.” Id. at 3. While Plaintiff admits that the wrong commercial aired, he suggests that this occurred because “someone changed his work after he certified it was correct.” Resp. Ex. A, at 10. He further alleges that he finds “it very suspicious that [he was] being accused of dubbing the ad wrong, when all of [his] safety nets were in place and [he] followed his own method of detection” and further finds it suspicious that his mistake was noticed so quickly. Id. Significantly, Plaintiff provides no other evidence, documentary or testimonial, that his work was tampered with in retaliation for his complaint of sexual harassment.
ii.Inputting Wrong Commercial into Playlist
The second incident listed on the February 8 Notice states that, on January 6, 2011, Plaintiff input a commercial for Sori-ana into the playlist instead of that for E & M. Mot. Summ. J. Ex. 17, at 1. Plaintiff asserts that Defendants are “making up evidence as they go along to discredit [Plaintiff]” and that this mistake “only seems to take place when [his] shift is taken over by [S.]. or [Y.]. Sanchez.” Resp. Ex. A, at 11. However, Plaintiff again provides no evidence other than his own statements to rebut the contents of the February 8 Notice.9
iii.Failing to Report Which Promotion Feed Ran
Another incident listed on the February 8 Notice is Plaintiffs failure to report which promotion feeds ran during his shift on January 17, 2011. Mot. Summ. J. Ex. 17, at 1. Plaintiff argues that the individual “doing’ the logs” should have known which promotion feeds to air because it was “well-known and well-documented that [the company] did not get any promos from Telemundo on holiday” and that it would be impossible for him to ascertain what aired after his shift had ended. Resp. Ex. A, at 11. Moreover, Plaintiff asserts that the operator after him was S. Sanchez, who did not receive a work correction notice despite his failure to record which promotions ran during his shift. Id. However, Plaintiff once again does not provide evidence, other than his affidavit, on this point. On the other hand, Defendants’ evidence indicates that Defendants censured Plaintiff because, while he reported that no promotion feed was received from Telemundo, he failed to note what ran in its place. Mot. Summ. J. Ex. 17, at 5.
iv.Failing to Pass Information on to Next Operator
The February 8 Notice also lists an incident on January 31, 2011, where Plaintiff “did not pass information on to the next [o]perator about new policies.” Id. at 1. Plaintiff asserts that this is an example of retaliation against him because the next operator was Y. Sanchez, and the information that he was supposed to pass on to her had originated with her. Resp. Ex. A, at ll.10 Plaintiff further alleges that “De*571fendants are making up evidence as they go along to discredit” him as a result of his complaint of sexual harassment. Id. Other than these statements in his affidavit, Plaintiff produces no evidence that tends to show that this incident was retaliatory,
v. Failing to Save News Notes to the Back-Up Server
Finally, the February 8 Notice includes an incident on February 3, 2011, where Plaintiff “did not save the news notes to the back up server.” Mot. Summ. J. Ex. 17, at 1. Plaintiff argues first that this discrepancy was caused by equipment malfunctioning as a result of a severe winter storm that day, not as a result of his performance. Resp. Ex. A, at 12. Second, he notes that “Defendants do not provide any evidence that shows that there was no back up” and that this “alleged mistake” took place when his shift was between Y. Sanchez’s and S. Sanchez’s shifts. Id. However, Plaintiff does not provide any evidence other than these allegations to corroborate his assertions.
b. Performance Correction Notice of February 25, 2011
Plaintiff received another Performance Correction Notice on February 25, 2011 (“February 25 Notice”), which was designated a “Final Written Warning.” Mot. Summ. J. Ex. 18, at 1. Plaintiff alleges that this Performance Correction Notice was also retaliatory. Resp. Ex. A, at 12-14.
i.Failing to Look for Furniture Mart Advertisement
The first incident listed on the February 25 Notice is Plaintiffs failure to “look for a Furniture Mart spot that had been deleted off the se[r]ver but was on the shelf.” Mot. Summ. J. Ex. 18, at 1. The description of this incident notes that the employee working after Plaintiff found the physical copy on the shelf, “and the spots were made good.” Id.
Plaintiff argues that the Furniture Mart advertisement was not scheduled to air during his shift. He also asserts that the spots were digitized correctly and aired at the correct times according to the logs of February 16, 2011; and February 17, 2011. Resp. Ex. A, at 12. Plaintiff does not provide the aforementioned logs, however, nor does he provide evidence other than his affidavit to support these claims.
ii. Failing to Pass Information on to Next Operator
The February 25 Notice also states that, on February 21, 2013, Plaintiff did not pass information on to the next operator about Virgin Mobile commercials. Mot. Summ. J. Ex. 18, at 1. Plaintiff argues that he could not convey the specified information because the Daily Report Form from the previous operator, Samuel Acuna, was illegible. Resp. Ex. A, at 13; see Mot. Summ. J. Ex. 18, at 4. Plaintiff also claims that Acuna refused to tell him what the note said, instead telling Plaintiff to “just read it.” Id. Again, Plaintiff does not provide any evidence other than his affidavit on this point.
iii. Deleting Another Employee’s Discrepancy Report
Another incident listed on the February 25 Notice states that Plaintiff “deleted [another employee’s] discrepancy report before it was sent to him.” Mot. Summ. J. Ex. 18, at 1. In his affidavit, Plaintiff directs the Court to a screenshot of the discrepancy report. Resp. Ex. A, at 13; see Mot. Summ. J. Ex. 18, at 7. Plaintiff claims that this screenshot is a “smoking gun of Defendants’ treachery” because it *572was taken at 7:00 a.m., two hours after Plaintiffs shift had ended. Resp. Ex. A, at 13; see Mot. Summ. J. Ex. 18, at 7. Plaintiff argues that he “did not delete any such report” and that the accusation is “a total fabrication.” Resp. Ex. A, at 13.
iv. Filling Out Discrepancy Reports Incorrectly
Lastly, the February 25 Notice notes that Plaintiffs discrepancy reports “[are] still not being filled out correctly.” Mot. Summ. J. Ex. 18, at 1. Plaintiff argues that because Defendants failed to include an exhibit to substantiate this allegation, he is unable to refute it. Resp. Ex. A, at 14. Significantly, Plaintiff does not provide any evidence to demonstrate that he was filling out his discrepancy reports correctly, nor does he provide evidence that this accusation was a pretext for retaliation, c. Plaintiff Fails to Carry His Burden
The vast majority of evidence that Plaintiff presents to demonstrate pretext consists of conclusory allegations that dispute the underlying facts of Defendants’ decision to terminate him.11 The Fifth Circuit has held that a plaintiffs own statements denying the allegations against him are insufficient to create a genuine issue of material fact as to pretext. Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 379 (5th Cir.2010) (“[The employee’s] assertion of innocence alone does not create a factual issue as to the falsity of [the employer’s] proffered reason for terminating him.”);12 Evans v. City of Houston, 246 F.3d 344, 355 (5th Cir.2001) (“[The employee] cannot survive summary judgment merely because she disagrees with [the employer’s] characterization of her disciplinary history.”); see also Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 345 (5th Cir.2007) (“Conclusory statements are not competent evidence to defeat summary judgment.” (citing Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.1992))). Here, Plaintiff does not provide any evidence other than his own affidavit to support his allegation that the performance write-ups following his complaint of sexual harassment were retaliatory.
The Court, therefore, concludes that Plaintiff does not create a conflict in substantial evidence on the question of whether Defendants would not have terminated his employment but for his complaint of harassment. Defendants provide a legitimate, nonretaliatory reason for Plaintiffs termination — his continued work-performance deficiencies — and Plaintiff fails to satisfy his burden to raise a genuine issue of *573material fact as to whether this reason was pretextual.
d. Temporal Proximity
Plaintiff also alleges that the temporal proximity of the Performance Correction Notices to his complaint of harassment suffices to prove retaliation. Resp. Ex. A, at 11-14. However, the Fifth Circuit has held that “timing standing alone is not sufficient” to carry a plaintiffs summary-judgment burden “absent other evidence of pretext.” Boyd v. State Farm Ins. Comps., 158 F.3d 326, 330 (5th Cir.1998) (citing Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir.1997); Armstrong v. City of Dallas, 997 F.2d 62, 67 (5th Cir.1993)). Since Plaintiff does not offer any evidence from which a jury could infer that retaliation was the real reason for his termination, his temporal-proximity argument fails.13 Moreover, the frequency of Plaintiffs work-performance corrections did not increase after his December 2010 complaint of sexual harassment: the number he received after the complaint is roughly consistent with the number he received prior to filing his complaint.
C. Age Discrimination
The ADEA declares it “unlawful for an employer to ... discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1) (2006). “To establish an ADEA claim, ‘a plaintiff must prove by a preponderance of the evidence (which may be direct or circumstantial), that age was the ‘but-for’ cause of the challenged employer decision.’ ” Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir.2010) (quoting Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 129 S.Ct. 2343, 2351, 174 L.Ed.2d 119 (2009)).
When bringing an age-discrimination claim, “a plaintiff must first prove a prima facie case of discrimination.” Evans v. City of Houston, 246 F.3d 344, 350 (5th Cir.2001) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). In order to prove a prima facie case of age discrimination, a plaintiff must prove that (1) he was over the age of forty when the discrimination occurred; (2) he was qualified for the position; (3) he was terminated despite his qualifications; and (4) he was replaced by someone outside his protected class, replaced by someone younger, or otherwise discharged because of age. Id.
Once a plaintiff puts forth a prima facie case, “the burden shifts to the employer to provide a legitimate, non-discriminatory reason for the employment decision.” Berquist v. Wash. Mut. Bank, 500 F.3d 344, 349 (5th Cir.2007) (citing Willis v. Coca Cola Enters., Inc., 445 F.3d 413, 420 (5th Cir.2006)). Then, “the employee must show that the employer’s putative legitimate, nondiseriminatory reason was not its real reason, but was merely a pretext for discrimination.” Patrick v. Ridge, 394 F.3d 311, 315 (5th Cir.2004) (citing *574McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 804, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). “In other words, after a defendant employer has met its burden of production, an employee plaintiff, like any other civil plaintiff, must ... demonstrate that there is a material issue of disputed fact as to discrimination.” Id. at 315-16 (citing Long v. Eastfield Coll., 88 F.3d 300, 308 (5th Cir.1996)).
Plaintiff does not put forth any evidence or arguments that establish a prima facie ease of age discrimination.14 Nevertheless, the Court will consider whether Plaintiff has established a causal nexus between the termination of his employment and his age. As noted above, “[t]o establish an ADEA claim, ‘a plaintiff must prove ... that age was the but-for cause of the challenged employer decision.’” Moss, 610 F.3d at 922 (citing Gross, 129 S.Ct. at 2351 (2009)). In the instant case, Plaintiff has failed to adduce any evidence that his age was the but-for cause of his termination. Instead, Plaintiffs only evidence is his own subjective belief, without any evidence in the record before the Court, that his termination was a result of his age. Regarding a similar situation, the Fifth Circuit stated the following:
[T]he ADEA was not created to redress wrongful discharge simply because the terminated worker was over the age of forty. A discharge may well be unfair or even unlawful yet not be evidence of age bias under the ADEA. To make out an ADEA claim, the plaintiff must establish the existence of discrete facts that show some nexus between the employment actions taken by the employer and the employee’s age.
Moore v. Eli Lilly & Co., 990 F.2d 812, 819 (5th Cir.1993) (internal citations omitted). In the instant case, Plaintiff has failed to establish the existence of any discrete facts linking his termination to his age. Therefore, Plaintiffs ADEA claim fails.
IV. CONCLUSION
In the instant case, Defendants Telem-undo El Paso; KTDO Television; ZGS El Paso Television, L.P.; and ZGS Communications, Inc. have demonstrated that there is no genuine dispute of material fact as to Plaintiffs allegations that he was discriminated against because of his age, gender, and national origin and retaliated against for his complaint of sexual harassment. Therefore, the Court will grant Defendants’ motion.
Accordingly, IT IS ORDERED that Defendants’ “Motion for Summary Judgment” (ECF No. 36) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff Jose Arango’s Title VII of the Civil Rights Act of 1964 and Age Discrimination in Employment Act claims are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that all pending motions, if any, are DENIED AS MOOT.
IT IS FINALLY ORDERED that the Clerk of the Court shall CLOSE this case.
. Defendants' Human Resources Director is also referred to as Monic Heredia because she changed her name over the course of Plaintiff's employment.
. A plaintiff cannot recover under Title VII for discrimination because of age or national origin if the plaintiff does not provide evidence that gives rise to a colorable claim. Here, Plaintiff does not offer any evidence that indicates that he was discriminated against because of his age or national origin.
. In its “Order Granting Motion for Extension of Time” filed on July 1, 2013, the Court required the parties to address how the Supreme Court’s recently decided cases of Vance v. Ball State University, - U.S. -, 133 S.Ct. 2434, 186 L.Ed.2d 565 (2013), and University of Texas Southwestern Medical Center v. Nassar, - U.S. -, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013), affected the disposition of Defendants' Motion. Order Granting Mot. Extension Time, July 1, 2013, ECF No. 41. Regretfully, Plaintiff’s counsel, to Plaintiff’s detriment, elected not to address these cases, both of which bear upon the legal standard for the claims that Plaintiff alleges.
. These two statements constitute the entirely of Plaintiff’s arguments and evidence regarding this issue.
.Plaintiff claims that the performance write-ups from Y. Sanchez prior to his December 2010 complaint of harassment were in retaliation for his rejection of sexual advances from S. Sanchez, Y. Sanchez’s husband. Resp. Ex. A, at 7-8. This allegation is not a component of Plaintiff's Title VII retaliation claim, since they occurred before Plaintiff's protected activity. Additionally, Plaintiff provides no evidence to support his statement or to dispute Defendants’ claim that Y. Sanchez was actually unaware of the sexual nature of the interactions between Plaintiff and S. Sanchez. See Mot. Summ. J. 16.
. Defendants had previously censured Plaintiff for his lack of communication, including failing to fill out discrepancy reports, failing to report problems to others, and failing to relay information to the Master Control Operator taking over his shift. Mot. Summ. J. Ex. 27.
. The December 6, 2010, final written warning occurred before Plaintiff's complaint of *569harassment. While Plaintiff does not provide a specific date for his complaint, he alleges that he complained approximately one week after a sexual-harassment incident on December 4, 2010. Resp. 7. Defendants provide evidence that Plaintiff's complaint occurred on December 14, 2010, well after the December 6, 2010, final written warning. Mot. Summ. J. 8, Exs. 7, 27. Plaintiff does not provide evidence to dispute this claim. In addition to the December 6, 2010 final written warning, Plaintiff also received a final written warning on February 25, 2011. Id. Exs. 7, 18.
. In her declaration, Castaneda states that Plaintiff attempted to hide his mistakes and did not fill out discrepancy reports as required by his job. Id. Ex. 27, at 7. Further, Monic Heredia’s declaration cites a specific example of dishonesty that she states was the catalyst for Plaintiff's discharge. "When I arrived at the station on February 28, 2011, a client called. That particular client had paid to sponsor a news segment; therefore his commercial should have aired first. The client complained that his commercial did not air. I looked at the log, and saw that Jose Luis had initialed the log indicating that everything ran correctly." Heredia contacted Plaintiff to ask about the commercial. He indicated that everything had run correctly. However, when Heredia watched the station's recording of that portion of the news, she found that the commercial had not run. Id. Ex. 28, at 4-5.
. Plaintiff fails to provide evidence that would create a fact dispute on this issue, for example, (1) a log to indicate which commercial was input into the playlist, or (2) evidence that shows Y. Sanchez or S. Sanchez worked directly after Plaintiff. In his affidavit, Plaintiff notes that the Court should refer to the "Master Control Schedule" for January in order to determine who took over his shift on the day in question. Resp. Ex. A, at 10. However, Plaintiff does not attach that schedule to his Response, nor does he provide the Court with the schedule in any other way.
. Plaintiff’s argument on this point is difficult to follow. He states the following: "My shift ran from 9:00 pm to 5:00 am. Yessika’s shift began at 5:00 am. She was the ‘next operator.' The information that is supposed to be passed on originated with Yessika. Yes-*571sika then complained that I did not pass the information on to the 'next operator,' but the next operator was she. Information was originated by the person that supposedly did not get the new policy.” Resp. Ex. A, at 11.
. The Court notes that Plaintiff only succeeds in raising one possible issue of fact: whether or not he deleted another employee’s discrepancy report as stated in his February 25 Notice. However, simply disputing the facts underlying an employer's decision is not sufficient to carry Plaintiff's burden at this stage. See Sandstad, 309 F.3d at 899 (citing Evans v. City of Houston, 246 F.3d 344, 355 (5th Cir.2001)). Rather, "[e]ven an incorrect belief that an employee’s performance is inadequate qualifies as a legitimate reason to terminate an at-will employee.” Haverda v. Hays Cnty., 723 F.3d 586, 596 n. 1 (5th Cir.2013); Sandstad, 309 F.3d at 899. Here, the fact issue Plaintiff raises goes to the accuracy of Defendants’ beliefs about Plaintiff's work performance, not whether Defendants were retaliating against Plaintiff for his sexual-harassment complaint.
. The Fifth Circuit’s recent decision in Ion v. Chevron, 731 F.3d 379 (5th Cir.2013), cites this proposition with approval. The court in that case explained that, in Jackson, "the only pretext evidence that the court considered in its analysis, besides [a] 'stray remark,’ was the plaintiff's own statements denying the allegations [of sexual harassment].” Id. at 394. Ultimately deciding that Jackson was distinguishable from the facts in Ion, the court found summary judgment improper where the plaintiff provided "significantly more evidence” than "solely ... his own statements denying [the] allegations [of his employer].” Id.
. Although temporal proximity sufficed earlier to prove Plaintiff's prima facie case, the Fifth Circuit has held that it does not suffice to prove but-for causation. See Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 808 (5th Cir.2007); Long v. Eastfield Coll., 88 F.3d 300, 305 n. 4 (5th Cir.1996) ("At first glance, the ultimate issue in an unlawful retaliation case — whether the defendant discriminated against the plaintiff because the plaintiff engaged in conduct protected by Title VII — seems identical to the third element of the plaintiff's prima facie case — whether a causal link exists between the adverse employment action and the protected activity. However, the standards of proof applicable to these questions differ significantly.... The standard for establishing the 'causal link’ element of the plaintiff’s prima facie case is much less stringent.").
. Plaintiff's only mentions of age in his affidavit consist of the following statements: "[S. Sanchez's] behavior towards me constituted discrimination based on my age ... because of ... my age. I knew that at my age, should I lose my job, it would be very difficult to get same or similar employment. I was constantly, deliberately, and systematically harassed, assaulted, and discriminated against at work due to my ... age.” Resp. Ex. A., at 15. Plaintiff does not provide any other statement or evidence to connect the harassment he experienced to his age, nor does he allege any facts regarding this point. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217753/ | JUDGMENT
PER CURIAM.
This cause was considered on appeal from an order of the Federal Communications Commission and was briefed by counsel. It is
*527Ordered and Adjudged that the order of the Federal Communications Commission (“FCC” or “Commission”) is hereby affirmed.
Appellant Davis Broadcasting, Inc. (“Davis”) challenges an FCC decision approving assignments of six broadcast radio licenses in or near Columbus, Georgia, from Cumulus Licensing Corp. (“Cumulus”) to Clear Channel Broadcasting Licenses, Inc. (“Clear Channel”). See In re Solar Broadcasting Co., Inc., 17 F.C.C.R. 5467, 2002 WL 424B19 (2002) (“Solar Decision”). Davis claims that the FCC arbitrarily and capriciously failed to designate an evidentiary hearing pursuant to 47 U.S.C. § 309(d)(2), (e) to consider “substantial and material questionfs] of fact” before approving the applications to assign. In particular, Davis argues that the Commission ignored “serious questions about the applicants’ qualifications based on conduct and transactions involving Davis’ radio market” that appellant raised in a petition to deny. See Appellant’s Br. at 31. We disagree.
Most of the alleged misdeeds concern licenses, stations, and even parties different from those immediately involved in the appealed assignment determination. The one exception is Davis’ contention that the pre-assignment Local Marketing Agreement between Cumulus and Clear Channel was an indirect and unauthorized transfer of control in violation of 47 U.S.C. § 310(d). See Appellant’s Br. at 48 n. 4. As the FCC correctly notes, however, Davis’ opening brief offers only a perfunctory argument on this issue in a footnote, and we should therefore consider the argument waived. See Railway Labor Ass’n v. United States R.R. Ret. Bd., 749 F.2d 856, 859 n. 6 (D.C.Cir.1984). In any event, the FCC’s disposition of this claim is adequately explained and fully justified.
The FCC reasonably found that Davis’ allegations of Solar’s and Cumulus’ misconduct with regard to the Cusseta construction permit applications did not raise any substantial questions of fitness that would affect this assignment to Clear Channel. Solar Decision, 17 F.C.C.R. at 5490-91 ¶ 81. Furthermore, the FCC permissibly elected to address any other aspects of those allegations in different proceedings that are not before us here. See id. at 5492 ¶ 83; see also 47 U.S.C. § 154(j). Likewise, the FCC reasonably concluded that Davis’ allegations regarding misrepresentation and lack of candor by Solar and Cumulus in different transactions presented no substantial and material question of fact requiring an evidentiary hearing under 47 U.S.C. § 309. See Solar Decision, 17 F.C.C.R. at 5491-92 ¶ 82.
In sum, we find that Davis presented no “substantial and material question” requiring the Commission to conduct an eviden-tiary hearing on the issues raised in the petition. Accordingly, we affirm the Commission’s decision and deny the appeal.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217754/ | SUMMARY ORDER
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED that the judgment of the district court be and it hereby is AFFIRMED.
Plaintiff-Appellant Steve Molnar appeals, pro se, from the district court’s (Eg-inton, J.) grant of Defendant-Appellee Pratt & Whitney’s motion for summary judgment on Molnar’s age-discrimination *529claims. These claims arise under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-684, and Connecticut General Statutes § 46(a) — 60(a)(1).1
DISCUSSION
We review de novo the district court’s grant of summary judgment, “resolv[ing] all ambiguities and drawing] all factual inferences in favor of [the nonmoving party].” Nationwide Life Ins. Co. v. Bankers Leasing Ass’n, 182 F.3d 157, 160 (2d Cir.1999). ADEA claims are analyzed using the familiar McDonnell Douglas burden-shifting framework. See Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 91 (2d Cir.2001). In the case before us, it is beyond doubt (a) that Appellant has made out a prima facie case, as his application for employment was rejected in favor of two younger candidates, and (b) that Ap-pellee has articulated a nondiscriminatory reason for not hiring Appellant, namely, observance of a written company policy of “filling job vacancies from within the organization whenever possible.” The question, then, is whether a rational trier of fact could conclude that Appellee’s explanation was pretextual, and that the true reason that Pratt & Whitney rejected Molnar was because of his age.
Appellant proposes that the factfinder could infer discrimination from the following data. First, Molnar had more years of management experience than the candidates who were hired. Second, the person whom Molnar initially contacted about Pratt & Whitney employment inquired of Molnar’s age. Third, of the 37 positions filled by Pratt & Whitney following Molnar’s rejection, 82% went to candidates under 45 years of age.
These facts cannot support a finding of age-discriminatory motives. That Molnar had more years of management experience may have made him “better qualified” — in his own mind, or even objectively — -than the two qualified applicants who were hired, but the company’s nondiscriminatory policy was to make internal hires “whenever possible,” and, unlike Molnar, the chosen applicants had many years of employment with Pratt & Whitney. Given the internal promotion policy, there can be no inference of illicit motive from the fact that Molnar was bypassed in favor of allegedly less experienced managers. Nor does the contention that a Pratt & Whitney employee asked about Molnar’s age imply a suspect motive. This person was not a member of the hiring committee, and there is no evidence that he influenced the hiring process through other channels. Finally, one cannot infer a practice of age discrimination from the bare fact that most recent Pratt & Whitney hires were considerably younger than Molnar. One would need to know something about the applicant pool before drawing an inference of discrimination on this basis, and nothing in the record describes the pool.
We have considered Appellant’s remaining arguments and find them without merit. Accordingly, the judgment of the district court is AFFIRMED.
. In relevant part, Connecticut law follows the ADEA, see Levy v. Comm’n on Human Rights & Opportunities, 236 Conn. 96, 103-09, 671 A.2d 349 (1996), so we will assess the state and federal claims together, on the basis of federal precedent. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217755/ | SUMMARY ORDER
AFTER ARGUMENT AND UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of said district court be and it hereby is VACATED and REMANDED.
Plaintiff-appellant Lou Marinoff, a public employee, appeals from the district court’s order granting defendants-appel-lees’ motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6). Professor Marinoff brought a 42 U.S.C. § 1988 claim against the City College of New York (“CCNY”) and various associated officials, claiming inter alia, that their decision to require him to cease all philosophical counseling activities on the CCNY campus abridged his right to freedom of speech under the First Amendment and the manner in which the decision was made failed to comport with due process.
This Court reviews a district court’s dismissal of a complaint under Fed.R.Civ.P. 12(b)(6) de novo. Weixel v. Bd. of Educ. of City of New York, 287 F.3d 138, 145 (2d Cir.2002). A complaint should not be dismissed under Rule 12(b)(6) unless the district court, after assuming that all well-pleaded allegations contained in the complaint are true, finds that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Wright v. Ernst & Young LLP, 152 F.3d 169, 173 (2d Cir.1998). Further, a complaint need only meet the requirements of our “simplified notice pleading standard [which] relies on liberal discovery nales and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); see also Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (“When a federal court reviews the sufficiency of a complaint, before the reception of any evidence either by affidavit or admissions, its task is necessarily a limited one. The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.”). When presented with a 12(b)(6) motion, the district court may not consider matters outside of the pleadings without converting the motion into a motion for summary judgment. Friedl v. City of New York, 210 F.3d 79, 83-84 (2d Cir.2000).
On appeal, Marinoff argues that the district court improperly dismissed his First Amendment claims under Rule 12(b)(6) because when it decided that his philosophical counseling activities were not a matter of public concern, the judge impermissibly took facts outside of the pleadings into account.
While “[t]he Supreme Court has held that ‘a public employee does not relinquish First Amendment rights to comment on matters of public interest by virtue of government employment,’ ” that protection extends only to speech regarding matters of public concern. Morris v. Lindau, 196 F.3d 102, 109 (2d Cir.1999) (citations omitted). Under Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), “[w]hen employee expression cannot be fairly considered as relating to any *532matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.”
Marinoff objects to the restrictions his employer, CCNY, placed upon his ability to engage in “philosophical counseling activities” on its campus. In order to determine whether these forbidden activities constituted protected First Amendment speech or activities, the district court first had to ascertain the meaning of the term “philosophical counseling activities” as used in the ban. Without such a definition it is impossible to assess whether speech regarding a matter of public concern is implicated.
Because the district court did not have sufficient information on the basis of the complaint alone to make a determination of whether protected speech was involved, and since the term “philosophical counseling activities” is not self-defining, a Rule 12(b)(6) dismissal was inappropriate. Further, the record indicates that the district court may have relied on information outside the complaint to aid in its interpretation of what amounts to “philosophical counseling activities.” We therefore vacate the grant of defendants’ motion to dismiss and remand for further proceedings.
The judgment of the district court is VACATED and REMANDED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217756/ | SUMMARY ORDER
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be and it hereby is AFFIRMED.
Plaintiff David Holland appeals from a judgment of the United States District Court for the Eastern District of New York (Gershon, Judge), dismissing his complaint pursuant to Fed.R.Civ.P. 12(h)(3) for lack of subject matter jurisdiction.
Holland’s complaint alleged that, during his contested divorce suit in New York Supreme Court, State “agents, servants and personnel” denied him his civil rights, obstructed justice, and violated his rights to due process, equal protection, and access to the court. In particular, Holland complained that the Supreme Court denied him a preliminary conference, discovery, equitable distribution of property, and his ultimate claims of relief. He also alleged that the court permitted the defendant to file false orders and documents and that the official transcript was missing. The complaint requested monetary damages.
The State moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(1) and (6), arguing that the Eleventh Amendment and the Rooker-Feldman2 doctrine deprived the court of jurisdiction and that Holland failed to state a claim upon which relief could be granted. Holland moved for a default judgment on the grounds that the State had not timely responded to his complaint. The District Court dismissed the complaint pursuant to Fed.R.Civ.P. 12(h)(3), concluding that it lacked subject matter jurisdiction over Holland’s claims because of the Rooker-Feldman doctrine. The court also concluded that, even if the Rooker-Feldman doctrine were inapplicable, the claims against the State of New York would be barred by the Eleventh Amendment. Holland’s motion for a default judgment was denied as moot.
We find no error in the District Court’s jurisdictional analysis. Under the Rooker-Feldman doctrine, the lower federal courts lack subject matter jurisdiction “over cases that effectively seek review of judgments of state courts.” Moccio v. New York State Office of Court Admin., 95 F.3d 195, 197 (2d Cir.1996). It is clear that Holland’s complaint effectively seeks review of the New York Supreme Court’s judgment in his matrimonial action. He takes issue *534with the state court’s procedural rulings (failing to hold a preliminary conference, failing to permit discovery) and with its ultimate decision on the merits. Thus, the District Court was correct in dismissing this action for lack of subject matter jurisdiction.3
The judgment of the District Court is hereby affirmed.
. See Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983).
. Because we affirm the District Court’s judgment on jurisdictional grounds, we need not reach the other issues raised in this appeal. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217757/ | SUMMARY ORDER
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court be and it hereby is AFFIRMED.
In May 1998, A. Cecilia Babalola filed a counseled complaint against defendants B.Y. Equities Inc., Isaac Stern Realty and Property Management, United Securities Servicers Inc., Clinton Hill Apartments Owners Corp., Michele Slochowsky-Her-ing, and the Hon. Laurie L. Lau, Housing Court Judge, claiming violation of the Fair Housing Act, 42 U.S.C. §§ 3601 et seq., and the Civil Rights Act of 1968, 42 U.S.C. §§ 1981, 1982, 1983, and 1985(2). Clinton Hill Equities Group was later added as a defendant in Babalola’s amended complaint.
In August 1998, the district court granted Hon. Laurie L. Lau’s motion to dismiss the claims against her, as barred by the Eleventh Amendment and the doctrine of absolute judicial immunity. Babalola has not appealed that order.
In June 2002, Magistrate Judge Cheryl L. Pollack issued a report recommending that the district court grant the remaining defendants’ motion for summary judgment and to dismiss Babalola’s complaint. The magistrate judge concluded, inter alia, that the court lacked jurisdiction to review Babalola’s claims because they were barred by the Rooker-Feldman doctrine, which prohibits federal courts from considering claims that are “inextricably intertwined” with prior state court determinations. See Rooker v. Fidelity Trust Co., 263 U.S. 413, 416, 44 S.Ct. 149, 68 L.Ed. 362 (1923) and District of Columbia Court of Appeal v. Feldman, 460 U.S. 462, 482, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). Specifically, the magistrate judge found that the review of Babalola’s claims would necessitate a review of a prior decision by the New York State housing court, ordering Babalola’s eviction based on a finding of non-payment of rent: “Before this Court could find that plaintiff has been the victim of a discriminatory conspiracy to wrongfully evict her from her apartment, the Court would have to hold that the state courts erred in issuing a warrant for eviction based on nonpayment of rent, that the decision was incorrectly affirmed by the Appellate [Term], and that leave to appeal was improperly denied by the Appellate [Division].” Therefore, the magistrate judge concluded that Babalola’s claims were “inextricably intertwined” with the state court decisions and, thus, that the district court lacked subject matter jurisdiction to review those claims under the Rooker-Feldman doctrine. In an order dated September 23, 2002, after reviewing Babalola’s objections to the magistrate judge’s report, the district court adopted the report and granted defendants’ motions for summary judgment.
On appeal, Babalola argues that (1) defendants were “negligent in exercising [their] duty and right to protect plaintiff from housing discrimination and civil rights violations”; (2) defendants deliberately made her apartment uninhabitable; (3) defendants profited from her eviction; (4) she was denied the opportunity to rent *536her apartment because of her race and national origin; and (5) an issue of fact exists as to the defendants’ contractual responsibilities and the role that defendant Slochowsky-Hering played in evicting minorities from the Clinton Hill apartments.
We review orders granting summary judgment de novo. See Bedoya v. Coughlin, 91 F.3d 349, 351 (2d Cir.1996). The magistrate judge and Judge Raggi correctly concluded that, under the Rooker-Feld-man doctrine, the district court lacked jurisdiction to consider Babalola’s claims. As the magistrate judge explained in her very thorough report and recommendation, a review of the complaint would necessitate an inquiry into the propriety of the eviction warrant issued by the housing court, and the affirmance of that decision by the Appellate Term and the denial of leave to appeal to the Appellate Division. Such inquiry is clearly barred under the Rook-er-Feldman doctrine. See Rooker, 263 U.S. at 416; Feldman, 460 U.S. at 482.
Accordingly, the decision of the District Court is AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217758/ | Summary Order
UPON DUE CONSIDERATION of this appeal from judgment of the United States District Court for the Southern District of New York (Robert J. Ward, Judge), it is hereby
ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.
The plaintiffs-appellants allege that defendants-appellees American Federation of Television and Radio Artists (“AFTRA”) Health Fund (“the Fund”) and its individually named trustees (the “Trustees”) wrongfully denied them life insurance benefits, in violation of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1001-1461. The plaintiffs-appellants are the beneficiaries of deceased recording artists from the 1950s and 1960s who were members of AFTRA, a national labor union with members coming from various entertainment fields. AFTRA administers the Fund for participants who meet certain eligibility requirements. Most relevant for our purposes is the requirement that a participant must have sufficient covered earnings during the period immediately preceding death to be eligible for life insurance benefits. The Plan accords the Trustees full authority to administer the Plan and to construe and interpret its provisions, including any provisions relating to benefits eligibility.
Three plaintiffs filed suit in the Southern District of New York in November 1990, seeking life insurance proceeds on behalf of deceased Fund participants who allegedly qualified for life insurance coverage at the time of their deaths. The case was placed on the suspense calendar in December 1990, pending settlement negotiations, and was restored to the active docket in September 1995. In January 1997, the District Court stayed the litigation to allow the remaining plaintiffs and other alleged beneficiaries to exhaust the Fund’s administrative claims process.
Thirteen alleged beneficiaries then initiated the administrative claims process. The Fund rejected all thirteen claims upon making individual findings that each of the deceased artists lacked sufficient covered earnings during the relevant period prior to death to qualify for life insurance coverage. In January 2000, the claimants filed a single administrative appeal to the Fund’s Appeals Committee. In June 2000, the Appeals Committee upheld the Fund’s denial of life insurance benefits.
The case again returned to the active docket in July 2000, about which time the plaintiffs amended their complaint to name additional plaintiffs. Among these additional plaintiffs were ten alleged beneficiaries who had not pursued administrative remedies against the Fund. The amended complaint alleges wrongful denial of the life insurance benefits, in violation of 29 U.S.C. § 1132, and breach of fiduciary duty, in violation of 29 U.S.C. § 1109. The defendants moved for summary judgment in June 2001. In a decision dated May 16, 2002, the District Court granted the defendants’ motion for summary judgment, dismissing the plaintiffs’ claims in their entirety. Preston v. Am. Fed’n of Television & Radio Artists Health Fund, No. 90 Civ. 7094, 2002 WL 1009458 (S.D.N.Y. May 16, 2002).
The District Court first considered the timeliness of the plaintiffs’ claims. The court determined that the denials of benefits claims were not barred by the applicable statute of limitations because the plaintiffs received no communication from the *538Fund prior to the institution of the lawsuit that constituted a “clear repudiation” of benefits. Id. at *2. The court dismissed the breach of fiduciary duty claims of those plaintiffs whose decedents died more than six years prior to filing the lawsuit as barred by the statute of limitations for such claims as set forth in 29 U.S.C. § 1113. Preston, 2002 WL 1009458, at *3. The court also dismissed all claims asserted more than ten years after the artists’ deaths under the doctrine of laches. The court explained that the plaintiffs are charged with the knowledge that their decedents may have been eligible for life insurance benefits and that the defendants have been prejudiced by the plaintiffs’ delay in bringing these claims, citing the Fund’s difficulty in gathering evidence necessary to defend against the claims. Id. at *3-*4.
The court then dismissed without prejudice the claims of those plaintiffs who failed to pursue the Fund’s administrative claims process. Id. at *4-*5. The court determined that the Fund’s denial of other plaintiffs’ claims does not constitute a “clear and positive showing” that these claims would have been futile, so as to excuse non-exhaustion. Id. at *4; see Kennedy v. Empire Blue Cross & Blue Shield, 989 F.2d 588, 594 (2d Cir.1993) (explaining that a claimant is excused from exhausting administrative remedies upon making “a ‘clear and positive showing’ that pursuing available administrative remedies would be futile”). The court reasoned that, because the facts and circumstances surrounding each claimant’s eligibility are unique, “the futility of any one claim cannot be assumed based upon the Fund’s denial of any other claim.” Preston, 2002 WL 1009458, at *4.
The District Court then dismissed the remaining claims on their merits. With respect to the denial of benefits claims, the court concluded that the Fund’s denials were not arbitrary and capricious. Id. at *5-*7; see Pagan v. NYNEX Pension Plan, 52 F.3d 438, 441 (2d Cir.1995) (“[W]here the written plan documents confer upon a plan administrator the discretionary authority to determine eligibility, we will not disturb the administrator’s ultimate conclusion unless it is ‘arbitrary and capricious.’ ”). The court explained that the Fund conducted “an exhaustive search” that revealed that none of the artists had sufficient covered earnings to qualify for life insurance benefits. Preston, 2002 WL 1009458, at *5. The court further concluded that the Appeals Committee did not act arbitrarily and capriciously in rejecting the plaintiffs’ arguments that the decedent artists were not notified that their coverage had been terminated, that the re-mastering of an existing work constitutes a “new record” for purposes of calculating covered earnings, and that the Fund should have considered earnings credited to artists to recoup advances on future royalties and payments made to composers of works recorded by the decedents. Id. at *6-*7. As to the merits of the remaining breach of fiduciary claims, the court explained that the plaintiffs do not bring these claims on behalf of the Plan, as required by ERISA, but instead are using their breach of fiduciary duty claims as another means to attempt to recover life insurance benefits. Id. at *8. The court concluded that these claims also fail because the plaintiffs have set forth insufficient evidence to survive summary judgment. Id. The plaintiffs-appellants only appeal the District Court’s dismissal of their claims for wrongful denial of benefits, and do not challenge the court’s dismissal of their breach of fiduciary duty claims.
We have considered all of the plaintiffs-appellants’ arguments and affirm the judgment for substantially the same reasons *539stated in the District Court’s thorough and well-reasoned opinion. We note that the non-exhausted claims were denied without prejudice and those plaintiffs are free to return to federal court upon exhaustion of their administrative remedies. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217759/ | SUMMARY ORDER
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be AFFIRMED.
*540Robert Del Carpió appeals from a final judgment of conviction and a sentence entered in the United States District Court for the Eastern District of New York (Korman, Chief Judge).
Del Carpio’s challenge to the validity of his guilty plea is premised on his argument that the district court should have ordered an evidentiary hearing into his competence because of (1) Del Carpio’s extensive psychiatric history, (2) the fact that he was taking a number of psychotropic medications at the time of his plea proceeding, and (3) his supposedly incoherent responses to certain questions posed at that proceeding.
Rule 11, Fed.R.Crim.P., is designed to assist district courts in ensuring that a defendant’s guilty plea conforms with the requirements of due process, i.e., that the plea is knowing and voluntary. See McCarthy v. United States, 394 U.S. 459, 465-66, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969); United States v. Couto, 311 F.3d 179, 189 (2d Cir.2002). Under Rule 11, “if there is any indication, as there was in this case, that defendant is under the influence of any medication, drug or intoxicant, it is incumbent upon the district court to explore on the record defendant’s ability to understand the nature and consequences of his decision to plead guilty.” See United States v. Rossillo, 853 F.2d 1062, 1066 (1988).
“But while Rule 11 imposes strict requirements on what information the district courts must convey and determine before they accept a plea, it does ‘not ... tell them precisely how to perform this important task in the great variety of cases that ... come before them.’ ” United States v. Maher, 108 F.3d 1513, 1520-21 (2d Cir.1997) (ellipses in original) (quoting United States v. Saft, 558 F.2d 1073, 1079 (2d Cir.1977)); see also McCarthy, 394 U.S. at 467 n. 20 (stating that “[t]he nature of the inquiry required by Rule 11 must necessarily vary from case to case”). “What is essential, however, is that the court determine by some means that the defendant actually understands the nature of the charges.” Maher, 108 F.3d at 1521.
Prior to the plea proceeding, the district court ordered a thorough psychiatric examination which confirmed that the defendant was not suffering from a mental disease or defect rendering him incompetent, and that neither his mental condition nor his medications impaired his ability to understand the nature and consequences of the proceedings against him. [A66-78] This examination took place several months prior to the plea proceeding, but nothing in the record shows that defendant’s mental competence had changed in the interim.
At the plea proceeding itself, the court questioned the defendant about both his psychiatric treatment and his medications (which appear to be the same as those he was taking at the time of the earlier psychiatric exam) and the effect of those medications on defendant’s mental state, [A16-19] precisely the kind of inquiry that satisfies the explicit requirements of Rule 11. See Rossillo, 853 F.2d at 1066; see also United States v. Morrison, 153 F.3d 34, 47 (1998) (“In deciding whether an evidentia-ry hearing [regarding defendant’s competence] is unnecessary, a court may rely not only on psychiatrists’ reports indicating competency but also on its own observations of the defendant.”). The defendant’s responses to the district court’s questioning at the hearing were not such as to undermine the court’s finding that he was competent. See United States v. Vamos, 797 F.2d 1146, 1150 (2d Cir.1986) (“It is well-established that some degree of mental illness cannot be equated with incompetence to stand trial.”); see also Morrison, 153 F.3d at 45 (deferring to district *541court’s finding that defendant was competent, despite fact that “it [wa]s possible to conclude from the record that [defendant] was irrational or delusional at certain points during the trial process”). Moreover, the district court elicited from defense counsel her belief that defendant was capable of understanding the nature of the proceedings and was competent to plead guilty. [A19-20] Since counsel is well-positioned to know whether the defendant is able to participate in his own defense, this “provide[ed further and] substantial evidence of the defendant’s competence.” See United States v. Vamos, 797 F.2d 1146, 1150 (2d Cir.1986). We see no error in not conducting a further competence hearing. See United States v. Andrades, 169 F.3d 131, 135 (2d Cir.1999) (“A district court is not required to follow any particular formula in determining that defendant understands the nature of the charge to which he is pleading guilty.”).
Del Carpió also argues that his trial counsel was ineffective for permitting him to plead guilty and for withdrawing a request for a pre-sentence evidentiary hearing regarding the quantity of loss alleged by the government. Neither claim has merit.
Del Carpió undertakes to show that: “(1) counsel’s performance was unreasonably deficient under prevailing professional standards, and, (2) but for counsel’s unprofessional errors, there exists a reasonable probability that the result would have been different.” United States v. Torres, 129 F.3d 710, 716 (1997) (citing Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). However, our affirmance of the district court’s ruling that Del Carpió was competent to plead guilty forecloses a finding that Del Carpio’s trial counsel was unreasonably deficient in reaching the same conclusion. The claim regarding trial counsel’s withdrawal of any challenge to the government’s loss amount fails because Del Car-pió has made no effort to demonstrate that this challenge is or was at all meritorious.
For the reasons set forth above, the judgment of the district court is hereby
AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217760/ | SUMMARY ORDER
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Petition be, and it hereby is, DENIED.
Richard J. Heller petitions this Court to review a final decision of the Railroad Retirement Board (“RRB”), denying him an annuity under the Railroad Retirement Act of 1974, as amended, 45 U.S.C. § 231 et seq. (the “Act”). Under the Act, certain individuals are entitled to an annuity, inter alia, “if they shall have completed ten years of service.” 45 U.S.C. § 231a(a)(l). The RRB denied Heller an annuity because he was credited with 91 months of railroad service. Heller does not contest that he lacked the 120 months required.
A final order of the RRB is reviewable in this Court pursuant to 45 U.S.C. § 231g, but will only be set aside if it is unsupported by substantial evidence or based on an error of law. See, e.g., Poole v. RRB, 905 F.2d 654, 661 (2d Cir.1990).
Substantial evidence supports the finding that Heller lacked 120 months’ employment service; and no error of law undermines the RRB’s order. Heller’s primary argument on this appeal is that Conrail, his previous employer, illegally refused to return him to his job after he injured his spinal cord in a 1976 accident involving a Conrail switch, and thus prevented him from accruing the necessary service credits. Irrespective of the merits of Heller’s quarrel with Conrail or with others, the Act allows no exception for persons in Heller’s situation.1
For the foregoing reasons, Heller’s Petition for Review is hereby DENIED.
. At oral argument, Heller moved for reconsideration of this Court's March 11, 2003 denial of his motion to file an untimely reply brief. The motion for reconsideration is granted, as is the motion to file an untimely reply brief. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217762/ | *546
SUMMARY ORDER
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED that the appeal be DISMISSED IN PART and, insofar as the appeal not be dismissed, the judgment of the district court be AFFIRMED.
Defendant-appellant George Agyeman appeals from a judgment entered in the United States District Court for the Southern District of New York (Chin, J.) on December 12, 2001, convicting him, after his guilty plea, of conspiring to transport and possess stolen motor vehicles, transporting stolen motor vehicles, and possessing stolen motor vehicles in violation of 18 U.S.C. §§ 371, 2312, and 2313, and sentencing him principally to 38 months in prison. On appeal, Agyeman argues that the district court erred at sentencing by (1) adding four offense levels for his role as an organizer or leader of the conspiracy, and (2) denying his motion for a downward departure based on family circumstances and other factors.
1. Role in the Offense: Section 3Bl.l(a) of the Sentencing Guidelines requires a four-level increase “[i]f the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive.” U.S.S.G. § 3Bl.l(a). “Facts in connection with sentencing must be established by a preponderance of the evidence.” United States v. Tracy, 12 F.3d 1186, 1202 (2d Cir.1993). “ ‘The sentencing court’s findings as to the defendant’s role in the offense will be overturned only if they are clearly erroneous.’ ” United States v. Szur, 289 F.3d 200, 218 (2d Cir.2002) (quoting United States v. Zichettello, 208 F.3d 72, 107 (2d Cir.2000)); see also United States v. Farah, 991 F.2d 1065, 1068 (2d Cir.1993).
We see no clear error. First, Judge Chin properly relied on his own knowledge of the extensive record in the trial of Agyeman’s co-defendants, at which he presided. (Sentencing Tr., dated Dec. 6, 2001, at 2, 27-28.) “The sentencing court’s discretion is ‘largely unlimited either as to the kind of information he may consider, or the source from which it may come.’ ” United States v. Carmona, 873 F.2d 569, 574 (2d Cir.1989) (citations omitted). Specifically, a judge may rely on facts adduced in other proceedings, “ ‘so long as the defendant ha[s] an opportunity to respond in order that the court not rely on misinformation.’ ” United States v. Sisti, 91 F.3d 305, 312 (2d Cir.1996) (alteration in original) (quoting United States v. Concepcion, 983 F.2d 369, 387-88 (2d Cir.1992)); see also Tracy, 12 F.3d at 1203; Carmona, 873 F.2d at 574. The trial transcript was available from the district clerk’s office, and the government provided a portion of it prior to the Fatico hearing. See United States v. Fatico, 579 F.2d 707 (2d Cir.1978). Defense counsel cross-examined the witness who testified at the hearing. (Sentencing Tr. at 4-20.) The district court also gave defense counsel an opportunity to introduce any additional evidence. (Id. at 22.)
Second, the district court was entitled to credit the testimony of the government’s witness at the Fatico hearing, who had also testified at the trial of Agyeman’s co-defendants. (Id. at 2, 27.) See United States v. Duverge Perez, 295 F.3d 249, 255 (2d Cir.2002); United States v. Conde, 178 F.3d 616, 620 (2d Cir.1999); cf. 18 U.S.C. § 3742(e) (“The court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses.”).
Finally, the information before the district court supported the findings that Agyeman “was an organizer and leader of the conspiracy” and “that the conspiracy involved more than five participants.” *547(Sentencing Tr. at 27.) A police informant, who owned the shipping concern Agyeman used to transport stolen motor vehicles, testified that Agyeman came to his office more than 100 times, far more than any other conspirator. (Id. at 6.) The informant testified that he thought Agye-man was the leader, that other conspirators acted on Agyeman’s behalf, and that Agyeman did most of the talking when several of them came together. (Id. at 7, 13-14, 19-20.) His testimony, along with police surveillance photographs, supported the conclusion that Agyeman worked with at least five other individuals. (Id. at 11, 22.) The evidence of Agyeman’s role in shipping and sales was sufficient to support the conclusion that he acted as a leader of the conspiracy, even without connecting him to the motor vehicle thefts (though there was sufficient evidence he played a leadership role in that regard as well).
2. Downward Departure: “A district court’s decision not to depart downward is ordinarily not reviewable, unless the refusal is due to an ‘erroneous interpretation of law,’ or an ‘erroneous view of the extent of its departure authority.’” United States v. Aponte, 235 F.3d 802, 803 (2d Cir.2000) (per curiam) (quoting United States v. Labeille-Soto, 163 F.3d 93, 100 (2d Cir.1998)); see also United States v. Brunet, 275 F.3d 215, 216 (2d Cir.2001) (per cu-riam). There is a “strong presumption that a district judge is aware of the assert-edly relevant grounds for departure,” and “[t]his presumption is overcome only in the rare situation where the record provides a reviewing court with clear evidence of a substantial risk that the judge misapprehended the scope of his departure authority.” United States v. Brown, 98 F.3d 690, 694 (2d Cir.1996).
We see no evidence that the district court misapprehended its powers. Agyeman sought a departure based on his personal history, mental and physical health, and family circumstances, pursuant to U.S.S.G. §§ 5H1.3, 5H1.4, and 5H1.6. Judge Chin declined to depart downward for Agyeman’s health because “[tjhere’s simply nothing extraordinary about his medical condition.” (Sentencing Tr. at 36.) He declined to depart downward for Agye-man’s family circumstances because “[tjhere’s nothing even to suggest that [he] is supporting his child who is living in Ghana.” (Id. at 36-37.) Judge Chin declined even to consider the fact that Agye-man had lost both of his parents at a young age (id. at 35-36), relying properly on U.S.S.G. § 5H1.12 for the proposition that “[l]ack of guidance as a youth and similar circumstances indicating a disadvantaged upbringing are not relevant grounds for imposing a sentence outside the applicable guideline range.” U.S.S.G. § 5H1.12.
In the final analysis, Judge Chin recognized the scope of his authority and declined to depart downward because “this doesn’t come close to the circumstances that are usually required for such a downward departure.” (Sentencing Tr. at 37.) This decision is not reviewable.
For the reasons set forth above, the appeal is hereby DISMISSED IN PART and, insofar as the appeal is not dismissed, the judgment of the district court is hereby AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217764/ | SUMMARY ORDER
UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be and it hereby is AFFIRMED.
Linda Misek-Falkoff and her husband, Adin Falkoff filed a complaint in this diversity action on February 1, 2001, principally alleging that defendants defamed Misek-Falkoff in an article written by defendant McDonald and published by Aspen Publishers in the Employee Relations *552Law Journal. The relevant passage of the article discusses the opinion by the United States District Court for the Southern District of New York (Vincent L. Broder-ick, Judge) in a previous lawsuit filed by Misek-Falkoff. It reads as follows:
In Misek-Falkoff v. IBM Corp., 854 F.Supp. 215 (S.D.N.Y.1994), affirmed, 60 F.3d 811 (2d Cir.1995), the plaintiff was placed on permanent disability status after a series of emotional outbursts, fits of rage, and altercations with supervisors and coworkers. She sued, alleging that she was discriminated against on account of her mental disability, but her suit was rejected. The court assumed that the plaintiff was disabled but went on to hold that she was nonetheless unqualified for her job, even though she may have been technically competent. The court observed that it is a requirement of any job that an employee— disabled or not — be able to get along with coworkers and supervisors, and that an employer certainly may require its employees not to cause or contribute to disruptions and hostility in the workplace.
James J. McDonald, Jr., The Americans with Difficult Personalities Act, 25 Employee Relations Law Journal 93, 99-100 (2000) (emphasis added).
Plaintiffs allege that this passage was both inaccurate and defamatory because Misek-Falkoffs disability was, in fact, based upon a neurological disorder that constitutes a physical disability rather than a mental disability. They also point out that the article inaccurately implied that Misek-Falkoffs disability discrimination claim was brought pursuant to the Americans with Disabilities Act when, in fact, it was brought pursuant to section 504 of the Rehabilitation Act, 29 U.S.C. § 794.
On September 6, 2001, defendants filed a motion to dismiss. The District Court granted defendants’ motion on November 19, 2001, holding that (1) it lacked personal jurisdiction over defendant McDonald and defendant Fisher & Phillips, L.L.P. and (2) plaintiffs had faded to state a claim upon which relief could be granted.
Substantially for the reasons stated by the District Court, we hold that personal jurisdiction is lacking with respect to McDonald, a lawyer living and practicing in the state of California, and Fisher & Phillips, L.L.P., the Atlanta, Georgia-based law firm that employs McDonald in its Irvine, California office.
Furthermore, the District Court properly concluded that plaintiffs have failed to state a claim upon which relief can be granted. Notably, plaintiffs brought a near-identical law suit to this one in New York state court with respect to another article published by McDonald that contained substantially the same paragraph at issue in this case. See Misek-Falkoff v. American Lawyer Media, Inc., 300 A.D.2d 215, 752 N.Y.S.2d 647 (1st Dep’t 2002). The First Department affirmed the lower court’s dismissal of that case, holding that “dismissal of the complaint is mandated pursuant to Civil Rights Law § 74, which forbids the maintenance of a civil action ‘against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding.’ ” Id. at 648-49. The court reasoned:
The only inaccuracy in the article’s description was that it stated that plaintiff Misek-Falkoff “filed a lawsuit alleging that she was discriminated against because of her mental disability”; in fact, the IBM Action says Misek-Falkoff sued for discrimination based on a “neurological disorder” (854 F.Supp. at 226). This inaccuracy is not serious enough to remove defendants’ reportage from the protection of Civil Rights Law § 74.
Id at 649 (citation omitted).
We have made clear that “[t]he holding of ‘an intermediate appellate state court *553... is a datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise.’ ” Fieger v. Pitney Bowes Credit Corp., 251 F.3d 386, 399 (2d Cir.2001) (quoting West v. AT&T, 311 U.S. 223, 237, 61 S.Ct. 179, 85 L.Ed. 139 (1940)). Plaintiffs have provided no such persuasive data in this case, nor have they adequately distinguished the issues presented in this case from those resolved by the First Department.
For the foregoing reasons, the judgment of the District Court is hereby AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217766/ | SUMMARY ORDER
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment and order of the district court be, and they hereby are, AFFIRMED.
Defendants-Appellants-Cross-Appellees County of Nassau (the “County”) and Anthony Raymond, a Nassau County Police Officer (collectively, the “defendants”), appeal from a judgment of the United States District Court for the Eastern District of New York (Seybert, /.), entered following a jury trial.
This case arose out of the death of Christopher Wade, who was shot and killed by Officer Raymond on December 30, 1995. Plaintiff-Appellee-Cross-Appel-*560lant Vera Duke, the mother of Wade’s two children, and the administratrix of Wade’s estate, prevailed on three claims brought against Raymond, lost on four claims, and was awarded approximately $2.25 million in damages — an amount ultimately reduced by the district court to approximately $2.16 million.
The sole issue on the appeal is whether the district court abused its discretion in excusing Juror No. 7, who had complained of “verbal abuse” by other jurors and attendant stress during deliberations, and in denying the defendants’ motion for a mistrial. The sole issue on the cross-appeal is whether the district court abused its discretion in denying Duke’s motion to extend the time to file a cross-appeal from the judgment.
Dismissal of a juror pursuant to Fed. R.Civ.P. 47(c), and denial of a motion for a mistrial, are reviewed for abuse of discretion. See United States v. Thomas, 116 F.3d 606, 612 (2d Cir.1997) (dismissal of juror under Fed.R.Crim.P. 23(b)); United States v. Carson, 52 F.3d 1173, 1188 (2d Cir.1995) (motion for a mistrial).
On the first and third days of jury deliberations, the jury sent notes to Judge Sey-bert claiming that it was “hopelessly deadlocked,” but was told to continue on both occasions. On the morning of the fourth day, Juror No. 7 telephoned the courtroom deputy and explained that he had been subjected to “verbal abuse,” which caused him “great stress” and “stomach problems, diarrhea, loss of appetite, [and an] inability to sleep.” With counsel present, Judge Seybert questioned Juror No. 7, who explained that he was suffering mentally and physically, that stress rendered him unable to continue deliberations, and that he had experienced a similar episode nine years earlier that was treated by therapy and drugs. He added:
And I have been verbally attacked in the jury room numerous times. And I just can’t stand to go back again. There are a couple of people in there that I can’t even bear to look at. I don’t think at this point that I can continue to deliberate.
When asked about the nature of the verbal attacks, Juror No. 7 said that they were along the lines of “insults.”
Defendants’ counsel contended that Juror No. 7’s problems were the result of others on the jury verbally abusing him, likely in an effort to force him off the jury. Duke’s counsel contended that there was no evidence that other jurors were trying to force Juror No. 7 off the jury, and that reasons other than the juror’s view on the merits could have caused the stress-related problems. Judge Seybert dismissed Juror No. 7 based on the juror’s stated maladies, and denied the defendants’ motion for a mistrial.
Defendants urge reversal on the basis of United States v. Thomas, 116 F.3d 606 (2d Cir.1997). In Thomas, we held that a juror could be removed during deliberations if the juror was engaged in nullification, id. at 617, but that the facts of Thomas suggested a possibility that the juror in question was holding out based on his view of the evidence. Id. at 623-24. We ruled that a juror should not be dismissed “if the record evidence discloses any possibility that the request to discharge stems from the juror’s view of the sufficiency of the ... evidence.” Id. at 621-22 (quoting United States v. Brown, 823 F.2d 591, 596 (D.C.Cir.1987)) (emphasis omitted). In a footnote, we stated: “[I]f the record raises any possibility that the juror’s views on the merits of the case, rather than a purposeful intent to disregard the court’s instructions, underlay the request that he be discharged, the juror must not be dismissed.” Id. at 622 n. 11.
*561Defendants contend Judge Seybert erred in dismissing Juror No. 7 because there is a possibility that the juror’s request for discharge was based on his views of the merits of this case.
We conclude that the district court did not abuse its discretion in dismissing Juror No. 7. In United States v. Baker, 262 F.3d 124 (2d Cir.2001), we stated that “[t]he stringent rule announced in Thomas applies to removal of a juror by reason of the juror’s determination to vote without regard to the evidence.” Id. at 131. Courts in this Circuit have interpreted Thomas to apply when the record includes evidence that a juror is a “holdout.” See, e.g., United States v. Samet, 207 F.Supp.2d 269, 281 (S.D.N.Y.2002). In this case, there was no evidence before Judge Seybert that Juror No. 7 was determined to vote without regard to the evidence or was a holdout, and ample evidence that Juror No. 7 was suffering physically and mentally. We cannot hold that the district court abused its discretion in excusing Juror No. 7 from further deliberations, or by denying the motion for a mistrial.
Duke cross-appeals from the district court’s decision not to extend Duke’s time to file a cross-appeal from the judgment — a decision we review for abuse of discretion. United States v. Carson, 52 F.3d 1173, 1180 (2d Cir.1995). Under Fed. R.App. P. 4(a)(5)(A), a party seeking an extension of time must show “excusable neglect or good cause.” Four factors are relevant to determining whether a motion to extend should be granted: “[1] the danger of prejudice to the [non-moving party], [2] the length of the delay and its potential impact on judicial proceedings, [3] the reason for the delay, including whether it was within the reasonable control of the movant, and [4] whether the movant acted in good faith.” Pioneer Inv. Servs. Co. v. Brunswick Assocs., Ltd., 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993); see also United States v. Hooper, 43 F.3d 26, 28 (2d Cir.1994) (applying four Pioneer factors to Rule 4). Of these factors, the reason for the delay is often the “most prominent factor,” Hooper, 43 F.3d at 28. This Court has noted that “a party claiming excusable neglect will, in the ordinary course, lose under the Pioneer test.” Canfield v. Van Atta Buick/GMC Track, Inc., 127 F.3d 248, 251 (2d Cir.1997).
In this case, Duke’s counsel asserts that the filing delay was caused by a miscom-munication between trial counsel and appellate counsel over who had responsibility for filing the notice of cross-appeal. Moreover, Duke’s trial counsel was engaged in a separate criminal trial involving a different client, and therefore could not monitor appellate counsel.
The district court applied the four Pioneer factors, determining that the first two — danger of prejudice, and length and impact of delay — tipped in favor of Duke, while the fourth — bad faith — “tip[ped] somewhat in defendants’ favor,” because Duke waited a week to file the motion to extend despite Duke’s intention to cross-appeal and her counsel’s familiarity with the relevant procedures.
The court relied largely on the finding that the third factor — the reason for delay — “weighs heavily in favor of the defendants.” The district court concluded that Duke’s reason for the delay was based on circumstances within the control of her counsel, and noted that counsel had “the assistance of several associates and law clerks who could have prepared and filed the requisite notice or ensured that the notice was filed in a timely manner.”
The district court fulfilled its obligation to consider the Pioneer factors, and Duke has not demonstrated that the denial of *562her motion was an abuse of the court’s discretion.
For the foregoing reasons, the judgment and order of the district court are hereby AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217768/ | SUMMARY ORDER
THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 25th of April, two thousand and three. UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED that the judgment of the district court be and it hereby is AFFIRMED.
This is an appeal of a sentencing decision. Defendant-Appellant Angel Garcia was convicted of one count of using “a telephone [in] committing, causing and facilitating ... the distribution and possession with intent to distribute of heroin ..., the distribution and possession with intent to distribute of cocaine ..., the distribution and possession with intent to distribute of cocaine base ..., and conspiracy to do so,” in violation of 21 U.S.C. § 843(b) and 18 U.S.C. § 2. Yet he was acquitted of the two “underlying” counts (conspiring to distribute heroin, cocaine, and cocaine base; and distribution of heroin), on which the “telephone” count would seem to depend.1 The district court found, however, by a “preponderance of the evidence,” that Garcia was a member of the charged conspiracy, and that 22 grams of crack cocaine that a co-conspirator prepared for Garcia were “relevant conduct” for sentencing purposes, pursuant to U.S.S.G. § lB1.3(a). The resulting offense level was 28, which corresponds to a guidelines-range sentence of 140-175 months, well in excess of the statutory maximum of 48 months on the count of conviction. Accordingly, Garcia was sentenced to 48 months’ imprisonment.
On appeal, Garcia argues that the “underlying offense” for the telephone charge was a one-time sale of .28 grams of heroin (which appears to have been arranged during the two telephone calls identified in the indictment), and that the preparation of 22 grams of crack was not “relevant conduct” to the offense of using a telephone to arrange the sale of .28 grams of heroin. He further contends that there was an inadequate evidentiary basis for linking him to the 22 grams of crack, given that this finding depended entirely on the uncorroborated testimony of a co-defendant-turned-eooperating-witness.
We need not decide whether the district court erred in determining that the “underlying offense” was membership in the *567charged conspiracy, rather than a single sale of heroin, because in either case procuring 22 grams of cocaine base constitutes “relevant conduct” for sentencing purposes, and, hence, the resulting guidelines range is the same. See U.S.S.G. § 2D1.1 (setting common base offense levels for unlawful manufacturing, importing, exporting, trafficking, attempt, and conspiracy, based on the amount and type of narcotic involved).
The base offense level for using a telephone to arrange drug sales in violation 21 U.S.C. § 843(b) is “the offense level applicable to the underlying offense.” See U.S.S.G. § 2D1.6. According to the guidelines, the offense level applicable to a single count of selling heroin should reflect other narcotics activities that are part of the same “course of conduct” as the charged offense. See U.S.S.G. § 1B1.3(a)(2); United States v. Burnett, 968 F.2d 278 (2d Cir.1992). This “course of conduct” inquiry focuses on whether the “defendant has engaged in an identifiable ‘behavior pattern’ of specified criminal activity.” Burnett, 968 F.2d at 280.
In Burnett, the defendant pled guilty to one count of possessing, with intent to distribute, marijuana, based on a single purchase of a 22-pound bale of marijuana. Id. at 279. In calculating Burnett’s base offense level, the district judge included 3 kilograms of cocaine that a government witness claimed to have sold to Burnett in two transactions some months before the marijuana deal. Id. Burnett objected (a) that there was an insufficient factual basis for attributing the cocaine to him, given that the sole “evidence” was testimony from a doubtful government witness, and (b) that the cocaine transactions were not “relevant conduct” within the meaning of the guidelines. Id. at 279-80. We disagreed.
As to the first point, we deferred to the district court’s judgment that the witness was credible and the defendant was not. Id. at 280. Likewise, in the case before us, we must defer to the district court’s credibility finding regarding the cooperating witness who testified that he prepared 22 grams of crack at Garcia’s behest.
Regarding “relevant conduct,” Burnett concluded that the defendant’s “participation in two narcotics transactions during the same year as the offense of conviction [had] sufficient similarity and temporal proximity to the marijuana offense to constitute ... a pattern of behavior.” Id. at 280. In the instant case, the link is even closer, as the crack preparation took place “between March and May of 2000,” and the heroin sale on March 7, 2000. Moreover, much additional evidence adduced at trial supports the inference that Garcia frequently dealt narcotics (though it is less clear that he belonged to the charged conspiracy). Garcia’s procurement of 22 grams of crack could manifestly be viewed as part of the same “course of conduct” as his alleged distribution of heroin on March 7, 2000.
Assuming for the sake of argument (1) that such a “course of conduct” finding would be merely permissible, rather than necessary, and (2) that the heroin sale was the trae “underlying offense” for the telephone count, there still would be no reason to remand this case for resentencing. It is abundantly clear from the sentencing transcript that the court deemed it appropriate to sentence on the basis of the 22 grams of crack regardless of whether the underlying offense was determined to be the conspiracy or the heroin sale.
Accordingly, the sentence imposed by the district court is AFFIRMED.
. The Supreme Court has held that such an inconsistency within the verdict does not render the conviction unconstitutional. See United States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984) (upholding conviction for use of a telephone in furtherance of a drug conspiracy, notwithstanding the jury’s finding that the defendant was not guilty of participating in the conspiracy). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217769/ | SUMMARY ORDER
THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 25th day of April, two thousand and three.
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order appealed from is AFFIRMED.
Pursuant to a certificate of appealability granted by this court on May 28, 2002, *569petitioner Jackie Leonza Walden appeals from an order of the district court denying his 28 U.S.C. § 2255 motion for vacatur or correction of his sentence.
In 1998, a jury convicted Walden of one count of conspiring to distribute and possess with intent to distribute five kilograms or more of cocaine. The jury was not asked to find drug quantity and did not do so. At sentencing, the court found that the amount of cocaine chargeable to Walden exceeded 150 kilograms. Based in part on this finding, the court sentenced Walden to 348 months imprisonment. We affirmed Walden’s conviction and sentence and specifically rejected Walden’s argument that the court committed clear error by attributing over 150 kilograms of cocaine to him. United States v. Rivera, 205 F.3d 1326, 1999 WL 1254462 (2d Cir. Nov.17,1999).
In October 2001, Walden filed a Section 2255 motion based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Walden contended that his sentence was impermissible because the jury did not find quantity, and conspiracy to sell an unspecified amount of cocaine is punishable by a maximum of twenty years imprisonment. See 21 U.S.C. § 841(b)(1)(C). The district court denied Walden’s motion, finding in pertinent part that (1) Walden did not argue at trial or on direct appeal that the jury was required to find quantity and (2) Walden could not establish cause for his procedural default or prejudice. In finding no prejudice, the district court pointed out that conspiracy to sell as little as 500 grams of cocaine carries a maximum penalty of forty years and that the proof of quantity in excess of this amount was overwhelming.
In May 2002, a panel of this court granted a certificate of appealability limited to three issues: (1) whether because petitioner’s conviction was not final at the time Apprendi was decided, he could rely on Apprendi even in the absence of a determination that Apprendi must be applied retroactively; (2) whether the unavailability of Apprendi at the time of Walden’s trial and during the pendency of his direct appeal to this court constituted cause for his default; and (3) whether, in the absence of cause and prejudice “an Appren-di-type sentencing error may constitute, even in the absence of a showing of actual innocence of the underlying offense, a ‘fundamental miscarriage of justice’ ” that allows the court to review the procedurally defaulted claim.
We affirm the district court’s order because regardless of the correct answer to questions 1 and 2, petitioner cannot establish either prejudice stemming from the asserted Apprendi error or a fundamental miscarriage of justice.
Where-as here-a habeas petitioner fails to raise a claim on direct appeal, he may not pursue that claim in a habeas proceeding unless he “can demonstrate both cause and prejudice-cause for the default and prejudice arising from imposing the bar of a default” or the existence of a fundamental miscarriage of justice. Strogov v. Attorney Gen. of the State of N.Y., 191 F.3d 188 (2d Cir.1999). A fundamental miscarriage of justice occurs when a petitioner is factually innocent of a charge. Bousley v. United States, 523 U.S. 620, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). In the certificate of appealability, we invited the parties to brief whether a fundamental miscarriage of justice also could exist when the petitioner was not actually innocent of the underlying offense. In Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d 162, 171-72 (2d Cir.2000), we held that “actual innocence” can include not only innocence of the offense itself but also at least some other instances where the purported existence of an underlying fact resulted in an increased penalty for the petitioner. We need not *570decide, however, whether Spence could include Walden’s claim here. Even for those sentencing facts plainly included in Spence, we require the petitioner to demonstrate his “innocence” of a sentencing condition by “clear and convincing proof.” 219 F.3d at 172. Walden makes no effort at all to demonstrate that he did not conspire to possess and distribute enough cocaine to justify his sentence.
The possession, with intent to distribute, of as little as 500 grams of a substance containing a detectable amount of cocaine requires imposition of a sentence of between five and forty years imprisonment. 21 U.S.C. § 841(b)(1)(B). Because Walden’s sentence fell within this range, he cannot demonstrate actual innocence of the conduct underlying the enhanced sentence without pointing to proof that less than 500 grams of cocaine are attributable to him. We already have rejected Walden’s Guidelines-based challenge to the district court’s finding that Walden was responsible for more than 150 kilograms of cocaine. In addition, the evidence of Walden’s responsibility for over 500 grams of cocaine was overwhelming and essentially uncontro-verted. One of Walden’s accomplices testified that he regularly delivered multi-kilogram quantities of cocaine to Walden and his brother at an apartment they occupied on Craft Avenue in Rosedale, New York. The government introduced tape-recordings of telephone conversations between the Walden brothers and the accomplice in which they discussed the purchase of large quantities of cocaine. The government also introduced 9.9 kilograms of cocaine that it seized from the accomplice and another 1.01 kilograms (over 1000 grams) seized from the brothers’ apartment. Walden stipulated to the weight of the cocaine from both seizures. Having heard and seen this evidence, the jury could not reasonably have determined that the amount of cocaine attributable to Walden was less than 500 grams. Therefore, Walden cannot overcome his procedural default either by showing cause and prejudice or by establishing a fundamental miscarriage of justice, i.e., his actual innocence of the conduct that increased his sentence.
In fact, Walden could not have prevailed on the Apprendi issue even if he had first raised it on direct appeal rather than on collateral review. Where evidence of the drug quantity necessary to trigger a given statutory maximum is “overwhelming” and “essentially uncontroverted,” there is no “real threat ... to the fairness, integrity, and public reputation of judicial proceedings,” and a defendant who failed to object to the omission of drug quantity in an indictment cannot prevail on appeal under the plain error rule. United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 1786-87, 152 L.Ed.2d 860 (2002) (internal quotation marks omitted). The same analysis applies to a district court’s failure to submit drug quantity to a jury. United States v. Guevara, 298 F.3d 124, 125-27 (2d Cir.2002). Because the evidence that Walden was responsible for more than 500 grams of cocaine is overwhelming, the plain error doctrine would not have been available to him. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217770/ | SUMMARY ORDER
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of said district court be and it hereby is AFFIRMED.
Plaintiff-appellant Bernhard Fred Man-ko and petitioner-appellant Jon Edelman moved to vacate their convictions and to obtain a new trial pursuant to 28 U.S.C. § 2255. Following a joint jury trial, Man-ko and Edelman were convicted in 1991 of making false tax returns and aiding and abetting the preparation of false tax returns in violation of 26 U.S.C. § 7206(1) and § 7206(2), and of conspiring to violate the tax laws and to defraud the United States in violation of 18 U.S.C. § 371. We presume familiarity with the facts and procedural history detailed in the decision below, Manko v. United States, Nos. 95 Civ. 1611, 96 Civ. 3667, 1998 WL 391129 (S.D.N.Y. July 13, 1998) (“Manko III”), and from the prior decisions relating to this case, see United States v. Manko, 979 F.2d 900 (2d Cir.1992) (“Manko I”); Manko v. United States, 87 F.3d 50 (2d Cir.1996) (“Manko II”); Manko v. Comm’r, 74 T.C.M.(CCH) 1174, 1997 WL 701355 (1997); and Manko v. Comm’r, 69 T.C.M. (CCH) 1636, 1995 WL 39228 (1995). The key question in this appeal is whether the district court properly excluded evidence of the appellants’ earlier civil settlement with the IRS which disallowed eighty percent of the deductions that the IRS claimed to be fraudulent.
In 1996, we vacated and remanded the district court’s denial of habeas relief because the district court had erroneously excluded evidence of an earlier civil settlement with the IRS as a matter of law under Fed.R.Evid. 408. See Manko II, 87 F.3d at 55. On remand, the district court ruled that the evidence of a settlement was not relevant under Fed.R.Evid. 401 and 402, and that the evidence’s probative value was substantially outweighed by the danger of confusion under Fed.R.Evid. 403. On appeal, Manko and Edelman argue that (1) a tax court decision collaterally estopped the district court from finding that the settlement was inadvertent; (2) the evidence was relevant; (3) the district court erred in excluding the evidence under Rule 403; and (4) they should receive a new trial because the prosecution suppressed the evidence and permitted false testimony relating to the settlement.
We review the district court’s evidentiary rulings for abuse of discretion. Old Chief v. United States, 519 U.S. 172, 174 n. 1, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). Assuming arguendo that the IRS intended to settle its civil case against Manko and Edelman and that the settlement was relevant under Rules 401 and 402, the district court did not abuse its discretion in ruling that the evidence’s probative value is substantially outweighed by the danger of confusion of the issues and of misleading the jury. Fed.R.Evid. 403. The district court found that the evidence had little probative value with respect to the ultimate issue of guilt in the criminal case because the settlement reflected the IRS’s doubts as to its ability to prove its case at trial, not doubt as to whether the underlying transactions were fraudulent. Manko III, 1998 WL 391129, at *10. The settlement’s disallowance of eighty percent of the claimed deductions suggests that even those doubts about success at trial were not strong. Id. at *6.
If the evidence were admitted, the trial would have been diverted from the central *573issue of guilt or innocence to a complicated inquiry into the IRS’s bureaucratic mechanisms in hopes of divining the IRS’s true intent in reaching a civil settlement with appellants. This inquiry necessarily would delve into the morass of a particularly messy negotiation in this case and into the IRS’s complex policies of settlement and enforcement. Admission of the settlement would have yielded little probative value, and it would have confused and misled the jury. Furthermore, this evidence would have wasted time. Fed.R.Evid. 403. Exploration of the issues relating to the settlement at the district court’s § 2255 hearing lasted several days, and could have been expected to consume more time when conducted before a jury. We have held that “[a] trial judge has discretion to exclude evidence [that] is only slightly probative if its introduction would confuse and mislead the jury by focusing its attention on collateral issues and if it would unnecessarily delay the trial.” United States v. Bowe, 360 F.2d 1, 15 (2d Cir.1966); cf. United States Football League v. Nat. Football League, 842 F.2d 1335, 1373 (2d Cir.1988) (not error to exclude evidence that would have led to “mini-trial”).
Manko and Edelman claim that they are entitled to a new trial because the prosecution improperly withheld evidence of the settlement. Assuming arguendo that the prosecution knew or should have known of the settlement, a new trial is warranted only “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (internal quotation marks omitted). Because the evidence would have been excluded under Rule 403, the result of the proceedings would not have been different. Accordingly, the appellants are not entitled to a new trial.
For the foregoing reasons, the judgment of the district court is AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217771/ | SUMMARY ORDER
THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 28th day of April, two thousand and three.
AFTER ARGUMENT AND UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the District Court is hereby AFFIRMED.
During the summer of 2001, as part of its investigation into heroin trafficking in central Vermont, the Vermont State Police Drug Task Force made three separate controlled heroin purchases from Defendant-Appellee Daniel Normandeau. Thereafter, on September 10, 2001, Nor-mandeau was arrested for heroin trafficking and was subsequently indicted for distribution of heroin. Normandeau entered into a plea agreement with the government and, on March 13, 2002, he pleaded guilty to one count of possession with the intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1).
In his pre-sentencing submission to the District Court, Normandeau sought, inter alia, a downward departure for extraordinary rehabilitation. In its reply, the government objected to such a departure, arguing that Normandeau’s completion of a treatment program while incarcerated was not extraordinary. At Normandeau’s sentencing hearing on September 5, 2002, Dr. Lisa Marsch, a psychologist with expertise in the treatment of opiate addiction, testified at length about Normandeau’s drug history, the nature of his addiction and the numerous factors that demonstrated to her that he has good prospects for remaining *575drug free. She also explained that Nor-mandeau’s successful completion of the drug treatment program at the Addison County jail was particularly surprising because the inmates have to quit without the benefit of any of the available medications that treat opiate dependence.
At the end of the sentencing hearing, the District Court granted Normandeau a six-level downward departure for his “extraordinary rehabilitation” and sentenced him to 32 months in prison, to be followed by three years of supervised release. In its “Statement of Reasons for Sentence,” the District Court explained that this departure was warranted because Normandeau “successfully completed the drug rehabilitation program offered at the Addison County Jail. He also volunteers 10-12 hours a day helping in the kitchen with meal preparation, serving and clean-up. He continues to make significant recovery from his heroin use as testified to by Dr. Marsch.” In addition, the District Court indicated that it was “frankly ... impressed” by the letter that Normandeau submitted to the court regarding his background, heroin addiction, rehabilitation and prospects for continued abstinence.
On appeal, the government challenges this sentence, arguing that the District Court abused its discretion in downwardly departing on the basis of extraordinary rehabilitation because Normandeau’s efforts were “not sufficiently extraordinary” to justify a departure.
As set forth by the Supreme Court in Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), we review the grant of a downward departure for an abuse of discretion. See id. at 98-100, 116 S.Ct. 2035. The Koon Court emphasized that in most cases a district court’s downward departure would be “due substantial deference, for it embodies the traditional exercise of discretion by a sentencing court.” Id. at 98, 116 S.Ct. 2035 (noting that “[district courts have an institutional advantage over appellate courts in ma,king these sorts of determinations, especially as they see so many more Guidelines cases than appellate courts do.”). Relatedly, we accept the district court’s factual findings unless they are clearly erroneous. See 18 U.S.C. § 3742(e).
It is well established in this Circuit that “a defendant’s rehabilitative efforts can, in an appropriate case, warrant a downward departure.” United States v. Maier, 975 F.2d 944, 945 (2d Cir.1992) (affirming the district court’s downward departure). In Maier, we enumerated the factors that were “pertinent” to the extraordinary rehabilitation inquiry, “including the nature of the defendant’s addiction, the characteristics of the program she has entered, the progress she is making, the objective indications of her determination to rehabilitate herself, and her therapist’s assessment of her progress toward rehabilitation and the hazards of interrupting that progress.” Id. at 948-49. More recently, in United States v. Bryson, 163 F.3d 742 (2d Cir.\1998), we made clear that the evaluation of extraordinariness focuses on the particular circumstances of each defendant’s case. Id. at 748-49 (“Much depends on the baseline from which an individual’s extraordinary rehabilitation can be measured.”).
The government’s principal argument in this case is that there is nothing in the record about the requirements of the Addison County jail drug treatment program or the degree of Normandeau’s participation. At oral argument, however, we understood the government to have conceded that this program was developed by the two District Judges in Vermont. In addition to Dr. Marsch’s testimony about the program, then, the District Court clearly had a basis for evaluating the extraordinariness of Normandeau’s participation in and successful completion of this particular pro*576gram. Cf. Koon, 518 U.S. at 98, 116 S.Ct. 2035. And although the government argues that Normandeau’s participation in the Addison County jail program does not distinguish him from the other federal inmates at that facility, Normandeau did not merely ‘participate in the program; he successfully completed it.
In addition, the government claims that the District Court’s consideration of Nor-mandeau’s volunteer work at the jail is “baffling.” We reject the assertion that evidence of a defendant’s volunteer work (particularly where, as here, it involves 10-12 hours of work per day) is irrelevant to the extraordinary rehabilitation analysis. See Bryson, 163 F.3d at 749 (explaining that defendant’s “regular employment” and helpfulness at home were relevant to extraordinary rehabilitation analysis); United States v. Rodriguez, 724 F.Supp. 1118, 1119 (S.D.N.Y.1989) (finding that defendant’s return to being “provider” for his family and “productive citizen” were relevant to the decision to grant a downward departure).
Finally, this case is clearly distinguishable from those cases in which we have vacated a district court’s downward departure for extraordinary rehabilitation. For example, in United States v. Williams, 37 F.3d 82 (2d Cir.1994), the district court granted the defendant a downward departure after he attended less than half of a 40-hour drug education program. See id. at 86. We rejected the suggestion that a downward departure for extraordinary rehabilitation could be appropriate where the defendant had not yet entered any treatment program (but had merely expressed a “genuine interest” in seeking treatment). Id. And in Bryson, we vacated one defendant’s downward departure because the only evidence of his purported rehabilitation (other than his attorney’s opinion) was his mother’s statement that he had “learned his lesson.” 163 F.3d at 745, 748. Despite the government’s arguments to the contrary, the evidence presented by Normandeau and credited by the District Court in this case is much more substantial than the showings that we rejected in Williams and Bryson.
We have reviewed the record in its entirety and have considered all of the government’s arguments. While we agree with the District Court’s assessment that this case was a “close call,” we reject the government’s contention that the decision to grant a downward departure on these facts was an abuse of discretion. Accordingly, the judgment of the District Court is hereby AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217772/ | SUMMARY ORDER
THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 9th day of May, two thousand and three.
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be and it hereby is AFFIRMED.
Dale G. Kepner (“Plaintiff-Appellant”) owns an apartment building in Somerset, New York. The town’s board approved Plaintiff-Appellant's plan to construct space for a retail business on the first floor of the building and three apartments on the second floor. Upon encountering difficulty finding a commercial tenant, Plaintiff-Appellant sought to convert the entire *578building into a multiple-unit apartment building. However, the board denied Plaintiff-Appellant’s “Special Use Permit” application. Plaintiff-Appellant subsequently sought to lease part of the first floor to a sailmaker and to construct four additional apartments. The board approved the application, but Plaintiff-Appellant decided not to proceed with the project, though he continued to lease the three upstairs apartments to tenants.
Between July 1989 and February 1993, the Niagara County Health Department conducted no less than eight inspections of the premises and sent Plaintiff-Appellant no less than five code violation notices. In March of 1993, Plaintiff-Appellant filed a complaint against a tenant for failing to pay rent, and the tenant raised the affirmative defense that the apartment was not habitable. In resolving the case, Somerset Town Justice Beryl T. Coleman inspected the apartment and concluded that it was not safe because of water leaks through electrical lights in the ceiling and walls, broken gas pipes, and unsafe stairways. Justice Coleman ordered the tenant to vacate the apartment and ordered Plaintiff-Appellant not to rent it to anyone until he corrected the problems. Justice Coleman also viewed the building in connection with an unrelated drug raid. In April of 1994, neighbors complained to Justice Coleman about conditions at the building, and he forwarded the complaints to the proper authorities.
In March of 1995, the Niagara County Health Department again inspected the building and found more than 60 violations. The county informed Plaintiff-Appellant that he risked having the building condemned unless he made it compliant with state and local laws within 30 days. The next month, the Town of Somerset inspected the building in response to neighbors’ complaints and ordered Plaintiff-Appellant to correct the violations or face fines and imprisonment. Justice Coleman accompanied the inspectors and wrote a letter to the town’s board describing the poor conditions. The letter also stated that Plaintiff-Appellant had not made substantial improvements since the judge’s first visit in 1993.
On February 19, 1997, the town inspected the apartment budding and found that Plaintiff-Appellant had made little progress in correcting the problems identified during the 1995 inspections. On February 24, 1997, the Niagara County Health Department inspected the property and cited Plaintiff-Appellant for numerous violations, most of which were identified during the 1995 inspections. The town inspector and a state official reinspected the budding on March 17,1997 and found over 50 budding and health code violations. The town ordered Plaintiff-Appellant to correct the violations by May 1 or face fines and imprisonment.
Plaintiff-Appedant filed the instant suit seeking injunctive relief against Justice Coleman, as wed as the Town of Somerset and unnamed elected and appointed officials (“the municipality”), for adegedly violating the Fair Housing Act, 42 U.S.C. § 3601 et seq. Plaintiff-Appedant alleged that Defendants-Appedees’ actions were motivated by the fact that his tenants are ethnic minorities and people with disabdities. The district court granted Defendants-Appedees’ motion for summary judgment, and Plaintiff-Appedant appeals that decision.
At the outset, Justice Coleman is immune from dabdity, as none of his actions were extra-judicial or taken in “complete absence of ad jurisdiction.” See Mireles v. Waco, 502 U.S. 9, 12, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991) (per curiam). Moreover, Plaintiff-Appedant proffers no evidence that the municipality’s actions with respect to the “Special Use Permits” or the budding inspections and attendant cita*579tions were motivated in any part by unlawful considerations. There is also no evidence that the municipality’s requirement that Plaintiff-Appellant repair the property and construct firewalls was discriminatory. Plaintiff-Appellant does not dispute that his building was in an extensive and prolonged state of disrepair. Nor does Plaintiff-Appellant dispute that the County of Niagara, which is not a party to this action and did not allegedly discriminate against him, also inspected the building and found numerous violations that could result in condemnation.
Based upon the foregoing, the judgment of the United States District Court for the Western District of New York is AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217775/ | SUMMARY ORDER
THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 15th day of May, two thousand and three.
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be and it hereby is AFFIRMED.
Ronald Cerreta appeals from the September 3, 2002, judgment of the United States District Court for the District of Connecticut (Stefan R. Underhill, Judge), sentencing him to thirty months imprisonment, three years of supervised release, a $6,000 fine, and a special assessment of $100, after his conditional guilty plea to a charge of knowingly receiving material containing child pornography in violation of 18 U.S.C. § 2252A(a)(2). The plea agreement reserved defendant’s right to appeal the court’s ruling denying his motion to suppress statements and evidence recovered during the course of the execution of search and arrest warrants relating to an investigation into alleged intellectual property theft activities of defendant’s 27-year-old son, Christopher Cerreta. On February 6, 2002, the district court held an evidentiary hearing on defendant’s motion to suppress. The court heard testimony from Agent David Conboy and Special Agent Craig Bowling of the United States Customs Service. These two agents conducted the interview with Cer-reta. During that interview, which took place in the master bedroom of the home, most of the questioning involved the intellectual property theft investigation. However, Agent Conboy, who knew about a prior investigation of Cerreta for child pornography possession, also asked defendant some questions about child pornography. The defendant made incriminating statements in response to those questions. At the suppression hearing, Agent Conboy also testified to the circumstances in which he obtained from Cerreta the consent forms which allowed the agents to take Cerreta’s computer. At the conclusion of the hearing, the district court denied the motion to suppress.
On appeal, defendant argues that the district court applied the wrong legal standard for determining custody for Miranda purposes when it compared the interrogation of defendant to a Terry stop. He concludes that application of the proper legal standard leads to a determination that Cerreta was in custody. Defendant also contends that his consent to the search of his computer was involuntary and the fruit of the unconstitutional interrogation. Finally, Cerreta claims that by conducting the interrogation during the *587execution of the unrelated search warrant, the agents intended to circumvent the probable cause requirement and to question defendant in a coercive atmosphere.
We review the district court’s factual findings on a custody issue for clear error, and its legal conclusions de novo. United States v. Romaszko, 253 F.3d 757, 760 (2d Cir.2001) (per curiam). Cerreta’s allegation that the district court applied the incorrect legal standard is without merit. It is true that we have held that a Terry analysis cannot excuse the failure to give Miranda warnings and that Terry is irrelevant to the Miranda analysis. United States v. Ali, 68 F.3d 1468, 1473 (2d Cir.1996) (citing Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). However, the transcript of the suppression hearing does not support defendant’s claim that the district court applied the improper legal standard. The district court posed a hypothetical question comparing the interrogation to a Terry stop, but this reference was only one brief statement among many made by the district court in exploring the issues with counsel. At the time of its ruling, the district court correctly noted that it was “required to look at the totality of the circumstances to determine whether or not the defendant was objectively, from an objective point of view considered that he had restrictions placed on him sufficient to constitute custody.” The court concluded that “all [issues] point essentially in one direction,” and explained that the defendants were legitimately on the premises; that no weapons were displayed; that no search or frisk was conducted; that the defendant was informed that he did not have to answer questions, that he was not under arrest, and that he could leave if he wanted to; that it was legitimate to separate the defendant in the bedroom with the door closed but not locked or blocked; that only two agents, not hovering over or touching the defendant, conducted the interview; that there was no evidence that defendant sought and was unable to leave prior to the end of the interrogation; that there was a cordial atmosphere during the questioning; and that the amount of time involved was not excessive. The court later reiterated, “[I]t is my finding that an objective person in the defendant’s position at the time of the interrogation ... would have objectively felt free to leave and/or not to answer or respond to the requests that were made by law enforcement, and under these circumstances the Miranda right did not attach at the time of the interview.” The court’s factual findings are not clearly erroneous. Given these factual findings, we agree with the district court that a reasonable person would have felt that he or she was free to terminate the interrogation or to leave.
We also find that the district court did not commit clear error in concluding that Cerreta’s consent to the seizure of his computer was voluntary. The court noted that the defendant was told he did not have to sign the consent forms. The court also noted that although Cerreta was told the officers would seek a warrant if he did not consent, that alone does not establish that the consent was the product of coercion. See, e.g., United States v. Kon Yu-Leung, 910 F.2d 33, 41 (2d Cir.1990).
We also reject Cerreta’s claim that the interrogation was used as a means of circumventing the probable cause requirement. The evidence in the record does not support a finding that the search warrant for the intellectual property theft investigation was a mere pretext. Moreover, even if, as Cerreta claims, that search warrant was used “as a means and a first step to isolate Ronald Cerreta and to interrogate him with the specific purpose of having him acknowledge and admit that he was in possession of child pornography on *588his computer,” the subjective motives of the agents here do not affect the district court’s finding that a reasonable person in Cerreta’s position would have felt that he or she was free to terminate the interrogation or to leave. See, e.g., Stansbury v. California, 511 U.S. 318, 324-25, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994) (per curiam) (noting that an officer’s subjective knowledge or beliefs do not affect the custody issue if the knowledge is not communicated to the individual being questioned).
For the reasons stated above, we affirm the judgment of the district court. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217776/ | SUMMARY ORDER
THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, *589BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 20th day of May, Two thousand and three.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the District Court is AFFIRMED.
Michael and Cherie Burrell, pro se and fee paid, appeal from a district court judgment dismissing their case without prejudice, pursuant to Fed.R.Civ.P. 41(b), for failure to comply with the district court’s order to file a complaint on or before May 1, 2002. The Burells also filed in this Court a “motion to strike AT & T’s appellate brief,” and a motion to amend the lower court record.
A district court has the authority under Fed.R.Civ.P. 41(b) to “dismiss a complaint for failure to comply with a court order, treating the noncompliance as a failure to prosecute.” Simmons v. Abruzzo, 49 F.3d 83, 87 (2d Cir.1995). This Court reviews a district court’s dismissal for failure to prosecute for abuse of discretion. See Nita v. Connecticut Dep’t of Environmental Protection, 16 F.3d 482, 485 (2d Cir.1994). Factors which are relevant in determining whether there has been an abuse are:
(1) the duration of the plaintiffs failures, (2) whether plaintiff had received notice that further delays would result in dismissal, (3) whether the defendant is likely to be prejudiced by further delay, (4) whether the district court judge has taken care to strike a balance between alleviating court calendar congestion and protecting a party’s right to due process and a fair chance to be heard, and (5) whether the judge has adequately assessed the efficacy of lesser sanctions.
Nita, 16 F.3d at 485 (internal quotations omitted). Consideration of these factors in the instant case establishes that the district court did not abuse its discretion in the manner in which it dismissed the Bur-rells’ case.
First, over the course of an entire year, the Burrells were granted extensions to comply with the court order to file a complaint, but they continuously failed to comply with the order. Also, they still offer no explanation for the failure to comply. Instead, the Burrells merely assert that they should not have been required to appear in federal court.
Further, the Burrells were explicitly warned that failure to file a complaint by May 1, 2002 would result in the case’s dismissal without prejudice. Accordingly, when the Burrells failed to comply with the court’s direction that they file a complaint by May 1, the court properly dismissed the action without prejudice, thereby applying a lesser sanction than dismissal with prejudice. As such, the district court struck an appropriate balance between the right to due process and the need to clear the docket, and there was no abuse of discretion.
Lastly, both of the Burrells’ motions are hereby denied. First, it would be improper for this Court to “strike AT & T’s brief’ on appeal based on an inadvertent mistake in mailing the brief to the Burrells’ former address. Also, with regard to the motion to correct the lower court record, the record is not in need of correction or supplementation because the required missing *590documents were properly including in AT & T’s appendix on appeal.
Accordingly, the judgment of the district court is AFFIRMED and the Burells’ motions are denied. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217777/ | SUMMARY ORDER
THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, *591BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 20th day of May, Two thousand and three.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the District Court is AFFIRMED.
Patricia Woods, pro se, appeals the district court’s grant of summary judgment to defendant (John Potter, Postmaster, United States Postal Service, hereafter the “USPS”) on her claim that the USPS discriminated against her on the basis of her color, gender and disability when it failed to accommodate her disability, exposed her to sexual harassment and terminated her employment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”), and the Rehabilitation Act of 1973, 29 U.S.C. §§ 791 et seq.
This Court reviews a district court’s grant of summary judgment de novo, construing the evidence in the light most favorable to the non-moving party and drawing all reasonable inferences in its favor. Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 68 (2d Cir.2000). The Court will affirm a district court’s grant of summary judgment if “there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” Id. (internal citations omitted).
The district court correctly concluded that Woods’s claims are barred by res judicata. Title VII and other employment discrimination claims are governed by the federal res judicata doctrine, which requires a transactional analysis of whether a claim is precluded from adjudication by a previous decision. See Woods v. Dunlop Tire Corp., 972 F.2d 36, 38-39 (2d Cir.1992). Thus, “a judgment upon the merits in one suit is res judicata in another where the parties and the subject-matter are the same, not only as respects matters actually presented to sustain or defeat the right asserted, but also as respects any other available matter which might have been presented to that end.” Id.
Woods presented to the district court in this case the same claims that she presented in her previous case, that the USPS terminated her because of her disability and refused to rehire her. See Woods v. Runyon, 1998 WL 314885 (S.D.N.Y. June 12, 1998). In support of those claims in her previous case, she made the same allegation that the USPS did not treat her the same as others on “light duty” in that the USPS failed to accommodate her disability by assigning her to positions that caused her to re-injure her back. Id. at *1. The court decided against her in that case on the ground that the USPS did not have notice of her disability, if she was so disabled, and that she had not established that she was otherwise qualified to perform her job because of her record of absenteeism. Id. at *5-*9. The decision was affirmed. Woods v. Runyon, 173 F.3d 848 (2d Cir.1999) (unpub.). Woods’s racial and gender discrimination claims, including her claim of sexual harassment by her union delegate, involved the same transaction that was the subject of the previously decided suit, Woods’s termination and the circumstances surrounding it, and could have been brought in that suit. Accordingly, the district court properly dismissed *592her claims in this ease as barred by res judicata.
As Woods’s claims were legally barred from adjudication, she was not deprived of her right to a jury. See New York v. Lashins Arcade Co., 91 F.3d 353, 362 n. 7 (2d Cir.1996). Also, as Woods never requested counsel from the district court, there was no final order denying her counsel and thus, this Court has no jurisdiction to hear such an appeal. 28 U.S.C. § 1291.
For the foregoing reasons, we hold that the judgment of the district court is hereby AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217778/ | Summary Order
ORDERED, ADJUDGED, AND DECREED that the appeal is DISMISSED in part, and the judgment of the District Court is AFFIRMED in part.
On April 22, 1997, defendant-appellant William Vargas was charged in a superseding indictment with one count of conspiring to possess with intent to distribute heroin, 21 U.S.C. § 846, and one count of possessing with intent to distribute heroin, id. § 841(a)(1), (b)(1)(B). The government contends that Vargas participated in a narcotics trafficking conspiracy, which entailed couriers transporting drugs from Colombia to the United States by swallowing balloons filled with approximately seven grams of heroin per balloon.
Vargas suffers from a medical condition known as facial hemangioma, which has resulted in an unsightly tumor near his ear. In course of Vargas’s detention preceding his eventual guilty plea, the tumor grew substantially. A court-ordered physician examined Vargas and concluded that his condition was neither life-threatening nor even serious. The District Court permitted Vargas to have another doctor examine him at the MDC, but Vargas later claimed that he was unable to afford the doctor’s $2,000 fee. After Vargas objected to the court-ordered physician’s medical conclusions, the court responded, “We have a report of the doctor. You were supposed to get a doctor of your own to examine him and to refute this. You tell me that you can’t afford it, so I don’t think there is anything else I can do.” The court promised, however, that “[i]f there is a conviction through a plea or otherwise, I can direct the Bureau of Prisons to treat this — the defendant at whatever institution he goes and I will do that.”
On March 3,1998, Vargas pleaded guilty to the indictment and, on January 8, 1999, Vargas was sentenced. At sentencing, Vargas’s counsel explained to the court that he had advised his client against demanding a Fatico hearing on his role in the offense because the hearing could backfire and possibly result in a longer term of incarceration. Vargas ultimately agreed with his counsel’s recommendation and informed the court that he wanted to “accept the sentence today.” The court applied a two-level managerial role enhancement, thereby barring “safety valve” protection, and sentenced Vargas to the crime’s mandatory minimum of sixty months imprisonment. See U.S.S.G. § 5C1.2(a)(4) (making a defendant ineligible for the “safety valve” provision if he was “an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines”). The court also sentenced Vargas to a five-year term of supervised release and a special assessment of $100. Vargas was released from prison and deported to Colombia in July 2001.
On appeal, Vargas argues that his guilty plea must be voided because he was “so concerned about dying that he was willing to take the plea regardless of its conse*594quences.” Vargas also challenges the length of his incarceration, alleging that he involuntarily waived a Fatico hearing and that the District Court clearly erred in finding that he played a managerial role in the offense.
Because a defendant who pleads guilty “waives several constitutional rights, including his privilege against compulsory self-incrimination, his right to trial by jury, and his right to confront his accusers,” an involuntary guilty plea is “obtained in violation of due process and is therefore void.” McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). A guilty plea “is deemed ‘vol-untar/ if it is not the product of actual or threatened physical harm, mental coercion overbearing the defendant’s will, or the defendant’s sheer inability to weigh his options rationally.” Miller v. Angliker, 848 F.2d 1312, 1320 (2d Cir.1988). The Supreme Court has indicated that sufficient mental coercion so as to invalidate a guilty plea occurs if the defendant was so gripped by fear “that he did not or could not, with the help of counsel, rationally weigh the advantages of going to trial against the advantages of pleading guilty.” Brady v. United States, 397 U.S. 742, 750, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).
Vargas and his counsel repeatedly expressed concern about Vargas’s facial hemangioma. The court agreed that the condition looked serious, characterizing the ear as “an ugly mess” and “an ugly sight” and observing that it “needs some cosmetic surgery.” Notwithstanding the apparent gruesome appearance of the tumor, however, the record belies Vargas’s contention that he had no choice but to plead guilty to save his life. A report from a Colombian doctor who examined Vargas reveals that Vargas has suffered from the hemangioma since he was an infant. While in Colombia, Vargas passed on the opportunity to have a doctor treat the tumor, supposedly out of concerns on the quality of medical service. Additionally, the doctor who examined Vargas at the Bureau of Prisons concluded that his condition was not serious. As the District Court noted, we are not in the proper position to “refute a medical opinion by a doctor.” Furthermore, the court gave Vargas the opportunity to get another doctor to refute this medical opinion, but Vargas was unable to afford that option.
Vargas also points to the District Court’s statement that, “[i]f there is a conviction through a plea or otherwise, I can direct the Bureau of Prisons to treat this — the defendant at whatever institution he goes to and I will do that.” Vargas contends that this statement coerced him to plead guilty because it was the only way he could have received medical treatment. Analyzed in context, however, this statement was an innocuous statement in the course of discussions regarding the defendant’s treatment. In addition, this statement was made to the defendant at a December 5, 1997 hearing. The defendant did not plead guilty until almost four months later, on March 3, 1998. Therefore, whatever impact this statement may have had on the defendant’s decision to plead guilty was mitigated by the time delay.
Most importantly, the transcript of the plea hearing confirms the voluntary nature of the plea. In the course of the court’s Rule 11 colloquy, the defendant gave several answers that refute his allegation of coercion, including the following:
Q. Are you currently under the influence of any drug, medication or alcohol beverage?
A. No. I’m under medication for this problem [the facial hemangioma].
Q. Do you know what kind of medicine you’re taking?
*595A. Tylenol.
Q. Does this affect your judgment, your reasoning process?
A. No, your Honor.
Q. Now, has anyone made any promises to you to induce you to plead guilty today?
A. No, your Honor.
Q. Have there been any threats against you to induce you to plead guilty today?
A. No, your Honor.
Vargas then admitted his guilt in the heroin trafficking conspiracy. Vargas explained that he went to Kennedy Airport to pick up David Schmidt and take him to Maria Munoz “so she would have him stay at her house and [Schmidt] would evacuate the twenty pills he had brought.” Vargas admitted to knowing that these pills were heroin when he picked Schmidt up from the airport.
Turning to Vargas’s sentencing claims, we begin with the threshold issue of jurisdiction. Vargas was released from custody on July 6, 2001, and was deported to Colombia on July 23, 2001. The government maintains that Vargas’s release from prison has rendered his sentencing claims moot. Vargas responds with two arguments. First, Vargas contends that his sentence is not complete because he remains subject to a four-year term of supervised release. Vargas argues that were we to agree with his sentencing claims, the District Court might reduce his supervised release term on remand. Vargas also argues that Article III confers jurisdiction on a case-by-base basis, not an issue-by-issue basis. Therefore, Vargas contends that jurisdiction over his conviction triggers jurisdiction over his entire case, including his sentencing claims.
Article III, Section 2 of the United States Constitution limits federal subject matter jurisdiction to those cases that present a “case or controversy.” This “case or controversy” requirement “subsists through all stages of federal judicial proceedings, trial and appellate” and requires that the parties “continue to have a personal stake in the outcome of the lawsuit.” Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (internal quotation marks and citations omitted); accord United States v. Probber, 170 F.3d 345, 347-48 (2d Cir.1999).
Vargas argues that his appeal presents a “case or controversy” because he remains under supervised release and, therefore, his sentence has not been completed. Vargas reasons that his “sentencing claims, if accepted by this Court, might well reduce any supervised release term imposed on remand.” This argument, however, fails under our decision in United States v. Mercurris, 192 F.3d 290, 293 (2d Cir.1999), where we lacked jurisdiction over the sentencing claims of a defendant who had completed his prison term but was still on supervised release. Following the Supreme Court’s decision in Spencer, 523 U.S. at 12 (refusing to extend the presumption of collateral consequences of convictions to parole revocation because parole revocations do not result in sufficient civil disabilities), we explained that the defendant did “not proffer, nor are we aware of any civil disabilities which attend the longer sentence he served as a result of the district court’s application of the aggravated felony enhancement.” Mercurris, 192 F.3d at 294; see United States v. Ben Zvi, 242 F.3d 89 (2d Cir.2001) (reaching similar result where defendant, who since had been released from custody, objected to the calculation of her offense level).
*596Further, the possibility that the District Court might alter his term of supervised release on remand is too remote and speculative to create jurisdiction. See Ben Zvi, 242 F.3d at 99. Similar to the situation in Ben Zvi, where the sentence’s potential effect on the defendant’s ability to obtain discretionary immigration relief failed to create jurisdiction, here too the court’s decision to reduce supervised release would depend on a variety of factors of varying weight. See id.
Vargas’s second argument also falls short of the mark. Vargas maintains that Article III confers jurisdiction on a “case-by-case” basis, not an “issue-by-issue” basis, and therefore jurisdiction over his conviction triggers jurisdiction over his sentence. This argument is precluded by Ben Zvi where we dismissed for lack of jurisdiction the defendant’s claims pertaining to her length of incarceration, but resolved the merits of the defendant’s challenges to her conviction and her objections to the order of restitution. Ben Zvi 242 F.3d at 95-98, 99. In Ben Zvi we did precisely what Vargas claims cannot be done by assessing jurisdiction, specifically mootness, on an “issue-by-issue” basis.
We have reviewed all of the defendant-appellant’s arguments and, for reasons stated above, dismiss the sentencing claims and affirm the judgment of conviction. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217779/ | *597
SUMMARY ORDER
THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 22nd day of May, two thousand and three.
UPON DUE CONSIDERATION of this appeal from a judgment of the United States District Court for the Southern District of New York (Stein, J.), it is hereby ORDERED, ADJUDGED AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-appellant John J. Nance appeals from a judgment of the United States District Court for the Southern District of New York (Stein, J.) granting summary judgment for defendants Random House Inc. and St. Martins Press, Inc., and denying Nance’s cross-motion for summary judgment. Plaintiff, a writer of aviation thrillers, sued defendant publishers alleging that they breached a three book contract with plaintiff when they rejected his second book as unsatisfactory.
On appeal, plaintiff argues that summary judgment was improperly granted because a jury could conclude that the publishers were motivated by financial considerations and acted in breach of the implied duty of good faith and fair dealing in rejecting his manuscript and terminating the contract. He also argues that defendants fraudulently induced him to draft a second version of the manuscript with no intent of publishing it. The district court held there was no evidence that the publishers acted with bad faith in rejecting the manuscript as unsatisfactory following a lengthy editorial process in which they offered suggestions for revisions but ultimately determined that the manuscript was unacceptable and that there was no evidence of fraudulent intent. Nance v. Random House, Inc., 212 F.Supp.2d 268, 273-74 (S.D.N.Y.2002). We have fully considered plaintiffs arguments, and affirm substantially for the reasons stated in the district court’s thorough opinion. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217780/ | OPINION OF THE COURT
PER CURIAM.
Jesús María De La Roca and her daughter, Griselda Grijalva, petition for review of an order of the Board of Immigration Appeals (BIA) adopting the Immigration Judge’s (IJ) decision denying political asylum, and withholding of deportation. Because the BIA affirmed the IJ’s decision without opinion, we review the IJ’s decision for substantial evidence.
Petitioners argue that they established a reasonable possibility of past persecution, giving rise to a presumption of a well-founded fear of future persecution, based on two incidents. First, petitioners testified that in 1978, guerillas destroyed their village. Petitioners managed to escape to another town before the guerillas arrived. They lived safely elsewhere in Guatemala until 1990, when in a second incident, they were stopped by a guerilla road block on their way to the beach, subjected to gueril-la propaganda, and told that there would soon be a firelight between government *599and guerilla forces. After the fírefíght, during which petitioners were not harmed, they were allowed to continue to the beach and later returned safely to their home. Petitioners decided after this incident that it was no longer safe to remain in Guatemala. Petitioners arrived in the United States without inspection shortly thereafter. Jesús María De la Roca’s husband remained behind and currently resides in Guatemala with their other five children.
The IJ found petitioners to be credible, but that they failed to demonstrate a well-founded fear of persecution. We agree and find that the IJ’s decision is supported by substantial evidence. In the first incident, having fled their village before the arrival of guerillas, petitioners did not come into any contact with the guerillas. Petitioners then lived safely elsewhere in Guatemala for the next twelve years. In the second instance, petitioners were never harmed, and were permitted to travel safely to their beach outing after their encounter with guerillas. This incident could even be considered an attempt by the guerillas to protect petitioners’ safety during the firelight that was about to break out. The petitioners presented no evidence so compelling that no reasonable fact-finder could fail to find they have suffered past persecution “on account of race, religion, nationality, membership in a particular social group or political opinion.” See INS v. Elias-Zacarias, 502 U.S. 478, 483, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); INA § 208, 8 U.S.C. § 1158(a).
Further, any fear of future persecution based on alleged past persecution would be effectively rebutted by evidence of changed country conditions in Guatemala, which signed peace accords in 1996 that ended the civil war. Petitioners assert, however, that upon their return to Guatemala, they would be targeted for persecution by guerillas as a group of Guatemalans who have lived in the United States for a time. We agree with the IJ that, “the fear that the respondents are now evidencing is a fear of common crime and delinquency and not of persecution based upon one of the five [statutory] grounds.”
Because petitioners did not meet their burden to establish either a reasonable probability of past persecution or a well-founded fear of future persecution, the petition is DENIED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217783/ | OPINION
BARRY, Circuit Judge.
Appellants Pattie and Angelo DiVittorio brought suit under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-80, alleging injuries to Mrs. DiVittorio that resulted when an elevator in which she was riding allegedly plummeted from between the first and second floors to the basement of the Post Office building in Johnstown, Pennsylvania. Mr. DiVittorio brought a claim for loss of consortium. We have jurisdiction pursuant to 28 U.S.C. § 1291, and will affirm the District Court’s grant of summary judgment in favor of the United States.
I.
On April 14, 1997, Mrs. DiVittorio entered the elevator of the Post Office building and began her ascent to the second floor. The elevator stopped, a fire alarm rang, a red fight flashed, and the elevator descended at a faster than normal rate to the basement. Mrs. DiVittorio bumped her head and bruised her ankle and elbow inside the elevator. She tried to use the emergency telephone, but no one answered. She pushed the elevator doors open and entered the basement, which was poorly fit. Unable to exit the building by climbing the stairs to the first floor, she eventually found her way out through a basement door under a lighted exit sign, tripping on the doorstep in the process.
The fire alarm was most likely triggered by a sensor in the first-floor lobby. Dur*606ing a fire alarm, the elevator is designed to proceed to the safest floor at a normal speed and then not operate until its motor is reset. If the elevator descends at an excessive speed, a mechanical speed governor will engage to stop the car. If the mechanical speed governor malfunctions and the elevator runs past the basement floor, a backup safety device called a mechanical or bottom limit switch activates to stop the car. If both of these features malfunction, the elevator descends into the pit and strikes the buffer assembly, which is a large spring designed to cushion the impact.
After Mrs. DiVittorio exited the basement, she returned to the Post Office and told a clerk what had happened. Postmaster Michael Hudak was heard to blame the incident on a sensor that malfunctioned in that it was triggered by cigarette smoke. Hudak found the elevator in the basement at floor level, reset its motor, tested the elevator, and found that it operated properly. The next day, Hudak and two other employees tested the elevator during a fire alarm, and confirmed that it functioned properly. The same day, an independent contractor, Eastern Elevator Company, also inspected the elevator. Eastern Elevator found no evidence that the elevator had plummeted to the basement the day before. It reported that all safety features worked, including the emergency telephone. It found that although the mechanical limit switch was improperly positioned, the buffer assembly showed no evidence of impact, and it concluded that the elevator had not plummeted to the basement.
The elevator passed regular monthly and semi-annual inspections from December 1993 through May 1997. There were no previous reported incidents of the elevator falling.
II.
We exercise plenary review of the District Court’s grant of summary judgment. Smathers v. Multi-Tool, Inc/Multi-Plastics, Inc., 298 F.3d 191, 194 (3d Cir.2002). It is well understood that in order to successfully defend against a motion for summary judgment, a plaintiff must point to material facts creating a genuine issue as to each element of his or her prima facie case. The plaintiff “must do more than simply show that there is some metaphysical doubt as to the material facts ... Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In a negligence action under the FTCA, a plaintiff must show that the government breached a duty of care, and that this breach caused his or her actual injury. See Morena v. Hills Health Sys., 501 Pa. 634, 462 A.2d 680, 684 n. 5 (1983).
Mrs. DiVittorio brought her negligence action under two theories. First, she alleged that the government negligently permitted the elevator to operate in a dangerous condition. Second, she alleged that the fact that the elevator plummeted is sufficient to establish negligence under the theory of res ipsa loquitur. The parties agree that Pennsylvania law governs this action.
With regard to her theory based on government negligence, Mrs. DiVittorio has not challenged the government’s evidence that at the time of the accident, it had no reason to suspect that there was anything wrong with the elevator — there had been no previous complaints, and the elevator had passed regular safety inspections. Neither did she introduce evidence of any specific negligence by government *607employees, but for which her injuries would not have occurred.
Mrs. DiVittorio nonetheless contends that she presented sufficient evidence of negligence by virtue of (1) her testimony that Postmaster Hudak admitted that the elevator’s fire sensor malfunctioned; (2) Elaine Boxler’s statement that cigarette smoking in the lobby had previously caused the fire alarm to go off, causing the elevator to go to the basement; (3) Brenda Bracken’s statement that a repairman was trying to fix the emergency telephone system three days before Mrs. DiVittorio’s alleged accident; (4) Mrs. DiVittorio’s expert Richard Hughes’s statement that a misplacement of the mechanical limit switch was the “competent producing cause” of the elevator’s abrupt stop; and (5) Mr. Hughes’s statements that Mrs. DiVittorio’s claimed inability to operate the emergency telephone system and her claim that the basement was poorly fit indicate noncompliance by the government with local codes.
The above evidence is wholly insufficient to raise a genuine issue of fact as to whether the government negligently operated the elevator. First, there is no dispute that the sensor triggered an alarm, which caused the elevator to descend to the basement. Hudak’s alleged statement blaming the elevator’s behavior on a sensor that triggered an alarm in the presence of cigarette smoke is nothing more than an admission that the sensor was sensitive and hardly evidence of the government’s negligence, for obvious public safety reasons.
Second, the District Court assumed, and we will assume, that Mrs. DiVittorio’s testimony that the elevator descended to the basement at faster than normal speed created a genuine issue of fact as to whether the elevator did, in fact, descend at faster than normal speed. Mr. Hughes’s conclu-sory finding that the misplacement of the mechanical limit switch caused the elevator to stop abruptly, however, does not raise a genuine issue as to negligence. Hughes did not even attempt to explain how any misplacement of the switch could have caused Mrs. DiVittorio’s injuries given the results of Eastern Elevator’s physical investigation, which found no evidence that that backup safety device had been activated or that the buffer assembly had been impacted. Since Hughes did not enter the basement or examine the elevator’s safety features himself, Eastern Elevator’s findings are unrebutted and his opinion is based simply on conjecture.
Mrs. DiVittorio’s argument that the poor lighting in the basement and a faulty emergency telephone violated local codes similarly fails. First, any putative code violations are immaterial to her claim that she was injured when the elevator hit the buffer assembly in the basement. Second, her testimony that the basement was dimly lit is weakened by her admission that she exited the basement under a lighted exit sign. Third, Hughes, on whose opinion this argument is based, never saw the basement and a fortiori never saw the lighting. Fourth, the allegation that a repairman was trying to fix the emergency telephone in the elevator three days before the incident is of little if any weight in the face of Eastern Elevator’s finding that the emergency telephone worked perfectly just the day afterward. Even assuming that the repairman said what Brenda Bracken claims he said, the only reasonable inference is that the telephone had been fixed by the time of Mrs. DiVittorio’s alleged injury.
Finally, Mrs. DiVittorio concedes that such local codes do not apply to the Postal Service. In Wood v. Smith, 343 Pa.Super. 547, 495 A.2d 601 (1985), the court admitted evidence that scaffolding that comported with the generally accepted trade *608standards did not comport with federal standards, even though the defendants were not legally required to adhere to the federal standards. There, however, the evidence was relevant to challenge the generally accepted trade standards themselves as negligent. Id. at 603-04. Here, in contrast, Mrs. DiVittorio was attempting to use local codes to suggest that the government’s noncompliance with them was negligent. This evidence, however, did not raise a genuine issue for trial as to the government’s negligence.
The District Court correctly concluded, therefore, that there was no issue of material fact as to whether the government negligently permitted the elevator to operate in a dangerous condition, causing Mrs. DiVittorio’s injuries. The District Court also correctly concluded that the only way for Mrs. DiVittorio to survive summary judgment would be by virtue of res ipsa loquitur. Under this doctrine, a court may infer that harm suffered by a plaintiff is caused by negligence of the defendant when:
(a) the event is of a kind which ordinarily does not occur in the absence of negligence;
(b) other responsible causes are sufficiently eliminated by the evidence; and
(c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.
Gilbert v. Korvette, Inc., 457 Pa. 602, 327 A.2d 94, 100 (1974).
The District Court found that Mrs. DiVittorio satisfied the first and third of these requirements: the sudden fall of an elevator is exactly the sort of event that does not ordinarily occur in the absence of negligence, see Tait v. Armor Elevator Co., 958 F.2d 563, 572 (3d Cir.1992), and the Post Office owed a duty to Mrs. DiVittorio, as a business invitee, to exercise reasonable care to protect her from dangers such as the plummeting of an elevator, see Martino v. Great Atlantic & Pacific Tea Co., 419 Pa. 229, 213 A.2d 608 (1965). The Court also found, however, that Mrs. DiVittorio failed to satisfy the second requirement because she failed to introduce evidence eliminating other responsible causes of the incident. We agree. Although it was not necessary for Mrs. DiVittorio to exclude all other possible causes of the incident, she was required to produce evidence from which a finder of fact might reasonably conclude that the government was, more probably than not, negligent. See Micciche, 645 A.2d at 281; Lonsdale v. Joseph Horne Co., 403 Pa.Super. 12, 587 A.2d 810, 815-16 (1991) (affirming trial court’s grant of compulsory nonsuit against plaintiff, finding doctrine of res ipsa loquitur inapplicable where plaintiff had not eliminated third person as possible cause of accident). She, quite simply, did not do so.
III.
For the foregoing reasons, we will affirm the judgment of the District Court. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217785/ | OPINION
BARRY, Circuit Judge.
Plaintiff, James Jacob (“Jacob”), sued his employer, the National Railroad Passenger Corporation (“Amtrak”), alleging that on April 27, 1997 he injured his back and his shoulder in the course of his employment as a mechanic foreman. Amtrak conceded that it was negligent and a jury trial was held on the issues of causation and damages. The jury found that Amtrak’s negligence was not the proximate cause of Jacob’s injuries. He has appealed, arguing that the District Court abused its discretion when it (1) denied his attorney’s application for admission pro hac vice, (2) amended the pre-trial order to permit Amtrak to show surveillance tapes of him to the jury, and (3) denied his motion for judgment as a matter of law on the issue of causation. The District Court had subject matter jurisdiction under 28 U.S.C. § 1331 and we have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We will affirm.
The first issue raised by Jacob is whether the District Court abused its discretion when it denied his application to admit attorney Marvin I. Barish pro hac vice. The District of New Jersey’s Local Rules invest the district courts with the discretion to determine whether or not to admit counsel pro hac vice. See D.N.J. L. Civ. R. 101.1(c)(1). The District Court based its decision on the fact that Barish “has on numerous occasions attacked his adversaries verbally as well as physically,” as well as the fact that he has “evidenced a disregard for the court rules.” A. 4-5. In addition, the Court relied on the reasons given in Kohlmayer v. Nat’l R.R. Passenger Carp., 124 F.Supp.2d 877, 878 (D.N.J.2000), in which Barish’s application for pro hac vice admission was denied because “his past behavior has been uncivilized and unprofessional and has resulted in reprimands, mistrials and wasted judicial time.”
It is not disputed that Barish’s behavior has interrupted and delayed the orderly *612progression of cases before numerous courts in this circuit. His comments and conduct have caused mistrials and have forced courts to overturn jury verdicts. See, e.g., Comuso v. Nat’l R.R. Passenger Corp., No. 97-7891, 2000 WL 502707, at *1-2 (E.D.Pa. Apr. 26, 2000)(finding that case ended in a mistrial as a result of Barish’s behavior which included threatening to kill opposing counsel during a recess, physical intimidation of opposing counsel and profane outbursts); Spruill v. Nat’l R.R. Passenger Corp., No. 93-4706, 1995 WL 534273, at *1-3 (E.D.Pa. Sept. 5, 1995) (setting aside $3,838,791.00 plaintiffs verdict and ordering new trial based on Barish’s “comments and conduct,” which included egregious leading of witnesses, coaching his client during cross-examination and attempting to address the jury during a sidebar conference); Patchell v. Nat’l R.R. Passenger Corp., No. 90-4745, 1992 WL 799399, at *3-6 (E.D.Pa. July 31, 1992)(setting aside $700,000.00 plaintiffs verdict and ordering new trial in part because of Barish’s “inflammatory and prejudicial” remarks). In light of this record, the District Court acted well within its discretion when it denied Barish the privilege of admission pro hac vice.
The second issue raised by Jacob is whether the District Court abused its discretion when it permitted an amendment to the final pretrial order to enable Amtrak to show surveillance tapes of him. See Greate Bay Hotel & Casino v. Tose, 34 F.3d 1227, 1236 (3d Cir.1994)(holding that decision to allow use of witnesses or exhibits not previously identified is reviewed under an abuse of discretion standard). Final pretrial orders may only be modified “to prevent manifest injustice.” Fed. R.Civ.P. 16(e). Four criteria guide courts in deciding whether or not to modify a final pretrial order: “(1) the prejudice or surprise in fact to the opposing party, (2) the ability of the party to cure the prejudice, (3) the extent of disruption of the orderly and efficient trial of the case, and (4) the bad faith or willfulness of the noncompliance.” Greate Bay Hotel & Casino, 34 F.3d at 1236.
In this case, the surveillance tapes were not listed in the pre-trial order because Amtrak did not intend to play them. Defense counsel confirmed this in a telephone conversation with Jacob’s counsel the week before trial. In rebanee on defense counsel’s representation, Jacob’s counsel read into the record an interrogatory and response in which Amtrak acknowledged that it had taped Jacob. Defense counsel then requested and was granted permission to play certain of the tapes to enable Amtrak to refute the inference that they were detrimental to its case.
By reading the interrogatory and response into the record, Jacob’s counsel concededly invited the jury to infer that the tapes were detrimental to Amtrak. The District Court, concerned about “gamesmanship” on both sides, determined that the jury should see the tapes and decide the tapes’ significance for themselves. The Court concluded that in the “totabty of the circumstances it’s more important for the jury to be given all the facts of [Jacob’s] condition,” because that would enable the jury to get “at the truth of the matter.” A. at 9.2-9.4.
The District Court acknowledged that Jacob was surprised by Amtrak’s request to play certain tapes and that playing the tapes would prejudice Jacob to “some” extent. A. 9.2. On the other hand, the Court noted that Jacob’s counsel had done nothing more than read the interrogatory and response into the record; he had not yet made any argument regarding what inferences the jury should draw from the fact that Amtrak chose not to play the tapes. The Court took steps to minimize *613any prejudice to Jacob by giving him time to view all of the tapes and by permitting him to depose the investigators who made the tapes, at Amtrak’s expense. The Court also permitted him to play for the jury whatever tapes or portions of tapes supported his case. Indeed, he played five days of surveillance for the jury which showed that he was not very mobile while Amtrak played but one, which showed that he was. And, importantly, although Jacob was only seen and taped on thirteen occasions, he was able to elicit testimony that Amtrak was billed $101,253.70 for 1,578 man hours of surveillance.
Turning to the third criterion, granting Amtrak’s request to play the tapes did extend the trial, but not for long. And, finally, the District Court found that defense counsel did not act in bad faith in failing to list the tapes or the investigators who made them in the final pretrial order. In sum, the District Court did not abuse its discretion in permitting the amendment to the final pretrial order.
The third issue raised by Jacob is whether the District Court erred in not granting his motion for judgment as a matter of law. At the close of all the evidence, Jacob moved for judgment as a matter of law, arguing that no evidence had been presented which would support a finding that his injuries were caused by anything other than Amtrak’s negligence. The District Court reserved decision. Because Jacob failed to renew his motion within ten days of the entry of final judgment, as is required by Federal Rule of Civil Procedure 50, he waived his claim for judgment as a matter of law. See Fed.R.Civ.P. 50(b); Williams v. Guzzardi, 875 F.2d 46, 50 n. 6 (3d Cir.1989).
In his reply brief, Jacob argues that even if he waived his claim for judgment as a matter of law, we should nonetheless review his sufficiency of the evidence argument and, if we find that there was insufficient evidence to support the jury’s verdict, grant a new trial. Id. (holding that defendants’ failure to renew their motion for judgment as a matter of law, which was denied by the District Court when they made it at the close of the evidence, limited the relief the appellate court could grant to a new trial). But cf. Greenleaf v. Garlock, Inc., 174 F.3d 352, 364 (3d Cir.1999)(holding that a party who fails to comply with Rule 50 by moving for judgment as a matter of law at the close of all the evidence wholly waives the right to mount any post-trial attack on the sufficiency of the evidence). Even assuming that Jacob has not waived his claim for a new trial, an assumption we make with no great confidence, his claim must be rejected. Jacob testified at trial that his shoulder was injured in the accident at issue. There was no other proof of the cause of the injury to his shoulder, as there were no known witnesses to his accident. Because the jury was entitled to disbelieve his testimony, its determination that Amtrak’s negligence was not the proximate cause of any injury he sustained will be upheld.
The judgment of the District Court will be affirmed. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217794/ | Affirmed by unpublished PER CURIAM opinion.
PER CURIAM:
David Edward Crawley appeals the district court’s order denying relief on his 42 U.S.C. § 1983 (2000) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Crawley v. Braxton, No. CA-02-1057-7 *726(W.D.Va. Jan. 8, 2003). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217795/ | Dismissed by unpublished PER CURIAM opinion.
PER CURIAM:
Melvin Cherry, a federal prisoner, appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his petition filed under 28 U.S.C. § 2241 (2000). We have reviewed the record and find no reversible error. Accordingly, we deny leave to proceed in forma pauperis and dismiss on the reasoning of the district court. See Cherry v. Garraghty, No. CA-02-171 (E.D.Va. Jan. 9, 2003). 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.
DISMISSED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217796/ | Dismissed by unpublished PER CURIAM opinion.
PER CURIAM:
Isaac Matthew Richardson seeks to appeal the district court’s order denying re*734lief on his motion filed under 28 U.S.C. § 2255 (2000). We have independently reviewed the record and conclude that Richardson has not made a substantial showing of the denial of a constitutional right. See Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Accordingly, we deny a certificate of appeala-bility and dismiss the appeal. See 28 U.S.C. § 2253(c) (2000). We deny Richardson’s motion to amend the record on appeal. 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.
DISMISSED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217797/ | Dismissed by unpublished PER CURIAM opinion.
PER CURIAM:
Tina Louise Peele seeks to appeal the district court’s order denying relief on her motion under 28 U.S.C. § 2255 (2000). We have independently reviewed the record and conclude that Peele has not made a substantial showing of the denial of a constitutional right. See Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Accordingly, we deny a certificate of appealability and dismiss the appeal. See 28 U.S.C. § 2253(c) (2000). 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.
DISMISSED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217798/ | Affirmed by unpublished PER CURIAM opinion.
PER CURIAM.
Datuk Ramesh Chander appeals the district court’s order granting summary judgment to Defendant on his 42 U.S.C. § 1983 *736(2000) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Chander v. Barry, No. CA-01-1333 (E.D.Va. Apr. 24, 2002). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217799/ | Petition denied by unpublished PER CURIAM opinion.
PER CURIAM.
Waymare Billups has filed a petition for a writ of mandamus seeking review of his sentences. Mandamus relief is available only when the petitioner has a clear right to the relief sought. See In re First Fed. Sav. & Loan Ass’n, 860 F.2d 135, 138 (4th Cir.1988). Mandamus may not be used as a substitute for appeal. In re United Steelworkers, 595 F.2d 958, 960 (4th Cir.1979). Further, mandamus relief is only available when there are no other means by which the relief sought could be granted. In re Beard, 811 F.2d 818, 826 (4th Cir.1987).
The relief sought by Billups is not available by way of mandamus. Accordingly, although we grant Billups’ motion to proceed in forma pauperis, we deny the petition for a writ of mandamus. 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.
PETITION DENIED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217870/ | PER CURIAM.
Minnesota inmate DeAnthony A. Nash appeals from the district court’s * 28 U.S.C. § 1915A(b) dismissal of Nash’s civil complaint. Having carefully reviewed the record and Nash’s brief, see Cooper v. Schriro, 189 F.3d 781, 783 (8th Cir.1999) (per curiam) (§ 1915A dismissal reviewed de novo), we conclude the district court properly dismissed Nash’s complaint, and an extended opinion is not warranted.
Accordingly, we affirm. See 8th Cir. R. 47B.
The Honorable Donovan W. Frank, United States District Judge for the District of Minnesota. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217800/ | Affirmed by unpublished PER CURIAM opinion.
PER CURIAM.
Ronnie Clarke appeals the magistrate judge’s order * granting summary judgment in favor of Southside Virginia Training Center (“SVTC”) and SVTC’s senior *752human resources manager, India Sue Rid-out, on his claim that SVTC failed to interview and hire him in retaliation for having filed a previous EEOC complaint and lawsuit in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A. §§ 2000e to 2000e-17 (West 1994 & Supp.2002). We have reviewed the record and find no reversible error. Accordingly, we affirm on the reasoning of the district court. See Clarke v. Southside Va. Training Ctr., No. CA-01-699 (E.D.Va. Oct. 31, 2002). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
The parties consented to review by a magistrate judge pursuant to 28 U.S.C. § 636(c)(2) (2000). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217801/ | Affirmed by unpublished PER CURIAM opinion.
PER CURIAM.
James Edward Dawkins appeals the district court’s order denying his motion for reimbursement of costs. We have independently reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Dawkins v. Triplett, No. CA-97-171 (W.D.N.C. filed Oct. 31, 2002; entered Nov. 1, 2002). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217802/ | Affirmed by unpublished PER CURIAM opinion.
PER CURIAM.
Arthur H. Keels appeals the district court’s order accepting the recommendation of the magistrate judge and granting summary judgment in favor of Defendant and the order denying Keels’ motion filed under Fed.R.Civ.P. 59(e). We have reviewed the record and find no reversible error. Accordingly, we affirm on the reasoning of the district court. See Keels v. Sec’y, Dep’t of Health & Human Servs., No. CA-01-4864-3-17BD (D.S.C. filed Feb. 6, 2003, and entered Feb. 7, 2003; Feb. 21, 2003). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217803/ | Affirmed by unpublished PER CURIAM opinion.
PER CURIAM.
Johnnie Lang Edwards appeals the magistrate judge’s order denying relief on his 42 U.S.C. § 1983 (2000) complaint.* We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the magistrate judge. See Edwards v. Oberndori, No. CA-02-347-2 (E.D.Va. Feb. 6, 2003). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court *757and argument would not aid the decisional process.
AFFIRMED.
The parties consented to the exercise of jurisdiction by the magistrate judge pursuant to 28 U.S.C. § 636(c) (2000). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217804/ | Dismissed by unpublished PER CURIAM opinion.
PER CURIAM.
Rufus O. Braboy, Jr., seeks to appeal the district court’s order denying relief on his petition filed under 28 U.S.C. § 2254 (2000). We have independently reviewed the record and conclude that Braboy has not made a substantial showing of the denial of a constitutional right. See Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). Accordingly, we deny a certificate of appeala-bility and dismiss the appeal. See 28 U.S.C. § 2253(c) (2000). 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.
DISMISSED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217806/ | Affirmed by unpublished PER CURIAM opinion.
PER CURIAM.
Michael A. Williams appeals the district court’s order denying his motion to modify his term of imprisonment pursuant to 18 U.S.C. § 3582 (2000). We have reviewed the record and the district court’s opinion and find no reversible error. The statute on which Williams relied provides no basis for relief. Accordingly, we affirm the district court’s denial. We dispense with oral argument because the facts and legal contentions are adequately presented in the *763materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217807/ | Affirmed by unpulished PER CURIAM opinion.
PER CURIAM:
Jimmy Lee Nixon, a federal prisoner, appeals the district court’s order denying relief on his petition filed under 28 U.S.C. § 2241 (2000). We have independently reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Nixon v. Dewalt, No. CA-02-48-5 BO (E.D.N.C. June 24, 2002). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217809/ | Dismissed by unpublished PER CURIAM opinion.
PER CURIAM:
Ryan Daniel Graves seeks to appeal the district court’s orders denying relief on his motion filed under 28 U.S.C. § 2255 (2000), and denying his motion to reconsider pursuant to Federal Rule of Civil Procedure 59(e). We have independently reviewed the record and conclude that Graves has not made a substantial showing of the denial of a constitutional right. See Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). Accordingly, we deny a certificate of appeala-bility and dismiss the appeal. See 28 U.S.C. § 2253(c) (2000). 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.
DISMISSED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217810/ | Petition denied by unpublished PER CURIAM opinion.
PER CURIAM:
Waymare Billups has filed a petition for a writ of mandamus seeking review of his sentences. Mandamus relief is available only when the petitioner has a clear right to the relief sought. See In re First Fed. Sav. & Loan Ass’n, 860 F.2d 135, 138 (4th Cir.1988). Mandamus may not be used as a substitute for appeal. In re United Steelworkers, 595 F.2d 958, 960 (4th Cir.1979). Further, mandamus relief is only available when there are no other means by which the relief sought could be granted. In re Beard, 811 F.2d 818, 826 (4th Cir.1987).
The relief sought by Billups is not available by way of mandamus. Accordingly, although we grant Billups’ motion to proceed in forma pauperis, we deny the petition for a writ of mandamus. We dispense with oral argument because the facts and legal contentions are adequately presented *773in the materials before the court and argument would not aid the decisional process.
PETITION DENIED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217812/ | Affirmed by unpublished PER CURIAM opinion.
PER CURIAM:
Demarcus M. Brown appeals the district court’s order denying relief on his 42 U.S.C. § 1983 (2000) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm on the rea*775soning of the district court. See Brown v. Edmonds, No. CA-03-132-7 (W.D.Va. filed Feb. 25, 2003 & entered Feb. 26, 2003). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217813/ | Affirmed by unpublished PER CURIAM opinion.
PER CURIAM:
Lacy Hughes Johnson appeals the district court’s order and judgment dismissing under 28 U.S.C. § 1406(a) (2000) his civil rights complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Johnson v. Shreve, No. CA-03-202-2 (E.D.Va. Mar. 18, 2003). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217815/ | Affirmed by unpublished PER CURIAM opinion.
PER CURIAM:
Shawn Michael Foster appeals the district court’s order accepting the recommendation of the magistrate judge denying his 18 U.S.C. § 3582 (2000) motion to modify his sentence. We have reviewed the record and find no reversible error. Accordingly, we affirm on the reasoning of the district court. See United States v. Foster, Nos. CR-01-44; CA-02-1346-2 (S.D.W.Va. Mar. 19, 2003). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217817/ | OPINION
ROGERS, Circuit Judge.
A jury convicted the defendant, Melissa Ann Williams, of making false statements *783in her application for employment with the United States Postal Service, in violation of 18 U.S.C. § 1001. Williams argues on appeal that (1) the district court erred in denying her motion for acquittal; (2) the evidence presented at trial was insufficient to sustain her conviction; (3) the district court abused its discretion when it allowed the admission of Government’s Exhibit 15 into evidence; and, (4) the district court abused its discretion when it excluded from the evidence Defendant’s Exhibit 15. For the reasons set forth below, the judgment of the district court is AFFIRMED.
I. BACKGROUND
The false statements concerned events starting in 1997, when Williams was employed as payroll clerk at the Heartland of Bellefontaine (Heartland) nursing home. On November 25, 1997, the administrator of Heartland, Paul LeGrande, called Williams into his office to discuss some uncovered irregularities, and in the course of this conversation LeGrande formed the opinion that Williams was being untruthful. LeGrande then informed Williams that he was placing her on immediate suspension pending further investigation. Williams testified that at this point she informed LeGrande that she was quitting and would not be returning to work at Heartland. However, LeGrande testified that Williams never informed him of her intention to quit her employment with Heartland. Nevertheless, Williams was aware that she would be fired when Heartland discovered the details of her misbehavior.
During the investigation, Heartland discovered that Williams was responsible for the theft of approximately $12,000. Therefore, on December 2, 1997, LeGrande sent Williams a letter via certified mail notifying her that her employment with Heartland was terminated. An item of certified mail was signed for by defendant’s husband, Paul Williams, on December 13, 1997. LeGrande testified that it was possible that he sent other letters to Williams via certified mail during the month of December. The defendant denied ever receiving a termination letter and testified that she never saw the letter until the first day of the trial. She also stated that she was not on good terms with her husband at that time.
Williams was charged in state court with theft as a result of her actions at Heartland. On June 29, 1998, Williams entered into the Logan County Pre-trial Diversion Program (“Diversion Program”). When Williams entered the Diversion Program, her case was transferred to inactive status. While the case was inactive, the charges were still pending against Williams and had not been dismissed. If Williams completed the Diversion Program successfully the charges would then be dismissed against her with prejudice, but if she failed to complete the program successfully the charges would be reactivated. As a condition to entering the Diversion Program, Williams signed an admission of guilt in which she stated that she was responsible for the theft of approximately $15,000 from Heartland.
On September 20, 1998, while she was still in the Diversion Program, Williams applied for a position with the United States Postal Service. Williams’s Application for Employment contained the following three questions:
4. Have you ever been fired from a job for any reason?
5. Have you ever quit a job after being notified that you would be fired?
*7847a. Have you ever been convicted of a crime or are you now under charges for any offense against the Law? You may omit: (1) any charges that were dismissed or resulted in acquittal; (2) any conviction that has been set aside, vacated, annulled, expunged, or sealed; (3) any offense that was finally adjudicated in a juvenile court or juvenile delinquency proceeding; and (4) any charges that resulted only in a conviction of a noncriminal offense. All felony and misdemeanor convictions and all convictions in state and federal courts are criminal convictions and must be disclosed. Disclosure of such convictions are required even if you did not spend any time in jail and/or were not required to pay a fine.
Williams answered each of these questions in the negative. However, Williams was concerned with how to answer question 7a and spoke to her Diversion Program officer. Robert Kellogg, about how she could answer this question. Kellogg informed her that she could truthfully answer in the negative to a question asking whether she had ever been convicted of a crime. However, it is unclear whether Kellogg saw the actual question being asked on the Application, and Kellogg stated that he did not recall the issue of how to answer a question asking if Williams was under charges for any offense. He also stated that he thought he would recall the issue arising because he would not have known how to answer the question and would have had to consult one of the prosecutors. As stated, Williams answered question 7a in the negative.
Williams’s Application for Employment, as well as a worksheet contained in her Application packet, asked her to list her previous employment for the last ten years. When filling out both the application and the worksheet, Williams failed to include her employment at Heartland and instead said she was still in the U.S. Army through November of 1997. In fact, Williams was discharged from the Army in 1996.
On September 21, 1998, Williams was interviewed by Virgil Runyon for a position with the United States Postal Service. During the interview Williams was required to initial next to her answers on questions 4, 5, and 7a of the Application for Employment, and Runyon initialed those answers as well to verify the answers given by Williams. Williams did not ask Runyon for any clarification on these questions, and she put her initials by her answers. Williams was not required to initial any other questions. The purpose of requesting an applicant to place initials by these answers is to emphasize the seriousness of these questions.
Williams began employment with the United States Postal Service at the end of September 1998. If the Postal Service had been aware that Williams had been fired for theft or that she was presently under charges for theft, she would not have been hired because of the Postal Service’s strong interest in protecting the sanctity of the mail.
II. ANALYSIS
A. Williams argues in this appeal that the district court improperly admitted into evidence Government’s Exhibit 15, a letter written by Paul LeGrande firing Williams from Heartland. The district court admitted the letter under the business records exception to the Hearsay Rule found in Federal Rule of Evidence 803(6). The standard under which we review the admission of hearsay evidence is currently unclear. As we stated in United States v. Carmichael,
[t]he applicable standard of review regarding rulings on hearsay evidence appears to be somewhat unsettled within *785the circuit. Compare Stalbosky v. Belew, 205 F.3d 890, 894 (6th Cir.2000) (observing that this court has traditionally reviewed de novo district court conclusions about whether proffered evidence is hearsay) with Trepel v. Roadway Express, Inc., 194 F.3d 708, 716-17 (6th Cir.1999) (concluding that the Supreme Court’s decision in General Electric Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997), silently overruled this court’s “heretofore well-settled precedent that hearsay evi-dentiary rulings are reviewed de novo” and requires abuse-of-discretion review).
232 F.3d 510, 521 (6th Cir.2000). However, under either standard, we are still “obligated to ignore harmless error” that does not affect the defendant’s “substantial rights.” United States v. Leeds, 178 F.3d 1297, 1999 WL 220129 (6th Cir. Apr. 5, 1999).
Defendant also argues that the district court abused its discretion when it excluded from the evidence Defendant’s Exhibit 15, a letter from the Logan County Prosecutor’s Office to the United States Postal Service explaining that Williams was in a Pre-trial Diversion Program but that she had never been convicted of a crime. A trial court’s decision whether to admit testimony and other evidence is reviewed under the abuse of discretion standard, and even if the trial court abuses its discretion, a new trial is not required unless “substantial rights” of a party are affected. Fed.R.Crim. P. 52(a); United States v. Bonds, 12 F.3d 540, 554 (6th Cir.1993). Determinations of relevance and prejudice are also reviewed under an abuse of discretion standard, and that discretion should be construed broadly. United States v. Jackson-Randolph, 282 F.3d 369, 376 (6th Cir.2002). An abuse of discretion that does not affect substantial rights is harmless error and is to be disregarded. Fed. R.Crim.P. 52(a).
We need not determine whether the district court erred in its evidentiary determinations. In light of the other evidence presented, any error on the part of the district court was harmless, as it did not affect Williams’s substantial rights and did not materially affect the verdict. Fed.R.Crim.P. 52(a); United States v. Latouf, 132 F.3d 320, 329 (6th Cir.1997)
B. Williams’s challenges to the sufficiency of the evidence to support a conviction and to the denial of her Motion for Acquittal may be treated together, as they are both reviewed under the same standard. United States v. Beddow, 957 F.2d 1330, 1334 (6th Cir.1992). We review de novo the sufficiency of the evidence to sustain a conviction. United States v. Gibson, 896 F.2d 206, 209 (6th Cir.1990).
Evidence is sufficient to support a conviction if “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, 61 L.Ed.2d 560 (1979). We
will reverse a judgment for insufficiency of evidence only if this judgment is not supported by substantial and competent evidence upon the record as a whole, and ... this rule applies whether the evidence is direct or wholly circumstantial. It is not necessary that circumstantial evidence remove every reasonable hypothesis except that of guilt.
United States v. Stone, 748 F.2d 361, 363 (6th Cir.1984).
To establish that Williams made a false statement in violation of 18 U.S.C. § 1001, the government must have proven that: (1) the defendant made a statement; (2) the statement is false or fraudulent; (3) *786the statement is material; (4) the defendant made the statement knowingly and willfully; and (5) the statement pertained to an activity within the jurisdiction of a federal agency. United States v. Logan, 250 F.3d 350, 361 (6th Cir.2001). Williams does not contest the first and last of these elements, but she does challenge the falsity, materiality, and intent elements.
There is substantial evidence that Williams’s answers to Questions 4, 5, and 7a were false, and only one answer had to have been found false in order to convict. With regard to Question 4, Paul LeGrande, the administrator at Heartland, testified that he fired Williams from her employment as a payroll clerk. He stated that he sent Williams a certified letter notifying her of her termination. He also testified that Williams never informed him of her intention to quit her employment with Heartland. “To the extent this evidence may be viewed as inconsistent” with Williams’s testimony, “any conflicts in the evidence must be resolved in favor of the [government] on appeal.” United States v. Rodgers, 109 F.3d 1138, 1142 (6th Cir.1997). “Determining the credibility of witnesses is a task for the jury[.]” United States v. Kelly, 204 F.3d 652, 656 (6th Cir.2000). With regard to Question 5, even if Williams did quit, it was only after she received some notification that she would be fired. LeGrande testified that he placed Williams on suspension pending the investigation of Williams’s theft from Heartland. Williams herself testified that she knew she would be fired once the details of her theft were discovered by Heartland. With regard to Question 7a, the local prosecutor testified that Williams was in the Diversion Program as of September 20, 1998, and that charges were still pending against her at that time. There is also substantial evidence that Williams’s false statements were material, because there was testimony that Williams would not have been hired had the Postal Service known of her theft or that she was presently under charges. Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have concluded that Williams’s answer to at least one of Questions 4, 5, and 7a was both false and material.
Finally, the government introduced substantial evidence that each of Williams’s false statements was “knowingly and willfully” made. A jury is permitted to find the element of knowledge if it believes that the defendant had “deliberately ignored a high probability that the form contained material false information.” United States v. Arnous, 122 F.3d 321, 323 (6th Cir.1997). With respect to Questions 4 and 5, Paul LeGrande testified that he sent a letter via certified mail to Williams notifying her that her employment with Heartland had been terminated. There was evidence that this letter was signed for by the defendant’s husband. Also, Williams herself testified that she knew she would be fired once the details of her theft were discovered. Additionally, Williams repeatedly failed to list her employment with Heartland on several documents related to her application for employment with the Postal Service.
As to Question 7a, the evidence in favor of the government’s assertion that Williams knowingly and willfully made a material false statement is also sufficient. Robert Kellogg, Williams’s Diversion Program officer, testified that he did not recall Williams asking him whether she could give a negative answer to a question about whether she was currently under charges for a crime, although he did recall discussing with her how she could answer a question asking if she had ever been convicted. Kellogg also stated that he believed that he would have remembered if she had asked him a question about whether she *787was currently under charges, as he would not have known how to answer that question and would have needed to talk to the prosecutor’s office. The postal official who interviewed Williams, Virgil Runyon, testified that Williams did not ask him any questions about how to answer Questions 4, 5, and 7a of the application. Likewise, Williams also stated that she did not ask Runyon any questions about how to answer the application. Additionally, Runyon stressed to Williams several times during her interview the importance of being entirely truthful in her Postal Service Application. Finally, Williams had read and signed numerous forms that emphasized the importance of being honest and truthful in her application.
Viewing this evidence in the light most favorable to the prosecution, Jackson v. Virginia, 443 U.S. at 319, we conclude that a rational trier of fact could have found that the essential elements of the crime of making false statements were established by the government beyond a reasonable doubt.
CONCLUSION
The evidence presented at trial was sufficient to support Williams’s conviction, and if there were any evidentiary errors they were harmless in fight of the other evidence offered at trial. Therefore, the judgment of the district court is AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224402/ | MEMORANDUM OPINION AND ORDER ON MOTION FOR SUMMARY JUDGMENT
PHILIP R. MARTINEZ, District Judge.
On this day, the Court considered Defendants BAC Home Loans Servicing, L.P. and the Bank of New York Mellon’s “Motion for Summary Judgment and Brief in Support” (ECF No. 32), filed on December 5, 2013 [hereinafter “Motion”]; Plaintiff Jose Santiago’s “Response to Defendant’s Motion for Summary Judgment” (ECF No. 38), filed on January 10, 2014 [hereinafter “Response”]; and Defendants’ “Re*587ply to Plaintiffs Response” (ECF No. 40), filed on January 16, 2014 [hereinafter “Reply”]. The Court granted Defendants’ Motion on January, 31, 2014, and now writes to explain its reasoning.
I. FACTUAL AND PROCEDURAL BACKGROUND
On May 7, 2013, Plaintiff filed suit in the 34th Judicial District Court of El Paso County, Texas contesting foreclosure proceedings against his property. Not. Removal 2, May 20, 2013, ECF No. 1. After Defendants removed the case to the Court, Plaintiff filed his “Amended Petition for Declaratory Judgment, Requests for Disclosure and Request for Production.” Pl.’s Am. Pet., June 24, 2013, ECF No. 11. Therein, Plaintiff claims that he was not given notice of default and opportunity to cure prior to acceleration, that he did not receive proper foreclosure notices, and that Defendants do not have standing or legal authority to bring a foreclosure claim against Plaintiffs property. Plaintiff also alleges a breach-of-contract claim and a fraud claim.1 Id. 3-4.
On or about September 6, 2006, Plaintiff and his spouse, Lilian Santiago, “obtained a loan (the “Loan”) from American’s Wholesale Lender (“AWL”) in the amount of $647,500 in connection with property located at 5545 Westside Drive, El Paso, Texas 79932.” Mot. 3; PL’s Am. Pet. 2. Plaintiff and Lilian Santiago signed a promissory note (the “Note”) and a Deed of Trust (the “Deed of Trust”), wherein they pledged the property (the “Property”) as security for payment of the Note. Mot. 3; see Mot. Ex. A-l (Note), A-2 (Deed of Trust); Resp. Ex. A (Note), B (Deed of Trust). Pursuant to the Note, Plaintiff was required to make monthly payments to AWL, its successors and assigns, until October 1, 2036. Mot. 4; see Mot. Ex. A-l (Note); see also Resp. Ex. A (Note). Defendants allege that Plaintiff failed to make the required monthly payments, and that Plaintiff consequently defaulted on the Loan. Mot. 4; see Mot. Ex. A-4 (Payment History).
Defendants allege that on April 16, 2009, Countrywide Home Loans (“Countrywide”), BAC’s predecessor in interest, “sent Plaintiff a Notice of Default via certified mail to the Property notifying him that the Loan was in default; of the amount needed to cure the default; and a date certain by which to do so in order to avoid acceleration.” Mot. 4; id. Ex. A-5 (Notice of Default). Defendants claim that BAC engaged the law firm Barrett Daffin Frappier Turner & Engel (“Barrett Daf-fin”) to initiate foreclosure proceedings against the Property. Mot. 4. Defendants allege that on March' 31, 2013, Barrett Duffin sent “Notices of Acceleration and Sale to Plaintiff informing him ... that the Property would be sold at a foreclosure sale on May 7, 2013.” Mot. 5; id. Ex. B-l (Notice of Acceleration and Sale). However, Plaintiff denies receiving foreclosure notices. PL’s Am. Pet. 3.
II. LEGAL STANDARD
A. Summary Judgment
A court should grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine dispute of material fact exists if there are “any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be re*588solved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
In a motion for summary judgment, “[t]he moving party bears the initial burden of showing that there is no genuine issue for trial; it may do so by ‘point[ing] out the absence of evidence supporting the nonmoving party’s case.’ ” Nat’l Ass’n of Gov’t Emps. v. City Pub. Serv. Bd., 40 F.3d 698, 712 (5th Cir.1994) (quoting Latimer v. Smithkline & French Labs., 919 F.2d 301, 303 (5th Cir.1990)). If the moving party has satisfied its initial burden, the nonmovant must then come forward with “specific fapts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). “This burden is not satisfied with ‘some metaphysical doubt as to the material facts,’ Matsushita, 475 U.S. at 586, 106 S.Ct. 1348, ‘conclusory allegations,’ Lujan [v. Nat’l Wildlife Fed’n], 497 U.S. [871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) ], ‘unsubstantiated assertions,’ Hopper v. Frank, 16 F.3d 92 (5th Cir.1994), or only a ‘scintilla’ of evidence, Davis v. Chevron U.S.A., Inc., 14 F.3d 1082 (5th Cir.1994).” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994).
A court conducting summary-judgment analysis must “review the facts drawing all inferences most favorable to the party opposing the motion.” Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir.1986). Thus, a court should “resolve factual controversies in favor of the nonmoving party, but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts.” Little, 37 F.3d at 1075. A court should not, “in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts.” Id. (citing Lujan, 497 U.S. at 888, 110 S.Ct. 3177).
III. ANALYSIS
A. Defendants’ Authority to Enforce the Loan
Plaintiff argues that the Bank of New York Mellon (“BONY”) does not have the authority to enforce the Loan. Pl.’s Am. Pet. 3. Defendants argue, on the other hand, that their “summary judgment evidence demonstrates that BONY is the owner of the Loan.” Mot. 6. In support of this argument, Defendants provide the Deed of Trust, which states that Mortgage Electronic Registration Systems, Inc. (“MERS”)2 “is a beneficiary under this Security Instrument.”3 Mot. Ex. A-2 (Deed of Trust). Defendants also provide an assignment document (“Assignment Document”) that records the assignment of the Note and Deed of Trust from MERS *589to BONY, as Trustee for the Certificate Holders CWALT, Inc., Alternative Loan Trust 2006-30tl, Mortgage Pass-Through Certificates, Series 2006-30T1 (“as trustee for CWALT”). Id. Ex. A-3 (Assignment Document).
In response, Plaintiff argues that BONY lacks authority to enforce the Loan because BONY “is only acting as the trustee of the Defendant CWALT.”4 Resp. 7-8. Plaintiff provides the Note, the Deed of Trust, and the Prospectus Supplement for CWALT Ine.’s Alternative Loan Trust 2006-30T1 in support of his argument. Resp. Ex. D (Assignment Document), E (Prospectus Supplement). Regardless of this evidence, however, Plaintiffs argument fails as a matter of law.
Pursuant to Texas law, a nonjudicial foreclosure may be initiated by the current mortgagee, including “ ‘the grantee, beneficiary, owner, or holder of a security instrument;’ a ‘book entry system;’ or ‘the last person to whom the security interest has been assigned of record.’” Farkas v. GMAC Mort., L.L.C., 737 F.3d 338, 342 (5th Cir.2013) (per curiam) (citing Tex. Prop.Code § 51.0001(4)). As detailed above, the Deed of Trust names MERS as beneficiary.5 Mot. Ex. A-2 (Deed of Trust). Defendant provides proof that MERS assigned the Deed of Trust to BONY, as trustee for CWALT. Mot. Ex. A-3 (signed, notarized, and recorded by the county clerk). The Fifth Circuit “permits MERS and its assigns to bring foreclosure actions under the Texas Property Code.” Farkas, 737 F.3d at 342 (relying on Martins v. BAC Home Loans Servicing, L.P., 722 F.3d 249 (5th Cir.2013)). BONY became the mortgagee as defined under Section 51.0001(4) by a valid and recorded assignment of the Deed of Trust and therefore is an appropriate party to initiate a nonjudicial foreclosure action against the Property. See Farkas, 737 F.3d at 342.
Plaintiff further argues that because BONY “has no legal authority, [ ] it cannot transfer any authority to BAC,” the servi-cer of the Loan. Resp. 8. Plaintiff does not argue that BAC does not have the authority to service the Loan;6 rather, he argues that, because BONY cannot initiate a foreclosure action against the Property, it cannot authorize BAC to do so. As explained above, howevér, BONY is an appropriate party to initiate a foreclosure action against the Property. See Farkas, 737 *590F.3d at 342. As a result, the Court concludes that there is no genuine dispute as to whether BONY is an appropriate party to initiate a foreclosure action against the Property, and consequently can authorize BAC to foreclose on its behalf. Accordingly, Defendant’s motion for summary judgment is granted as to Plaintiffs claim that Defendants lack authority to enforce the Loan.7
B. Plaintiffs Standing to Enforce PSA
Neither party disputes that Plaintiffs mortgage was securitized in a mortgage pool that was governed by a Pooling and Services Agreement (“PSA”). Plaintiff argues that the PSA in this case “specifically identifies its closing date for adding any mortgages to the trust as September 28, 2009.” Resp. 8; id. Ex. E (Prospectus Supplement), at S-4. Plaintiff argues that, because the “CWALT trust did not add Plaintiffs purported note to its prospectus until September 29, 2009,” the PSA is void, and thus “no legal action or remedy under the deed of trust or note can be taken.” Resp. 8-9. In support of this argument, Plaintiff provides the Assignment Document, which assigns the Note and Deed of Trust from MERS to BONY, and the Prospectus Supplement for CWALT Inc.’s Alternative Loan Trust 2006-30T1. See Resp. Ex. D (Assignment Document), Ex. E (Prospectus Supplement).
Defendants argue that Plaintiffs arguments regarding the securitization of the Loan and compliance with the PSA “fail as a matter of law because Plaintiff lacks standing to enforce the PSA.” Reply 3. The Court agrees: because Plaintiff does not argue in his Response that he is an intended third-party beneficiary of the PSA, or a party to the PSA, his claim fails as a matter of law. The Fifth Circuit has held that borrowers, as nonparties to the PSA, “have no right to enforce its terms unless they are its intended third-party beneficiaries.”8 Farkas, 737 F.3d at 342 (quoting Reinagel v. Deutsche Bank Nat’l *591Trust Co., 735 F.3d 220, 228-29 (5th Cir.2013)). Further, the “Texas Supreme Court has established ‘a presumption ... that parties contracted for themselves’ which applies ‘unless it clearly appears that they intended a third party to benefit from the contract.’ ” Id. Plaintiff does not allege or provide any evidence that he is an intended third-party beneficiary to the PSA,9 nor does he argue or provide evidence that he is a party to the PSA. As a result, he lacks standing to enforce the terms of the PSA, and his PSA-related challenges to BONY’s authority to foreclose fail as a matter of law.
C. Notice
Plaintiff argues in his Amended Petition that he did not receive proper foreclosure notices.10 Pl.’s Am. Pet. 2. Defendants argue that these assertions are “baseless.” Mot. 7. Pursuant to Texas law, a mortgage servicer must serve a debtor in default with written notice, sent by certified mail, that the “debtor is in default under the deed of trust or other contract lien and giving the debtor at least 20 days to cure the default before notice of sale can be given.” Tex. Prop.Code § 51.002(d). Defendants provide the Notice of Default (along with the certified mail receipt) sent to the Property by Countrywide (BAC’s predecessor in interest) on April 16, 2009, which notifies Plaintiff that “(1) the loan is in default; (2) the amount needed to cure the default [i]s $12,343.00; and (3) he ha[s] until May 16, 2009 — 30 days — to cure the default.” Mot. 8; see id. Ex. A-5 (Notice of Default). Pursuant to the Texas Property Code, service of notice is complete when the notice is sent via certified mail. Tex. Prop.Code § 51.002(e); Martins, 722 F.3d at 256. Additionally, “the affidavit of a person knowledgeable of the facts to the effect that service was completed is prima facie evidence of service.” Id.; see Gossett v. Fed. Home Loan Mortg. Corp., 919 F.Supp.2d 852, 859 (S.D.Tex.2013) (internal citations omitted) (“Actual receipt of the notice is not necessary.”). Defendants provide a declaration from Jessica L. Ei-senhuth, Assistant Vice President, Operations Team Manager for BAC, in which she states that Countrywide (BAC’s predecessor in interest) sent “via certified mail return receipt requested, a Notice of Default and Intent to Accelerate to Plaintiff on April 16, 2009.” Mot. Ex. A, at 2 (Declaration of Jessica L. Eisenhuth). Thus, Defendants have satisfied their burden of proof by providing evidence of mailing the notice and an affidavit corroborating the mailing. Plaintiff was not required to receive the notice. See Martins, 722 F.3d 249 at 256 (“BAC satisfied its burden of proof by presenting evidence of mailing the notice and an affidavit to that effect. There is no requirement that Martins receive the notice.”).
Pursuant to Texas law, notice of sale “must be given at least twenty-one days before the date by ... serving written notice of the sale by certified mail on each debtor.” Tex. Prop.Code. § 51.002(b)(3). Defendants provide a copy *592of the Notice of Acceleration and Sale sent to Plaintiff on March 31, 2013, via certified mail. The letter notifies Plaintiff that “BONY ha[s] elected to accelerate the loan and that the property w[ill] be sold at a May 7, 2013 foreclosure sale.” Mot. 8; see id. Ex B-l, at 1 (Notice of Acceleration and Sale). Further, Defendants include a sworn declaration from Becky Howell, the Chief Administrator of Foreclosure for BDF Holdings, Inc., an affiliated service provider for Barrett Daffin, on the issue of service. Mot. Ex. B, at 2 (Declaration of Becky Howell). Howell avers that Barrett Duffin sent Plaintiff, “via Certified Mail, return receipt requested, Notices of Acceleration and Sale informing him that Bank of America, N.A. as Successor by Merger to BAC was servicing the Loan on behalf of BONY; that BONY had accelerated the Loan due to his non-payment; and that the Property would be sold at a foreclosure sale on May 7, 2013.” Id. Once again, Defendants have satisfied their burden of proof by presenting evidence of mailing, and an affidavit to that effect. Plaintiff was not required to receive the notice. See Martins, 722 F.3d 249 at 256.
Accordingly, the Court finds that Defendants have satisfied their burden of proof by presenting evidence that the Notice of Default and Intent to Accelerate, and Notice of Acceleration and Sale were mailed to Plaintiff, and affidavits to that effect. There is no requirement that Plaintiff receive the notices. Thus, summary judgment is proper as to Plaintiffs claim that Defendants failed to provide proper foreclosure notices.
D. Breach of Contract
Defendants also argue that Plaintiffs breach-of-contract claim fails as a matter of law. The parties agree that in order to prevail on his breach-of-contract claim, Plaintiff must demonstrate: (1) the existence of a valid contract; (2) performance or tentative performance by the Plaintiff; (3) breach of contract by the Defendants; and (4) damage resulting to the Plaintiff from the breach. See Worldwide Asset Purchasing, LLC v. Rent-A-Ctr. E., Inc., 290 S.W.3d 554, 561 (Tex.App.-Dallas 2009, no pet.) (internal citations omitted); Mot. 8-9; Resp. 9.
Defendants argue that they were authorized to “take the actions regarding foreclosure [of] the Loan, and did so according to the Note, Deed of Trust and applicable law.” Mot. 9. In support of this argument, Defendants provide copies of the Note, Deed of Trust, and Assignment Document. Id. Ex. A-l (Note), Ex. A-2 (Deed of Trust), Ex. A-3 (Assignment Document). In response, Plaintiff argues that “[b]ecause AWL ... voluntarily surrendered its ownership of the deed of trust and note, and CWALT ownership is void, now no Defendant can deliver an unencumbered deed to Plaintiff and Plaintiff has no person or entity to tender payments to that is contractually bound to receive payments and that can deliver Plaintiffs unencumbered deed.” Resp. 10. As outlined above in Part III.A, Defendants have authority to foreclose on the Property; thus Plaintiffs breach-of-contract claim fails as a matter of law.
Additionally, Defendants argue that Plaintiff does. not plead, or provide evidence, as to several of the elements of a breach-of-contract claim. Notably, Defendants claim that Plaintiff does not allege performance or tentative performance. Plaintiff does not provide evidence that he performed or tentatively performed on the Loan. On the other hand, Defendants provide evidence that Plaintiff defaulted on the Loan. See Mot. Ex. A-4 (Loan History). Texas law provides that “a party to a contract who is himself in default cannot maintain a suit for its breach.” Dobbins v. Redden, 785 S.W.2d 377, 378 (Tex.1990). *593Similarly, [a]n essential element in obtaining the equitable remedy of specific performance is that the party seeking such relief must plead and prove he was ready, willing and able to timely perform his obligations under the contract.” Rodriguez v. U.S. Bank, N.A., No. SA12-CV-345-XR, 2013 WL 3146844, at *12 (W.D.Tex. June 18, 2013) (quoting DiGiuseppe v. Lawler, 269 S.W.3d 588, 593 (Tex.2008)). Here, Plaintiff provides no evidence that he performed his payment obligations under the terms of the Note and Deed of Trust. Accordingly, Defendant is entitled to summary judgment on Plaintiffs breach-of-contract cause of action. See id. at *12 (“Plaintiffs concede that they ‘fell behind on their mortgage.’ ... Accordingly, [defendant is entitled to summary judgment on [plaintiffs’ breach of contract cause of action.”).
E. Declaratory Judgment
Finally, Plaintiff requests that the Court “declar[e] the [foreclosure to be without force and effect.” Pl.’s Am. Pet. 3. Plaintiff seeks a declaratory judgment pursuant to Chapter 37 of the Texas Declaratory Judgment Act, however, the Fifth Circuit has held that this act is a procedural rule that does not apply to a federal court sitting in diversity. See Utica Lloyd’s of Tex. v. Mitchell, 138 F.3d 208, 210 (5th Cir.1998); see also Van v. Anderson, 66 Fed.Appx. 524, *2 (5th Cir.2003) (per curiam). Further, even if Plaintiff had brought his claims under the Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201-02, his claims would fail. To be entitled to declaratory relief under the Federal Declaratory Judgment Act, a plaintiff must allege facts demonstrating that an “ ‘actual controversy’ exists between the parties to the action.” Orix Credit Alliance v. Wolfe, 212 F.3d 891 (5th Cir.2000) (citing Rowan Cos., Inc. v. Griffin, 876 F.2d 26, 27-28 (5th Cir.1989)); see also Calderon v. Bank of America, N.A., 941 F.Supp.2d 753, 768 (W.D.Tex.2013) (citing Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671-72, 70 S.Ct. 876, 94 L.Ed. 1194 (1950)) (“The Act does not create substantive rights; it is merely a procedural device that enhances the remedies available to plaintiffs in federal court.”).
As detailed above, an “actual controversy” does not exist regarding Defendants’ authority to foreclose on the Property. In the absence of a controversy, Plaintiffs request for declaratory relief must be denied. Accordingly, the Court grants summary judgment for Defendants on this claim.
IV. CONCLUSION
In the instant case, BAC Home Loans Servicing, L.P. and the Bank of New York Mellon have demonstrated that there is no genuine dispute of material fact as - to Plaintiffs claims.
Accordingly, IT IS ORDERED that Defendants’ “Motion for Summary Judgment and Brief in Support” (ECF No. 32) is GRANTED.
IT IS FURTHER ORDERED that Plaintiffs claims are DISMISSED WITH PREJUDICE.
. While Plaintiff's Amended Petition lists a claim for fraud, in Plaintiff’s Response, he states that he "is only proceeding under his declaratory judgment and breach of contract claims.” Resp. 1.
. MERS was created for the purpose of tracking ownership interests in residential mortgages. "More specifically, MERS was created to streamline the mortgage process by eliminating the need to record an assignment and deliver physical possession of a promissory note, which is the conventional method of assigning a note secured by a deed of trust.” Calderon v. Bank of Am. N.A., 941 F.Supp.2d 753, 762 (W.D.Tex.2013) (internal citations omitted). For a helpful explanation of MERS, see id.
. The Deed of Trust also states that "[t]he beneficiary of this Security Instrument is MERS ... and the successor and assigns of MERS. This Security Instrument secures to Lender: (i) the repayment of the Loan, and all renewals, extension and modifications of the Note; and (ii) the performance of Borrower’s covenants and agreements under this Security Instrument and the Note. For this purpose, Borrower irrevocably grants and conveys to Trustee, in trust, with power of sale, the following described property located in the County of El Paso.” Mot. Ex. A-2 (Deed of Trust).
. To the extent that Plaintiff may be arguing that BONY is acting as a trustee for Defendant CWALT and thus lacks the authority to enforce the Loan, this argument fails. Defendant BONY is the trustee for the loan trust, and thus has the authority to enforce the Loan.
. Plaintiff does not argue the "split the note theory” — the argument that "a transfer of a deed of trust by way of MERS 'splits’ the note from the deed of trust, thus rendering both null.” Martins, 722 F.3d at 254. However, even if Plaintiff were to argue the split-the-note theory, this argument would fail. The Fifth Circuit has held that the split-the-note theory is "inapplicable under Texas law where the foreclosing party is a mortgage service provider and the mortgage has been properly assigned.” Id. at 255 ("The party to foreclose need not possess the note itself. Here, the mortgage was assigned to MERS, and then by MERS to BAC — the assignment explicitly included the power to foreclose by the deed of trust. 'MERS and BAC did not need to possess the note to foreclose.”).
.Plaintiff states that the "note further appears to be serviced by BAC.” Resp. 7. Moreover, Defendants provide an affidavit from Becky Howell, the Chief Administrator of Foreclosure for BDF Holdings, Inc., an affiliated service provider for Barrett Daffin, which states that "BAC was servicing the loan on behalf of BONY.” Mot. Ex. B, at 2 (Declaration of Becky Howell). Accordingly, the undisputed evidence proves that BAC is the servicer of the Loan.
. Plaintiff claims for the first time in his Response that Defendants lack the authority to enforce the Loan as to half of Plaintiff's property because "the purported note and deed of trust with the Defendants is only for the Texas side of the property not the New Mexico side.” Resp. 5-6. In support of this argument, Plaintiff provides a "State of New Mexico Property Transfer Declaration Affidavit” signed by Plaintiff. Resp. Ex. C (Property Transfer Declaration Affidavit). Plaintiff provides no context for the document, failing to explain when the document was created, who created the document, or the purpose for which the document was created. The Court concludes that this exhibit is irrelevant to its decision in this case. Defendants seek to foreclose only on the property governed by the Note and Deed of Trust in this action; their authority to do so depends on the Note and Deed of Trust, not state borders.
. Other federal district courts in Texas have also held that a mortgagor does not have standing to challenge an assignment of a mortgage loan based on alleged violations of a PSA. See Rodriguez v. U.S. Bank, N.A., No. SA-12-CV-345-XR, 2013 WL 3146844, at *7 (W.D.Tex. June 18, 2013) (Rodriguez, Dist. J.) (holding that plaintiffs lacked standing to enforce the terms of the PSA because they failed to establish that that the PSA was "clearly intended to benefit them or that they were going to receive a sufficiently immediate benefit from the PSA”); Abruzzo v. PNC Bank, N.A., No. 4-11-CV-735-Y, 2012 WL 3200871, at *2 (N.D.Tex. July 30, 2012) (Means, Dist. J.) (holding that plaintiffs did not have standing to attack the process by which their mortgage was securitized because they were not parties to the PSA); Metcalf v. Deutsche Bank Nat. Trust Co., No. 3:11-CV-3014-D, 2012 WL 2399369, *4 (N.D.Tex. June 26, 2012) (Fitzwater, C.J.) (holding that plaintiffs lacked standing to challenge alleged lack of compliance with the PSA because they have not pleaded facts that would "allow the court to draw the reasonable inference that they are in privity with or are third-party beneficiaries of the PSA”).
. Even if the Court were to accept Plaintiff's argument that New York law governs the interpretation of the PSA, Plaintiff does not have standing to challenge an assignment to which he was not a party. See Calderon v. Bank of America N.A., 941 F.Supp.2d 753, 766-67 (N.D.Tex.2013).
. Plaintiff does not specify which sections of the Texas Property Code he relies upon when he alleges a deficiency of foreclosure notices. See Pl.’s Am. Pet. 3. For the purposes of this Order, the Court will assess whether Defendants served Plaintiff with foreclosure notices pursuant to Texas Property Code § 51.002(b) and (d) — the sections of the Code that establish notice requirements. For a more in-depth explanation of these requirements, see Gossett v. Fed. Home Loan Mortg. Corp., 919 F.Supp.2d 852, 858-60 (S.D.Tex.2013). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217818/ | ORDER
Matthew Edward Price, proceeding pro se, appeals a district court order that denied his 28 U.S.C. § 2255 motion. The case has been referred to this panel pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. We unanimously agree that oral argument is not needed. Fed. R.App. P. 34(a).
Price was charged with two counts of bank robbery. Price pleaded guilty to Count One of the indictment, and he was sentenced to 60 months of imprisonment. He did not appeal.
In his § 2255 motion, Price argued that: (1) he was improperly scored for multiple counts under the Sentencing Guidelines because Count Two of the indictment was dismissed; and (2) counsel rendered ineffective assistance by failing to object to the scoring of a dismissed count and by failing to properly advise him regarding the consequences of his guilty plea.
The district court denied § 2255 relief, stating “Plaintiff has not shown that his sentence was calculated improperly under the sentencing guidelines or that he received ineffective assistance of counsel in entering his plea of guilty before this Court.” The district court denied Price a certificate of appealability. We granted Price a certificate of appealability on his claim that counsel was ineffective.
In his timely appeal, Price argues that counsel was ineffective in failing to make him aware that he would be sentenced based upon his relevant conduct from the count that was dismissed as part of his plea agreement.
To establish ineffective assistance of counsel, Price is required to show that his attorney’s performance was, under all of the circumstances, unreasonable under prevailing professional norms, and that there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In a guilty plea context, a petitioner must satisfy the second prong of this test by showing that, were it not for counsel’s alleged errors, he would not have pleaded guilty but would have insisted upon going to trial. Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).
Price completely fails to satisfy the prejudice prong of the Strickland/Hill test. He stipulated that he committed the second bank robbery, which was charged in Count Two, and he attested that he was aware that the facts of that crime could be used to compute his sentence. Nothing indicates that Price misunderstood the stipulation or that, with some other understanding, he would have sought to withdraw his plea of guilty and would have insisted upon proceeding to trial.
Accordingly, we AFFIRM the district court’s order. Rule 34(j)(2)(C), Rules of the Sixth Circuit. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217819/ | ORDER
Johnny J. Wooley, a Tennessee prisoner proceeding pro se, appeals a district court judgment dismissing his civil rights complaint filed pursuant to 42 U.S.C. § 1983. This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).
Wooley sues Tennessee Department of Correction (“TDOC”) Commissioner Donal Campbell, Assistant Commissioner Jim Rose, Northwest Correctional Complex (“NWCC”) Warden Fred Raney, NWCC Health Administrator Ron Bloebaum, and Tennessee Governor Don Sundquist. Wooley alleges that he has Hepatitis C but is denied medication to improve his quality of life or retard the progression of the disease. Wooley alleges that he has never been allowed to see Center of Disease Control personnel or an infectious disease specialist. He alleges that his liver enzyme levels are monitored through blood work at NWCC.
Wooley alleges that he arrived in TDOC custody in a wheelchair with casts on both legs and hardware in his ankles. He alleges that an orthopedic doctor at the Spe*790cial Needs Facility ordered air splints for his ankles, a tens unit, and a cam walker boot prior to his transfer to NWCC. He alleges that he has never received those prescribed articles or alternatives. He alleges that NWCC medical personnel discontinued his previously prescribed medication for pain and stiffness. He seeks declaratory and monetary relief. The defendants are sued in their individual capacities.
The district court dismissed the complaint as frivolous and for failure to state a claim upon which relief may be granted. The dismissal was pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii). This appeal followed.
We review de novo a district court’s decision to dismiss under 28 U.S.C. § 1915(e)(2)(B)(i) and (ii). See McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir.1997). A case is frivolous if it lacks an arguable basis either in law or in fact. See Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). In determining whether a complaint fails to state a claim, this court construes the complaint in the light most favorable to the plaintiff, accepts his factual allegations as true, and determines whether he can prove any set of facts in support of his claims that would entitle him to relief. See Turker v. Ohio Dep’t of Rehab. & Corr., 157 F.3d 453, 456 (6th Cir.1998).
Upon review, we conclude that the district court properly dismissed Wooley’s complaint as frivolous and for failure to state a claim upon which relief may be granted. In order to prevail on his Eighth Amendment claim, Wooley must establish that the defendants were deliberately indifferent to his serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). However, the Constitution does not prohibit medical malpractice. Estelle, 429 U.S. at 104-06. A difference in opinion between a prisoner and the medical staff about treatment does not state a cause of action. Id. at 107. Federal courts are reluctant to second guess medical judgments where a prisoner has received some medical attention and the dispute concerns the adequacy of that treatment. See Westlake v. Lucas, 537 F.2d 857, 860 n. 5 (6th Cir.1976).
Here, Wooley admits that he received medical evaluation and care by NWCC medical staff. It is clear, moreover, that Wooley had access to medical services at NWCC, but that he was simply dissatisfied with the diagnosis and decisions of NWCC with regard to his need for treatment and type of treatment. Even if NWCC medical personnel were mistaken in their evaluation of Wooley’s conditions and needs, this would amount at most to medical malpractice. As stated previously, medical malpractice does not become a constitutional violation merely because the victim is a prisoner. Estelle, 429 U.S. at 104-06. Thus, Wooley’s complaint fails to state a claim, lacks an arguable basis either in law or fact, and is therefore, frivolous. See Neitzke, 490 U.S. at 325; Turker, 157 F.3d at 456.
Accordingly, the district court’s judgment is affirmed. Rule 34(j)(2)(C), Rules of the Sixth Circuit. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217821/ | ORDER
Neville King, proceeding pro se, appeals a district court order denying his motion to vacate his sentence filed pursuant to 28 U.S.C. § 2255 (Case No. 02-1557), as well as an order denying his motion to vacate the order denying his § 2255 motion. (Case No. 02-1624). This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).
In 1991, a jury convicted King for conspiring to distribute cocaine and distributing cocaine, in violation of 21 U.S.C. §§ 841 and 846. A panel of this court affirmed King’s convictions, but remanded the case for re-sentencing. United States v. Medina, 992 F.2d 573 (6th Cir.1993). On September 26, 1995, King was resen-tenced to a total of 235 months of imprisonment.
On May 16, 2000, King filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 in the federal district court in California. On December 13, 2000, the district court dismissed the petition as improper. The court suggested that King file a § 2255 motion and directed the clerk to send King the proper forms.
Thereafter, on June 22, 2001, King presented prison officials with his § 2255 motion, arguing that: 1) his sentence is illegal under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); and 2) he is actually innocent because the prosecutor redacted the indictment to include King’s name after it had been signed by the grand jury. The motion was filed on June 28, 2001. Upon review, the district court concluded that King’s § 2255 motion was untimely, and that he was not entitled to equitable tolling. Hence, the court denied the motion.
Subsequently, King filed a motion to vacate the order denying the § 2255 motion, essentially arguing that he was entitled to equitable tolling because the government could not establish any prejudice as a result of the delay in filing his § 2255 motion. The district court denied the motion, but it granted King a certificate of appealability as to the following issue: “whether the AEDPA’s one year statute of limitations is subject to equitable tolling in petitioner’s case, due to a lack of demonstrated prejudice by respondent.”
On appeal, King essentially reasserts his claims. He also argues that his § 2255 motion is timely because: a) he deposited the motion with prison officials on June 22, 2001, prior to the expiration of one-year from the Supreme Court’s decision in Ap-prendi; and b) his § 2241 motion should have been transferred to the proper court, pursuant to 28 U.S.C. § 1631. He also argues that, even if the § 2255 motion was untimely, he is entitled to equitable tolling because he diligently pursued his rights and because the government could not establish any prejudice as a result of the delay in filing his § 2255 motion.
*795Upon review, we conclude that the district court properly dismissed King’s original § 2255 motion as untimely. The Anti-terrorism and Effective Death Penalty Act (AEDPA) contains a one-year statute of limitations period during which a § 2255 motion to vacate sentence must be filed. See 28 U.S.C. § 2244(d)(1); see also Dunlap v. United States, 250 F.3d 1001, 1004-05 (6th Cir.), cert. denied, 534 U.S. 1057, 122 S.Ct. 649, 151 L.Ed.2d 566 (2001). The statute of limitations begins to run from the latest of four circumstances, one of which is the date on which the judgment became final by the conclusion of direct review. See 28 U.S.C. § 2244(d)(1)(A). Here. King does not dispute that his conviction became final on October 6, 1996. However, he did not file his § 2255 motion until June 28, 2001. beyond the one-year time period permitted for filing such a motion.
Contrary to King’s argument, the one-year statute of limitations was not renewed merely because he asserted a ground for relief based upon the ruling in Apprendi. This court has now issued a published decision that joins the majority of other circuits in holding that the Supreme Court’s holding in Apprendi is not retroactively applicable, even to cases on initial collateral review. See Goode v. United States, 305 F.3d 378, 382 (6th Cir.), cert. denied, — U.S.-, 123 S.Ct. 711, 154 L.Ed.2d 647 (2002). Furthermore, because the statute of limitations was not renewed, King’s § 2255 motion was not rendered timely merely because he presented it to prison officials on June 22, 2001. Likewise, the filing of his § 2241 petition, on May 16, 2000, did not render his § 2255 motion timely because the statute of limitations began to run from the date that his conviction became final.
The district court also properly concluded that King was not entitled to equitable tolling. See E.E.O.C. v. Kentucky State Police Dep’t, 80 F.3d 1086, 1094 (6th Cir.1996). When determining whether equitable tolling is appropriate, the court must consider: 1) the petitioner’s lack of notice or constructive notice of the filing requirement; 2) the petitioner’s diligence in pursuing his rights; 3) the absence of prejudice to the respondent; and 4) the petitioner’s reasonableness in remaining ignorant of the legal requirement for filing his claim. Andrews v. Orr, 851 F.2d 146, 150 (6th Cir.1988).
King concedes that he cannot establish the first, second or fourth prongs set forth in Dunlap. King did not establish that he diligently pursued his rights because King did not establish the existence of any circumstances beyond his control that prevented him from filing a timely § 2255 motion. See, e.g., GrahamHumphreys v. Memphis Brooks Museum of Art, 209 F.3d 552, 560-61 (6th Cir.2000). Finally, King is not entitled to equitable tolling merely because the government could not establish that it had suffered any prejudice as a result of the delay in filing his § 2255 motion. This court has held that the absence of prejudice to the respondent may only be considered if other factors of the test are met. Andrews, 851 F.2d at 151.
Finally, we note that the district court should have transferred King’s motion to vacate the underlying judgment to this court for purposes of determining whether King was entitled to file a second or successive habeas corpus petition in the district court. See In re Sims, 111 F.3d 45, 47 (6th Cir.1997). Instead, the district court denied the motion. Nonetheless, for the reasons stated above, and because King is essentially attempting to appeal the denial of § 2255 relief, we conclude that the most expedient course would be *796for this court to affirm the district court’s judgment denying the motion.
Accordingly, we affirm the district court’s judgments. Rule 34(j)(2)(C), Rules of the Sixth Circuit. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217822/ | ORDER
James Koos, a Wisconsin state inmate confined at the Whiteville (Tenn.) Correctional Facility, appeals a district court judgment dismissing his civil rights complaint filed pursuant to 42 U.S.C. § 2255. This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral *797argument is not needed. Fed. R.App. P. 34(a).
Seeking monetary damages, Koos sued the Corrections Corporation of America and Physician’s Assistant Steven Lackey claiming that Lackey improperly refused to approve an “egg-crate” mattress for the treatment of his back pain, in violation of his Eighth Amendment rights.
The district court dismissed Koos’s complaint pursuant to 28 U.S.C. § 1915A. In his timely appeal, Koos reasserts the claim set forth in the district court.
Section 1915A(b) requires a district court to dismiss any civil action brought by a prisoner against any governmental agency or employee if the court finds that the complaint is frivolous, malicious, fails to state a claim for relief or represents an attempt to recover monetary damages from a defendant who is immune from such relief. This court reviews de novo a judgment dismissing a suit on the authority of either statutory provision. Brown v. Bargery, 207 F.3d 863, 866-67 (6th Cir.2000) (citing McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir.1997)). A de novo review of the record and law supports the judgment on review.
Koos failed to state a claim upon which relief can be granted, and the district court properly dismissed the case. See McGore, 114 F.3d at 604. Koos contends that the defendants did not provide him with sufficient and timely medical care. Prison authorities may be sued for deliberate indifference to the serious medical needs of a prisoner under the Eighth Amendment as such indifference constitutes the unnecessary and wanton infliction of pain. See Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Such claims require proof of a subjective component, and where the claim alleges failure to attend to a prisoner’s medical needs, the standard for that state of mind is “deliberate indifference.” See Wilson v. Seiter, 501 U.S. 294, 297-300, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). A viable Eighth Amendment claim for non-penal conduct such as this also has an objective component. See Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). The objective component requires that the pain be serious. See Hudson v. McMillian, 503 U.S. 1, 8-9, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). A mere difference of opinion between the plaintiff and his doctor regarding diagnosis and treatment does not state a claim under the Eighth Amendment. See Estelle, 429 U.S. at 107, 97 S.Ct. 285; Westlake v. Lucas, 537 F.2d 857, 860 n. 5 (6th Cir.1976).
Koos’s factual allegations fail to state a claim upon which relief can be granted for the violation of his rights under the Eighth Amendment. Koos alleges that a nurse determined that he needed an egg-crate mattress, but that Physician’s Assistant Lackey determined that he did not.
The record reveals that no one at the prison was deliberately indifferent to Koos’s serious medical needs. Koos admits that he received back surgery, and the record reveals that he received a medical evaluation by a nurse and physician’s assistant, as well as instructions with regard to being re-evaluated. Thus, the record clearly reveals a competent and conscientious course of medical treatment, and Koos’s dissatisfaction with his treatment does not state a claim under the Eighth Amendment. See Estelle, 429 U.S. at 107; Westlake, 537 F.2d at 860 n. 5. The district court properly dismissed the claim.
Finally, to the extent that Koos claims that the defendants negligently committed medical malpractice, no claim is stated under 42 U.S.C. § 1983. See Estelle, 429 U.S. at 107; Westlake, 537 F.2d at 860 n. 5. Allegations of inadvertent fail*798ure to provide adequate medical care or of a negligent diagnosis simply fail to state a cause of action. See Farmer, 511 U.S. at 835.
Accordingly, the district court’s judgment is hereby affirmed pursuant to Rule 34(j)(2)(C), Rules of the Sixth Circuit. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217823/ | PER CURIAM.
In this appeal, we are called upon to review Appellant Arthur D. Giffin, Jr.’s conviction and sentencing pursuant to 21 U.S.C. § 846 for conspiracy to violate § 841(a)(1). Appellant challenges his conviction for conspiracy to distribute and possession with intent to distribute less than 50 kilograms of marijuana, on the grounds that: 1) the government failed to prove that the conspiracy involved at least 1,000 kilograms of marijuana as charged in the indictment; 2) the district court failed to credit Appellant’s federal sentence with time served on a related state offense; and 3) Appellant’s 60-month sentence is overstated by at least nine months, since the presentence report relied upon by the district court failed to accurately reflect a sentencing guideline maximum of 51 months. For the reasons that follow, we AFFIRM Appellant’s conviction, but REVERSE and REMAND to the lower court for further reconsideration of Appellant’s sentencing.
I. BACKGROUND
On March 22, 1998 Appellant was arrested in Arizona after a routine traffic stop of his automobile uncovered 214.5 pounds of marijuana. Appellant had been stopped in Virginia and Tennessee on two prior occasions, and was found to have, among other items, marijuana, drug paraphernalia and large amounts of cash.
Following his March 22 arrest, Appellant was charged under Arizona state law with conducting a criminal enterprise in case no. CR-62819, in Pima County, Arizona. He pleaded guilty and was sentenced on March 22, 1999 to a three-year state prison term.
On April 26, 2000, Appellant was charged under federal law in the Eastern District of Tennessee with conspiracy to distribute and possession with the intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1). A superseding indictment was filed on August 22, 2000 charging Appellant with conspiracy to distribute and possession with the intent to distribute at least 1000 kilograms of marijuana in violation of 21 U.S.C. § 841(b)(1)(A).
*800At Appellant’s trial, the jury verdict form contained two questions. First, the jury had to decide whether Appellant was guilty of conspiracy. If so, the jury then had to determine whether the government proved that the conspiracy involved at least 1,000 kilograms of marijuana. Before this form was submitted to the jury, however, the government requested that the district court include the additional optional verdicts of conspiracy to distribute less than 100 kilograms and less than 50 kilograms of marijuana. This request was made pursuant to the Supreme Court’s holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which states that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490.
Notably, Appellant did not object to the government’s suggestion, nor did he argue, as he does now, that because the government charged at least 1,000 kilograms, the jury could find only that amount or acquit him. Rather, Appellant accepted the government’s recommended changes, asking only that the district court include the option of less than 50 kilograms. The district court, however, ultimately refused to make any of the proposed changes, and required the government to prove beyond a reasonable doubt that the conspiracy involved at least 1,000 kilograms of marijuana.
On October 23, 2000, Appellant was found guilty of conspiracy to distribute and possession with the intent to distribute an amount of marijuana, but was not found guilty with respect to the amount of at least 1,000 kilograms of marijuana. A pre-sentence report was then ordered for Appellant. In it, the probation officer found that approximately 651.5 kilograms of marijuana were involved in the conspiracy. Subsequently, that amount was used to calculate a total base offense level of 30, and a recommended sentence of 97 to 121 months of imprisonment.
A sentencing hearing was held on January 29, 2001. Because the jury did not ascertain the amount of marijuana involved, the district court sentenced Appellant according to 21 U.S.C. § 841(b)(1)(D), which applies to crimes involving less than 50 kilograms of marijuana. Appellant received the statutory maximum sentence of five years imprisonment, to run concurrently with his state sentence. This sentence was to be followed by three years of supervised release.
II. STANDARD OF REVIEW
When a defendant fails to object to a sentencing decision in the lower court, the standard of review is for plain error. United States v. Collins, 188 F.3d 509 (6th Cir.1999). Plain error exists when the court finds: “(1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of the judicial proceedings.” United States v. King, 272 F.3d 366, 374-75 (6th Cir.2001) (internal quotations and citations omitted).
III. DISCUSSION
A. Appellant’s Challenge Regarding the Weight of the Controlled Substance
We first address Appellant’s contention that his conviction should be vacated because the jury did not find beyond a reasonable doubt that the conspiracy involved at least 1,000 kilograms of marijua*801na. While he agrees that his conviction may not violate the rule of Apprendi, Appellant argues that the Fifth and Sixth Amendments guarantee him the right to have every element of his § 841(a)(1) violation decided by the jury. Therefore, Appellant asserts that because the government charged him with, and failed to prove, conspiracy to distribute and possession with intent to distribute at least 1,000 kilograms of marijuana, the jury essentially found him not guilty of a 21 U.S.C. § 841(a)(1) violation. We reject Appellant’s argument.
As an initial point, because Appellant failed to raise his objection in the lower court, our review is for plain error. See Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). The first factor to consider under the plain error standard is error. We do not find that the lower court committed any error, let alone plain error, in sentencing Appellant pursuant to 21 U.S.C. § 841(b)(1)(D). In order to find Appellant guilty of conspiracy to distribute and possession with intent to distribute marijuana, the jury necessarily had to find that some quantity of marijuana was involved. To be sure, it was not the amount charged in the indictment, but it was some amount. This court has never held that a defendant’s Fifth and Sixth Amendment rights are violated simply because a jury finds that a 21 U.S.C. § 841(a) violation involves a lesser quantity of drugs than that charged in the indictment. Rather, the lower court must sentence the defendant according to the statutory penalty range that corresponds with the jury’s determination as to the quantity involved. See United States v. Humphrey, 287 F.3d 422, 446 (6th Cir.2002)1 and United States v. Flowal, 234 F.3d 932, 938 (6th Cir.2000).2 As the jury implicitly found that there was some amount of marijuana involved, the court only held Appellant responsible for the least amount necessarily included in the jury verdict-less than 50 kilograms. Hence, we find no error in the trial judge sentencing Appellant pursuant to 21 U.S.C. § 841(b)(1)(D).
B. Sentencing Credit
We next address Appellant’s contention that the district court was required to credit his federal sentence with time served on his related state sentence pursuant to U.S. Sentencing Guidelines § 5G1.3(b), Application Note 2. Appellant did not raise this objection with the sentencing court, but asserts on appeal that Application Note 2 requires the district court to credit his five-year federal sentence with the two and a half years he completed on his state sentence at the time his federal sentence was imposed. Because Appellant did not object at sentencing, we review for plain error, and conclude that the district court’s failure to grant Appellant sentencing credit was plain error.
U.S.S.G. § 5G1.3(b). Imposition of a Sentence on a Defendant Subject to an Undischarged Term of Imprisonment, provides as follows:
If subsection (a) does not apply, and the undischarged term of imprisonment resulted from offense(s) that have been *802fully taken into account in the determination of the offense level for the instant offense, the sentence for the instant offense shall be imposed to run concurrently to the undischarged term of imprisonment.
Nothing in the language of § 5Gl.S(b) indicates that a district court must grant sentencing credit to a federal defendant with time served on a related state sentence. However, the application note that follows § 5G1.3(b), Application Note 2, suggests otherwise. It provides as follows:
[w]hen a sentence is imposed pursuant to subsection (b), the court should adjust the sentence for any period of imprisonment already served as a result of the conduct taken into account in determining the guideline range for the instant offense if the court determines that period of imprisonment will not be credited to the federal sentence by the Bureau of Prisons.
The Note continues with an illustrative example. In the example, a hypothetical defendant had already served six out of nine months on a state prison sentence when he received a thirteen-month sentence on a related federal drug conviction. The note explicitly provides that because the state and federal charges resulted from the same conduct, the district court was required to grant sentencing credit to the defendant. As the language of the note makes clear, “[bjecause the defendant has already served six months on the related state charge as of the date of sentencing on the instant federal offense, a sentence of seven months, imposed to run concurrently with the three months remaining on defendant’s state sentence, achieves [the desired] result” of Application Note 2. U.S.S.G. § 5G1.3(b), cmt. n. 2.
Sentencing courts are required to follow commentary to the Sentencing Guidelines unless that commentary violates federal law or is inconsistent with the relevant guideline at issue in a particular case. Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993). Here, the language of Application Note 2, when read in conjunction with its illustrative example, requires a district court to grant sentencing credit when the court has determined that the federal sentence and the undischarged state sentence will run concurrently. In fact, this court has applied the Note in this manner, and recognized the duty Application Note 2 imposes on sentencing courts. See United States v. Mohler, Nos. 97-3586, 97-3671, 1999 U.S.App. LEXIS 16211 *7, 1999 WL 503569 (6th Cir. July 9, 1999) (interpreting Application Note 2, and holding that “[i]f a defendant is serving ... a prior undischarged [state] term of imprisonment at the time sentencing on the instant offense, the amount of time already served is to be credited toward the sentence that otherwise would have been imposed to run concurrently.”) There is nothing discretionary in the language of Application Note 2. That is, once a court decides that the federal and undischarged state sentences are to run concurrently, it must grant a defendant sentencing credit.
Here, then, the district court committed plain error when, after deciding that Appellant’s state and federal sentences would run concurrently, it did not credit Appellant’s five-year federal sentence with the two and a half years that he had already served on his undischarged state term. Moreover, the district court’s error affected Appellant’s substantial rights and the integrity and fairness of the judicial process, because Appellant was forced to serve two and a half years in prison that he did not need to serve. The purpose of § 5G1.3 is to “mitigate the possibility that the fortuity of two separate prosecutions will grossly increase the defendant’s sen*803tence.” United States v. Caraballo, 200 F.3d 20, 27 (1st Cir.1999) (quoting Witte v. United States, 515 U.S. 389, 405, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995)). Here, the district court’s conduct was inconsistent with the purpose of § 5G1.3(b). For in not crediting Appellant’s federal sentence with the time he had served for his related state sentence, the district court “grossly increased” Appellant’s overall sentence by two and a half years.
The court’s analysis does not end here, however, because Application Note 2 indicates that a defendant must first seek sentencing credit from the Bureau of Prisoners before the district court can consider the issue. Here, Appellant did not go to the Bureau of Prisoners, but asserts in his defense that the adjustment of his sentence is nevertheless appropriate because it is clear that the Bureau would have refused him credit pursuant to 18 U.S.C. § 3585(b). According to § 3585(b), a federal defendant can receive credit on his federal sentence for prior time served in only two circumstances: 1) where the same offense serves as the basis for both sentences; or, 2) where the prior time served results from any other charge for which the defendant was arrested after the commission of the present offense. Id.
According to Appellant, his state sentence fit into neither one of these categories; therefore, the Bureau would have, without a doubt, denied his request for credit. However, the certainty of the Bureau’s refusal is not so clear to this court. Therefore, we remand to the district court to determine whether the Bureau would have, in fact, denied Appellant sentencing credit.
C. Miscalculation of Presentencing Report
Finally, we address Appellant’s contention that the presentence report overstated his recommended sentence in violation of Apprendi by relying on a fact not decided by the jury, namely that the conspiracy involved 651.5 kilograms of marijuana. Appellant asserts that the pre-sentence report should have calculated the base offense level using the quantity of less than 50 kilograms. Thus, Appellant argues, the maximum sentence under the sentencing guidelines should have been 51 months, or 9 months less than the 60-month sentence imposed.
Again, since Appellant did not raise this objection at sentencing, we review for plain error. See United States v. Page, 232 F.3d 536, 543 (6th Cir.2000). The presentence report must consider relevant conduct under § 1B1.3 of the Guidelines, and “types and quantities of drugs not specified in the count of conviction may be considered in determining the offense level.” U.S.S.G. § 2D1.1. cmt. n. 12. In other words, “Apprendi does not apply to the Sentencing Guidelines.” United States v. Harris, 244 F.3d 828, 829 (11th Cir.2001); see also United States v. Garcia, 252 F.3d 838, 843 (6th Cir.2001). Nor is Apprendi triggered “where a defendant is sentenced to a term of imprisonment within the statutory maximum prescribed.” United States v. Fitch, 282 F.3d 364, 368 (6th Cir.2002). Here, using the relevant conduct involved, the quantity of drugs for guideline purposes was determined to be 651.5 kilograms, not less than 50 kilograms, which was the conviction quantity. The sentencing range established by the guidelines for 651.5 kilograms is 97-121 months, but the court could not exceed the statutory maximum sentence for the conviction quantity, which is 60 months pursuant § 841(b)(1)(D). The sentence did not exceed this, and we find no error.
IV. CONCLUSION
For the reasons stated above, this Court AFFIRMS in part and REVERSES and *804REMANDS to the district court to decide whether the Bureau of Prisoners would have granted Appellant sentencing credit.
. Humphrey was convicted of violations of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(A), but the jury’s failure to determine beyond a reasonable doubt the quantity of drugs for which Humphrey was responsible properly required him to be sentenced only under 21 U.S.C. § 841(b)(1)(C).
. The indictment charged the defendant with 5.2 kilograms of cocaine, but the jury was nevertheless permitted to find that the drug quantity involved was less than that amount. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217824/ | PER CURIAM.
The City of Cookeville, Tennessee (“City”) first employed Bobby Andrews as a police officer on August 21, 1975. At that time, he was still going to school in a nearby town, and voluntarily quit when the City asked him to move to the City. In May 1979, the City again employed Andrews as a police officer. He worked there until September 1989 when he accepted a job as a criminal investigator with the Public Defender’s Office. In June 1999, the City had an opening for a police officer and Andrews applied for the position. Andrews passed the written examination and the agility examination and was given an interview. He was ranked eighth among the applicants and was not hired.
Andrews brought suit against the City and the City’s police chief, Robert Terry, in his official capacity, for age and sex discrimination. The federal district court granted the City’s motion for summary judgment and dismissed the action. Andrews appeals the judgment, asserting as error only the rejection of the age-discrimination claim. We reverse the grant of the summary judgment and remand the matter for further proceedings.
I. BACKGROUND
Andrews filed this action under the Tennessee Human Rights Act, Title VII of the Civil Rights Act of 1964, and the Age Discrimination In Employment Act of 1967 (“ADEA”).1 The City removed the case to federal court under 28 U.S.C. § 1881, the federal question statute. The City and Terry filed a motion for summary judgment and the district court granted that motion on September 29, 2001. Andrews appeals the court’s decision granting summary judgment on his age-discrimination claim, but he does not appeal the decision on his sex-discrimination claim.
Andrews began work as a police officer with the City on August 21, 1975. The parties dispute whether Andrews was terminated or voluntarily quit the next day. Andrews testified that after he began work, he was informed that he would need to relocate his residence to the City. At the time, Andrews was still in school and living in Crossville, Tennessee. Andrews states that he advised his supervisor that he would remain in school rather than move to the City and so he voluntarily quit. In its findings of fact, the district court accepted Andrews’s version of events.
Andrews rejoined the City’s Police Department in May 1979. He stayed with the Department until September 1989, when he left to become a criminal investigator with the Public Defender’s Office. According to the City, when Andrews separated from the Department this second time, he was designated as not eligible for rehire by then Chief of Police, William Benson. Former Chief Benson testified that after reviewing Andrews’s file, the only reason he observed for Andrews’s ineligibility was that he had left the Department without providing proper notice. Although Andrews did not recall abandoning his post in the middle of a shift, he did *806admit that he could not deny that it occurred.
In December 1998, while still employed by the Public Defender’s Office, Andrews began to seek other employment and once again filled out an application for employment with the Department even though an opening was not then available. In June 1999, Andrews saw an advertisement for a police officer position with the City, and he completed another application.
The City called Andrews to take the written examination for the position. After Andrews took the written test and the physical agility test, he was granted an interview with various members of the Department. Andrews scored 78 on the written exam, the fifth highest score among those taking the exam. Andrews passed the physical agility test, which was evaluated on a pass/fail basis. During the agility examination, Chief Terry made the comment to Andrews that Andrews was just like George Foreman and he did not know when to quit. Andrews’s average score on the interview was 29.6. which was the eighth highest score among the applicants. The oral interview process consisted of five officers asking a standard set of questions. Each interviewer graded the applicants and the scores were averaged.
The City did not hire Andrews. He received a letter dated August 11, 1999, from the Director of the City’s Department of Human Resources stating that he would not be given further consideration at that time.2 The City offered the position to Tammy Goolsby. Goolsby scored higher than Andrews on the interview. Andrews confronted Chief Terry about the decision not to hire him. Terry allegedly told Andrews that Goolsby was selected because she finished close to the top in the interview process, she was qualified, and she was a woman.
After Goolsby was hired, the City hired three additional officers, all of whom were in the same applicant pool as Andrews. According to Andrews, one of the male officers hired by the City scored lower than he did on the oral interview. At the time of this incident, five of the Department’s highest ranking officers were over forty years old. Andrews was forty-eight years old.
Andrews argues that he was more qualified than other applicants, including Gools-by, because he graduated first in his class at the Tennessee Law Enforcement Training Academy, had an associates degree, and had approximately eleven years of experience as a police officer.
II. DISCUSSION
A grant of summary judgment is reviewed de novo. See City Mgmt. Corp. v. United States Chem. Co., 43 F.3d 244, 250 (6th Cir.1994). The appellate court must determine, viewing the evidence most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the law. See id. If the non-moving party cannot make a sufficient showing on an essential element of its case, the moving party will be entitled to judgment as a matter of law. Celotex *807Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2648, 91 L.Ed.2d 265 (1986).
The district court determined that Andrews was over forty years of age and qualified for the position of police officer. While younger applicants were chosen for the position, the district court explained: “Plaintiff was not among the top candidates as reflected by the fact that his score on the variances tests ranked him eighth.” After characterizing the George Foreman comment as “ambiguous,” the court accepted Andrews’s view that Chief Terry’s remark was a reference to his age, and concluded that this comment would give rise to an inference of age discrimination by the City. The court cited Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 355-56 (6th Cir.1998), and concluded that the manager’s remarks in that case “were much more obvious than here, but the Sixth Circuit held that those remarks were ‘too attenuated to support a finding that age bias motivated’ the employment decision.”
The court next noted the following facts: (1)Andrews’s low ranking among the applicants: (2) there were multiple persons other than Police Chief Terry involved in the decision-making process; and (3) “the presence of other officers over the age of forty.” Given these facts, the court concluded that Police Chief Terry’s remark was insufficient to support an age-discrimination claim.
Although it is not entirely clear, the district court appears to accept that Andrews presented evidence sufficient to satisfy his prima facie burden for an age-discrimination claim. The City argues that Andrews fails to establish a prima facie case in that he was not qualified for the position of police officer because then Chief Benson had designated him as ineligible for rehire.
We reject this argument and conclude that Andrews established a prima facie claim of discrimination. The district court implicitly rejected the City’s claim that Andrews was not qualified for the position. In its findings of fact, the court discusses Benson’s statement that if the City wanted to rehire Andrews then it would do so regardless of whether Benson had determined that Andrews was ineligible for rehire. The court does not discuss this matter at any other point in its opinion.
We now explicitly reject this contention. The City allowed Andrews to take the written and physical exams and granted him an oral interview. The City’s rejection letter to Andrews makes no mention of his disqualification. Our decision comports with the notion that “the burden of establishing a prima facie case of discriminatory treatment is not meant to be ‘onerous.’ ” Christian v. Wal-Mart Stores, Inc., 252 F.3d 862, 870 (6th Cir.2001) (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)).
Based on our reading of the district court’s opinion, the court granted summary judgment because Andrews failed to show that the City’s explanation for not hiring him was pretextual. Under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), after the plaintiff has established a prima facie case, the burden shifts to the City to articulate a legitimate nondiseriminatory reason for not hiring Andrews for the position.
In assessing the City’s proffered nondiscriminatory reason for not hiring Andrews, the district court only considered the City’s hiring of Tammy Goolsby. The court did not consider the other individuals hired by the City since June 1999. In the City’s response to Andrews’s first set of *808interrogatories, the City lists eight individuals who had filled police officer positions with the City since June 1999. Andrews directs our attention to the case of Brian Chase Mathis, age twenty-two. Mathis had a lower score on the oral interviews, but nonetheless was offered a position with the City. The City interviewed Mathis on the same day it interviewed Andrews. Mathis scored an average of 28.2, while Andrews scored 29.6.
The district court did not mention Mathis in its opinion, nor did it explain why it was limiting its consideration of the facts to Tammy Goolsby’s position.
Andrews finds fault in this omission and urges us to consider that the combination of the City’s hiring Mathis, despite his lower oral interview score, plus Chief Terry’s comment and direct involvement with the hiring process, are sufficient to allow a trier of fact to disbelieve the City’s legitimate, nondiscriminatory explanation for its actions.
The City would have us limit consideration of the facts to the four officers hired by the City who scored higher than Andrews. Like the district court opinion, the City’s brief does not mention Mathis at all. However, the City cites no authority for limiting the pool of those hired to just Tammy Goolsby.
We agree with Andrews’s contention that the circumstances relating to the hiring of Mathis rather than Andrews plus Chief Terry’s comment and his direct involvement in the hiring process are sufficient to overcome the City’s motion for summary judgment.
III. CONCLUSION
Accordingly, we reverse and remand this case for further proceedings on the age-discrimination claim consistent with this opinion.
. The parties do not contest that analysis of a claim under Tennessee’s Human Rights Act is identical to analysis of the elements and burden of proof under the ADEA.
. The full text of the letter reads:
Thank you for your interest in employment with the Cookeville Police Department. We realize it involves a significant amount of time and energy to participate in the application process for police officer.
After reviewing information on each person interviewed, it has been determined that you will not be given further consideration for employment at this time.
Again, thank you for your interest in working for the City of Cookeville. Good luck in your search for employment.
J.A. at 135. | 01-04-2023 | 07-25-2022 |